Opinion
No. COA12–571.
2012-12-4
STATE of North Carolina v. James Thomas LONG.
Attorney General Roy Cooper, by Special Deputy Attorney General Celia Grasty Lata, on brief, and Special Deputy Attorney General Robert C. Montgomery substituted, after briefing, as counsel of record for the State. Haral E. Carlin for defendant appellant.
Appeal by defendant from judgments entered 1 July 2011 by Judge Jay D. Hockenbury in Craven County Superior Court and on petition for writ of certiorari from order entered 27 July 2011 by Judge Kenneth F. Crow in Craven County Superior Court. Heard in the Court of Appeals 11 October 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Celia Grasty Lata, on brief, and Special Deputy Attorney General Robert C. Montgomery substituted, after briefing, as counsel of record for the State. Haral E. Carlin for defendant appellant.
McCULLOUGH, Judge.
On 1 July 2011, James Thomas Long (“defendant”) was convicted of two counts of first-degree sex offense with a child and one count of first-degree rape of a child, all with aggravating factors. Defendant was sentenced to two consecutive terms of 250 to 309 months' imprisonment. At a subsequent hearing, defendant was also ordered to register as a sex offender for life and to enroll in lifetime satellite-based monitoring (“SBM”).
On appeal, defendant argues that (1) the trial court plainly erred in admitting certain portions of a pediatric sexual assault nurse examiner's testimony in violation of Rules 401 and 403 of our Rules of Evidence; (2) the trial court plainly erred in admitting the testimony of the investigating officer regarding the child's description of defendant's penis, thereby impermissibly vouching for the credibility of the child; (3) the trial court failed to intervene ex mero motu to clarify the investigating officer's testimony regarding the role of the court in evaluating the presence of aggravating factors; (4) the trial court lacked subject matter jurisdiction to order defendant to register as a sex offender for life and to enroll in lifetime SBM; and (5) the trial court's lifetime SBM order violated the constitutional prohibition on ex post facto punishment.
We hold the trial court committed no error during the conduct of defendant's trial, and after granting defendant's petition for writ of certiorari, we affirm the trial court's sex offender registration and SBM orders, having concluded the error committed in not following the proper statutory procedure for conducting the SBM hearing was harmless under the circumstances of this case.
I. Background
The child victim in the present case was born 16 October 1994. Defendant is the biological father of the child. In July 2006, when the child was eleven years old, the child came forth with allegations that defendant had sexually assaulted her between January 2000 and July 2002, when she was between the ages of five and seven years old. The child testified that defendant had forced her to perform oral sex on him more than once. The child also testified that defendant had sexual intercourse with her on more than one occasion, using a specific lubricant. The child testified that she noticed some bleeding “a couple of times” following defendant's sexual intercourse with her. The child testified these sexual incidents occurred at night while her mother was working and her brother was asleep. In July 2002, defendant left the home, and he and the child's mother, Jennifer Brown (“Brown”), separated.
In July 2006, when the child was eleven years old, the child disclosed the sexual contact between her and defendant to two of her friends who were visiting from Wisconsin. This conversation occurred following an argument on the telephone between the child and defendant over the child's interest in talking to a boy the child had “a crush” on. The child testified she did not tell anyone about the sexual incidents for four years because she knew it would hurt her mother if she found out. The child also testified that during those four years, she continued to visit defendant every weekend and that she loved defendant.
On 18 July 2006, the child and Brown were interviewed by Sergeant John Whitfield of the Craven County Sheriff's Office (“Sergeant Whitfield”) about the sexual assault allegations. Sergeant Whitfield specialized in the investigation of sex crimes and crimes against children. At the time of his interview with the child, the child was eleven years old. During the interview, the child informed Sergeant Whitfield that defendant had forced her to perform oral sex on him “two to three times” and that he had also had sexual intercourse with her multiple times. Sergeant Whitfield testified that the child had stated the sexual intercourse “felt like it was ripping her,” that she had seen some blood on the bed afterwards, and that after a while, the intercourse “didn't hurt anymore.” The child told Sergeant Whitfield the sexual incidents occurred while her mother was at work. Sergeant Whitfield also testified about the child's ability to describe defendant's penis.
Following his interview with the child and her mother, Sergeant Whitfield contacted Cynthia Morton (“Morton”), a pediatric sexual assault nurse examiner at Carolina East Medical Center. Sergeant Whitfield referred the child to Morton for a sexual assault examination and provided Morton with a synopsis of the child's allegations of sexual abuse. The following day, on 19 July 2006, Morton conducted the sexual assault examination of the child. Morton testified that, prior to the examination, the child stated that she had noticed bleeding and discharge from her genital area, although she had not started her period. Morton testified that during her physical examination of the child, she observed two “healed transactions” in the child's hymenal tissue, which indicated “blunt force penetrating trauma” to the child's vaginal area. Morton testified that the injuries were consistent with penetration of the child's vagina by a penis, although the blunt force trauma could have been caused by another penetrating object. Morton testified she could not determine when the injuries to the child's hymen occurred. Morton also testified that she observed two areas of hypopigmentation in the child's hymenal tissue, which could be indicative of scarring but were non-specific findings. Morton also testified she observed two irregular areas of hypopigmentation on the child's anus, both with a flattened anal fold. Morton testified the anal folds could be the result of a number of causes, including relaxation, infection, diarrhea, constipation, and trauma; however, Morton stated that at the time of the child's examination, there was no indication of a cause other than trauma to the area. Morton reported her physical findings to Sergeant Whitfield following the examination.
