Appeal by defendant from judgments entered 13 April 2005 by
Judge John R. Jolly, Jr. in Wake County Superior Court. Heard in
the Court of Appeals 19 February 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General David Gordon, for the State.
Brian Michael Aus for defendant-appellant.
STROUD, Judge.
On 27 July 2004, defendant was indicted by the Wake County
Grand Jury on two counts of first-degree sexual offense, one count
of felony child abuse, and one count of indecent liberties with a
child. Defendant was tried before a jury in Wake County Superior
court from 11 to 13 April 2005. The jury found defendant guilty of
all charges. Thereafter, the trial court sentenced defendant to
230 to 285 months for first-degree sexual offense, felony child
abuse, and indecent liberties with a child, and to a consecutive
sentence of 230 to 285 months for first-degree sexual offense.
Defendant appeals.
For the reasons which follow, we hold that the trial court did
not commit plain error when it admitted the testimony of a police
detective which tended to vouch for the veracity of the State's
main witness. We further hold that defendant invited any error
assigned to the testimony of a social worker which tended to
impeach defendant. Finally, we hold that defendant failed to
preserve the constitutional question of double jeopardy for
appellate review. Accordingly, defendant received a fair trial and
her convictions are affirmed.
I. Background
Defendant's convictions arose from events which occurred on 2
April 2004 and involved defendant's seven year-old daughter
(“Victim”). John Paul McCloskey (“McCloskey”), with whom defendant
began a sexual relationship in January of 2004, participated inthose events. At the time of defendant's trial, McCloskey was
charged with two counts of first-degree statutory sexual offense
and with taking indecent liberties with a child as a result of his
participation.
McCloskey and the victim were the only eyewitnesses other than
defendant. The victim was not called to testify at trial.
McCloskey was the State's main witness, and defendant testified in
her own behalf. The State also offered into evidence tape
recordings of two phone conversations McCloskey had with defendant,
and three witnesses whose testimony either corroborated McCloskey's
testimony or tended to impeach defendant.
McCloskey testified as follows: At some time prior to 2 April
2004, defendant mentioned to him that she had fantasies of herself,
McCloskey, and the victim all having sex together. On Friday, 2
April 2004, defendant and the victim arrived at about 1:30 p.m. at
McCloskey's apartment in Apex to spend the weekend. The three of
them went out to the mall for a while and returned to his apartment
to have dinner. While defendant was cleaning up the dishes,
McCloskey washed the victim's hair, as requested by defendant. By
about 6:00 p.m., the three of them sat down to watch TV. Defendant
then grabbed the victim and McCloskey by their hands and brought
both of them into the bedroom. In the bedroom, defendant lay down
on her back, with no clothes on. McCloskey was wearing shorts, and
the victim was wearing a T-shirt and underwear. McCloskey
described the victim's demeanor at this point as “easygoing.”
McCloskey then began to perform cunnilingus on defendant. According to McCloskey, the victim interjected, “I can take care of
Mom from here,” so McCloskey began kissing defendant while the
victim masturbated her. After kissing McCloskey, defendant
performed fellatio on him for about ten minutes. During the time
that defendant was performing fellatio on McCloskey, the victim
continued to masturbate defendant. Defendant then asked the victim
if she would like McCloskey to do the same thing to her that he had
done to defendant, referring to cunnilingus. McCloskey then
performed cunnilingus on the victim for about three to five
minutes. Defendant then told the victim to “[g]o down and lick
[McCloskey's] penis” and the victim then performed fellatio on
McCloskey, while McCloskey kissed defendant. McCloskey and
defendant completed the sexual encounter by having intercourse
while the victim was lying on the bed next to them. They then got
dressed and went to the living room to watch a movie or TV.
Defendant and the victim stayed with McCloskey for the rest of the
weekend but nothing else “weird” happened. Defendant and the
victim returned to their home in Pender County on Sunday.
According to McCloskey, defendant was worried about losing her
children if anyone found out about the events of 2 April 2004. He
and defendant discussed the sexual encounter several times after it
had occurred, and defendant tried to figure out ways that they
could maintain consistency in their stories, so that “neither one
of [them] got in trouble.” They considered saying that
“[McCloskey] just licked [the victim] or gave [the victim] oral sexand that [defendant] was not in the room.” or that defendant
“caught [McCloskey and the victim] on the couch.”
