This post summarizes published criminal decisions from the North Carolina Court of Appeals released on March 2, 2021. As always, they will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
(1) The trial court did not commit plain error by admitting the State’s expert testimony that the minor victim’s medical history was “consistent with” child sexual abuse. (2) The trial court acted within its statutory and inherent authority to control the courtroom when closing the courtroom and locking the doors during delivery of the jury instructions. (3) The defendant failed to show prejudice sufficient to constitute ineffective assistance of counsel at trial.
State v. Perdomo, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 2, 2021). The defendant was found guilty of taking indecent liberties with a child after his thirteen-year-old niece disclosed to several people that the defendant was behaving in a sexually inappropriate manner toward her.
On appeal, the defendant contended that the trial court committed plain error by permitting the State’s expert to vouch for the minor’s credibility. The defendant argued that the expert impermissibly testified that the minor’s medical history “was consistent with child sexual abuse” and that her “physical exam would be consistent with a child who had disclosed child sexual abuse.” Slip op. at ¶ 8. The Court of Appeals rejected the defendant’s argument, noting that for expert testimony to amount to vouching for a witness’s credibility, that expert testimony must present “a definitive diagnosis of sexual abuse” in the absence of “supporting physical evidence of the abuse.” Slip op. at ¶ 13. The Court’s review of the expert’s full testimony in proper context showed that the expert appropriately provided the jury with an opinion, based on her expertise, that a lack of physical findings of sexual abuse does not generally correlate with an absence of sexual abuse.
The defendant next argued that by closing the courtroom immediately prior to the jury charge, the trial court committed structural error and violated his constitutional right to a public trial. The Court of Appeals noted that the defendant failed to object to this procedure at trial and declined to invoke Appellate Rule 2 to review the constitutional argument. The Court nonetheless concluded that the trial court’s imposition of reasonable limitations of movement in and out of the courtroom to minimize jury distractions were within its statutory and inherent authority to control the courtroom.
The defendant also contended that he was prejudiced at trial by ineffective assistance of counsel, arguing that his counsel “failed in multiple instances to object to plainly impermissible testimony by numerous State’s witnesses vouching for [the minor], or otherwise consented to such inadmissible evidence, when there could be no reasonable strategic basis for doing so.” Slip op. at ¶ 29. The Court rejected this argument, determining that the defendant had not shown that any of the alleged errors gave rise to a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Slip op. at ¶ 30.
(1) The defendant’s defense of voluntary intoxication did not apply to assault with a deadly weapon inflicting serious injury (AWDWISI), a general intent crime. (2) The trial court’s Harbison inquiries were adequate where the defendant was present for both inquiries and consented to his counsel’s actions. (3) The defendant did not receive ineffective assistance of counsel when his trial counsel admitted an element of the charged offense with the defendant’s prior knowledge and consent.
State v. Arnett, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 2, 2021). The defendant’s wife, Mrs. Arnett, came home from work on November 21 and found the defendant drinking. They got in the defendant’s car and drove to grocery store, during which the defendant struck her, threatened her, and took her cellphone. Mrs. Arnett went inside the store and asked the manager to call law enforcement. The defendant was charged, and a court date was set for January 23.
On January 21, Mrs. Arnett again came home from work and found the defendant drinking. The defendant had ingested three beers prior to his wife arriving home and had consumed another after the couple returned from a trip to the grocery store. During dinner, the defendant drank another beer and started another. The defendant went to a neighbor’s house for marijuana and received eight Xanax bars instead, two of which he ingested. After returning home to finish his dinner, the defendant assaulted his wife, slamming her face into the wall, busting her eyes, and cutting her arms and chin. The defendant also kicked her legs, cut her head, stabbed her in the side, and repeatedly punched her in the face. Mrs. Arnett went to the hospital the next morning and remained hospitalized until January 24.
The defendant was indicted on charges of AWDWISI, and the defendant’s trial counsel filed a notice of voluntary intoxication defense, stating he would show that the defendant could not form the specific intent necessary for the crime charged. The trial court ruled AWDWISI was a general intent crime and that the defense of voluntary intoxication was not available to the defendant. At trial, the defendant’s attorney stated he would admit an element of the physical act of the assault, but not the defendant’s guilt because he lacked intent. The defendant told the court, on two separate occasions, that he understood his attorney would admit an element of the offense and that he had discussed the strategy with his attorney and agreed with the argument. The defendant was convicted of AWDWISI with two aggravating factors.
On appeal, the defendant argued that the trial court erred in ruling that the voluntary intoxication defense was not available. The Court of Appeals rejected this argument, reasoning that voluntary intoxication is a defense only to a crime that requires a showing of specific intent, and AWDWISI is not a specific intent crime.
