State v. Mbaya

249 N.C.App. 529

791 S.E.2d 266

STATE of North Carolina

v.Clairy Kanyinda MBAYA

No. COA16–364

Court of Appeals of North Carolina.

Filed: September 20, 2016

Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State.

Glover & Petersen, P.A., Chapel Hill, by James R. Glover, for defendant-appellant.

TYSON, Judge.

Clairy Kanyinda Mbaya ("Defendant") appeals from judgment entered after a jury convicted him of statutory rape, statutory sex offense, and taking indecent liberties with a child. We find no error.

I. Factual Background

In February 2014, A.B. was living with her mother, her two younger siblings, and Defendant. Defendant was A.B.’s mother's boyfriend and had been living in the apartment since 2013. A.B. was fifteen years old at the time the incidents occurred.

On the afternoon of 21 February 2014, A.B. returned home after school, ate, and went to sleep in her room. No one else was home because A.B.’s mother was pregnant and having contractions. Defendant, who was the newly arriving baby's father, drove A.B.’s mother to the hospital around 3 p.m. that afternoon. Defendant drove the work vehicle assigned to him by his employer, a chauffeured vehicle transportation company.

A.B.’s mother had arranged for A.B.’s two younger siblings to stay with other relatives, and for A.B. to stay with A.B.’s father while she was in the hospital. A.B.’s father planned to pick A.B. up after he left work that day.

A.B. testified at trial she woke up at approximately 8:10 p.m. and heard her bedroom door open and close. A few minutes later, she heard her door open again and saw a man walk into the room. A.B. testified the man was dressed in black, wore a mask that covered facial features, except his eyes, his nose, and dreadlocks, and that he carried a gun. A.B. did not recognize the man at first.

A.B. testified that the man said he would not hurt her, but told her to remove her clothes. He performed oral sex on her and told her to do the same to him. When A.B. refused, he had her rub his penis with her hands. Then, he pushed her on the bed, kissed the side of her face and neck, and raped her. Next, Defendant told her to get on "all fours" and raped her again. At that point, the man turned on the light and A.B. recognized him as Defendant. She recognized his eyes, nose, and dreadlocks and that he spoke with the same African accent as Defendant.

As these incidents occurred, A.B. cried and asked Defendant to stop and leave. Defendant did not stop until A.B.’s father knocked on the door to pick her up around 9:20 p.m. A.B. yelled for her father to hold on. Defendant made A.B. get onto her knees and told her that he was going to ejaculate on her face. Instead, he ejaculated on her chest. A.B. wiped herself off with a pair of sweatpants, dressed, and walked to the front door. Defendant followed her to the door and told her not to say anything or he would kill her.

A.B. left the apartment and walked over to her father, who was standing by his vehicle. A.B.’s father noticed that A.B. was upset and asked her what was wrong. A.B. replied she had just broken up with her boyfriend, because she was scared that Defendant would kill her or her father. A.B.’s father did not believe her and pressed the matter further. A.B. told her father she had just been raped.

A.B.’s father immediately returned to the apartment, but no one was there. They traveled to a nearby relative's house and called the police. An ambulance took A.B. to the hospital where she was examined, gave statements to officers and a nurse describing what happened, and evidence was collected with a rape kit.

Defendant was at the hospital when the baby was born, which was at approximately 12:00 a.m. on 22 February 2014. Shortly thereafter, Defendant was first questioned by detectives concerning his whereabouts at the time of the offenses. Defendant stated he stayed with A.B.’s mother at the hospital for several hours and left around 7:30 p.m. to pick up a friend at a hotel and go to Wal–Mart to buy paint. Detectives did not question Defendant further at the hospital, but arranged for him to come to the Law Enforcement Center the next day on Saturday, 22 February 2014.

On Saturday, Defendant dropped off his work vehicle at his employer's office. Although scheduled to work on Sunday, Defendant did not arrive for his shift. Defendant also failed to show up for his appointment at the Law Enforcement Center on Saturday. He was contacted by a detective and agreed to come in later that day but failed to appear. A detective called Defendant again, but he did not answer his cell phone or respond to the messages left by the detective.

While Defendant was missing, detectives learned that Defendant's employer had a Global Positioning System ("GPS") device installed on his work vehicle that tracked the location of the vehicle. The GPS records indicated the vehicle was not driven to a hotel or to a Wal–Mart after Defendant left the hospital on Friday 21 February 2014 and during the time the offenses occurred.

