State v. Wohlers ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 19-244
Filed: 4 August 2020
Onslow County, Nos. 17 CRS 55834, 17 CRS 55835
STATE OF NORTH CAROLINA
v.
JEREMY JOHN WOHLERS, Defendant.
Appeal by Defendant from judgments entered 7 September 2018 by Judge
Richard Kent Harrell in Superior Court, Onslow County. Heard in the Court of
Appeals 12 November 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Deborah M.
Greene, for the State.
Sean P. Vitrano for Defendant.
McGEE, Chief Judge.
I. Factual and Procedural History
Defendant and A.W. were married in July 2008. As of August 2017, Defendant
and A.W. were living together in Richlands, North Carolina, with their daughters
L.W. (age 8), Jo.W. (age 5), and Ja.W. (age 4), as well as A.W.’s daughter from a
previous partner, M.K. (age 10), with whom A.W. was pregnant when she and
Defendant began dating.
STATE V. WOHLERS
Opinion of the Court
On 13 February 2018, a grand jury indicted Defendant on two counts of
indecent liberties with a child, two counts of felony child abuse by sexual act, and two
counts of statutory sexual offense with a child by an adult. The bill of indictment in
case number 17 CRS 55834 stated the charges with respect to L.W. The indictment
in case number 17 CRS 55835 stated the charges with respect to M.K. The cases were
tried in Superior Court, Onslow County, on 4 September 2018.
At trial, A.W. testified that, around the beginning of August 2017, Defendant
told A.W. that her best friend had reported that L.W. had searched for and watched
pornography on her Kindle tablet. She testified they discussed the need to monitor
the girls’ use of electronic devices more closely. A.W. testified that later that week,
Defendant told her he had been having an affair with her best friend and that he was
leaving A.W. to be with her.
A.W. spoke with all four of her children on 21 August 2017 to explain that
watching pornography was inappropriate. She testified she asked L.W. where she
learned to watch pornography and L.W. replied that “Daddy showed us how to watch
it, and every time you go to work or you go to school, Daddy makes the older three
girls watch it.” A.W. said to the girls that “if this happened, then they needed to tell
somebody they trust[.]” A.W. also told them to tell an adult if someone touches them.
At that point, M.K. said, “Well, Daddy touched me.” M.K. told A.W. that, after the
last cheerleading competition they participated in, “Daddy gave [Ja.W]. his phone
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and put her in another room, and that’s when Daddy touched me.” A.W. testified that
there was a cheerleading competition in June 2017 in Greensboro, North Carolina, at
which she had Jo.W. and L.W. in her car and Defendant had M.K. and Ja.W. in his
car and, after staying the night and attending the cheerleading competition on the
second day, Defendant left several hours early with M.K. and Ja.W. to return to their
home to care for their dog.
After M.K. told A.W. that Defendant had touched her, A.W. contacted the
Onslow County Sheriff’s Department and asked to have an officer come to their house
so she could make a report. A deputy came to the house, along with Sue Barnett
(“Ms. Barnett”), a social worker with Onslow County Department of Social Services.
Denita Sims (“Ms. Sims”), another social worker investigating the case, testified that
Ms. Barnett tried to interview the children outside of Defendant’s presence, but they
did not speak when spoken to and acted bashful and slightly annoyed by the
questions. Ms. Sims testified that Defendant visited DSS the next day. According to
Ms. Sims, Defendant indicated he had previously caught M.K. and L.W. looking at
inappropriate pictures online and also that M.K. was a “problem child.” Ms. Sims
testified Defendant did not at that time deny any of the allegations that had been
made.
Sara Ellis (“Ms. Ellis”), a forensic interviewer with the Child Advocacy Center
of Onslow County, interviewed M.K. and L.W. at the Child Advocacy Center on 30
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August 2017. Ms. Ellis testified that “[a] child forensic interview is a neutral, fact-
finding conversation with a child” and she is “specially trained to have these
conversations with children.” In the interview with M.K., which was video-recorded
and played at trial, M.K. said that Defendant had broken the no-touch rule more than
once when they lived in both houses they had lived in in Richlands and their previous
home in Jacksonville. In the interview, M.K. said during the most recent time after
the cheerleading competition, Defendant broke the no-touch rule for “both” parts.