On 21 July 2006, Sergeant Whitfield located defendant at his residence, informed him of the child's allegations of sexual assault, and asked defendant for an interview. Sergeant Whitfield observed that, during this conversation, defendant appeared calm, was not upset, and did not raise his voice. At the Sheriff's office, Sergeant Whitfield observed that defendant was moving slowly, about which defendant informed Sergeant Whitfield that he had a hernia and was scheduled to have a surgical procedure for it. Sergeant Whitfield did not observe that defendant was in any pain.
After obtaining a signed waiver of defendant's Miranda rights, Sergeant Whitfield conducted an interrogation of defendant concerning the child's sexual assault allegations. Defendant initially denied the allegations then later stated that maybe the alleged incidents had happened by accident. Defendant asked Sergeant Whitfield about the possible sentence if he were convicted of the alleged crimes, and Sergeant Whitfield responded by showing defendant a book on criminal sentencing in North Carolina and explaining to defendant the sentencing determination process. Defendant then informed Sergeant Whitfield that the child had initiated the sexual contact and stated that he did not understand why he had done what he did. When Sergeant Whitfield pressed defendant for details about what defendant had done, defendant provided accounts of the sexual incidents similar to those provided by the child and informed Sergeant Whitfield of other incidents not relayed by the child, including acts of anal intercourse. Sergeant Whitfield prepared a written statement on defendant's behalf based on the interrogation, which he read to defendant and allowed defendant to make any corrections, deletions, or additions. Defendant approved and signed the written statement. Sergeant Whitfield testified that during the entire interrogation process, defendant was calm, was not emotional or upset, never cried or raised his voice, and did not appear nervous or scared. At no time during the interrogation did defendant invoke any of his Miranda rights.
Following the interrogation, Sergeant Whitfield allowed defendant to return home and attend his subsequently scheduled hernia surgery. Defendant was later arrested on 28 August 2006. On 18 September 2006, defendant was indicted on first-degree rape of a child, and on 21 May 2007, defendant was indicted on two counts of first-degree sex offense with a child. All indictments indicated the presence of an aggravating factor, namely that defendant had taken advantage of a position of trust or confidence to commit the offense.
Defendant was tried by a jury on 27 June 2011. At trial, the State presented testimony from the child, Morton, and Sergeant Whitfield. Defendant's signed written statement was also admitted into evidence. Defendant testified in his own defense, denying the child's allegations and refuting his signed written statement. Defendant stated that he was in pain and scared during the interrogation and that he signed the confession so that he could leave the Sheriff's office and return home, as Sergeant Whitfield had promised him. Defendant also presented the testimony of his mother and father attesting to defendant's denials of the allegations and the amicable relationship they had observed between defendant and the child.
On 1 July 2011, the jury convicted defendant of all three offenses and found the existence of the named aggravating factor as to all three offenses. Having found that the aggravating factor outweighed the presence of any mitigating factors, the trial court entered judgments sentencing defendant in the aggravated range to two consecutive terms of 250 to 309 months' imprisonment. Defendant gave oral notice of appeal from his convictions in open court following sentencing.
On 27 July 2011, defendant was returned to the trial court for a hearing to determine his eligibility for sex offender registration and enrollment in SBM. At the hearing, the State informed the trial court that the State had neglected to request sex offender registration and SBM during sentencing. After hearing arguments from counsel, the trial court found, inter alia, that defendant's conviction for first-degree rape of a child was a sexually violent offense and was an aggravated offense. Accordingly, the trial court ordered defendant to register as a sex offender for life and to enroll in lifetime SBM. Defendant filed a petition for writ of certiorari with this Court seeking review of the trial court's sex offender registration and SBM orders.
II. Admission of Testimony By Nurse Regarding Physical Findings
Defendant's first argument on appeal is that the trial court plainly erred in admitting Morton's testimony regarding the physical findings resulting from her examination of the child. Defendant contends this portion of Morton's testimony was not relevant evidence under Rule 401 of the North Carolina Rules of Evidence because Morton's testimony did not definitively establish when or how the observed trauma to the child's hymenal area occurred and because Morton's physical examination was performed approximately four to six years after the sexual offenses allegedly occurred. Defendant further contends that, even if this portion of Morton's testimony was relevant under Rule 401, it should have been excluded under Rule 403 of the North Carolina Rules of Evidence because its probative value was substantially outweighed by the danger of unfair prejudice to defendant.
