State v. Thompson ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.
NO. COA13-1198
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Alamance County
No. 11 CRS 56118
JONATHAN DONALD THOMPSON
Appeal by Defendant from judgment entered 26 April 2013 by
Judge James E. Hardin, Jr. in Superior Court, Alamance County.
Heard in the Court of Appeals 4 March 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jennie Wilhelm Hauser, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel Shatz, for Defendant.
McGEE, Judge.
Jonathan Donald Thompson (“Defendant”) was convicted on 26
April 2013 of first-degree sex offense with a child and taking
indecent liberties with a child. The State’s evidence tended to
show that, on the evening of 6 September 2011 and into the early
morning of 7 September 2011, Defendant was helping to paint the
interior of his father’s house in preparation for his father’s
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return from the hospital. Other people were helping to paint
the house that evening, including a woman with a four-year-old
daughter (“the child”). As Defendant and others painted the
house, the child was asleep on blankets spread out on a hallway
floor. Defendant was drinking beer and also took someone’s
prescription Klonopin without permission. Defendant and a
friend (“the friend”) continued to paint after the others had
stopped. The friend testified Defendant left the room they were
painting four or five times during the night, for about ten to
fifteen minutes each time. One of the times Defendant left the
room, the friend saw Defendant kneeling beside the child, facing
the child.
The following morning, the child screamed from the
bathroom. The child indicated that urinating was painful. At
first, the child’s mother assumed the pain was the result of a
medical condition the child had that affected the child’s
vagina, and which could be exacerbated if the child did not
maintain proper hygiene. The mother drew a bath for the child,
but the child stated that she did not need a bath because
Defendant was responsible for the pain. The child stated that
Defendant had inserted his finger into her vagina.
The child’s aunt, who was at the house, told the child’s
mother to take the child to be examined by a doctor. The child
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was taken to Crossroads, a child advocacy center in Alamance
County that provides medical, psychological, and other advocacy
services. The child was then taken to UNC Hospital where a nurse
attempted to collect evidence for a rape kit. Because the child
was so upset, no internal genital swab was collected from the
child. However, a swab was collected from the child’s exterior
vaginal region, in the hope of collecting skin cells transferred
from the perpetrator. Though the swab sample was sent to the
State Bureau of Investigation (“SBI”), it was ultimately
returned without testing because the SBI did not have the proper
facilities to collect DNA samples from any transferred skin
cells. Visual examination of the child’s genitals indicated
redness and abrasions that were consistent with digital
penetration.
The child returned to Crossroads on 15 September 2011,
where Dr. Adrea Theodore (“Dr. Theodore”), who worked at
Crossroads, interviewed and examined her. Dr. Theodore
testified the child indicated Defendant had inserted his finger
in her vagina six times, and the child said she could clearly
recognize Defendant. The child said she could see paint on
Defendant’s fingers, and that Defendant had told her not to tell
anyone. One of Defendant’s sisters testified that when she
spoke with Defendant on the evening of 7 September 2011,
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Defendant cried and said he could not remember doing anything to
the child, and that he didn’t think he could do such a thing.
The child’s aunt testified the child had become “a totally
different child” since the incident, and had become very shy
when previously she had been outgoing.
Defendant was arrested and charged with first-degree sex
offense with a child and taking indecent liberties with a child.
Defendant was tried by a jury, and found guilty of both charges.
Defendant appeals.
I.
In his first argument, Defendant contends the trial court
committed plain error by not intervening ex mero motu to exclude
testimony of one of the State’s expert witnesses. We disagree.
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.”
[See] Walker, 316 N.C. at 39, 340 S.E.2d at
83 ([the defendant must show] “that absent
the error the jury probably would have
reached a different verdict”). 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[.]”
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State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(citations omitted).
Dr. Theodore testified, without objection, as an expert in
pediatrics. Under cross-examination by Defendant’s attorney,
Dr. Theodore testified that Crossroads usually held a weekly
“meeting where members of the Burlington Police and members of
the Sheriff’s Department, folks from DSS, people from the
Crossroads staff, and people from the DA's Office attend” and
“collaborate about the pending sexual assault cases in the
county.” Defendant’s attorney then asked Dr. Theodore: “In the
cases where you have given an opinion, each time, your opinion
has been that what you saw was consistent with some form of
sexual abuse. Is that correct?” Dr. Theodore responded that
was true for every case that had gone to trial. On re-direct,
the State asked: “Doctor Theodore, has the State ever prosecuted
a sex offense case in which you formed an opinion that there
wasn't sexual abuse?” Dr. Theodore responded that she was not
aware of any such instance.
It is this last portion of testimony to which Defendant now
objects. It is clear that on cross-examination, Defendant was
attempting to attack Dr. Theodore’s credibility by showing a
bias in Dr. Theodore’s testimony that favored the State. Though
presumably attempting to rehabilitate the witness by its re-
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direct, the State essentially asked Dr. Theodore the same
question that had been posed by Defendant’s attorney moments
earlier. That question, and Dr. Theodore’s response, could be
seen as validating Defendant’s suggestion that Dr. Theodore was
biased in favor of the State and, therefore, was a less credible
witness.
