State v. Long

735 S.E.2d 632

STATE of North Carolina

v.James Thomas LONG.

No. COA12–571.

Court of Appeals of North Carolina.

Dec. 4, 2012.

Appeal by defendant from judgments entered 1 July 2011 by Judge Jay D. Hockenbury in Craven County Superior Court and on petition for writ of certiorari from order entered 27 July 2011 by Judge Kenneth F. Crow in Craven County Superior Court. Heard in the Court of Appeals 11 October 2012.

Attorney General Roy Cooper, by Special Deputy Attorney General Celia Grasty Lata, on brief, and Special Deputy Attorney General Robert C. Montgomery substituted, after briefing, as counsel of record for the State.

Haral E. Carlin for defendant appellant.

McCULLOUGH, Judge.

On 1 July 2011, James Thomas Long (“defendant”) was convicted of two counts of first-degree sex offense with a child and one count of first-degree rape of a child, all with aggravating factors. Defendant was sentenced to two consecutive terms of 250 to 309 months' imprisonment. At a subsequent hearing, defendant was also ordered to register as a sex offender for life and to enroll in lifetime satellite-based monitoring (“SBM”).

On appeal, defendant argues that (1) the trial court plainly erred in admitting certain portions of a pediatric sexual assault nurse examiner's testimony in violation of Rules 401 and 403 of our Rules of Evidence; (2) the trial court plainly erred in admitting the testimony of the investigating officer regarding the child's description of defendant's penis, thereby impermissibly vouching for the credibility of the child; (3) the trial court failed to intervene ex mero motu to clarify the investigating officer's testimony regarding the role of the court in evaluating the presence of aggravating factors; (4) the trial court lacked subject matter jurisdiction to order defendant to register as a sex offender for life and to enroll in lifetime SBM; and (5) the trial court's lifetime SBM order violated the constitutional prohibition on ex post facto punishment.

We hold the trial court committed no error during the conduct of defendant's trial, and after granting defendant's petition for writ of certiorari, we affirm the trial court's sex offender registration and SBM orders, having concluded the error committed in not following the proper statutory procedure for conducting the SBM hearing was harmless under the circumstances of this case.

I. Background

The child victim in the present case was born 16 October 1994. Defendant is the biological father of the child. In July 2006, when the child was eleven years old, the child came forth with allegations that defendant had sexually assaulted her between January 2000 and July 2002, when she was between the ages of five and seven years old. The child testified that defendant had forced her to perform oral sex on him more than once. The child also testified that defendant had sexual intercourse with her on more than one occasion, using a specific lubricant. The child testified that she noticed some bleeding “a couple of times” following defendant's sexual intercourse with her. The child testified these sexual incidents occurred at night while her mother was working and her brother was asleep. In July 2002, defendant left the home, and he and the child's mother, Jennifer Brown (“Brown”), separated.

In July 2006, when the child was eleven years old, the child disclosed the sexual contact between her and defendant to two of her friends who were visiting from Wisconsin. This conversation occurred following an argument on the telephone between the child and defendant over the child's interest in talking to a boy the child had “a crush” on. The child testified she did not tell anyone about the sexual incidents for four years because she knew it would hurt her mother if she found out. The child also testified that during those four years, she continued to visit defendant every weekend and that she loved defendant.

On 18 July 2006, the child and Brown were interviewed by Sergeant John Whitfield of the Craven County Sheriff's Office (“Sergeant Whitfield”) about the sexual assault allegations. Sergeant Whitfield specialized in the investigation of sex crimes and crimes against children. At the time of his interview with the child, the child was eleven years old. During the interview, the child informed Sergeant Whitfield that defendant had forced her to perform oral sex on him “two to three times” and that he had also had sexual intercourse with her multiple times. Sergeant Whitfield testified that the child had stated the sexual intercourse “felt like it was ripping her,” that she had seen some blood on the bed afterwards, and that after a while, the intercourse “didn't hurt anymore.” The child told Sergeant Whitfield the sexual incidents occurred while her mother was at work. Sergeant Whitfield also testified about the child's ability to describe defendant's penis.

