Opinion
No. COA15-967
04-19-2016
THE STATE OF NORTH CAROLINA v. RONALD PERRY, JR.
Attorney General Roy Cooper, by Special Deputy Attorney General Jennifer T. Harrod, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L. VandenBerg, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Forsyth County, No. 13 CRS 58953-54, 58958, 14 CRS 108-09 Appeal by Defendant from judgments entered 26 September 2014 by Judge Anderson D. Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 25 February 2016. Attorney General Roy Cooper, by Special Deputy Attorney General Jennifer T. Harrod, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L. VandenBerg, for Defendant. INMAN, Judge.
Defendant Ronald Perry, Jr. ("Defendant") appeals from the judgments entered upon his convictions for five counts of indecent liberties with a child, one count of statutory sex offense (age 13 to 15), and two counts of sex offense with a child. On appeal, Defendant argues that the trial court erred in denying his motions to dismiss the two counts of sex offense with a child because there was insufficient evidence that the victim was 12 when the sex acts occurred or, in the alternative, that there was insufficient evidence to prove that more than one sex act occurred when the victim was 12. Defendant also argues that the trial court committed plain error by allowing an expert witness to vouch for the victim's credibility.
After careful review, we conclude that Defendant has failed to demonstrate error.
Factual and Procedural Background
The evidence presented at trial tended to establish the following: Maya, her mother P.L. ("Ms. L"), and her two brothers moved into an apartment beside Defendant's apartment on 5 November 2012. Maya was 12 years old at the time and would turn 13 on 17 December 2012, approximately 6 weeks later. Shortly after Maya and her family moved in, Defendant began to sexually abuse her. Maya testified that the first incident occurred when she was 12. Maya went to Defendant's apartment, and Defendant forced her to perform oral sex on him. Defendant told her that he would hit her in the head if she did not comply. Defendant ejaculated in her mouth, and Maya went back to her apartment and used a rag to clean out her mouth.
A pseudonym has been used throughout this opinion to protect the juvenile's privacy and for consistency with the briefs.
A pseudonym is also being used for Maya's mother to protect Maya's privacy.
Maya's testimony at trial is difficult to follow regarding other incidents of sexual abuse. At one point, she testified that she performed oral sex on Defendant only twice but she also testified that she did it regularly. Maya testified about other incidents where her mother not only encouraged her to participate in sexual activity with Defendant but also watched. Maya testified that some of the instances involved Defendant masturbating while she sat on the sofa. Maya stated that her mother was present during four incidents.
At some point, the testimony is unclear as to when Defendant began paying Maya and her mother for Maya's participation in various sexual acts. Maya testified that Defendant would give her $30 to $40 to help her mother pay bills. However, Maya denied that she was paid every time. Her testimony is often confusing when she is recounting other incidents of sexual abuse, especially when it concerns the timing of the events.
The sexual abuse only stopped after Defendant's girlfriend reported it to the police. Maya was taken to the hospital where she was examined by a sexual abuse nurse examiner ("SANE"). Maya testified that she did not tell the nurse about all the incidents of abuse because she felt like it was "all her fault."
Ms. L, who pleaded guilty to three counts of felony child abuse in connection with Defendant's contact with her daughter, also testified at Defendant's trial for the prosecution as part of her plea agreement. Ms. L's testimony was often confusing and, at times, nonsensical. However, she testified that the sexual abuse started shortly, "like, a month or two," after they moved into the apartment beside Defendant. Defendant began making comments about Maya's looks and would even make sexual comments to her or to Ms. L. Ms. L claimed that the first time she saw Maya perform oral sex on Defendant was when Maya was 12 years old, but she only admitted to seeing Maya perform oral sex a total of two times. Ms. L admitted in her testimony that she witnessed four to five incidents of sexual abuse between Defendant and Maya, but she also testified that she was not present during some of the abuse. Ms. L testified that Maya's abuse began when she was 12 and continued to occur after she turned 13. Some of the sexual incidents seem to have occurred during the summer of 2013 when either Ms. L was not working in the school cafeteria due to the summer break and when Defendant began dating his girlfriend who reported the sexual abuse to police. Ms. L also testified about various incidents where Defendant would masturbate in Maya's presence.
Beth Willis, the SANE who examined Maya at the hospital, ("Willis") testified at trial that she was unable to recover any DNA evidence to support Maya's allegations. According to Ms. Willis, Maya initially denied that she had performed oral sex more than once but, later in the interview, Maya told her that the abuse started when she was 12 and occurred about twice a week for a year.
