Opinion
NO. COA10-1197
08-02-2011
STATE OF NORTH CAROLINA v. DAVID DALE RAMEY
Attorney General Roy Cooper, by Assistant Attorney General Jane Rankin Thompson, for the State. Paul F. Herzog, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. 08 CRS 51314-15, 52891-92
Appeal by defendant from judgments entered 26 March 2010 by Judge A. Robinson Hassell in Forsyth County Superior Court. Heard in the Court of Appeals 22 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Jane Rankin Thompson, for the State.
Paul F. Herzog, for Defendant.
ERVIN, Judge.
Defendant David Dale Ramey appeals from judgments sentencing him to consecutive sentences of a minimum term of 92 months and a maximum term of 120 months imprisonment based upon his conviction for second degree rape in File No. 09 CRS 51314, a minimum term of 92 months and a maximum term of 120 months imprisonment based upon his conviction for second degree rape in File No. 09 CRS 51315, a minimum term of 31 months and a maximum term of 47 months imprisonment based upon his convictions for committing a sex offense while occupying a parental role in File Nos. 09 CRS 51314 and 51315, a minimum term of 31 months and a maximum term of 47 months imprisonment based upon his conviction for committing a sex offense while occupying a parental role in File No. 09 CRS 52892, a minimum term of 20 months and a maximum term of 24 months imprisonment based upon his convictions for incest in File Nos. 09 CRS 51314, 51315, and 52892, and a minimum term of 20 months and a maximum term of 24 months imprisonment based upon his conviction for taking indecent liberties with a child in File No. 09 CRS 52891, with all sentences to be served in the custody of the North Carolina Department of Correction. On appeal, Defendant contends that the trial court erred by allowing the admission of certain evidence, that Defendant was deprived of his right to the effective assistance of counsel, and that the trial court erred by considering the jury's finding that Defendant took advantage of a position of confidence or trust at the time that the trial court sentenced Defendant for incest. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that, while Defendant is not entitled to relief from his convictions, Defendant is entitled to be resentenced in the cases in which he was convicted of incest.
I. Factual Background
A. Substantive Facts
M.Y. was born on 12 April 1991. Martha's mother, Tanya Ramey, began dating Defendant in 2003. Martha was introduced to Defendant when she was approximately twelve years old. Defendant and Ms. Ramey moved in together in 2004 and married in 2005. Shortly after their marriage, Defendant and Ms. Ramey moved from California to Forsyth County, where Defendant, Ms. Ramey, and Martha lived together as a family for approximately three years.
"Martha" is a pseudonym which we will utilize throughout the remainder of this opinion for ease of reading and in order to protect M.Y.'s privacy.
Martha testified that she and Defendant engaged in sexual intercourse on numerous occasions during 2007, 2008, and 2009, having been about 16 when this series of events began. According to Martha, both she and Defendant initiated these instances of sexual intercourse on occasion; however, Martha claimed that Defendant initiated these encounters more often than she did. Martha stated that she never refused Defendant's overtures because she was "afraid he might do something worse" "like . . . beat [her] or something," that the situation made her sad, and that she was "tired of [Defendant] doing that to [her]."
In January of 2009, Ms. Ramey discovered that Martha was pregnant. Although Martha initially said that she did not know who the father was, she later asserted that Defendant was the father. Subsequently, Martha retracted this statement, indicating that an unnamed "boy at school" had fathered the child instead. After Ms. Ramey and Martha agreed that Martha was " too young and too immature to take care of a baby," they decided that Martha's pregnancy should be terminated.
On 3 February 2009, Ms. Ramey went to work early. As a result of that fact and the fact that school had been delayed for several hours due to inclement weather, Ms. Ramey requested that Defendant help Martha get ready for school. After Ms. Ramey's departure, Defendant entered Martha's bedroom and informed her of the delay. Although Martha told Defendant that she wanted to "get some extra sleep," the two of them proceeded to engage in intercourse.
After engaging in sexual intercourse, Defendant and Martha got into a fight over Martha's refusal to bathe before going to school. During this altercation, Defendant grabbed Martha by the arm and pulled her into the dining area. Although Martha asked Defendant to release her, Defendant refused to honor Martha's request and pushed her.
At the time that Martha got to school, she was visibly upset. After being asked what was wrong, Martha told a friend about the sexual nature of her relationship with Defendant. (T229) Later, Martha told a school resource officer, several police officers, and various other persons at the local hospital about the nature of her relationship with Defendant.
As a result of Martha's accusations, an investigation was conducted into the nature of Defendant's relationship with Martha. As part of this investigation, the residence in which Defendant, Ms. Ramey, and Martha resided was searched by law enforcement officers. During this search, investigating officers discovered forensic evidence indicating that Defendant and Martha had engaged in sexual intercourse.
