Forced Self-Penetration Supports a Sex Offense Conviction

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Forced Self-Penetration Supports a Sex Offense Conviction

Posted on September 24, 2013 by Jessica Smith

Over the years I’ve been asked a bunch of times whether forced self-penetration constitutes a “sexual act” supporting a conviction for forcible sexual offense. Until recently, we had no clear answer in North Carolina. However, the North Carolina Court of Appeals recently addressed the issue, holding that this conduct can support a sexual offense conviction.

In State v. Green, the defendant was charged with first-degree sexual offense (a B1 felony). The evidence showed that the defendant pointed a gun at the victim’s head and ordered her to undress, insert her fingers into her vagina, and “play with herself.” She complied. After he was convicted, the defendant appealed, arguing that the charge should have been dismissed. Specifically, he asserted that he didn’t engage in a sexual act with the victim because he never physically touched her.

First-degree sexual offense requires, in part, that the defendant engage in a “sexual act” with the victim. Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime 232 (7^th ed. 2012). That term includes cunnilingus, analingus, fellatio, anal intercourse, and insertion of “any object” into another’s genital or anal opening. Id.

The Green Court began by noting that the issue was one of first impression in North Carolina. It added however that decisions in Florida and California have determined that such conduct was covered by analogous sex crimes statutes. It went on to reject the defendant’s argument that since the victim touched herself, he did not engage in a sexual act with her:

While defendant did not physically touch [the victim], he was “was “involved” in that he coerced her to touch herself. Defendant was not merely an observer or bystander, but rather he participated in the action by directing [the victim]. Given that the text of North Carolina statutes do not explicitly exclude instances such as the one in this case and the persuasive trend in other courts is to recognize coerced self-penetration as a sexual offense, we hold that the act of forcing a victim to self-penetrate constitutes “engag[ing] in a sexual act … with another person … and against the will of the other person.” Defendant’s assertion that he did not engage in a sexual act with [the victim] because he did not make physical contact with her therefore fails.

Slip Op. at p. 14 (citation omitted).

Category: Crimes and Elements, Uncategorized | Tags: green, penetration, self-penetration, sex crimes, sexual act, sexual offense

SBM Update Part II: State v. Green

Posted on May 12, 2011 by Jamie Markham

Last week I wrote about State v. Clark and State v. Brown, the latest cases from the court of appeals on what qualifies as an aggravated offense at a satellite-based monitoring (SBM) determination hearing. You can read that post here. To sum it up, under a line of cases summarized in Clark, first- and second-degree rape appear to be the only crimes that can qualify as aggravated offenses triggering lifetime SBM. Today’s post is about State v. Green, another recent SBM case that sheds light on offenses that might prompt SBM for a period specified by the court.

Backing up for a moment, recall that there are two broad categories of SBM: lifetime SBM and SBM for a period specified by the court. Lifetime SBM is mandatory for recidivists, sexually violent predators, and offenders convicted of an aggravated offense, as well as for defendants convicted of rape or sexual offense with a child by an adult under G.S. 14-27.2A or G.S. 14-27.4A. G.S. 14-208.40(a)(1) and (a)(3). Non-lifetime SBM (which DOC sometimes refers to as “conditional” SBM) applies if the court (a) finds that the defendant committed an offense that involved the physical, mental, or sexual abuse of a minor, and (b) determines, based on a DOC risk assessment (and, potentially, other findings, which I’ll discuss in a moment) that the defendant requires the “highest possible level of supervision and monitoring.” G.S. 14-208.40(a)(2).

Green is a “conditional” SBM case. The defendant pled guilty in 2008 to two counts of indecent liberties with a child—a crime we know can never be an aggravated offense because it does not include penetration as an element. He was sentenced to about two years in prison and ordered to complete the Sex Offender Accountability and Responsibility (SOAR) program while in DOC. At sentencing the trial court began an SBM determination hearing under G.S. 14-208.40A, but continued the hearing for 21 months to allow the parties to gather evidence about whether SBM might apply, including a risk assessment. When everyone got back together in 2010 the court found that the defendant’s indecent liberties convictions were offenses “involving the physical, mental, or sexual abuse of a minor.” Though the defendant’s STATIC-99 risk assessment came back “moderate-low,” the court made additional findings (recorded on a generic form AOC-CR-618) in support of its conclusion that Green required the highest possible level of supervision and monitoring and ordered SBM for a period of five years. The court found (1) that the defendant’s victims were especially young; (2) that the defendant had committed multiple acts of domestic violence; and (3) that he did not obtain sex offender treatment. Green contended that finding (1) was improper because it was based on the factual scenario underlying his actual conviction, and that findings (2) and (3) were improper because they were unsupported by the evidence.

The court of appeals began by noting that a trial court’s authority to supplement or override a non-“high” risk assessment with additional findings was established in State v. Morrow (discussed here and here). The appellate court went on to evaluate the appropriateness of each finding in turn.

