State v. Hawkins ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-744
No. COA22-97
Filed 15 November 2022
Wake County, No. 19CRS219702
STATE OF NORTH CAROLINA
v.
KWAIN HAWKINS
Appeal by defendant from judgment entered 25 June 2021 by
Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of
Appeals 19 October 2022.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sherri
Horner Lawrence, for the State.
Mark Montgomery, for the defendant-appellant.
TYSON, Judge.
¶1 Kwain Hawkins (“Defendant”) appeals from the judgment entered upon a
jury’s verdict for one count of statutory rape of a child fifteen years or younger and
two counts of taking indecent liberties with a child. Defendant’s appeal is dismissed.
I. Background
¶2 Fifteen-year-old “Anna” walked from the bus stop to her house on 17 October
2019. (Pseudonym used to protect identity of minor, per N.C. R. App. P. 41(b)). She
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
rode to and from school every day on the bus, which dropped her off about five minutes
from her home. Anna had been diagnosed with autism and experienced social
anxiety, but is a well-behaved child, who always arrived home promptly between 4:00
and 4:30 p.m.
¶3 On 17 October 2019, Anna noticed an older man standing across the street
from the bus stop. The man, who was later identified as Defendant, made eye contact
with her. Anna attempted to ignore him when crossing the street, and she continued
to listen to music through her headphones while walking home.
¶4 Defendant approached Anna and walked alongside her. He asked her: how old
she was; if she had a boyfriend; if she found him attractive; if she had ever had sex
before; and if she smoked. Anna attempted to ignore Defendant and contemplated
whether to answer his questions truthfully.
¶5 Defendant asked Anna to walk with him to the park. Anna misheard
Defendant because of the music playing on her headphones. She thought Defendant
had said “parking lot,” which was near her home. Anna agreed, hoping Defendant
would leave her alone and rationalizing that she could quickly walk home from the
parking lot. Defendant then asked to hold her hand. Anna said “no” three times
before finally giving in. Anna’s mother would later explain to an investigating officer
that Anna’s social anxiety causes her to avoid “push[ing] back at people because she
hates to be mean and prefers to be a people pleaser.”
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
¶6 Defendant led Anna to an open area, situated between two apartment
buildings, that did not look like a park. Anna and Defendant sat together on a bench
for a few minutes before she told Defendant she was going home. Defendant
repeatedly asked Anna for a hug before she left, and he refused to accept “no” as an
answer.
¶7 While hugging her, Defendant instructed Anna to remove her backpack and
give him a “proper” hug. Anna complied out of fear. Defendant starting kissing Anna
on the lips and demanded for her to return the kiss. Defendant moved his hands
towards Anna’s pants and “grabbed [her] bottom.” He put his hands inside of Anna’s
pants and “put his fingers inside [her] vagina.”
¶8 Defendant directed Anna to follow him to a “more private” wooded area behind
the apartment buildings. Once they reached the wooded area, Defendant told Anna
“to turn around and pull down [her] pants.” When Anna asked “why,” he repeatedly
told her to “bend” over. Anna asked whether Defendant would hurt her if she refused
to comply. Eventually, Anna complied with Defendant’s demands. Defendant stood
behind Anna and penetrated her vagina with his penis. This rape continued until
Defendant was startled by a white van that pulled in behind the apartment complex
and parked.
¶9 Defendant told Anna to follow him, so Anna pulled up her pants and grabbed
her backpack. Anna walked behind Defendant because she “felt safer.” Defendant
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
asked Anna for her name and where she lived. Anna gave Defendant a false name
because she did not “want him to ever come back.” She also pointed in the opposite
location of where her house was located because she “wanted to keep [her] family
safe.”
¶ 10 Anna’s grandmother testified Anna had arrived home late and started crying
uncontrollably after admitting she had been raped. Anna’s grandmother took Anna
to Wake Med North Hospital, while Anna’s mother contacted law enforcement. Wake
Med North transferred Anna to Wake Med’s main hospital campus to collect a rape
kit.
¶ 11 A scientist in the forensic biology section of the North Carolina Crime Lab later
analyzed the rape kit. She determined the male DNA identified on Anna’s vaginal
swabs matched Defendant’s DNA.
¶ 12 While examining Anna’s clothing and undergarments, a City-County Bureau
of Identification agent observed white residue in the groin area of Anna’s underwear.
He noticed “brownish colored stains on the inside of the legs of [Anna’s] leggings.”
