State v. Gaspar

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavo red, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-970
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Wayne County
Nos. 11 CRS 055331–32
GUSTAVO GASPAR,
Defendant.
Appeal by defendant from judgments entered 2 November 2012
by Judge Arnold O. Jones, II in Wayne County Superior Court.
Heard in the Court of Appeals 17 February 2014.
Roy Cooper, Attorney General, by Kathleen N. Bolton,
Assistant Attorney General, for the State.
Mark Montgomery, for defendant–appellant.
MARTIN, Chief Judge.
Defendant Gustavo Gaspar was charged in true bills of
indictment with two counts of statutory rape of a thirteen-year-
old child, one count of statutory sexual offense of a thirteen-
year-old child, one count of felonious rape of a child by an
adult offender, and one count of taking indecent liberties with
a child. He appeals from judgments entered upon jury verdicts
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finding him guilty of the charged offenses. We find no
prejudicial error.
The evidence presented at trial tended to show that, from
the time that defendant’s biological daughter, M.G., was eleven
years old until she was thirteen years old, defendant sexually
abused her. M.G. testified that defendant had vaginal
intercourse with her “more than five times,” and also made her
perform oral sex on him. M.G. said that defendant made her
perform these acts in the family residence that she shared with
defendant, her stepmother, and her younger sister and brother,
as well as in the fenced-in shelter on the property where a
horse was kept (“the horse barn”), in and around the garage
located about twenty feet from the residence where defendant did
general mechanic work, and at a motel.
M.G. testified that the first time defendant sexually
abused her was at nighttime in the family’s residence, the
evening before the family was planning to go to the beach. M.G.
testified that she was asleep in her bed when she awoke to
defendant touching her “[i]n [her] private parts.” M.G. said
that defendant was drunk at the time and that her sister was
asleep in the next bed in the same room while defendant fondled
her.
On another occasion, defendant told M.G. to go with him so
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that they could clean up trees and debris that had fallen around
the horse barn during a recent storm. After they finished
picking up the debris, the two went inside the horse barn and
defendant “asked [M.G.] if [she] wanted to have sex with him.”
M.G. testified that she told defendant “no, because [she] was on
[her] period.” She testified that, in response, defendant “told
[her] to give him oral sex.” She further testified that, “when
he was done he told [her] to get out of the little barn,” which
she did, and said that defendant stayed there. M.G. testified
that while she had been in the horse barn with defendant, her
stepmother was inside the residence and her brother and sister
were playing outside.
M.G. also testified about a time when defendant was working
outside and told M.G. to go behind a pick-up truck that was
parked outside the garage; when she did so, defendant told her
he wanted to have sex with her. M.G. told him “no, because
[her] [step]mom was inside and [she] didn’t want to do it like
in front of like——outside. [She] just didn’t want to do it.”
Defendant told her “not to be scared,” and told her that if she
had sex with him, that “he’ll give [her] something that [she]
needed.” Defendant then pulled down his pants, unbuttoned her
pants, put on a condom, and had vaginal intercourse with her.
When he was finished, defendant told M.G. to go inside the house
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and he stayed by the pick-up truck. When she went back in the
house, M.G. did not tell her stepmother, because she said she
was afraid and “didn’t want to get out of [her] family” and she
“wanted [the family] to be together.” The next day, defendant
gave M.G. twenty dollars, which M.G. testified she received in
exchange for having sex with defendant behind the truck the day
before.
On another occasion, after school, while M.G. was working
for defendant as a mechanic in his garage, and while her younger
sister and brother were still at school, defendant told M.G.
that he wanted to have sex with her. M.G. testified that when
she refused, defendant said he would give her something if she
had sex with him. Then defendant put on a condom and had
vaginal intercourse with M.G. in the corner of the garage. M.G.
said that when it was over, defendant told her to go outside and
defendant stayed in the garage. M.G. testified that defendant
kept a toolbox that contained condoms and pornographic videos in
the garage. M.G. testified that she did not watch the videos,
but that defendant had told her that “if [she] wanted to watch
[the videos] to see how to do it because [she] told him [she]
don’t know how to do that stuff. And he told [her] to watch
that movie then.”
