Appeal by Defendant from judgment entered 23 October 2007 by
Judge John O. Craig, III in Superior Court, Guilford County. Heard
in the Court of Appeals 19 November 2008.
Attorney General Roy Cooper, by Assistant Attorney General
Jane Rankin Thompson, for the State.
Robert W. Ewing for Defendant.
McGEE, Judge.
A jury found Yaw Osei Adu (Defendant) guilty on 6 August 2004
of first-degree statutory rape and indecent liberties with a child.
The State's evidence at trial tended to show that Defendant was
married to Nellie Adu (Ms. Adu) in 1996. Defendant lived with Ms.
Adu and her daughter, S.A., after the marriage. S.A. testified at
trial that in April 2002 she asked Defendant to buy her some
clothes and a new bra because all of her bras were torn. Defendant
told S.A. that he needed to see her breasts to see what size they
were. S.A. lifted her shirt and took off her bra to show Defendant
her bra size. S.A. testified that Defendant started sucking her
breasts.
S.A. testified that Defendant picked her up and carried herover Defendant's shoulder into her bedroom. Defendant placed S.A.
on her bed, climbed on top of her and started sucking her breasts
again. Defendant kissed S.A. on her mouth and started "rocking
back and forth" on top of her. After a few minutes, Defendant
unzipped his pants, pulled down S.A.'s pants, and tried to insert
his penis into S.A.'s vagina. S.A. told Defendant that this hurt
her. Defendant waited a few moments before again trying to insert
his penis into S.A.'s vagina. S.A. told Defendant that "it still
hurts," and S.A. pulled her pants up. S.A. testified that
Defendant turned S.A. over onto her stomach and started "rocking
back and forth on [S.A.'s] rear end." S.A. told Defendant she
needed to go to the bathroom. In the bathroom, S.A. "prayed
. . . [Defendant would] stop." S.A. returned to the bedroom and
Defendant again "rock[ed] back and forth" on top of her. S.A.
asked Defendant to stop, and he stopped. S.A. testified that she
made Defendant place his hand on the Bible and swear he would never
touch her again. Defendant made S.A. swear to never tell anyone
because if she did, Defendant and Ms. Adu "would have to get a
divorce." S.A. testified that she felt "too dirty" to tell Ms. Adu
what had happened when Ms. Adu returned home from work that day.
S.A. testified that on a later occasion, Defendant hugged S.A.
and began kissing her while Ms. Adu was out of the house at work.
Defendant laid S.A. down and began rocking back and forth on top of
her as he had done before. S.A. testified she could feel
Defendant's penis through his blue jeans. S.A. said she again felt
too dirty to tell Ms. Adu what happened that day. About a week later, S.A. told Ms. Adu that Defendant had
rocked back and forth on top of her, and that he had kissed her on
the mouth and breasts. The next day, Ms. Adu asked S.A. to tell
her what happened in the presence of Defendant. S.A. told Ms. Adu
and Defendant that Defendant had rocked back and forth on top of
her and sucked her breasts. Defendant said that he and S.A. were
just wrestling. S.A. testified that it was not wrestling.
S.A. further testified that she accompanied Defendant and Ms.
Adu to speak with their pastor, Pastor Longobardo. Pastor
Longobardo testified that he spoke with Defendant on 12 July 2002,
and that Defendant had told him he had had "some bodily contact"
with S.A. Defendant told Pastor Longobardo that although he used
his hands while touching S.A., no penetration had occurred. Pastor
Longobardo also testified that Defendant said that none of the
contact he had with S.A. would be viewed as inappropriate in his
home country.
Sheronda Harris (Harris), an investigator with the child
protective services division of the Guilford County Department of
Social Services (DSS), testified for the State. Harris testified
that on 18 July 2002, Ms. Adu reported inappropriate sexual conduct
had occurred between S.A. and Defendant. Harris interviewed
Defendant at his home and Defendant told Harris he used to wrestle
with S.A. "like she was a boy." Defendant told Harris he had held
S.A.'s breasts while wrestling and that he had ended up on top of
her at one point. He admitted his conduct was inappropriate.
