Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 November 2007
STATE OF NORTH CAROLINA
v. Iredell County
No. 05 CRS 54184
JOHN MICHAEL WELBORN
Appeal by defendant from judgment entered 7 December 2006 by
Judge James E. Lanning in Iredell County Superior Court. Heard in
the Court of Appeals 16 November 2007.
Attorney General Roy Cooper, by Associate Attorney General
LaToya B. Powell, for the State.
Michael J. Reece, for defendant-appellant.
John Michael Welborn (defendant) appeals from judgment
entered after a jury found him to be guilty of first-degree sexual
offense pursuant to N.C. Gen. Stat. § 14-27.4(a)(1). We find no
The State's evidence tended to show that on 1 December 2004,
J.T., an eight-year-old girl, was outside and riding her bike near
defendant's house after school. J.T. knew defendant as a friend of
her family. Defendant was seventeen years old. Defendant
frequently visited J.T.'s house to see her older brother, K.T., who
was two years younger than defendant. Defendant asked J.T. if she
would help him fix his bike. J.T. stopped and helped defendant. Subsequently, defendant and J.T. went inside defendant's house to
get something to drink. Before getting J.T. a drink, defendant
went to the bathroom.
After defendant emerged from the bathroom, J.T. started to get
up from the couch. Defendant pushed her down with his arm and held
onto her shirt or chest. J.T. told defendant to let her up, but he
said, no. Defendant pulled J.T.'s pants and panties down and
began to touch her. While holding her down, defendant inserted two
of his fingers inside J.T.'s private and was moving them
around, which hurt J.T. J.T. was screaming and crying but
defendant would not stop. J.T. got up, pulled up her pants, and
started to run outside.
Before J.T. reached the outside, defendant told her that if
[she] told anybody he was going to kill [her]. J.T. believed
defendant's threat. When J.T. got home, she went in her room and
cried, but did not tell her mother what defendant had done. J.T.
was afraid to talk about what had happened because she thought if
her brother, K.T., found out, he would confront defendant, and
defendant would kill her.
Sometime after Christmas 2004, J.T. told two of her friends
about defendant touching her. One night, while J.T. was sleeping,
K.T. woke her up and asked whether it was true. J.T. responded,
yes. The next morning, J.T.'s mother asked her about the
incident. J.T. told her mother that defendant had touched her.
J.T. also told her father when he arrived home that night. J.T.'sparents called the police and took her to the Dove House to be
At trial, J.T. testified that she was afraid of defendant and
did not want him coming to her house anymore. J.T. stated she did
not sleep well at night and dreamed that defendant might kill her.
J.T. also testified her school grades declined after the incident.
K.T. testified that he and defendant had been friends for
about two years prior to the incident. K.T. and defendant did not
attend school together, but saw each other after school or on the
weekends. At some point, K.T. received a telephone call from a
friend, who told him that he needed to talk to J.T. about something
that happened between her and defendant. K.T. subsequently awoke
J.T. during the night and asked her if it was true. J.T. told
him it was true and started crying and wanting [him] to hold her.
That same evening, K.T. told their mother what had happened to J.T.
Some time after a police report had been filed, K. T. and his
friend B.W., saw defendant in the neighborhood and asked him if he
did it. At first, defendant said, no. B.W. stated to defendant,
I'm not going to ask you but one more time, did you do it or did
you not. Defendant responded Yes I did, and left.
Linda Thompson, Assistant Director of the Emergency Department
at Iredell Memorial Hospital and a S.A.N.E. Nurse at the Dove House
(Nurse Thompson), qualified as an expert in the field of sexual
assault examination. Nurse Thompson performed a sexual assault
exam on J.T. on 6 May 2005 at the Dove House. The results of the
exam were normal. Nurse Thompson testified a normal exam was notinconsistent with an allegation of vaginal penetration. Nurse
Thompson further testified that a lapse in time between the date of
the injury and the date of the examination has an effect on the
findings because the vaginal area is very quick to heal and repair
J.T.'s parents testified regarding J.T.'s performance in
school and the effect of the incident on her. Her mother noticed
that J.T.'s grades declined and that she was very whiny and
crying all the time. J.T.'s father also witnessed the changes in
J.T., including her declining grades and that she wasn't as
spirited as she was before. Once the allegations against
defendant became publically known, J.T. began being teased at
school. J.T. transferred to a new elementary school and her grades
Defendant moved for the charges against him to be dismissed.
