State v. Lindsay

899 S.E.2d 25

STATE of North Carolina

v.Nevin Jay LINDSAY

No. COA23-563

Court of Appeals of North Carolina.

Filed March 5, 2024

Appeal by defendant from judgment entered 20 February 2023 by Judge David A. Phillips in Superior Court, Gaston County. Heard in the Court of Appeals 7 February 2024. Gaston County, Nos. 21 CRS 54366, 22 CRS 2164

Attorney General Joshua H. Stein, by Special Deputy Attorney General Amanda J. Reeder, for the State.

Sean P. Vitrano, Wake Forest, for defendant-appellant.

ARROWOOD, Judge.

Nevin Jay Lindsay ("defendant") appeals from judgment entered upon his conviction for second degree forcible sexual offense, sexual battery, and assault on a female. For the following reasons, we affirm the judgment.

I. Background

Defendant waived his right to a jury trial on 5 January 2023, and the case came on for bench trial on 23 January 2023. The evidence offered at trial tended to show the following facts:

In April 2021, Zara¹ was an eighteen-year-old senior in high school living with her mother and two younger brothers in an apartment. During the latter part of the month, defendant—a close friend of Zara’s family—was staying at the apartment while visiting from New York.

On 26 April, defendant picked Zara up from school and drove her back to the apartment. At 7:26 p.m., while Zara’s mother was taking a nap in her room, defendant texted Zara that he was "rolling up in the car" to smoke marijuana with Zara. Zara responded via multiple texts, stating:

Zara: Okay

Zara: Coming give me sex²

Zara: Sec [laughing emoji]

Defendant and Zara smoked marijuana on the front porch around 8:00 p.m.³ At 8:59 p.m., defendant texted Zara, "Wow ok[,]" and then at 10:28 p.m., he texted her, "Cum get this[.]"⁴

Zara’s mother left for work around 9:50 p.m. At approximately 11:00 p.m., while Zara was cleaning the kitchen and her brothers were watching television in their mother’s room, defendant went into Zara’s bedroom and laid down in her bed. When Zara went to her bedroom around midnight, she discovered defendant sleeping in her bed.⁵ Zara testified that she tried getting defendant up so he could move to the living room, but "he was just knocked out cold[,] [s]o I just left him there." Zara placed blankets on her bedroom floor and went to sleep there.

Zara’s recollection of what happened next was detailed during direct testimony at trial:

Zara: I remember me getting ready to just doze off. And I definitely felt like a discomfort feeling, so I eventually woke up. And when I woke up I didn’t see anybody on the bed, so it made me startled where I seen [defendant], like, at the bottom of me, under my blanket.

The State: I’m going to stop you there just a second, okay, Zara? When you said you felt something, I think you used the word uncomfortable —

Zara: Yes.

The State: — what did you feel?

Zara: I felt, like, moisture. Like I felt somebody doing something to my private area.

The State: Did you feel something inside your private area, like moving around?

Zara: No, ma’am.

The State: Okay. When you say you felt moisture in your private area, was it in your vaginal area?

Zara: Yes.

The State: Was it between the labia, or the lips of your vaginal area?

Zara: Yeah.

The State: What were you wearing at the time?

Zara: Leggings.

The State: Where were your leggings at that point, when you felt that?

Zara: It was, like, under, like, my butt cheeks, like, my bottom.

The State: Did you have underwear on?

Zara: No. Just because my bottoms felt like - they fitted me like sweatpants, you know, like baggy. So, no, I didn’t.

The State: Baggy leggings?

Zara: Yeah.

The State: Were you - when you woke up, and you felt this on your vaginal area, were you laying on your stomach or on your side or on your back? How were you laying?

Zara: On my stomach.

The State: Where was the blanket?

Zara: At that point my blanket was, like, more on ray back.

The State: You've described what you felt. Describe what you saw. Were you able to, like, look up?

Zara: Yeah, once I turned around.

The State: What do you mean, turned around, like, look behind you?

Zara: Yes.

The State: What did you see?

Zara: I seen him on all fours.

The State: Who did you see on all fours? Zara: [Defendant].

The State: What did you do?

Zara: I stood there in shock. And I asked him what he was doing.

The State: When you say you stood there, were you actually standing, or how were you positioned?

Zara: I was still laying on my back. I’m sorry, my stomach. But, you know, for me turning around, like, I was just turned (indicating).

The State: Okay. And you said to him, what are you doing?

Zara: Yes.

The State: What did he say?

Zara: Oh, I’m sorry, I’m sorry, I’m sorry.

