Appeal by defendant from judgments entered 10 August 2005 by
Judge David S. Cayer in Mecklenburg County Superior Court. Heard
in the Court of Appeals 21 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Kevin Anderson, for the State.
Richard E. Jester for defendant-appellant.
Geer, Judge.
Defendant Jeremy Lamont Moore appeals from his convictions for
two counts of second degree rape, three counts of second degree
sexual offense, and one count each of first degree kidnapping and
first degree burglary. On appeal, defendant argues that the trial
court erred by (1) permitting an expert witness to vouch for the
victim's credibility, (2) failing to dismiss the charge of first
degree kidnapping for insufficient evidence, and (3) permitting the
State's attorney to ask the victim leading questions. We are
unpersuaded by defendant's arguments and, therefore, find no
prejudicial error.
Facts
The State's evidence at trial tended to show the following
facts. At approximately 2:00 a.m. on 2 May 2004, Gwendolyn
Hasklin, who has been diagnosed as a paranoid schizophrenic, was
sitting alone in her Charlotte, North Carolina apartment when she
heard a noise at the back door. Ms. Hasklin looked through her
blinds and saw defendant beating on her door. Ms. Hasklin
testified she had never seen defendant previously.
Defendant kicked in the door, and the two began struggling
throughout the kitchen and living room. Defendant claimed to have
a gun and forced Ms. Hasklin to engage in oral sex and vaginal
intercourse several times on the living room floor. Defendant then
demanded money from Ms. Hasklin to buy crack cocaine. She
responded that she had no money in the apartment. After hearing a
knock at the door, defendant forced Ms. Hasklin down the hall to
the bedroom, where he had sex with her four more times. At that
point, defendant allowed Ms. Hasklin to go to the bathroom to clean
up while he stayed in the bedroom. Instead of going to the
bathroom, however, Ms. Hasklin ran naked to a neighbor's home and
called the police.
Officer Gene Lim of the Charlotte-Mecklenburg Police
Department was the first to respond to the neighbor's apartment.
Ms. Hasklin, who was "visibly upset," informed Officer Lim that she
had just been raped by a black male, approximately 20 years old,
wearing a white tank top, dark pants, and a dark stocking or skull
cap _ a description that matched an individual the officer had justseen across the hall in the apartment complex. Officer Lim looked
out of the apartment and saw the same man walking away with a
"frantic look about him." When detained by Officer Lim, the man
initially provided an alias, but later identified himself as
defendant.
While officers held defendant in the courtyard of the
apartment complex, Ms. Hasklin identified him as her attacker, and
he was taken into custody. DNA analysis of a rape kit performed on
Ms. Hasklin showed the statistical probability of a black male
other than defendant being the source of DNA samples found on and
in Ms. Hasklin's body to be approximately one in nine quintillion.
On 24 May 2004, defendant was indicted for multiple counts of
rape, sexual offense, burglary, and kidnapping. At trial,
defendant testified and admitted having sex with Ms. Hasklin, but
claimed that it was consensual. According to defendant, he had
previously sold Ms. Hasklin crack cocaine, and sometimes she had
performed oral sex on him in exchange for the cocaine rather than
paying cash. Defendant testified that on 2 May 2004, Ms. Hasklin
invited him into her apartment and offered to have sex with him if
he gave her crack cocaine. He told her that he had more cocaine
than he really did. Defendant asserted that when Ms. Hasklin
realized he did not have the drugs, she became angry, left the
apartment naked, and falsely claimed rape in order to retaliate
against him.
The jury found defendant guilty of two counts of second degree
rape, three counts of second degree sexual offense, and one counteach of first degree kidnapping and first degree burglary. For
sentencing, the trial court consolidated the rape convictions into
one judgment, the sexual offense convictions into a second
judgment, and the kidnapping and burglary convictions into a third
judgment. The court then imposed three consecutive presumptive
range sentences of 73 to 97 months imprisonment. Defendant timely
appealed to this Court.
I
Defendant first argues that the trial court improperly
permitted Ms. Hasklin's psychiatrist, Dr. Anthony DiNome, to
express an expert opinion as to Ms. Hasklin's credibility.
Specifically, he points to the questions and answers following the
prosecutor's summarization for Dr. DiNome of Ms. Hasklin's
testimony:
[PROSECUTOR:] Based on that kind of
testimony, do you have an opinion as to
whether [Ms. Hasklin] would have the ability
to fantasize or make up that kind of a story?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
. . . .
