Opinion
No. COA15–483.
01-05-2016
STATE of North Carolina v. Francisco Marquez MARTINEZ, Defendant.
bAttorney General Roy A. Cooper, III, by Assistant Attorney General John F. Oates, Jr., for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kathryn L. VandenBerg, for the Defendant.
bAttorney General Roy A. Cooper, III, by Assistant Attorney General John F. Oates, Jr., for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kathryn L. VandenBerg, for the Defendant.
Opinion
Appeal by Defendant from judgments entered 25 July 2014 by Judge William Z. Wood, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 7 October 2015.
DILLON, Judge.
Francisco Marquez Martinez (“Defendant”) appeals from judgments entered upon a jury verdict finding him guilty of rape of a child and indecent liberties with a child. We find no error.
I. Background
The evidence at trial tended to show the following: On Tuesday, 19 June 2012, Defendant arranged with the victim's mother to cut her grass that coming Saturday. However, after learning that rain was expected on Saturday, Defendant went to do the job the day beforehand, on Friday.
When Defendant arrived on Friday, the victim's mother was away running errands. The victim answered the door, and after speaking briefly with Defendant, telephoned her mother. The victim passed the telephone to Defendant, whereupon the victim's mother gave Defendant permission to cut the grass that day and return the following day for payment. Before beginning the job, Defendant asked the victim how old she was. She told him she was twelve. Defendant then went outside to cut the grass, and the victim remained inside.
Not long afterward, the victim heard Defendant knocking at the door a second time. It had begun to rain, and Defendant asked if he could come inside the house to avoid getting wet. The victim let him in but asked that he stay by the doorway. As she turned, Defendant told her a string was hanging from her shirt. He knelt down on one knee and began to caress her buttocks. The victim ran, and Defendant gave chase. He pushed her onto the bed in her mother's bedroom and began touching her breasts and kissing her neck. The victim struggled against his weight, pushed him off of her and ran to the bathroom. He followed her to the bathroom, closed the door behind him, and turned off the lights.
In the darkness, he pushed her and she fell into the bathtub. As she struggled underneath him, she heard him unbuckle his belt and felt three sharp pains in her vaginal area. She yelled and fought, swinging her arms behind herself to strike him, eventually landing a blow. Defendant stopped. He told her he would be back if she told anyone what had happened. Then he fled.
Defendant was subsequently indicted for rape of a child and indecent liberties with a child. The matter came on for a jury trial. The jury found Defendant guilty on both counts. The trial court sentenced Defendant to prison for 300 to 420 months for rape of a child and sixteen (16) to twenty-nine (29) months for indecent liberties with a child, ordering that the sentences run consecutively. Defendant entered notice of appeal in open court.
II. Analysis
Defendant makes two arguments on appeal, which we address in turn.
A. Jury Instructions
Defendant first argues that the trial court erred in failing to instruct the jury on attempted rape of a child, as a lesser-included offense of rape of a child. Specifically, Defendant contends that statements made by the victim regarding vaginal penetration conflicted, and where there was no direct evidence of such penetration, the trial court was required to instruct the jury on the lesser-included offense of attempted rape of a child. We disagree.
Generally, due process requires the submission of an instruction to the jury on a lesser-included offense where there is evidence of the lesser charge. State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000). “To determine whether evidence is sufficient for submission of the lesser offense to the jury, a court must view the evidence in the light most favorable to [the] defendant.” State v. Brewington, 179 N.C.App. 772, 779, 635 S .E.2d 512, 518 (2006) (internal marks omitted). However, “indiscriminate[ ] or automatic” jury instructions on lesser-included offenses are inappropriate. State v. Taylor, 362 N.C. 514, 530, 669 S.E.2d 239, 256 (2008). Thus, the essential question is whether the lesser-included offense is “supported by any version of the evidence.” State v. Nelson, 341 N.C. 695, 697, 462 S.E.2d 225, 226 (1995) (emphasis in original). Accordingly, our Supreme Court has held that an instruction on a lesser-included offense is not required where it “could result in the jury's finding of guilt of a crime which is not supported by the evidence of either party.” Id. at 698, 462 S.E.2d at 226 (emphasis added).
Rape of a child is codified in N.C. Gen.Stat. § 14–27.2A, which defines the offense in relevant part as “vaginal intercourse with a victim who is a child under the age of 13 years” by someone at least eighteen (18) years old at the time of the offense. N.C. Gen.Stat. § 14–27.2A(a) (2012). “Vaginal intercourse is defined as penetration, however slight, of the female sex organ by the male sex organ.” State v. Combs, 226 N.C.App. 87, 90, 739 S.E.2d 584, 586 (2013) (internal marks omitted). Thus, while conviction of rape of a child requires proof of penetration, we have held that such proof need not take the form of “any particular ... words [of testimony] to indicate that penetration occurred.” Id. at 90, 739 S.E.2d at 586.
Our Supreme Court has held that “[t]he elements of an attempt to commit a crime are (1) the intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation, but (3) falls short of the completed offense.” State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000) (internal marks omitted). Furthermore, attempted rape of a child is a lesser-included offense of rape of a child. See State v. Jackson, 320 N.C. 452, 463–65, 358 S.E.2d 679, 685–86 (1987).
