Opinion
No. 07-725.
Filed February 5, 2008.
Davidson County, No. 04 CRS 58304.
Appeal by defendant from judgment entered 27 October 2006 by Judge Kimberly S. Taylor in Davidson County Superior Court. Heard in the Court of Appeals 11 December 2007.
Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State. Brian Michael Aus for defendant.
Jason Lane Rabon (defendant) appeals from a judgment consistent with guilty jury verdicts convicting him of second degree rape and second degree sexual offense. Defendant was sentenced to two consecutive presumptive range sentences of 80-105 months imprisonment each.
The State's evidence at trial tended to show that on 8 August 2004 Mary went to visit defendant at a friend's apartment. Defendant was scheduled to fly out of town the next morning and Mary had agreed to drive him to the airport. When Mary arrived, defendant had been drinking and argued with her about breaking up with him. Defendant became violent: he threw Mary on the bed; told her, "I'll break your neck"; and tied her wrists tightly together behind her back. Defendant removed her underwear and touched the outside and inside of her vagina with his fingers. He lit a cigarette and put the unlit end in her vagina and told Mary she had a couple of minutes to explain to him why she broke up with him. Defendant had vaginal intercourse and oral sex with Mary while her hands were tied behind her back. He also knelt over her face and put his penis in her mouth. During the sexual assault, defendant had the video camera on at times. Near the end of the assault, defendant's demeanor changed from being violent and angry to being really nervous. After Mary talked defendant into letting her go, she ran to her car and drove to High Point Regional Hospital.
"Mary" is a pseudonym used throughout to protect the identity of the individual assaulted.
At the hospital, Mary explained she had been raped and was examined by a trained forensic nurse examiner. The physical exam revealed that Mary's cervix was bruised and tender, which was consistent with being raped. There were also rope burns around her wrists and red marks on her buttocks. After Mary left the hospital, she made a statement at the Thomasville Police Department.
In September 2004, defendant's parents visited the apartment where the assault occurred to retrieve defendant's personal belongings. While there, they found a videotape showing defendant having vaginal intercourse with and committing sexual acts against Mary while her wrists were tied. Defendant's father gave the videotape to defendant's attorney. Defendant appeals.
Defendant argues the trial court committed plain error by: (I) failing to properly define the term "sexual act" in the jury instructions for second degree sexual offense; and (II) admitting videotape evidence depicting defendant and Mary.
I
Defendant argues the trial court erred in its instructions to the jury regarding second degree sexual offense. Because defendant failed to object to the jury instructions at trial, he now argues that the trial court committed plain error. N.C. R. App. P. 10(c). Defendant argues the trial court incorrectly defined a "sexual act" as "any penetration, however slight, by an object into the genital opening of a person's body" because there was evidence of different objects of penetration into the victim's vagina and the jury, therefore, might not have unanimously agreed on the sexual act at issue.
When a defendant challenges a jury instruction he did not object to at trial, the instruction is reviewed on appeal for plain error. N.C. R. App. P. 10(b)(2); State v. Odom, 307 N.C. 655, 659-60, 300 S.E.2d 375, 378 (1983). This Court overturns the trial court for plain error only in extraordinary cases, where the error was so fundamental that it resulted in a miscarriage of justice or had a probable impact on the conviction by the jury. Odom, 307 N.C. at 660-61, 300 S.E.2d at 378. We "examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt." Id. A defendant is guilty of second degree sexual offense if he engages in a "sexual act" with another person by force and against the person's will. N.C. Gen. Stat. § 14-27.5(a)(1) (2005). A "sexual act" is defined as "cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body. . . ." N.C.G.S. § 14-27.1(4) (2005). "`Any object' in this context includes any part of the human body, including a finger." State v. Smith, 180 N.C. App. 86, 96, 636 S.E.2d 267, 273 (2006) (citing State v. Lucas, 302 N.C. 342, 346, 275 S.E.2d 433, 436 (1981)).
In this case, the trial court instructed the jury on the elements of second degree sexual offense by stating to the jury, as requested by the State, that defendant was alleged to have digitally penetrated the victim. Defendant argues the trial court's instructions created the risk of a non-unanimous jury verdict because the instructions specified digital penetration at the beginning, but the remainder of the instruction used the term "sexual act." We disagree.
Although other acts of penetration were in evidence, digital penetration was the only sexual act specified for the charge of second degree sex offense. The instructions defined the term "sexual act" and, consistent with the verdict sheet, specified that "digital penetration" was the alleged sexual act. See State v. Kennedy, 320 N.C. 20, 25, 357 S.E.2d 359, 362 (1987) (rejecting jury unanimity challenge to convictions for first degree sexual offenses because "the trial judge submitted a specific instruction with respect to unanimity of verdict as to each indictment and also assigned correlating specific alleged acts of sexual offense to each indictment"); Smith, 180 N.C. App. at 91-92, 636 S.E.2d at 271 (rejecting a jury unanimity challenge to convictions for first degree sexual offense, attempted first-degree sexual offense, and taking indecent liberties with a child because the jury instructions specified which alleged act corresponded to each charge, the jury was instructed that its verdicts must be unanimous, and the verdict sheets "specifically designated which incident corresponded to each charge"). The trial court's instructions were proper and did not create a risk of a non-unanimous verdict. Accordingly, this assignment of error is overruled.
II
Defendant argues the trial court plainly erred by admitting into evidence a videotape depicting defendant with Mary after determining the videotape was not privileged attorney-client material. At trial, defendant's motion to suppress the videotape was denied. On appeal, defendant argues the trial court erred by denying his motion to suppress the videotape. Defendant contends the prosecution obtained the videotape in violation of the attorney-client privilege.
Defendant did not object at trial when the videotape was admitted into evidence, nor did he object when the videotape was played for the jury. Therefore, we review this issue for plain error. State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845-46 (1995) ("A motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial."). The following five-part test is used to determine whether the attorney-client privilege applies to a particular communication:
(1) the relation[ship] of attorney and client existed at the time the communication was made, (2) the communication was made in confidence, (3) the communication relates to a matter about which the attorney is being professionally consulted, (4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated and (5) the client has not waived the privilege.
In re Investigation of the Death of Miller, 357 N.C. 316, 335, 584 S.E.2d 772, 786 (2003) (internal quotations omitted). Consistent with the purpose of the privilege is the rule that "the attorney-client privilege should be asserted only by the person whose interest the particular rule of privilege is intended to safeguard." Id. at 338, 590 S.E.2d at 788 (citation and internal quotations omitted). "Although an attorney may assert the privilege when necessary to protect the interests of the client, the privilege belongs solely to the client." Id. "It is not the privilege of the court or any third party." Id. (citations and internal quotations omitted).
The videotape in question was given to the civilian defense attorney by defendant's father. The evidence at trial showed that defendant's parents went to the apartment of defendant's friend in September 2004 to gather defendant's belongings. They found a videotape in a clothes basket. Defendant's father watched parts of the videotape and then turned it over to defendant's civilian attorney. According to the affidavit of the civilian defense attorney, he obtained a general verbal consent from defendant to cooperate with military defense counsel by providing materials for use in the military proceeding. The military defense counsel told the civilian defense attorney the videotape must be turned over to the military prosecutor. The military prosecutor had a copy of the videotape made for the District Attorney's Office. Despite defendant's argument to the contrary, no attorney-client relationship existed between the attorney and defendant's father. Thus, any resulting communication between the two was not protected by the attorney-client privilege. The trial court did not err by admitting the videotape into evidence. Accordingly, this assignment of error is overruled.
No error.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).