M.G. also testified that defendant took her to a motel
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twice to have sex; once after she finished school for the day,
and once during school hours. On the occasion that defendant
took M.G. to the motel during school hours, defendant picked her
up from school at around 2:00 p.m. and told her that they were
going to the auto parts store. Instead, defendant drove to a
gas station, bought a soda for M.G. and a box of condoms for
himself, and then drove to a motel. M.G. did not remember the
name of the motel, but reported that it was a one-level motel on
William Street. Before they got out of defendant’s vehicle,
defendant told her to put on his hoodie so that no one would see
her face as she entered the motel. Once they were in the motel
room, defendant told M.G. to go to the bathroom to “wash up,”
and when she was finished in the bathroom, defendant went into
the bathroom and took a shower. Defendant then emerged from the
bathroom without any clothes on and told M.G., who was also
undressed, to get on the bed. He asked her if she wanted to put
the condom on for him; when she refused, he put the condom on
himself and had vaginal intercourse with M.G. Afterwards,
defendant told M.G. to go to the bathroom again to “wash up” and
to get dressed, which she did. Defendant told M.G. to put the
hoodie back on so that no one would see her face as she left the
motel and got into his vehicle.
M.G. testified that defendant often made her perform sexual
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acts in exchange for giving her permission to go somewhere she
wanted to go or to get something that she wanted to have. On
one occasion, M.G. testified that she wanted to go to a dance
that was being held at her school, but that defendant “told
[her] if [she] wanted to go [she] had to give him something,”
which she said was “sex.”
M.G. reiterated throughout her testimony that, for the two
years that defendant sexually abused her, she did not tell
anyone because she was afraid and “didn’t want to get away from
[her] family.” When questioned by defense counsel as to why she
did not report the sexual abuse and why she wanted to stay with
her family when that meant she would also be staying with her
father——the man who had been sexually abusing her for two years—
—M.G. simply said, “But he’s my dad.” Detective Sergeant Tammy
Mozingo with the Wayne County Sheriff’s Office testified that
M.G. told her that “she loved her dad and she just wanted him to
stop having sex with her. That’s the only thing that she
wanted.” M.G. also told the detective sergeant that “her dad
had told her in the past that if she told anybody that they
wouldn’t have anywhere to live, she wouldn’t have anywhere to
live.” She told Detective Sergeant Mozingo that she just
“wanted a normal life.”
According to her testimony, when M.G. was thirteen, a
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friend invited her to go to her house. M.G. declined the
invitation, telling the friend that she knew “[t]hat if [she]
went to her house[, M.G.’s] dad would have want[ed] something
back from [her].” M.G. then told her friend about being
sexually abused by defendant and, the next day, M.G. visited her
school’s health center to report the abuse.
Amanda Whaley Anderson, a nurse who works at the school’s
health center called the Wish Center, testified at trial that,
in the early morning hours of 25 October 2011, M.G. visited the
Wish Center and said that she needed to talk to someone. Ms.
Anderson said that M.G. “said that her dad had been sexually
abusing her over the past year, couple of years. And that she
just wanted it to stop. And she didn’t know what else to do.”
She said: “[M.G.] had told a friend of hers because she wanted—
—she told me she wanted——she was asked to go to this friend’s
house.” “And she didn’t want to go because she knew what she
would have to do and the friend was the one that encouraged her
to come talk to me.”
Ms. Anderson invited the school guidance counselor to be
present during her conversation with M.G. to have “a second set
of ears” to hear M.G.’s statement. Ms. Anderson testified that
M.G. went into detail about the sexual abuse perpetrated against
her by defendant. She testified that M.G. reported that
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defendant “had been asking her for favors any time she would get
minutes on her cell phone or the privilege of going to a school
dance or something like that that she would have to perform
sexually for him.” Ms. Anderson testified that, based on the
account given to her by M.G., the abuse occurred “a lot.”