¶ 13 Video surveillance from a nearby middle school showed two individuals,
matching Anna and Anna’s description of her assailant, walking from the bus stop
towards Anna’s home around 4:00 p.m. on 17 October 2019. One of the investigating
officers used this surveillance footage to capture a photograph of Defendant. The
officer posted the photograph on an internal Raleigh Police Department website,
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
which is accessible to all officers and detectives, and instructed officers to “Be On The
Lookout” (“BOLO”) for the individual shown in the photo.
¶ 14 Two officers, unrelated to the investigation, recognized Defendant from the
BOLO post and contacted the officer who had posted the image. Those officers
explained they were “about 85 percent [sure] that the suspect [pictured] is Kwain
Hawkins” and included Defendant’s date of birth.
¶ 15 A Wake County grand jury indicted Defendant with one count of statutory rape
of a child fifteen years old or younger and two counts of taking indecent liberties with
a child on 9 March 2020. Anna’s mother and grandmother corroborated Anna’s
testimony. The State entered all of the physical and testimonial evidence outlined
above at trial.
¶ 16 Defendant attempted to elicit expert testimony from a nurse, Caron Jones
(“Jones”), during his case-in-chief. Jones, a registered nurse, was previously
specialized as a “family nurse practitioner and a certified nurse midwife,” although
her certification to practice as a registered nurse and midwife had expired. Jones
was not certified as a Sexual Assault Nurse Examiner (“SANE”), and she had not
conducted an examination on a rape trauma victim in over twenty years. Before trial,
Defendant had sent emails to the State indicating Jones was prepared to testify “with
100 percent certainty [ ] the victim in this case had not been penetrated based on the
amount of DNA that was found on her vaginal swabs.”
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
¶ 17 The State filed a motion in limine to exclude this testimony because Jones
intended to draw a legal conclusion about whether a sexual “penetration” occurred.
N.C. Gen. Stat. § 8C-1, Rule 704 (2021). The State conceded at a pre-trial hearing
Jones “could testify that there was nothing in the medical examination consistent
with sexual abuse,” if tendered as an expert witness.
¶ 18 After the voir dire of Jones, the trial court found and concluded Jones was only
“qualified to describe female anatomy.” The trial court would have allowed Jones to
testify there were “no findings of physical trauma in the medical records from the
examination of [Anna],” but would not allow Jones to link her opinion “to any
conjecture as to whether a sexual assault occurred because she d[id] not have a
scientific basis for that linkage.” Defendant chose not to call Jones to testify
purportedly because of the limitations regarding her testimony.
¶ 19 The jury’s verdict found Defendant to be guilty on all three charges. Defendant
was sentenced as a prior record level IV offender. He received an aggravated sentence
of 456 to 607 months. Defendant filed a timely notice of appeal.
II. Jurisdiction
¶ 20 Defendant filed a petition for writ of certiorari. He realized after filing his brief
that a certificate of service evidencing service of his notice of appeal was missing from
the record on appeal. Defendant also realized his notice of appeal omitted the trial
court’s rulings, both the pretrial ruling on the State’s motion in limine and the ruling
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
following the voir dire of Jones during trial, regarding the limitations of Jones’ expert
witness testimony.
¶ 21 Defendant’s notice of appeal only discussed the court’s ruling on the motion in
limine regarding the use of the word “rape,” along with five other issues, none of
which were discussed in neither Defendant’s nor the State’s briefs. In his list of
proposed issues on appeal, Defendant included the “exclusion of testimony from the
defendant’s expert witness.”
¶ 22 Whether a party adheres to the rules governing appellate procedure is a
jurisdictional issue. Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362
N.C. 191, 197, 657 S.E.2d 361, 364-65 (2008) (“The appellant’s compliance with the
jurisdictional rules governing the taking of an appeal is the linchpin that connects
the appellate division with the trial division and confers upon the appellate court the
authority to act in a particular case.”).
¶ 23 “The North Carolina Rules of Appellate Procedure are mandatory and failure
to follow these rules will subject an appeal to dismissal.” Viar v. N.C. Dep’t of Transp.,
359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005) (citation and quotation marks omitted).
¶ 24 A criminal defendant may appeal “from a judgment or order of a superior or
district court” by:
(1) giving oral notice of appeal at trial, or
(2) filing notice of appeal with the clerk of superior court
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
and serving copies thereof upon all adverse parties
within fourteen days after entry of the judgment or
order or within fourteen days after a ruling on a motion
for appropriate relief made during the fourteen-day
period following entry of the judgment or order.
N.C. R. App. P. 4(a) (emphasis supplied).
