Opinion
No. COA09-1293
Filed 18 May 2010 This case not for publication
Appeal by Defendant from judgments and commitments entered 6 March 2009 by Judge John L. Holshouser, Jr. in Superior Court, Rowan County. Heard in the Court of Appeals 8 March 2010.
Attorney General Roy Cooper, by Assistant Attorney General Angenette R. Stephenson, for the State. Winifred H. Dillon for Defendant.
Rowan County Nos. 03 CRS 58891-93, 03 CRS 58896-98.
On 5 March 2009, a jury found Defendant guilty of three counts of first degree rape of a child and three counts of first degree sex offense with a child. On 6 March 2009, the trial court entered judgments corresponding to the jury's verdict and sentenced Defendant to a total of 1080 to 1323 months imprisonment. The evidence presented at trial tended to show the following:
Defendant's sentence corresponds to 90 to 110.25 years imprisonment.
J.D., the victim in this matter, was born on 18 July 1990. The offenses Defendant was charged with occurred in 2001, when J.D. was 11 years old. At that time, J.D. lived in Spencer, North Carolina, with her mother and her mother's boyfriend, Defendant. J.D.'s mother worked as a cab driver and had unusual hours; Defendant was unemployed.
We use the victim's initials to protect her privacy.
J.D. testified that on one occasion, when her mother was at work, Defendant and J.D. were watching television when Defendant gave J.D. vodka to drink and marijuana to smoke. J.D. said that the vodka and marijuana "relaxed" her. Thereafter, Defendant and J.D. "started playing, wrestling and stuff" and then "[Defendant] was like doing different moves and stuff, and then he — he started touching on me." Defendant touched J.D. on her behind, outside her clothes. Defendant told J.D. to take off her clothes, and she complied because she was scared "[t]hat he might hurt me or something." After J.D. undressed, Defendant put his penis inside J.D.'s vagina; this continued for approximately ten minutes. When Defendant finished, J.D. "went to the bathroom and threw up." Defendant threw J.D.'s clothes at her, told her to put them on, and said J.D. was "a woman now." J.D. did not tell her mother about this incident because she did not think her mother would believe her.
On another occasion, Defendant and J.D. were in J.D.'s mother's bedroom. Defendant told J.D., "I want to show you some new things that I'm doing to your mom." J.D. lay back on the bed with her feet dangling off the end, and Defendant stood between J.D.'s legs. Defendant lifted J.D.'s legs, and J.D.'s mother walked into the room. At that point, J.D. and Defendant "stood up and walked out." Later, J.D.'s mother asked J.D. if something was going on, but J.D. did not tell her mother what had happened with Defendant because she was still scared her mother would not believe her.
Defendant had vaginal intercourse with J.D. eight or nine times in various places in their home. Defendant engaged in anal intercourse with J.D. approximately three times. J.D. described the anal intercourse as "[u]ncomfortable[,]" and said that she saw a white liquid on her "butt" afterward. Defendant also touched J.D.'s vagina with his mouth on two or three occasions.
At some point thereafter, J.D. told two friends, one who was 13 years old and the other who was 14 years old, about Defendant's abuse. Neither friend told anyone else. J.D. eventually moved out of her mother's house and in with her father. After living with her father for "[a]bout a year or so[,]" J.D. told her father's girlfriend what had happened with Defendant, and her father's girlfriend reported J.D.'s story to the police.
On or about 30 October 2003, J.D. was examined and interviewed at the Child Advocacy Center at Northeast Medical Center by Dr. Rosalena Conroy ("Dr. Conroy"). J.D.'s examination was normal for her age except for the genital examination. J.D. had an abnormal notch in her hymen at the four o'clock position, which is typically formed "from a penetrating injury that pulls that hymen and rips it[.]" Dr. Conroy explained that many times the notch will heal completely, "so most of the time we don't even have any physical findings." Thus, Dr. Conroy testified that the fact that she was able to find a notch on J.D. was "very significant[,]" and this notch could have been caused by a penis.
Dr. Conroy also found "anal dilatation," which refers to the failure of the buttocks to reflexively "close[] up" when pulled upon. Dr. Conroy said that this was indicative of penetrating trauma to the anus which could have been caused by a penis. Dr. Conroy could not say whether repeated penetration would be needed to cause the notch on J.D.'s hymen, but she believed that more than one penetration was needed to cause the anal trauma. J.D. was also tested for sexually transmitted diseases, and she tested positive for chlamydia. Chlamydia is "transmitted from infected vaginal or penile discharge[,]" and thus, it is more likely to be transmitted through intercourse than digital penetration or oral sex. Based on J.D.'s "history, how she gave that history, the physical findings and the lab findings," Dr. Conroy opined that J.D. contracted chlamydia through sexual abuse.
