In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.

(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.

(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.

(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):

Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).

 The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.

(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:

[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).

The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, "when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.

(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim.  He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed: 

[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.

Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]

(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects. 

(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.

(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.

A majority of the court determined there were no reversible error in the trial and the convictions were affirmed.

Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.

In this second-degree sex offense case, the court vacated and remanded for entry of judgment on attempted sexual offense where the indictment charged the defendant only with an attempted, not a completed, sex offense. The indictment, labeled “Second Degree Sexual Offense,” alleged that the defendant “did attempt to engage in a sex offense with the victim.” Notwithstanding this, the trial court instructed the jury on the completed offense and provided no instruction on attempt. 

(1) In this Montgomery County case, the defendant was convicted of indecent liberties with a child and attaining the status of habitual felon.  (1) The defendant argued on appeal that the indecent liberties indictment was fatally defective because it identified the alleged victim only by her initials. The Court of Appeals disagreed.  First, the Court noted that State v. McKoy, 196 N.C. App. 650 (2009), held that identifying the victim by initials was sufficient for an indictment charging second-degree rape and second-degree sexual offense. The Court rejected the defendant’s argument that McKoy was overruled by State v. White, 372 N.C. 248 (2019), a case in which the North Carolina Supreme Court held that a sex offense indictment identifying the victim only as “Victim #1” was insufficient. Next, the Court considered whether the indictment would inform a person of reasonable understanding that the defendant was charged with indecent liberties with a child and whether the use of the victim’s initials protected the defendant’s constitutional rights to notice and freedom from double jeopardy. The Court found the indictment satisfied both requirements. A person with common understanding would know the intent of the indictment, and the record demonstrated that the defendant had notice of the victim’s identity.  The arrest warrants listed the victim’s full name. The defendant was interviewed by officers regarding his contact with the victim, and he admitted that he knew her. The defendant did not argue that he had difficulty preparing his case because the initials were used rather than the victim’s full name. In addition, the victim testified at trial and identified herself by her full name in open court. The Court concluded there was no possibility that the defendant was confused regarding the victim’s identity; therefore the use of initials in the indictment provided the defendant with sufficient notice to prepare his defense and protect himself against double jeopardy. 

(2) The defendant argued that the trial court plainly erred by admitting testimony and evidence that vouched for the victim’s credibility. The defendant objected on appeal (but not at trial) to the introduction of statements from Randolph County Department of Social Services employee Morgan Halkyer and Andrew, the victim’s uncle. Halkyer’s recorded interview with the victim was played for the jury.  In that interview, Halkyer told the victim:  “No kid should ever be put in that situation by an adult, you know, they’re an adult, they should know better.” The Court held that Halkyer did not impermissibly vouch for the victim’s credibility since her statements were not tantamount to an opinion that the victim was telling the truth. Instead, the statements provided the jury with the context of Halkyer’s interview.  In that interview, Halkyer was not attempting to opine about whether the victim was truthful but was comforting the victim with general statements about adult behavior. 

The defendant also argued that the trial court plainly erred in admitting text messages Andrew sent to the victim, in which stated that the defendant committed a crime. Among the texts was a statement that “they need to understand that a 40 year old man took you too [sic] his house and attempted inappropriate actions. It's [sic] may not be sexual assault but it is illegal.” Considering that the jury was instructed that its role was to judge the believability of the witnesses, the victim’s extensive testimony at trial, and the defendant’s statement that “maybe things did go a little too far,” the Court found that the defendant failed to demonstrate that Andrew’s text messages had a probable impact on the jury’s verdict. Thus, the Court held that any error in the admission of this evidence was not plain error.

In an appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 774 S.E.2d 871 (2015), the court per curiam affirmed for the reasons stated in State v. Williams, 368 N.C. 620 (Jan. 29, 2016) (in a case where the defendant, a sex offender, was charged with violating G.S. 14-208.11 by failing to provide timely written notice of a change of address, the court held that the indictment was not defective; distinguishing State v. Abshire, 363 N.C. 322 (2009), the court rejected the defendant’s argument that the indictment was defective because it alleged that he failed to register his change of address with the sheriff’s office within three days, rather than within three business days).