STATE OF NORTH CAROLINA
Wake County
v
.
Nos. 03 CRS 24203
03 CRS 24205
ROBERT S. HILL
Attorney General Roy Cooper, by Assistant Attorney General
David L. Elliott, for the State.
Russell J. Hollers, III, for defendant-appellant.
CALABRIA, Judge.
Robert S. Hill (“defendant”) appeals from a judgment entered
upon jury verdicts finding him guilty of statutory rape and taking
indecent liberties with a child. We find no prejudicial error.
At trial, the State presented evidence that in November of
2002 the defendant and H.E.U. (“the victim”), then a 15-year-old
female, left the victim's residence in Maryland and traveled to
Raleigh. When they stopped at a Harris Teeter grocery store to
find a place to stay, a man named Daryl Williams (“Williams”)
overheard them calling shelters and offered them a room in an
apartment he shared with his girlfriend, Pamela Davis (“Davis”).
Defendant and the victim stayed with Williams and Davis from 21
November 2002 until 11 December 2002. The victim testified that she met defendant during a
devotional service at a shelter where she was residing along with
her mother and her two brothers. The victim befriended defendant
and she and her family, all of whom were mentally handicapped,
moved into a home with defendant in Salisbury, Maryland. In
November, defendant and the victim decided to leave the residence.
The victim stated, “. . . I was tired of taking care of my family,
and I knew that if I didn't leave I would be stuck with them for
the rest of my life, taking care of them and I would never get
anywhere.” The victim testified that she became romantically
involved with the defendant and they planned to get married and
have children. Defendant stated that while she resided with
defendant in Davis' home in Raleigh, she and the defendant had sex
“almost every day.”
Davis testified that she first met the defendant and victim on
21 November 2002 when her boyfriend brought them to her home.
Since the two claimed they were married and told Davis they planned
to stay in Raleigh to find employment, she allowed them to spend
the night. Later Davis agreed to let them stay in her son's
bedroom until they could find employment and housing. Davis
testified that during the time the defendant and victim stayed in
her house, she heard “moaning and groaning” coming from her son's
bedroom, and believed the sounds were sounds associated with sexual
acts. After defendant was arrested and D.S.S. picked up the
victim, Davis discovered the plastic cover had been removed from
her son's mattress and noticed a semen stain on the mattress. Davis' son, Lorandall House (“Lorandall”), testified that he too
heard sexual noises approximately three to four times a week during
the time the defendant and the victim resided at Davis' home.
Defendant was arrested following a traffic stop on 11 December
2002. Zeke Morse (“Officer Morse”), a detective with the Raleigh
Police Department, testified that he stopped defendant for avoiding
a traffic control device and discovered he was not wearing a seat
belt. When Officer Morse asked for defendant's address, defendant
gave Officer Morse Davis' address as his residence. The
registration tags on defendant's vehicle were not registered for
that vehicle, prompting Officer Morse to check the vehicle
identification number (“VIN”). Officer Morse checked defendant's
VIN and learned that the Salisbury, Maryland Police Department
wanted the vehicle in connection with a missing juvenile. Two
officers were dispatched to the address defendant gave Officer
Morse and located the victim.
On 16 May 2005, the jury returned verdicts finding defendant
guilty of statutory rape of a 15-year-old and taking indecent
liberties with a minor. Superior Court Judge James C. Spencer,
Jr., then entered judgment upon the jury verdicts, sentencing
defendant as a Level II offender. Judge Spencer sentenced
defendant to a minimum of 288 months and a maximum of 355 months in
the North Carolina Department of Correction. From that judgment,
defendant appeals.
Defendant initially argues the trial court erred by allowing
Bill Gush (“Gush”), a social worker with the Wake County Departmentof Social Services, to testify regarding statements made by the
victim. Defendant did not preserve this issue for appellate review
by objecting at trial, and thus our review of this matter is
limited to a plain error analysis.
[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done, or where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,
or the error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(citation and quotation marks omitted).
This Court has held that it is plain error to admit expert
testimony stating that a sexual assault victim is credible where
there is no evidence of the crime other than the victim's
testimony.
It is fundamental to a fair trial that the
credibility of the witnesses be determined by
the jury. Holloway, 82 N.C. App. at 587, 347
S.E.2d at 73-74. Our Courts have held numerous
times that an expert's opinion to the effect
that a witness is credible, believable, or
truthful is inadmissible.
