Appeal by defendant from judgments dated 19 August 2004 by
Judge Dennis J. Winner in Superior Court, Haywood County. Heard in
the Court of Appeals 9 January 2006.
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel R. Pollitt, for defendant-appellant.
McGEE, Judge.
Edward Lewis Mathis (defendant) was convicted of statutory
rape and second degree rape of a fourteen-year-old girl (the
victim). The trial court sentenced defendant to a term of 270
months to 333 months in prison for statutory rape and 116 months to
149 months in prison for second degree rape, and ordered the
sentences to run concurrently. Defendant appeals. A recitation of
the facts is unnecessary to the resolution of the legal issues
presented by defendant's appeal.
I.
Defendant first argues the trial court committed plain error
by allowing the State to introduce evidence regarding three
uncharged sexual offenses allegedly committed by defendant againstthe victim at the same time as the charged offenses. Defendant
argues the evidence was irrelevant and was improper character
evidence.
However, in
State v. Agee, 326 N.C. 542, 391 S.E.2d 171
(1990), our Supreme Court noted:
"Evidence, not part of the crime charged but
pertaining to the chain of events explaining
the context, motive and set-up of the crime,
is properly admitted if linked in time and
circumstances with the charged crime, or [if
it] forms an integral and natural part of an
account of the crime, or is necessary to
complete the story of the crime for the jury."
Id. at 548, 391 S.E.2d at 174 (quoting
United States v. Williford,
764 F.2d 1493, 1499 (11th Cir. 1985)). In
Agee, a police officer
suspected the defendant of driving while intoxicated and stopped
the defendant's vehicle.
Agee, 326 N.C. at 548, 391 S.E.2d at 174.
The defendant made a threatening remark and the officer called for
backup. When backup arrived, the officer searched the defendant's
person for weapons and discovered a bag of marijuana. The officer
then searched the defendant's car and discovered LSD.
Id.
During the defendant's trial for possession of LSD, the State
offered evidence, over objection, that the defendant possessed
marijuana at the time of his arrest, even though the defendant had
been previously acquitted of possession of marijuana.
Id. at 544-
45, 391 S.E.2d at 172-73. The Court held the evidence was
admissible, finding that "[d]iscovery of the marijuana on [the]
defendant's person constituted an event in the officer's narrative
which led naturally to the search of [the] defendant's vehicle and
the subsequent detection of the LSD."
Id. at 548, 391 S.E.2d at174.
In the present case, evidence regarding defendant's alleged
sexual offenses against the victim was also admissible to explain
the context and set-up of the crimes with which defendant was
charged. The other crimes were linked in time and circumstances
with the charged crimes because they took place in the same
location and all comprised one sequence of events. Accordingly,
the evidence was admissible and we overrule defendant's assignment
of error.
II.
Defendant next argues he "is entitled to a new trial on the
statutory rape/sex offense count because the verdict and judgment
are ambiguous, unresponsive, insensible, and non-unanimous." The
verdict sheet submitted to the jury lists the statutory rape
offense as "statutory rape/sex offense[.]" Also, the judgment
lists the offense as "STAT RAPE/SEX OFFN DEFENDANT >=6YR."
Defendant argues that entry of judgment upon the incorrect verdict
sheet amounted to reversible error, particularly in light of the
State's introduction of evidence of uncharged sexual offenses
allegedly committed by defendant.
It is reversible error for a trial court to pronounce judgment
upon a verdict which is imperfect, informal, insensible or non-
responsive to the indictment.
State v. Ingram, 271 N.C. 538, 540,
157 S.E.2d 119, 121 (1967). However, in
State v. Tucker, 156 N.C.
App. 53, 575 S.E.2d 770,
rev'd in part on other grounds,
357 N.C.
633, 588 S.E.2d 853 (2003), our Court recognized that "a verdict issufficient if it 'can be properly understood by reference to the
indictment, evidence and jury instructions.'"
Id. at 60, 575
S.E.2d at 774 (quoting
State v. Connard, 81 N.C. App. 327, 336, 344
S.E.2d 568, 574 (1986),
aff'd per curiam, 319 N.C. 392, 354 S.E.2d
238 (1987)).
In
Tucker, the defendant was indicted on,
inter alia,
fourteen counts of statutory sexual offense of a 13, 14 or 15-year-
old.
Tucker, 156 N.C. App. at 59, 575 S.E.2d at 774. The trial
court properly instructed the jury on these counts, but then
submitted verdict sheets to the jury which incorrectly listed the
offense in the fourteen counts as first degree sexual offense.
Id.
The jury then rendered its verdicts of guilty and the trial court
accepted the verdict sheets without objection from either party.
Id. Our Court held there was no fundamental error, reasoning as
follows:
While the jury returned verdict sheets stating
that [the] defendant was guilty of the crime
of first degree sexual offense, the jury had
been "well-acquainted" with the charge of
statutory sexual offense of a 13, 14 or 15
year old. The jury had heard the indictments
which included that crime, heard the evidence,
and were properly instructed on that crime.
Id. at 60-61, 575 S.E.2d at 775.
