State v. Perkins ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-1352
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Wake County
Nos. 09 CRS 211758—60, 211765
GREGORY ALDON PERKINS,
Defendant.
Appeal by defendant from judgments entered 4 December 2012
by Judge Paul G. Gessner in Wake County Superior Court. Heard
in the Court of Appeals 7 May 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Anita LeVeaux, for the State.
Glenn Gerding for defendant-appellant.
BRYANT, Judge.
Pursuant to Rule 609 of our Rules of Evidence, a defendant
who testifies at trial may be impeached with evidence of a prior
conviction. Whether a defendant’s testimony at trial was
chilled by the State’s use of Rule 609 depends on the particular
facts of the case. Where no authority exists in support of
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defendant’s argument that the trial court erred by failing to
intervene ex mero motu during the prosecutor’s sentencing
argument before the trial court, defendant’s argument must be
dismissed.
On 4 December 2009, defendant Gregory Aldon Perkins was
arrested on charges of first-degree sexual offense with a child,
first-degree rape of a child, and incest. Defendant was
indicted and tried on those charges during the November 2010
session of Wake County Superior Court, but after the jury failed
to reach a verdict, a mistrial was declared.
Defendant was tried a second time on twenty counts of
various child sexual assault offenses. Defendant was convicted
of one count of indecent liberties with a child. Because the
jury failed to reach verdicts on the remaining counts, a
mistrial was declared. Judgment was entered, and defendant was
sentenced on 29 September 2011 for the indecent liberties
conviction. Defendant was sentenced to an active term of
sixteen to twenty months, and ordered to register as a sex
offender upon his release and to undergo a risk assessment for
satellite-based monitoring.
On 26 November 2012, defendant was retried and convicted by
a jury on four charges: one count each of first-degree sexual
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offense by digital vaginal penetration, first-degree sexual
offense by cunnilingus, first-degree rape of a child, and
incest. The State’s evidence at trial tended to show the
following.
In June 1998, defendant was hired by “Jane”1 to perform
computer system work for the Town of Albemarle. At that time,
Jane was married with two girls, “Susan” and “Carrie”; defendant
was also married but had no children. Defendant and Jane
separated from their spouses to begin dating each other. They
married in June 2001 and subsequently moved from Albemarle to
Apex.
Carrie testified that when she was in the third grade,
defendant began to sexually abuse her. Defendant would give
Carrie a back rub before moving his hands beneath her clothes.
The sexual abuse included defendant digitally penetrating her
vagina and performing oral sex on her. Defendant also taught
Carrie how to perform oral sex on him. According to Carrie, the
abuse occurred as many as four times a week.
In the summer before she began the sixth grade, defendant
had vaginal intercourse with Carrie. Defendant offered Carrie a
1
“Jane,” “Susan,” and “Carrie” are pseudonyms used to protect
the identity of the victim.
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“deal” by which she could receive things such as new clothes, no
curfew restrictions, or spending more time with friends if she
cooperated with his requests for sex. When Carrie was in the
ninth grade, defendant convinced Jane to let Carrie start taking
birth control. Carrie reiterated that defendant would typically
abuse her about four times a week.
In 2008, defendant announced that he was unhappy with his
marriage to Jane and wanted to move out of the house.
Defendant’s last sexual encounter with Carrie occurred sometime
between Christmas 2008 and January 2009 when he moved out.
In October 2009, Carrie became upset while looking at
pictures of accused sexual offenders in a newspaper and told her
boyfriend that defendant had sexually abused her. Carrie then
told her sister, Susan, and her mother, Jane, that defendant had
abused her “for a long time.” Jane called the Apex Police
Department.
The Apex Police interviewed Carrie, Susan, Jane, and
Carrie’s boyfriend. They also interviewed two childhood friends
of Carrie who, years before, had been told by Carrie that she
was being sexually abused by defendant. Mental health
counselors determined that Carrie was depressed and exhibited
symptoms of post-traumatic stress disorder associated with long-
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term child sexual abuse. When interviewed by the Apex Police,
defendant denied Carrie’s allegations and stated that Carrie
created the allegations against him because she did not want
defendant to reconcile with Jane.
After his conviction on all four counts, defendant
stipulated to being a prior conviction level II. The trial
court found as a mitigating factor that defendant was honorably
discharged from the military but that this factor did not
warrant sentencing in the mitigated range. Defendant was
sentenced to three consecutive active sentences of 276 to 341
months each for first-degree sexual offense by digital vaginal
penetration (09 CRS 211758), first-degree sexual offense by
cunnilingus (09 CRS 211759), and first-degree rape of a child
under the age of thirteen (09 CRS 211760). Defendant was
further sentenced to 19 to 24 months for incest (09 CRS 211765)
to run at the expiration of the judgment for first-degree rape
of a child. Defendant appeals.
____________________________
Defendant raises three issues on appeal: whether the trial
court erred (I) in ruling that defendant’s prior conviction was
admissible; (II) in using defendant’s prior conviction to
calculate his prior record level; and (III) by failing to
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intervene ex mero motu during the prosecutor’s arguments during
sentencing.