Defendant failed to object to the challenged portions of Morton's testimony at trial and contends on appeal that the admission of that testimony amounted to plain error.
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C.R.App. P. 10(a)(4) (2012); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007). Plain error arises when the error is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]’ “ State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982)). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
In the present case, Morton, a pediatric sexual assault nurse examiner, testified that she conducted a physical examination of the child on 19 July 2006, when the child was eleven years old. Thus, Morton's physical examination was conducted approximately four to six years after the sexual offenses allegedly occurred. Morton testified that she discovered two “healed transactions” in the child's hymenal tissue. Morton explained that a healed transaction occurs when the “hymenal membrane is torn all the way to the base of the hymen, to the vaginal wall.” Morton testified that the two injuries were indicative of “blunt force penetrating trauma” to the child's vaginal area. Morton testified that the injuries were consistent with penetration of the child's vagina by a penis; however, Morton acknowledged on cross-examination that the penetrative force could have been something other than a penis. Morton further testified on cross-examination that she could not determine when the hymenal injuries had occurred. However, Morton testified that hymenal transactions are a type of penetrating trauma that can be observed years after the trauma occurred.
Under Rule 401 of the North Carolina Rules of Evidence, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen.Stat. § 8C–1, Rule 401 (2011). Thus, “[e]vidence is relevant if it has any logical tendency to prove a fact in issue.” State v. Goodson, 313 N.C. 318, 320, 327 S.E.2d 868, 869 (1985). Here, Morton's testimony as to her physical findings resulting from her examination of the child was relevant under Rule 401 because it tended to show that the child had experienced penetrative trauma to her vaginal area at some time prior to the examination, consistent with the child's sexual assault allegations. “ ‘It is well established that “in a criminal case every circumstance calculated to throw any light on the supposed crime is admissible ....“ ‘ “ State v. Gladden, 315 N.C. 398, 415, 340 S.E.2d 673, 684 (1986) (ellipsis in original) (quoting State v. Hunt, 297 N.C. 258, 261, 254 S.E.2d 591, 594 (1979) (quoting State v. Arnold, 284 N.C. 41, 47, 199 S.E.2d 423, 427 (1973))). The fact that the injuries observed by Morton during the physical examination could have been caused by an object other than a penis, and the fact that the physical examination was conducted four to six years after the sexual offenses allegedly occurred, necessarily go to the weight to be given to the testimony, not to its admissibility under Rule 401. Id. (uncertainty in witness's testimony goes to the weight to be accorded the testimony, not its admission). Thus, defendant's contention that this portion of Morton's testimony should have been excluded under Rule 401 because it was irrelevant is without merit.
Defendant further contends that the evidence should have been excluded because it was unfairly prejudicial under Rule 403 “[g]iven the sensitivity and the highly potential inflammatory nature of this evidence[.]” Under Rule 403, relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice[.]” N.C. Gen.Stat. § 8C–1, Rule 403 (2011).
“Whether or not to exclude evidence under Rule 403 of the Rules of Evidence is a matter within the sound discretion of the trial court and its decision will not be disturbed on appeal absent a showing of an abuse of discretion.” State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995). The North Carolina Supreme Court has specifically refused to apply the plain error standard of review “to issues which fall within the realm of the trial court's discretion[.]” State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000).
State v. Cunningham, 188 N.C.App. 832, 836–37, 656 S.E.2d 697, 700 (2008) (alteration in original). Thus, we do not review the balancing test of Rule 403 for plain error. Id. at 837, 656 S.E.2d at 700. Accordingly, the trial court did not err, let alone commit plain error, in admitting the challenged portions of Morton's testimony.
III. Admission of Testimony by Police Officer Regarding Child's Statement
Defendant's second argument on appeal is that the trial court plainly erred in admitting a portion of Detective Whitfield's testimony describing his interview with the child. Defendant contends the challenged portion of Detective Whitfield's testimony was impermissible opinion testimony vouching for the credibility of the child. Defendant again failed to object to this testimony at trial but contends the testimony must be reviewed for plain error.
On direct examination, Sergeant Whitfield, who specialized in the investigation of sex crimes and crimes against children, was asked to describe his initial interview with the child and explain to the jury the reasons behind the process he used to interview the child. Sergeant Whitfield testified that during the interview process, he asked the child to describe defendant's penis. Sergeant Whitfield explained:
I asked her what her word was for penis, and she said she calls it a cock because that's what her friends call it, and I asked her if his penis was hard and if she could explain what that meant. She said it means it isn't soft anymore, it's hard, which means he is in the mood for sex, he's horny.
She said it wasn't hard at first but it got hard and she said his penis looks like a hot dog but thicker and longer, and she showed how long by holding her hands five or six inches apart and she said it had a slit at the top.
Thereafter, the following exchange occurred:
Q. Did you ask specifically if there was anything unusual about his penis or just a description?
A. Just a description and the reason you do that is because she's eleven years old, and obviously there are things she shouldn't know about a penis, and the more descriptive she can be about it, quite frankly the more believable a child is about that.