The State showed M.K. an anatomical diagram on which she had circled where
Defendant had touched her. She identified the place Defendant touched her as the
“private part” which she used to “[p]ee[.]” The prosecutor showed her another
anatomical diagram of genitalia, including labels for the labia majora, labia minora,
clitoris, urethra, vagina, and anus. She was then given a marker and asked to “color
in” the area where Defendant touched her. The exhibit, which was published to the
jury and included in the record on appeal, indicates she colored in the area of the
vagina and the labia minora. M.K. testified Defendant touched her there with his
hand more than one time.
Ms. Ellis testified she interviewed L.W. on 1 September 2017, and a video
recording of the interview was also played at trial. In the interview, L.W. said she
thought Defendant had touched M.K. once, but that M.K. had not told her he had.
She said Defendant had not broken the no-touch rule with her.
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STATE V. WOHLERS
Opinion of the Court
Dr. Suzanne Stelmach (“Dr. Stelmach”), a volunteer physician at the Child
Advocacy Center, conducted physical examinations of M.K. and L.W. after viewing
the interviews with Ms. Ellis. She testified that, based on the alleged conduct being
penetration by Defendant with his fingers, her “anticipated results of the exam would
have been a normal exam[,]” because “[t]hey did not describe anything that would
have resulted in any evidence of trauma.” She testified the examinations of both girls
were in fact normal. Dr. Stelmach also testified regarding female anatomy using a
three-dimensional model. She testified the clitoris is located interior to the labia
majora and that she would consider touching of the clitoris to be penetration of the
genital opening.
Keith Johnston (“Detective Johnston”), a detective with the Special Victims
Unit of the Onslow County Sheriff’s Office, interviewed Defendant on 13 September
2017 and a video of the recorded interview was played at trial. Defendant made a
written statement that he touched L.W. “in privet [(sic)] area on out side area” at the
house where he and the family used to live, when L.W. was 7. In the interview, he
said L.W. was already in the bedroom using the computer when he came in and
touched her on the outside near her clitoris. He said she said “no or something” and
he realized what he was doing was wrong and he stopped after touching her for less
than a minute.
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Opinion of the Court
Defendant also made a written statement saying he “touch[ed] M.K. in privet
[(sic)] area on out side area” at the current house, when M.K. was 9. In the interview,
Defendant said he called her into his bedroom, asked M.K. to take off her pants and
he touched her in her private area, at the top where her clitoris would be. He said he
touched her there for a few minutes. He said M.K. turned her head and only at that
point did he realize what he was doing was wrong and stopped. Defendant denied
exposing himself to M.K. or having an erection.
At the close of the State’s case, the trial court dismissed the statutory sexual
offense charge arising from the conduct against L.W. for insufficient evidence. After
hearing all the evidence, the jury found Defendant not guilty of the statutory sexual
offense charge in 17 CRS 55835, regarding M.K., and returned guilty verdicts as to
the remaining charges of indecent liberties with a child and felony child abuse by
sexual act as to both L.W. and M.K.
The trial court imposed two consecutive sentences of 64 to 137 months each
and ordered Defendant to undergo risk assessment for a satellite-based monitoring
determination and, upon the completion of his term in prison, to register as a sex
offender for 30 years. Defendant appeals.
II. Analysis
Defendant argues three issues on appeal: (1) the trial court plainly erred in
instructing the jury regarding charges of felonious child abuse by sexual act; (2) the
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Opinion of the Court
trial court plainly erred in “permitting [Ms. Ellis] to testify that M.K. had deliberately
withheld information about sexual abuse during the interview and that she was a
child whose disclosure was intended to stop the abuse”; and (3) that the trial court
erred in calculating the maximum term of imprisonment during sentencing.
A. Jury instruction for charges of felonious child abuse by sexual act
Defendant first argues that the trial court plainly erred in instructing the jury
regarding the charges of felonious child abuse by sexual act. Defendant did not object
to the instruction at trial and, therefore, it is not preserved; however, Defendant asks
this court to review the jury instruction for plain error. This Court reviews
unpreserved claims of error in jury instructions for plain error. State v. Lawrence,
365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). A party arguing plain error on appeal
must show “a fundamental error occurred at trial.” Id. (citation omitted). “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.’” Id. (citations omitted). “[B]ecause 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[.]’” Id. (internal citations omitted).
