State v. Alonzo , 261 N.C. App. 51 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1186
Filed: 21 August 2018
Cumberland County, No. 14-CRS-56074
STATE OF NORTH CAROLINA
v.
EDWARD M. ALONZO, Defendant.
Appeal by Defendant from judgment entered 11 January 2017 by Judge Gale
M. Adams in Cumberland County Superior Court. Heard in the Court of Appeals 5
June 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Ellen A.
Newby, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel
Shatz, for defendant-appellant.
MURPHY, Judge.
Defendant, Edward M. Alonzo, appeals his convictions of taking indecent
liberties with a child and felony child abuse. These convictions result from the sexual
conduct Defendant inflicted on his daughter, Sandy,1 while the family resided in
Fayetteville between 1990-1993. At issue is whether a trial court commits plain error
1 We refer to Defendant’s daughter by a pseudonym as she was under the age of 18 at the time
of the offenses.
STATE V. ALONZO
Opinion of the Court
by giving jury instructions that follow the present Pattern Jury Instruction, but are
not in accordance with current law. Further, here, we must determine whether the
trial court erred in excluding portions of Defendant’s testimony under Rules 401 and
403. N.C.G.S. § 8C-1, Rules 401, 403. Upon review, we find no plain error, and no
error, respectively.
BACKGROUND
Defendant began sexually molesting Sandy when she was only four years old.
This assault continued as their military family moved throughout the United States
and Europe. Despite Sandy informing her mother, Defendant’s behavior persisted.
In 2012, having obtained the age of majority, Sandy contacted local, federal,
and military authorities across the country regarding the molestation she endured as
a child. When Sandy contacted the Cumberland County Sheriff’s Department, where
the family resided in Fayetteville from approximately 1990-1993, they ultimately
informed her that there is no statute of limitations for felonies in North Carolina.2
A grand jury issued superseding indictments on 3 January 2017 against
Defendant for taking indecent liberties with a child, felonious child abuse, and first
degree statutory sexual offense. At trial, Ms. Alonzo (Defendant’s ex-wife and
Sandy’s mother) testified that she witnessed Defendant molest Sandy sometime
between December 1990 and January 1991, when Defendant was home on
2 State v. Taylor, 212 N.C. App. 238, 249, 713 S.E.2d 82, 90 (2011) (“In [North Carolina] no
statute of limitations bars the prosecution of a felony.” (citation omitted)).
-2-
STATE V. ALONZO
Opinion of the Court
compassionate leave from the Army. Defendant attempted to testify that the reason
for his compassionate leave was the rape of his other daughter by a neighbor.
However, the trial court disallowed this testimony, deeming it both irrelevant and
more prejudicial than probative. At the close of the trial, the judge instructed the
jury using the Pattern Jury Instructions, including, inter alia, N.C.P.I.--Crim.
239.55B, the instruction for felonious child abuse.
On 11 January 2017, Defendant was convicted of taking indecent liberties with
a child and felonious child abuse. The jury found him not guilty of first degree
statutory sexual offense.3 Defendant timely appealed, focusing on the jury
instructions and the trial court’s decision to exclude portions of his proposed
testimony.
ANALYSIS
A. Jury Instructions
At trial, Defendant failed to object to the instructions regarding the charge of
felonious child abuse by sexual act in violation of N.C.G.S. § 14-318.4(a2) (1991).4
Therefore, the trial court’s decision will only be overturned upon a finding of plain
error. State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012).
3 First degree statutory sexual offense is defined as “a sexual act with a victim who is a child
under the age of 13 years and the defendant is at least 12 years old and is at least four years older
than the victim.” N.C.G.S. § 14-27.29(a) (2017).
4 For the purposes of this case, there is no substantive difference between N.C.G.S. § 14-
318.4(a2) (1991) and the versions applied in the cases cited in this opinion.
-3-
STATE V. ALONZO
Opinion of the Court
“[T]he North Carolina plain error standard of review [for jury instructions]
applies only when the alleged error is unpreserved[.]” Id. “Under the plain error
rule, defendant must convince this Court not only that there was error, but that
absent the error, the jury probably would have reached a different result.” State v.
Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
The trial court instructed the jury that:
To find [Defendant] guilty of this offense the State must
prove three things beyond a reasonable doubt: First, that
[Defendant] was the parent of [Sandy]. Second, that at the
time [Sandy] had not yet reached her 16th birthday. Third,
that [Defendant] committed a sexual act upon [Sandy]. A
sexual act is an immoral, improper or indecent act by
[Defendant] upon [Sandy] for the purpose of arousing,
gratifying sexual desire.
These instructions track, almost precisely, the language of the North Carolina
Pattern Jury Instruction, N.C.P.I.--Crim. 239.55B, the suggested instructions for the
charge of felonious child abuse. “[T]he preferred method of jury instruction is the use
of the approved guidelines of the North Carolina Pattern Jury Instructions.” Caudill
v. Smith, 117 N.C. App. 64, 70, 450 S.E.2d 8, 13 (1994) (citation omitted).
Defendant does not argue that the Pattern Jury Instruction is inapplicable to
his case. Instead, Defendant takes issue with the language of the instruction and
argues the definition of “sexual act” is incorrect, pointing to an inconsistency between
the Pattern Jury Instruction and this Court’s precedent. While Defendant’s
argument has merit, the error does not rise to the level of plain error here.
-4-
STATE V. ALONZO
Opinion of the Court
1. Inaccuracy of Pattern Jury Instruction
Defendant addresses a discrepancy between N.C.P.I.--Crim. 239.55B and our
prior interpretation of a sexual act, as applied to N.C.G.S. § 14-318.4(a2). We have
previously held that the definition of “sexual act” in N.C.G.S. § 14-318.4(a2) is the
definition contained in N.C.G.S. § 14-27.1(4) (recodified as N.C.G.S. § 14-27.20(4)).
State v. Lark, 198 N.C. App. 82, 88, 678 S.E.2d 693, 698 (2009). N.C.G.S. § 14-27.20(4)
defines “sexual act” as:
cunnilingus, 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:
provided, that it shall be an affirmative defense that the
penetration was for accepted medical purposes.
The State argues, and Defendant concedes, that a later decision of this Court diverges
from this definition of sexual act, declining to extend the N.C.G.S. § 14-27.1(4)
definition to N.C.G.S. § 14-318.4(a2). State v. McClamb, 234 N.C. App. 753, 758-59,
760 S.E.2d 337, 341 (2014) (citations omitted). As such, there is a conflict between
our precedent. However, “when there are conflicting lines of opinions from this Court,
we generally look to our earliest relevant opinion in order to resolve the conflict.”
State v. Meadows, ___ N.C. App. ___, ___, 806 S.E.2d 682, 693 (2017), cert. granted
___, N.C. ___, 812 S.E.2d 847 (2018). As we are bound by our earlier decision in Lark,
the State’s argument regarding McClamb is without merit.
-5-
STATE V. ALONZO
Opinion of the Court
As a result, there is inconsistency between N.C.P.I.--Crim. 239.55B and our
controlling interpretation of “sexual act” as applied to N.C.G.S. § 14-318.4(a2). See
Lark, 198 N.C. App. at 88, 678 S.E.2d at 698. While the Pattern Jury Instruction
allows a broader categorization of what qualifies as a “sexual act,” our precedent
defines the words more narrowly. Compare id., with N.C.P.I.--Crim. 239.55B. We
express concern about this split in definitions for “sexual act.” This divergence
indicates the necessity of updating the Pattern Jury Instructions to be in accordance
with our precedent. Lark, 198 N.C. App. at 88, 678 S.E.2d at 698; N.C.P.I.--Crim.
239.55B. The Pattern Jury Instruction’s definition of sexual act must conform with
this Court’s definition in Lark.
As binding precedent supports Defendant’s claim of inaccurate jury
instructions, we must now determine whether the trial court’s use of the Pattern Jury
Instruction constituted plain error.
