State v. Singletary

247 N.C.App. 368

786 S.E.2d 712

STATE of North Carolina

v.Christopher Lee SINGLETARY.

No. COA15–1125.

Court of Appeals of North Carolina.

May 3, 2016.

Attorney General, Roy Cooper, by Assistant Attorney General, John F. Oates, Jr., for the State.

Appellate Defender, Glenn Gerding, by Assistant Appellate Defender, John F. Carella, for defendant-appellant.

TYSON, Judge.

Christopher Lee Singletary ("Defendant") appeals from judgment entered after a jury found him guilty of sexual offense of a child by a substitute parent, indecent liberties with a child, and two counts of sexual offense with a child; adult offender. We find no prejudicial error in Defendant's trial.

The trial court followed the sentencing procedures prescribed by N.C. Gen.Stat. § 14–27.4A(c), now codified at N.C. Gen.Stat. § 14–27.28(c), in sentencing Defendant. Those procedures do not require prior notice to Defendant of the State's or the trial court's intent to seek or impose aggravating factors, do not require aggravating factors to be submitted to a jury, and do not require the State to prove the aggravating factors beyond a reasonable doubt. Those procedures contravene well-settled commands of the Supreme Court of the United States, and for that reason are not constitutionally valid. Because application of N.C. Gen.Stat. § 14–27.4A(c) to Defendant's case did not result in harmless error, we vacate the trial court's judgment, and remand for a new sentencing hearing.

I. Background

J.K., a male child, lived with his mother, Ashley, in an apartment complex in Greensboro, North Carolina. Ashley met Defendant while she was working as a dancer at a nightclub. The two began dating, and Defendant moved in with Ashley and J.K. approximately two months later. Defendant lived with J.K. and Ashley from when J.K. was three years old until he was seven years old.

Shortly after this living arrangement began, Defendant and J.K. "immediately bonded" and J.K. began affectionately referring to Defendant as "Daddy Chris." At trial, J.K. testified to multiple instances of sexual abuse committed by Defendant against him, beginning when J.K. was four years old.

J.K. testified Defendant had, on multiple occasions, hurt his "bottom." J.K. explained Defendant had done so by putting his penis "inside [J.K.'s] ... bottom." J.K. also testified Defendant had forced him to perform fellatio on him on at least one, and possibly two, occasions. During and after these incidents, Defendant told J.K. that performing these acts would "make him [J.K.] stronger."

J.K. described two specific instances of anal sex perpetrated by Defendant, both of which occurred on 25 August 2013. The first instance occurred at a movie theatre. J.K. testified Defendant took him into the bathroom at the theatre and performed anal sex on him inside a bathroom stall. The second instance occurred later that night. While Ashley was taking a shower, Defendant ordered J.K. onto the couch, took down J.K.'s and his own pants, and again performed anal sex.

The following day, J.K. attended his first day of school in the first grade. That night, J.K. had difficulty having a bowel movement. Ashley asked J.K. whether he was constipated and if his stomach was bothering him. After initially being reluctant to provide an explanation to his mother, J.K. eventually stated "it's Chris," and revealed the sexual abuse Defendant had committed against him.

After J.K. reported the sexual abuse to Ashley, she dialed 911. Paramedics arrived, and took J.K. to Moses H. Cone Memorial Hospital, where he was examined by Lindsay Strickland ("Nurse Strickland"), a sexual assault nurse examiner. At trial, Nurse Strickland was accepted, without objection, as an expert in sexual assault nurse examination. During the course of Nurse Strickland's examination of J.K., he repeated his allegations of Defendant's sexual acts and abuse.

Nurse Strickland's physical examination revealed two tears in J.K.'s anus. Nurse Strickland took photographs of J.K.'s injuries and collected his underwear as evidence. Nurse Strickland testified the anal tears were caused by "some type of blunt force trauma," and that it is "not a normal finding to have those tears or injuries."

The underwear collected from J.K. by Nurse Strickland was examined by Lora Ghobrial ("Ghobrial"), a serologist in the forensic biology section of the North Carolina State Crime Laboratory. After being accepted, without objection, as an expert in serology, Ghobrial testified the underwear collected from J.K. was negative for semen, but her examination revealed a single sperm. The sperm was found in the rectal area on the inside of J.K.'s underwear.