Defendant argues Sergeant Whitfield's testimony impermissibly bolstered the child's credibility before the jury. In support of his argument, defendant relies on a line of cases addressing the proper parameters of opinion testimony by medical experts in child sexual abuse cases. This line of cases, cited by defendant, holds that expert opinion testimony concluding that sexual abuse has occurred, absent physical findings supporting such a diagnosis, constitutes impermissible opinion testimony regarding the child victim's credibility. See, e.g., State v. Stancil, 355 N.C. 266, 266–67, 559 S.E.2d 788, 789 (2002); State v. Dixon, 150 N.C.App. 46, 52, 563 S.E.2d 594, 598,aff'd,356 N.C. 428, 571 S.E.2d 584 (2002); see also State v. Towe, ––– N.C. ––––, ––––, –––S.E.2d ––––, ––––, No. 121PA11, slip. op. at 9–10 (June 14, 2012).
This line of cases also reiterates that “ [e]xpert opinion testimony is not admissible to establish the credibility of the victim as a witness.” Dixon, 150 N.C.App. at 52, 563 S.E.2d at 598 (emphasis added). Indeed, as defendant properly contends, “ ‘[o]ur appellate courts have consistently held that the testimony of an expert to the effect that a prosecuting witness is believable, credible, or telling the truth is inadmissible evidence.’ “ State v. Dick, 126 N.C.App. 312, 315, 485 S.E.2d 88, 89 (1997) (emphasis added) (quoting State v. Bailey, 89 N.C.App. 212, 219, 365 S.E.2d 651, 655 (1988)). Accordingly, our Supreme Court “has found reversible error when experts have testified that the victim was believable, had no record of lying, and had never been untruthful.” State v. Aguallo, 322 N.C. 818, 822, 370 S.E.2d 676, 678 (1988) (emphasis added) (citing State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986); State v. Kim, 318 N.C. 614, 350 S.E.2d 347 (1986); State v. Heath, 316 N.C. 337, 341 S.E.2d 565 (1986)).
Here, however, the testimony challenged by defendant was given by a law enforcement officer testifying as a lay witness concerning his interview with the child. Thus, the authority cited by defendant addressing expert opinion testimony is not controlling on the issue presented by defendant in the present case.
The proper parameters of lay witness testimony are governed by N.C. Gen.Stat. § 8C–1, Rule 701 (2011). “Rule 701 bars opinion testimony from a lay witness, except for ‘opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.’ “ State v. Gobal, 186 N.C.App. 308, 317, 651 S.E.2d 279, 285 (2007) (quoting N.C. Gen.Stat. § 8C–1, Rule 701), aff'd, 362 N.C. 342, 661 S.E.2d 732 (2008).
Although a lay witness is usually restricted to facts within his knowledge, if by reason of opportunities for observation he is in a position to judge ... the facts more accurately than those who have not had such opportunities, his testimony will not be excluded on the ground that it is a mere expression of opinion.
State v. Wallace, 179 N.C.App. 710, 715, 635 S.E.2d 455, 459 (2006) (ellipsis in original) (internal quotation marks and citations omitted). However, “our Supreme Court has determined that when one witness ‘vouch[es] for the veracity of another witness,’ such testimony is an opinion which is not helpful to the jury's determination of a fact in issue and is therefore excluded by Rule 701.” Gobal, 186 N.C.App. at 318, 651 S.E.2d at 286 (quoting State v. Robinson, 355 N.C. 320, 335, 561 S.E.2d 245, 255 (2002)).
In the present case, we conclude Sergeant Whitfield's testimony constituted permissible lay witness testimony. When viewing the entirety of Sergeant Whitfield's testimony, it is clear that the challenged statement was made in the context of his describing for the jury his investigative techniques in child sexual abuse cases. Throughout his testimony addressing his interview with the child, Sergeant Whitfield consistently explained to the jury his reasons for asking certain questions of the child during the interview process. These reasons included, inter alia, determining whether his law enforcement agency properly had jurisdiction to investigate the case and determining whether “a crime ha[d] actually occurred or not.” Sergeant Whitfield's testimony was rationally based on his perception and experience as a detective specializing in the investigation of sexual assault and child sexual abuse crimes for approximately fifteen years. His testimony was helpful to the fact-finder in presenting a clear understanding of his investigative process and how that process was utilized in the present case. See Wallace, 179 N.C.App. at 715, 635 S.E.2d at 460;State v. O'Hanlan, 153 N.C.App. 546, 561–63, 570 S.E.2d 751, 761–62 (2002); State v. Stallings, 107 N.C.App. 241, 246–47, 419 S.E.2d 586, 589–90 (1992).
