Opinion
No. COA10-1234
Filed 19 July 2011 This case not for publication
Appeal by Defendant from judgment entered 26 August 2009 by Judge Paul Gessner in Wake County Superior Court. Heard in the Court of Appeals 10 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General Sonya M. Calloway-Durham, for the State. Bryan Gates for Defendant-appellant.
Wake County Nos. 08 CRS 13271-73, 75-76, 08 CRS 13674-79, 08 CRS 3839.
I. Factual and Procedural History
On 10 August 2009, James Artis Johnson ("Defendant") was indicted for first-degree statutory rape, three counts of statutory rape of a child 13, 14, or 15 years old, five counts of indecent liberties with a minor, five counts of incest between near relatives, first-degree statutory sex offense, two counts of felonious breaking and entering, two counts of felony larceny, six counts of felony breaking and entering a motor vehicle, and being a habitual felon. At trial, the State's evidence tended to show the following.
Defendant is the father of Ophelia, who was born in 1992. With the exception of her eighth grade year living in New York with her maternal grandmother, Ophelia lived with her mother in Raleigh during the events of this case. Ophelia testified that she first discovered Defendant was her father at the age of 2, when he visited her on the weekends and took her to McDonald's. In the third or fourth grade, Ophelia started spending the night at Defendant's house every other weekend with her mother's permission.
A pseudonym is used to conceal the identity of the juvenile involved in this case.
Ophelia testified that in the fourth grade she got in trouble for engaging in inappropriate touching with a younger boy. The boy told his mother, who told Defendant. In response to these events, Defendant showed Ophelia pornography and questioned her about whether she had ever touched a penis. He then exposed his penis and asked Ophelia if she wanted to touch it. After putting his penis in Ophelia's mouth, Defendant asked Ophelia if she would like to see him ejaculate and then ejaculated onto a rag.
After that, at least ten times, when Ophelia got in trouble, Defendant had Ophelia perform oral sex on him for an agreed-upon number of minutes in exchange for not being hit. When Ophelia was in sixth grade, Defendant began engaging in intercourse with her. At first, the intercourse was bartered. In exchange for the sexual acts, Ophelia was free to go out with her friends. Later, intercourse became a weekly occurrence unrelated to any benefits to Ophelia. Ophelia testified that intercourse happened several times in Defendant's residences, once while she was in New York, and three times at Defendant's nightclub in the disc jockey ("DJ") booth and on a pool table.
Ophelia testified that she and Defendant committed a series of break-ins, including several cars and an office building. They dressed in dark clothing and gloves, going out from 3:30 to 5:00 in the morning. They broke car windows with a crow bar and took items including medical supplies, a purse, and radios. At the office building, Defendant forced open a window and Ophelia squeezed through and unlocked the back door for Defendant. Defendant took laptops, supplies such as tissue and paper towels, and a shotgun.
In February of 2008, at the age of 15, while in the car riding home from a bible study class, Ophelia told her mother about the sexual activities with Defendant. The sexual activity with Defendant had continued up to a few weeks before Ophelia told her mother. Upon arriving home, Ophelia's mother called the police.
Kate Treadway, an investigator of abuse and neglect with Wake County Human Services ("WCHS") interviewed Ophelia on 15 February 2008, after having received a report from Ophelia's mother the previous day. Ophelia was talkative when discussing the different places she lived, but when they began talking about the sexual abuse allegations, she had a flat affect and showed no emotion. Ophelia described the first incident with her father after she had gotten in trouble for touching a boy, as well as how it progressed to intercourse.
Ophelia told Ms. Treadway that Defendant asked her to remove all of her clothes, and would sometimes request that she hold his back, suck his nipples, or grab his butt. She described specific incidents in Defendant's residences, in New York, and in the nightclub. She said that they had intercourse four times at the club, in the DJ booth or on the pool table. Some time later, Ophelia was riding in a car with Ms. Treadway and began to cry, saying that the abuse was her fault and that it would not have happened if she had not been a "bad kid."