Defendant was charged with two counts of felonious child abuse by sexual act.
N.C. Gen. Stat.§ 14-318.4(a2) provides that “[a]ny parent or legal guardian of a child
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Opinion of the Court
less than 16 years of age who commits or allows the commission of any sexual act
upon the child is guilty of a Class D felony.” N.C. Gen. Stat. § 14-318.4(a2) (2017).
This statute under which Defendant was charged does not specifically define “sexual
act”; however, the trial court gave a jury instruction based on North Carolina Pattern
Jury Instruction — Criminal 239-55B (hereafter N.C.P.I.—Crim. 239-55B), stating
in pertinent part that “[a] sexual act is an immoral, improper or indecent touching or
act by the defendant upon the child.” Defendant argues giving this jury instruction
was legal error, because the definition of “sexual act” that was given was “overbroad.”
Defendant relies on State v. Lark, 198 N.C. App. 82, 678 S.E.2d 693 (2009),
disc. rev. denied, 363 N.C. 808, 692 S.E.2d 111 (2010), and State v. Stokes, 216 N.C.
App. 529, 718 S.E.2d 174 (2009), to argue that a more restrictive definition of “sexual
act” should apply to the offense of felonious child abuse by sexual act. Specifically,
Defendant argues that the following definition of “sexual act” in N.C. Gen. Stat. § 14-
27.20(4) should apply to the offense in N.C.G.S. § 14-318.4(a2):
Sexual act [means] [c]unnilingus, fellatio, analingus, or
anal intercourse, but does not include vaginal intercourse.
Sexual act also means the penetration, however slight, by
any object into the genital or anal opening of another
person’s body. It is an affirmative defense that the
penetration was for accepted medical purposes.
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Opinion of the Court
N.C. Gen. Stat. § 14-27.20(4) (2017).1 Defendant argues this Court “applied the
definition of ‘sexual act’ in . . . [N.C.G.S.] § 14-27.20(4)[] to [N.C.G.S.] § 14-318.4(a2)”
in Lark and Stokes. The State, in turn, argues that although this Court cited the
Article 7B definition of “sexual act” in these cases, in both instances that was obiter
dicta because the question of the appropriate jury instruction for the “sexual act”
element of felony child abuse by sexual act was not before the Court.
We need not determine whether this Court’s citation to the Article 7B
definition of “sexual act” in Lark and Stokes was dicta, however. Since the case before
us was heard by this Court, the Supreme Court of North Carolina has directly
resolved the question of whether, as Defendant argues here, giving the jury
instruction in N.C.P.I.—Crim. 239.55B is error because the Article 7B definition of
“sexual act” applies to and limits the use of that term in the offense of felony child
abuse by sexual act in N.C.G.S. § 14-318.4(a2).
A panel of this Court held in State v. Alonzo, 261 N.C. App. 51, 54–55, 819
S.E.2d 584, 587 (2018), that Lark’s application of the definition of “sexual act” in
N.C.G.S. § 14-27.20(4) (referenced therein in its prior codification as N.C.G.S. § 14-
1 N.C.G.S. § 14-27.20(4) was recodified from N.C.G.S. § 14-27.1(4) in 2015. The article of which
the statute was a subsection was also recodified in 2015 from Article 7A to Article 7B. See An Act to
Reorganize, Rename, and Renumber Various Sexual Offenses to Make Them More Easily
Distinguishable From One Another as Recommended by the North Carolina Court of Appeals in “State
of North Carolina v. Slade Weston Hicks, Jr.,” and to Make Other Technical Changes, S.L. 2015-181,
§§1, 2, 2015 N.C. Sess. Laws 460, 460. For consistency, all references herein will refer to the recodified
language at N.C.G.S. § 14-27.20(4) and Article 7B.