Furthermore, the context of Sergeant Whitfield's testimony indicates that he was not commenting on the credibility of the child involved in the present case. Notably, Sergeant Whitfield stated that “a child” involved in sexual assault allegations is more believable if she can provide descriptive details about the male penis. Although Sergeant Whitfield used the term “believable” in his testimony, we do not construe his testimony as offering an opinion that the particular child in this case was credible as a witness. Rather, Sergeant Whitfield's testimony only offered an opinion on the credibility of a child in general who provides a detailed description of male genitalia and explained the role such information plays in the investigative process in child sexual abuse cases. Thus, the challenged portion of Sergeant Whitfield's testimony was proper lay witness testimony, and the trial court did not err in admitting it.
Moreover, defendant has failed to show how the alleged error amounted to plain error. “ ‘In deciding whether an error by the trial court constituted plain error, “the appellate court must examine the entire record and determine if the ... error had a probable impact on the jury's finding of guilt.” ‘ “ State v. Giddens, 199 N.C.App. 115, 122, 681 S.E.2d 504, 508 (2009) (ellipsis in original) (quoting State v. Pullen, 163 N.C.App. 696, 701, 594 S.E.2d 248, 252 (2004) (quoting State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983))), aff'd, 363 N.C. 826, 689 S.E.2d 858 (2010). Here, defendant contends that the alleged error amounts to reversible plain error because the State's case turned on the credibility of the child versus defendant, in light of the weak probative value of Morton's physical findings. However, defendant overlooks that in the present case, the child's testimony was corroborated not only by other witnesses, but also by defendant's own written confession as well as Sergeant Whitfield's testimony as to defendant's oral confession during his interrogation. Further, defendant's credibility was impeached repeatedly by his own prior judicial statements. In addition, although defendant argues its weak probative value, medical evidence was nonetheless introduced demonstrating that the child's genital and anal areas had been penetrated on at least two occasions. Given the overwhelming evidence against defendant, he cannot meet his burden of showing the trial court's admission of Sergeant Whitfield's statement rose to the level of plain error. Thus, defendant's argument on this issue is without merit.
IV. Admission of Police Officer Testimony on Aggravating Factors
In his third argument on appeal, defendant argues the trial court failed to intervene ex mero motu to disallow a portion of Sergeant Whitfield's testimony concerning the role of the court in the determination of aggravating factors.
On direct examination, Sergeant Whitfield testified that, during his interrogation of defendant, defendant had asked “what kind of time he would be looking at if he was convicted of [the allegations made against him by his daughter].” Thereafter, the following exchange occurred:
Q. And what was your response to that?
A. My response to that was, I take the Crimes Book from North Carolina, which is a printed book with crimes and elements and that kind of thing in it. It's printed by and given to us by the State of North Carolina, and I—there's a sentencing chart in the front of that book, and I showed it to him explaining to him if, if he doesn't have a record, because it's based on the element—I mean the punishment is based on what his criminal record would be, and what type of felony he committed, and I showed him in that book exactly where he sat as far as months in jail.
....
Q. What page did you turn to that has the guideline in it?
A. ... This is page 41, and it's a sentencing chart, and basically what it has is, it has columns on the left-hand side of the page, the class felonies listed in North Carolina. They start at A, which is murder, and they go down, B, C, and down.
Q. Is that what you explained to him?
A. Yes. Just like I explained to him.
Q. Okay.
A. And also at the top it gives you columns for your prior record level, which I believe that to be nothing, and he admitted or said that there was—he didn't have a record.
And so that puts us in the first category, and the felony for which he had been accused was a B1 felony, and so I showed him on the chart where he would fall if he was convicted of a B1 felony.
....
[Q.] After the discussion of the amount of time he was looking at, was there also other discussion at that point in time about sentences? Or factors?
[A.] Yes. He had some questions about the different columns. So I explained it to him and also on, on that page there is a, within the same box there are different, different lines for different amounts of time, and there are called mitigated, presumptive and aggravated.
And so I explained to him what those three different columns meant: Mitigated range is a mitigated factor, would be if—I explained to him what a mitigated factor was, which is something in his favor, which would be something like early on cooperation in an investigation, that's a mitigating factor.
An aggravating factor would be something against him, which would be abusing a position of trust, being a father of the victim, that's an aggravating factor.
The presumptive range that I showed him is the general range that persons are convicted, that's where the sentencing usually falls, and I explained to him that all of that is up to the Judge.
The Court decides mitigating and aggravating factors, I'm not allowed to do that; but I did explain to him what it was about.
(Emphasis added.)
Defendant contends the trial court's failure to intervene conveyed to the jury the trial court's opinion that Sergeant Whitfield was correctly stating the law and thus invaded the province of the jury to determine the presence of any aggravating factors. We are not persuaded.
We first note that arguments asserting error based on a trial court's failure to intervene ex mero motu are ordinarily directed at a lack of supervision by the trial court over grossly improper closing arguments or comments by counsel. We have uncovered no case applying the ex mero motu standard to the admission of evidence during a trial.
