State v. Melton

849 S.E.2d 577 (Table)

STATE of North Carolina

v.William Charles MELTON

No. COA20-257

Court of Appeals of North Carolina.

Filed: November 17, 2020

Attorney General Joshua H. Stein, by Special Deputy Attorney General Mary L. Lucasse, for the State.

Mark Montgomery, for defendant-appellant.

HAMPSON, Judge.

Factual and Procedural Background

William Charles Melton (Defendant) appeals from Judgments entered upon jury verdicts convicting Defendant of three counts of Taking Indecent Liberties with a Child, two counts of Statutory Rape of a Child Younger than Fifteen, two counts of Sex Act by a Custodian, one count of Statutory Rape of a Person more than Six Years Younger, and one count of a Sex Act by Person in a Parental Role. The Record, including evidence adduced at trial, reflects the following:

On 4 August 2017, a Jones County Grand Jury indicted Defendant in 16 CRS 50393, and 50395-97 on charges of Taking Indecent Liberties with a Child, Rape of a Child, Sex Offense by a Sub Parent/Custodian, Statutory Rape of a Person more than Six Years Younger, and Sex Offense by Person in a Parental Role.¹ Defendant's case came to trial in Jones County Superior Court on 23 September 2019. The State's first witness was the alleged victim (Sylvia).²

On direct examination, Sylvia, now an adult, testified Defendant was her stepfather and had lived with Sylvia and her mother for approximately eight years. Sylvia stated Defendant first touched her in a way that "did not feel right" when she was approximately ten years old. After Defendant's dog died, Sylvia alleged she went to check on Defendant and as she returned to bed, Defendant asked Sylvia for several "gentle" kisses. Sylvia further testified this incident was not the only time Defendant would "touch" her. She stated Defendant subsequently "grope[d] [her] breasts" and "caress[ed] [her] arms" with his hands. Sylvia testified this type of touching happened intermittently for several years "until [Sylvia] was like 14."

Sylvia then testified Defendant began asking her to engage in sexual intercourse, starting when Sylvia was in the seventh grade. She stated she began having intercourse with Defendant "somewhere around the end of 7th grade." Sylvia testified she would have intercourse with Defendant "two to three times a week maybe." She stated the intercourse occurred in several locations including the family home, a graveyard, various work sites, and "a house [Defendant] was cleaning up ... for our landlord." Sylvia also testified to the locations and descriptions of the graveyard—where she stated Defendant had intercourse with her "multiple times"—and gave a detailed description of the red house's interior and the intercourse she stated Defendant had with her in the red house.

Sylvia testified she went to the red house with Defendant to see if the landlord "had any work" for Sylvia and Defendant to do. She then stated she went with Defendant upstairs to a room with windows and a fireplace. Sylvia recalled seeing a condom still in its wrapper on the floor in the room; she stated Defendant then put the condom on his penis. Sylvia testified she then had sex with Defendant on the floor—which Sylvia recalled was covered in blue carpet—in front of the fireplace. At some point prior to or during the encounter, Sylvia said Defendant removed the condom and placed it on the mantle. She further testified Defendant "ejaculated on the floor."

Sylvia then stated she left her mother's home about a week after the alleged encounter in the red house to go to her "best friend Tanya's" house. Sylvia "told [Tanya] about it." Sylvia then stated she called her mother to let her know she was fine, and Sylvia's mother "said that her and [Defendant] were on their way[.]" Sylvia testified she then dialed 9-1-1 and told the dispatcher "my step-dad was molesting me, and that—that they were on their way to come get me, and I didn't want to go back with them." Sylvia testified three officers arrived at Tanya's house and then Tanya took Sylvia to "Coastal Carolina East Medical" where they were met by law enforcement. Sylvia recounted speaking to someone named "Leyla" and the State Bureau of Investigation into the midnight hours on that evening. Sylvia did not return home after the hospital; she was initially placed in foster care. Sylvia then testified to speaking with a "Ms. Beth" (Pogloszewski) from the Child Advocacy Center. The trial court then allowed the State to play a video recording of this interview for the jury.