State v. Hannon, 118 N.C. App. 448, 451, 455 S.E.2d 494, 496
(1995). However, Hannon presented a case in which there was noevidence of sexual abuse other than the victim's testimony. It is
clear from the Court's holding that this distinction was critical.
In this case there was no evidence of sexual
intercourse other than the prosecuting
witness's testimony. Therefore, her
credibility was of critical importance. Under
these circumstances, Dr. Matteson's testimony
was unduly prejudicial to defendant because of
the influence it had over the jury's
determination of credibility.
Id. The Hannon decision follows the reasoning set forth in State
v. Holloway, 82 N.C. App. 586, 347 S.E.2d 72 (1986). Like Hannon,
Holloway involved an allegation of sexual abuse where the State's
evidence was limited to the victim's testimony. In Holloway, this
Court held it was plain error to allow two experts to testify that,
in their opinion, the victim was being truthful. Id.
The case sub judice is distinguishable from Hannon and
Holloway in that here there was evidence beyond the victim's
testimony supporting the sexual abuse allegations. In addition to
the victim's testimony, Davis and Lorandall both reported hearing
sexual noises coming from the bedroom the defendant and the victim
shared. Furthermore, Davis reported the presence of a semen stain
on the bed they shared. Finally, the fact that defendant held the
victim out as his wife is evidence of an ongoing sexual
relationship. This evidence, viewed cumulatively, provides the
corroboration of the victim's testimony that was lacking in Hannon
and Holloway.
In light of the corroborating evidence, we determine Gush's
testimony did not have a “probable impact on the jury's finding
that the defendant was guilty.” If Gush's testimony had beenexcluded, it is likely that the jury still would have found
defendant guilty based on the overwhelming evidence presented by
the State. As such, this assignment of error is without merit.
Defendant next contends the trial court erred by allowing Gush
to state that Lori Bryant (“Bryant”) had “substantiated definitely”
that the victim had been sexually assaulted. Since defendant did
not object to this testimony at trial, our review of this matter is
limited to a plain error analysis. This is so even though the
alleged error relates to the defendant's rights under the United
States Constitution. State v. Lemons, 352 N.C. 87, 96, 530 S.E.2d
542, 547-48 (2000) (“[D]efendant failed to properly preserve at
trial the issue of whether his Confrontation Clause rights were
violated. Thus, we must evaluate the trial court's actions . . .
under a plain error analysis . . . .”).
As with his first issue, defendant cannot prevail on this
assignment of error because the error had no probable impact on the
jury's finding. The victim testified that defendant committed the
crimes charged, and her story was supported by the additional
evidence cited above. Accordingly, this assignment of error is
overruled.
Defendant next argues the trial court erred in sentencing
defendant as a Level II offender based upon committing the offenses
in the instant case while on unsupervised probation in Maryland.
Defendant's probationary status added one point to his sentencing
worksheet and raised his sentencing level from a Level I to a Level
II offender. N.C. Gen. Stat. . 15A-1340.14(b)(7) (2005). Defendant contends that his probationary status was neither found
by a jury nor admitted by defendant, and the court's judgment
sentencing him as a Level II offender therefore violates the Sixth
Amendment principles articulated in Blakely v. Washington, 542 U.S.
296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000).
“Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed presumptive range
must be submitted to a jury and proved beyond a reasonable doubt.”
State v. Allen, 359 N.C. 425, 437, 615 S.E.2d 256, 265 (2005). An
aggravating factor need not be found by a jury, however, where the
defendant admits the fact. Apprendi, 530 U.S. at 488.
We have previously considered the Blakely/Apprendi issue in a
case where the defendant's probationary status was determined
without being found as a fact by the jury:
We recognize, as the State argues, that the
fact of a defendant's probationary status is
analogous to and not far-removed from the fact
of a prior conviction. However, we find that
we are bound by the language in Blakely,
Apprendi and Allen that states that only the
fact of a prior conviction is exempt from
being proven to a jury beyond a reasonable
doubt. Furthermore, we note that the fact of
defendant's probationary status did not have
the procedural safeguards of a jury trial and
proof beyond a reasonable doubt recognized in
Apprendi as providing the necessary protection
for defendants at sentencing. We find that the
trial court erred by adding a point to
defendant's prior record level without first
submitting the issue to a jury to find beyond
a reasonable doubt.