McCloskey further testified that on 14 June 2004, he met with
Detective Tim Kerley at the Apex Police Department for an
interview. At the beginning of the interview, McCloskey denied
that anything happened with the victim, but after Detective Kerley
suggested that he take a polygraph test, McCloskey decided that he
would admit what really happened. McCloskey testified that he
decided to tell the truth because he was feeling awful and guilty
about what had happened. McCloskey gave Detective Kerley a
handwritten statement regarding the events of 2 April 2004, which
was admitted into evidence.
According to McCloskey, after he gave the handwritten
statement to Detective Kerley, McCloskey left the police department
and contacted his attorney. McCloskey's attorney provided him with
a tape recorder to record some conversations with defendant.
McCloskey decided to record these conversations with defendant
because defendant had asked him to change his statement to say that
“she wasn't involved or implicated in any way.” The State offered
into evidence, without objection, recordings that McCloskey made of
two telephone conversations with defendant, each about 20 minutes
long, on 19 June 2004 and 20 June 2004. In the 19 June 2004
conversation, defendant asked McCloskey to “talk to my lawyer and
tell her a different story.” She asked McCloskey if he was going
to try to help her out and stressed to him that she did not want tolose her children and that the unborn baby was his.
(See footnote 1)
McCloskey
stated in the conversation that because of the charges, he did not
think that either of them would be able to be around children and
that his father would like to adopt the baby. Defendant responded
“that don't [sic] have to be, John. If you'll help me, if you'll
change your story and at least be for me and not totally against me
. . . do it for the baby's sake.” After further conversation about
the possibility of a perjury charge, defendant told McCloskey,
“[t]he only way to save my kids is you. You're the only one that
can help me save my kids . . . . And at least, John, as long as I
have them, I can send you pictures or send your mama pictures of
the baby, and you could have some contact, I mean, a little bit.”
In the second phone conversation, recorded 20 June 2004,
defendant and McCloskey again discussed defendant's concern that
she would lose her children. Defendant again asked McCloskey if he
would try to help her. He asked her what he needed to do.
Defendant told him that the “only thing that's going to help me,
and it might not keep me out 100 percent, but help me is to say I
wasn't there . . . . [W]e know you're going to get in trouble no
matter what the outcome is, but at least you can help me cover my
tracks a little bit.”
Later in the trial, the State called Detective Kerley, who
corroborated most of McCloskey's testimony regarding his interview
and written statement Detective Kerley also testified thatMcCloskey had asked him on the day of the interview if defendant
would lose her child or children. McCloskey phoned Detective
Kerley after the interview and asked if he could add on to his
written statement so that “[defendant] wouldn't get into any
trouble.” However, McCloskey never repudiated the written
statement or the statements he made in the interview with Detective
Kerley, even after telling Detective Kerley that he had spoken to
some attorneys and they had “told him that he shouldn't have
written out the confession.”
The State also called Keisha Hooks of the Pender County
Department of Social Services (DSS) as a witness. Hooks testified
that on 13 May 2004 she investigated a report, received by DSS the
day before, that the victim had been sexually abused and that
defendant had participated in the incident. During an interview
with defendant pursuant to the investigation, Hooks informed
defendant that there was an allegation that defendant had watched
while McCloskey sexually assaulted the victim at his home in Apex.
Defendant denied the allegations but admitted that she and the
victim had visited McCloskey in Apex. Defendant told Hooks that
after the victim was asleep in the bedroom, McCloskey was
performing oral sex on defendant in the living room. The victim
woke up and came into the living room, so defendant and McCloskey
stopped as soon as they saw her and got dressed. Defendant took
the victim back into the bedroom and apologized to her that she had
seen what she did. Defendant told Hooks that defendant then went
to take a bath, and when she came out of the bathroom, the victimtold her that McCloskey had touched her between her legs with his
hand and licked her between her legs. Hooks asked defendant why she
had not reported this, and defendant shook her head and said that
“she didn't think [McCloskey] had done it or could do that.”
Defendant did not take the victim to a doctor. Defendant told
Hooks that she confronted McCloskey regarding what the victim had
told her and he denied it and said he did not know why the victim
lied about him. Hooks testified that on or about 15 June 2004, she
received a copy of McCloskey's handwritten confession from
Detective Kerley and phoned defendant to ask about it. Hooks
testified that during their phone conversation, defendant said that
she had talked to McCloskey after his interview with Detective
Kerley. Hooks further testified that defendant, changing her story
slightly from the 13 May interview, said that when the victim came
into the living room, the victim was not wearing her panties and
that the victim touched defendant's naked vagina. Defendant also
told Hooks that McCloskey “licked [the victim] between her legs and
her vagina one time, and [defendant] told him to stop.” Defendant
further said that after this, she went to the bathroom, then she
and McCloskey got dressed, the victim went to bed, and defendant
told McCloskey that “it could never happen again.”
