State v. White ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA14-797
NORTH CAROLINA COURT OF APPEALS
Filed: 17 February 2015
STATE OF NORTH CAROLINA
v. Columbus County
No. 10 CRS 051833
TERRY LEE WHITE
Appeal by defendant from judgment entered 19 December 2013
by Judge Douglas B. Sasser in Columbus County Superior Court.
Heard in the Court of Appeals 4 November 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Lisa K. Bradley, for the State.
William D. Spence for defendant-appellant.
McCULLOUGH, Judge.
Defendant Terry Lee White appeals his conviction of sexual
offense against a minor while in a parental role. For the
reasons stated herein, we hold no error.
I. Background
Defendant was indicted in case number 10 CRS 51832 for one
count of statutory rape or sexual offense of a person who is 13,
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14, or 15 years old and one count of sexual offense by a person
in a parental role based on offenses alleged to have occurred in
January 2007. On 7 October 2010, defendant was indicted in case
number 10 CRS 51833 for one count of statutory rape or sexual
offense of a person who is 13, 14, or 15 years old and one count
of sexual offense by a person in a parental role based on
offenses alleged to have occurred in October 2006.
Defendant’s case came on for trial on 16 through 19
December 2013 in Columbus County Superior Court, before the
Honorable Douglas B. Sasser, presiding. The evidence indicated
that defendant was involved in a dating relationship with Ms.
North1 from 2001 until 2010. Ms. North has two daughters, Cara
and Elizabeth, who are not defendant’s biological children.
Cara and Elizabeth are nine months apart and were seven years
old when Ms. North began dating defendant.
Ms. North testified that she was born and raised in
Columbus County but moved to Rockingham County in 2002 with
defendant and her two daughters. Ms. North returned to Columbus
County in 2003, went back to Rockingham County in 2004, and
finally returned to Columbus County in 2006. During these
1
Pseudonyms have been used throughout this opinion to protect the
identity of some individuals.
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times, she testified that defendant lived or stayed with her
family “[m]ost of the time.”
Ms. North paid the rent and light bill. Defendant worked
and “would help provide, you know, things for [the kids], give
[Cara] snack money for school, basic things, make sure they get
Christmas, you know.” Cara testified that that she viewed
defendant “[l]ike a stepdaddy.” Defendant would buy Cara and
Elizabeth “stuff at the store” but would never discipline them.
In 2003, when Cara was nine years old, defendant told Cara
that he was taking her to her friend’s house. Instead,
defendant took Cara “down a dirt road and stopped and asked me
what would I do to keep [Ms. North] from going to jail.”
I started naming things and he said anything
and I said yeah, why. He unzipped his pants
and pulled out a knife to fix his crack can
and showed me naked pics of [Ms. North]
smoking weed and told me if I told anybody
he would turn them into the police and [Ms.
North] would go to jail and me and
[Elizabeth] would be separated in two homes.
I didn’t want that. He made me . . . suck
his thing[.]
Cara testified that in October 2006, when Cara was twelve
years old, defendant asked Cara to go into a back room of the
house. Defendant pulled his pants down and sat on the bed, Cara
sat beside him, and defendant forced Cara to perform oral sex on
him. Cara further testified that
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[Defendant] would always tell me either I
would stay home while my mom went to the
store and I would ride with him to the store
but in October when we moved back to
Columbus County the first time he told me to
go in my mama’s room; he said you know what
I want you to do[.]
Defendant would “have [Cara] perform oral sex on him and he put
some crack on a can and smoked it.” Defendant threatened Cara
that if she told anyone about their encounters, he would show
the incriminating pictures of Ms. North to the police.
Cara also testified to a second incident with defendant in
Columbus County:
The second time he said come on back here,
you know what you’ve got to do and I started
to run out the back door to my neighbor’s
house and he grabbed my arm. He said he
swears and promises if I don’t tell he will
never do it again and he never done it
again.
Cara testified that she believed that defendant wanted her to
perform oral sex on him.
Detective Rene Trevino with the Columbus County Sheriff’s
Department testified that on 23 May 2010, she came into contact
with Cara and Ms. North. Cara and Ms. North had come into the
sheriff’s office to report a sexual assault. A recording of
Detective Trevino’s interview of Cara and Ms. North was admitted
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into evidence. Detective Trevino testified that she made a
referral to the department of social services.