Harris testified that after speaking with Defendant, she spokewith S.A. that same day. S.A. told Harris that she "had had sex
with [Defendant]" based on overhearing girls at school say sex was
how babies were made. Harris allowed Defendant to remain in the
home at that point, but he was not permitted to have any
unsupervised contact with S.A. The following day, 19 July 2002,
Harris asked Defendant to move out of the family home. Harris
referred S.A. to Family Services of the Piedmont and also to Dr.
Angela Stanley (Dr. Stanley) at the Child Evaluation Clinic of the
Moses Cone Health System, for a medical exam. After DSS received
the results from Dr. Stanley's examination, DSS substantiated its
report of sexual abuse by Defendant.
Dr. Stanley testified that a genital examination of S.A.
revealed a notch or healed tear at her hymen's 9:00 o'clock
position, which was consistent with genital penetration. Based on
her physical examination of S.A., Dr. Stanley found a possible
certainty of sexual maltreatment.
Ms. Adu testified on voir dire that her father, S.A.'s
grandfather, had lived in their family home until 1998. Ms. Adu
testified that they lived in a two-bedroom home, and that her
father chose to move out after the birth of Ms. Adu's other
daughter because there was so little room. During the summer of
1999, after Ms. Adu's father had moved out of the home, Ms. Adu
took S.A. and a friend to visit her father. About a month after
this visit, S.A. told Ms. Adu that she did not want to visit her
grandfather again because he had kissed her and "'stuck his tongue
in [S.A.'s] mouth.'" Ms. Adu testified that she had found a stainon S.A.'s grandfather's underwear and blood on S.A.'s underwear.
Ms. Adu stated the spot on S.A.'s grandfather's underwear was the
result of a boil on his buttocks, and that the blood on S.A.'s
underwear was from S.A.'s beginning her period.
Defendant filed a motion pursuant to N.C. Gen. Stat. § 8C-1,
Rule 412 requesting that the trial court allow him to present
evidence of prior sexual abuse of S.A. by her grandfather as an
alternative explanation for the trauma to her vaginal area. At the
Rule 412 hearing, Defendant testified that S.A.'s grandfather had
lived in their home until Ms. Adu found blood on S.A.'s panties and
on S.A.'s grandfather's underwear. Defendant testified that Ms.
Adu confronted S.A.'s grandfather and kicked him out of the
residence because "he had raped [S.A.]" Defendant also presented
as evidence S.A.'s taped interview in which S.A. stated that
"[w]hat happened to me [with Defendant] is something similar to
what happened . . . . with my grandfather."
During the Rule 412 hearing and at trial, Defendant argued
that the fondling by S.A.'s grandfather caused the trauma to S.A.'s
vagina. Upon a finding that there was no credible evidence of
penetration by S.A.'s grandfather that could serve as an alternate
explanation to the vaginal trauma, the trial court denied
Defendant's Rule 412 motion. Thus, the trial court ruled that
Defendant could not present any evidence concerning S.A.'s
grandfather's prior sexual abuse of S.A. and redacted any mention
of the prior sexual abuse stated in S.A.'s videotaped statement and
in Dr. Stanley's medical report. Defendant testified in his own defense and denied the
allegations. Defendant also testified that he was a third-degree
black belt in Tae Kwon Do and that he did touch S.A. when giving
her Tae Kwon Do lessons. However, Defendant stated that he did not
touch S.A. in an inappropriate way.
During the State's recross-examination of Defendant, the
following exchange occurred:
THE STATE: [Defendant], you testified that
you were never given an opportunity to provide
a written statement to anybody; isn't that
right?
DEFENDANT: Yes.