The trial court denied his motion. Defendant chose not to testify
on his own behalf. The jury requested to be allowed to view J.T.'s
school records, which had been admitted as exhibits. The trial
court granted this request.
On 7 December 2006, a jury found defendant to be guilty of
first-degree statutory sexual offense. The trial court sentenced
defendant to a minimum term of 192 months and a maximum term of 240
months imprisonment. Defendant appeals.
Defendant argues the trial court erred by: (1) allowing the
jury to view J.T.'s school records without his express consent; (2)referring to J.T. as a victim during its jury instructions; and (3)
entering judgment when the indictment did not allege every element
of first-degree sexual offense.
III. School Records
Defendant argues the trial court erred by permitted the jury
to view J.T.'s school records during their deliberations without
his consent. We disagree.
A review of the transcript reveals that after receipt of the
jury's request to see the records, the trial court held an off-the-
record bench conference with the parties. In an effort to enter
the results of this bench conference into the record, the following
THE COURT: [The jury is] out. For the
record, I'm not sure this got in the record.
[The jury] sent us a note. They want copies
of all report cards; that is, school
information. Counsel for the State and the
Defense - - where is my Defense Lawyer? Listen
[DEFENSE COUNSEL]: I'm sorry, Judge.
THE COURT: You-all [sic] stipulating that
those exhibits may be submitted to the jury,
[PROSECUTOR]: Yes, your Honor. For the record
they are State's Three, Four, and Five. All
the records relating to the report cards.
This exchange indicates that both parties consented to
providing the records to the jury during an off-the-record
conference. Further, when the trial court reiterated the parties'
stipulation into the record, defense counsel made no objection to
the trial court's representation of the agreement. We find thatthis assignment of error is without factual support in the record.
This assignment of error is overruled.
IV. Jury Instructions
Defendant argues the trial court committed plain error by
referring to the complaining witness as the victim in its jury
instructions. We disagree.
A. Standard of Review
Our Supreme Court defined plain error as a fundamental
error, something so basic, so prejudicial, so lacking in its
elements that justice cannot have been done, or grave error which
amounts to a denial of a fundamental right of the accused, or
error resulting in a miscarriage of justice or in the denial to
appellant of a fair trial. State v. Odom, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676
F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed.
2d 513 (1982)).
Our Supreme Court has held that a trial court's references to
a prosecuting witness as the victim does not constitute plain
error. See State v. McCarroll, 336 N.C. 559, 566, 445 S.E.2d 18,
22 (1994) (We cannot hold that the reference to the prosecuting
witness as the victim was an error so basic and lacking in its
elements that justice could not have been done.); State v. Cabe,
136 N.C. App. 510, 514-515, 524 S.E.2d 828, 832, appeal dismissed,
disc. rev. denied, 351 N.C. 475, 543 S.E.2d 496 (2000). This
assignment of error is overruled.
Defendant argues the short form indictment filed in this
case was insufficient. Defendant concedes that the indictment
complies with the form set forth in N.C. Gen. Stat. § 15-144.2(b).
Our Supreme Court has consistently held indictments based on
[N.C. Gen. Stat. § 15-144.2] are in compliance with both the North
Carolina and United States Constitutions. State v. Wallace, 351
N.C. 481, 504-505, 528 S.E.2d 326, 341, cert. denied, 531 U.S.
1018, 148 L. Ed. 2d 498 (2000); State v. Randolph, 312 N.C. 198,
210, 321 S.E.2d 864, 872 (1984); State v. Lowe, 295 N.C. 596, 604,
247 S.E.2d 878, 883-84 (1978).
Defendant argues this case law is inconsistent with the
holding of the United States Supreme Court's holding in Jones v.
United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999). Defendant
has wholly failed to provide this Court with any argument in
support of this contention. Accordingly, we will not address it.
See N.C. R. App. P. 28(b)(6) (requiring that an appellant's brief
contain an argument as to each assignment of error). This
assignment of error is dismissed.
The trial court did not err in allowing the jury to view
J.T.'s school records without objection from defendant during an
off-the-record conference. Defendant failed to preserve and has
not shown that addressing J.T. as the victim in the jury
instructions rose to the level of plain error. Defendant failed to
support his argument that the indictment was insufficient. Defendant received a fair trial free from prejudicial errors he
preserved, assigned, and argued and failed to show any plain error
in the jury instructions.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***