Following his interview with the child and her mother, Sergeant Whitfield contacted Cynthia Morton (“Morton”), a pediatric sexual assault nurse examiner at Carolina East Medical Center. Sergeant Whitfield referred the child to Morton for a sexual assault examination and provided Morton with a synopsis of the child's allegations of sexual abuse. The following day, on 19 July 2006, Morton conducted the sexual assault examination of the child. Morton testified that, prior to the examination, the child stated that she had noticed bleeding and discharge from her genital area, although she had not started her period. Morton testified that during her physical examination of the child, she observed two “healed transactions” in the child's hymenal tissue, which indicated “blunt force penetrating trauma” to the child's vaginal area. Morton testified that the injuries were consistent with penetration of the child's vagina by a penis, although the blunt force trauma could have been caused by another penetrating object. Morton testified she could not determine when the injuries to the child's hymen occurred. Morton also testified that she observed two areas of hypopigmentation in the child's hymenal tissue, which could be indicative of scarring but were non-specific findings. Morton also testified she observed two irregular areas of hypopigmentation on the child's anus, both with a flattened anal fold. Morton testified the anal folds could be the result of a number of causes, including relaxation, infection, diarrhea, constipation, and trauma; however, Morton stated that at the time of the child's examination, there was no indication of a cause other than trauma to the area. Morton reported her physical findings to Sergeant Whitfield following the examination.

On 21 July 2006, Sergeant Whitfield located defendant at his residence, informed him of the child's allegations of sexual assault, and asked defendant for an interview. Sergeant Whitfield observed that, during this conversation, defendant appeared calm, was not upset, and did not raise his voice. At the Sheriff's office, Sergeant Whitfield observed that defendant was moving slowly, about which defendant informed Sergeant Whitfield that he had a hernia and was scheduled to have a surgical procedure for it. Sergeant Whitfield did not observe that defendant was in any pain.

After obtaining a signed waiver of defendant's Miranda rights, Sergeant Whitfield conducted an interrogation of defendant concerning the child's sexual assault allegations. Defendant initially denied the allegations then later stated that maybe the alleged incidents had happened by accident. Defendant asked Sergeant Whitfield about the possible sentence if he were convicted of the alleged crimes, and Sergeant Whitfield responded by showing defendant a book on criminal sentencing in North Carolina and explaining to defendant the sentencing determination process. Defendant then informed Sergeant Whitfield that the child had initiated the sexual contact and stated that he did not understand why he had done what he did. When Sergeant Whitfield pressed defendant for details about what defendant had done, defendant provided accounts of the sexual incidents similar to those provided by the child and informed Sergeant Whitfield of other incidents not relayed by the child, including acts of anal intercourse. Sergeant Whitfield prepared a written statement on defendant's behalf based on the interrogation, which he read to defendant and allowed defendant to make any corrections, deletions, or additions. Defendant approved and signed the written statement. Sergeant Whitfield testified that during the entire interrogation process, defendant was calm, was not emotional or upset, never cried or raised his voice, and did not appear nervous or scared. At no time during the interrogation did defendant invoke any of his Miranda rights.

Following the interrogation, Sergeant Whitfield allowed defendant to return home and attend his subsequently scheduled hernia surgery. Defendant was later arrested on 28 August 2006. On 18 September 2006, defendant was indicted on first-degree rape of a child, and on 21 May 2007, defendant was indicted on two counts of first-degree sex offense with a child. All indictments indicated the presence of an aggravating factor, namely that defendant had taken advantage of a position of trust or confidence to commit the offense.

Defendant was tried by a jury on 27 June 2011. At trial, the State presented testimony from the child, Morton, and Sergeant Whitfield. Defendant's signed written statement was also admitted into evidence. Defendant testified in his own defense, denying the child's allegations and refuting his signed written statement. Defendant stated that he was in pain and scared during the interrogation and that he signed the confession so that he could leave the Sheriff's office and return home, as Sergeant Whitfield had promised him. Defendant also presented the testimony of his mother and father attesting to defendant's denials of the allegations and the amicable...