I.
Defendant argues the trial court erred in ruling that
defendant’s prior conviction was admissible if defendant
testified. We disagree.
North Carolina Rules of Evidence, Rule 609, holds that:
“[f]or the purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a felony, or of
a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted
if elicited from the witness or established by public record
during cross-examination or thereafter.” N.C. Gen. Stat. § 8C-
1, Rule 609(a) (2013). “The language of Rule 609(a) (‘shall be
admitted’) is mandatory[.]” State v. Brown, 357 N.C. 382, 390,
584 S.E.2d 278, 283 (2003).
Defendant filed a motion in limine to exclude evidence of
his prior conviction. In response, at the pretrial hearing, the
State argued that pursuant to Rule 609 it was permitted to
question defendant about his prior conviction if defendant
testified at trial. The trial court, in denying defendant’s
motion, held that the State could cross-examine defendant as to
his prior conviction pursuant to Rule 609 but restricted the
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State from mentioning the prior conviction unless and until
defendant testified. The trial court then reserved further
consideration of the issue until defendant testified.
Defendant contends the trial court’s ruling on his motion
in limine “chilled his right to testify and present a defense.”
Defendant’s argument is similar to those made based on an
improper impeachment by prior conviction. However, because of
the ruling of the United States Supreme Court in Luce v. United
States, 469 U.S. 38, 43 (1984) (holding that “to raise and
preserve for review the claim of improper impeachment with a
prior conviction, a defendant must testify”), defendant’s
argument is not properly preserved for appeal. See State v.
Hunt, 123 N.C. App. 762, 770, 475 S.E.2d 722, 727 (1996) (“[I]n
the absence of a defendant's testimony, any potential harm is
purely speculative. . . . We hold that in order to preserve
rulings made under North Carolina Rule[s] of Evidence . . . for
appeal, a defendant must testify.”); State v. Norris, 101 N.C.
App. 144, 148—49, 398 S.E.2d 652, 654—55 (1990) (holding that
where a defendant does not testify, defendant’s claims of harm
via chilled speech are speculative). Accordingly, this portion
of defendant’s argument is dismissed.
II.
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Defendant next argues that the trial court erred in using
his prior conviction to calculate his prior record level. We
disagree.
This Court reviews the trial court’s determination of a
defendant’s prior record level de novo. State v. Fraley, 182
N.C. App. 683, 691, 643 S.E.2d 39, 44 (2007).
Defendant contends the trial court’s use of his prior
conviction to calculate his prior record level was prejudicial
error. However, defendant stipulated to his prior record level.
Although the State must prove
that a prior conviction exists and that the
offender before the court is the same person
as the offender named in the prior
conviction. . . . [D]efense counsel need
not affirmatively state what a defendant's
prior record level is for a stipulation with
respect to that defendant's prior record
level to occur.
State v. Mack, 188 N.C. App. 365, 378, 656 S.E.2d 1, 11 (2008)
(citations and quotations omitted). Where a defendant indicates
his agreement with the State’s calculation of his prior record
level, such stipulation is binding. Id. at 379, 656 S.E.2d at
11.
Here, the State presented the trial court with a prior
record level worksheet for defendant. When the trial court
asked defendant if he wished to respond to the worksheet,
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defendant responded: “I have stipulated to that, Your Honor.”
As such, defendant’s stipulation as to his prior record level
was binding. Accordingly, the trial court did not err in
calculating defendant’s prior record level.
III.
In his final assignment of error, defendant contends the
trial court erred by failing to intervene ex mero motu during
the prosecutor’s arguments during sentencing. However,
defendant’s argument, while creative, is without merit.
Defendant cites to no authority, and we are aware of none, in
which an argument of counsel during a sentencing hearing before
the trial judge, as opposed to a jury, is subject to review on
appeal for error. Moreover, “[f]ailure to cite authority is a
violation of N.C. R. App. P. 28(b)(6) and subjects this argument
to dismissal.” Good Hope Health Sys., L.L.C. v. N.C. Dep’t of
Health & Human Servs., 189 N.C. App. 534, 562, 659 S.E.2d 456,
473 (2008) (citations omitted).
Even assuming arguendo we reviewed defendant’s argument, it
must fail. Although defendant contends the State’s sentencing
argument improperly influenced the trial court because defendant
was sentenced to consecutive terms, this Court has held that
there is “nothing inherent[ly prejudicial] in consecutive
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sentencing” because "a criminal sentence must be proportionate
to the crime for which the defendant has been convicted." State
v. Ysaguire, 309 N.C. 780, 785—86, 309 S.E.2d 436, 440 (1983)
(citation omitted). There is nothing inherently prejudicial in
sentencing defendant to consecutive terms for four convictions
involving long-term sexual abuse of his step-daughter.
Defendant’s argument is therefore overruled.
No error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).