As to finding (1) (regarding the victims’ youth), the appellate court ruled that it was permissible for the trial court to look beyond the elements of the conviction offense when making findings about whether a defendant requires the highest possible level of supervision and monitoring. The facts behind the conviction are only off limits, the court said, when “determining whether a defendant’s offense of conviction was an ‘aggravated offense’ or an offense involving the physical, mental, or sexual abuse of a minor.” (I actually do not think our appellate courts have ever affirmatively stated that the determination of whether an offense involves the physical, mental, or sexual abuse of a minor is, like an aggravated offense determination, an elements-only proposition. The closest they came was in State v. Cowan, __ N.C. App. __, 700 S.E.2d 239 (2010), where the court of appeals expressly assumed without deciding that an elements-based approach would apply and concluded that a conviction for solicitation to commit indecent liberties categorically involved abuse of a minor for purposes of the SBM law. I discussed the Cowan case—somewhat critically, I’ll admit—here.) Because the defendant admitted in his plea colloquy that one of his victims was 17 months old and another was 4 years old, the appellate court ruled the trial court’s finding was properly made. The court of appeals agreed with the defendant that finding (2) (regarding domestic violence) was unsupported by the evidence, but disagreed as to finding (3) (that the defendant had failed to obtain treatment) because Green admitted at the continuation of his SBM determination hearing that he never completed the SOAR program.

After concluding that the trial court’s findings about the victims’ ages and the defendant’s failure to complete treatment were properly made, the court of appeals held that they were, substantively, appropriate support for the trial court’s conclusion that the defendant required SBM, notwithstanding the moderate-low risk score.

A final note about Green, Brown, and Clark: the defendants in all three cases erred by noting their appeal of the trial court’s SBM determination orally instead of in writing. Because SBM determinations are civil in nature, oral notice of appeal is insufficient to confer jurisdiction on the court of appeals under Rule 4(a)(1) of the North Carolina Rules of Appellate Procedure. See State v. Brooks, _ N.C. App. __, 693 S.E.2d 204 (2010), discussed here. In all three cases the court of appeals chose, in the interest of justice, to issue a writ of certiorari and hear the matter. It’s possible, though, that the court’s willingness to do that will wane as more defendants are on notice of the court’s holding in Brooks. So, defendants should be sure to notice their appeals in writing.

And a final, final note about SBM hearings in general. Last month the AOC released a new version of form AOC-CR-615 and AOC-CR-616. The new form gives the court a box to check (it’s in the “ORDER” section, Number 2.c.i) when it wants to incorporate additional findings in support of a conditional SBM order. The form also acknowledges the recurring logistical issue that it will not always be possible to complete the determination hearing all at once when the court has yet to order DOC to perform a risk assessment on the defendant. DOC needs some time (30 to 60 days, according to G.S. 14-208.40A(d)) to complete the assessment. Number 2.c.ii in the ORDER section now gives the court boilerplate language to order the defendant back to court at a future date for the post-assessment culmination of the hearing.

Category: Sentencing, Uncategorized | Tags: green, risk assessment, satellite based monitoring, sbm

Retrograde Extrapolation Alive and Well

Posted on March 14, 2011 by Shea Denning

I wrote here about the court of appeals’ decision in State v. Davis, __ N.C. App. __, 702 S.E.2d 507 (2010), granting the defendant a new trial on second degree murder, impaired driving and other charges arising from a fatal hit-and-run committed by the defendant after she had been drinking. Davis determined that expert testimony as to the defendant’s blood alcohol concentration at the time of the crash was improper and prejudicial where that testimony was founded solely on the odor of alcohol on defendant’s breath more than ten hours after the accident.

Some wondered whether Davis portended the court of appeals’ inclination to reconsider the propriety of expert testimony based upon retrograde extrapolation, a methodology used to estimate a person’s alcohol concentration at some earlier point in time based upon a later reported alcohol concentration. After all, courts in other states have viewed such testimony with skepticism. The Texas Court of Criminal Appeals in Mata v. Texas, 46 S.W.3d 902 (Tex. Crim. App. 2001) (en banc), summarized its view of the limitations of retrograde extrapolation as follows:

Initially, we recognize that even those who believe retrograde extrapolation is a reliable technique have utilized it only if certain factors are known, such as the length of the drinking spree, the time of the last drink, and the person’s weight.. . . In addition, there appears to be general disagreement on some of the fundamental aspects of the theory, such as the accuracy of Widmark’s formulas . . . whether a standard elimination rate can be reliably applied to a given subject . . . and the effect that food in the stomach has on alcohol absorption.. . . Nevertheless, given the studies, other concepts seem indisputable, including that multiple tests will increase the ability to plot a subject’s BAC curve, a test nearer in time to the time of the alleged offense increases the ability to determine the subject’s offense-time BAC, and the more personal information known about the subject increases the reliability of an extrapolation. . . . . We believe that the science of retrograde extrapolation can be reliable in a given case. The expert’s ability to apply the science and explain it with clarity to the court is a paramount consideration. In addition, the expert must demonstrate some understanding of the difficulties associated with a retrograde extrapolation. He must demonstrate an awareness of the subtleties of the science and the risks inherent in any extrapolation. Finally, he must be able to clearly and consistently apply the science.