Dr. Heather Kane, a licensed practicing psychologist and lead service provider, was admitted as an expert witness in the field of child maltreatment and child psychology. After receiving a referral from WCHS, Dr. Kane spoke with Ms. Treadway and Ophelia's mother prior to meeting with Ophelia on 20 February 2008 and again on 25 February 2008. Dr. Kane testified that Ophelia did not have a lot of emotion, and would smile when talking about things unrelated to the abuse, but otherwise had a flat affect. Dr. Kane testified that children respond to maltreatment in different ways, and that Ophelia's response was a "fairly common" response. Ophelia told Dr. Kane about the first encounter after she got in trouble for touching a boy, and also about times she had intercourse with Defendant in order to avoid punishment.
Dr. Kane testified that Ophelia blamed herself for the abuse, and that "[o]ften victims of sexual abuse do blame themselves for the abuse." Ophelia told Dr. Kane how the abuse had gone from being a way to avoid punishment to a way to get privileges, such as going out with friends. She described incidents at Defendant's residences, in New York, and at the nightclub. Ophelia also told Dr. Kane about breaking into a building with her father to take laptop computers and supplies.
Dr. Kane testified that Ophelia completed a trauma symptom checklist, which indicated Ophelia fantasizes to cope with unwanted feelings and that Ophelia had "significant sexual concerns and preoccupation, which has been found in children and adolescents that experienced maltreatment." Ophelia told Dr. Kane that Defendant would ask her to touch his back, bite his nipples, and lift her legs up. Dr. Kane testified that Ophelia had a homosexual orientation and such orientation was consistent with child sexual abuse, and that Ophelia's desire to visit her father despite what would happen there was consistent with child abuse accommodation syndrome.
Stacy Drake, a licensed clinical social worker for WCHS, testified about her therapy sessions with Ophelia which began in April 2008 after a referral from Ms. Treadway. Ms. Drake testified that Ophelia had a flat affect. Ms. Drake conducted about 23 sessions of cognitive behavioral therapy with Ophelia, during which they filled a "book" with Ophelia's experiences.
Ms. Drake testified, having spent six years with the sex abuse treatment program, it is not unusual for a child not to speak about abuse, because children have different ways of disclosing abuse. Defendant objected to this testimony, arguing that the statements constituted an expert opinion but Ms. Drake had not been admitted as an expert. The trial court overruled this objection and allowed Ms. Drake's testimony.
Susanne Pendleton of Pendleton Financial Consultants, an insurance firm, and Robin Pipkin of Pinna, Johnston Burwell, a law firm, testified that their offices, which share a building, were broken into and items were missing when they arrived at work on 17 July 2007. The items missing included laptops, a stereo, and a shotgun.
Detective Eric Godwin of the Raleigh Police Department testified that Ophelia described how she and Defendant broke into that building by using a crow bar to pry open a ground level window. Ophelia told Detective Godwin that she entered through the window and then unlocked the door for Defendant. In addition to providing a description of the building and the items stolen, Ophelia rode along with another officer and identified the building.
David Dillon, James Kirby, Craig Thompson, and Jeannie Elizabeth Lee testified that their cars had been broken into and items taken from those cars on 23 December 2007 or 24 December 2007. Those items included Christmas gifts, i-pods, and a Canon camera. Detective Godwin testified that Ophelia had told him she and her father had broken into several cars and listed specific items that were taken, including Christmas gifts, a Canon camera, and medical supplies. Ophelia also identified for police the area where the cars were broken into.
Defendant's mother testified that Defendant and Ophelia were "more like sister and brother than they were . . . daddy and daughter," and that Defendant said personal things around Ophelia that most fathers would not say around their child. She testified that she would not accept gifts from Defendant because she did not trust where they came from and discussed an unrelated break-in at a sporting goods store which occurred on the same weekend she and her husband discovered shoes and equipment in a room at Defendant's apartment. Defendant objected based on relevancy, Rule 403, and Rule 404. The trial court sustained Defendant's objection and instructed the jury to strike any testimony about the sporting goods store. The trial court went on to clarify that any observation or evidence made specifically by the witness was not stricken, but only the references to the sporting goods store break-in. Defendant's mother also testified that Defendant had relations with "a lot" of women both while single and while married. Defendant objected to this statement based on relevancy, and the trial court overruled his objection.
At the close of the State's evidence, Defendant made a motion to dismiss, which was denied. Defendant presented Katrina Kuzyszyn-Jones, an expert in forensic psychology and clinical psychology, who testified to her opinion based on the notes and videos of Ophelia's doctors and therapists that some of Ophelia's symptoms, including her fantasizing to avoid her feelings, were inconsistent with an abuse victim.