State v. Wissink, 172 N.C. App. 829, 837, 617 S.E.2d 319, 325
(2005), disc. rev. granted and supersedeas allowed, ___ N.C. ___,___ S.E.2d ___, 2006 WL 3863765 (2006). In Wissink, the defendant
admitted his probationary status in the following exchange:
[ATTORNEY FOR THE STATE]: . . . [The prior
record level worksheet shows that defendant]
has two -- eight points plus a one point,
that's a -- he was on probation at the time of
this offense, which gives him nine record
level points, and he's a level IV for the --
for sentencing, Your Honor . . . .
THE COURT: All right.
[ATTORNEY FOR DEFENDANT]: I think that's
correct, Your Honor.
Id. at 838, 617 S.E.2d at 325.
However, this Court determined that defendant's stipulation
was ineffective since defendant was convicted prior to the Blakely
and Allen decisions. For this reason, defendant was not aware that
he had the right to have any sentencing-enhancement factors other
than a prior conviction found as facts by a jury. As such, his
admission to his probationary status was not a “knowing” and
“intelligent” act, and was therefore ineffective.
Here, defendant's trial occurred after the Blakely decision
was rendered, and thus the defendant in the instant case was
charged with knowledge that he had a right to have a jury find any
facts that might enhance his sentence. So the question becomes
whether defendant admitted the factor, i.e., his probationary
status, which was used to enhance his sentence by categorizing him
as a Level II offender.
During the sentencing phase of his trial, defendant stated,
“[I]'ve only had that one point on my record.” Further, defendant
signed the worksheet determining his prior record level as a LevelII offender. On that sheet, the words “unsupervised probation” are
circled, and one prior record point is assessed based on this
factor. The State contends this admission and signature are
tantamount to a stipulation by defendant that he was in fact on
unsupervised probation. We agree. “[D]uring sentencing, a
defendant need not make an affirmative statement to stipulate to
his or her prior record level or to the State's summation of the
facts, particularly if defense counsel had an opportunity to object
to the stipulation in question but failed to do so.” State v.
Alexander, 359 N.C. 824, 829, 616 S.E.2d 914, 918 (2005). There is
no evidence in the record that defendant objected to the prior
record worksheet. As such, this assignment of error is overruled.
Defendant lastly argues the trial court erred in failing to
disclose material information contained in confidential records.
The trial court reviewed the documents in camera and determined
that nothing therein was subject to discovery by defendant. The
files were transferred under seal to the Wake County Clerk's Office
for storage pending appellate review. However, the clerk's office,
despite a diligent search, has been unable to locate the records.
On 28 February 2007, defendant filed a motion for appropriate
relief seeking a new trial on the basis that the State has made it
impossible for defendant to present a complete record preserving
his arguments on appeal. Because this Court had not yet filed an
opinion in this case, we maintained jurisdiction to consider
defendant's motion. In his motion, defendant relies on State v. Sanders, 312 N.C.
318, 321 S.E.2d 836 (1984). In that case, the Court invoked N.C.
R. App. P. 2 to vacate a defendant's convictions and order a new
trial when there were material gaps in the transcribed record. The
case sub judice is distinguishable from Sanders in that here the
defendant can demonstrate no prejudice from the information omitted
from the record as the evidence against him was abundant. Here,
the victim testified that she engaged in a sexual relationship with
defendant, and her testimony was corroborated by Davis and
Lorandall, who both testified that they heard sexual noises coming
from the room shared by defendant and the victim. Further, Davis
reported discovering a semen stain on the bed shared by defendant
and the victim, who claimed to be married, after defendant's
arrest.
Even errors arising under the United States Constitution are
harmless where they are harmless beyond a reasonable doubt. State
v. Blackwell, 361 N.C. 41, 50, 638 S.E.2d 452, 458 (2006). In
light of the evidence cited above, meaningful appellate review in
this case was not frustrated by the loss of the records and any
error was harmless beyond a reasonable doubt.
No prejudicial error.
Judges McGEE and STEPHENS concur.
Report per Rule 30(e).
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