J.K. was also examined by Dr. Stacey Wood Briggs ("Dr. Briggs"), a pediatric physician. Dr. Briggs testified that, given J.K.'s age and stage of development, it was "extremely, extremely unlikely to the point of absurdity that [J.K.] could produce sperm." Dr. Briggs testified that less than one percent of eleven year old boys—who would have been five years older than J.K. at the time the sperm was recovered—are able to produce sperm. Dr. Briggs opined the sperm found on the inside of J.K.'s underwear originated from a male other than J.K.

1. Guilt–Innocence Phase

Defendant's trial began on 14 April 2015. In addition to the testimony of J.K., Ashley, Nurse Strickland, Ghobrial, and Dr. Briggs, the State proffered the testimony of Jessica Spence ("Spence"), a licensed professional counselor. Spence was accepted, without objection, as an expert in the field of counseling, and testified to her interactions with and treatment of J.K.

On cross-examination, the following colloquy occurred between Spence and Defendant's counsel regarding Spence's compensation:

[Defendant's counsel]: Is [J.K.] a private client or has he been assigned by some sort of court service or something?

[Spence]: He came to my office through his mother.... We use victim's compensation to pay for [J.K.'s] visits, if that's what you're asking.

....

[Defendant's counsel]: So neither [J.K.] nor his mother are responsible for paying your fees?

[Spence]: Yes, that's correct.

[Defendant's counsel]: And what—by just—what is your fee?

[Prosecutor]: Objection, relevance.

THE COURT: Sustained. Counsel, approach.

A bench conference was held, after which questioning continued on other topics.

The record reveals $2,200 was paid to Spence from a fund administered by the North Carolina Crime Victim's Compensation Commission, a state agency. See N.C. Gen.Stat. § 15B–3. Pursuant to state law, a record of these payments was filed with the trial court and included in Defendant's file. See N.C. Gen.Stat. § 15B–15 (2015). The jury was never made aware of the amount of these payments.

At the close of all evidence, a charge conference was held. At the conference, Defendant requested North Carolina Criminal Pattern Jury Instruction 104.20, testimony of an interested witness. Defendant argued that Spence "is clearly an interested witness." The court denied Defendant's request. The jury returned verdicts of guilty and convicted Defendant of all charges.

2. Sentencing Phase

Following the jury verdicts, a sentencing hearing was held. The court determined Defendant was a prior record level II for sentencing purposes. The State explained to the court that the offense of "sexual offense with a child; adult offender" codified at N.C. Gen.Stat. § 14–27.4A is a "special offense that goes off of the grid, our normal sentencing grid" and provides that a defendant convicted of the offense shall in no case receive a sentence of less than 300 months pursuant to subsection (b). The State then asserted subsection (c) "gives the court an option of going from that 25 years [300 months] all the way up to life imprisonment without parole."

The court appeared perplexed by its range of sentencing options under the statute:

THE COURT: Well, if the court is inclined to go above [a 300 month sentence], but is less than life or—is there any number between what—is there—I'm just looking for guidance on how the court can calculate or if it's 300 minimum or life or—

The State again asserted the sentence must be a minimum of 300 months, and the court could, in its discretion, sentence Defendant to any sentence up to and including life in prison without parole, but "does have to make specific findings."

Regarding sentencing, Defendant's counsel "start[ed] by talking about what [he] [thought] the constitutional law require[d] the court to do in this case." Defendant's counsel discussed several cases from the Supreme Court of the United States, and argued "for [the court] to be allowed constitutionally to go above the 25 year [300 month] minimum, the state is required to allege aggravating factors in the indictment, present those aggravating factors to the jury, and have the jury determine whether or not those aggravating factors apply to the case."

After hearing from the Defendant and the State, the trial court imposed two consecutive sentences of 420 to 504 months imprisonment, one for each conviction pursuant to N.C. Gen.Stat. § 14–27.4A. The court stated it believed it "ha[d] the authority under the statute to sentence above the minimum, and finds that as a matter of fact, in support of sentencing above the minimum, that this crime was of such a brutality and severity and scope and degree that it warrants a sentence above the minimum." The court then made several oral findings of fact supporting its decision. The court also sentenced Defendant for the other crimes for which he was convicted, and ordered those sentences to run concurrently. Defendant gave notice of appeal in open court.

After imposing sentence, the court went "back on the record" later the same day. Defendant was not present. The trial judge stated he had "neglected to include the additional 60 months." He further stated "because that's a change in the maximum number based on the numbers in the statute," the court declined to allow Defendant to be present, and instead "rel[ied] on defense cou...