In preparation for her testimony, Dr. Conroy reviewed some of Defendant's medical records. Among those records was a report from 3 December 2007 in which Defendant complained of a lump in his stomach that was causing pain. Additionally, on 23 January 2008, Defendant complained of pain in his abdomen during masturbation. Based on these symptoms, Defendant was tested for type two of the herpes simplex virus and chlamydia. The blood test revealed the presence of the antibodies for chlamydia which is indicative of a past infection of chlamydia, but Dr. Conroy was unable to determine how recently Defendant had been infected with chlamydia.
Sheri Cook ("Ms. Cook"), a registered nurse who was employed at the Children's Advocacy Center in 2003, testified that she conducted a medical interview of J.D. on or about 30 October 2003. Ms. Cook described what J.D. had told her during the interview which mirrored the description of events to which J.D. testified at trial.
Karen Morgan ("Ms. Morgan"), a registered nurse at the Rowan County Detention Center where Defendant was being held, testified that Defendant was diagnosed with chlamydia in 2008. The State introduced Defendant's medical records into evidence over defense counsel's objection. Ann Smith, another registered nurse from the Rowan County Detention Center, also testified that Defendant had been treated for chlamydia while in jail.
Eric Stillwell, Gregory Hannold, and T.L. Wilsey (collectively, "the officers") were law enforcement officers with the Spencer Police Department and were present on 4 August 2006, when the officers attempted to execute a search warrant to test Defendant for certain sexually transmitted diseases. On 4 August 2006, the officers escorted Defendant from the detention facility to LabCorp for testing. During this encounter, Defendant acted erratically, with his behavior alternating between polite and cooperative to belligerent and mean. Defendant refused to cooperate with the medical personnel in collecting a blood sample and threatened violence. The officers did not have any way to restrain Defendant so that blood could safely be drawn, and thus, they escorted Defendant back to the detention center without a blood sample having been obtained.
Defendant did not present any evidence at trial. The jury found Defendant guilty of three counts of first degree rape of a child and three counts of first degree sex offense with a child. Defendant appeals.
Discussion A. Witnesses' Testimony
In his first argument, Defendant contends that the trial court committed plain error in permitting the officers to testify about the failed attempt to collect blood from Defendant on 4 August 2006. Defendant failed to object to the officers' testimony at trial and is thus limited to plain error review. See N.C. R. App. P. 10(b)(2), 10(c)(4). In criminal trials, plain error review is available for challenges to jury instructions and evidentiary issues. Dogwood Dev. Mgmt. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008). "Reversal for plain error is only appropriate where the error is so fundamental that it undermines the fairness of the trial, or where it had a probable impact on the guilty verdict." State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 240 (2002).
Defendant contends that it was plain error to admit the testimony of these witnesses because their testimony was irrelevant and unduly prejudicial. Defendant argues that the officers' testimony that Defendant was "uncooperative, belligerent, foul-mouthed and threatening, served only to smear [D]efendant's character in an already inflamed environment." Even assuming arguendo that the officers' testimony was admitted in error, given the overwhelming evidence of Defendant's guilt, the trial court's error would not amount to plain error.
In addition to the officers' testimony, the State presented plenary evidence of Defendant's guilt. J.D. testified that when she was 11 years old, Defendant engaged in vaginal intercourse with her eight or nine times. J.D. also testified that Defendant engaged in anal intercourse with her three times and that he touched her vagina with his mouth on multiple occasions. Dr. Conroy testified that a medical examination of J.D. revealed physical evidence of vaginal penetration and anal trauma consistent with sexual abuse. Furthermore, the State presented evidence that both J.D. and Defendant had been infected with chlamydia.
In light of the substantial evidence of Defendant's guilt, we cannot conclude that the trial court's alleged error "resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Hannah, 149 N.C. App. 713, 720, 563 S.E.2d 1, 6 (2002) (internal citation and quotation marks omitted). The assignment of error upon which Defendant's argument is based is overruled.
B. Failure to Declare a Mistrial
Defendant also argues that the trial court erred by failing to declare a mistrial, ex mero motu, when a juror asked to be removed from the jury. Defendant did not move for a mistrial at trial, and thus argues that the trial court abused its discretion in failing to declare a mistrial on its own motion. Because the decision of whether to grant a mistrial is within the discretion of the trial court, "we will review the trial court's actions for an abuse of discretion." State v. Mack, 188 N.C. App. 365, 370, 656 S.E.2d 1, 7 (2008) (noting that plain error review was not available for issues left to the trial court's discretion, applied abuse of discretion standard to review trial court's decision not to declare a mistrial on its own motion).
During jury deliberations, the jurors submitted a written request to the trial court for "[t]ape recording; testimony of [J.D.]; three rules to go by; and then it says replace Sherry Stone." The trial court explained that a healthy, capable juror would not be replaced by an alternate simply upon request, stating that
[t]he fourth item says, "Replace Sherry Stone," and I believe that this was meant to be with an alternate juror. Ladies and gentlemen, I must tell you that you were selected by the parties and the attorneys in this case to deliberate upon the facts, and it is your duty to do whatever you can to render a verdict in this case. Alternate jurors are never permitted to deliberate if the original 12 jurors maintained their good health and capability of going into the jury room. I would simply ask you to reason the matter over among yourselves as reasonable men and women to see if you can reconcile your differences without surrendering any conscientious convictions that you may have. But I'm going to ask you to resume your deliberations and to see if you can reach a verdict.
