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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. JOSE SANCHEZ
Filed: 2 August 2005
1. Witnesses--cross-examination--priest--testimony about confession
A defendant charged with indecent liberties was not deprived of his right to a fair trial by
not being able to adequately cross-examine a priest who testified about his general practice when
hearing confessions from abuse victims, but did not testify about this victim's confession. Any
error was rendered harmless by other overwhelming evidence of guilt.
2. Sentencing--aggravating factor_Blakely error_jury finding required
Any fact (other than a prior conviction) that increases the penalty beyond the presumptive
range must be submitted to a jury and proven beyond a reasonable doubt. A sentence in the
aggravated range for indecent liberties based on a unilateral finding by the judge was remanded.
Appeal by defendant from judgment entered 26 August 2003 by
Judge Richard D. Boner in Mecklenburg County Superior Court. Heard
in the Court of Appeals 11 January 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Diane G. Miller, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellant.
Jose Sanchez (defendant) appeals from judgment entered after
a jury found him to be guilty of taking indecent liberties with a
child. We hold that defendant received a fair trial free from
error, vacate defendant's sentence, and remand for resentencing.
E.S. (the minor) was born on 15 April 1986. In September
1999 when she was thirteen years old, she moved from hergrandparents' home in El Salvador to North Carolina to live with
her mother, Ana Sanchez (Sanchez), and her father, defendant.
The minor dated seventeen-year-old Salvadore Ruiz (Ruiz),
who worked with defendant. Ruiz and the minor had a sexual
relationship, which resulted in the minor becoming pregnant in
On 24 September 2001, the minor signed herself out of school
and called Ruiz to pick up her. While with Ruiz, the minor wrote
a letter to Sanchez stating that she had run away with Ruiz and
requested her not to call the police. The minor left the note at
home and spent the rest of the day with Ruiz.
On 25 September 2001, defendant reported that his daughter was
missing and informed Officer Gilberto Narvaez (officer Narvaez)
he believed his daughter was with Ruiz. Officer Narvaez located
Ruiz at a job site, questioned him about his relationship with the
minor, and informed Ruiz that the minor was fifteen years old.
Ruiz escorted Officer Narvaez to his apartment where both had spent
When Officer Narvaez began questioning the minor, she became
very upset and stated that her father had been having relations
with her for over a year. Officer Carmen Mendoza (Officer
Mendoza), a female, was called to the scene. The minor informed
Officer Mendoza that her father began having sexual intercourse
with her in January 2000, when she was thirteen years old. She
claimed that several times a week, her father would come into her
room in the middle of the night, take off her clothes, and have sexwith her. The minor stated intercourse ceased in March 2001, but
defendant continued to touch her breasts and buttocks. The minor's
testimony at trial was consistent with her statement.
The minor testified she first informed Father Joseph Elzi
(Father Elzi) of the abuse during a Mass near her fifteenth
birthday. Father Elzi testified at trial, but refused to reveal
whether the minor had participated in confession or what she had
told him. He testified that when a confessant tells him of sexual
abuse, he advises them to speak to another priest, counselor, or
other person to report to authorities.
Sanchez testified she informed social service personnel that
defendant did not leave the marital bedroom during the night and
that she had never found defendant alone with the minor in the
minor's bedroom. Sanchez later testified to one incident where she
woke up and defendant was not in their bed. She found him on top
of the minor, who was wearing only underwear. On another occasion,
Sanchez observed defendant lying on top of the minor on the couch.
She also recalled that after hearing the minor screaming in her
room, she ran to the minor, who told her defendant had touched her
breasts. Sanchez did not inform the social worker about these
incidents in September 2001 and was living with a new boyfriend by
the time of trial.
No physical evidence was admitted. Defendant was found to be
not guilty of felonious incest and statutory rape, and guilty of
taking indecent liberties with a child. Defendant appeals.
The issues on appeal are whether the trial court erred in:
(1) admitting testimony by Father Elzi relating to the minor's
statements to him; and (2) sentencing defendant in the aggravated
range without a finding by the jury of aggravating factors.
III. Sixth Amendment Right of Confrontation
 Defendant contends he was deprived of a fair trial because
he was unable to adequately cross-examine Father Elzi. We
On 2 May 2003, Judge Yvonne Mims-Evans heard a motion to quash
the subpoena filed by Father Elzi. During the hearing, Father Elzi
testified that although North Carolina law allows a penitent to
waive the penitent-priest privilege, to reveal the confession would
compromise his religious beliefs. Judge Mims-Evans denied the
motion to quash and ordered that admissibility of any questions
concerning confidential communication would be determined by the
Prior to Father Elzi testifying at trial, the trial court
ruled he could be questioned regarding his practice and customs in
general, but that the State could not question him regarding any
individual's and specifically the minor's confession to him.
