An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-681


Filed: 19 April 2005


v .                         Scotland County
                            Nos. 02 CRS 2643, 51268, 2633,
TYRONE MURPHY                        51856-57, 4417-18

    Appeal by defendant from judgments entered 25 September 2003 by Judge C. Preston Cornelius in Scotland County Superior Court. Heard in the Court of Appeals 12 January 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State.

    Hosford & Hosford, P.L.L.C., by Geoffrey W. Hosford, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals after a jury convicted him of two counts of failing to comply with control measures, two counts of assault with a deadly weapon inflicting serious injury, one count of taking indecent liberties with a child, one count of first-degree sexual offense by force, and one count of first-degree statutory sexual offense. The State's evidence tended to show that on 30 March 2002, the victim's mother was playing cards outside her residence. She entered her house to use the bathroom and saw defendant, an adult who was between 38 and 40 years old, standing behind her son, the victim who was aged 14. The victim was standing at the refrigerator with the top door open, resting one hand inside thefreezer and the other on the handle. Defendant was standing behind the victim with his hips physically touching the victim's behind. When the victim's mother asked what was going on, defendant stepped back. Defendant's boxer shorts and jeans were unfastened, so he pulled up his pants, went into another room, and sat down. The victim, who was fully clothed, stated, “Tyrone was trying to hunch me.” Although the victim was in the ninth grade at the time of trial, he suffered from a learning disability and had the mind of a five year old.
    The victim's account was similar to his mother's testimony. He testified that defendant was attempting to have sex with him. He also indicated that he was glad that defendant finally got caught.
    The victim testified about other incidents with defendant. Once, the victim and his cousins went to the skating rink. Afterwards, the group went to the trailer where defendant lived. While the victim was on the floor and covered with a blanket, defendant pulled down his pants and tried to put his penis in the victim's rectum. After a couple of minutes, the victim turned over and defendant stopped. Kathleen McQueen, a woman who lived with defendant, was in the room when the incident occurred.
    Another incident occurred when the victim went to visit Kathleen McQueen. He fell asleep on the floor, woke up, and saw defendant putting lotion on his penis. Defendant came into the room naked and pulled off the victim's clothing. He proceeded to have anal sex with the victim. The victim tried to get up, butdefendant held his hands so he could not move. When defendant finished, the victim used the bathroom and saw blood and a white substance.
    The victim testified about three other incidents. One incident involved anal sex. On another occasion, defendant made the victim perform oral sex on him. Finally, defendant performed oral sex on the victim.
    The victim testified that he did not tell anyone about these incidents because he was afraid and embarrassed. He was also scared of defendant because he had seen defendant beat his own child for small transgressions.
    The victim's mother reported these incidents. She also called Social Services and made an appointment to have her son tested for HIV.
    The doctor who performed the HIV test informed the victim's mother that the boy tested positive. The victim learned about the result a few days later. A detective with the Laurinburg Police Department, Timothy Monroe, testified that the victim gave statements about three of the incidents which were consistent with the victim's testimony at trial. An employee of the Department of Health and Human Services, Constance Jones, testified that she and her staff interview people who are HIV positive. Jones informed the victim that he was HIV positive. During this meeting, the victim told Jones that he had sex with defendant steadily from January of 1999 to March of 2002. The victim also stated that defendant was his only sex partner.     Defendant was arrested in his home where he was hiding under a bed. Defendant gave a statement to Detective Monroe. With regard to the incident that occurred near the refrigerator, defendant said that a package slipped through a hole in his pocket. When the victim's mother entered the room, defendant had just unfastened his pants to get it. Defendant claimed that the victim asked to have sex many times, but defendant never touched him. Defendant also claimed that he never had sex with a man and did not have any sexually transmitted diseases.
    The evidence regarding defendant's HIV status tended to show that defendant tested positive for the virus in 1996. Tina Hunt, a communicable disease supervisor, testified that she drew defendant's blood and counseled him about control measures that he should take.   These control measures included using condoms during sexual intercourse, refraining from sharing needles or giving blood, informing new sex partners about being HIV positive, and contacting all individuals with whom defendant had sex or shared needles. Defendant read back the list of control measures in his own words and did not appear to have any difficulty understanding them.
    The health director went over an isolation order with defendant. The order states that a person who violates control measures can be prosecuted, put into prison for up to two years, and fined. Defendant signed the order and did not appear to have difficulty understanding it. However, Hunt testified that therewere instances in which defendant denied that he was HIV positive, even after he learned about the control measures.
    Lisa Locklear knew defendant when she was an HIV/AIDS case manager with the Health Department. Locklear had regular discussions with defendant, and he admitted that he was HIV positive then. When defendant was incarcerated on 7 January 1998, defendant wrote on a screening form that he had not been exposed to or treated for AIDS. In July 2002, defendant was not having symptoms, but he told Locklear that his partner was getting treatment and he also wanted to be treated. Later that year, defendant began receiving treatment and became sick.
    Dr. Becky Stephenson testified that she treated defendant for the HIV virus. She also described the medicines defendant takes.     Hank Locklear testified that he met defendant in 1996. At the time, defendant and his girlfriend were having problems. Locklear and defendant began having sex after they had known each other for three or four months. The last time Locklear had sex with defendant was in 2001. Locklear and defendant did not use condoms.     Hunt testified that Locklear tested positive for HIV on 23 April 2002. Locklear testified that he has not sought treatment because he cannot afford the medication. He has become religious and no longer considers himself homosexual.
    The jury convicted defendant of two counts of failing to comply with control measures, two counts of assault with a deadly weapon inflicting serious injury, one count of taking indecent liberties with a child, one count of first-degree sexual offense byforce, and one count of first-degree statutory sexual offense. Defendant appeals.
    On appeal, defendant argues that the trial court erred by (1) allowing the jury verdicts to be entered out of term, (2) failing to declare a mistrial after improprieties in jury deliberations, (3) permitting defendant's doctor and nurse to testify about defendant's HIV status, and (4) refusing to vacate the charges of violation of control measures because the conduct was outside of the two-year statute of limitations. We find no error with regard to defendant's first three assignments of error and sustain defendant's convictions for assault with a deadly weapon inflicting serious injury, taking indecent liberties with a child, first- degree sexual offense by force, and first-degree statutory sexual offense. However, we reverse defendant's convictions on the charges of violation of control measures.