Ms. Anderson testified that M.G. told her about an incident
when defendant “signed her out of school and carried her to a
motel in Goldsboro and had sex with her.” Ms. Anderson’s
testimony mirrored M.G.’s account during M.G.’s direct
testimony, including that M.G. thought she was being taken out
of school to get auto parts but, instead, defendant drove her to
a motel, and that this visit to the motel was M.G.’s second with
defendant. Ms. Anderson also testified that defendant used
condoms when he had sex with M.G., and that he kept condoms in
the garage, along with pornographic videos. When asked by the
prosecutor whether in the two years that she had known M.G. as a
student that she would “characterize her as truthful,” Ms.
Anderson responded, without objection from defense counsel,
“Yes.” Ms. Anderson testified that she documented everything
that M.G. told her, and reported the information to the Wayne
County Department of Social Services (“DSS”).
The State also presented the testimony of numerous
witnesses, including: Luis Antonio Carrasquillo, Jr., a social
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worker supervisor with the Wayne County DSS; Latonya Ann
Woodard, an investigator with the Wayne County DSS; Maria–
Angelica Taylor, a physician’s assistant employed by the TEDI
BEAR Children’s Advocacy Center; Andora Copeland–Hankerson, a
forensic interviewer at the TEDI BEAR Children’s Advocacy
Center; Donna Anderson, a bookkeeper with M.G.’s middle school;
Natvarlal Parmar, the owner of the Carolina Motel; and Detective
Larry Norwood Mitchell, Detective Sergeant Robert D. Chunn, and
Detective Sergeant Mozingo, each with the Wayne County Sheriff’s
Office. With the exception of the school bookkeeper, the motel
owner, and Detective Sergeant Chunn, who testified about
executing the search warrant, each witness recounted how M.G.
disclosed to them personally or by way of written statement the
same incidents of sexual abuse revealed in M.G.’s direct
testimony, sometimes in greater detail than fourteen-year-old
M.G. provided while seated in the courtroom in front of the
jury.
For instance, Mr. Carrasquillo testified that, on the day
that M.G. reported the abuse to Ms. Anderson, he went to the
school to interview M.G. and the guidance counselor present
during M.G.’s meeting with Ms. Anderson. Mr. Carrasquillo
recounted M.G.’s report about the event when defendant picked
her up from school and took her to the motel and had vaginal
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intercourse with her. Mr. Carrasquillo corroborated M.G.’s
account about wearing defendant’s hooded sweatshirt so that she
would not be recognized, about washing in the bathroom, and
about defendant being on the bed “on top of her” and “put[ting]
his penis in her for about ten minutes.” Further, Mr.
Carrasquillo and Ms. Taylor also both testified about M.G.’s
disclosure that, when she lived in Mexico at the age of eight or
nine, her paternal grandfather also “touched her private parts.”
In addition, the bookkeeper from M.G.’s middle school
authenticated State’s Exhibit 3, which was the school’s sign
in/sign out log from 10 October 2011, and established that M.G.
was signed out from school by defendant at 2:18 p.m. that day.
Mr. Parmar then authenticated State’s Exhibit 4, which was the
customer registration card completed for a room rented on
10 October 2011 by defendant at Mr. Parmar’s motel, which is a
one-level motel on North William Street in Goldsboro, North
Carolina.
Ms. Taylor further testified that, although her examination
of M.G. did not reveal physical indications of sexual abuse, the
absence of such evidence “neither supports nor discounts the
concerns raised by [M.G.’s] clear and consistent disclosure of
sexual abuse. The lack of physical findings is not unexpected
given the time since the last contact occurred and due to
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[M.G.’s] development.” Ms. Taylor also testified that, during
her physical examination of M.G., she found “lighter pigmented
scars, linear scars,” which M.G. “told [her] that she marked
every time her father did something to her.”
When executing a search warrant on defendant’s garage, in
several toolboxes, detectives found three unopened condoms and
X-rated videos, including one titled “Barely 18 # 32,” and a
case for another video titled “Back Shot Queens Gone Wild.”