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Opinion of the Court
27.1(4)) to the offense of felony child abuse by sexual act under N.C.G.S. § 14-
318.3(a2) was part of that decision’s holding and thus binding on this Court. This
Court thus held that the trial court erred in using the jury instruction in N.C.P.I.—
Crim. 239.55B because “[w]hile the Pattern Jury Instruction allows a broader
categorization of what qualifies as a ‘sexual act,’ our precedent defines the words more
narrowly.” Id. at 55, 819 S.E.2d at 587 (citation omitted). This Court in Alonzo called
for N.C.P.I.—Crim. 239.55B to be updated to “conform with this Court’s definition in
Lark.” Id. This Court held the defendant in Alonzo was not prejudiced by the trial
court’s error. Id. at 56, 819 S.E.2d at 588.
Our Supreme Court allowed discretionary review of Alonzo and modified and
affirmed this Court’s decision. State v. Alonzo, 373 N.C. 437, 437, 838 S.E.2d 354,
355 (2020). The Supreme Court conducted a statutory analysis of the relevant
provisions, noting that N.C.G.S. § 14-27.20 expressly limited the applicability of its
definitions—including the definition of “sexual act”—to Article 7B. Alonzo, 373 N.C.
at 441, 838 S.E.2d at 357. It further noted that “sexual act” as defined in N.C.G.S.
§ 14-27.20(4) has been interpreted “as arising from the specific elements of the crimes
listed in Article 7[B,]” providing a further reason to conclude the definition was
intended to apply only to first and second degree sexual offense within that article.
Id. at 442, 838 S.E.2d at 358 (alteration reflecting recodification). Our Supreme
Court concluded:
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Opinion of the Court
[T]he legislative history demonstrates that from the time
N.C.G.S. § 14-27.1 was enacted in 1980, until it took its
current form in N.C.G.S. § 14-27.20, the legislature
intended for the definitions in the statute to apply only
within the respective article. Accordingly, it was error for
the Court of Appeals to conclude that the definition of
“sexual act” contained in N.C.G.S. § 14-27.[20](4) was
applicable to offenses under N.C.G.S. § 14-318.4(a2), which
is contained in a separate article, Article 39.
Id. Our Supreme Court has, therefore, rejected precisely the argument Defendant
advances here. Based on Alonzo, we hold the trial court did not err, nor plainly err,
in providing a jury instruction based on N.C.P.I.—Crim. 239.55B and not providing
an instruction based on the definition of “sexual act” under N.C.G.S. § 14-27.20(4).
B. Ms. Ellis’s testimony about M.K.
Defendant next argues that the trial court erred by permitting Ms. Ellis to
testify that she believed M.K. did not make a full disclosure and that “[her interview]
w[as] a tentative disclosure,” because under this Court’s decision in State v. Giddens,
199 N.C. App. 151, 681 S.E.2d 504 (2009), Ms. Ellis was a witness impermissibly
“vouch[ing] for the credibility of a victim.” State v. Giddens, 199 N.C. App. 115, 121,
681 S.E.2d 504, 508 (2009), aff’d per curiam, 363 N.C. 826, 689 S.E.2d 858 (2010). As
Defendant did not timely object at trial, Defendant has requested we review this
unpreserved issue for plain error. N.C. R. App. P. 10(a)(4) (2017); Lawrence, 365 N.C.
at 518, 723 S.E.2d at 334.
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Opinion of the Court
In Giddens, the defendant was charged with multiple sexual offenses
committed on his minor daughter and stepson. Giddens, 199 N.C. App. 115, 121, 681
S.E.2d at 505. A child protective services investigator assigned to the case
interviewed the children and arranged a medical examination. Id. at 118, 681 S.E.2d
at 506. At trial, the investigator testified that the defendant’s actions were
“substantiated,” meaning that the examiners “found evidence throughout the course
of their investigation to believe that the alleged abuse and neglect did occur.” Id.(internal quotation marks and brackets omitted). The jury found the defendant guilty
of all the charges. Id. at 119, 681 S.E.2d at 507. On appeal, this Court ordered a new
trial, holding that the trial court plainly erred by permitting the investigator to testify
that her investigation substantiated the children’s abuse allegations. Id. at 123, 681
S.E.2d at 509. We reasoned that the investigator’s testimony, which was based on
more evidence than just the statements of the children, went beyond permissible
corroboration by prior consistent statements and, furthermore, that “[o]ur case law
has long held that a witness may not vouch for the credibility of a victim.” Id. at 120–
22, 681 S.E.2d at 507–08. This Court further held the trial court’s error prejudiced
the defendant because, “without [the investigator]’s testimony, the jury would have
been left with only the children’s testimony and the evidence corroborating their
testimony[; t]hus . . . ‘the central issue to be decided by the jury was the credibility of
the victim[s].’” Id. at 123, 681 S.E.2d at 509.
