State v. Scarboro ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-847
No. COA22-354
Filed 20 December 2022
Currituck County, Nos. 19CRS320-39, 19CRS50693-94
STATE OF NORTH CAROLINA
v.
KEVIN MARCELL SCARBORO
Appeal by Defendant from judgment entered 10 September 2021 by Judge
Wayland J. Sermons, Jr., in Currituck County Superior Court. Heard in the Court of
Appeals 30 November 2022.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Mary L.
Lucasse, for the State-Appellee.
Mark Montgomery for Defendant-Appellant.
COLLINS, Judge.
¶1 Defendant Kevin Marcell Scarboro appeals from judgment entered upon jury
verdicts of guilty of the following: five counts of second-degree rape, one count of
statutory rape of a child by an adult, three counts of statutory sexual offense with a
child by an adult, two counts of statutory rape of a child 15 years or younger, three
counts of statutory sexual offense with a child 15 years or younger, fourteen counts
of sexual activity by a substitute parent, and sixteen counts of indecent liberties with
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2022-NCCOA-847
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a child. This appeal only involves Defendant’s convictions for statutory sexual offense
with a child by an adult and statutory sexual offense with a child 15 years or younger
with two of three victims. Defendant argues that the trial court erroneously defined
sexual act in its jury instructions which allowed the jury to convict Defendant of
sexual offenses not supported by the evidence. Although Defendant has failed to
properly preserve this issue for appellate review, we elect in our discretion under Rule
2 of the North Carolina Rules of Appellate Procedure to review the issue and conclude
that the trial court did not plainly err in its jury instruction defining sexual act.
I. Procedural History and Factual Background
¶2 Defendant was indicted for multiple counts of second-degree rape, statutory
rape of a child by an adult, statutory sexual offense with a child by an adult, statutory
rape of a child 15 years or younger, statutory sexual offense with a child 15 years or
younger, sexual activity by a substitute parent, and indecent liberties with a child.
The case proceeded to trial, and the evidence tended to show the following: R.P., K.P.,
and M.P.1 were Defendant’s stepchildren. R.P. testified that, beginning when she
was approximately ten years old, Defendant began regularly touching her vagina
with his hands and mouth, and he would also touch his penis to her buttocks while
rocking back and forth. K.P. testified that, beginning when she was approximately
1 Pseudonyms are used to protect the identity of the child victims.
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eight years old, Defendant began touching her vagina, and it became “almost an
everyday occurrence” that Defendant would use his fingers, mouth, or sex toys on her
vagina. At one point, Defendant also had sexual intercourse with K.P. M.P. testified
that it was “pretty much a daily occurrence” for Defendant to touch her vagina with
his hands and his mouth, and, after taking her virginity at fifteen years old, it “ended
up progressing to an almost daily occurrence” for Defendant to have sexual
intercourse with her. The jury was shown video recordings of two interviews
Defendant gave after his arrest, during which he described what he did with R.P. and
K.P. as “touching, pointing out, showing them, licking.” Defendant said that he would
“show” R.P. with his hand because she would get tired of using hers, and that he tried
using his mouth on her, but she said she liked the hand better. Defendant admitted
that this happened with R.P. around ten times over the course of a few months and
said that the last time he had sexual contact with M.P. was the week that he got
arrested. Defendant ended his first interview by stating that “[w]hatever my girls
told you, man . . . I would never contradict my girls. They don’t lie.”
¶3 During the jury charge conference, Defendant did not object to the trial court’s
proposed jury instructions, nor did he request any additional instructions. Likewise,
after jury instructions were given but before the jury began deliberating, the trial
court asked Defendant whether there were any additions or corrections to the jury
charge and Defendant responded, “No, Your Honor.” The jury convicted Defendant
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on all charges, and Defendant was sentenced to multiple extensive consecutive prison
terms. Defendant timely appealed.
II. Discussion
¶4 Defendant contends that “[t]he trial court erred in instructing the jury that it
could convict [Defendant] of sexual offense against R.P. and M.P. based on acts not
supported by the evidence” by defining sexual act to include penetration, cunnilingus,
or fellatio where there was no evidence of fellatio or vaginal penetration as to R.P.
and no evidence of fellatio as to M.P. (capitalization altered).
¶5 Our appellate rules make clear that “to preserve an issue for appellate review,
a party must have presented to the trial court a timely request, objection, or motion[.]”
N.C. R. App. P. 10(a)(1) (2021). Moreover, “[a] party may not make any portion of the
jury charge or omission therefrom the basis of an issue presented on appeal unless
the party objects thereto before the jury retires to consider its verdict . . . .” N.C. R.
App. 10(a)(2) (2021). Where a defendant properly objects at trial to jury instructions,
a defendant’s arguments “challenging the trial court’s decisions regarding jury
instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458,
466, 675 S.E.2d 144, 149 (2009) (citations omitted). “[A]n error in jury instructions
is prejudicial and requires a new trial only if ‘there is a reasonable possibility that,
had the error in question not been committed, a different result would have been
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reached at the trial out of which the appeal arises.’” State v. Castaneda, 196 N.C.
