Opinion
NO. COA12-481
01-15-2013
STATE OF NORTH CAROLINA v. WILLIE HERMAN HUNT, JR.
Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for the State. Parish & Cooke, by James R. Parish, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Durham County
No. 10 CRS 51110
Appeal by defendant from judgments entered 14 October 2011 by Judge George W. Abernathy in Durham County Superior Court. Heard in the Court of Appeals on 10 October 2012.
Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
HUNTER, Robert C., Judge.
Willie Herman Hunt, Jr. ("defendant") appeals from the judgments entered after a jury found him guilty of statutory sexual offense against a victim who was 13 years old and indecent liberties with a child. On appeal, defendant argues that the trial court erred in allowing both the prosecuting witness's mother and grandmother to testify that they believed the witness's allegations that she was sexually abused by defendant thereby improperly vouching for her credibility. Defendant also argues that the trial court erred in its response to the jury's request for clarification as to what the words "on or about" meant regarding the date of the alleged offenses; defendant contends the trial court's response negated his alibi defense and denied him a fair trial. Lastly, defendant argues that the trial court erred by failing to intervene ex mero motu during the prosecution's closing argument in response to the prosecutor's statement implying that defendant might have sexually abused other minors. After careful review, we find no prejudicial error.
Background
Defendant was charged with one count each of statutory sexual offense against a victim who was 13 years old, indecent liberties with a child, and statutory rape. The charges came on for a jury trial beginning on 10 October 2011 during the Criminal Session of the Durham County Superior Court, Judge George W. Abernathy presiding. The State's evidence tended to establish the following facts: "Jane," the prosecuting witness, was 13 years old at the time of the incidents underlying this case. She resided in Durham with her mother, Lisa Street, her stepfather, Thomas Evans, and her two younger siblings. Before the incident, Jane and her siblings would frequently spend weekends at their great-aunt Cozella Hunt's house. Defendant is Cozella Hunt's son and Jane's cousin. Defendant was 45 years old and did not live with Cozella Hunt at the time of the underlying events, but he was at her home most of the time when Jane and her siblings visited.
"Jane" is a pseudonym used to protect the identity of the prosecuting witness who was a juvenile.
At trial, Jane testified that on the night of 18 December 2009, when she was staying with her great-aunt, she and defendant were sitting alone in a back bedroom watching a football game on television. When defendant began wrestling with Jane and "feeling on [her,]" Jane asked defendant what he was doing and he told her to relax. He then digitally penetrated her, penetrated her with his penis, and performed oral sex on her.
When Jane went into the bathroom and wiped herself with a tissue she noticed that she was bleeding. She asked defendant why she was bleeding, and he told her that he had taken her virginity. Jane testified that she was scared and did not tell anyone at the time of the incident. The morning Jane was scheduled to return to school after the Christmas holiday, Jane's stepfather drove her to catch the school bus. Mr. Evans noticed that Jane was beginning to cry and asked her what was wrong. Jane said, "'Willie messed with me[.]'" She continued to cry, but she would not respond to additional questions by her stepfather. Mr. Evans took Jane back home so that she could talk to her mother. Jane told her mother that defendant had penetrated her and performed oral sex on her. Mr. Evans then took Jane to the hospital.
Both Jane's mother and her grandmother, Lillie Mae Street, testified at trial. During the State's case in chief, the prosecution asked Lisa Street if she believed Jane's account of what happened; she replied that she believed Jane "[b]ecause she's my daughter." The prosecution also asked Lillie Mae Street if she believed Jane's accusations regarding defendant; she testified that she believed Jane because Jane had "never lied to [her] like that before." Defendant did not object to this testimony.