Fulton McSwain, a child psychologist who testified as an expert in forensic interviewing of children, ("McSwain") testified that he interviewed Maya in September 2013. During the interview, a copy of which was provided to the Court, Maya stated that the abuse began when she was 12 years old. However, at a different point in the same interview, Maya told McSwain that she had told a "whole bunch of lies . . . . about Ronald and me."
On cross-examination, defense counsel asked McSwain about a statement in his report regarding Maya's deception. The following colloquy took place:
Q. And I think you had indicated in your report that [Maya] appeared to be deceptive when discussing the incident involving Mr. Perry?
A. Well, with that, I think -- the entire allegation involving her mother, I think she was consistent in stating Mr. Perry made her perform oral sex.
Q. But you had specifically said that [Maya] appeared to be deceptive when discussing the incident involving Ronald?
A. Can you refer to me the page that -
Q. Well, the page I have is 128.
A. Okay. It would be a different page under mine.
Q. Very top of the page where it says -- I'm sorry. It is my 128. It would be your Page 4.
A. Okay. I did make a note of that, but I also made a note at the end. If you refer to my summary and conclusion, I made a note as to what I believe she was being deceptive about.
Q. Can you read the very first sentence of that paragraph on Page 4?
A. "The interviewer notes that [Maya] appeared to be deceptive when discussing the incident involving Ronald."
Q. And I think later on in your summary, you had indicated
that it appeared that [Maya] was not being completely truthful with her disclosure. That would be Page 6, first sentence of the summary.On redirect, the prosecutor asked for clarification regarding his notes:
A. Yes, I think I noted that.
Q. When Mr. Jordan was referring you to your summary conclusion, were you speaking about her not being completely open and truthful with regard to her mother's involvement with the allegation against Ronald?
A. Yes. I was referring to her mother's involvement.
On 26 September 2014, the jury found Defendant guilty of two counts of first degree sexual offense with a child, one count of statutory sex offense, and five counts of incident liberties with a child. Defendant was sentenced to a minimum term of 300 months to a maximum term of 420 months imprisonment for each count of first degree sexual offense of a child, a minimum term of 276 months to a maximum term of 392 months imprisonment for the statutory sex offense, and a minimum term of 19 months to a maximum term of 83 months imprisonment for the five counts of indecent liberties. Defendant was also required to register as a sex offender. Defendant appeals.
Analysis
Defendant first argues that the trial court erred in denying his motion to dismiss the two counts of first degree sex offense with a child because there was insufficient evidence that Maya performed oral sex on Defendant when she was 12. According to Defendant, Maya and Ms. L were not "reliable historian[s]," and, because their conclusory statements that two such incidents occurred when Maya was 12 were not "supported by any surrounding circumstances described in the narratives they supplied," there was insubstantial evidence that Maya was 12 when they occurred. In the alternative, Defendant contends that there was insufficient evidence that more than one sex act occurred when Maya was 12. We disagree.
"This Court reviews the trial court's denial of a motion to dismiss de novo." State v. McClamb, ___ N.C. App. ___, ___, 760 S.E.2d 337, 339 (2014).
Upon [the] defendant's motion for dismissal, the question for the [appellate c]ourt is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant's being the perpetrator of such offense. If so, the motion is properly denied.State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000). In reviewing the sufficiency of circumstantial evidence,
the question for the Court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances. If so, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty. In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor. If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed.State v. Rose, 339 N.C. 172, 192-93, 451 S.E.2d 211, 222-23 (1994) (internal quotation marks and citations omitted).
"A person is guilty of statutory sexual offense with a child by an adult if the person is at least 18 years of age and engages in a sexual act with a victim who is a child under the age of 13 years." N.C. Gen. Stat. § 14-27.28(a) (2015). A "sexual act" includes fellatio. N.C. Gen. Stat. § 14-27.20(4). Thus, to support the two counts of N.C. Gen. Stat. § 14-27.28(a), there must have been substantial evidence establishing that two incidents of fellatio occurred when Maya was 12 years old.
Defendant is correct that testimony by both Maya and her mother often conflicts as to when and how many times the sex acts occurred. It appears from the record that some, if not the majority, of abuse occurred after Maya turned 13. However, considering the evidence in a light most favorable to the State and allowing every reasonable inference in favor of the State, the testimony was sufficient to allow a reasonable juror to find that Defendant had committed two sex offenses against Maya before her 13th birthday.
Maya testified in detail about the first time she performed oral sex on Defendant. She testified that it happened when she was 12 years old and that her mother was not present. After ejaculating, Defendant wiped himself off with a towel, and Maya returned home to clean out her mouth with a rag. She told Ms. L about the incident, and her mother said "nothing." After that first incident, Maya testified that she performed oral sex on Defendant "more than once," regularly, and at least four times.