Id. at 916-917. See also United States v. Dubois, 645 F.2d 642 (8^th Cir. 1981) (evaluating sufficiency of the evidence, “emphasiz[ing] that this was a criminal trial,” and finding expert’s extrapolation based on a test taken two and one-half hours after the accident and after the undisputed consumption of an unknown amount of beer insufficient to establish intoxication at time of accident); A.W. Jones, Disposition and Fate of Ethanol in the Body, in Medical-Legal Aspects of Alcohol 95 (James C. Garriott ed., 4th ed. 2003) (“Requests to back extrapolate BAC from time of sampling to time of driving are common in DUI litigation although this is a dubious practice with many variables to consider.”); Cf. Weinstein v. Siemens, 2010 WL 4825205 (E.D. Mich. Nov. 22, 2010) (finding retrograde extrapolation testimony from expert with Ph.D. in toxicology admissible to prove driver’s alcohol concentration at the time of accident where expert relied on three consecutive blood draws to determine the driver’s rate of elimination and applied that rate in its extrapolation analysis to conclude that driver’s alcohol concentration was in the range of .36 to .39, depending upon whether his alcohol concentration was increasing or decreasing).

State v. Green, decided by the court of appeals March 1, 2011, indicates that any such reading of the tea leaves was inaccurate. The defendant in Green was charged with impaired driving based upon an accident that occurred in Raleigh around 8 p.m. on December 14, 2006. A witness who spoke to defendant at the scene through the passenger side window of her car reported that the defendant’s “‘eyes were kind of half shut and glazed looking, and he just said: Huuuuh?’” (Slip op. at 2.) The accident was reported via a 911 call at 8:06 p.m., but the defendant drove away before police arrived. A police officer went to defendant’s home at 9:38 p.m. The officer described defendant as “‘sluggish’” and “‘slow’” and said he could “‘smell the odor of mouthwash with a moderate to strong odor of alcohol coming through that.’” Id. The defendant first denied having had anything to drink, then said he had one glass of wine. Later the defendant said he had consumed five glasses of wine after arriving home at 7:15 p.m.

Defendant was arrested for driving while impaired. He submitted to a breath test at 11:28 p.m., which revealed an alcohol concentration of 0.19.

Paul Glover, head of the Forensic Tests for Alcohol branch of the State Department of Health and Human Services, testified at trial as an expert witness in physiology and pharmacology. Glover testified as to his calculation of defendant’s blood alcohol concentration (“BAC”) at 8:06 p.m.—the time of 911 call—based on the following factors: the breath test results, the time that had elapsed since the time of the call, “the rate at which a human body eliminates alcohol,” defendant’s size and gender, “and defendant’s assertions to Officer Larsen that he consumed as little as no alcohol to as much as five glasses of wine.”

Glover testified that that if defendant consumed no more alcohol after the 911 call, his alcohol concentration at 8:06 p.m. would have been 0.24. This sort of retrograde extrapolation testimony is akin to that approved in earlier North Carolina cases. See, e.g., State v. Taylor, 165 N.C. App. 750 (2004); State v. Catoe, 78 N.C. App. 167 (1985). That is, it is calculated from a single reading taken some hours after the incident, assuming an average elimination rate and that the defendant was in the elimination versus the absorption phase. The reliability of such a calculation may be questioned for the reasons noted in Mata, but its admission is consistent with state precedent.

Glover further testified that, presuming defendant had one glass of wine after 8:06 p.m., his BAC at the time of the accident was 0.23. And, if the defendant drank, as he claimed, five glasses of wine (assuming 5-ounce glasses and 12 percent alcohol) after the accident, his BAC at 8:06 p.m. was 0.19. Finally, Glover testified that assuming defendant drank no alcohol before 8:06 p.m., he would have to have consumed 88 ounces of wine (again assuming 5 ounce glasses and 12 percent alcohol) by 9:38 p.m. to have reached a BAC of 0.19. This calculation requires estimation of the rate at which the defendant’s body absorbed alcohol, a rate that depends upon many factors, including the speed with which alcohol is consumed and whether the defendant had an empty stomach. See this post and Jones, supra, at 51 (noting that the “variable factors involved in the disposition of ethanol in the body . . . make it easy to appreciate the reason for large inter- and intra-individual variations in the BAC profiles observed in experimental studies”).

Given our appellate courts’ continued endorsement of expert testimony based on retrograde extrapolation and related theories, I wonder what the best defense strategies are for pointing out the limitations of the methodology. Is cross-examination alone adequate or does this call for a battle of the experts?

Category: Evidence, Motor Vehicles, Uncategorized | Tags: DWI, glover, green, impaired driving, retrograde extrapolation

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