Opinion
No. COA10-219
Filed 18 January 2011 This case not for publication
Appeal by defendant from judgments entered 31 July 2009 by Judge Kevin M. Bridges in Guilford County Superior Court. Heard in the Court of Appeals 28 September 2010.
Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State. David L. Neal for defendant appellant.
Guilford County Nos. 07 CRS 75803-05.
Eric Alexander Robison ("defendant") appeals his convictions of one count of first-degree sexual offense with a child, three counts of indecent liberties with a child, and one count of first-degree rape of a child. Because the jury rationally could have acquitted defendant of first-degree sexual offense and convicted him of attempted first-degree sexual offense, we vacate defendant's first-degree sexual offense conviction and hold he is entitled to a new trial on that charge. We find no error with respect to defendant's indecent liberties and first-degree rape convictions because defendant failed to raise his constitutional arguments before the court below.
I. Factual and Procedural History
On 17 April 2007, a Guilford County grand jury indicted defendant for one count of first-degree sexual offense with a child, three counts of indecent liberties with a child, and three counts of first-degree rape of a child. The evidence presented at trial tended to show the following. In 2001, Carla was four years old when her mother, Nikki, married defendant. Nikki had four children from a prior marriage, and defendant had one. The couple moved to Greensboro, where they lived together with their children. There were episodes of reported domestic violence, and the Guilford County Department of Social Services ("DSS") became an active part of their lives as a result. Nikki and defendant eventually separated and later attempted to reconcile in August of 2005 before separating permanently in October of that year. Carla exhibited behavioral and developmental problems beginning in kindergarten, including violent outbursts.
A pseudonym conceals the victim's identity.
In 2006, Carla told Nikki's new boyfriend, Brock, that defendant had occasionally gone into her room, taken her clothes off, and lay on top of her. Carla then told her mother defendant had touched her and done "grown-up" things to her. Rather than contact the police immediately, Nikki contacted her therapist and probation officer because she was worried there might be outstanding warrants for her arrest.
At trial, Carla claimed there were three sexual encounters between her and defendant. She referred to defendant's penis as the "front part of his bottom," her vagina as the "front part" of her "bottom," and her anus as the "back part" of her "bottom." According to Carla, during the first encounter, defendant pulled up her nightgown and got on top of her with his clothes still on. She was wearing underwear at the time. She stated, "He started moving up and down and feeling on me." When asked what he was "feeling," she replied, "My bottom." Carla testified that, when he finished, he told her that if she told anyone about the incident, he would hurt her mother.
She testified that, during the second encounter, defendant pulled up her nightgown, pulled down her underwear, inserted his "thing" into her "vagina," got on top of her, and "moved up and down." She also referred to his "thing" as "the front part of his bottom." When she told him he was hurting her, he stopped and again told Carla that if she told anyone about the incident, he would hurt her mother. Carla testified (using the same front-back bottom language) that, during the third incident, defendant woke her up, inserted his penis into her vagina, and began moving up and down, but left when he heard the door open.
Carla initially testified she could not remember defendant putting his penis anywhere else in or on her body. But after further questioning, when the prosecutor asked her if defendant had "ever touched" her "bottom part on the back side," she replied that he had. She also responded in the affirmative when the prosecutor asked whether defendant had "ever tr[ied] to put anything in the back part of [her] bottom."
The following exchange occurred:
Q. Has [defendant] ever touched your bottom part on the back side?
A. Yes.
Q. Okay. Can you tell the jury about that?
A. He was feeling it and stuff.
Q. Did he ever try to put anything into the back part of your bottom?
A. Yes.
Q. What was that?
A. The front part of his bottom
Q. Did this happen during one of the times he came into your room?
A. Yes.
Q. Which time? A. The second.
Q. The second time? And what happened when he tried to put the front part of his bottom into your bottom? A. He started moving up and down.
Q. Did he say anything to you as he was moving up and down?
A. No.
Q. Has he ever said anything to you while he was moving up and down?
A. No.
Q. After these instances, . . . were you hurt?
A. Yes.
Q. Did [defendant] know you were hurt?
A. One time I told him that my bottom was hurting.
Q. And what happened when you told him your bottom was hurting?
A. He told me to go find the Vaseline and he put it on my bottom.
Q. Do you remember which time it was that he used the Vaseline?
A. No.
Dr. Angela Stanley testified that, over one year after the child's last contact with defendant, Carla had a deep notch in her hymenal tissue, indicating penetrating trauma had occurred. Dr. Stanley stated Carla had a normal anal exam and explained that one would not normally find evidence of anal trauma if the area had a chance to heal. Windee Knox-Heitkamp, a licensed professional counselor, testified Carla told her that defendant inserted his fingers into Carla's vagina. Defendant did not object to Dr. Knox-Heitkamp's statement. Dr. Kimberly Madden testified that, based on her interview of Carla, Carla did not exhibit any symptoms of a child who had been coached or coerced into disclosing sexual abuse. She also testified Carla's behavior during interviews was consistent with symptoms typically exhibited by children who had experienced sexual abuse. The State dropped one count of first-degree rape of a child at the close of the State's evidence.