Finally, the State called Lieutenant Cordelia Lewis of the
Pender County Sheriff's Department to testify. Lt. Lewis testified
regarding her investigation of the allegations of sexual abuse of
the victim. Lt. Lewis received a report from the victim's paternal
grandparents regarding the victim on a Sunday evening and she wentto the victim's school to talk to her the following Tuesday. After
talking to the victim, Lt. Lewis had made the report to DSS which
served as the basis for Hooks' investigation. Lt. Lewis later
talked to Detective Kerley and obtained a copy of the Apex police
report and McCloskey's confession.
On 16 June 2004, Lt. Lewis and Hooks went together to
defendant's home to talk to her. Defendant's story as recounted by
Lt. Lewis was slightly different from the account defendant gave
Hooks earlier. Defendant told Lt. Lewis at this meeting that
McCloskey was performing oral sex on her when the victim walked in,
but they did not know the victim was there. The victim then
touched defendant on the thigh, not on her vagina. In response,
defendant “sat up and asked [the victim] what she was doing.”
Defendant was upset and crying, and she went to the bathroom. When
defendant returned from the bathroom, the victim was touching
McCloskey's penis. Defendant asked “what are you-all doing?” and
by the time she said this, McCloskey stopped. Defendant then took
the victim into the bathroom but the victim would not tell
defendant anything. Defendant then told McCloskey to go to bed in
his bed and that she and the victim would get in theirs. The next
morning, on the way home, the victim asked if she and McCloskey
could “play” again, and defendant told her no, “that would never
happen again.” Lt. Lewis testified that defendant said that she
had lied before because she did not want to lose her daughter.
Defendant signed a statement of her interview with Lt. Lewis. Defendant testified on her own behalf at trial, offering a
version of events again somewhat different from what Hooks and Lt.
Lewis testified that she told them. Defendant admitted that she
and the victim had visited with McCloskey for the weekend. She
testified that the victim had walked into the bedroom when
McCloskey was performing oral sex on defendant, that she realized
the victim was there when she felt a touch on her thigh, and she
pushed McCloskey back and sat up in bed. She was upset and started
crying, hugged the victim, and then went into the bathroom because
she was sick, leaving the victim and McCloskey in the room
together. She took a shower and when she was coming down the hall
returning to the bedroom, she could hear McCloskey and the victim
talking but could not understand them. She heard McCloskey say
“stop” and the victim jumped when defendant entered the room. She
said she did not see anything happen, but “hollered at [the
victim]. . . , 'what are you doing?'” She took the victim into the
bathroom and talked to her, and she then asked McCloskey if he had
done anything to the victim He denied that he had. Defendant
denied her previous statements to Hooks regarding any knowledge of
McCloskey having any form of sexual contact with the victim or of
the victim touching defendant's vagina.
II. Issues
Defendant has addressed in her brief only three of her six
assignments of error. The three assignments of error not addressed
in her brief are deemed abandoned. N.C.R. App. P. 28(b)(6). As to
the remaining assignments of error, defendant contends that thetrial court committed plain error by allowing a police detective to
vouch for the veracity of McCloskey, the State's main witness.
Defendant further contends that the trial court committed plain
error by allowing Hooks, a social worker, to testify that defendant
had not told her the truth. Finally, defendant contends that the
trial court erred by sentencing defendant to consecutive terms for
two counts of sexual offense which arose from the same transaction.
III. Admission of Evidence
A. Testimony of Police Detective
[1] Defendant contends that she is entitled to a new trial
because the trial court committed plain error when it allowed
Detective Tim Kerley of the Apex Police Department to offer an
opinion which tended to vouch for the veracity of McCloskey. We
disagree.
At trial, the following testimony was elicited from Detective
Kerley by the State:
Q. Take the jury through what happened in
your interview with Mr. McCloskey.
A. When Mr. McCloskey arrived, I set him
down and asked him some preinterview
questions to basically see whether he was
being deceptive. I asked him if he did do
this to [the victim], and he denied it at
first. After I determined that I thought
he was deceptive, I came back and started
asking him questions where he finally
admitted to me that he and Audrey had
done it to the little girl.
Q. Can you tell the jury what you meant by
you thought he was being deceptive?