They also found a .22 caliber revolver with the serial number
filed off of it. After executing the search warrant, Detective
Mitchell and Detective Sergeant Mozingo brought defendant to the
sheriff’s office for questioning. Once in the station, they
advised defendant of his Miranda rights, and defendant
acknowledged his understanding of those rights and demonstrated
his intent to waive those rights. Although defendant “initially
denied having sexual intercourse with his daughter,” after being
shown a copy of the sign in/sign out log from the school, and a
copy of the receipt from the motel, Detective Mitchell said that
defendant described the incident that occurred at the Carolina
Motel. Defendant admitted that “they stopped at a store where
he bought some condoms, and then they proceeded out to the
Carolina Motel, where he engaged in sexual intercourse and oral
sex with his daughter, [M.G.]” Detective Mitchell said that
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defendant also described an incident “that occurred inside the
garage behind his house.” Defendant told the detective that “he
was on a roller, which is a device that he uses to roll under
cars that he’s working on,” and that “he was laying on that and
he had [M.G.] sit on top of him, and played with her boobies,
and they had sexual intercourse and he penetrated her there.”
Defendant also described another incident that occurred “[j]ust
adjacent to and slightly behind the garage is a——he called it a
horse barn, and then they——he said there was an incident ah——
where they had sex rather inside the horse barn.” At the
conclusion of the thirty- to forty-five-minute interview,
defendant signed his name to the statement transcribed by
Detective Sergeant Mozingo, and told Detective Mitchell that
“[h]e wanted [the detectives] to understand that it was never
forced on [M.G.]; that she wanted him to do that.” Detective
Sergeant Mozingo also testified that, according to M.G.,
defendant told M.G. that she looked like her deceased biological
mother and said that “that’s the reason why he done [sic] these
things to her.”
The defense offered testimony from defendant’s younger
brother, Emilio Gaspar, and defendant’s wife and M.G.’s
stepmother, Imelda Juarez, and then called defendant to testify
on his own behalf. Emilio Gaspar testified that he “would
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always try to hug [M.G.], but lately she was, like, distracted.
[He] would try to give her some advice, but she begin [sic] to
be a little rebellious.” He also testified that M.G. “changed
boyfriends frequently,” and that he believed his brother and did
not believe M.G. Emilio Gaspar also testified that he did not
think M.G. showed “symptoms” of someone who had been raped or
sexually abused, in his opinion, because
she would have her little short shorts or
little short shirts and always right around
there, and like a normal girl would do, not
like someone who was embarrassed or was kind
of shy. I mean, if she had been molested by
my brother, I mean, I think there would have
been a little bit embarrassment or maybe she
wouldn’t want to come near there. She was
always there. And she was helping with the
mechanic work, and she did it voluntarily.
Voluntarily; it wasn’t just because she was
forced to or something. So I don’t know why
this accusation is now here.
Mrs. Juarez testified that M.G. never accepted her as the new
wife of her father and said M.G. never listened to her. Mrs.
Juarez also testified that, although she first believed M.G.
when she accused defendant of sexually abusing her, she said she
later changed her mind and testified that she now no longer
believes M.G.’s allegations.
Defendant testified on his own behalf. Defendant testified
that the X-rated movies and the condoms were just items that he
“would find in cars and things and [would keep them]——to see if
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the people were going to come and pick them up.” Defendant also
gave testimony that he signed his name in three places on the
Miranda form without knowing what the form was,1 but said that
Detective Sergeant Mozingo did explain his rights to him and
said that he did understand them. Nonetheless, despite
defendant’s admission that law enforcement officers explained
his Miranda rights to him, that he signed a form in three places
at the sheriff’s station, and that when he was questioned by
investigators, he “didn’t speak with them,” “[he] remained
silent,” defendant appears to have alternatively testified that
he has never been interviewed or been asked any questions by
anyone identifying themselves as law enforcement officers about
M.G.’s allegations prior to trial. Defendant also testified
that the reason he brought M.G. to the motel was that he was
introduced by the motel owner, Mr. Parmar, to a woman named
Shantel who lived at the motel and who wanted someone to work on
1
Defendant was assigned two interpreters during the course of
the trial. However, the trial court questioned defendant’s need
for these interpreters, based on defendant’s animated and
lengthy discussions with defense counsel in English, as well as
his ability to respond to questions before the interpreters
finished interpreting them. Nonetheless, the court continued to
allow the interpreters to participate in the proceedings.