THE STATE: And isn't it true, [Defendant],
that when you took [S.A.] to Family Services
of the Piedmont that you had a conversation
with Detective Hines [of the Greensboro Police
Department] in the parking lot?
DEFENDANT: Yes. I didn't know she was [a]
detective at the time.
. . . .
THE STATE: And she said that if you came [to]
meet her, you'd have a chance to tell your
side of the story, didn't she?
. . . .
DEFENDANT: She didn't explain it. She told me
to come to her office.
THE STATE: And did you ever go into her office
and tell her your side of the story?
. . . .
DEFENDANT: Yeah. When I was going, my wife
came to me and told me that we need to get an
attorney.
THE STATE: Did you ever go in and meet with
Detective Hines and tell her your side of thestory?
DEFENDANT: No.
During the State's closing argument, the State referenced
Defendant's failure to speak with Detective Hines. The State
asked: "Why didn't [Defendant] go and talk to Detective Hines when
she offered him the opportunity to tell his side of the story?"
Defendant objected to this statement but his objection was
overruled.
The jury found Defendant guilty of first-degree statutory rape
and indecent liberties with a child. Sentencing of Defendant was
delayed because Defendant's whereabouts were unknown after 5 August
2004. Defendant was sentenced on 16 October 2007 to four
consecutive active sentences with a combined total term of
imprisonment of not less than 227 months and not more than 284
months with the North Carolina Department of Correction. Defendant
appeals.
I.
Defendant first argues that the trial court erred by excluding
evidence of S.A.'s grandfather's sexual abuse of S.A. pursuant to
Rule 412. We disagree.
N.C. Gen. Stat. § 8C-1, Rule 412(b)(2) (2007) provides that:
(b) Notwithstanding any other provision of
law, the sexual behavior of the complainant is
irrelevant to any issue in the prosecution
unless such behavior:
(2) Is evidence of specific instances of
sexual behavior offered for the purpose of
showing that the act or acts charged were not
committed by the defendant[.]
Defendant argues that evidence of S.A.'s sexual abuse by
S.A.'s grandfather was relevant pursuant to N.C.G.S. § 8C-1, Rule
412(b)(2) as an alternative explanation for the notching in S.A.'s
vaginal area. In
State v. Ollis, 318 N.C. 370, 376, 348 S.E.2d
777, 781, (1986), a child testified she had been raped by two men
on the same day, and our Supreme Court held that it was error to
exclude evidence of the second rape in the defendant's trial.
Additionally, our Court held in
State v. Wright, 98 N.C. App. 658,
662, 392 S.E.2d 125, 128 (1990), that it was error for the trial
court to exclude evidence that the child victim masturbated with a
washcloth and her fingers, when this would have been an alternative
explanation for the child's red and irritated genitalia.
Unlike in
Ollis and
Wright, the excluded evidence in the case
before us is insufficient to establish an alternative explanation
for the physical findings in S.A.'s vaginal area. The evidence of
sexual abuse of S.A. by her grandfather tended to show that S.A.'s
grandfather had kissed S.A., but there was no evidence of abuse to
S.A.'s vaginal area by her grandfather. The only evidence of
S.A.'s grandfather's abuse that could have provided an alternative
explanation for the notching on S.A.'s vaginal area was the
evidence that Ms. Adu found blood on S.A.'s panties and on S.A.'s
grandfather's underwear. However, Ms. Adu testified that the blood
stain on S.A.'s panties was from S.A.'s period and the stain on
S.A.'s grandfather's underwear was from a boil on his buttocks.
Defendant presented no other evidence to refute Ms. Adu's testimony
as to the stains. Accordingly, the evidence of the stains onS.A.'s panties and S.A.'s grandfather's underwear do not provide
any evidence that the abuse by S.A.'s grandfather involved
penetration. Thus, S.A.'s abuse by her grandfather would not have
provided an alternative explanation for the notching on S.A.'s
vaginal area and was properly excluded pursuant to Rule 412.