Diane Guedo, a family nurse practitioner who was employed
at a child advocacy center, evaluating children with suspected
sexual and physical abuse, testified for the State. She was
tendered as a specialist in sexual abuse, physical abuse, and
neglect. Guedo testified that she conducted a child medical
examination of Cara on 13 July 2010. Cara told Guedo about two
“incidents with [defendant]” that began at age nine. Cara also
talked about an incident after 2006 where defendant came into
her room and “licked her genital area.” Based on the results of
a physical exam, Guedo testified that she could not tell if
there had been any trauma to Cara’s genital area in 2006 or in
2007. She further testified that an absence of physical
findings did not support nor discount a disclosure of sexual
abuse.
Marcie Thompson, an investigator and assessor for the
Columbus County Department of Social Services, testified that
she came into contact with Ms. North in 2010. Thompson had
received a report containing allegations of inappropriate sexual
contact by a person living as a stepfather and caretaker in the
home and was able to conduct an interview with Ms. North.
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At the close of the State’s evidence, both charges in case
number 10 CRS 51832 were dismissed. At the close of all the
evidence, the charge of statutory rape or sexual offense of a
person who is 13, 14, or 15 years old in case number 10 CRS
51833 was dismissed.
On 19 December 2013, a jury found defendant guilty of a
sexual offense against a minor while in a parental role.
Defendant was sentenced to a term of 40 to 57 months
imprisonment. Defendant appeals.
II. Discussion
On appeal, defendant argues that the trial court erred by
(A) denying defendant’s motion to dismiss the charge of
committing a sexual offense against a minor while in a parental
role for insufficiency of the evidence; (B) failing to instruct
the jury on all elements of the crime of sexual offense while in
a parental role; (C) failing to define the terms “minor” and
“fellatio”; and (D) admitting the testimony of Diane Guedo.
A. Motion To Dismiss
Defendant first argues that the trial court erred by
denying his motion to dismiss the charge of sexual offense
against a minor while in a parental role because there was
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insufficient evidence that defendant had assumed the position of
a parent in the victim’s home in October 2006. We disagree.
When reviewing a defendant’s motion to
dismiss a charge on the basis of
insufficiency of the evidence, this Court
determines whether the State presented
substantial evidence in support of each
element of the charged offense. Substantial
evidence is relevant evidence that a
reasonable person might accept as adequate,
or would consider necessary to support a
particular conclusion. In this
determination, all evidence is considered in
the light most favorable to the State, and
the State receives the benefit of every
reasonable inference supported by that
evidence.
State v. Jones, 367 N.C. 299, 304, 758 S.E.2d 345, 349 (2014)
(citation and quotation marks omitted).
Here, defendant was charged with sexual offense against a
minor while in a parental role in violation of N.C. Gen. Stat §
14-27.7(a). “This crime requires a finding that the defendant
had (1) assumed the position of a parent in the home, (2) of a
minor victim, and (3) engaged in a sexual act with the victim
residing in the home.” State v. Oakley, 167 N.C. App. 318, 322,
605 S.E.2d 215, 218 (2004) (citation omitted).
Defendant now argues that there was insufficient evidence
of the required element that defendant assumed a position of a
parent in the home. It is well established that “to convict a
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defendant of violating G.S. § 14-27.7(a), the evidence of the
relationship between the defendant and the child-victim must
provide support for the conclusion that the defendant functioned
in a parental role. Such a parental role will generally include
evidence of emotional trust, disciplinary authority, and
supervisory responsibility.” State v. Bailey, 163 N.C. App. 84,
93, 592 S.E.2d 738, 744 (2004).
Defendant cites to our Court’s holding in State v. Bailey,
163 N.C. App. 84, 592 S.E.2d 738 (2004), to support his
argument. In Bailey, the defendant was charged with sexual
offense by a substitute parent in violation of N.C. Gen. Stat. §
14-27.7(a) (2003). Id. at 92, 592 S.E.2d at 744. At trial,
evidence demonstrated that the defendant was never romantically
involved with the victim’s mother. Id. at 94, 592 S.E.2d at
744-45. The victim’s mother testified that the defendant
“helped with the kids” and “would just baby sit them” in return
for the victim’s mother allowing the defendant to sleep in her
residence without paying rent. There were also several
statements made at trial and to officers that the defendant
“watched” the children in the household and was a “babysitter”
to the children. Id. at 94, 592 S.E.2d at 745. Our Court held
that the evidence, taken in the light most favorable to the
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State, was sufficient “to establish only that defendant babysat”
for the children in the household. Id. The victim’s mother did
not regard the defendant as her boyfriend or as a de facto
stepfather to her children. The record also did not indicate
whether “[the] defendant’s ‘babysitting’ had a quasi-parental
quality[.]” Id.
[T]here was no evidence regarding whether
defendant was authorized to make
disciplinary decisions, assist with
homework, treat minor injuries, decide
whether the children could leave the
apartment, or take them out of the apartment
himself.