Although defendant’s case-in-chief, as well as the State’s and
defendant’s rebuttal evidence, raised challenges to and concerns
regarding defendant’s ability to understand both written and
conversational English, because none of the issues on appeal
concern this matter, we do not include any further recitation of
the evidence related to this issue.
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her vehicle, and said that defendant and M.G. went to the motel
“to pick up this car,” which is why, defendant explained, that
M.G. knew about the motel.
At the close of the State’s evidence, defendant moved to
dismiss the charges based on his assertion that the State had
not met its burden to establish the ages of both M.G. and
defendant at the time the offenses were alleged to have been
committed, which motions were denied. At the close of all of
the evidence, defendant moved to dismiss the charges based on
his assertion that there was insufficient evidence that the
offenses were perpetrated on the dates identified in the
indictments, which motions were also denied. The jury found
defendant guilty of each of the charged offenses. The court
sentenced defendant to the following consecutive terms of
imprisonment: 300 months to 369 months for felonious rape of a
child by an adult offender; 240 months to 297 months for each of
the two counts of statutory rape of a thirteen-year-old child;
240 months to 297 months for statutory sexual offense of a
thirteen-year-old child; and 16 months to 20 months for taking
indecent liberties with a child. Defendant appeals.
_________________________
Defendant first contends the trial court committed plain
error when it allowed Ms. Woodard, an investigator with the
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Wayne County DSS, to testify that, after conducting her
investigation into the allegations that defendant sexually
abused M.G., she agreed that she would have characterized such
allegations as substantiated. Defendant argues that such
testimony constituted impermissible opinion vouching for M.G.’s
credibility, and directs our attention to State v. Giddens,
199 N.C. App. 115, 681 S.E.2d 504 (2009), aff’d per curiam,
363 N.C. 826, 689 S.E.2d 858 (2010), to support his argument.
We conclude the admission of the testimony did not constitute
plain error.
“For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial.” State
v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “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. (quoting State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983)).
In Giddens, this Court considered whether the trial court
committed plain error by allowing a child protective services
investigator with the Buncombe County Department of Social
Services to testify that her investigation had substantiated the
defendant as the perpetrator of the sexual abuse alleged by two
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minor children. Giddens, 199 N.C. App. at 117, 119, 681 S.E.2d
at 506, 507. At trial, the defendant failed to object to this
testimony, but argued that the “testimony was admitted in error
because it resolved the factual issue of [d]efendant’s guilt for
the jury by expressing an opinion on [the complainants’]
credibility.” Id. at 119, 120, 681 S.E.2d at 507. Because “the
conclusion reached by DSS was not based solely on the children’s
accounts of what happened, and thus, was not merely a
corroboration of their testimony,” id. at 120, 681 S.E.2d at
507, and because “DSS conducted its own investigation to
determine whether any of the children’s caregivers were
participants in the alleged abuse,” id. at 120–21, 681 S.E.2d at
507, this Court determined that “[t]he cumulative effect of [the
investigator’s] testimony was to tell the jury that based upon a
thorough investigation, DSS concluded that of the children’s
three caregivers, [d]efendant had sexually abused them.” Id. at
121, 681 S.E.2d at 508. Since “[o]ur case law has long held
that a witness may not vouch for the credibility of a victim,”
id., we concluded that “[the investigator’s] testimony was
clearly improper, as she testified that DSS had concluded
[d]efendant was guilty of the alleged criminal acts,” id., and
“it was error to admit [the investigator’s] testimony regarding
the conclusion reached by DSS.” Id. at 122, 681 S.E.2d at 508.
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Consequently, we held that it was plain error to admit the
investigator’s testimony and that the defendant was entitled to
a new trial because, “without [the investigator’s] testimony,
the jury would have been left with only the children’s testimony
and the evidence corroborating their testimony”——although such
was “strong evidence”——and “our prior case law instructs that
this alone is insufficient to survive plain error review of the
testimony of a witness vouching for the children’s credibility.”