A. During the preinterview questions, I
listened to how he answered the questions
versus what a normal person would answera question versus how a deceptive person
would answer. Also the demeanor and how
he acted when you asked those questions.
Q. Things like body language and tone of
voice play into that -- those evaluations
by you; is that right?
[Defense Counsel]: Object to the leading, Your
Honor.
THE COURT: Well, don't lead him. Overruled,
but don't lead him.
Q: What things do you look for in trying to
determine whether or not a person is
being deceptive or not?
A. Just to -- for example, I look for eye
contact, whether they're looking straight
at me when they're answering the
question or they're looking down or
somewhere else in the room; how they sit
in the chair; if they are sitting still;
if they adjust their movements while
they're answering the questions; groping,
grooming themselves, and things of that
nature.
Q. What did you observe about Mr. McCloskey
before -- leading up to the point of
where he started telling you what
happened?
A. I observed Mr. McCloskey, to the best of
my recollection -- I'll have to go back
and look at my report. He was very
nervous. You know, his breathing was
really hard, more so than what -- an
average person who hadn't done anything,
in my
opinion. I remember one time he
did -- he -- a couple of times he did
look down when he was answering those
questions.
Q. At some point his demeanor changed; is
that correct?
A. Yes, sir, to the best of my recollection.
. . .
Q. Okay. Now, at some point -- earlier we
talked a lot about his demeanor and how
he was looking down. At some point after
he said he would tell you the truth, what
were your observations about his demeanor
at that pint [sic]?
A. He was still nervous, as best I recall,
but I don't think he was quite breathing
as hard. I mean, I can give you my
impression of why [McCloskey] told me the
truth, if you want me to tell you that.
Q. Go ahead.
A. I felt like he really wanted to tell
somebody what he did. You know, I felt
like he felt guilty about it and just
wanted to get it out and talk to
somebody.
(Emphasis added.)
Defendant did not object at trial to this testimony from
Detective Kerley. Therefore, this Court reviews only for plain
error, N.C.R. App. P. 10(c)(4), which defendant correctly noted in
her brief. In reviewing for plain error, this Court “must examine
the entire record and determine if the . . . error had a probable
impact on the jury's finding of guilt.”
State v. Odom, 307 N.C.
655, 661, 300 S.E.2d 375, 379 (1983).
Specifically, defendant argues that the foregoing testimony
from Detective Kerley was an opinion. Defendant further argues
that Detective Kerley was testifying as an expert, and therefore
any opinion testimony was limited to that permitted by Rule 702.
(See footnote 2)
Alternatively, she argues that if Detective Kerley was testifying
as a layman, then any opinion testimony was limited to that
permitted by Rule 701. Defendant argues that whether Detective
Kerley was testifying as an expert or a laymen, an opinion about
the credibility of a witness is inadmissible under both Rule 701 or
Rule 702, because such an opinion is not helpful to the jury. The
State responds that Detective Kerley's testimony was a “shorthand
statement of fact,” not an opinion, and therefore not subject to
the limits of either Rule 701 or Rule 702.
First, this Court must determine whether Detective Kerley was
testifying as an expert. If he was, Rule 702 applies, if not, Rule
701 applies. Nothing in the record indicates that Detective Kerley
was testifying as an expert; thus, Rule 701 is the proper rule to
apply to the case
sub judice. 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.” N.C. Gen. Stat. § 8C-1, Rule 701.
Second, we must determine if the testimony of the witness is
opinion, as opposed to fact. Broadly speaking, opinion testimony
is a “belief, thought, or inference” drawn from a fact.
See
Black's Law Dictionary 579 (7th ed. 1999). Practically, however,
labeling testimony as “fact” or “opinion,” is often difficult“'[w]here a witness is attempting to communicate the impressions
made upon his senses by what he has perceived.'” 2 Kenneth S.
Broun,
Brandis and Broun on North Carolina Evidence § 175 n.3 (6th
ed. 2004) (quoting
Am. L. Inst. Model Code of Evidence, Rule 401,
Comment c.).
Recognizing the difficulty of labeling impressions of demeanor
as fact or opinion, our Supreme Court has stated:
“The instantaneous conclusions of the mind as
to the appearance, condition, or mental or
physical state of persons, animals, and
things, derived from observation of a variety
of facts presented to the senses at one and
the same time, are, legally speaking,
matters
of fact, and are admissible in evidence.”