The State offered other corroborative evidence, but on appeal, points to no other direct evidence of any crime.
Defendant took the stand in his own defense. He denied having any sexual contact with Carla. Trial counsel for defendant planned to have another witness testify, but the witness entered the courtroom during defendant's testimony in violation of the trial court's sequestration order. The State objected to her testimony and the trial court barred her from testifying.
After the close of evidence, defendant asked the trial court to instruct the jury on the lesser included offense of attempted first-degree sexual offense. The court denied defendant's request. The jury found defendant guilty of one count of first-degree sexual offense with a child, three counts of indecent liberties with a child, and one count of first-degree rape of a child. The jury found defendant not guilty of one count of first-degree rape of a child. The trial court imposed consecutive active sentences of 288 to 355 months for the first-degree sexual offense, 19 to 23 months for each indecent liberties offense, and 288 to 355 months for the first-degree rape offense.
II. Jurisdiction
Defendant entered a plea of not guilty as to all charges and gave timely notice of appeal from the trial court's final judgment; therefore, we have jurisdiction over his appeal of right. See N.C. Gen. Stat. § 15A-1444(a) (2009) ("A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered."); N.C. Gen. Stat. § 7A-27(b) (2009) (stating a non-capital appeal is to this Court).
III. Analysis
A. Lesser Included Offense
Defendant argues the trial court committed reversible error by denying his motion to instruct the jury on the lesser included offense of attempted first-degree sexual offense. On appeal, jury instructions are reviewed de novo. State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). "When determining whether there is sufficient evidence for submission of a lesser included offense to the jury, we view the evidence in the light most favorable to the defendant." State v. Ryder, 196 N.C. App. 56, 64, 674 S.E.2d 805, 811 (2009).
"`[W]hen the State's evidence is clear and positive with respect to each element of the offense charged, and there is no evidence showing the commission of a lesser included offense,' the trial judge may refuse to instruct the jury upon that offense." State v. Brown, 112 N.C. App. 390, 397, 436 S.E.2d 163, 168 (1993) (quoting State v. Hardy, 299 N.C. 445, 456, 263 S.E.2d 711, 718-19 (1980)), aff'd per curiam, 339 N.C. 606, 453 S.E.2d 165 (1995). On the other hand, a lesser included offense instruction is required "if the evidence would permit the jury rationally to find [the] defendant guilty of the lesser offense and to acquit him of the greater." State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002) (citing State v. Conaway, 339 N.C. 487, 514, 453 S.E.2d 824, 841 (1995)). As our Supreme Court has explained, "`[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve doubts in favor of conviction.'" State v. Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654 (1983) (quoting Beck v. Alabama, 447 U.S. 625, 635, 65 L. Ed. 2d 392, 401 (1980)), overruled on other grounds by State v. Johnson, 317 N.C. 193, 203- 04, 681 S.E.2d 775, 781-82 (1986). Therefore, the failure to give a mandatory instruction constitutes reversible error; a guilty verdict on the charged offense does not cure the error. State v. Garner, 330 N.C. 273, 292, 410 S.E.2d 861, 872 (1991).
The trial court must instruct on lesser included offenses "when there is some doubt or conflict concerning the crucial element of penetration." State v. Wright, 304 N.C. 349, 353, 283 S.E.2d 502, 505 (1981). In State v. Johnson, for example, the victim first testified that the defendant had inserted his penis into her vagina, but on cross-examination, indicated the defendant's attempts to achieve penetration had failed. 317 N.C. 417, 436, 347 S.E.2d 7, 18 (1986). She conceded that the defendant "tried to get it in but couldn't." Id. There was testimony that the victim told a physician that she "felt pressure but not penetration" and was uncertain whether penetration had occurred. Id. On appeal, our Supreme Court concluded this evidence created a conflict as to whether penetration had occurred, and therefore, the trial court committed reversible error by failing to instruct the jury on the lesser included offense of attempted first-degree rape. Id.
In State v. Williams, on the other hand, our Supreme Court found no error in the trial court's failure to instruct on attempt. 314 N.C. 337, 351, 333 S.E.2d 708, 718 (1985). The victim unequivocally testified that the defendant inserted his penis into her vagina. Id. at 352, 333 S.E.2d at 718. The defendant's written statement indicated he "struggled to penetrate without an erection," and thereafter got dressed and left the scene of the alleged rape. Id. at 351, 333 S.E.2d at 718 (emphasis omitted). The Court concluded this statement was insufficient to controvert the allegations of penetration because "[t]he simple fact that a person struggles to accomplish some feat, taken by itself, implies neither success nor failure." Id. at 352, 333 S.E.2d at 718.