The State presented the testimony of additional witnesses that corroborated Jane's testimony. Officer David Vereen of the Durham Police Department testified that he "asked [Jane] what happened, and she had indicated that on December 18th, she was sexually assaulted by her cousin, a Mr. Willie Hunt, Jr." Jane explained to Officer Vereen that defendant performed oral sex on her and penetrated her and that she had not reported the incident earlier because she was afraid. Investigator Tammy Tuck, also of the Durham Police Department, testified that she obtained a written statement from Jane on 8 January 2010 and observed Jane's interview with the Center for Child and Family Health on 27 January 2010. Investigator Tuck testified that during the interview, Jane said she was in a bedroom watching a football game with defendant when defendant kissed her neck, performed oral sex on her, and penetrated her with his penis. Jane "told him to stop and he would not stop."
Scott Snider, the clinical coordinator at the Duke University Child Abuse and Neglect Medical Evaluation Clinic testified as an expert in the diagnostic interviewing of children. Mr. Snider interviewed Jane on 27 January 2010. Jane told Mr. Snider that she was watching football with defendant when he "started kissing on her, and . . . started feeling on [her] in a sexual way." Jane told him defendant performed oral sex on her and "took his genital area out of his pants and put his genital area inside her genital area." When Mr. Snider asked Jane to explain the events a second time, she recounted the events using "very consistent information."
Defendant did not testify at trial, but he offered alibi evidence. One of defendant's witnesses, Gwendolyn Downey, testified that on 17 December 2009, defendant stayed overnight at her house in order to work on her van. After searching for a part for the van on the 18 December, Ms. Downey dropped defendant off at his daughter's house in the afternoon. Defendant's daughter, Sasha Watts, testified that after defendant returned to her house around 1:00 or 2:00 p.m. on 18 December he did not leave and that he stayed at her house that night. She did not recall him leaving the house until 20 December 2009.
During the State's closing argument, the prosecutor argued to the jury: "Children are taught from a young age that the adult is in charge. This victim, [Jane], was the perfect victim for Willie Hunt. Odds are she is not his first victim, but she is the one who ultimately told." Defendant did not object to the State's argument. During the charge conference, defense counsel requested that the trial court instruct the jury that the date of the alleged offenses was 18 December 2009. The trial court referred to the bill of particulars which stated the date of the offenses was "on or about" 18 December 2009. The trial court then used the following language to instruct the jury on each charge against defendant: "If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant . . . ." During deliberations, the jury asked the trial court to "[p]lease clarify on or about the alleged date when talking about guilty or not guilty." In response to the jury's question, the trial court instructed the jury that "the alleged date is on or about December 18, 2009. It is for you to determine what the evidence shows." The jury then returned to its deliberations briefly before again asking for clarification. The trial court responded that the jurors were to "give ordinary words the meaning which they are given in their ordinary usage" and that "[t]he event is alleged to have occurred not just on December 18th but on or about December 18th." When asked by the foreperson to repeat the response, the trial court stated: "[T]he crimes are alleged to have taken place on December the 18th or about December the 18th without giving a specific date." Defense counsel objected to this instruction.
The jury found defendant guilty of one count of statutory sexual offense against a victim who was 13 years old and one count of indecent liberties with a child. The jury was deadlocked on the charge of statutory rape; the trial court declared a mistrial on the charge, and the State dismissed it. Defendant was sentenced to a term of 360 months to 441 months imprisonment for the statutory sexual offense conviction and to a term of 28 to 34 months imprisonment for the indecent liberties conviction. Defendant was also required to register as a sexual offender for a period of 30 years upon his release from prison. Defendant appeals.
Discussion
Defendant first argues that the trial court erred in allowing Jane's mother and grandmother to testify that they believed Jane's allegation of sexual abuse by defendant. Defendant claims that in allowing Lisa Street and Lillie Mae Street to testify that they believed Jane the trial court improperly allowed the two witnesses to vouch for the credibility of the prosecuting witness.
As defendant did not object to Lisa Street's or to Lillie Mae Street's testimony, defendant bears the burden of demonstrating that the alleged errors rose to the level of plain error. State v. Lawrence, ____ N.C. ____, ____, 723 S.E.2d 326, 334 (2012).