However, we also note that defendant is correct in his assertion that a trial judge “ ‘may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.’ “ State v. McCravey, 203 N.C.App. 627, 632, 692 S.E.2d 409, 414 (2010) (quoting N.C. Gen.Stat. § 15A–1222 [2011] ), disc. review denied,364 N.C. 438, 702 S.E.2d 506 (2010). “ ‘It is immaterial how such opinion is expressed or implied, whether in the charge of the court, in the examination of a witness, in the rulings upon objections to evidence or in any other manner.’ “ Id. (quoting State v. Ford, 323 N.C. 466, 469, 373 S.E.2d 420, 421 (1988)). Nonetheless, “ ‘unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.’ “ Id. at 632,692 S.E.2d at 415 (quoting State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995)).
We fail to see how the trial court's failure to correct two statements made by a testifying witness during the course of trial, which were unobjected to by defendant, can be construed as an opinion of the court regarding the propriety of the statements being made merely because the statements address an application of the law. Here, Sergeant Whitfield simply used a reference guide on criminal sentencing to answer defendant's question during the course of his interrogation. Sergeant Whitfield's testimony likewise only served to inform the jury of his explanation to defendant during the course of that interrogation. Any misstatement made by Sergeant Whitfield in his testimony regarding the application of the law was subsequently corrected in the trial court's instructions to the jury. The record shows the trial court clearly and distinctly instructed the jury as to each offense that the presence of the aggravating factor—“that defendant took advantage of a position of trust or confidence, which includes a domestic relationship, to commit the offense”—was denied by defendant and that it was the jury's responsibility to determine from the evidence whether the aggravating factor existed beyond a reasonable doubt. Thus, defendant cannot show how Sergeant Whitfield's statements regarding the role of the court in determining the presence of an aggravating factor and the trial court's failure to respond to Sergeant Whitfield's misstatement of the law had any prejudicial effect on the outcome of his trial.
V. Grant of Petition for Writ of Certiorari
Defendant gave oral notice of appeal from his convictions in open court following the conclusion of sentencing on 1 July 2011. Following the trial court's notice of appellate entries, and after appointing counsel to perfect defendant's appeal, the trial court held a hearing on 27 July 2011 to determine defendant's eligibility for sex offender registration and entered and appellate counsel appointed at the time these orders were entered, defendant filed a petition for writ of certiorari with this Court to review these orders in conjunction with his underlying appeal from his convictions. In light of the unusual procedural posture of this case, we grant defendant's petition.
VI. Subject Matter Jurisdiction to Enter Sex Offender Registration and SBM Orders
Defendant's next argument on appeal is that the trial court lacked subject matter jurisdiction to enter the sex offender registration and SBM orders. Defendant contends that after giving oral notice of appeal following the sentencing phase of his trial, the trial court was then divested of jurisdiction to enter further sentencing orders in his case. “Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C.App. 509, 511, 689 S.E.2d 590, 592 (2010).
In the present case, during the sentencing phase of defendant's trial on 1 July 2011, defendant's enrollment in the sex offender registration and SBM program was not addressed by the trial court, as the State failed to raise the issue. Following the sentencing phase of the trial, defendant gave oral notice of appeal from his convictions in open court. Subsequently, on 27 July 2011, defendant was returned to court Subsequently, on 27 July 2011, defendant was returned to court for the purpose of addressing sex offender registration and enrollment in SBM in light of the State's inadvertence to request those programs at sentencing. Following a hearing at which defendant was both present and represented by counsel, the trial court ordered defendant to register as a sex offender for life and to enroll in lifetime SBM, having found, inter alia, that defendant's offenses were sexually violent offenses under N.C. Gen.Stat. § 14–208.6(5) and were aggravated offenses under N.C. Gen.Stat. § 14–208.6(1a).
Contrary to defendant's arguments, the trial court was not relieved of subject matter jurisdiction to determine defendant's eligibility for SBM enrollment and sex offender registration upon defendant's giving notice of appeal from his convictions. As the State contends, our Supreme Court has clearly established that such programs are part of a civil, regulatory scheme and are not punitive in nature. See State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010); State v. Sakobie, 165 N.C.App. 447, 451–52, 598 S .E.2d 615, 617–18 (2004). Thus, the issues of sex offender registration and SBM are not required to be addressed at sentencing and may be heard by the trial court at a later time.
With respect to sex offender registration, N.C. Gen.Stat. § 14–208.7(a)(1) (2011) provides:
(a) A person who is a State resident and who has a reportable conviction shall be required to maintain registration with the sheriff of the county where the person resides.... If the person is a current resident of North Carolina, the person shall register:
(1) Within three business days of release from a penal institution or arrival in a county to live outside a penal institution[.]
Id. A “reportable conviction” includes a final conviction for a “sexually violent offense” as defined by statute. N.C. Gen.Stat. § 14–208.6(4)(a) (2011). Here, the trial court's sex offender registration and SBM orders correspond to defendant's conviction for first-degree rape of a child in violation of N.C. Gen.Stat. § 14–27 .2(a)(1). This conviction is included within the definition of a sexually violent offense under N.C. Gen.Stat. § 14–208.6(5). Therefore, defendant's conviction for first-degree rape of a child is a reportable conviction requiring sex offender registration upon release from imprisonment.