Defendant also presented James Kendrick Buoy, a friend, and Davida Ray Jones, Defendant's ex-wife, who testified that they were with Defendant the entire night of 23 December 2007, the night of the car break-ins. Defendant did not testify. Defendant renewed his motion to dismiss, which was denied.
Defendant was found guilty on all charges. Defendant was sentenced to five consecutive sentences of 350-429 months' imprisonment each and two consecutive sentences of 116-149 months' imprisonment each.
II. Jurisdiction and Standard of Review
As Defendant appeals from the final judgment of a superior court, an appeal lies of right with this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2009).
As Defendant objected to his mother's testimony, we review this question on the admissibility of evidence under a de novo standard. State v. Capers, ___ N.C. App. ___, ___, 704 S.E.2d 39, 45 (2010), appeal dismissed, review denied, ___ N.C. ___, 707 S.E.2d 236 (2011) ("[W]e review a trial court's ruling on the relevance of evidence de novo."). However, in doing so, we give deference to the trial court in reviewing the relevancy of Defendant's mother's statements. State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991) ("[E]ven though a trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.").
Defendant asserts in his brief that "[a]buse of discretion is the standard of review in questions arising under Evidence Rule 403." While this is a correct statement of law, Defendant's argument does not contain any reference to this rule or argument based on this rule. As Defendant's only argument in his brief is based on relevancy, we review Defendant's mother's testimony under the standard above.
We review the admission of Ms. Drake's testimony for abuse of discretion. State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000) ("[W]hether a lay witness may testify as to an opinion is reviewed for abuse of discretion.").
III. Analysis
Defendant claims the trial court committed prejudicial error in admitting testimony by Defendant's mother that she was suspicious of her son and that Defendant had many relationships with women. Defendant also contends the trial court erred in admitting testimony by Stacy Drake that it was not unusual for an abuse victim to not tell anyone about the abuse. We find no prejudice in any of these admitted statements.
Defendant's mother testified about her suspicions that Defendant may have stolen property and that he committed an unrelated break-in at a sporting goods store. However, the trial court ordered that any testimony about the break-in at the sporting goods store be stricken. We assume the jury followed this order. See State v. Ray, 212 N.C. 725, 729, 194 S.E. 482, 484 (1938) ("[O]ur system for the administration of justice through trial by jury is based upon the assumption that the trial jurors are men of character and of sufficient intelligence to fully understand and comply with the instructions of the court, and are presumed to have done so.").
After striking the testimony as ordered by the trial court, the remaining testimony in question by Defendant's mother is as follows:
Q. Why did you not accept gifts from your son?
. . . .
THE WITNESS: Well, because we didn't trust where they came from.
. . . .
Q. Were there some events that you can recall at your son's house or apartment that gave you some suspicion about where some of these items may have come from?
A. Yes
Q. Tell us about that, Miss Johnson.
. . . .
THE WITNESS: My husband and I were at the apartment house he stay in. There was all of this merchandize [sic] in a room. My son opened the wrong door. Never been to his apartment before. There was a lot of shoes and equipment and stuff like that.
On cross-examination, Defendant's mother admitted that she had no reason to know her son possessed stolen goods except her own suspicions. She also testified on cross-examination that in the past Defendant had purchased as many as 200 items in New York and brought them back for her to sell at a flea market.
Defendant's mother also testified as follows:
Q. I think . . . I was asking you some questions about your son's relation with women, your observations.
A. He had a lot of them.
Q. When he would have these different women was he at these times single, or married?
A. Both
Defendant argues that these statements were irrelevant and thus inadmissible. Defendant has the burden, however, to show that these statements resulted in prejudice. N.C. Gen. Stat. § 15A-1443(a) (2009); State v. Hawkins, 302 N.C. 364, 367, 275 S.E.2d 172, 174 (1981) .
Prejudice occurs "when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." N.C. Gen. Stat. § 15A-1443(a) (2009). "Evidentiary errors are harmless unless a defendant proves that absent the error a different result would have been reached at trial." State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d 889, 893 (2001).
We find that, even if these statements were irrelevant, Defendant has not met his burden of showing their admission affected the outcome of his case. See Hawkins, 302 N.C. at 367, 275 S.E.2d at 174 ("Conceding, arguendo, that the trial court erred in admitting any of the testimony . . . considering the overwhelming evidence of defendant's guilt, we perceive no prejudicial error.").