State v. Lloyd, 354 N.C. 76, 109, 552 S.E.2d 596, 620 (2001)
(emphasis added) (citation omitted) (testimony that defendant
appeared calm is admissible). These types of instantaneous
conclusions are usually referred to as “shorthand statements of
facts,” and are not opinions subject to Rule 701.
(See footnote 3)
State v.
Braxton, 352 N.C. 158, 187, 531 S.E.2d 428, 445 (2000),
cert.
denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). Detective Kerley
testified that he concluded that because McCloskey was breathing
less hard, he must have been less nervous. That inference was an
instantaneous conclusion as to mental state, and legally speaking,
a matter of fact.
Lloyd, 354 N.C. at 109, 552 S.E.2d at 620;
seealso Braxton, 352 N.C. at 187, 531 S.E.2d at 445 (holding that
testimony that defendant appeared calm and relaxed was admissible
as a shorthand statement of fact). However, when Detective Kerley
went on to his second inference, that because McCloskey became less
nervous he must have been telling the truth, the testimony crossed
the line and became an opinion.
See State v. Heath, 316 N.C. 337,
343, 341 S.E.2d 565, 569 (1986) (distinguishing between an
“opinion” about a mental condition and a “opinion” about
credibility). Such an inference is not, legally speaking, a matter
of fact, and is subject to the limits on lay opinion testimony
found in Rule 701.
Id.
Third, we must determine if Detective Kerley's lay opinion
testimony is nonetheless admissible because it falls within the
exception found in Rule 701. On this issue, 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.
State v. Robinson, 355 N.C. 320, 335, 561
S.E.2d 245, 255,
cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404
(2002);
see also N.C.P.I., Crim. 101.15 (2005) (The jury is the
“sole judge[] of the credibility . . . of each witness,” and the
jury should test the truthfulness of a witness by, among other
things, observing “the manner and appearance of the witness.”);
State v. White, 154 N.C. App. 598, 605, 572 S.E.2d 825, 831 (2002)
(“The jury is charged with drawing its own conclusions from theevidence, and without being influenced by the conclusion of [a law
enforcement officer].”)
Detective Kerley testified, “I don't think he was quite
breathing as hard. I mean, I can give you my impression of why
[McCloskey] told me the truth . . . . I felt like he felt guilty
about it and just wanted to get it out.” This is an opinion which
vouches for the veracity of a witness. However, the jury was able
to see for itself the manner and appearance of McCloskey when he
testified, and determine for itself if it wanted to believe him.
Therefore, the opinion as to his credibility was not helpful to the
jury's determination of a fact in issue. Accordingly, we hold that
the admission of this testimony was error.
Having concluded that the admission of the testimony was
error, we must determine whether the error was plain error. In
other words, whether it was probable, absent this error, that the
jury would have reached a different verdict than the one it
actually reached.
Odom, 307 N.C. at 661, 300 S.E.2d at 379.
Though this case ultimately rested on whether the jury chose to
believe the story of McCloskey or that of defendant, defendant's
credibility was impeached in many different ways: by the tape of
her own voice seeking to mislead McCloskey into thinking that he
was the father of her child and encouraging McCloskey to lie, by
the testimony of Hooks and Lt. Lewis which revealed inconsistencies
in defendant's story, and by defendant's own inconsistent
testimony. Given the amount of testimony which directly or
indirectly impeached defendant, the jury had ample evidence,besides the testimony of Detective Kerley, which might have caused
it to disbelieve the story of defendant and believe the story of
McCloskey. We find no plain error.
B. Testimony of Social Worker
[2] Defendant's next assignment of error regards the following
testimony of social worker Hooks during cross-examination by
defendant.
Q: Ms. Gobal -- Audrey Gobal complied with
all your requests; is that correct?
Well, strike that.
A: Technically, no. She didn't tell us the
truth from the very beginning. No.
Defendant contends that this testimony was improper character
evidence which should not have been admitted.
Statements elicited by a defendant on cross-examination are,
even if error, invited error, by which a defendant cannot be
prejudiced as a matter of law.
State v. Greene, 324 N.C. 1, 11,
376 S.E.2d 430, 437 (1989),
vacated on other grounds, 494 U.S.
1022, 108 L. Ed. 2d 603 (1990);
see also State v. Chatman, 308 N.C.
169, 177, 301 S.E.2d 71, 76 (1983) (holding that the defendant
could not assign error to testimony elicited during defense
counsel's cross-examination of the State's witness); N.C. Gen.
Stat. § 15A-1443(c) (2005). This assignment of error is without
merit.