A I have not known her to make up
those kinds of stories nor to have delusions
that would result in those kinds of scenarios.
I have no reason to think that she would make
up an elaborate, detailed story, based on my
prior knowledge and her diagnosis.
Q There was some testimony that in
some ways she was fearful while she was in the
apartment. One of the ways that she indicated
she was fearful was getting in trouble and
losing her housing. Even though this was anallegation that someone actually broke in or
burglarized her house.
Is that kind of a statement consistent
with her disease?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
THE WITNESS: My first thought about that
statement is that this was not a surprising
statement to hear from someone who had been
homeless. Might be in an apartment kind of on
a thread. The apartment represents one step
between them and the streets again.
So it was not surprising from that
context. I didn't go beyond that in my
concern. There are all kinds of people.
People who are anxious and worried and
frightened . . . about being blamed for
things.
I don't think it's uncommon or
inconsistent to feel like she might be blamed.
I don't think that would be consistent of
[sic] the events. No.
It is well established that expert testimony on the
credibility of a witness is not admissible under Rules 405(a) and
608 of the Rules of Evidence. State v. Heath, 316 N.C. 337, 340-
41, 341 S.E.2d 565, 567-68 (1986). In Heath, the prosecutor asked
the State's expert witness whether the victim was suffering from
any type of mental condition "which could or might have caused her
to make up a story about the sexual assault." Id. at 340, 341
S.E.2d at 567. The expert responded: "There is nothing in the
record or current behavior that indicates that she has a record of
lying." Id. The Supreme Court held that both the question and
answer were "fatally flawed." Id. at 341, 341 S.E.2d at 568. The Court explained that the question was "designed to elicit
an opinion of the witness as to whether [the victim] had invented
a story, or lied, about defendant's alleged attack on her." Id.
The Court noted further:
It is one thing to ask an expert in psychology
or psychiatry whether a victim fantasizes, but
it is another thing altogether to ask whether
a witness has made up a story, or lied. One
who fantasizes can honestly and subjectively
believe in the reality of the fantasized-about
occurrence, but "making up a story," or lying,
denotes an affirmative or conscious intent to
deceive, invent, or not tell the truth.
Id. at 342, 341 S.E.2d at 568. With respect to the expert's
answer, the Court explained that it "was not admissible since it
related to the likelihood of whether [the victim] was telling the
truth about the alleged sexual assault and thereby to the
likelihood that defendant committed the rape and sexual offenses of
which he was accused." Id.
On the other hand, this Court distinguished Heath in State v.
Teeter, 85 N.C. App. 624, 355 S.E.2d 804, appeal dismissed and
disc. review denied, 320 N.C. 175, 358 S.E.2d 67 (1987). The
Teeter prosecutor, in questioning the expert witness regarding his
assessment of the victim, asked: "[D]id you find any evidence of
any emotional disorder or psychoses which would impair her ability
to distinguish reality from fantasy?" Id. at 628-29, 355 S.E.2d at
807. The expert witness responded: "No, sir. She showed no
evidence of an emotional disorder which would impair her ability to
do so." Id. at 629, 355 S.E.2d at 807. This Court ruled that both
the question and answer were proper because: the question was limited to whether or not
[the victim] had any mental condition which
would generally affect "her ability to
distinguish reality from fantasy." It did not
call for an opinion as to her propensity for
telling the truth. The answer was within the
scope of [the expert's] expertise and did not
amount to an impermissible opinion with
respect to defendant's guilt or innocence.
Id.
As this Court has previously acknowledged, the "line between
proper and improper questioning can be quite narrow, especially in
the context of sexual assault and rape cases." State v. Marine,
135 N.C. App. 279, 283, 520 S.E.2d 65, 68 (1999). The question
posed by the prosecutor in this case would _ by focusing on Ms.
Hasklin's actual testimony and asking not only about fantasy, but
also whether she would have the ability "to make up" such a story
_ fall more on the Heath side of the line. The answer, however,
addresses more the general effect of Ms. Hasklin's mental condition
and more closely resembles Teeter.