Defendant's first assignment of error is overruled.
II.
Defendant also argues that the trial court erred in allowing
the State to question Defendant about his failure to make a
statement to law enforcement and in allowing the State to reference
Defendant's silence in the State's closing argument. We agree.
However, we hold that this error was harmless beyond a reasonable
doubt.
In
State v. Boston and Satterwhite, ___ N.C. App. ___, ___,
663 S.E.2d 886, 896 (2008), our Court held that a defendant's
silence could not be used as substantive evidence of the
defendant's guilt. In
Boston and Satterwhite, the defendants were
convicted of first-degree arson after the defendants and an
accomplice set fire to a house.
Id. at ___, 663 S.E.2d at 889-90.
The trial court overruled defendant Boston's objection to the
State's questioning of the accomplice about Boston's failure to
submit to police questioning prior to Boston's arrest.
Id. at ___,
663 S.E.2d at 893. We held that although the trial court erred in
allowing the use of Boston's silence as substantive evidence of her
guilt, the error was harmless beyond a reasonable doubt.
Id. at
___, 663 S.E.2d at 897. In the present case, the State argues that the references the
State made at trial about Defendant's silence were used solely for
impeachment purposes and not as substantive evidence of Defendant's
guilt. However, the State also asked:
If [Defendant] didn't do anything, why didn't
he tell [Ms. Adu] that when she first told
him? Remember, she said he didn't deny it?
He didn't really fully admit it, but he didn't
deny it. And when he went to Pastor
Longobardo, he didn't say, "I absolutely did
not do this." When he saw Sheronda Harris, he
didn't say, "I did not do this." Why didn't
he go and talk to Detective Hines when she
offered him the opportunity to tell his side
of the story?
Similar references by the State to a defendant's silence
during closing arguments have been held to violate a defendant's
Fifth Amendment right against self-incrimination.
See U.S. Const.
Amend. V.
In
State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273
(2001), the State referenced the defendant's post-arrest silence
after the defendant was convicted of felony murder during
sentencing arguments to the jury.
The State used the defendant's
silence in an attempt to prove the defendant had the mental
capacity to appreciate the criminality of his actions.
Id. The
State argued the following to the jury:
He started out that he was with his wife and
child or wife and children or something that
morning. We know he could talk, but he
decided just to sit quietly. He didn't want
to say anything that would "incriminate
himself." So he appreciated the criminality
of his conduct all right.
Ward, 354 N.C. at 266, 555 S.E.2d at 273. Our Supreme Court held
that the above comments on the defendant's silence violated thedefendant's rights under both the N.C. and U.S. Constitutions.
Id.
In
State v. Hoyle, 325 N.C. 232, 382 S.E.2d 752 (1989), the
defendant was on trial for first-degree murder and argued that he
had acted in self-defense. The State made the following statement
in its closing argument:
Who said anything, until yesterday, about [the
victim] having grabbed his gun? Who? When
was there an opportunity to say that? For
months and that night. You think what you
would do. If somebody had severely beaten
you, if somebody had caused you to think that
you had to defend yourself, if somebody had
struggled with you over a gun and had
accidently shot themselves, don't you think,
when the police were there and polite and nice
and trying to get to the truth . . . don't you
think you would tell him then?
Id. at
236, 382 S.E.2d at 754. Our Supreme Court held that the
State's use of the defendant's silence violated the defendant's
constitutional right to remain silent.
Id. at 236-37, 382 S.E.2d
at 754.
In
State v. Shores, 155 N.C. App. 342, 573 S.E.2d 237, (2002),
our Court granted the defendant a new trial and held that the State
impermissibly questioned why the defendant, charged with second-
degree murder and claiming self-defense, had failed to tell anyone
prior to testifying at trial that the victim had threatened his
life.