IV. Consecutive Sentences
[3] Finally, defendant argues that the trial court erred by
sentencing her to consecutive terms of imprisonment for the two
counts of first-degree sexual offense, because the constitutionalguaranty against double jeopardy prohibits multiple sentences for
a single offense.
(See footnote 4)
Defendant cites
dicta in
State v. Petty, 132
N.C. App. 453, 463, 512 S.E.2d 428, 434,
disc. review denied and
appeal dismissed, 350 N.C. 598, 537 S.E.2d 490 (1999), for the
proposition that the two first-degree sexual offenses charged,
cunnilingus and fellatio, are not disparate crimes, but merely
alternative ways of showing the commission of a sexual act.
(See footnote 5)
Defendant reasons that if both cunnilingus and fellatio occur as
part of a single transaction, then only one offense has been
committed. Defendant contends that the events of 2 April 2004 were
a single transaction and concludes that one offense has been
committed, for which she can receive only one sentence. Constitutional issues
(See footnote 6)
not raised and passed upon at trial
will not be considered for the first time on appeal,
State v.
Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001), not even
for plain error,
State v. Cummings, 352 N.C. 600, 613, 536 S.E.2d
36, 47 (2000). A “double jeopardy argument [need not] us[e] those
exact words [to be preserved for appeal, if] the substance of the
argument was sufficiently presented and,
more importantly,
addressed by the trial court in finalizing its instructions to the
jury.”
State v. Ezell, 159 N.C. App. 103, 106, 582 S.E.2d 679, 682
(2003) (emphasis added).
The trial transcript reads, in pertinent part:
THE COURT: [T]he substantive offenses are the
two B1s of first-degree statutory sex offense.
One would be as to cunnilingus; one would be
as to fellatio, both with an aiding-and-
abetting element. I don't know of any lesser
included or any other subtleties. What do
you-all say? It's either all or nothing,
isn't it?” What says the state, and what says
the defendant? Do you agree?
Defense Counsel: Your Honor, I think you got
it on that.
. . .
THE COURT: The second full paragraph is where
I first talk about the offenses, and you'll
see as to each of the first two counts I talk
about them being, one, cunnilingus, one
fellatio, both by aiding and abetting. [The
Court discusses the instructions step-by-step
with counsel for each side.] [I]n the second
count or charge, it's the very same chargeexcept it talks -- it says this one's in the
form of fellatio. Otherwise, it's verbatim
except the elements of fellatio instead of
cunnilingus. [The Court continues step-by-
step discussion.] What says defendant?
Defense Counsel: Your Honor,
we don't have any
objection to the charge -- to the proposed
charge . . . [a]nd
the verdict sheets seem to
be okay.
[The jury returns for closing arguments, is
instructed, and retires to deliberate.]
THE COURT: Any further request, objections or
anything from . . . the defendant?
[The jury deliberates and returns the
verdict.]
Defense Counsel: Your Honor, the defendant at
this time would ask the Court to set aside
each and every verdict of the jury on the
grounds that the verdicts . . . are not
supported by sufficient evidence.
. . .
THE COURT: I'll take that under advisement.
[The jury is dismissed, and sentencing
begins.]
Defense Counsel: [W]e would ask the Court to
be merciful. . . . It's a very sad situation.
. . .
That's about all I have to say, Your
Honor.
. . . .
[Defense Counsel declines to be heard further
on the motion to set aside the verdict.]
THE COURT: That motion [to set aside the
verdict] is denied. The judgment of the Court
is that with regard to . . . the jury finding
. . . is th[at] defendant be imprisoned.
. . .
Defense Counsel: Your Honor, I would like to
point out it all happened at one time. THE COURT: I understand. I understand. [The
Court reviews the verdicts and announces the
sentences.]
Defendant's vague passing mention of this issue after the jury
had been instructed, returned its verdict, and been dismissed from
the courtroom is not sufficient to persuade us that defendant
raised this constitutional issue to the trial court. Defendant has
thus failed to preserve this assignment of error for appellate
review. See State v. Fullwood, 343 N.C. 725, 733, 472 S.E.2d 883,
887 (1996), cert. denied, 520 U.S. 1122, 137 L. Ed. 2d 339 (1997).
Defendant's final assignment of error is overruled.
(See footnote 7)
For the reasons stated above, we hold that the trial court did
not commit plain error when it admitted Detective Kerley's
testimony which tended to vouch for the veracity of McCloskey. We
further hold that defendant invited any error which she assigned to
the testimony of Hooks, the social worker. Finally, we hold that
defendant failed to preserve the constitutional question of doublejeopardy for appellate review. Accordingly, defendant received a
fair trial and her convictions are affirmed.