The State: What happened next?

Zara: I said, you better get the fuck out. I got up. I ran to the bathroom, I washed myself.

After leaving the bathroom, Zara went straight to her mother’s room and locked the door.⁶ At that point, defendant had left Zara’s bedroom and was in the living room. Zara testified that defendant then came to her mother’s door asking Zara to come out and talk to him. According to Zara, defendant sounded scared and was slurring his words. At 2:24 a.m., defendant texted Zara the following messages:

Defendant: You really not coming to talk to me

Defendant: Ok if you feel that way come lock the door

Defendant left the apartment shortly after sending these texts. Zara did not go back to sleep the rest of the night.

In the morning, Zara spoke with her cousin and told her what happened between her and defendant. Specifically, Zara’s cousin testified that Zara told her, "I was sleeping and I just felt really moist, so when I woke up I seen [defendant’s] head between my legs." Zara’s cousin further testified that while Zara was on the phone with her, Zara was "crying, bawling" and "in shock."

Around 6:15 a.m., Zara’s mother returned home from work. At some point that day, Zara asked to speak with her mother in Zara's bedroom. Then, while on the phone with her cousin⁷, Zara explained to her mother what defendant did. Zara’s mother testified that Zara told her that "she ended up waking up to [defendant] between her legs while she was on her stomach" and that defendant’s "face was in between … her buttocks, basically."

Zara’s mother immediately confronted defendant via video call. Zara’s mother testified that, while on the call, defendant denied put- ting his "mouth on her" but admitted to "bit[ing Zara] on her lower back." Later, defendant sent Zara’s mother a text message stating, "First how the hell I get her naked while she sleeping? Second I never licked her I bit her just above lower back she woke, and I told her to take her bed n I’ll stay on the floor the next thing I know she jumped in the shower."

Zara’s mother also called the police, and Officer Alexis Snyder ("Officer Snyder") from Gastonia Police Department met with Zara and her mother at the apartment. Officer Snyder spoke with Zara’s mother first. At trial, Officer Snyder testified⁸ that Zara’s mother informed her that defendant sexually assaulted Zara; specifically, Zara’s mother stated that "her daughter told her that this uncle/friend had used his tongue on her vaginal[.]" When interviewing Zara, Officer Snyder testified that Zara told her that while "[s]he was sleeping, … she awoke to [defendant] in between her legs, licking her vagina." Defendant did not object to either of these statements by Officer Snyder.

While in Zara’s bedroom, Officer Snyder "observe[d] the blankets and the pillows on the floor[.]" Officer Snyder advised Zara not to get a sexual assault kit examination because a supervisor had told her that "due to the time frame" and that Zara had showered, it was not recommended. Officer Snyder also collected Zara’s leggings as evidence.

Zara and her mother later agreed to recorded interviews with Detective Heather Houser ("Detective Houser") of the Gastonia Police Department. Without objection, portions of the 29 April 2021 interviews were admitted as evidence at trial. During Zara’s interview, Zara told Detective Houser that "[defendant] definitely didn’t penetrate me. I definitely felt moisture, which was definitely his mouth area, so he was using his tongue…. All I felt really were like licks."

During the interview with Zara’s mother, Zara’s mother stated that "[Zara] was sleeping on the floor … and when she was awakened, [defendant] was in between her legs with his face, his mouth, down on her, licking her vagina." Detective Houser tried reaching defendant by phone but never received a call back. Pursuant to search warrant, Detective Houser collected a buccal DNA swab from defendant on 6 July 2021.⁹ Detective Houser further testified that Zara’s leggings were tested for DNA because, according to Zara, she had put them on "after the incident[.]"¹⁰

At the close of the State’s evidence, defendant moved to dismiss the charges on the basis that the elements had not been met, but the motion was denied. After declining to testify or present evidence, defendant moved again to dismiss the charges, and the motion was denied.

During closing arguments, the State, in relevant part, stated:

[Zara] has no reason to lie about this. She loved this man as her uncle. He was brought into the home. You heard about the earlier events that day. Absolutely no argument, no animosity, nothing going on for her to make this up. She has nothing against him. She loved him. The defendant wants you to believe, or is pretty much asking you to believe that she made this up. Why would she make this up and put herself and her family through all of this? An entire investigation, talking to not one police officer but then two more detectives, and then actually having to come in and testify in a courtroom. She wouldn’t do that unless she was telling the truth, and she is, and she did.

In a sexual assault case like this, especially when you are - when it involves a personthat is trusted and known to the victim, you have to look at the credibility of the victim, and of

...