App. 109, 116, 674 S.E.2d 707, 712 (2009) (quoting N.C. Gen. Stat. § 15A-1443(a)).
¶6 Unpreserved issues relating to jury instructions in criminal cases may
nevertheless be reviewed for plain error where “the judicial action questioned is
specifically and distinctly contended to amount to plain error.” N.C. R. App. P.
10(a)(4) (2021).
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice—that, after examination of the entire
record, the error had a probable impact on the jury’s
finding that the defendant was guilty. Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (quotation marks
and citations omitted). Where a defendant fails to specifically and distinctly contend
that the jury instruction amounted to plain error, he is not entitled to appellate
review under this rule. State v. Smith, 269 N.C. App. 100, 105, 837 S.E.2d 166, 169
(2019) (citation omitted).
¶7 In this case, Defendant did not object at trial to the jury instruction he now
challenges. Furthermore, Defendant fails to “specifically and distinctly” contend that
the jury instruction amounted to plain error. N.C. R. App. P. 10(a)(4). Defendant
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asserts that the standard of review is, in its entirety, as follows: “Arguments
challenging a trial court’s decision regarding jury instructions are reviewed de novo.
State v. Osorio, 196 N.C. App. 458, 466 (2019).” Defendant’s standard of review is
incomplete and incorrect, and Defendant fails to assert the plain error standard
anywhere in his brief.
¶8 In the last paragraph of his argument, Defendant asserts,
The jury was out for only 34 minutes. It returned to the
courtroom with 44 guilty verdicts. It is beyond belief that
it “deliberated” and reached unanimity on each of those 44
charges in that time. It is probable that, had it been
required to be unanimous as to each verdict, it would not
have been able to. Even under the traditional plain error
standard, the convictions of [Defendant] for sexual offense
as to R.P. and M.P. must be vacated.
(emphasis added). Yet, in his conclusion immediately following, Defendant asserts
error under the preserved standard: “There is a reasonable likelihood that
[Defendant] was convicted of at least three counts of first-degree sexual offense based
on sex acts not in evidence. Even under the recently adopted plain error standard,
those convictions should be set aside.” (emphasis added).
¶9 While Defendant includes the term “plain error” at the end of his brief,
Defendant fails to assert that the standard of review is plain error and ultimately
fails to apply the plain error standard. Accordingly, Defendant’s argument is not
properly before this Court. State v. Grooms, 353 N.C. 50, 66, 540 S.E.2d 713, 723
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(2000) (“[W]hile defendant’s assignment of error includes plain error as an
alternative, he does not specifically argue in his brief that there is plain error in the
instant case. Accordingly, defendant’s argument is not properly before this Court.”).
Nonetheless, we elect in our discretion under Rule 2 of the North Carolina Rules of
Appellate Procedure to review the issue.
¶ 10 Defendant’s sole argument on appeal is that “[t]he trial court erred in
instructing the jury that it could convict [Defendant] of sexual offense against R.P.
and M.P. based on acts not supported by the evidence.” (capitalization altered).
Specifically, Defendant argues that the trial court allowed for nonunanimous verdicts
by “not requiring the jury to set out the three specific acts it unanimously found that
[Defendant] committed as to each complainant,” and because of this, “there is no way
to determine whether one or more jurors convicted [Defendant]” of acts “not
supported by the evidence.”
¶ 11 A defendant is guilty of statutory sexual offense with a child by an adult and
statutory sexual offense with a person who is 15 years of age or younger if certain
statutory age requirements are met and the defendant engages in a “sexual act” with
the victim. See N.C. Gen. Stat. § 14-27.28 (2018); N.C. Gen. Stat. § 14-27.30 (2018).
The term “sexual act” is defined by statute as: “Cunnilingus, fellatio, analingus, or
anal intercourse, but does not include vaginal intercourse. Sexual act also means the
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penetration, however slight, by any object into the genital or anal opening of another
person’s body.” N.C. Gen. Stat. § 14-27.20(4) (2018).
¶ 12 “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.” State v. Petty, 132 N.C. App. 453, 462, 512 S.E.2d
428, 434 (1999). Where the trial court instructs the jury disjunctively as to various
alternative acts which will establish an element of the offense, the requirement of
unanimity is satisfied. State v. Walters, 368 N.C. 749, 753, 782 S.E.2d 505, 507-08
(2016). “In this type of case, the focus is on the intent or purpose of the defendant
instead of his conduct.” Id. at 753-54, 782 S.E.2d at 508 (quoting State v. Bell, 359
N.C. 1, 30, 603 S.E.2d 93, 113 (2004)).
¶ 13 However, “a trial judge should not give instructions to the jury which are not
supported by the evidence produced at the trial.” State v. Cameron, 284 N.C. 165,
171, 200 S.E.2d 186, 191 (1973) (citations omitted). “When reviewing the jury
instruction for plain error the instruction must be reviewed as a whole, in its
entirety.” State v. Clagon, 207 N.C. App. 346, 352, 700 S.E.2d 89, 93 (2010) (citation
omitted). Where the trial court instructs the jury disjunctively as to various
alternative acts which will establish an element of the offense, but one or more of
those acts is not supported by the evidence, it is not per se plain error. See State v.