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, aId. (internal citations and quotation marks omitted). This Court has refused to apply the plain error rule "cumulatively to several unrelated portions of evidence where the trial judge was not asked to, and did not, make any affirmative ruling"; to do so would be to depart from the fundamental requirement that plain error be obvious and apparent. State v. Holbrook, 137 N.C. App. 766, 769, 529 S.E.2d 510, 511 (2000). Thus, a defendant must establish that each alleged error, by itself, amounts to plain error. Id. at 769, 529 S.E.2d 511-12.
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. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.
Assuming without deciding that the trial court erred by admitting the testimony of Lisa and Lillie Mae Street, we conclude that, when viewed in light of the entire record, the testimony of each witness did not amount to plain error. We do not believe that the jury gave such weight to the testimony by a mother that she believed her daughter was truthful in making her accusations that absent the testimony "'the jury probably would have reached a different verdict.'" Lawrence, ____ N.C. at ____, 723 S.E.2d at 334 (citation omitted). We reach the same conclusion as to the impact of the grandmother's testimony that she believed that her granddaughter was truthful in making her accusations against defendant.
In addition to this testimony by her mother and grandmother, Jane testified as to her allegations against defendant. "Our courts have consistently held an alleged victim's testimony is sufficient to establish that the accused committed a completed act of cunnilingus by placing his tongue on [the alleged victim's] pubic area." State v. Stancil, 146 N.C. App. 234, 245, 552 S.E.2d 212, 218 (2001), (concluding the prosecuting witness's testimony was sufficient to convict defendant of first-degree sex offense of a child under the age of 13 under N.C. Gen. Stat. § 14-27.4(a)(1)(1999)), aff'd as modified, 355 N.C. 266, 559 S.E.2d 788 (2002). Furthermore, Jane's testimony was corroborated by the testimony of Officer Vereen, Investigator Tuck, and Mr. Snider. In light of this evidence, defendant has failed to meet his burden of establishing plain error as to the testimony of Lisa or Lillie Mae Street.
Next, defendant argues that the trial court erred in its response to the jury's question as to the meaning of "on or about" December 18 in regard to the date of the alleged offenses. By instructing the jury that the offenses were "alleged to have occurred not just on December 18th but on or about December 18th," defendant insists that the trial court eviscerated his alibi defense thereby denying him a fair trial.
Generally, the date of the alleged crime as provided in the indictment is not material, and the State may prove that the crime was committed on another date. State v. Whittemore, 255 N.C. 583, 592, 122 S.E.2d 396, 403 (1961). The State cannot use this general rule, however, "to ensnare a defendant and thereby deprive him of an opportunity to adequately present his defense." Id. The facts of this case, however, are distinguishable from those on which defendant relies.
In Whittemore, the indictment charged the defendants with having committed a crime on one specific day and the defendants each presented an alibi defense for that day. Id. at 590, 122 S.E.2d at 401. After the defendants rested their case, the State presented rebuttal evidence of criminal conduct that occurred on dates subsequent to the date charged in the indictment; the defendants were given no opportunity to respond. Id. at 592, 122 S.E.2d at 403. During deliberations, the jury asked the trial court whether they had to confine their decision to the date in the indictment. Id. at 591, 122 S.E.2d at 402. The trial court replied that the jury could return a guilty verdict for the crimes charged even if it concluded the crimes were committed on a date other than the particular day provided in the indictment. Id. Our Supreme Court concluded that the trial court erred in instructing the jury as to the materiality of the date of the crimes as alleged in the indictment: "The State did not contend that there was confusion as to the time named in the bill of indictment. It insisted the date named was in fact the true date[.]" Id. at 592, 122 S.E.2d at 403.
In State v. Christopher, 307 N.C. 645, 648, 300 S.E.2d 381, 383 (1983), the indictment alleged that the defendant conspired to commit larceny "on or about" 12 December 1980 and the defendant presented an alibi defense for the weekend of 12 December 1980. At trial, however, the State offered no evidence of a crime "on or about" 12 December 1980, id., but offered evidence that the conspiracy occurred over a three-month period supported only by vague testimony that provided no specific date, week, or month of when the crime was alleged to have occurred. Id. at 650, 300 S.E.2d at 384. Our Supreme Court held that these "wide ranging discrepancies" between the indictment and the evidence at trial prejudiced the defendant, and the Court described the State's actions as a "'bait and switch' routine." Id.