Maya testified that the next incident of fellatio occurred when her mother was present after she had turned 13 years old. However, this testimony is contradicted by Ms. L, who testified that she first saw Maya perform oral sex on Defendant when Maya was 12. Ms. L claimed that it occurred in Defendant's apartment while Ms. L was sitting on the sofa across from them.
Resolving any contradictions in favor of the State and construing Maya's and Ms. L's testimony together, the evidence was adequate to support a conclusion that Maya performed oral sex on Defendant at least twice before she turned 13, once when her mother was present and once when she was not. The fact that the abuse began when she was 12 was supported by Maya's statements to both Willis and McSwain. Any contradictions or discrepancies as to when the abuse occurred, whether it was before her 13th birthday on 17 December 2012, were for the jury to resolve. See State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992) ("[C]ontradictions and discrepancies do not warrant dismissal of the case-they are for the jury to resolve."). While not overwhelming or unrefuted, there exists substantial evidence that Defendant forced Maya to perform fellatio on him on two separate occasions when she was 12 years old.
Defendant's reliance on State v. Mueller is misplaced. In Mueller, 184 N.C. App. 553, 573, 647 S.E.2d 440, 454 (2007), this Court vacated one count of rape of a child under the age of 13 when the victim's own testimony was that the defendant began having sexual intercourse with her when she was 13 even though he began inappropriately touching her before her 13th birthday. Id. In the present case, Maya and her mother both described specific acts of fellatio that they testified occurred when Maya was 12 years old. --------
The circumstances here are strikingly similar to those before this Court in State v. Jones, 99 N.C. App. 412, 416, 393 S.E.2d 585, 587 (1990). The victim in Jones testified that the defendant had sex with her "a lot of times" when she was in seventh grade. Id. The victim turned 13 in October of her seventh grade year, so that she was 12 years for only a few months during the seventh grade. Id. The victim testified about one specific incident in which the defendant forced her to engage in sexual intercourse a few days after her great-grandfather died when the victim was 11 years old. Id. This Court held the evidence was sufficient to withstand the defendant's motion to dismiss two charges of rape of a child under the age of 13. Id. The defendant argued on appeal that the State had failed to provide sufficient evidence that the rape offenses occurred before the victim turned 13. Id. This Court disagreed, noting:
We find that this evidence is sufficient for withstanding a motion to dismiss on the ground that the State failed to present ample evidence of the prosecutrix' age at the times of the alleged incidents of rape. Taking the evidence in the light most favorable to the State, as the trial court was required to do, the prosecutrix' testimony that she was
forced to have intercourse with defendant on numerous occasions during her seventh grade school term, during a portion of which time she was 12, and her testimony that defendant raped her a few days after her great-grandfather's death at which time she was 11, there is sufficient evidence regarding the age of the prosecutrix during the times of the alleged offenses charged in case number 86 CrS 4615.Id. at 415-16, 393 S.E.2d at 587.
Defendant argues that the absence of any "specific memory of a sex act a few days after a particular event" distinguishes this case from State v. Jones. We disagree. Two witnesses testified in detail about two separate incidents before Maya's 13th birthday in which Defendant forced Maya to perform fellatio on him. While sexual abuse certainly continued after she turned 13 years old, there was substantial evidence that the sexual acts began shortly after Maya and her family moved in beside Defendant and before she turned 13. Like the death of the victim's grandfather in Jones, the family's arrival in the apartment next to Defendant is a specific event. Thus, Defendant's contention is without merit.
Next, Defendant argues that McSwain's testimony on cross-examination that vouched for Maya's credibility constituted plain error. We disagree.
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted).
Expert witness testimony as to the credibility of a witness is not admissible. State v. Wise, 326 N.C. 421, 426, 390 S.E.2d 142, 145 (1990); State v. Aguallo, 318 N.C. 590, 598-99, 350 S.E.2d 76, 81 (1986).
Even if we were to assume, without deciding, that McSwain's testimony that Maya was "consistent in stating [Defendant] made her perform oral sex" constituted error, it does not rise to the level of plain error. Given the overwhelming evidence that Defendant engaged in various sexual acts and indecent liberties with Maya beginning in either November or December of 2012 and continuing until the summer of 2013, we cannot say that, had this purported improper vouching not occurred, the jury would probably have reached a different verdict. Thus, Defendant has failed to establish plain error.
Conclusion
Based on the foregoing reasons, we hold that Defendant has failed to demonstrate error.
NO ERROR.
Judges GEER and TYSON concur.
Report per Rule 30(e).