A defendant may be found guilty of first-degree sexual offense if (1) the defendant engages in a "sexual act" with a person that is under the age of thirteen, and (2) the defendant is both over the age of fourteen and at least four years older than that person. N.C. Gen. Stat. § 14-27.4(a) (2009). "The term `sexual act' . . . means cunnilingus, fellatio, analingus, or anal intercourse. It also means the penetration, however slight, by any object into the genital or anal opening of another person's body. Anal intercourse requires penetration of the anal opening of the victim by the penis of the male." State v. DeLeonardo, 315 N.C. 762, 764, 340 S.E.2d 350, 353 (1986) (citation omitted).
Carla's testimony is ambiguous as to whether defendant penetrated her anus with his penis or fingers. The prosecutor's question was phrased in terms of whether defendant had ever tried to insert anything into her anus. Testimony indicated defendant placed Vaseline "on" — but not in — her "bottom." Based on Carla's testimony, a reasonable juror could conclude defendant penetrated Carla's anus with his penis, with his fingers when applying the Vaseline, or with his fingers when "feeling it and stuff." On the other hand, a reasonable juror could have readily concluded defendant tried and failed to penetrate Carla's anus with his penis or touched the outside of her anus with his fingers. Carla never stated her "back bottom" began hurting after defendant began moving up and down — only that her "bottom" began hurting. The jury could have concluded Carla was referring to her anus, but when the evidence is considered in the light most favorable to defendant, they could have easily concluded she was referring to her vagina.
Defendant denied the event occurred, and a physician that had examined Carla one year after Carla's last contact with defendant testified Carla's anus exhibited no abnormalities. While "[m]erely presenting evidence that no trauma occurred to [the victim] is not sufficient to establish a conflict of evidence as to penetration[,]" State v. Thomas, 187 N.C. App. 140, 146, 651 S.E.2d 924, 928 (2007), the lack of physical evidence in this case does nothing to bolster the State's case.
The State argues that, even if we conclude Carla's testimony was ambiguous — and we do — there is an alternative theory upon which the jury could have convicted defendant. Heitkamp, a licensed professional counselor, testified that Carla told her that defendant inserted his fingers into Carla's vagina. "Prior consistent statements of a witness are admissible to corroborate the testimony of a witness whose truthfulness has been impeached." State v. Chapman, 359 N.C. 328, 358, 611 S.E.2d 794, 818 (2005). Corroborative testimony "may contain `new' or additional information when it tends to strengthen and add credibility to the testimony which it corroborates." State v. Kennedy, 320 N.C. 20, 35, 357 S.E.2d 359, 368 (1987). However, Carla never explicitly testified that defendant committed this act. Heitkamp's testimony was only admissible for corroborative purposes and should not have been considered for its truth. But defendant failed to object to this testimony, and there was no specific limiting instruction given by the trial court. "Evidence admitted without objection, though it should have been excluded had proper objection been made, is entitled to be considered for whatever probative value it may have." Kenneth S. Broun, 1 Brandis and Broun on North Carolina Evidence § 19, at 76 (2004) (citing numerous cases for this proposition). With respect to all of the evidence presented at trial, the trial court correctly instructed the jury that testimony as to what another witness had previously stated could only be considered to determine whether the prior statement was in fact made or to evaluate the other witness's truthfulness. We presume jurors understand and follow jury instructions. E.g., State v. Daniels, 337 N.C. 243, 275, 446 S.E.2d 298, 318 (1994). Even if the jury viewed the statement as substantive evidence of digital penetration, we conclude the hearsay evidence of digital-vaginal penetration was not so strong as to preclude an attempt instruction.
Defendant opines the trial court should have excluded this because it was noncorroborative, but does not appeal on this ground.
When the evidence is viewed in the light most favorable to defendant, a jury could rationally find defendant not guilty of first-degree sexual offense and guilty of attempted first-degree sexual offense. We hold the trial court committed reversible error by failing to instruct the jury on attempted first-degree sexual offense. Consequently, we do not reach defendant's remaining arguments pertaining to this offense.
B. Defendant's Presence at Trial
Defendant next argues all of his convictions should be vacated because the trial court failed to ensure his presence at all stages of his trial. He concedes that neither he nor his counsel objected on this ground at trial. We are not "required to pass upon a constitutional issue unless it affirmatively appears that the issue was raised and determined in the trial court." State v. Creason, 313 N.C. 122, 127, 326 S.E.2d 24, 27 (1985). We decline to do so.
Conclusion
We find no error with respect to defendant's indecent liberties and first-degree rape convictions. Defendant's first-degree sexual offense conviction is vacated, and he is granted a new trial with respect to that charge.
No error in part, vacated and new trial in part.
Judges McGEE and BEASLEY concur.
Report per Rule 30(e).