¶ 25 When a Defendant provides a written notice of appeal, the notice must also
“designate the judgment or order from which appeal is taken and the court to which
appeal is taken.” N.C. R. App. P. 4(b).
¶ 26 To preserve an issue for appeal, “a party must have presented to the trial court
a timely request, objection, or motion, stating the specific grounds for the ruling the
party desired the court to make if the specific grounds were not apparent from the
context.” N.C. R. App. P. 10(a)(1).
¶ 27 The party invoking appellate jurisdiction must also prepare a list of “[p]roposed
issues that the appellant intends to present on appeal . . . without argument at the
conclusion of the printed record in a numbered list.” N.C. R. App. P. 10(b). This list
of proposed issues on appeal “shall not limit the scope of the issues presented on appeal
in an appellant’s brief.” Id. (emphasis supplied).
¶ 28 Rule 21 of the North Carolina Rules of Appellate Procedure provides an
alternative, although a discretionary and extraordinary basis for parties to obtain
appellate jurisdiction. State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959)
(citations omitted) (explaining a petition for writ of certiorari “must show merit or
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
that error was probably committed below” and “is a discretionary writ, to be issued
only for good and sufficient cause shown”). If a party petitions this court for a writ of
certiorari, this Court, wholly within its discretion, may “suspend or vary the
requirements or provisions of any of these rules in a case pending before it upon
application of a party.” N.C. R. App. P. 2.
A. Certificate of Service Requirement per Rule 4(a) of North Carolina
Rules of Appellate Procedure
¶ 29 This Court may issue a writ of certiorari “in appropriate circumstances . . .
when the right to prosecute an appeal has been lost by failure to take timely action.”
N.C. R. App. P. 21(a)(1) (emphasis supplied). “Rule 21(a)(1) gives an appellate court
the [jurisdictional] authority to review the merits of an appeal by certiorari even if
the party has failed to file notice of appeal in a timely manner.” Anderson v.
Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997).
¶ 30 In Hale v. Afro-Am. Arts Int’l., Inc., this Court “dismissed defendants’ appeal
after the record on appeal had been served on the appellee and docketed without
objection in the Court of Appeals and after all briefs had been duly filed.” 335 N.C.
231, 232, 436 S.E.2d 588, 589 (1993) (per curiam) (emphasis supplied). Our state
Supreme Court disagreed with this Court’s decision.
¶ 31 “[A] party upon whom service of notice of appeal is required may waive the
failure of service by not raising the issue by motion or otherwise and by participating
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
without objection in the appeal, as did the plaintiff here.” Id. (reversing and
remanding the case back to this Court “for consideration on the merits”).
¶ 32 Here, the facts are similar to those in Hale. While Defendant failed to include
a copy of the certificate of service in the record on appeal, the State nevertheless
responded to Defendant’s brief and filed responsive arguments without objection.
Hale, 335 N.C. at 232, 436 S.E.2d at 589. The State only noticed the defect in the
record after Defendant had raised the issue in his petition for writ of certiorari, which
was filed over a month after the State submitted its reply brief.
¶ 33 The State has waived their opportunity to raise the failure of service objection
“by not raising the issue by motion or otherwise and by participating without
objection in the appeal.” Id. If Defendant’s failure to include the certificate of service
in the record on appeal was the only jurisdictional defect in his appeal, this Court
could review Defendant’s appeal per Hale. 335 N.C. at 232, 436 S.E.2d at 589.
B. The “Designate the Judgment or Order” Requirement under Rule 4(b)
of North Carolina Rules of Appellate Procedure
¶ 34 Our Supreme Court recently re-affirmed: “A writ of certiorari is not intended
as a substitute for a notice of appeal because such a practice would render
meaningless the rules governing the time and manner of noticing appeals.” State v.
Ricks, 2021-NCSC-116, ¶ 6, 378 N.C. 737, 741, 862 S.E.2d 835, 839 (2021) (citation
and quotation marks omitted).
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
¶ 35 The Court in State v. Ricks reviewed a claim with jurisdictional defects due to
a defendant’s failure to comply with the North Carolina Rules of Appellate Procedure.
Id., ¶ 3-4, 378 N.C. at 739, 862 S.E.2d at 837-38 (citing the reasoning adopted by the
dissent in State v. Ricks, 271 N.C. App. 348, 843 S.E.2d 652 (2020) (Tyson, J.,
concurring in the result in part and dissenting in part)).