In addition, a person who is convicted of an “aggravated offense” must maintain his sex offender registration for life. N.C. Gen.Stat. § 14–208.23 (2011). An “aggravated offense” is defined as
any criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.
N.C. Gen.Stat. § 14–208.6(1a). In State v. Clark, ––– N.C.App. ––––, 714 S.E.2d 754 (2011), disc. review denied,––– N.C. ––––, 722 S.E.2d 595 (2012), this Court held that because “the act of vaginal intercourse with a person under the age of 13 necessarily involves the use of force or the threat of serious violence,” the essential elements of first-degree rape of a child fit within the first statutory definition of an aggravated offense. Id. at ––––, 710 S.E.2d at 763; see also State v. Brown, –––N.C.App. ––––, ––––, 710 S.E.2d 265, 276 (2011), aff'd,––– N.C. ––––, 722 S.E.2d 508 (2012). Thus, defendant's sex offender registration for life is required by statute, not by judicial determination. See State v. Williams, 190 N.C.App. 173, 177, 660 S.E.2d 200, 203 (2008) (“North Carolina law states that a current State resident with a ‘reportable conviction’ shall register ‘[w]ithin 10 days of release from a penal institution or arrival in a county to live outside a penal institution[.]’ N.C. Gen.Stat. § 14–208.7(a)(1) [2011]. Thus, according to the plain meaning of the statute, Defendant, as a current North Carolina resident ... ‘shall register’ as a sex offender within ten days of his release or arrival in a county to live outside a penal institution. As such, the requirement for Defendant to register will automatically go into effect upon his release from prison[.] ” (first two alterations in original) (second emphasis added)). We note defendant has not challenged the correctness of the trial court's findings of fact supporting its conclusion that defendant must register as a sex offender for life, having committed a sexually violent offense that is defined as an aggravated offense.
Unlike the sex offender registration statutes, however, the statutory procedure for requiring a defendant to enroll in SBM requires judicial determination of a defendant's eligibility to enroll. N.C. Gen.Stat. § 14–208.40A (2011) sets out the procedures to be employed “during the sentencing phase” in determining whether an offender is required to enroll in SBM. Id.; see also State v. Jarvis, ––– N.C.App. ––––, ––––, 715 S.E.2d 252, 256 (2011). Here, however, the trial court did not address defendant's SBM eligibility at sentencing. Thus, because defendant's eligibility for enrollment in SBM was not properly determined at sentencing, the subsequent SBM hearing from which defendant now appeals was governed by the procedural mandates set forth under N.C. Gen.Stat. § 14–208.40B (2011), which applies when “there has been no determination by a court on whether the offender shall be required to enroll in [SBM.]”
Pursuant to N.C. Gen.Stat. § 14–208.40B, the Department of Correction is to make an initial administrative determination as to whether the offender falls within one of the categories defined as subject to SBM. Id. § 14–208.40B(a). If the Department determines that the offender falls into one of these categories, the Department must notify the offender of both the category under which the Department believes the offender is subject to SBM and the factual basis for that determination. Id. § 14–208.40B(b); State v. Stines, 200 N.C.App. 193, 204, 683 S.E.2d 411, 418 (2009). The Department must also give the offender notice of a hearing to be held in superior court on the Department's determination, to be scheduled by the district attorney representing the Department, for which the offender may be assigned counsel if eligible. N.C. Gen.Stat. § 14–208.40B(b); see also State v. Cowan, 207 N.C.App. 192, 203–04, 700 S.E.2d 239, 246–47 (2010). At the hearing, the trial court is to determine whether the offender falls within “one of the categories described in G.S. 14–208.40(a)” and make the appropriate findings of fact. N.C. Gen.Stat. § 14–208.40B(c).
Effective 1 January 2012, the “Division of Adult Correction” was substituted for the “Department” of Correction under this statute. 2011 N.C. Sess. Laws 145, § 19.1(h). The “Department” of Correction is referenced in this opinion, as defendant in the present case was sentenced prior to the amendment's effective date.
If the court finds that (i) the offender has been classified as a sexually violent predator pursuant to G.S. 14–208.20, (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, or (iv) the conviction offense was a violation of G.S. 14–27.2A or G.S. 14–27.4A, the court shall order the offender to enroll in satellite-based monitoring for life.
Id.
Here, the State concedes the trial court deviated from the statutory requirements by holding a second hearing for defendant's SBM eligibility determination before an initial administrative determination had been made and the proper notice had been provided to defendant. However, the State maintains that, under the circumstances of this case, the trial court's deviation from the statutory requirements was harmless.