Id. at 123, 681 S.E.2d at 509.
We agree with defendant that, in the present case, as in
Giddens, Ms. Woodard’s testimony——which was admitted by the
trial court without objection by defendant——that DSS had
substantiated the allegations of sexual abuse against defendant
was not properly admitted. Nonetheless, unlike Giddens, “absent
the challenged testimony, the present case involved more
evidence of guilt against the defendant than simply the
testimony of the child victim and the corroborating witnesses.”
See State v. Sprouse, 217 N.C. App. 230, 242, 719 S.E.2d 234,
243 (2011), disc. review denied, 365 N.C. 552, 722 S.E.2d 787(2012). Here, in addition to M.G.’s detailed testimony and the
numerous corroborative witnesses presented by the State, the
State also presented evidence from two law enforcement officers
that defendant gave a detailed confession——the voluntariness of
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which defendant does not challenge on appeal——about three
separate occasions during which defendant had vaginal
intercourse with M.G., fondled her breasts, put his mouth on her
vagina, and had her put her mouth on his penis. The State also
admitted into evidence the sign in/sign out log dated 10 October
2011 from M.G.’s middle school, as well as a customer
registration card from the same date for a motel room rented by
defendant, which corroborated M.G.’s direct testimony and
defendant’s confession that defendant took M.G. out of school
and brought her to the motel to have sexual intercourse with
her. Thus, we conclude that defendant’s confession, along with
the unchallenged independent evidence establishing that
defendant took M.G. out of school and then rented a room at Mr.
Parmar’s motel on the same day, coupled with the extensive
testimony by M.G. and by the other corroborating witnesses, the
jury probably would have reached the same verdict even without
the challenged testimony of Ms. Woodard. See Sprouse, 217 N.C.
App. at 243, 719 S.E.2d at 244. Thus, although the trial court
erroneously admitted the challenged testimony of Ms. Woodard,
“we are not convinced the error tilted the scales against
defendant, and therefore does not rise to the level of plain
error.” See id.
Defendant next contends the trial court committed plain
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error when it allowed Ms. Anderson, the nurse who works at
M.G.’s school’s health center, to testify without objection as
to M.G.’s truthfulness. Defendant asserts that Ms. Anderson was
“not formally qualified” as an expert, and that her testimony
constituted inadmissible lay opinion testimony. We disagree.
“The credibility of a witness may be attacked or supported
by evidence in the form of reputation or opinion as provided in
Rule 405(a), but [this evidence is] subject to . . . limitations
. . . .” N.C. Gen. Stat. § 8C-1, Rule 608(a) (2013). The
limitations to this Rule are: “(1) the evidence may refer only
to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise.” Id.
In the present case, defendant challenges the following
testimony from Ms. Anderson:
Q. In the time that you knew Maria, would
you characterize her as truthful?
A. Yes.
Our review of the context of this exchange shows that Ms.
Anderson was not asked whether it was her opinion that M.G. was
truthful about her allegations that she was sexually abused by
defendant. Rather, Ms. Anderson was asked simply whether,
during the two years that she had known M.G. and had seen her
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once or twice weekly, she knew M.G. to be “a truthful child.”
Additionally, Ms. Anderson’s now-challenged testimony was
offered only after defense counsel had attacked M.G.’s character
for truthfulness during his cross-examination of her, which
attacks were sufficient to permit the presentation of evidence
as to her truthfulness in accordance with the second limitation
of N.C.G.S. § 8C-1, Rule 608(a). See, e.g., State v. Hall,
98 N.C. App. 1, 10, 390 S.E.2d 169, 174 (1990) (determining
that, because “[o]n cross-examination of the victim, the
defendant’s attorney repeatedly attempted to impeach her by
asking her about prior inconsistent statements made to her
doctor, her mother, and at the preliminary hearing,” such cross-
examination of a child alleging she had been raped by her
stepfather “constituted an attack on her credibility such that
the State could then present reputation or opinion evidence as
to the victim’s reputation for truthfulness”), rev’d on other
grounds, 330 N.C. 808, 412 S.E.2d 883 (1992). Accordingly, we
conclude that the trial court neither erred, nor committed plain
error, when it allowed Ms. Anderson to offer the now-challenged
testimony.