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Opinion of the Court
In the present case, Ms. Ellis testified about forensic interview procedures in
general and explained that children disclose abuse in various ways. Videos of the
interviews she conducted were admitted into evidence and played to the jury, after
which the prosecutor asked Ms. Ellis “[h]ow would you describe [M.K.]’s personality,
now that we’ve all had a chance to sort of witness the interview?” She responded that
M.K. was “a very quiet child,” and that “a lot of the questions were answered with, ‘I
don’t know,’ and ‘I don’t remember’ . . .” The transcript then shows the following
exchange between the prosecutor and Ms. Ellis:
Q: Did she seem at all on a mission to tell you much of
anything?
A: Nothing.
Q: Much less make a full detailed disclosure like you’ve
described some interviews do.
A: Yes.
Q: Would you describe [M.K.]’s disclosure—of the four
you mentioned earlier, how would you describe her
disclosure? What categories did that fit into?
....
A: She would be a tentative disclosure. She—just
based on my interaction with her and her lack of wanting
to talk, she’s a child who falls into the I want to tell
someone so this will stop, but I don’t really want it to go
past that, and I just want it to be done.
Defense counsel did not object or move to strike the answer. The trial court excused
the jury and asked the prosecutor whether the line of questioning would continue, in
response to which the prosecutor offered to stop. The trial court said the following:
Okay. I—the witness’s answers to the question are going
beyond, I believe, what the Supreme Court laid out in
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Opinion of the Court
[State v.] Towe as that line that the doctor had crossed in
that case as well. So without there being any physical
findings and—I didn’t—I think the questions earlier about
the characteristics were proper, but when she starts trying
to put this child into a specific category about disclosure—
the jury has seen the interview. They’ve heard the child’s
statement, and they’ve seen her testify. It’s for the jury to
determine that credibility issue.
The court told the prosecutor not to ask further questions; however, when the jury
returned, the court did not instruct the jury to disregard the previous testimony.
Moreover, Defendant did not move to strike the testimony at that time.
Defendant now argues, relying on Giddens, that Ms. Ellis’s testimony was
impermissible vouching of M.K.’s credibility. We need not decide whether the trial
court erred in failing to strike the testimony however, because even assuming,
arguendo, that failing to strike the testimony was error, Defendant cannot show he
was prejudiced by the error. Defendant here cannot show any error was
fundamental—that it “‘had a probable impact on the jury’s finding that the defendant
was guilty.’” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (citation omitted). In
particular, besides the interviews and the trial testimony of M.K., the record also
shows Defendant’s own written statement that he touched M.K.’s private area near
her clitoris for a few minutes, which is itself consistent with M.K.’s testimony.
Although Defendant specifically denied there was any digital penetration of M.K.’s
genitalia in his statement, as we noted above, the restrictive definition of “sexual act”
in N.C.G.S. § 14-27.20(4), on which Defendant relies for his argument that
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Opinion of the Court
penetration is required to establish felony child abuse by sexual act under N.C.G.S.
§ 14-318.4(a2) does not apply to that offense. Regardless of Ms. Ellis’s testimony,
Defendant’s written statement and M.K.’s testimony independently support the
jury’s conclusion that Defendant committed the offense at issue. As Defendant
cannot show Ms. Ellis’s testimony had a probable impact on the jury’s finding of guilt,
he cannot show any error was fundamental and, therefore, we hold there was no plain
error.
C. Calculation of maximum term of imprisonment
Finally, Defendant argues the trial court committed clerical error in the
calculation of the maximum term of imprisonment. Defendant was found guilty of
two counts of taking indecent liberties with a child, each a Class F felony, and two
counts of felony child abuse by sexual act, each a Class D felony. The trial court
consolidated the Class D and F felonies in each case. As Defendant did not have any
prior criminal history points, the trial court determined he was prior record level I.