Approximately one hour and fifteen minutes after the jury retired again, the trial judge explained in open court:
Juror Number 11 has basically informed the bailiff that she's leaving, that she will not continue to remain in that room, and I do not know the source of [her] concerns, but she feels that she's being humiliated, belittled and she just is walking out. She said that if she's in contempt, that I can put her in jail if I want to, that she's leaving. The bailiff asked her to go back in and calm down. I'm compelled to bring them out and to ask them if they are at a total impasse at this point, and if they are, I have no alternative than to declare a mistrial.
This is juror Sherry Stone.
The jury then returned to the courtroom and the trial judge explained to the jury the importance of reaching a verdict, stating:
Ladies and gentlemen, I received a report from the bailiff that the deliberations are not going well. Before I say anything further, I must remind you how very, very important this case is not only to the State, but also to the defendant; that I feel that it is virtually imperative that the jurors perform their duty as best they can to arrive at a decision which they believe to be correct, even if that decision does not happen to be unanimous. But I cannot have anyone breaking the process and simply leaving the courthouse while the jury is duly impaneled and while the deliberations are in process.
Now, that being said, I want us to try to reach an agreement as to our course of conduct as we go. I understand that these are matters that to you are very sensitive and very important as well, because you are attempting to make the right decision based upon the evidence which has been presented. I do not want any juror to take anything personally.
As I told you at the very beginning when the entire jurors were in the audience, you are not here passing judgment on any human being at all. You are simply passing judgment on the facts, and you are weighing those facts, and you are applying the law which I give you to those facts. That is the only responsibility that you have, is to use your voice to recall as best you can what those facts were in your deliberations. We have worked very hard, all of us. I want to continue to try to resolve this case one way or the other. I'm also wanting you to feel comfortable about your service.
I want to excuse you for the evening to allow you to go home and to gain your composure, and to come back tomorrow morning and try again. Now, I must have the unanimous agreement among everyone that they will come back tomorrow morning and try again. Do I have that agreement? That's all I can ask. These, again, are matters which can best be described as unpleasant, but you are grown mature men and women, and your backgrounds and your experiences are absolutely vital to the administration of justice, and I'm going to continue to depend upon you to understand the nature and extent of your duties, and to return tomorrow morning at 9:30, and to let's begin again.
What I will ask you to do is to assemble in the jury assembly room. I will bring you back into the jury box so that we're all accounted for, and then we will continue our deliberations as best we can. That's all that I can ask. But I wish for you a pleasant evening. Please rest well. Gain some nourishment, and return tomorrow with at least the attitude that you're going to do the best you can to resolve this case one way or the other. That's all we can ask. I thank you.
The following day, all 12 jurors returned to court and began deliberations at 9:38 a.m. At 10:24 a.m., the jury returned a verdict of guilty of three counts of first degree rape of a child and three counts of first degree sex offense with a child. The trial judge polled each juror, and each juror affirmed that the verdicts were his or her own and that he or she assented to the verdicts.
N.C. Gen. Stat. § 15A-1235 governs jury deliberations and the matter of deadlocked juries. This section provides in pertinent part that
[i]f it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b) [of this section]. The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals. . . . If it appears that there is no reasonable possibility of agreement, the judge may declare a mistrial and discharge the jury.
N.C. Gen. Stat. § 15A-1235 (2008).
In reviewing whether a trial court improperly coerced a verdict by the jury, our Court must consider the totality of the circumstances. State v. Porter, 340 N.C. 320, 335, 457 S.E.2d 716, 723 (1995). "Some of the factors considered are whether the trial court conveyed an impression to the jurors that it was irritated with them for not reaching a verdict and whether the trial court intimated to the jurors that it would hold them until they reached a verdict." Id. In reviewing the totality of the circumstances, our Supreme Court has upheld decisions from trial courts where jurors were urged to continue deliberations despite indications that they were "at a standstill," Id. at 337, 457 S.E.2d at 724, or "`hopelessly deadlocked.'" State v. Patterson, 332 N.C. 409, 414, 420 S.E.2d 98, 100 (1992).
A careful review of the transcript of these proceedings indicates that the trial court did not abuse its discretion in failing to declare a mistrial on its own motion. Despite one juror's statement to the bailiff that she desired to be removed from the jury because she felt "humiliated" and "belittled," there is no evidence in the record that her feelings caused the jury's verdict to be coerced or compromised. Accordingly, we conclude that Defendant received a fair trial, free of error.
NO ERROR.
Chief Judge MARTIN and Judge WYNN concur.
Report per Rule 30(e).