In the present case, we are not persuaded that the supposed “inconsistencies” in the victim's testimony regarding penetration amount to affirmative evidence of the act required to establish the lesser-included offense of attempted rape of a child. Specifically, although the victim testified at one point on cross-examination that Defendant “tried” to vaginally penetrate her, she clarified this testimony, stating: “—well, yeah. He entered me.” Moreover, on direct examination, she testified that while struggling under Defendant's weight, trying to escape from a bathtub where she was trapped, she heard the rattling of Defendant's belt buckle and then felt “three ... big pains in ... [her] vaginal area.” The victim testified further that the pain was very sharp and that she felt something go into her vaginal area three times. Even viewing this evidence in the light most favorable to Defendant, as we must, we hold that it did not support an instruction on the lesser-included offense of attempted rape of a child because it did not tend to show that the vaginal penetration required for conviction of the substantive offense was not completed.
Furthermore, while it is true that Defendant testified that his filmed confession in which he admitted to engaging in consensual sexual intercourse with the victim was coerced and was not truthful, in neither the confession nor his in-court testimony did Defendant present a version of events which would have supported instruction on the lesser-included offense. Rather, his versions of the evidence were, according to his filmed confession and in-court testimony respectively, either that he engaged in consensual intercourse with the victim or that he did not engage in intercourse with her at all. Defendant's denial of all wrongdoing was evidence that he was not guilty of anything, not that he was guilty of attempted rape of a child. Similarly, evidence that the victim consented did not negate any element of the substantive offense, nor was it evidence of an element of an attempt of the same. As in Nelson, instructing the jury on attempted rape of a child could have “result[ed] in the jury's finding of guilt of a crime which [was] not supported by the evidence of either party.” 341 N.C. at 698, 462 S.E.2d at 226 (emphasis added). Therefore, the trial court did not err in refusing to do so. Accordingly, this argument is overruled.
B. Expert Testimony
Defendant next argues that the trial court erred in allowing certain testimony by the State's expert in sexual assault examination. At trial, the nurse who examined the victim two days after the incident testified that she observed no vaginal wounds on the victim. At issue, however, is the nurse's testimony that it is not uncommon for vaginal wounds to heal within twenty-four (24) to forty-eight (48) hours of intercourse. Defendant contends that the nurse's testimony regarding the healing of human tissue, including vaginal tissue, was expert opinion which should have been excluded where such opinion was not disclosed in pretrial discovery, as required. Defendant further contends that this evidence was critical to explain why the lack of physical evidence was not fatal to the State's case. We disagree.
Rule 702(a) of the North Carolina Rules of Evidence permits testimony by qualified experts to “assist the trier of fact to understand the evidence or to determine a fact in issue[.]” N.C. Gen.Stat. § 8C–1, Rule 702(a) (2014). N.C. Gen.Stat. § 15A–903(a)(2), however, requires the prosecution to notify the defense of expert witnesses it expects to call and must “furnish to the defendant the expert's curriculum vitae, the expert's opinion, and the underlying basis for that opinion.” Id. § 15A–903(a)(2).
In the present case, the State duly notified the defendant that the nurse would be called to render expert opinion testimony. However, the notice did not specifically indicate that the nurse would give testimony concerning the healing rate of human tissue.
Where the State fails to comply fully with the notice requirements in N.C. Gen.Stat. § 15A–903, the trial court is not necessarily required to exclude the evidence. State v. Alston, 307 N.C. 321, 330, 298 S.E.2d 631, 638–39 (1983). Rather, N.C. Gen.Stat. § 15A–910 provides that the trial court may, among other sanctions, order the State to permit discovery or inspection; grant the defendant a continuance or recess; or exclude the evidence. N.C. Gen.Stat. § 15A–910(a)(1)–(3) (2014). However, as our Supreme Court has observed, this statute “does not require the court to impose any sanction.” Alston, 307 N.C. at 330, 298 S.E.2d at 639 (emphasis added). Further, “[w]hich sanction, if any, is the appropriate response to a party's failure to comply with N.C. Gen.Stat. § 15A–903 is entirely within the sound discretion of the trial court.” Id.
We hold that the trial court did not abuse its discretion by allowing the nurse to testify about the healing rates of vaginal tissue. Here, the trial court conducted a voir dire inquiry as to the nurse's testimony, which confirmed that her opinion was grounded in literature, education, and her training and experience as a sexual assault nurse. Additionally, the trial court verified during voir dire that the nurse's testimony was predicated on the basis that it is a medical fact that physical damage to the genital area may heal very quickly (within twenty-four (24) to forty-eight (48) hours). The State provided the titles of the articles relied upon by the nurse, and the trial court indicated that the nurse could be re-called. The trial court indicated that Defendant could offer expert testimony which contradicted the nurse's opinion. However, Defendant did not request a continuance, so he could not avail himself of these options. Accordingly, we cannot say that the trial court abused its discretion in not excluding the nurse's opinion testimony. Accordingly, this argument is overruled.
III. Conclusion
We believe that Defendant received a fair trial, free from error.
NO ERROR.
Judges GEER and HUNTER, JR., concur.
Report per Rule 30(e).