2. Prejudice
In deciding whether this error in the Pattern Jury Instruction rises to the level
of plain error, we first hold that Defendant’s claim that “[t]he combination of the
jury’s verdicts finding [Defendant] not guilty of sex offense and guilty of . . . the [child
abuse] charge directly establishes” plain error is unconvincing. Defendant argues
that the proper definition of sexual act for the felonious child abuse charge “would
have mirrored” the instruction the jury received for sexual act in relation to
-6-
STATE V. ALONZO
Opinion of the Court
Defendant’s first degree statutory sexual offense charge.5 Defendant alleges the not
guilty verdict on the sexual offense charge demonstrates that the jury had reasonable
doubt that Defendant penetrated Sandy, and, that had the Lark definition of sexual
act been given for the child abuse instruction, Defendant would have been found not
guilty of that crime as well. Defendant’s prejudice argument focuses on this alleged
“inconsistency” between the jury’s verdicts.
However, as inconsistent verdicts are not prima facie evidence of error, and as
we are not convinced a proper jury instruction would have rendered a different
verdict, we hold that the trial court’s instructions did not prejudice the jury.
Lawrence, 365 N.C. at 516, 723 S.E.2d at 333; State v. Mumford, 364 N.C. 394, 398-
401, 699 S.E.2d 911, 914-16 (2010).
While verdicts that are “inconsistent and contradictory” indicate error,
“verdicts that are merely inconsistent” may be both grounded in logic and not
erroneous. Mumford, 364 N.C. at 398-401, 699 S.E.2d at 914-16. To determine
whether conflicting verdicts are “merely inconsistent,” or both “inconsistent and
contradictory,” we must look to the relationship between the charges. Id. Erroneous
jury decisions occur when contradictory verdicts are “mutually exclusive,” one guilty
5 The definition of “sexual act” given for the first degree statutory sexual offense charge was
“any penetration, however slight, by an object into the genital opening of a person’s body.” The proper
definition for sexual act in relation to the felonious child abuse charge is, in pertinent part,
“penetration, however slight, by any object into the genital or anal opening of another person’s body.”
Lark, 198 N.C. App. at 88, 678 S.E.2d at 698.
-7-
STATE V. ALONZO
Opinion of the Court
finding eliminating the possibility of an accurate guilty verdict on the other charges.
Id. (citations omitted). However, the charges Defendant faced, indecent liberties
with a child, felonious child abuse, and first degree statutory sexual offense, were not
“mutually exclusive” because “guilt of one [did not] necessarily exclude[] guilt of the
other[s].” Id. at 400, 699 S.E.2d at 915; see State v. Farlow, 336 N.C. 534, 444 S.E.2d
913 (1994) (establishing that the charges of indecent liberties with a child and first
degree sexual offense are not mutually exclusive). Therefore, what Defendant
proposes as inconsistencies within these jury verdicts, acquittal on the sexual offense
charge, but guilty of the child abuse charge, does not rise to the level of plain error in
the jury instructions. Mumford, 364 N.C. at 398-401, 699 S.E.2d at 914-16.
Further, we are not convinced the jury would reach a different result had the
proper jury instruction been given. Lark, 198 N.C. App. at 88, 678 S.E.2d at 698;
N.C.P.I.--Crim. 239.55B. “It is well established in North Carolina that a jury is not
required to be consistent . . . .” State v. Rosser, 54 N.C. App. 660, 661, 284 S.E.2d 130,
131 (1981) (citations omitted). Since 1925, our Supreme Court has found validity in
inconsistent jury verdicts, stating that:
The offenses are designated in the statute separately, and
while the jury would have been fully justified in finding the
defendant guilty on both counts, under the evidence in this
case, their failure to do so does not, as a matter of law,
vitiate the verdict . . . .