¶ 36 The defendant in Ricks “gave oral notice of appeal from his criminal
convictions,” but “he made no objection to the imposition of SBM [at trial] and never
filed a written notice of appeal of the SBM orders.” Id., ¶ 3, 378 N.C. at 739, 862
S.E.2d at 837. The defendant filed “a petition for writ of certiorari seeking review of
the SBM orders” after filing the record of appeal. Id.
¶ 37 Our Supreme Court held this Court abused its discretion in Ricks by invoking
Rule 2 to review a constitutional argument the defendant had failed to preserve at
trial, which is required by Rule 10. Id., ¶ 5-6, 378 N.C. at 740-41, 862 S.E.2d at 838-
39 (noting the defendant also had failed to comply with Rule 3, which is the civil
equivalent of Rule 4, by failing to file a written notice of appeal of the SBM issue);
N.C. R. App. P. 2, 3, 4, and 10.
¶ 38 “Though the Court of Appeals may issue a writ of certiorari to review a trial
court’s order ‘when the right to prosecute an appeal has been lost by failure to take
timely action,’ N.C. R. App. P. 21(a)(1), the petition must show ‘merit or that error
was probably committed below.’” Id., ¶ 6, 378 N.C. at 741, 862 S.E.2d at 839 (citing
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
Grundler, 251 N.C. at 189, 111 S.E.2d at 9).
¶ 39 Here, Defendant’s procedural defects differ from the defects present in Ricks
because Defendant complied with Rule 10. Id., ¶ 5-6, 378 N.C. at 740-41, 862 S.E.2d
at 838-39. The issue Defendant asks this Court to review on appeal was preserved
at trial in accordance with Rule 10(a)(1). N.C. R. App. P. 10(a)(1) (noting, to preserve
an issue on appeal, “a party must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the ruling the party desired the
court to make” and the party must have “obtain[ed] a ruling”).
¶ 40 The trial court ruled on the State’s motion in limine and its Rule 702 objection
at trial. Defendant also included the exclusion of Jones’ expert witness testimony in
his list of proposed issues on appeal, which is also required by Rule 10(b). N.C. R.
App. P. 10(b).
¶ 41 Although Defendant complied with Rule 10, Defendant’s appeal still possesses
jurisdictional defects because of his failure to comply with Rule 4. Ricks, ¶ 6, 378
N.C. at 741, 862 S.E.2d at 839 (citing Grundler, 251 N.C. at 189, 111 S.E.2d at 9);
N.C. R. App. P. 4 and 10. Defendant’s petition for writ of certiorari must assert a
showing of “merit or that error was probably committed below.” Id.III. Restricting Expert Testimony
¶ 42 Defendant purports to raise one issue on appeal: whether the trial court erred
by restricting Jones’ expert testimony. Defendant argues an expert witness is not
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
required to cite specific scientific studies to support their opinions when testifying to
the characteristics of alleged rape victims.
A. Standard of Review
¶ 43 “In reviewing trial court decisions relating to the admissibility of expert
testimony evidence, this Court has long applied the deferential standard of abuse of
discretion. Trial courts enjoy wide latitude and discretion when making a
determination about the admissibility of [expert] testimony.” State v. King, 366 N.C.
68, 75, 733 S.E.2d 535, 539-40 (2012) (citation omitted).
B. Analysis
¶ 44 Rule 702 of the North Carolina Rules of Evidence governs the admissibility of
expert testimony, which provides:
If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion, or otherwise, if all
of the following apply:
(1) The testimony is based upon sufficient facts or
data.
(2) The testimony is the product of reliable principles
and methods.
(3) The witness has applied the principles and
methods reliably to the facts of the case.
N.C. Gen. Stat. § 8C-1, Rule 702 (2021).
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
¶ 45 The trial court reviews and determines preliminary questions regarding the
qualifications of a witness to testify as an expert witness and the admissibility of
evidence. N.C. Gen. Stat. § 8C-1, Rule 104(a) (2021); State v. Goode, 341 N.C. 513,
527, 461 S.E.2d 631, 639 (1995) (explaining Rule 702 and Rule 104(a) read
conjunctively mean that when “a trial court is faced with a proffer of expert testimony,
it must determine whether the expert is proposing to testify to scientific, technical,
or other specialized knowledge that will assist the trier of fact to determine a fact in
issue”).
¶ 46 The first prong of Rule 702 focuses on the principles and methodologies an
expert utilized or relied upon when reaching their conclusions.
The subject of an expert’s testimony must be “scientific . . .
knowledge.” The adjective “scientific” implies a grounding
in the methods and procedures of science. Similarly, the
word “knowledge” connotes more than subjective belief or
unsupported speculation.
...