The trial court found the offenses were reportable convictions under N.C. Gen. Stat.
§ 14-208.6 and imposed a term of 64 to 137 months in each case.
Defendant argues the trial court erred in calculating the maximum sentence
because N.C. Gen. Stat. § 15A-1340.17(f) provides that, for offenders sentenced for
reportable convictions that are Class B1 through E felonies, the maximum term of
imprisonment “shall be equal to the sum of the minimum term of imprisonment and
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twenty percent (20%) of the minimum term of imprisonment, rounded to the next
highest month, plus 60 additional months.” N.C. Gen. Stat. § 15A-1340.17(f) (2017).
Defendant argues that, because N.C.G.S. § 15A-1340.17(c) provides the mandatory
minimum term of imprisonment for a Class D felony, prior record level I, is 51
months, the trial court should have used that term in computing the maximum term
of imprisonment for his sentence, rather than the 64 months it used based on the
minimum term actually imposed. Specifically, because 10.2 months is twenty percent
of 51 months, which is in turn rounded up to 11, Defendant argues the trial court
should have added 51 months plus 11 months plus 60 months to yield a maximum of
122 months.
Defendant relies on State v. Parker, 143 N.C. App. 680, 550 S.E.2d 174 (2001),
to support the proposition that the Structured Sentencing Act permits discretion in
setting a minimum, but “no discretion in the determination of maximum sentences.”
But the State correctly notes that the portion of Parker relied upon by Defendant in
fact supports the contrary argument. In Parker, this Court held as follows:
The Structured Sentencing Act clearly provides for judicial
discretion in allowing the trial court to choose a minimum
sentence within a specified range. However, the language
of the Act provides for no such discretion in regard to
maximum sentences. The legislature did not provide a
range of possible maximum sentences nor did it create a
vehicle to alter the maximum sentences based on the
circumstances of the case as with minimum sentences.
Rather, the Act dictates that once a minimum sentence is
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determined, the “corresponding” maximum sentence is
“specified” in a table set forth in the statute.
State v. Parker, 143 N.C. App. 680, 685–86, 550 S.E.2d 174, 177 (2001) (citations
omitted) (emphasis added). The “minimum term of imprisonment” used to determine
the maximum term under N.C.G.S. § 15A-1340.17(f) is thus not the absolute
minimum mandatory duration within the range identified in the chart set forth under
N.C.G.S. § 15A-1340.17(c), but the minimum term of imprisonment actually imposed
in the sentence.
The presumptive range of minimum durations for a Class D felony for an
offender at prior record level I is 51 to 64 months. N.C. Gen. Stat. § 15A-1340.17©
(2017). The trial court exercised its discretion to sentence Defendant at the top end
of that presumptive range, to a minimum term of imprisonment of 64 months. Once
that minimum was set, the trial court properly applied N.C.G.S. § 15A-1340.17(f),
which provides that “the maximum term of imprisonment shall be equal to the sum
of the minimum term of imprisonment and twenty percent (20%) of the minimum
term of imprisonment, rounded to the next highest month, plus 60 additional
months.” N.C.G.S. § 15A-1340(f). As the minimum term of Defendant’s
imprisonment was set at 64 months, the trial court added 64 plus 13 (being twenty
percent of 64, 12.8, rounded to the next highest month) plus 60, totaling 137 months.
The trial court thus did not commit clerical error in sentencing Defendant to a
maximum term of imprisonment of 137 months.
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III. Conclusion
Defendant argued three issues on appeal. We hold the trial court did not
plainly err in instructing the jury based on N.C.P.I.—Crim. 239-55B, instead of the
definition of sexual act in N.C.G.S. § 14-27.20(4). We also hold the trial court did not
plainly err in not striking Ms. Ellis’s testimony characterizing M.K.’s interview,
because even if it was error, Defendant cannot show the error was prejudicial.
Finally, we hold the trial court did not commit clerical error in sentencing Defendant.
NO ERROR.
Judges BRYANT and BERGER concur.
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