Boyd, 366 N.C. 548, 742 S.E.2d 798 (2013) (reversing per curiam for the reasons
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stated in 222 N.C. App. 160, 167-68, 730 S.E.2d 193, 198 (2012) (Stroud, J.,
dissenting)). “Rather, under Boyd, a reviewing court is to determine whether a
disjunctive jury instruction constituted reversible error, without being required in
every case to assume that the jury relied on the inappropriate [act].” State v.
Martinez, 253 N.C. App. 574, 582, 801 S.E.2d 356, 361 (2017)2 (concluding that the
defendant “failed to meet his burden of showing that the trial court’s inclusion of
‘analingus’ in the jury instruction had any probable impact on the jury’s verdict[,]”
because the victim “was clear in her testimony regarding the occasions where fellatio
and anal intercourse had occurred”).
¶ 14 In this case, the trial court instructed the jury,
As you know, the defendant is charged with multiple
offenses which involve three alleged victims. He is also
charged with the same offense against all three alleged
victims and as well charged with different offenses against
the alleged victims. You will consider each offense
separately.
For the purpose of instruction to you on these offenses, the
Court will provide the file numbers and count numbers
used on the verdict sheets that apply to the alleged victims.
In addition, the verdict sheets are grouped according to
each defendant (sic), in three separate groups with their
initials under the file numbers on the verdict sheets.
Again, you will for all offenses consider the evidence
separately, consider those offenses separately from the
2Defendant asks this Court to reconsider Martinez. We may not do so. See In re
Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of
Appeals has decided the same issue, albeit in a different case, a subsequent panel of the
same court is bound by that precedent, unless it has been overturned by a higher court.”).
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others.
....
You must be unanimous in your decision. All 12 jurors
must agree.
Then, consistent with the statute and pattern jury instructions, the trial court
instructed the jury, in relevant part, that
[a] sexual act means any penetration, however slight, by
any object into the genital opening of a person’s body. A
sexual act means cunnilingus, which is any touching,
however slight, by the lips or tongue of one person to any
part of the female sex organ of another, or fellatio, which is
any touching by the lips or tongue of one person on the male
sex organ o[f] another, or any penetration, however slight,
by an object into the genital opening of a person’s body.
The trial court instructed the jury that it could find Defendant guilty of statutory
sexual offense with a child by an adult and statutory sexual offense with a child 15
years or younger if, in addition to the other required elements, it found that
Defendant had engaged in either penetration, cunnilingus, or fellatio with the
victims. The jury was not required to make specific findings regarding which sexual
acts Defendant committed, State v. Carrigan, 161 N.C. App. 256, 263, 589 S.E.2d 134,
139 (2003), and the trial court’s instruction satisfied the unanimity requirement.
Walters, 368 N.C. at 753, 782 S.E.2d at 508.
¶ 15 Even assuming arguendo that the jury instructions included an act or acts not
supported by the evidence, Defendant has failed to meet his burden of showing that
the inclusion of “fellatio” as to R.P. and M.P., and the inclusion of “vaginal
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penetration” as to R.P., had a probable impact on the jury’s finding that Defendant
was guilty.
¶ 16 R.P. testified that Defendant “would take off my underwear and shorts . . .
[and] touch me with his hands and mouth.” R.P. testified that after the first time
Defendant used his mouth on her vagina, it happened “[a] few more times[.]” R.P.
also testified that Defendant began touching her vagina with his hand “like everyday
of the week.” M.P. testified that it was “pretty much a daily occurrence” for Defendant
to touch the inside and outside of her genitals with his hands and mouth. In his
interview, Defendant classified what happened with R.P. and K.P. as “touching,
pointing out, showing them, licking[,]” and admitted that this happened with R.P.
around ten times over a period of a few months. Defendant also stated that he had
sexual encounters with M.P., which continued until the week he was arrested.
Defendant was charged with only three counts of statutory sexual offense with a child
by an adult and three counts of statutory sexual offense with a child 15 years or
younger despite the uncontroverted evidence that these acts occurred far more often.
Given the overwhelming evidence that Defendant routinely committed sexual acts
upon R.P. and M.P., and considering the jury instruction as a whole, Clagon, 207 N.C.
App. at 352, 700 S.E.2d at 93, Defendant has failed to show that the trial court’s
instruction on the definition of sexual act had a probable impact on the jury’s finding
that Defendant was guilty of statutory sexual offense with a child by an adult and
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statutory sexual offense with a person who is 15 years of age or younger. Thus, the
trial court did not plainly err. Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.
III. Conclusion
¶ 17 The trial court did not err by including disjunctive acts in its definition of
sexual act, and the jury was not required to make specific findings regarding which
sexual acts Defendant committed. Even assuming arguendo that the jury
instructions included acts not supported by the evidence, Defendant has failed to
show prejudice. Accordingly, we discern no plain error in the trial court’s jury
instruction defining sexual act.
NO PLAIN ERROR.
Judges ARROWOOD and JACKSON concur.