[I]n order to qualify as “scientific knowledge,” an inference
or assertion must be derived by the scientific method.
Proposed testimony must be supported by appropriate
validation—i.e., “good grounds,” based on what is known.
In short, the requirement that an expert’s testimony
pertain to “scientific knowledge” establishes a standard of
evidentiary reliability.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-90, 125 L.Ed.2d 469, 480-81
(1993); see also Pope v. Bridge Broom, Inc., 240 N.C. App. 365, 376, 770 S.E.2d 702,
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
711 (2015) (citations and quotation marks omitted) (“The requirement that expert
testimony must be based on scientific knowledge, means that the principles and
methods used to form that testimony must be grounded in the scientific method. In
other words, the principles and methods must be capable of generating testable
hypotheses that are then subjected to the real world crucible of experimentation,
falsification/validation, and replication.”).
¶ 47 Here, Defendant has failed to show the trial court did not act and rule within
the allowable scope of its discretion. The trial court first applied the factors outlined
in Daubert when determining whether Jones was qualified as an expert, focusing on
the absence of reliable principles and methods.
THE COURT: Okay. I think we’re here just simply – I
have not really – my question was what studies did she rely
on because one of the – you know, three criteria under
Daubert is the underlying scientific theory must be valid,
the technique applying the theory must be valid, and the
technique must have been properly applied upon the
occasion in question. . . . I was trying to understand what
scientific theories was she relying upon in making these
conclusions about the lack of physical trauma is
inconsistent with a report of a 15-year-old being statutorily
raped. And that’s – that is the – I was simply asking what
scientific data she was relying on.
¶ 48 The trial court also contemplated how to balance Jones’ lack of credentials and
training with Defendant’s right to present a defense.
THE COURT: All right. This would put the Court in
somewhat of a dilemma because, clearly, I have a
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
gatekeeping function under Rule 702 of the Rules of
Evidence to exclude unqualified expert testimony, and I’ll
candidly say much of what I heard falls into that category.
What I am balancing that against – and normally that’s a
discretionary call on my part[,] and I would simply exercise
my discretion and make that ruling.
What I’m balancing here is there is a constitutional right
of the defendant to present a defense, and that’s the
challenge that I have here is that, in spite of my – in spite
of what I’ve heard regarding the scientific basis or
application of that scientific theory to this case, there is a
higher burden on making a decision here. What I am – and
there’s no doubt that Ms. Jones has extensive experience
as a nurse-practitioner, a registered nurse, as an
administrator in the health field. And certainly not
diminishing that, but this case relates to sexual assault
examinations in 2019, and that is where the expertise
needs to be.
I would permit two opinions. Well, one, yes, I agree with
the State that she is qualified to describe female anatomy.
The second thing that I would allow her to testify to – and
this is a very narrow opinion that she may render. She may
tell the jury, if she so believes, that there are – there is –
are no findings of physical trauma in the medical records
from the examination of the alleged victim in this case.
However, she cannot link that opinion to any conjecture as
to whether a sexual assault occurred because she does not
have a scientific basis for that linkage.
¶ 49 Defendant has failed to demonstrate anywhere in the record that the trial
court was not correctly analyzing and exercising its discretion to answer the
preliminary question of whether Jones was qualified to testify as an expert witness,
and to determine the allowable range and scope of her testimony. Goode, 341 N.C. at
STATE V. HAWKINS
2022-NCCOA-744
Opinion of the Court
527, 461 S.E.2d at 639. Defendant’s argument is without merit.
IV. Conclusion
¶ 50 Defendant has failed to show merit or prejudice in his petition for writ of
certiorari. Defendant’s explanations of his jurisdictional and procedural defects, in
the exercise of our discretion, do not warrant this Court’s issuance of the writ without
a showing of merit or that prejudicial error was probably committed by the trial court.
Ricks, ¶ 6, 378 N.C. at 741, 862 S.E.2d at 839 (citing Grundler, 251 N.C. at 189, 111
S.E.2d at 9).
¶ 51 Defendant has failed to demonstrate anything tending to show the trial court
abused its discretion by limiting the expert opinion testimony of Jones. Although
Defendant was allowed to call Jones to testify, he failed to call and preserve her
testimony or to make a voir dire proffer of what scientific evidence her testimony
would have relied on. Defendant has failed to show he did not receive a fair trial, free
from prejudicial errors he preserved and argued on appeal.
¶ 52 Defendant’s petition is denied, and the appeal is dismissed. It is so ordered.
DISMISSED
¶ Judges ZACHARY and HAMPSON CONCUR