-8-
STATE V. ALONZO
Opinion of the Court
State v. Sigmon, 190 N.C. 684, 691, 130 S.E. 854, 857 (1925). Furthermore,
throughout North Carolina jurisprudence, our appellate courts have reaffirmed the
legitimacy of inconsistent jury verdicts. Rosser, 54 N.C. App. at 661, 284 S.E.2d at
131; State v. Davis, 214 N.C. 787, 71 S.E.2d 104 (1939) (upholding jury verdicts
finding Defendant guilty of transporting liquor for the purpose of selling it, but not
guilty of possessing liquor).
As precedent dictates the validity of inconsistent verdicts, Defendant’s
argument of inconsistency indicating plain error fails to satisfy us “that absent the
error, the jury probably would have reached a different result.” Jordan, 333 N.C. at
440, 426 S.E.2d at 697. Therefore, we hold that the trial court’s utilization of the
Pattern Jury Instruction does not rise to the level of plain error.
Lark’s definition of “sexual act” as applied from N.C.G.S. § 14-27.1(4) to
N.C.G.S. § 14-318.4(a2) remains binding on our review and results in a split between
the Pattern Jury Instruction and current law. Lark, 198 N.C. App. at 88, 678 S.E.2d
at 698. However, the trial court’s decision to follow the Pattern Jury Instruction did
not rise to the level of plain error as Defendant failed to demonstrate that the jury
would have reached a different verdict had correct jury instructions been given, with
the proper definition of “sexual act.” Jordan, 333 N.C. at 440, 426 S.E.2d at 697.
B. Exclusion of Testimony
-9-
STATE V. ALONZO
Opinion of the Court
Defendant also appeals the trial court’s exclusion of his proposed testimony
regarding the sexual assault of his other daughter by a neighbor. Defendant alleges
that his testimony concerning the sexual assault of his other daughter by a neighbor
operates as substantive evidence of the fact that he did not sexually assault Sandy
during his compassionate leave.6 Defendant also alleges that this proposed testimony
should have been allowed to impeach the testimony of Ms. Alonzo relating to her
having witnessed Defendant sexually assault Sandy during his compassionate leave.
On appeal, Defendant maintains that his testimony informing the jury of the sexual
assault of his other daughter proves that he “would have been sufficiently deterred”
from molesting Sandy during that same time period as “Ms. Alonzo [was] watching
him like a hawk.” Further, Defendant alleges that his testimony would “discredit[]
Ms. Alonzo’s testimony” that she saw him sexually assault Sandy, making her
explanation for not contacting the police after witnessing his acts “less convincing.”
The trial court found Defendant’s proposed testimony irrelevant under
N.C.G.S. § 8C-1, Rule 401, and alternatively found that it did not satisfy the
balancing test of N.C.G.S. § 8C-1, Rule 403. On appeal, the trial court’s Rule 401
decisions are “given great deference.” Dunn v. Custer, 162 N.C. App. 259, 266, 591
S.E.2d 11, 17 (2004) (citation omitted). A trial court’s ruling under Rule 403’s
6 At trial, Defendant argued that this part of his testimony would show that “he wouldn’t have
molested [Sandy] in Fayetteville because of the trauma, because of the all of the things that the family
would have had to have gone through and that new ordeal, that new situation would have made him
less likely to molest [Sandy].”
- 10 -
STATE V. ALONZO
Opinion of the Court
balancing test will not be disturbed absent an abuse of discretion. State v. Whaley,
362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008).
1. Substantive Use
a. Rule 401
Defendant claims that his testimony regarding the unrelated sexual assault of
his other daughter offers substantive, relevant evidence that he did not sexually
molest Sandy during his compassionate leave. “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.” State v. Griffin, 136 N.C. App. 531, 550, 525 S.E.2d 793, 806 (internal
quotation marks and citation omitted) (2000). Defendant, however, fails to establish
how his proposed testimony concerning the sexual assault of his other daughter by
another person would have the “logical tendency to prove” he was therefore less likely
to assault Sandy. Id. As Defendant’s arguments fail to establish this alleged
correlation, his proposed testimony does not “have a logical tendency to prove” that
Defendant would not have sexually molested Sandy. Id.; N.C.G.S. § 8C-1, Rule 401.