It is not clear to us that Dr. Theodore’s testimony, even
assuming arguendo it was improper, was more helpful to the State
than to Defendant. Defendant fails in his burden of proving
“‘that absent the error the jury probably would have reached a
different verdict.’” Lawrence, 365 N.C. at 518, 723 S.E.2d at
334 (citation omitted). This argument is without merit.
II.
In Defendant’s second argument, he contends the trial court
erred in failing to intervene ex mero motu to stop improper
closing arguments by the State. We disagree.
The standard of review for assessing alleged
improper closing arguments that fail to
provoke timely objection from opposing
counsel is whether the remarks were so
grossly improper that the trial court
committed reversible error by failing to
intervene ex mero motu. In other words, the
reviewing court must determine whether the
argument in question strayed far enough from
the parameters of propriety that the trial
court, in order to protect the rights of the
parties and the sanctity of the proceedings,
should have intervened on its own accord
and: (1) precluded other similar remarks
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from the offending attorney; and/or (2)
instructed the jury to disregard the
improper comments already made.
State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002)
(citation omitted). “When the defense fails to object to a
prosecutor's argument, ‘the remarks “must be gross indeed for
this Court to hold that the trial court abused its discretion in
not recognizing and correcting ex mero motu the comments
regarded by defendant as offensive only on appeal.”’” State v.
Cummings, 352 N.C. 600, 621, 536 S.E.2d 36, 52 (2000) (citations
omitted). “To determine the propriety of the prosecution's
argument, the Court must review the argument in context and
analyze the import of the argument within the trial context,
including the evidence and all arguments of counsel.” Id. at
621, 536 S.E.2d at 52 (citation omitted).
Defendant objects to several statements made in the State’s
closing argument. First, Defendant objects to an argument
addressing the testimony of Dr. Theodore discussed in
Defendant’s first argument. The State argued, “if Doctor
Theodore came to the State with any case, and said . . . nothing
happened in my opinion, I would argue to you, the State would
not prosecute a case like that. The State is not in the
business of prosecuting people when it doesn’t have any evidence
of it.” Defendant argues that the “clear message” of this
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argument was “that Dr. Theodore believe[d] the crime occurred,”
because “if she did not think the crime occurred, the State
would not have prosecuted [Defendant].” Dr. Theodore’s
testimony was that, in her opinion, the results of her
examination of the child were consistent with the child’s vagina
having been digitally penetrated. The State’s argument was
that, had their expert witness’ opinion been that no sexual
abuse had occurred, the State would not have continued to
prosecute the case. This is not the same as arguing that Dr.
Theodore believed abuse occurred. When the State prosecutes a
case, it is assumed the State believes it has sufficient
evidence of the defendant’s guilt to proceed. We do not find
that these remarks “were so grossly improper that the trial
court committed reversible error by failing to intervene ex mero
motu.” Jones, 355 N.C. at 133, 558 S.E.2d at 107 (citation
omitted).
Second, Defendant objects to the following argument made by
the State at closing: “[Y]ou heard in the opening statement from
defense counsel that [] [D]efendant has maintained his innocence
this whole time. But he also gave an hour and a half interview
on DVD. Well, you didn't see that interview did you. He didn't
keep his promise on that.” Defendant’s attorney gave the
following statement in his opening argument:
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[Defendant] has maintained his innocence
throughout this process. When he was
contacted by the Burlington Police and they
told him, we want to talk to you, he came
in, and he gave an interview . . . for an
hour and a half, subjected to all their
questions. They recorded this interview,
and they put it on DVD.
While we do not condone the depiction of the defense as not
having kept a promise, State v. Anderson, 200 N.C. App. 216,
224, 684 S.E.2d 450, 456 (2009), Defendant’s attorney did
discuss the DVD interview in his opening statement, which could
reasonably be construed as an indication that Defendant was
planning to introduce Defendant’s recorded statement in support
of his assertion that he had maintained his innocence from the
beginning.
When defendant forecasts evidence in the
opening statement, the State is permitted to
comment upon the lack of evidence supporting
such a forecast in closing argument. “Since
the evidence did not support the facts
contained in defendant's opening statement,
it was not improper for the district
attorney to highlight the absence of
evidence.”
Id. at 224, 684 S.E.2d at 456 (citation omitted). Defendant
argues that the State was improperly making an argument that it
knew to be false – that Defendant had not, in fact, maintained
his innocence from the beginning. However, the DVD in question
was never made part of the record, so there is no way for this
Court to know what statements Defendant made in the recorded
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interview. The challenged statement does not rise to the level
of gross impropriety.
Finally, Defendant argues that the State, in its closing
argument, improperly stated Defendant never requested additional
testing of the DNA evidence. Specifically, Defendant objects to
the italicized portion of the following statements:
Everything the State gets in its file by
law, we have to turn over to the defense, to
the defendant. They have a right to see
everything we have. No surprises in
criminal law. You don't pull a rabbit out
of the hat on somebody. They know what we
have from the very beginning. They know,
they did know, the defendant knew that swabs
were taken in this case, and that they were
sitting at the BPD or the SBI or somewhere,
and there had been no results in this case.