In the case before us, the error on the verdict sheet did not
amount to fundamental error. While the jury did not hear the
indictment, such a procedure was not permitted by statute.
See,
N.C. Gen. Stat. § 15A-1221(b) (2005). However, the indictment
properly charged defendant with "STATUTORY RAPE OF PERSON WHO IS
13, 14 OR 15 YEARS OLD[.]" Also, the jury heard the State'sevidence regarding the statutory rape charge and was properly
instructed on the charge of statutory rape. Accordingly, the error
on the verdict sheet did not amount to fundamental error and we
overrule this assignment of error.
III.
Defendant next argues his conviction for statutory rape must
be vacated because he received multiple punishments for the same
offense in violation of the state and federal constitutional
prohibitions against double jeopardy. However, where a defendant
fails to object to the submission of two charges on the grounds
that punishment for both would violate double jeopardy, the
defendant has waived appellate review of the issue.
State v. Bell,
359 N.C. 1, 27-28, 603 S.E.2d 93, 111-12 (2004),
cert. denied, ___
U.S. ___, 161 L. Ed. 2d 1094 (2005);
State v. Fernandez, 346 N.C.
1, 18, 484 S.E.2d 350, 361 (1997);
State v. McLaughlin, 321 N.C.
267, 272, 362 S.E.2d 280, 283 (1987). Defendant in the present
case did not object to the submission of the charges of statutory
rape and second degree rape at trial. Defendant therefore failed
to preserve this issue for appellate review and we overrule
defendant's assignment of error.
IV.
Defendant argues he is entitled to a new trial because the
trial court improperly excluded evidence offered by defendant to
impeach the victim's credibility. Initially, we note the accused
in a criminal case has a constitutional right to cross-examine the
witnesses against him.
State v. Wrenn, 316 N.C. 141, 144, 340S.E.2d 443, 446 (1986). However, the scope of cross-examination of
witnesses is a matter within the sound discretion of the trial
court, and the trial court's rulings thereon will only be disturbed
upon a showing of abuse of discretion.
Id.
Defendant argues the trial court erroneously excluded evidence
that the victim made a false accusation that she was sexually
abused by her uncle when she was seven years old. Defendant also
argues the trial court erred by excluding evidence that the victim
falsely accused another person of fraud and that the victim
suffered from severe mental illness.
In
State v. Galloway, 145 N.C. App. 555, 551 S.E.2d 525
(2001),
appeal dismissed, 356 N.C. 307, 570 S.E.2d 885 (2002), the
defendants were convicted of rape, sexual offense, attempted murder
and kidnapping.
Id. at 558, 551 S.E.2d at 528. The defendants
argued the trial court erred by excluding their proffered
impeachment evidence of the victim "such as her history of drug
addiction, an alleged suicide attempt, and her psychiatric
history."
Id. at 564, 551 S.E.2d at 532. However, our Court found
that the defendants were afforded an adequate opportunity to
impeach the victim, noting the extensive impeachment evidence
successfully offered into evidence:
[D]uring cross-examination, the victim
admitted that she was addicted to crack
cocaine, and she had smoked crack the very day
of these crimes. Additionally, the victim was
asked about an alleged suicide attempt, when
she allegedly attempted to cut her wrists, and
she denied it. Moreover, as to the victim's
psychiatric history, the victim admitted to
visiting psychiatrists. She further admitted
that she was involuntarily committed into a"detox" center, which she left against medical
recommendation.
Also, evidence was presented that the
victim, who used several aliases, had been
convicted of writing bad checks, driving while
her license was revoked, and prostitution.
Moreover, during this point in her life, the
victim admitted that she was going through a
difficult time--financial problems,
depression, and her husband's recent
imprisonment.
Id.
In the present case, defendant also was afforded ample
opportunity to impeach the victim's credibility regarding the
victim's drug use, psychiatric history and criminal activity. On
cross-examination, the victim admitted taking Oxycontin, a
pharmaceutical drug, in 2003, the year the rape occurred. Mikell
Clark-Webb (Ms. Clark-Webb), a therapist for Meridian Behavioral
Help Services, also testified that she met with the victim on 15
September 2003. Ms. Clark-Webb testified the victim "tried and
used many drugs including alcohol, marijuana, pain pills, crack,
cocaine, methadone and skittles[]" in 2003. The victim also
admitted that she was "really intoxicated" at the time of the rape,
having taken two Vicodin pills and having drunk three or four
beers. She also admitted smoking marijuana around the time of the
rape.
With regard to her psychiatric history, the victim admitted
taking Clonopin, a nerve medication, in 2003. Defendant also
offered further testimony of Ms. Clark-Webb that the victim's
depression worsened when she moved into her father's house, where
the rape subsequently occurred. Defendant also was able to cross-examine the victim regarding
her criminal activity. She admitted on cross-examination that she
had fraudulently cashed a check at a Wal-Mart store. Defendant
also cross-examined the victim about her assault on a police
officer in August 2003. Because defendant was afforded substantial
opportunity to impeach the victim's credibility, we find the trial
court did not abuse its discretion in excluding other impeachment
evidence. Therefore, we overrule defendant's final assignment of
error.
No error.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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