Even more significant is the absence of
any evidence tending to show that the
defendant and [the victim] had a
relationship based on trust that was
analogous to that of a parent and child.
Id. Based on the foregoing, our Court reversed the defendant’s
conviction of violating N.C. Gen. Stat. § 14-27.7(a). Id. at
95, 592 S.E.2d at 745.
After thorough review, we find the facts of the case before
us distinguishable from the facts found in Bailey. In the
present case, it was undisputed that defendant was involved in a
romantic, dating relationship with the victim’s mother, Ms.
North from 2001 until 2010. Ms. North testified that defendant
lived with the family “[m]ost of the time” during these years.
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Cara testified regarding her relationship with defendant and
described defendant’s role in her home as a “stepdaddy.”
Although Cara testified that defendant never disciplined her,
she testified that defendant would purchase “stuff at the store”
for her. Ms. North testified that defendant “acted like he
loved” her daughters. Defendant would “help provide, you know,
things for them, give [Cara] snack money for school, basic
things, make sure they get Christmas, you know.” Ms. North
regularly left defendant to supervise Cara and Elizabeth and
Cara testified that defendant determined whether she would stay
at home with defendant while Ms. North went to the store or
whether she would accompany defendant to the store.
Unlike the Bailey case, the evidence here indicates that
defendant and Cara had a relationship that was analogous to that
of a parent and child. Defendant had supervisory responsibility
over Cara, helped provide her with things such as money and
food, “acted like he loved” Cara, and functioned as a
“stepdaddy” to Cara. Viewing this evidence in the light most
favorable to the State, we hold that there was sufficient
evidence to support the element that defendant served in a
parental role. Accordingly, we hold that the trial court did
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not err by denying defendant’s motion to dismiss and overrule
defendant’s argument.
B. Jury Instruction
In his second issue on appeal, defendant argues that the
trial court erred by failing to instruct the jury on all the
elements of sexual offense against a minor while in a parental
role. Specifically, defendant argues that the trial court
failed to state that the jury must find that the victim was a
minor.
“Jury instructions not challenged at trial are normally
reviewed for plain error.” State v. Smith, __ N.C. App. __, __,
736 S.E.2d 847, 850 (2013). “Under the plain error standard,
defendant must show that the instructions were erroneous and
that absent the erroneous instructions, a jury probably would
have returned a different verdict.” State v. Haire, 205 N.C.
App. 436, 440, 697 S.E.2d 396, 399 (2010) (citation omitted).
Defendant contends that because the trial court omitted an
essential element, that the victim must be a minor, from the
jury instruction, harmless error applies. See Smith, __ N.C.
App. at __, 736 S.E.2d at 850 (citations omitted) (stating that
a “‘trial court’s omission of elements of a crime in its
recitation of jury instructions is’ treated as an unwaivable
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violation of the right to a unanimous jury found in Article I,
Section 24 of the North Carolina Constitution, and, therefore,
is ‘reviewed under the harmless error test’”). However, we hold
that harmless error analysis does not apply to the present case
because the trial court did not omit any necessary element from
defendant’s jury charge.
As previously stated, the elements of sexual offense
against a minor while in a parental role requires a finding that
the defendant: (1) assumed the position of a parent in the
home, (2) of a minor victim, and (3) engaged in a sexual act
with the victim residing in the home. Oakley, 167 N.C. App. at
322, 605 S.E.2d at 218. In the present case, the trial court
gave the following instruction to the jury:
The defendant has been charged with
committing a sex offense while in a parental
role.
For you to find the defendant guilty of
this offense the State must prove two things
beyond a reasonable doubt.
First, that the defendant engaged in a
sexual act with the victim; fellatio is a
sexual act.
Second, that the defendant has assumed
the position of a parent in the home of a
minor with whom the minor was residing in
the house.
If you find from the evidence beyond a
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reasonable doubt that on or about the
alleged date the defendant engaged in a
sexual act with the victim and that the
victim was a child under 18 years of age and
that the defendant had assumed the position
of a parent in the home in which the minor
was residing, it would be your duty to
return a verdict of guilty.
If you do not so find or if you have a
reasonable doubt as to one or more of these
things, it would be your duty to return a
verdict of not guilty.
(emphasis added).
Here, the trial court clearly stated that in order for the
jury to find defendant guilty of sexual offense while in a
parental role, the jury must find beyond a reasonable doubt that
the “victim was a child under 18 years of age.” Furthermore,
defendant does not challenge the age of the victim, Cara. Cara
testified that her birthday was 1 February 1994 and it was
established that at the time of the alleged offense in October
2006, Cara was twelve years old. Based on the foregoing,
defendant is not able to demonstrate that the challenged jury
instruction was made in error, much less plain error.