(See footnote 1)
We need not conclusively decide, however, whether the trial
court improperly overruled defendant's objection since a review of
the record reveals that any error was harmless. Very shortly after
Dr. DiNome gave the challenged testimony on direct examination,
defense counsel began his cross-examination as follows:
Q . . . . I just want to be clear.
Are you giving a medical opinion as to theveracity of Ms. Hasklin's testimony in this
trial?
A No. I am just stating this as to
what she told me. Her reporting on what she
told me and my concerns about her mental
health.
Q So as to whether she was telling the
truth here the other day, you are not stating
an opinion as to whether she was telling the
truth at all?
A No. I am not.
Q I just wanted to be clear.
Defense counsel then elicited from Dr. DiNome his belief that a
report by Ms. Hasklin on another occasion that she had been robbed
of $400.00 had sounded "fishy" to him and that he had been
wondering whether she was involved with drugs.
Defense counsel then had Dr. DiNome read and reaffirm his note
that "[t]here is always something funny going on with [Ms.
Hasklin]. She never totally gives you the whole story." On
redirect, the State tried to address this statement by suggesting
that it did not mean that "what she tells you is false," but rather
"[y]ou just don't get the whole story." Dr. DiNome, however,
responded: "I wouldn't know. I can't always tell. If the hair
goes up, you wonder. Then you try to sort it out some other way."
Defense counsel proceeded to capitalize on the cross-examination
testimony in his closing argument:
I asked [Dr. DiNome], "Are you vouching for
Ms. Hasklin's credibility? Are you saying
that what she is saying is the truth?"
"No." . . .
. . . .
You know what? Not even her psychiatrist
believes Gwendolyn Hasklin.
. . . .
. . . In her psychiatrist's own words, "There
is always something funny going on with Gwen,
in that she never, never gives you the whole
story."
So why in the world would you folks think
that on the witness stand she has now deviated
from something _ that someone who has known
her for six years, has talked to her monthly
during a lot of that time. You heard his
opinion. He didn't just put it in his report.
He said it to you on the stand several times.
Why when this person, [her] psychiatrist,
say [sic] "There is always something funny
going on with Gwen. She never gives you the
whole story."
. . . .
I can't say it any better than her own
psychiatrist said it. "There is always
something funny going on with Gwen. She never
gives you the whole story."
You have absolutely no reason from the
evidence to consider that she gave you the
whole story.
In short, rather than expressing an expert opinion that Ms. Hasklin
was credible, Dr. DiNome's testimony was, in essence, used as an
expert opinion that she was not credible.
Defendant bears the burden of showing that there is "a
reasonable possibility" that had the challenged questions and
answers not been admitted "a different result would have been
reached" by the jury. N.C. Gen. Stat. § 15A-1443(a) (2005). In
light of Dr. DiNome's entire testimony, we do not believe thatdefendant has met this burden. Accordingly, this assignment of
error is overruled.
II
Defendant next argues that his motion to dismiss the charge of
first degree kidnapping should have been granted because the State
failed to present evidence tending to show that Ms. Hasklin was
confined, restrained, or removed in any way beyond what was
required to accomplish the rapes and sexual offenses. Our Supreme
Court has held that the legislature did not intend "to make a
restraint, which is an inherent, inevitable feature of [felonies
such as forcible rape and armed robbery], also kidnapping so as to
permit the conviction and punishment of the defendant for both
crimes."
State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351
(1978). As a result, the restraint, confinement, and removal of a
rape victim may constitute kidnapping only "if it is a separate,
complete act, independent of and apart from the rape."
State v.
Mebane, 106 N.C. App. 516, 532, 418 S.E.2d 245, 255,
appeal
dismissed and disc. review denied, 332 N.C. 670, 424 S.E.2d 414
(1992).
This Court has previously concluded that evidence tending to
show the rape victim was forced from one room to another is
sufficient asportation separate and independent of the elements of
rape to support a conviction for kidnapping.
State v. Blizzard,
169 N.C. App. 285, 290-91, 610 S.E.2d 245, 250 (2005). In this
case, Ms. Hasklin testified that after defendant had forced her to
have intercourse several times in the living room, there was aknock on the door. After that, defendant moved her to the bedroom
where he engaged in sexual intercourse again.