The present case did not involve the "bait and switch" at issue in Christopher, nor the insistence by the State on the specificity of the date of the alleged crimes at issue in Whittemore. When defense counsel filed a motion for a bill of particulars requesting the date of the alleged offense, the State answered: "The State anticipates the evidence at trial will show that the alleged offenses occurred on or about December 18, 2009 in the evening or nighttime." The State's response also stated that
defendant should be hereby placed on notice that the information contained in this [b]ill of [p]articulars with regard to the exact date and time of the offense is largely based on evidence received from a child and, as such, cannot be relied upon as being as specific or binding as information which may have been provided by an adult.Thus, the language that was used in charging the jury, "on or about" 18 December 2009, is the same language provided to defendant before he gave notice of an alibi defense. As such, we find the present case to be more aligned with the facts in State v. Young, 103 N.C. App. 415, 406 S.E.2d 3, appeal dismissed and disc. review denied, 330 N.C. 201, 412 S.E.2d 65 (1991).
In Young, the defendant was indicted for committing sexual offenses against a minor "on or about" two specific dates; the defendant provided an alibi for both dates. Id. at 421, 406 S.E.2d at 6. On appeal, the defendant argued that where the prosecuting witness testified that the offenses occurred on two specific dates it was error for the trial court to instruct the jurors that they could find the defendant guilty if they found beyond a reasonable doubt that he had committed the offenses "on or about" the dates provided in the indictment. Id. This Court rejected the argument and concluded that "[i]f the defendant has been put on notice of the times charged in the indictment, the defendant cannot claim error when the jury instruction uses the same time frame as that given in the indictment." Id. at 421, 406 S.E.2d at 7. Here, as in Young, defendant was put on notice of the time frame used to instruct the jury as it was the same time frame provided to defendant in the bill of particulars; it was also consistent with the evidence presented at trial. Thus, the trial court did not err in instructing the jury as to the date of the offense.
Defendant's final argument is that the trial court erred in failing to intervene ex mero motu during the prosecution's closing argument. Defendant alleges that by failing to intervene, the trial court denied defendant his due process right to a fair trial. We disagree.
When a defendant asks this Court to review allegedly improper closing arguments to which he failed to object at trial, we must determine "whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu." State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002). That is, we must determine whether the argument "strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord" and instructed the jury to disregard the improper argument. Id.
In support of his argument, defendant cites State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975). In Monk, the prosecutor's argument to the jury suggested that the defendant had failed to testify. Id. at 516, 212 S.E.2d at 131. The defendant objected but was overruled. Id. The prosecutor continued with his closing argument and suggested that the defendant had a prior criminal record of which the State would have offered evidence to prove had the defendant taken the stand. Id. at 517, 212 S.E.2d at 132. The defendant again objected and his objection was sustained, but the trial court did not provide a curative instruction. Id. The Supreme Court of North Carolina concluded that that trial court had failed its duty not only to sustain the defendant's objections but also to provide a curative instruction. Id. at 518, 212 S.E.2d at 132. Because no curative instruction was provided, the prejudicial effect of the prosecutor's statements required a new trial. Id.
This case is distinguishable from Monk. Here, the prosecutor stated, "Odds are [Jane] is not his first victim, but she is the one who ultimately told." In making this statement, the prosecution argued outside the evidence and implied that defendant may have assaulted other minors in the past. Unlike in Monk, however, defense counsel in the present case did not object to the prosecutor's comment. Although we find that the prosecution's statement was improper, it does not rise to the level of gross impropriety that would allow this Court to find that the trial court abused its discretion in failing to intervene ex mero motu. Defendant has failed to establish that the State's argument rendered the conviction fundamentally unfair, and defendant's argument is overruled.
Conclusion
For the reasons stated above, we conclude defendant received a trial free of prejudicial error.
No Prejudicial Error.
Judges CALABRIA and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).