After agreeing to accompany investigating officers to the Forsyth County Sheriff's Office and voluntarily agreeing to answer questions, Defendant confessed to having had an unlawful sexual relationship with Martha and was placed under arrest shortly thereafter. The following day, Defendant reaffirmed the substance of his confession during a conversation with Bobbietta Adams of the Forsyth County Department of Social Services, admitting to Ms. Adams that he had been having intercourse with Martha for approximately eighteen months and had impregnated her.
B. Procedural Facts
On 6 July 2009, the Forsyth County grand jury returned bills of indictment charging Defendant with two counts of second degree rape, four counts of committing a sex offense while occupying a parental role, three counts of committing incest in violation of N.C. Gen. Stat. § 14-178(b)(3), one count of committing incest in violation of N.C. Gen. Stat. § 14-178(b)(1)b, one count of statutory rape, and one count of taking indecent liberties with a child. The charges against Defendant came on for trial before the trial court and a jury at the 22 March 2010 criminal session of the Forsyth County Superior Court. At the conclusion of the State's evidence, the trial court dismissed the cases in which Defendant had been charged with committing incest in violation of N.C. Gen. Stat. § 14-178(b)(1)b and statutory rape.
On 26 March 2010, the jury returned verdicts finding Defendant guilty of all the remaining charges that had been lodged against him. In addition, the jury found two statutory aggravating factors: that Defendant took advantage of a position of trust or confidence in order to commit the offenses and that Martha was "mentally infirm." At the ensuing sentencing hearing, the trial court found that Defendant had no prior record and should be sentenced as a Level I offender. Based on these determinations, the trial court sentenced Defendant to consecutive sentences of a minimum term of 92 months and a maximum term of 120 months imprisonment based upon his conviction for second degree rape in File No. 09 CRS 51314, a minimum term of 92 months and a maximum term of 120 months imprisonment based upon his conviction for second degree rape in File No. 09 CRS 51315, a minimum term of 31 months and a maximum term of 47 months imprisonment based upon his conviction for committing a sex offense while occupying a parental role in File Nos. 09 CRS 51314 and 51315, a minimum term of 31 months and a maximum term of 47 months imprisonment based upon his convictions for committing a sex offense while occupying a parental role in File 09 CRS 52892, a minimum term of 20 months and a maximum term of 24 months imprisonment based upon his convictions for incest in File Nos. 09 CRS 51314, 51315, and 52892, and a minimum term of 20 months and a maximum term of 24 months imprisonment based upon his conviction for taking indecent liberties with a child in File No. 09 CRS 52891, with all sentences to be served in the custody of the North Carolina Department of Correction. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis
A. Aretha Moultrie's Testimony
In his first challenge to the trial court's judgments, Defendant contends that the trial court erred by admitting certain portions of Aretha Moultrie's testimony into evidence. More specifically, Defendant argues that the trial court should not have allowed the admission of Ms. Moultrie's testimony concerning Martha's mental abilities, intelligence quotient, and cognitive abilities. We do not believe that Defendant is entitled to relief on the basis of this claim.
Among other offenses, Defendant was charged with having committed second degree rape in violation of N.C. Gen. Stat. § 14-27.3(a). In order to establish a defendant's guilt of that offense, the State must prove that the defendant engaged in vaginal intercourse with the victim by "force and against the [victim's] will" or with a victim who was "mentally disabled, mentally incapacitated, or physically helpless, [where the defendant] knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless." N.C. Gen. Stat. § 14-27.3(a). According to N.C. Gen. Stat. § 14-27.1(1), the term "mentally disabled" means:
(i) a victim who suffers from mental retardation, or (ii) a victim who suffers from a mental disorder, either of which temporarily or permanently renders the victim substantially incapable of appraising the nature of his or her conduct, or of resisting the act of vaginal intercourse or a sexual act, or of communicating unwillingness to submit to the act of vaginal intercourse or a sexual act.As a result of the fact that Martha never refused Defendant's advances and even initiated sexual intercourse with Defendant on occasion over the course of their sexual relationship, the State had little choice except to proceed on a theory that Martha was "mentally disabled" in order to persuade the jury to convict Defendant of second degree rape.