Defendant’s argument is overruled.
C. Defining the Terms “Minor” and “Fellatio”
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In his next argument, defendant asserts that the trial
court committed plain error in its jury instructions by failing
to define the terms “minor” and “fellatio.” We disagree.
“In deciding whether a defect in the jury instruction
constitutes ‘plain error,’ the appellate court must examine the
entire record and determine if the instructional error had a
probable impact on the jury’s finding of guilt.” State v. Bell,
359 N.C. 1, 23, 603 S.E.2d 93, 109 (2004) (citation omitted).
Our Courts have held that “[i]t is not error for the court to
fail to explain words of common usage in the absence of a
request for special instructions.” State v. Riddle, 45 N.C.
App. 34, 39, 262 S.E.2d 322, 325 (1980).
In the case before us, the trial court stated that in order
to find defendant guilty of sexual offense against a minor while
in a parental role, the jury must find that “the victim was a
child under 18 years of age.” Although the trial court did not
specifically state that “a child under 18 years of age” is
considered a “minor,” we believe the term “minor” is a term of
common usage. In addition, the record does not indicate that
defendant made a request for special instructions on the word
“minor.” Therefore, the trial court did not err, much less
commit plain error, in failing to define this term.
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In regards to the term “fellatio,” the trial court stated
in its jury instructions that in order to find defendant guilty,
the jury must find that “defendant engaged in a sexual act with
the victim; fellatio is a sexual act.” Once again, the record
is devoid of any evidence that defendant requested a special
instruction on this term. Further, defendant does not cite to
any authority requiring a trial court to define the term
“fellatio.” Our Court has previously held that where a
defendant “fails to cite to any case law or statute which
requires the trial court to define those terms during its jury
instruction,” a defendant has failed to meet his burden under
plain error review to warrant a new trial. State v. Wood, 174
N.C. App. 790, 794, 622 S.E.2d 120, 123 (2005) (where the
defendant failed to cite to any authority that required the
trial court to define the terms “driving while license revoked,”
“negligent driving,” and “reckless driving,” the trial court did
not commit plain error in failing to define those terms).
Accordingly, we overrule defendant’s arguments.
D. Admitting the Testimony of Diane Guedo
In his last issue, defendant contends that the trial court
erred by allowing expert witness Diane Guedo to testify that
Cara would be a “very good candidate for trauma focused
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cognitive behavioral therapy.” Defendant argues that this
testimony was irrelevant, that it amounted to impermissible
vouching for Cara’s credibility, and that Guedo was not
qualified to give such an opinion.
Diane Guedo testified that she was employed as a child
medical examiner at a child advocacy center that evaluates
children with suspected sexual and physical abuse. Guedo was a
family nurse practitioner who received her training at George
Washington University and a master’s degree from the University
of Rochester. She testified that she had worked primarily in
primary care pediatrics for the last twenty-one years and had
evaluated 771 children. Guedo was tendered as a specialist in
sexual abuse, physical abuse, and neglect. Upon the State’s
tender of Guedo as an expert witness, defendant objected. After
voir dire of Guedo, defendant withdrew his objection.
Guedo testified that she performed a child medical
examination on Cara on 13 July 2010. The child medical
examination included an interview of the non-offending care
giver, a complete medical examination, and seventeen pages of
additional documentation. Guedo indicated that there were no
physical findings of trauma to Cara’s genital area at the time
of the examination and testified that she could not tell if
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there had been trauma to Cara’s genital area in 2006. Based on
her examination, Guedo testified that the lack of physical
findings neither supported nor discounted a disclosure of sexual
abuse. Nevertheless, Guedo testified that Cara described the
incidents of sexual abuse to her. The following exchange
occurred:
[THE STATE:] . . . Ms. Guedo, based on what
[Cara] told you if that did in fact occur
what kind of psychological care would you
have prescribed?
[DEFENSE COUNSEL:] Objection.
THE COURT: Do you wish to be heard?
[DEFENSE COUNSEL:] I don’t think this
witness based on our case law it is
permissible to answer that.
THE COURT: Overruled, you may answer the
question.
[MS. GUEDO:] I thought she would be a very
good candidate for trauma focused cognitive
behavioral therapy.
[DEFENSE COUNSEL:] Objection as to
relevance, move to strike. What relevance
does it have about whether this happened or
not?
THE COURT: Overruled.