Finally, defendant contends the trial court committed plain
error when it charged the jury by using the term “victim” to
describe the complaining witness. We disagree.
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Defendant concedes that the court instructed the jury by
using the same language as that which is set forth in the North
Carolina Pattern Jury Instructions for the charged offenses,
which use the term “victim” to identify the person against whom
the charged offenses are alleged to have been committed.
Defendant also concedes that defense counsel did not object to
the court’s use of this term in its instructions to the jury at
trial, and that any review of this unpreserved issue must be
reviewed for plain error on appeal.
This Court has already concluded that “it is clear from
case law that the use of the term ‘victim’ in reference to
prosecuting witnesses does not constitute plain error when used
in instructions.” State v. Henderson, 155 N.C. App. 719, 722,
574 S.E.2d 700, 703, appeal dismissed and disc. review denied,
357 N.C. 64, 579 S.E.2d 569 (2003); see also State v.
Richardson, 112 N.C. App. 58, 67, 434 S.E.2d 657, 663 (1993)
(“The word ‘victim’ is included in the pattern jury instructions
promulgated by the North Carolina Conference of Superior Court
Judges and is used regularly to instruct on the charges of
first-degree rape and first-degree sexual offense.”), disc.
review denied, 335 N.C. 563, 441 S.E.2d 132 (1994).
Nevertheless, defendant urges this Court to conclude that the
trial court’s use of this term in its instruction was
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prejudicial in accordance with our decision in State v. Walston,
__ N.C. App. __, __, 747 S.E.2d 720, 726–28 (2013) (concluding
the trial court’s use of the term “victim” in its instruction to
the jury was prejudicial error), disc. review denied, __ N.C.
__, __ S.E.2d __ (No. 023P14) (filed Mar. 6, 2014).
Our Court recently considered the same argument on appeal
in State v. Jones, __ N.C. App. __, __, 752 S.E.2d 212, 214–15
(2013), disc. review denied, __ N.C. __, 755 S.E.2d 616 (2014).
In Jones, we determined that Walston was distinguishable
because, unlike in the defendant in Walston, the Jones defendant
“made no . . . request to modify the language in the instruction
and did not raise any objection to the use of this term at
trial,” see Jones, __ N.C. App. at __, 752 S.E.2d at 215, “there
were [no] disputed issues of fact as to whether the sexual
offenses even occurred,” see id., and the Jones defendant
“ma[de] no specific argument that he ha[d] suffered any
prejudice as a result of the trial court’s uncontested use of
the term ‘victim’ in its jury instructions.” See id.
In the present case, as in Jones, defendant did not object
at trial to the use of the term “victim” in the jury
instructions or request to modify the language of the pattern
jury instructions, and does not make any specific argument that
he suffered any prejudice, aside from a general assertion that
-24-
the use of the term was an “inadvertent bolstering of the
complainants’ [sic] credibility.” We recognize that the defense
elicited testimony from Ms. Taylor, the physician’s assistant
with the TEDI BEAR Children’s Advocacy Center who examined M.G.,
that her examination did not reveal physical indications of
sexual abuse, which is similar to one of the facts in Walston
that this Court considered when determining that the use of the
term “victim” was prejudicial error. See Walston, __ N.C. App.
at __, 747 S.E.2d at 727. Nevertheless, we are not persuaded
that this alone is sufficient to overcome the distinctions
between the present case and Walston. Thus, as we did in Jones,
we conclude that Walston is distinguishable from the present
case, see Jones, __ N.C. App. at __, 752 S.E.2d at 215, and hold
that the trial court did not commit plain error when it used the
term “victim” in its instruction to the jury.
No prejudicial error.
Judges ELMORE and HUNTER, JR. concur.
Report per Rule 30(e).