The defendant next argued that the trial court’s Harbison inquiry was inadequate to confirm that he understood he was agreeing for counsel to admit the charged offense and present an invalid defense. The Court rejected this argument, noting that the defendant was present for two separate Harbison inquiries, the defendant was addressed personally by the trial court both times, the defendant confirmed he understood and consented to his counsel’s actions prior to any admission by his counsel, and the defendant heard the trial court’s ruling that voluntary intoxication would not be allowed as a defense to his general intent crime. The Court held that the Harbison inquiries as well as the conversations leading up to them were adequate to show that the defendant was thoroughly advised and knowingly consented to his attorney’s admission to the jury.
The defendant contended that he was denied effective assistance of counsel. The Court rejected this argument, reasoning that the defendant testified, was cross examined, and clearly consented to trial counsel’s acknowledgement of the defendant’s actions against his wife to the jury during closing argument. The Court concluded that the record showed a deliberate, knowing, and consented-to trial strategy in the face of overwhelming and uncontradicted evidence of the defendant’s guilt.
The trial court did not err in denying the defendant’s motion for an instruction on a lesser-included offense where the State’s evidence showed each element of the offenses charged to support submission to the jury.
State v. Carpenter, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 2, 2021). The defendant became abusive and violent toward his romantic partner, D.C., after finding out that she had engaged in an intimate relationship while he was in prison for a year. The defendant forced D.C. to drive him to his cousin’s house, while telling her that she would be having sex with both the defendant and his cousin. During the drive, the defendant repeatedly beat D.C. and threatened to hit her with grip pliers. Once the cousin got in the car, the defendant instructed D.C. to drive to the cousin’s sister’s house, where the three entered a shed behind the house.
While in the shed, the defendant demanded D.C. to perform oral sex on him while the cousin watched and told the cousin to prepare to have sex with D.C. Throughout the incident, D.C. refused the defendant’s demands several times, which resulted in him beating her with his hands, feet, and pliers. The defendant and the cousin forcibly removed D.C.’s shorts as she continued to object. At one point, and after several beatings, D.C. was able to escape and drive to the police station to report the crimes.
At trial, the jury found the defendant guilty of first-degree kidnapping and first-degree sex offense. On appeal, the defendant argued that the trial court should have given a jury instruction for the lesser included offense of second-degree forcible sex offense. Specifically, the defendant argued that the evidence of the element requiring that the perpetrator be “aided or abetted by one or more persons” supported the instruction of the lesser-included offense. Slip op. at ¶ 22.
The Court of Appeals disagreed, finding that the cousin willingly accompanied and rode in the car with the couple; the cousin followed instructions from the defendant and waited while the defendant forced D.C. to enter the shed; the cousin helped the defendant restrain and remove D.C.’s shorts; and the cousin stated to D.C. she “might as well get it over with,” referring to submission to the sexual assault. The Court determined that the cousin was not a passive bystander and in fact assisted, promoted, and encouraged the defendant in the sexual offense. Thus, the Court held that no contradictory evidence was presented in relation to the element in question to justify an instruction on a lesser-included offense.
The trial court did not err in compelling the wife to testify as to the statements the defendant made and in not striking her testimony where the defendant was on trial for attempted murder of a spouse and assault with a deadly weapon with intent to kill inflicting serious injury upon a spouse.
State v. Harris, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 2, 2021). On the first day of the defendant’s jury trial, the defendant’s wife, Leah, testified that one day she and defendant got into an argument, and the defendant stabbed her multiple times in her back, arms, leg, stomach, face, and neck. Leah further testified that the defendant stopped stabbing her after he cut himself, and he requested to have sex. Leah told the defendant that she would have sex with him if he put the knife down.
At some point, Leah gained control of the knife, and testified that the defendant told her “it’s over for him now and he knows the police is coming and he just wanted me to let the knife go so he could kill hisself[.]” Slip op. at ¶ 3. The defendant took Leah’s phone into another room, and Leah ran out of the house and drove to a nearby store for help. During the first day of trial, when this testimony was presented, the defendant did not object to Leah’s testimony about the defendant’s statements.
On the second day of the defendant’s trial, Leah informed the trial court she did not want to testify against her husband. Defense counsel argued Leah was attempting to assert marital privilege and moved to strike her testimony from the previous day. The trial court denied the defendant’s motion to strike and compelled Leah to testify because she was under subpoena.
On appeal, the defendant argued that the trial court erred when it allowed privileged marital communications into evidence, specifically (1) requests to have sex; (2) confessions of suicidal thoughts; and (3) admissions by the defendant of guilt to crimes against his wife. The Court of Appeals rejected this argument, holding that the portions of testimony challenged by the defendant were not confidential communications. The Court cited G.S. 8-57(b)(2), which specifically provides that a spouse of a defendant “shall be both competent and compellable to testify” in a prosecution for assaulting or communicating a threat to the other spouse. Slip op. at ¶ 12. Because the defendant was on trial for attempted murder of a spouse and assault with a deadly weapon with intent to kill inflicting serious injury upon a spouse, there was no marital privilege available.
Additionally, the Court determined that the defendant’s statements to his wife while he was attacking her with a knife and while she was attempting to escape were not prompted by the affection, confidence, and loyalty of marital relations and were thus not confidential communications.