Defendant argues that moving Ms. Hasklin from the living room
to the bedroom was not an act separate from that needed for rape
because defendant was moving to a location "far more comfortable[]
for sexual activities." We disagree. Viewed in the light most
favorable to the State, a reasonable juror could have concluded
that although defendant could have continued to rape Ms. Hasklin in
her living room _ as he had already done _ he nevertheless ordered
her into her bedroom so that whoever had knocked on Ms. Hasklin's
door would be less likely to witness or hinder defendant's
continued sexual activities.
See State v. Rogers, 153 N.C. App.
203, 213, 569 S.E.2d 657, 664 (2002) (sufficient evidence of
removal existed when defendant attempted to rape victim in front
entryway but, upon becoming startled, got up and moved victim from
room to room),
disc. review denied, 357 N.C. 168, 581 S.E.2d 442
(2003). Because the evidence was sufficient to meet the
requirements of
Fulcher, the trial court properly denied the motion
to dismiss.
Defendant alternatively argues that his conviction for first
degree kidnapping subjected him to double jeopardy because the
State both (1) charged defendant with a sexual assault and (2) used
that very same sexual assault to elevate the kidnapping charge from
second to first degree.
See State v. Freeland, 316 N.C. 13, 21,
340 S.E.2d 35, 39 (1986) (concluding defendant, who was convicted
of both first degree kidnapping and sexual assault, was subjectedto double jeopardy because jury must have relied upon the sexual
assault in convicting defendant of first degree kidnapping). As
the State correctly notes, however, defendant neither raised this
issue before the trial court nor addressed double jeopardy in his
assignments of error. We may not, therefore, consider these
arguments on appeal.
See N.C.R. App. P. 10(a) (noting that "the
scope of review on appeal is confined to a consideration of those
assignments of error set out in the record on appeal");
State v.
Fuller, 166 N.C. App. 548, 555, 603 S.E.2d 569, 575 (2004)
(declining to consider double jeopardy argument when defendant did
not raise issue at trial).
III
Finally, defendant argues that the trial court erred by
allowing the prosecutor to ask Ms. Hasklin several leading
questions. A leading question is, quite simply, one that suggests
the answer.
State v. Smith, 135 N.C. App. 649, 655, 522 S.E.2d
321, 326 (1999),
disc. review denied, 351 N.C. 367, 543 S.E.2d 143
(2000). "Leading questions should not be used on the direct
examination of a witness except as may be necessary to develop his
testimony." N.C.R. Evid. 611(c). Nevertheless, "[r]ulings by the
trial judge on the use of leading questions are discretionary and
reversible only for an abuse of discretion."
State v. Riddick, 315
N.C. 749, 756, 340 S.E.2d 55, 59 (1986). Moreover, on appeal, a
defendant bears the burden of establishing prejudice resulting from
the improper use of leading questions.
State v. Brice, 320 N.C.
119, 123, 357 S.E.2d 353, 354 (1987). Here, defendant specifically disputes only two inquiries by
the State:
(See footnote 2)
Q [State's Attorney] During the course
of the time [defendant] was in your house,
what, if anything, did he say to you about
asking for money?
. . . .
THE WITNESS [Ms. Hasklin]: After he got
through raping me the first, second, third,
and fourth time, he asked me, "Where is the
money?"
I said, "My money is in the bank. I
don't carry money."
. . . .
Q . . . . During the time that
[defendant] was in your apartment, what, if
anything, did he say to you about whether he
had consumed any drugs or alcohol?
A I wasn't consuming _
Q I wasn't asking about you yet.
Please listen to my question. What did
[defendant] say, if anything, to you about
when he had consumed any drugs or alcohol
before he came to your place?
. . . .
A He said he was drunk and on crack.
Defendant's objections after each question were overruled.
Whether these are leading questions is debatable. In any
event, even assuming
arguendo that they were leading, we see noreason to conclude the trial court abused its discretion by
permitting the State to question Ms. Hasklin in this way. Ms.
Hasklin had testified that over the "three to four hours" defendant
was in her apartment, he spoke to her about sex, drugs, alcohol,
Ms. Hasklin's bills, wanting to be her boyfriend, and a variety of
other topics. In such a situation, "[a]llowing the prosecutor to
direct the witness's attention to a certain topic through the use
of leading questions [i]s not an abuse of discretion."
Smith, 135
N.C. App. at 655, 522 S.E.2d at 326. Moreover, defendant makes no
serious effort to establish prejudice, and we can discern none.
No error.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
Footnote: 1