Id. at 351-52, 573 S.E.2d at 242-43. The State in
Shores
made the following statement during its closing argument:
Ladies and gentleman of the jury, what would
be wrong when you're represented by a lawyer
[with] calling up the police or having the
lawyer call them up and say "let me tell you
some more, let me tell you the rest of this?"
He didn't do that. He didn't call the DA's
office. He didn't call any police officer. He didn't call the investigating officer. He
didn't do any of that. Right on that stand he
said "I have told this story for the first
time today other than [to] my lawyers."
Ladies and gentlemen of the jury, ask yourself
now "why on earth would I wait until now to
try to tell that story if I had that kind of
story? Why would I do that?"
Shores, 155 N.C. App. at 348, 573 S.E.2d at 240.
As in
Hoyle,
Ward, and
Shores, the State in this case
referenced Defendant's silence to insinuate that an innocent man
would have freely spoken with Detective Hines, and that Defendant's
failure to do so permitted an inference of guilt. We hold the
State's comments during its closing argument violated Defendant's
Fifth Amendment right against self-incrimination.
The State argues that even if it was error to allow the State
to question Defendant about his lack of statements to law
enforcement, and to mention this failure during closing arguments,
it was harmless beyond a reasonable doubt. "A violation of the
[d]efendant's rights under the Constitution of the United States is
prejudicial unless the appellate court finds that it was harmless
beyond a reasonable doubt. The burden is upon the State to
demonstrate, beyond a reasonable doubt, that the error was
harmless." N.C. Gen. Stat. § 15A-1443(b) (2007). In
Boston and
Satterwhite, our Court set forth several factors to be considered
in determining whether the constitutional error of using a
defendant's silence as substantive evidence of guilt was harmless
beyond a reasonable doubt.
See Boston and Satterwhite, ___ N.C.
App. at ___, 663 S.E.2d at 896. These factors included whether the State's other evidence of guilt
was substantial; whether the State emphasized
the fact of [the defendant's] silence
throughout the trial; whether the State
attempted to capitalize on [the defendant's]
silence; whether the State commented on [the
defendant's] silence during closing argument;
whether the reference to [the defendant's]
silence was merely benign or
de minimis; and
whether the State solicited the testimony at
issue.
Id. at ___, 663 S.E.2d at 896-97.
In applying these factors to the present case, we hold that
the trial court's error was harmless beyond a reasonable doubt. In
addition to Defendant's silence, the State presented substantial
evidence of Defendant's guilt based on S.A.'s account of the
events, as well as the results of Dr. Stanley's physical
examination which she found to reveal a possible certainty of
sexual maltreatment. Additionally, the State presented the
testimony of Harris who testified that Defendant admitted to
holding S.A.'s breasts while wrestling and that Defendant had ended
up on top of S.A. at one point. The State also presented the
testimony of Pastor Longobardo who testified that Defendant told
him he had had bodily contact with S.A.
Other
Boston and Satterwhite factors
support the conclusion
that the trial court's error was harmless beyond a reasonable doubt
in this case. The State made mention of Defendant's silence to law
enforcement briefly on two occasions during the trial but these
references were
de minimis.
See id. Also, it does not appear from
the record or the transcript that the State attempted to capitalize
on Defendant's silence.
See id. Only two of the
Boston and Satterwhite factors support a
conclusion that the trial court's error was prejudicial: (1) the
State referenced Defendant's silence to law enforcement during its
closing argument, and (2) the State solicited Defendant's testimony
regarding his silence.
See id. However, having considered all of
these factors, the State presented substantial evidence of
Defendant's guilt other than Defendant's silence to law
enforcement, and the error of referencing Defendant's silence was
not prejudicial. Thus, we conclude "beyond a reasonable doubt that
the jury would have reached the same verdict even had the trial
court disallowed the contested testimony."
Id. at ___, 663 S.E.2d
at 897.
No prejudicial error.
Judges BRYANT and GEER concur.
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