State v. Elder, ___ N.C. App. ___, 2021-NCCOA-350 (Jul. 20, 2021)

In April of 2007, the defendant came to the victim’s front door under the pretense of demonstrating a vacuum cleaner, but when she opened the door he forced his way inside, tied her up, robbed her, raped her, and left her bound in a closet. After the defendant left, the victim was able to free herself and call her family, who came to her home. The police arrived soon after and the victim was transported to a hospital, where a rape kit was collected and submitted to the SBI for analysis. A male DNA profile was recovered, but at the time there was no match. The victim, who was 80 years old at the time of the assault, died in 2015. A few months later, based on information from forensic investigators in New York, officers obtained a search warrant for the defendant’s DNA and determined it was a match to the sample recovered from the victim’s rape kit. The defendant was indicted for one count each of breaking and entering, common law robbery, assault with a deadly weapon inflicting serious injury, forcible sex offense, and first-degree rape, and two counts of first-degree kidnapping (one count for moving the victim to the back bedroom before the rape, and one count for moving her into a closet in another bedroom after the rape). The defendant was convicted at trial of all charges, and on appeal he asserted error in six areas.

First, the defendant argued that his motions to dismiss for insufficiency of the evidence should have been granted on the rape, kidnapping, and common law robbery charges. The appellate court concluded there was sufficient evidence to submit the rape charge to the jury, based on the victim’s statements, forensic evidence, and the injuries suffered by the victim. Similarly, based on evidence that the defendant stole jewelry off the victim’s person, along with cash and other property from her home, and did so by using force to restrain the victim, there was sufficient evidence to submit the common law robbery charge to the jury. However, the court agreed that there was insufficient evidence to submit the second kidnapping charge to the jury. Both kidnapping indictments alleged that the offenses were in the first-degree because they were done for the purpose of facilitating the commission of another felony – the rape. Finding State v. Morris, 147 N.C. App. 247 (2001) controlling, the court held that the second alleged kidnapping offense, in which the victim was placed in a closet, could not be for the purpose of facilitating the rape crime because it had already been completed. Although facilitating flight after the completion of a felony could also serve as a basis for first-degree kidnapping, that theory was not alleged in the indictment and the state was bound by the particular allegation made. Therefore, the court reversed as to the latter kidnapping conviction, and remanded for resentencing.

Second, the defendant challenged the trial court’s admission of expert testimony from a state’s witness about the sexual assault kit collection process. The defendant argued that the state failed to give notice of its proposed expert or her opinion, and further challenged the witness’s qualifications. Based on the witness’s experience and training in nursing, the appellate court held that the trial court properly exercised its discretion in allowing her testimony. To the extent that the state’s failure to give advance notice was a discovery violation, the trial court appropriately exercised its discretion by limiting the scope of the witness’s testimony. The defendant also contested the witness’s ability to authenticate the victim’s medical records or lay a foundation for their admission as business records. The appellate court disagreed, noting that the witness was a staff nurse at the hospital when the victim was treated, she was familiar with the records at issue, they were made contemporaneously with the victim’s care, and any otherwise inadmissible statements within the records were appropriately redacted.

Third, the defendant challenged the admission of testimony from several witnesses about statements made by the victim after the attack. Since this issue was not raised at trial, the appellate court reviewed only for plain error and found no merit to the argument. The court concluded that the disputed statements were not hearsay because they were either the testifying witness’s own observations or were not offered for the truth of the matter asserted, and the remaining challenged testimony was only corroborative of other evidence already admitted. 

Fourth, the defendant argued that the trial court erred by sentencing him for both first-degree rape and first-degree kidnapping, since the rape was used to elevate the kidnapping charge to first-degree. The state contended that this was merely a clerical error, since both charges were consolidated for sentencing. Citing precedent and legislative intent, the appellate court agreed with the defendant and remanded the case to the trial court to arrest judgment on one of the two offenses and only enter judgment on the other.

Finally, granting the defendant’s petition for writ of certiorari on this issue and reaching the merits, the court held that the civil judgment entered against the defendant for attorney’s fees was improperly imposed without giving the defendant notice and an opportunity to be heard. The fee application was submitted four days after the sentencing, and there was no indication in the record that the defendant had a meaningful opportunity to be heard as to the amount. The court vacated the civil judgment and remanded for a new hearing.

Judge Tyson concurred in part, but dissented on the issues of sufficiency of the evidence for the second kidnapping charge, sentencing the defendant for both the rape and kidnapping offenses, and the defendant’s challenge to the civil judgment for attorney’s fees.