I. Entry of Verdicts
    Defendant's first contention is that the judgments were entered out of term. Defendant argues that the trial court failed to enter an order extending court after the session was scheduled to expire on 19 September 2003. According to defendant, since the judgments were entered after that date, they are null and void and should be vacated. We disagree.
    The trial judge's extension of a session of court is governed by N.C. Gen. Stat. § 15-167 (2003). That statute provides:
            Whenever a trial for a felony is in progress on the last Friday of any session of court and it appears to the trial judge thatit is unlikely that such trial can be completed before 5:00 P.M. on such Friday, the trial judge may extend the session as long as in his opinion it shall be necessary for the purposes of the case, but he may recess court on Friday or Saturday of such week to such time on the succeeding Sunday or Monday as, in his discretion, he deems wise. The trial judge, in his discretion, may exercise the same power in the trial of any other cause under the same circumstances[].... The length of time such court shall remain in session each day shall be in the discretion of the trial judge. Whenever a trial judge continues a session pursuant to this section, he shall cause an order to such effect to be entered in the minutes, which order may be entered at such time as the judge directs, either before or after he has extended the session.

Id. (emphasis added).
    In State v. Harris, 181 N.C. 600, 607, 107 S.E. 466, 469 (1921), the North Carolina Supreme Court addressed what was necessary for a “court to make a formal order continuing the trial of the cause after the expiration of the term by limitation.”   (See footnote 1)  The Court explained that “the statute was complied with by the daily entries on the docket: 'Pending the trial of the case of S.v. J. T. Harris, the court takes a recess until 9:30 tomorrow,' and the entry next day, 'Court convened at 9:30 a.m. pursuant to recess,' etc., in regular form.” Id. at 607, 107 S.E. at 470.
    In the present case, the trial was not completed on Friday, 19 September 2003. The prosecutor stated, “It being 5:00, sir, that would be the State's evidence for today.” In response, the trial judge stated:
        All right. We'll take the recess until Monday. We'll meet you back here Monday morning at 9:30, report to the jury room. . . . Have a nice weekend and I'll see you Monday morning.