Upon cross-examination, Defendant's counsel asked many questions seeking to clarify or resolve purported discrepancies in Sylvia's testimony. Some of these issues included: whether Defendant was serving a prison sentence while Sylvia was in the seventh grade; whether Sylvia spoke to male and female law enforcement officers alone or in the presence of others; the number and types of interviews Sylvia had with law enforcement or social workers; whether Sylvia had been to the red house prior to the incident she alleged occurred with Defendant; whether law enforcement investigated certain locations—other than the red house—where Sylvia stated Defendant molested her and certain claims about Defendant's physical characteristics. Counsel then asked if Sylvia had "prepared" for her testimony by reviewing her previous "questions and answers." Then defense counsel conducted a detailed inquiry as to Sylvia's interviews with and statements made to law enforcement.

The State then called Beth Pogloszewski to testify. Pogloszewski worked as a child forensic interviewer at the Child Advocacy Center in Jacksonville, North Carolina, and conducted the video interview the jury watched during Sylvia's testimony. The trial court qualified Pogloszewski as an expert witness "in the techniques of forensic interviewing of a child." Pogloszewski recounted her interview with Sylvia and, of note and relevant to this appeal, stated:

I remember [Sylvia] disclosing that the last time that something had happened with [Defendant] she said they had gone to a red house. She described it being downtown, and it was near Mr. Neal's house, and she gave a description of it, and she gave a description of what had happened and basically she during the interview she described it as rape. But she said explicitly what had happened and she gave description of the house and, you know, how it happened inside.

The State's case continued with counsel calling several law enforcement officers to testify as to their investigations and interviews with Sylvia. These witnesses referred to Sylvia as "the victim" numerous times throughout their testimony. The State also presented evidence law enforcement officers took DNA samples from Sylvia and Defendant and Sylvia showed officers where the alleged incident at the red house took place. Special Agent Timothy D. Saunders (Special Agent Saunders) of the State Bureau of Investigation testified he took photos of the red house and collected evidence from the scene. Special Agent Saunders stated he found a condom laying on top of a package of shingles outside a window in the upstairs room of the red house. Special Agent Saunders further testified he found a condom wrapper on the fireplace mantle in the room and took carpet samples from the area Sylvia said Defendant had intercourse with her.

Shane Wilcox, a forensic scientist with the North Carolina State Crime Lab, testified he examined two pieces of the blue carpet seized from the red house and detected the presence of semen on one of the pieces. Samantha Chitkin, also a forensic scientist with the North Carolina State Crime Lab, testified she analyzed the DNA profiles taken from Sylvia, Defendant, and the samples taken from the blue carpet. Chitkin testified she was able to separate the sperm-cell DNA from the non-sperm DNA, and the non-sperm DNA contained two contributors—the minor contributor matched Sylvia's DNA profile, and the major contributor matched Defendant's DNA profile. Chitkin then testified the DNA profile obtained from the sperm on the blue carpet matched Defendant's DNA profile.

After the close of all evidence, the jury found Defendant guilty of three counts of Taking Indecent Liberties with a Child, two counts of Statutory Rape of a Person Fifteen Years or Younger, two counts of Sex Act by a Substitute Parent/Guardian, and one count of Sex Act by a Person in a Parental Role in connection with the charges in 16 CRS 50395-97. On 27 September 2019, the trial court entered Judgment and Commitment on these convictions. Defendant gave oral Notice of Appeal in open court, and the trial court appointed the Office of the Appellate Defender as appellate counsel.

Issues

The dispositive issues on appeal are whether: (I) the trial court plainly erred when it allowed the State's witnesses to refer to Sylvia's allegations as "disclosure" and "what happened," and to refer to Sylvia as "the victim;" and (II) Defendant's trial counsel's failure to object to these admissions constituted ineffective assistance of counsel.

Analysis

I. Impermissible Vouching

Defendant argues the trial court allowed improper expert vouching when the State's witnesses referred to Sylvia's allegations as "disclosures" and "what happened" and to Sylvia as "the Victim." Defendant acknowledges he did not object to these statements at trial. "In criminal cases, unpreserved issues ‘may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.’ " State v. Worley , ––– N.C. App. ––––, ––––, 836 S.E.2d 278, 282 (N.C. Ct. App. 2019), disc. rev. denied , 375 N.C. 287, 846 S.E.2d 285 (2020) (quoting N.C.R. App. P. 10(a)(4) (2019)). Because Defendant failed to object to these statements at trial, he is only entitled to plain error review. Id.

Plain error is error which is " ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]’ " State v. Odom , 307 N.C. 655, 660, ...