The sexual abuse charges are supported by the admissible testimony of Ophelia. Three witnesses, including an expert witness, testified to consistent accounts by Ophelia of the abuse, and Ms. Kane, as an expert, testified to Ophelia's statements and behaviors being consistent with those of a sexual abuse victim. The breaking and entering charges as testified to by Ophelia were corroborated by victims and by police officers, who testified to Ophelia's correct identification of the sites of the thefts and some of the items stolen.
Other than a bald statement by Defendant that this case "hinges entirely on the testimony and credibility of one witness," Defendant has offered no argument that the outcome of his case would have been different had the statements not been admitted. Any error in admitting the statements was not prejudicial.
Defendant also assigns error to the testimony of Stacy Drake that it is not unusual for a child not to speak about sexual abuse. Again, we find no prejudice.
Stacy Drake testified as follows:
Q. Is it unusual for a child not to speak about all the abuse?
A. No
. . . .
Q. Why is it not unusual?
A. It is not unusual because children have different ways of disclosing abuse, have difference [sic] time frames.
They have different styles of techniques. Some will blare it out the, the first time. Some will wait years. Some will test waters, give a little bit at a time to say what will happen[.]
Defendant argued at trial that this was expert opinion which could not be given by Ms. Drake, who was not accepted as an expert. Whether or not these statements constituted impermissible lay opinion, Defendant makes no argument that this statement constituted prejudice. For the reasons stated above, we find no reasonable possibility that the outcome would have been different had this testimony not been admitted. This is particularly true given testimony by Dr. Kane, who testified as an expert witness, that "[c]hildren respond a lot of different ways to their victimization" and "[e]ach person is unique and individual in how they respond." Dr. Kane also testified that Ophelia "is a teenager that tried to avoid negative thoughts and feelings about her victimization." The jury could have used these statements from an expert to explain Ophelia's initial silence. Defendant has failed to meet his burden of showing prejudice.
IV. Jurisdictional Error
This Court reviews appeals for errors of jurisdiction independently and may sua sponte reverse a conviction for want of jurisdiction. In our review of the record, we find the indictment insufficient to support a conviction for indecent liberties under Count VIII of 08 CRS 13271. Although the heading on the front of the indictment indicates this count charges indecent liberties, the description given is for statutory rape of a person 13, 14 or 15 years old. Based on the title on the indictment and not its language, the jury found Defendant guilty of indecent liberties on Count VIII of 08 CRS 13271, and judgment was entered against Defendant for indecent liberties on this count.
The indictment on this count is fatally defective, as it does not charge all essential elements of the offense. See State v. Frink, 177 N.C. App. 144, 145, 627 S.E.2d 472, 473 (2006). Indecent liberties with a minor child requires proof of willfulness and that it was for the "purpose of arousing or gratifying sexual desire." N.C. Gen. Stat. § 14-202.1 (2009) ("A person is guilty of taking indecent liberties with children if . . . he . . . [w]illfully takes or attempts to take any immoral, improper, or indecent liberties with any child . . . for the purpose of arousing or gratifying sexual desire. . . ."); State v. Williams, 303 N.C. 507, 514, 279 S.E.2d 592, 596 (1981). Sexual purpose is not an element of statutory rape of a person 13, 14, or 15 years old. N.C. Gen. Stat. § 14-27.7A (2009); Cf. State v. Weaver, 306 N.C. 629, 636, 295 S.E.2d 375, 379 (1982), disapproved of on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993) (finding no sexual purpose as an element of proof for first-degree rape).
Although Defendant has not raised this issue on appeal, "if the offense is not sufficiently charged in the indictment, this Court, ex mero motu, will arrest the judgment." State v. Partlow, 272 N.C. 60, 63, 157 S.E.2d 688, 691 (1967). We therefore vacate Defendant's conviction for indecent liberties under Count VIII of 08 CRS 13271 and remand for resentencing.
V. Conclusion
Because Defendant has not shown that the outcome of his case would have been different had the testimony at issue not been allowed, we find no prejudicial error in the admission of the testimony in question. We vacate Defendant's conviction for the count of indecent liberties indicated above and remand for resentencing.
No error in part; vacated in part; remanded in part.
Judges STROUD and THIGPEN concur.
Report per Rule 30(e).