Additionally, the court reporter made a notation indicating that court was in recess for the evening until 9:30 a.m. on Monday morning.
    On Monday, 22 September 2003, the trial resumed, and the jury reported back without any objection from either party. At the end of each day, the trial judge recessed the proceedings and ordered the jury to return at 9:30 the following morning. The proceedings resumed each day until the trial ended.
    While it would have been the better practice for the trial judge to state more explicitly that the session was being continued, we conclude that the trial judge's actions were sufficient to comply with the statute. The trial judge did announce, on the record and in the transcript, that the jury should return on the Monday after the session was set to expire. Additionally, the court reporter made a notation indicating that court was in recess and scheduled to resume on Monday. Finally,defendant continued to participate in the proceedings without objecting. Because the trial court continued the session of court, the judgments were not entered out of session. We overrule this assignment of error.   (See footnote 2) 
II. Jury Deliberations
    Defendant argues that the trial court erred by failing to adequately investigate allegations of juror misconduct. Defendant alleges that the trial court should have done more when it learned that during deliberations, one of the jurors claimed to have been raped as a child.
    Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure provides, in pertinent part, that “[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion . . . .” N.C.R. App. P. 10(b)(1)(2004). Under the plain error rule, errors or defects affecting substantial rights may be addressed even though they were not brought to the attention of the trial court. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). The North Carolina Supreme Court has only applied the plain error rule to instructional errors or errors involving the admissibility of evidence. State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109(1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999), cert. denied, 353 N.C. 382, 547 S.E.2d 443 (2001).
    In the present case, defendant acknowledges that he failed to object during trial. Furthermore, since this does not involve an instructional error or an evidentiary matter, defendant is not entitled to plain error review. We overrule this assignment of error.
III. Testimony About Defendant's Condition
    Defendant suggests that the trial court abused its discretion by allowing Nurse Locklear and Dr. Stephenson to testify about confidential communications regarding defendant's HIV status. We disagree.
    N.C. Gen. Stat. § 8-53 (2003) codifies the physician-patient privilege and limits dissemination of confidential information acquired in treating a patient. However, a judge may “compel disclosure” if it “is necessary to a proper administration of justice.” Id. The trial judge's ruling regarding disclosure will not be overturned unless there is an abuse of discretion. State v. Drdak, 330 N.C. 587, 592, 411 S.E.2d 604, 607 (1992).
    In the present case, the trial judge did not abuse his discretion by allowing Nurse Locklear and Dr. Stephenson to testify about defendant's HIV status. Defendant acknowledges that before Nurse Locklear and Dr. Stephenson took the stand, the jury already heard extensive testimony revealing that defendant was HIV positive. Therefore, defendant cannot show that this ruling, even if erroneous, prejudiced him in any way. See State v. Sanders, 303N.C. 608, 617, 281 S.E.2d 7, 12 (noting that defendant is not entitled to a new trial unless a legal error is also prejudicial), cert. denied, 454 U.S. 973, 70 L. Ed. 2d 392 (1981).     
    We are also aware that N.C. Gen. Stat. § 8-53.1 (2003) qualifies the physician-patient privilege. That provision waives the physician-patient privilege in child abuse cases:
            Notwithstanding the provisions of G.S. 8-53 the physician-patient privilege shall not be ground for excluding evidence regarding the abuse or neglect of a child under the age of 16 years or regarding an illness of or injuries to such child or the cause thereof in any judicial proceeding related to a report pursuant to the North Carolina Juvenile Code, Chapter 7B of the General Statutes of North Carolina.

    Our courts have held that this section is to be read in pari materia with N.C. Gen. Stat. § 7B-310 (2003) (formerly N.C. Gen. Stat. § 7A-551). State v. Etheridge, 319 N.C. 34, 40, 352 S.E.2d 673, 677 (1987). That statute states:
        No privilege, except the attorney-client privilege, shall be grounds for excluding evidence of abuse, neglect, or dependency in any judicial proceeding (civil, criminal, or juvenile) in which a juvenile's abuse, neglect, or dependency is in issue nor in any judicial proceeding resulting from a report submitted under this Article, both as this privilege relates to the competency of the witness and to the exclusion of confidential communications.

N.C. Gen. Stat. § 7B-310.
    In Etheridge, our Supreme Court noted that
        Section 8-53.1 allows evidence of abuse “in any judicial proceeding related to a reportpursuant to the North Carolina Juvenile Code,” while section 7A-551 allows such evidence “in any judicial proceeding . . . in which a juvenile's abuse or neglect is in issue.”