On appeal, defendant first contends that this foregoing
testimony was irrelevant. The applicable standard of review is
as follows:
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Although the trial court’s rulings on
relevancy technically are not discretionary
and therefore are not reviewed under the
abuse of discretion standard applicable to
Rule 403, such rulings are given great
deference on appeal. Because the trial court
is better situated to evaluate whether a
particular piece of evidence tends to make
the existence of a fact of consequence more
or less probable, the appropriate standard
of review for a trial court’s ruling on
relevancy pursuant to Rule 401 is not as
deferential as ‘abuse of discretion’
standard which applies to rulings made
pursuant to Rule 403.
State v. Blakney, __ N.C. App. __, __, 756 S.E.2d 844, 847
(2014) (citation omitted).
The admissibility of evidence is
governed by a threshold inquiry into its
relevance. In order to be relevant, the
evidence must have a logical tendency to
prove any fact that is of consequence in the
case being litigated. All relevant evidence
is admissible, except as otherwise provided
by the Constitution of the United States, by
the Constitution of North Carolina, by Act
of Congress, by Act of the General Assembly
or by these rules. Evidence which is not
relevant is not admissible.
State v. Royster, __ N.C. App. __, __, 763 S.E.2d 577, 580-81
(2014) (citation and quotation marks omitted). Furthermore,
pursuant to Rule 403 of the North Carolina Rules of Evidence,
relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
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considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1,
Rule 403 (2013).
In the present case, we believe that the challenged
testimony was irrelevant as it did not have a logical tendency
to prove any fact that is of consequence. Nevertheless, given
Cara’s personal testimony regarding the sexual abuse by
defendant and the remainder of Guedo’s testimony corroborating
Cara’s account, we believe any error by the admission of this
testimony was harmless. See N.C. Gen. Stat. § 15A-1443(a)
(2013) (stating that error is prejudicial when “there is a
reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the
trial out of which the appeal arises”).
Next, defendant argues that Guedo’s testimony “implie[d] to
the jury that [Cara] was telling the truth, that the oral sex
actually happened.” Our Courts have established that “the trial
court should not admit expert opinion that sexual abuse has in
fact occurred because, absent physical evidence supporting a
diagnosis of sexual abuse, such testimony is an impermissible
opinion regarding the victim’s credibility.” State v. Stancil,
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355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (emphasis in
original).
Here, however, we find defendant’s characterization of
Guedo’s testimony erroneous and hold that the challenged
testimony does not constitute impermissible vouching for Cara’s
credibility. Guedo did not testify that sexual abuse had, in
fact, occurred. Rather, Guedo was answering a hypothetical
question presented by the State – that if Cara’s descriptions of
the alleged sexual incidents with defendant were true, what type
of psychological care and treatment would Guedo have prescribed.
Therefore, defendant’s argument is overruled.
In his last argument, defendant asserts that it was error
for the trial court to allow Guedo to testify regarding the type
of psychological care she would have prescribed had Cara, in
fact, been sexually abused because Guedo was not qualified to
render her opinion on this issue.
Pursuant to N.C. Gen. Stat. § 8C-1, Rule 702 (2013), a
witness may be qualified as an expert if the trial court finds
that through “knowledge, skill, experience, training, or
education” the witness has acquired such skill that he or she is
better qualified than the jury to form an opinion on the
particular subject. Because defendant failed to object to the
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admission of this testimony at trial, our review is limited to
plain error. State v. Henderson, 182 N.C. App. 406, 414, 642
S.E.2d 509, 514 (2007) (citation omitted) (providing that
“[p]lain error has been defined as ‘error so fundamental as to
amount to a miscarriage of justice or which probably resulted in
the jury reaching a different verdict than it otherwise would
have reached’”).
At trial, Guedo testified that she worked at a child
advocacy center, evaluating children with suspected abuse, both
sexual and physical. Guedo was a family nurse practitioner who
had worked in primary care pediatrics for twenty-one years and
had evaluated 771 children in her current position. It was her
eighth time testifying as a witness as a specialist in sexual
abuse, physical abuse, and neglect. After the State tendered
Guedo as an expert in abuse and neglect, defendant objected, but
then later removed his objection.
The questions posed by the State and answers given in
qualifying Guedo as an expert in abuse and neglect failed to
establish that Guedo had any particularized experience or
training relating to prescribing psychological care to those who
were abused or neglected. It is also unclear whether an expert
in abuse and neglect would have any training or experience
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related to trauma focused cognitive behavioral therapy.
However, even if we were to hold that this testimony was
improperly admitted because the State failed to lay a sufficient
foundation to establish that Guedo was qualified to offer the
challenged testimony, we hold that this error would fall short
of amounting to plain error based on Cara’s testimony and the
testimony of corroborating witnesses.
No error.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).