No Error.
Chief Judge MARTIN concurs.
Judge HUNTER concurring in part and dissenting in part in a
separate opinion.
HUNTER, Judge, concurring in part and dissenting in part.
I agree with the majority that Audrey Gobal's (“defendant”)
trial was free from prejudicial error as it pertains to the
admission of Detective Kerley's testimony and to the admission of
Keisha Hooks's testimony. I disagree, however, with the majority's
conclusion that the issue of sentencing is not properly before this
Court. Instead, I would hold that the issue has been properly
preserved for appellate review and that defendant's indictment was
multiplicious and would therefore vacate one of defendant's
convictions for first degree sexual offense and remand for
resentencing.
The majority bases its conclusion that the sentencing issue is
not properly before this Court on the grounds that defendant did
not raise the constitutional issue of double jeopardy to the trial
court and, as such, has failed to preserve that argument for
appellate review. Defendant, however, does not raise the issue of
double jeopardy to this Court but instead argues that her
indictment was multiplicious. The issues in this case are: (1) whether the issue of
sentencing is properly before this Court; (2) whether the statutory
definition of “sexual act” creates disparate offenses or whether it
enumerates the methods by which the single wrong of engaging in a
sexual act with a child may be shown; and (3) if the statutory
definition of “sexual act” does not create disparate offenses,
whether the acts of cunnilingus and fellatio committed by defendant
against the victim occurred in the same transaction, thus rendering
her indictment multiplicious.
I.
The majority contends that defendant is making a double
jeopardy argument and that it has been waived because it was not
properly preserved.
(See footnote 8)
Defendant asserts in assignment of error
number 6 that her indictment was multiplicious. During the
sentencing hearing, defense counsel made the substance of a
multiplicity argument when he stated that the sexual acts “allhappened at one time.” Accordingly, I would address defendant's
contention that her indictment was multiplicious.
II.
In this case, the jury convicted defendant,
inter alia, of two
counts of first degree sexual offense in violation of N.C. Gen.
Stat. § 14-27.4(a)(1) (2005), for which the trial court imposed
consecutive sentences. A person will be guilty of a first degree
sexual offense if the person engages in a
sexual act “[w]ith a
victim who is a child under the age of 13 years and the defendant
is at least 12 years old and is at least four years older than the
victim[.]” N.C. Gen. Stat. § 14.27.4(a)(1). A “sexual act” is
defined as,
inter alia, cunnilingus and fellatio. N.C. Gen. Stat.
§ 14.27.1(4) (2005). The State alleged that the two sexual acts
committed by defendant, cunnilingus and fellatio, warrant two
separate charges for first degree sexual offense. Defendant,
however, argues that the alleged sexual acts of cunnilingus and
fellatio occurred during the same transaction so that the State
could only indict her on one count of first degree sexual offense.
An indictment will be multiplicious if it charges a single
offense in multiple counts.
State v. Petty, 132 N.C. App. 453, 463
n.2, 512 S.E.2d 428, 435 n.2 (1999). As with the dangers guarded
against by the double jeopardy clause, “'[t]he principal danger in
multiplicity is that the defendant will receive multiple sentences
for a single offense[.]'”
Id. (quoting 2 Wayne R. LaFave & Jerold
H. Israel,
Criminal Procedure § 19.2, at 457-58 (1984)). Where an
indictment is multiplicious, a defendant is not entitled to adismissal of the indictment but will be entitled to relief from the
improper sentence.
Id.
A.
This Court has already stated that the “statutory definition
of 'sexual act' does not create disparate offenses, rather it
enumerates the methods by which the single wrong of engaging in a
sexual act with a child may be shown.”
Petty, 132 N.C. App. at
462, 512 S.E.2d at 434;
see also State v. Youngs, 141 N.C. App.
220, 233, 540 S.E.2d 794, 802 (2000) (same). Accordingly, it has
also been held that “disjunctive jury instructions do not risk
nonunanimous verdicts in first-degree sexual offense cases.”
Petty, 132 N.C. App. at 462, 512 S.E.2d at 434 (citing
State v.
McCarty, 326 N.C. 782, 784, 392 S.E.2d 359, 360 (1990) “(upholding
jury instruction that the defendant could be found guilty of first-
degree sexual offense 'if [the jury] found [the] defendant [had]
engaged in either fellatio or vaginal penetration')”);
State v.