Listen to this, according to 15A-903,
Subsection (d): The defendant shall have the
right to inspect and copy or photograph any
materials contained therein, talking about
the discovery, and under appropriate
safeguards to inspect, examine and test any
physical evidence or sample contained
therein.
If it was so important to the defense side,
you think they may have had it tested?
Because they didn't. I asked Jody West if
the State or the defense counsel recommend
additional testing, and he said not that he
was aware of it, and that's 'cause they
didn't. (Emphasis added).
“A prosecutor may argue to the jury the defendant's failure
to produce exculpatory evidence or evidence which contradicts
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the State's case.” State v. Hester, 343 N.C. 266, 272, 470
S.E.2d 25, 29 (1996) (citation omitted).
However, Defendant contends the State’s comments were
improper because the State knew Defendant had requested DNA
testing. The State obtained a vaginal swab taken from the child
the day following the alleged assault. Special Agent Jody West
(“Agent West”) of the SBI, testified he obtained the swab, but
returned it to the State after determining it was highly
unlikely any DNA not belonging to the child would be recovered
from the sample. This was because the amount of DNA left behind
as a result of digital penetration of a vagina was too small to
be detected by the procedures currently available to the SBI.
Agent West testified that another procedure available to some
local private testing facilities might have been able to detect
foreign DNA from the sample if foreign DNA was present.
Ultimately, no DNA testing was done on the sample.
At a pre-trial hearing, Defendant argued the “late
disclosure of the DNA evidence specifically and the information
that they were not going to test it is, it's prejudicial to the,
to my client, considering the short timeframe.” The following
colloquy then occurred:
THE COURT: So if the State had DNA evidence,
what would you be asking me to do?
MR. CONNOLLY [Defendant’s attorney]: Your
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Honor, I would ask Your Honor to allow the
defendant to seek his own test of the DNA
material.
THE COURT: And if the State doesn't have DNA
evidence, what are you asking me to do?
. . . .
MR. CONNOLLY: Well, Your Honor, I believe
that having someone from the SBI come in and
testify about, about DNA, without ever
having done a test on it, could be
prejudicial and could unnecessarily
influence the jury. I would ask you to
exclude that expert witness.
There is no record evidence that Defendant ever asked for
DNA testing to be done on the sample, or that Defendant
recommended that the State do DNA testing on the sample. At the
motions hearing, Defendant suggested DNA evidence could be
exculpatory, and said he would have requested to submit the
sample for his own testing “if the State had DNA evidence.”
However, the State did not have the swab tested for DNA
evidence. Defendant’s statement was that, in the absence of any
State’s evidence from DNA testing, Defendant would request that
the State not be allowed to call an expert witness to testify
about DNA evidence. The record discloses no instance where
Defendant requested DNA testing.
Defendant fails to show that any of the State’s closing
arguments were so grossly improper that the trial court erred by
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failing to intervene ex mero motu. This argument is without
merit.
III.
In Defendant’s third argument, he contends the trial court
erred in finding that Defendant had been convicted of an
aggravated offense and in ordering lifetime sex offender
registration and satellite-based monitoring. We agree.
We first note that Defendant failed to file a proper notice
of appeal following the hearing to determine issues surrounding
sex offender registration and satellite-based monitoring.
Defendant filed a petition for writ of certiorari on 16 December
2013, requesting that this Court address Defendant’s third
argument despite the lack of a proper notice of appeal. We
grant Defendant’s petition for writ of certiorari, and address
the merits of his argument.
Defendant was convicted of first-degree sexual offense with
a child, N.C. Gen. Stat. § 14-27.4(a)(1), and taking indecent
liberties with a child, N.C. Gen. Stat. § 14-202.1. As the
State points out in its brief, neither of these convictions
constitutes an “aggravated offense” as is required for ordering
lifetime sex offender registration and lifetime satellite-based
monitoring. State v. Santos, 210 N.C. App. 448, 454, 708 S.E.2d
208, 213 (2011); State v. Davison, 201 N.C. App. 354, 361-64,
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689 S.E.2d 510, 515-17 (2009). The trial court erred by
ordering lifetime sex offender registration and lifetime
satellite-based monitoring. In the present case, as in Santos
because the trial court made no
determination as to the other statutory
factors that might compel defendant's
enrollment in satellite-based monitoring [or
sex offender registration] for life, we
remand for consideration of defendant's
eligibility for satellite-based monitoring
pursuant to any of the other categories
described in N.C.G.S. § 14–208.40A[,] [and
sex offender registration pursuant to
N.C.G.S. § 14-208.6A].
Santos, 210 N.C. App. at 455, 708 S.E.2d at 213.
No error in part; reversed and remanded in part.
Judges STEELMAN and ERVIN concur.
Report per Rule 30(e).