Etheridge, 319 N.C. at 40-41, 352 S.E.2d at 677.
    Under these provisions, the physician-patient privilege was not available to defendant. The charges against defendant arose after the victim's mother reported the incidents to the Department of Social Services and the victim tested positive for the HIV virus. The charges include sex crimes involving a child victim. As was the case in Etheridge, “[a]ny privilege of confidentiality to which defendant might possibly have been entitled by section 8-53 was nullified by N.C.G.S. §§ 8-53.1 and 7A-551 [now 7B-310] under the facts of this case.” Id. at 39, 352 S.E.2d at 677.
    For these reasons, the trial court did not err in allowing Nurse Locklear and Dr. Stephenson to testify about confidential communications regarding defendant's HIV status. Accordingly, we overrule this assignment of error.
IV. Control Measures
    In his last assignment of error, defendant argues that “[t]he trial court erred in instructing the jury that it could convict the defendant on both counts of violation of control measures by conduct occurring outside of the statute of limitations.”
    Chapter 130A of the North Carolina General Statutes contains provisions dealing with public health. “A person who violates a provision of this Chapter . . . shall be guilty of a misdemeanor.” N.C. Gen. Stat. § 130A-25(a) (2003). This includes the provisionrequiring compliance with control measures. N.C. Gen. Stat. § 130A-144(f) (2003). Since the violation of control measures is a misdemeanor, the State must adhere to the statute of limitations for misdemeanors set forth in N.C. Gen. Stat. § 15-1 (2003). Pursuant to that statute, “all misdemeanors except malicious misdemeanors, shall be presented or found by the grand jury within two years after the commission of the same, and not afterwards[.]” Id.
In the present case, there was substantial evidence that defendant violated control measures by failing to use condoms while engaging in sexual intercourse and by failing to notify future and past sex partners about his HIV status. The problem is that much of this evidence pertained to acts occurring outside the statute of limitations. Moreover, the trial judge instructed the jury to consider a period of time that extended beyond the statute of limitations in its determination of whether defendant violated control measures.
    In its brief, the State argues that “it appears that the trial court treated the violations as continuing offenses.” Thus, the State contends that at least some of the conduct giving rise to violations of control measures fell within the statutory period. However, even if we assume arguendo that defendant's failure to comply with control measures was a “continuing offense,” the trial judge was still required to instruct the jury that it could not convict defendant without finding that he had violated the law within the two-year statute of limitations.    In State v. Brewer, 258 N.C. 533, 539-40, 129 S.E.2d 262, 267 (1963), the Court did not eliminate statutes of limitations for continuing offenses. It merely held that an indictment for the continuing offense of conspiracy should not be quashed simply because it alleged that the conspiracy began outside the relevant statute of limitations. We believe that a case cited by the Brewer Court is more pertinent to the present case. Pinkerton v. United States, 145 F.2d 252, 254 (5th Cir. 1944). In Pinkerton, the trial court erred when it
        failed to . . . point out to the jury what evidence was necessary to keep the [offense] alive and bring it within the statute of limitations, and also to limit the evidence as to the overt acts committed before the three year statute ran. The charge was further confusing, we think, for failure to fully instruct the jury that the guilt of the defendants could only be predicated on one or more overt acts proved to have been committed within the [time] limit of the statute.

Id. In the instant case, the trial judge's instructions permitted the jury to convict defendant based solely on acts committed outside the statute of limitations. Therefore, we reverse the convictions for violations of control measures.
    After careful consideration, we sustain defendant's convictions for two counts of assault with a deadly weapon inflicting serious injury, one count of taking indecent liberties with a child, one count of first-degree sexual offense by force, and one count of first-degree statutory sexual offense. Because of the instructional error, we reverse defendant's convictions for violations of control measures.    No error in part, reversed in part.
    Judges ELMORE and LEVINSON concur.    
    Report per Rule 30(e).

Footnote: 1
     When Harris was decided, the applicable statute was C.S. 4637:
        “In case the term of a court shall expire while a trial for felony shall be in progress and before a judgment shall be given therein, the judge shall continue the term as long as in his opinion it shall be necessary for the purposes of the case, and he may in his discretion exercise the same power in the trial in any cause in the same circumstances except civil actions begun after Thursday of the last week.”
Harris, 181 N.C. at 607, 107 S.E. at 469 (quoting C.S. 4637).     

Footnote: 2
     We also note that the record was amended to include a printed email sent by David F. Hoke at the Administrative Office of the Courts. This document indicates that Judge Preston Cornelius was assigned to preside over a Special Session of Superior Court of Scotland County on 22 September 2003. This is further evidence showing that the session of court was continued.

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