In the present case, the trial court's SBM eligibility hearing was conducted within one month of defendant's conviction and sentencing. In addition, defendant was present at the hearing, represented by his trial counsel, who was fully apprised of defendant's convictions and the potential statutory basis for requiring defendant's enrollment in SBM. Further, the record does not indicate that either defendant or his counsel were confused by the trial court's findings of fact or were in any way unprepared for the hearing or unprepared to present any contradictory evidence, for which they were afforded an opportunity to present at the hearing. Defendant's counsel simply raised the issue that defendant had already filed notice of appeal from his convictions prior to the hearing, which we have already held has no bearing on the trial court's ability to hold the SBM eligibility hearing. Accordingly, the record reveals no way in which defendant was harmed by the trial court's procedural defects in conducting the SBM hearing.
Defendant's first-degree rape conviction clearly falls within the definition of a sexually violent offense and is therefore a reportable conviction subjecting defendant to the SBM provisions. In addition, as we previously explained, this Court has held that the offense of first-degree rape of a child is an aggravated offense. Clark, ––– N.C.App. at ––––, 714 S.E.2d at 763;Brown, ––– N.C.App. ––––, 710 S.E.2d at 276. Therefore, the trial court properly concluded that defendant must enroll in lifetime SBM pursuant to those statutes. Again, defendant has not challenged the correctness of the trial court's findings of fact or conclusions of law on this issue. Although we are troubled by the State's inadvertence and the trial court's failure to follow the proper statutory procedure in conducting defendant's SBM eligibility hearing, we must agree with the State and hold that the procedural defects involved in the conduct of defendant's SBM eligibility determination hearing were harmless in this case.
We note also that the trial court's findings of fact in its sex offender registration and SBM orders that defendant was convicted of an “offense against a minor” under N.C. Gen.Stat. § 14–208.6(1m) and “rape of a child” under N.C. Gen.Stat. § 14–27.2A or “sexual offense” with a child under N.C. Gen.Stat. § 14–27.4A are erroneous. Defendant's conviction does not fall within the statutory definition of those categories. However, the trial court's findings of fact that defendant's conviction was for a “sexually violent offense” and an “aggravated offense” are proper and therefore support the trial court's conclusion of law that defendant must register as a sex offender for life and enroll in lifetime SBM.
VII. Ex Post Facto Violation
Defendant's final argument on appeal is that the trial court subjected him to ex post facto punishment by ordering him to enroll in lifetime SBM. Specifically, defendant contends that because the dates of defendant's offenses in the present case predate the effective date of the SBM statute, those provisions were impermissibly applied to him. However, as the State contends, our Supreme Court has previously rejected defendant's argument, holding that the SBM program is a civil regulatory scheme that is not punitive in purpose or effect and cannot violate the ex post facto clauses of the North Carolina and United States Constitutions. Bowditch, 364 N.C. at 352, 700 S.E.2d at 13. Accordingly, defendant's argument on this issue is without merit.
VIII. Conclusion
We hold the trial court properly admitted the challenged portion of Morton's testimony concerning her physical findings resulting from her examination of the child. Such testimony was relevant under Rule 401 because it tended to show the child had experienced penetrative trauma to her vaginal area at some time prior to the examination. Any uncertainty as to the age of the observed injuries or the length of time between the alleged incidents and the physical examination went to the weight and not the admissibility of the evidence.
We further hold the trial court properly admitted the challenged portions of Sergeant Whitfield's testimony concerning both the child's description of defendant's penis and the officer's explanation to defendant regarding how a criminal sentence is determined. Sergeant Whitfield's testimony concerning the child's statement was proper lay opinion testimony, and the record reveals his testimony was not commenting on the child's credibility in this case. Further, the trial court's failure to intervene during Sergeant Whitfield's testimony regarding the role of the court in the determination of aggravating factors did not constitute an impermissible opinion by the trial judge on a fact to be determined by the jury, as the trial court properly instructed the jury on its role in the determination of aggravating factors prior to the jury's deliberations. Further, defendant has failed to show how the trial court's failure to intervene had any prejudicial effect on the outcome of his trial.
Having granted defendant's petition for writ of certiorari to review the trial court's sex offender registration and SBM enrollment orders, we hold the trial court had proper subject matter jurisdiction to conduct such a hearing. Defendant's sex offender registration is required automatically by statute, and the trial court's findings of fact and conclusions of law that defendant was convicted of a reportable conviction which is classified as both a sexually violent offense and an aggravated offense and therefore requires defendant's registration as a sex offender for life are proper.
However, the trial court failed to follow the proper statutory procedures for determining defendant's eligibility for SBM enrollment, since such a determination was not conducted during sentencing. Nonetheless, under the circumstances of this case, we hold the trial court's deviation from the proper statutory procedure was harmless. In addition, the trial court's findings of fact and conclusions of law that defendant was convicted of a reportable conviction which is classified as both a sexually violent offense and an aggravated offense and therefore requires defendant's enrollment in lifetime SBM are proper. Accordingly, we affirm those orders of the trial court.
No error in defendant's trial; no prejudicial error in defendant's sex offender registration and SBM hearing; affirmed in part. Judges GEER and STEPHENS concur.
Report per Rule 30(e).