As we give “great deference” to the trial court, we decline to disturb the trial court’s
Rule 401 relevancy ruling. Dunn, 162 N.C. App. at 266, 591 S.E.2d at 17.
b. Rule 403
Further, assuming arguendo that Defendant’s evidence regarding the sexual
assault of his other daughter was relevant, the trial court did not abuse its discretion
- 11 -
STATE V. ALONZO
Opinion of the Court
in excluding the testimony. Whaley, 362 N.C. at 160, 655 S.E.2d at 390; N.C.G.S. §
8C-1, Rule 403. “A trial court may be reversed for abuse of discretion only upon a
showing that its actions are manifestly unsupported by reason.” White v. White, 312
N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Rule 403 requires the trial court to balance
the prejudicial and probative value of any evidence, admitting only evidence that
benefits rather than hinders the jury’s deliberation. N.C.G.S. § 8C-1, Rule 403. The
testimony concerning the sexual assault of another child by an unrelated, third-party
had the potential to confuse the jury, outweighing any probative value, and it was
therefore not an abuse of discretion for the trial court to exclude Defendant’s
testimony as it related to the production of allegedly substantive evidence.7
2. Impeachment Use
At trial and on appeal, Defendant also maintains that his testimony could have
been used to impeach Ms. Alonzo’s testimony that he sexually assaulted Sandy.
a. Rule 401
Defendant asserts that because Ms. Alonzo reported the sexual assault of their
other daughter by a neighbor, she therefore would have reported any assault she
witnessed him commit. Defendant further alleges that because Ms. Alonzo did not
file any reports, the jury could have therefore determined there was no sexual assault.
7The trial court stated that “I don’t find that [the proposed testimony] is more probative than
would be, as the State has indicated, confusing to the jury why we’re even delving into issues regarding
the other daughter.”
- 12 -
STATE V. ALONZO
Opinion of the Court
We agree with the State that Ms. Alonzo turning in a neighbor for sexual assault is
entirely different, psychologically and emotionally, than turning in her husband.
Without an established correlation between turning in neighbors and husbands for
sexual assault, Defendant’s proposed testimony does not “have a logical tendency to
prove” that Ms. Alonzo was incorrect or untruthful in her testimony. Griffin, 136
N.C. App. at 550, 525 S.E.2d at 806. We decline to disturb the trial court’s
determination on the testimony’s relevancy.
b. Rule 403
Further, the trial court did not abuse its discretion in excluding this testimony
under Rule 403. Whaley, 362 N.C. at 160, 655 S.E.2d at 390; N.C.G.S. § 8C-1, Rule
403. Rule 403’s balancing test mandates the exclusion of prejudicial or otherwise
inapplicable evidence when “its probative value is substantially outweighed” by its
prejudicial or inapplicable nature. N.C.G.S. § 8C-1, Rule 403. As previously stated,
testimony concerning the sexual assault of another child by an unrelated, third-party
had the potential to confuse the jury, outweighing any probative value. It was not an
abuse of discretion for the trial court to exclude Defendant’s proposed testimony as it
related to the impeachment of Ms. Alonzo’s testimony.
CONCLUSION
The current Pattern Jury Instruction concerning the definition of “sexual act”
in N.C.G.S. § 14-318.4(a2) requires immediate attention by the North Carolina
- 13 -
STATE V. ALONZO
Opinion of the Court
Conference of Superior Court Judges Committee on Pattern Jury Instructions or our
Supreme Court. Clarity is necessary so that the law may be uniformly applied in all
trials throughout the State. Here, however, the trial court’s decision to utilize
N.C.P.I.--Crim. 239.55B did not rise to the level of plain error. Additionally, we
uphold the trial court’s decision to exclude portions of Defendant’s proposed
testimony regarding the unrelated sexual assault of his other daughter by another
person under Rule 401 and find it was not an abuse of discretion for the trial court to
exclude this testimony under Rule 403.
NO PLAIN ERROR IN PART; NO ERROR IN PART.
Judge CALABRIA concurs.
Judge ARROWOOD concurs in result only.
- 14 -