At trial, Ms. Moultrie testified that she was an "exceptional children's case manager" with the Forsyth County School System and that one of her job responsibilities was to assess incoming students for the purpose of determining whether any of them qualified as an "exceptional child[]" under North Carolina law, rendering them eligible for placement in the special education program. Although she served as Martha's case manager, Ms. Moultrie did not personally test or evaluate Martha because she had recently been tested at her previous school and was not up for reevaluation. Even so, Ms. Moultrie testified that she had reviewed Martha's records, that Martha's records revealed that she was "educably mentally disabled," and that, based upon this information, she knew "to put [Martha] in [an] occupational course of study [because] her intellectual ability fell within that program, which is considered mild mental retardation." In addition, Ms. Moultrie testified that her review of Martha's records indicated that Martha had an IQ of 71, which meant that Martha had a cognitive age of "around 10.6 or 11 years."
In seeking relief from the trial court's judgments, Defendant argues that Ms. Moultrie's testimony concerning Martha's mental condition constituted inadmissible hearsay. According to Defendant, Ms. Moultrie did nothing more than read from the files in her possession pertaining to Martha, making her testimony subject to exclusion under N.C. Gen. Stat. § 8C-1, Rule 402. Defendant did not, however, object to the admission of this evidence on hearsay grounds at any point during the proceedings held before the trial court. "To the extent [D]efendant failed to object to introduction of much of the evidence he now contends was inadmissible, or objected on grounds other than those now argued on appeal, he has waived his right to appellate review other than for plain error." State v. Locklear, 363 N.C. 438, 449, 681 S.E.2d 293, 303 (2009).
In addition, Defendant contends that certain portions of Ms. Moultrie's testimony amounted to inadmissible lay opinion testimony. Although Defendant lodged at least one objection on these grounds during the course of Ms. Moultrie's testimony, he did not make such an objection on the first occasion upon which the allegedly inadmissible opinion testimony was presented and permitted Ms. Moultrie to express similar opinions without objection on a number of occasions during other portions of her testimony. " [A]n objection to or motion to strike an offer of evidence must be made as soon as the party objecting has an opportunity to discover the objectionable nature thereof. Unless prompt objection is made, the opponent will be held to have waived it." State v. Cox, 303 N.C. 75, 81, 277 S.E.2d 376, 380 (1981) (citing State v. Logner, 297 N.C. 539, 545, 256 S.E.2d 166, 170 (1979); State v. Banks, 295 N.C. 399, 408, 245 S.E.2d 743, 750 (1978), overruled on other grounds in State v. Collins, 334 N.C. 54, 61-62, 431 S.E.2d 188, 193 (1993); and State v. Jones, 293 N.C. 413, 429, 238 S.E.2d 482, 492 (1977)); see also State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984) (stating that, "[w]here evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost") (citing State v. Maccia, 311 N.C. 222, 229, 316 S.E.2d 241, 245 (1984); State v. Chapman, 294 N.C. 407, 412-13, 241 S.E.2d 667, 671 (1978); and 1 Brandis on North Carolina Evidence § 30 (1982)). Given that much of Ms. Moultrie's testimony concerning Martha's mental capabilities was admitted without objection, Defendant lost the benefit of any objection that he may have made to her testimony on the grounds that it was inadmissible lay opinion. As a result, the only way in which Defendant is entitled to obtain any relief on the basis of the admission of the challenged portion of Ms. Moultrie's testimony is in the event that he is entitled to relief despite the absence of a timely objection.
In cases in which the defendant failed to make a timely objection to the admission of evidence, we utilize a plain error standard for purposes of appellate review. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Under the "plain error" standard of review, the defendant must meet a heavy burden of showing that any error that the trial court may have committed amounted to plain error, "that is, (i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." Id. (citing State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912, 108 S. Ct. 1598 (1988) and State v. Walker, 316 N.C. 33, 38-39, 340 S.E.2d 80, 83-84 (1986)). Assuming for purposes of discussion that the trial court erred by admitting certain portions of Ms. Moultrie's testimony regarding Martha's intellectual functioning and other mental disabilities, we conclude that Defendant has failed to establish that the trial court's failure to intervene to preclude the presentation of this testimony amounted to plain error.