Rather, GPS records kept by Defendant's employer show the vehicle was driven away from the hospital around 7:30 p.m., arrived at Pitts Drive at 7:47 p.m., left Pitts Drive at 9:27 p.m., and returned to the hospital at 9:37 p.m. Pitts Drive is near A.B.’s mother's apartment and is the same street where the vehicle was located before Defendant drove A.B.’s to the hospital earlier that day. Arrest warrants were issued on 24 February 2014. Defendant was arrested on 5 March 2014. Prior to being arrested, Defendant cut off his dreadlocks.

Detectives interviewed Defendant on 28 May 2014 and the interview was recorded and transcribed. Defendant told detectives, again, after he left the hospital, he picked up his friend from a hotel and went to Wal–Mart. He then dropped off his friend at the hotel on Sugar Creek Road and returned to the hospital. Defendant said he did not go anywhere else, he had driven his work vehicle, and that no one else drove it that day.

At this point in the questioning, detectives informed Defendant that the GPS tracking records for his work vehicle conflicted with his account of his whereabouts that night. Defendant admitted he returned to the apartment to get food, shoes, and to check the places he was supposed to paint. Although A.B.’s mother had given Defendant her key to the apartment, Defendant said he had knocked on the apartment door before entering and nobody answered. Once inside, he stated that he knocked on the inside doors that were not open and nobody was there. Later on in the interview, he admitted that when he opened A.B.’s bedroom door and looked in, he saw her asleep inside. He said he closed the door and never went back.

Forensic experts at the Charlotte–Mecklenburg Police Department's crime laboratory examined swabs and smears collected from A.B. at the hospital and a buccal swab taken from Defendant after his arrest. Sperm fractions were produced from the swabs and specimens taken from A.B.’s vagina, anus, external genitalia, and chest. Tests on the swabs from A.B.’s anus, external genitalia, and chest showed the presence of DNA matching Defendant's DNA profile. DNA found on the swab taken from A.B.’s neck also matched Defendant's DNA profile.

A. Pre–Trial Hearing

On 17 August 2015, at the beginning of the trial, the State filed a motion to enforce Rule 412, the Rape Shield Statute, to prevent Defendant from presenting any irrelevant evidence of A.B.’s other sexual activity. See N.C. Gen. Stat. § 8C–1, Rule 412 (2015). The State sought an order for Defendant and his counsel to "refrain from eliciting, proffering, or attempting to elicit or proffer any testimony or evidence regarding the sexual behavior of the minor child, from her or any other witness that testifies." The trial court cleared the courtroom to hear each party's arguments on the State's motion and the evidence Defendant intended to introduce regarding A.B.’s sexual history in response to the motion.

Defendant's counsel stated Defendant would present alibi evidence, and wanted to show A.B. was sexually active as evidence of the guilt of another perpetrator. He planned to elicit this testimony from A.B., her mother, and her father. The prosecutor informed the court that information obtained in discovery indicated A.B. was a sexually active teenager, and that she had last engaged in sex in December, a couple of months prior to the rape and sexual offenses on 21 February 2014.

Defendant's counsel argued in reply that for the court to allow the State's Rule 412 motion to exclude evidence would be unconstitutional and deny him the opportunity to present a complete defense. He asserted Defendant would be prevented from "presenting the evidence that others could have committed this crime." Counsel conceded the evidence only showed A.B. last had sexual intercourse in December prior to the February incidents, but asserted "a jury might infer that that was not an honest statement." Defendant's counsel noted "[A.B.’s] credibility is a key factor" in this case as she was "the only person who was at home at the time and has made the allegation of the conduct."

Notwithstanding Defendant's argument, the only evidence Defendant sought to introduce at that time was that A.B. had previously been sexually active. He did not offer any proposed evidence linking the sexual conduct to another possible perpetrator, or any other issue in the case, as is shown in the following exchange with the trial judge:

THE COURT: I'm not sure, other than the fact that she was purportedly sexually active, what you're seeking to introduce.

MR. LOVEN: Nothing your honor.

THE COURT: Just that she was sexually active?

MR. LOVEN: Yes, Your Honor.

The trial court granted the State's Rule 412 motion and excluded the evidence. The trial court also found, "aside from the Rule 412 analysis, ... additionally the dangers of prejudice arising from testimony regarding a teenager being sexually active far outweigh any probative...