Hartness, 326 N.C. 561, 565, 391 S.E.2d 177, 179 (1990) (holding
that disjunctive instructions did not result in a fatally ambiguous
verdict in an indecent liberties case, and noting that the indecent
liberties statute is “more similar to the statute relating to
first-degree sexual offense . . . than to the trafficking statute
discussed in
Diaz”). It also then follows that because
“first-degree sexual offense is a single wrong for unanimity
purposes [it] requires us to conclude that charging a defendant
with a separate count of first-degree sexual offense for each
alternative sexual act performed in a single transaction wouldresult in a multiplicious indictment.”
(See footnote 9)
Petty, 132 N.C. App. at
463, 512 S.E.2d at 435 (footnote omitted). Thus, I would next
determine whether the acts committed by defendant in this case
occurred during the same transaction.
B.
In this case, the evidence presented at trial tended to show
the acts of fellatio and cunnilingus occurred during the same
transaction, and under the reasoning of
Petty, I would hold that
the indictment was multiplicious. On 2 April 2004, defendant and
her boyfriend, John Paul McCloskey (“McCloskey”), went into his
bedroom with the victim. Once in the bedroom, McCloskey performed
cunnilingus upon defendant. The victim then said, “'I can take
care of Mom from here,'” and she then began to masturbate defendant
while McCloskey kissed defendant. McCloskey then performed
cunnilingus upon defendant and the victim. The victim then
performed fellatio on McCloskey for five or six minutes. There was
a gap of approximately three to five minutes between the acts ofcunnilingus and fellatio. During this time, there was no break in
sexual acts between defendant and her boyfriend, and the victim
remained nearby. Under these circumstances, I would hold that the
sexual acts occurred during a single transaction. Accordingly,
defendant's indictment was multiplicious because she was charged
with two separate counts of first degree sexual offense in a single
indictment when each alternative sexual act occurred during a
single transaction. I would therefore vacate one of defendant's
convictions for first degree sexual offense and remand for
resentencing.
III.
The majority has concluded that defendant's argument is one of
double jeopardy and not multiplicity. Due to the similarities
between the two arguments, this Court has addressed them under the
same standard.
See State v. Howell, 169 N.C. App. 58, 61, 609
S.E.2d 417, 419 (2005). For the reasons discussed in footnote two
of this dissent, I would address whether defendant was convicted in
violation of the double jeopardy clause.
“Both the fifth amendment to the United States Constitution
and article I, section 19 of the North Carolina Constitution
prohibit multiple punishments for the same offense absent clear
legislative intent to the contrary.”
(See footnote 10)
Etheridge, 319 N.C. at 50,
352 S.E.2d at 683 (emphasis added);
see also Ezell, 159 N.C. App.at 106, 582 S.E.2d at 682 (same)
. “Our courts consider the
'gravamen' or 'gist' of the statute to determine whether it
criminalizes a single wrong or multiple discrete and separate
wrongs.”
Petty, 132 N.C. App. at 461, 512 S.E.2d at 434.
“Section 14-27.4's gravamen, or gist, is to criminalize the
performance of a sexual act with a child.”
Id. at 462, 512 S.E.2d
at 434. As stated above, “[t]he statutory definition of 'sexual
act' does not create disparate offenses, rather it enumerates the
methods by which the single wrong of engaging in a sexual act with
a child may be shown.”
Id. Accordingly, if defendant engaged in
the sexual act in one transaction, then she could not be convicted
on two counts of first degree sexual offense. On the other hand,
if defendant engaged “in alternative sexual acts in separate
transactions . . . each separate transaction may properly form the
basis for charging the defendant with a separate count of first-
degree sexual offense.”
Id. at 463, 512 S.E.2d at 435.
For the reasons discussed in section IIB of this dissent, I
would find that the acts of cunnilingus and fellatio occurred
during a single transaction. Accordingly, defendant was convicted
twice for a single offense in violation of the double jeopardy
clause, and I would remand with instructions to vacate one first
degree sexual offense conviction and to resentence defendant.
IV.
In summary, I would hold that defendant's indictment was
multiplicious and would remand for resentencing on that ground. In
the alternative, I would hold that the issue of double jeopardy isproperly before this Court and that defendant's convictions on two
counts of a first degree sexual offense arising out of the same
transaction violated the double jeopardy clause and would thus
vacate one conviction and remand for resentencing. For the
foregoing reasons, I respectfully dissent as to these issues.
Footnote: 1