The record evidence tending to show that Martha suffered from a mental disability was substantial. Martha's mother testified that Martha received social security because she was disabled; that Martha was not "mentally able to take care of a child . . . [b]ecause she [was] very immature and very behind herself; " that Martha was not permitted to stay overnight alone; that "[a] lot of [Martha's] hygiene was bad, she wouldn't take showers or - brush her teeth unless we really bugged her;" that " [s]he acted like a child a lot of the times, so I knew she was very immature;" that "[s]he couldn't make other decisions teens her age could;" that she was unable to manage money or cook well; that she planned to continue residing with either Ms. Ramey or her grandmother after turning 19; that she was "really not ready to be on her own yet; " and that she could not "take care of bills" or "hold a full-time job." Ms. Ramey further stated that Martha had received individualized help in school since kindergarten, was mentally challenged "in some way," and was currently enrolled in special education classes that were designed for kids "that need more help or could be mentally challenged." The textbooks used in Martha's courses were written at the second to fourth grade level; at age 17, Martha was placed in the lowest reading level. In his taped confession, Defendant admitted that Martha was slow and had the mentality of a 12 year old. Finally, the jury was able to assess Martha's mental state for themselves, given that Martha testified on behalf of the State during Defendant's trial. Although Defendant contends that the extent of Martha's mental disability was a close question and points to evidence indicating that Martha held jobs in a grocery store and a dry cleaning establishment, that she could operate a computer, and that she could perform various word processing and e-mail- related tasks, we conclude that, given the substantial evidence tending to show the extent of Martha's mental disabilities, including Defendant's admission that Martha was slow and had the mentality of a twelve-year-old child, we do not believe that the admission of the challenged portion of Ms. Moultrie's testimony had any appreciable impact on the jury's determination that Defendant was guilty of second degree rape or that there is any reasonable likelihood that the jury would have reached a different result in the absence of her comments concerning Martha's mental condition. As a result, Defendant is not entitled to relief on the basis of the admission of the challenged portion of Ms. Moultrie's testimony.
B. Ineffective Assistance of Counsel
Secondly, Defendant argues that he was deprived of his constitutionally protected right to the effective assistance of counsel as a result of his trial counsel's failure to interpose timely objections to the portion of Ms. Moultrie's testimony that related to Martha's mental abilities. We disagree.
To successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two-prong test. First, he must show that counsel's performance fell below an objective standard of reasonableness. Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error.State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 691-96, 80 L. Ed. 2d 674, 693, 696-99, 104 S. Ct. 2052, 2064, 2067-69 (1984) and State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780, 121 S. Ct. 868 (2001). Thus, "[ t]he fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." Braswell, 312 N.C. at 563, 324 S.E.2d at 248 (citing Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068). In light of the overwhelming evidence tending to show the extent of Martha's mental disability, the nature of which is described in detail above, we do not believe that there is a reasonable probability that, even if Defendant's trial counsel had lodged timely objections to the challenged portion of Ms. Moultrie's testimony and those objections had been sustained, the outcome of Defendant's trial would have been different. As a result, we conclude that Defendant's ineffective assistance of counsel claim lacks merit.
C. Sentencing
Finally, Defendant contends that the trial court erred during the process of sentencing him based upon his incest convictions. This contention has merit.
At the conclusion of the sentencing hearing, the trial court consolidated Defendant's incest convictions for judgment and sentenced Defendant in the aggravated range. In determining that "the factors in aggravation outweigh the factors in mitigation and that an aggravated sentence is justified," the trial court relied, in part, upon the jury's determination that Defendant "took advantage of a position of trust or confidence, including a domestic relationship, to commit the offense[s] " as an aggravating factor. As the State concedes in its brief on appeal, "the trial court should not have enhanced punishment for the incest convictions because the defendant abused a position of trust with" Martha, so that Defendant "should be resentenced for this crime." In light of our decision in State v. Hughes, 114 N.C. App. 742, 745, 443 S.E.2d 76, 78 (holding that the trial court erred in considering the defendant's actions in taking advantage of a position of trust or confidence as an aggravating factor in imposing sentence based upon a conviction for committing incest in violation of N.C. Gen. Stat. § 14-178 because evidence needed to prove the defendant's guilt of the underlying offense may not be used to support any aggravating factor), disc. review denied, 337 N.C. 697, 448 S.E.2d 536 (1994), we agree with the parties that the trial court erroneously sentenced Defendant in the aggravated range in the incest cases in reliance on the aggravating factor set forth in N.C. Gen. Stat. § 15A-1340.16(d)(15) and remand the cases in which Defendant was convicted of committing incest for a new sentencing hearing and the entry of a legally sound judgment.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Defendant received a fair trial that was, with one exception, free from prejudicial error and that, with that one exception, Defendant's convictions should remain undisturbed and the trial court's judgments upheld. We do, however, conclude that the trial court erred by sentencing Defendant in the aggravated range in reliance upon the aggravating factor set forth in N.C. Gen. Stat. § 15A-1340.16(d)(15) in the cases in which he was convicted of incest, that the trial court's judgments in those cases should be vacated, and that those cases should be remanded to the Forsyth County Superior Court for resentencing and the entry of a legally sound judgment.
NO ERROR IN PART; REMANDED FOR RESENTENCING IN PART.
Judges ROBERT C. HUNTER and STEPHENS concur.
Report per Rule 30(e).