Father Elzi testified that upon hearing that some sort of sexual
assault has occurred, he advises a victim to report it to proper
authorities. Defendant objected but did not cross-examine Father
Elzi, or make any offer of proof.
Defendant argues the trial court erred by allowing Father
Elzi's testimony regarding the advice he gives to alleged victimsof sexual abuse that corroborated the minor's testimony. Defendant
argues he was denied his Sixth Amendment right of confrontation
because he was not allowed to fully cross-examine Father Elzi
regarding the minor's confession.
Our United States Supreme Court has held:
In all criminal prosecutions, state as well as
federal, the accused has a right, guaranteed
by the Sixth and Fourteenth Amendments to the
United States Constitution to be confronted
with the witnesses against him. The central
concern of the Confrontation Clause is to
ensure the reliability of the evidence against
a criminal defendant by subjecting it to
rigorous testing in the context of an
adversary proceeding before the trier of fact.
Lilly v. Virginia, 527 U.S. 116, 123-24, 144 L. Ed. 2d 117, 126
(1999) (internal quotations and citations omitted); see also
Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004).
Confrontation means more than being allowed to confront the
witness physically. 'Our cases construing the [confrontation]
clause hold that a primary interest secured by it is the right of
cross-examination.' Davis v. Alaska, 415 U.S. 308, 315, 39 L. Ed.
2d 347, 353 (1974) (quoting Douglas v. Alabama, 380 U.S. 415, 13 L.
Ed. 2d 934, 937 (1965)); see also Crawford, 541 U.S. 36, 158 L. Ed.
2d 177. A defendant must be afforded an adequate opportunity to
cross-examine adverse witnesses. United States v. Owens, 484 U.S.
554, 557, 98 L. Ed. 2d 951, 956 (1988). Cross-examination is the
principal means by which the believability of a witness and the
truth of his testimony are tested. Davis, 415 U.S. at 316, 39 L.
Ed. 2d at 353. Here, defendant neither attempted to cross-examine Father Elzi
nor did he request a voir dire or make an offer of proof regarding
the questions he would have asked or what Father Elzi's testimony
would have revealed. See State v. Williams, 355 N.C. 501, 534, 565
S.E.2d 609, 629 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d
808 (2003). Based on the transcript before us, we find that no
testimony was erroneously admitted or excluded. Father Elzi did
not testify to the contents of any statements the minor made to
him. Presuming error in admitting Father Elzi's testimony, other
overwhelming evidence of defendant's guilt based on the testimony
by Officers Navarez and Mendoza, the victim, and Sanchez renders
any error harmless beyond a reasonable doubt. This assignment of
error is overruled.
IV. Aggravated Sentencing
 Defendant contends the trial court erred by sentencing him
in the aggravated range based on a finding by the trial court that
defendant took advantage of a position of trust of confidence to
commit the offense.
Our Supreme Court recently addressed and ruled on this issue
in State v. Allen, 359 N.C. 425, ___, ___ S.E.2d ___, ___ (July 1,
2005) (No. 485PA04) and State v. Speight, 359 N.C. 602, 606, ___
S.E.2d ___, ___ (July 1, 2005) (No. 491PA04). In vacating the
defendant's aggravated sentence in Allen, our Supreme Court held
[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed presumptiverange must be submitted to a jury and proved beyond a reasonable
doubt. 359 N.C. at 437, ___ S.E.2d at ___.
The Court later stated in Speight, the rationale in Allen
applies to all cases in which (1) a defendant is constitutionally
entitled to a jury trial, and (2) a trial court has found one or
more aggravating factors and increased a defendant's sentence
beyond the presumptive range without submitting the aggravating
factors to a jury. 359 N.C. at 606, ___ S.E.2d at ___.
Based on our Supreme Court's holding in Allen and Speight, the
trial court erred by sentencing defendant in the aggravated range
without submission to or a finding by the jury beyond a reasonable
doubt to support the aggravated sentence. Defendant's sentence is
vacated and remanded for imposition of a sentence consistent with
our Supreme Court's decisions in Allen and Speight.
The trial court did not err in admitting Father Elzi's
testimony regarding his customs and practices upon learning
information of abuse. We hold defendant received a fair trial free
from error. The trial court erred by sentencing defendant in the
aggravated range without submitting the aggravating factors to a
jury. Defendant's sentence is vacated and remanded for imposition
of a sentence consistent, with our Supreme Court's decisions in
No Error at trial; Sentence Vacated and Remanded for
Judges WYNN and MCGEE concur.
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