State v. Ragland

Decision Date16 April 2013
Docket NumberNo. COA12–699.,COA12–699.
Citation739 S.E.2d 616
PartiesSTATE of North Carolina v. Joseph RAGLAND, Defendant.
CourtNorth Carolina Court of Appeals

OPINION TEXT STARTS HERE

Appeal by defendant from judgments entered 23 September 2011 by Judge William R. Pittman in Johnston County Superior Court. Heard in the Court of Appeals 15 November 2012.

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

Kimberly P. Hoppin for defendant-appellant.

GEER, Judge.

Defendant Joseph Ragland appeals from his conviction of second degree rape, two counts of second degree forcible sex offense, and sexual servitude. On appeal, defendant primarily contends that the trial court committed plain error when it allowed the State's expert witness to testify that certain DNA evidence could have come from no one else in the world other than defendant. We agree that this testimony constituted the prosecutor's fallacy” that the United States Supreme Court found improper in McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 175 L.Ed.2d 582 (2010) (per curiam). Nonetheless, given the State's overwhelming evidence, we hold defendant has failed to establish that the admission of this testimony was plain error.

Facts

The State's evidence tended to show the following facts. Defendant was the pastor of The Books of Acts, Church of God and Christ Jesus in Angier, North Carolina. “Sarah” and her family began attending defendant's church three times a week when Sarah was seven years old.1 Sarah worked in the church's daycare and performed “praise type” dance at the church on Sundays. Sarah believed defendant could heal and protect people and also withdraw his protection from them. Sarah's father, Mr. Mills, was head deacon in the church and her mother, Ms. Mills, was an evangelist in the church. Ms. Mills was having an affair with defendant prior to 11 April 2009.

In April 2009, Ms. Mills and Mr. Mills left the country for a vacation. Sarah was 16 years old at the time. While they were gone, Sarah stayed first with a family friend, Darlene Gilchrist, and then with her grandmother. It was arranged that Sarah would stay with defendant if, for some reason, she needed another place to stay.

Sarah got into a confrontation with her grandmother on Saturday, 11 April 2009. Sarah's parents were scheduled to return from vacation the following day, Easter Sunday. Ms. Mills spoke with Sarah's grandmother, learned of the confrontation, and later spoke with defendant. Ms. Mills and defendant decided Sarah could stay with defendant and his wife for the night. Defendant picked up Sarah from her grandmother's house and drove Sarah to his house. Sarah believed she was going to go shopping with defendant's wife.

When they arrived at defendant's house, nobody else was home, and defendant instructed Sarah to put her bags in his son's room. Sarah asked if she could take a shower before leaving to shop with defendant's wife. After she had showered, Sarah went back to the son's room. Defendant knocked and, when Sarah answered the door, forced his way into the bedroom. Defendant handed Sarah a cup of beer and told her to drink it. He then asked Sarah to fix a computer in another room. When Sarah moved the mouse of the computer, a video appeared on the monitor of two people having sex. Sarah then returned to the son's bedroom where defendant remained.

Defendant attempted to persuade Sarah to let him give her a massage, but Sarah repeatedly told him “no.” Defendant then forced Sarah down on the bed and rubbed lotion all over her body while she screamed “no” and asked to be taken home. Defendant told Sarah, “I'm going to tell you what to do and you're going to do exactly what I say.” Defendant then told Sarah, “I'm going to make you nut [sic] today” and penetrated her vagina with his fingers. Defendant next performed cunnilingus on Sarah against her will. Sarah was “moving and screaming and yelling” for defendant to stop. Defendant also penetrated Sarah's anus with his fingers. Finally, defendant forcefully engaged in vaginal intercourse with Sarah while she physically resisted. When defendant finished, he released Sarah and left the room momentarily.

Before Sarah could completely dress, defendant returned to the room and threatened her: [I]f you tell anybody, I'm going to smack you so hard you'll have to wear a wig on your head.” For the next 15 minutes, while Sarah stood in a corner of the room, defendant told Sarah about how he was “God's gift to women.” Defendant forced Sarah to bend over, and he engaged in anal intercourse with her.

After defendant finished, he left the room and barred Sarah's path to the door of the house. He told Sarah they were going to eat pizza, he called to order a pizza, and he told Sarah to sit in the living room with him while he watched television. After the pizza was delivered, defendant told Sarah to eat—he threatened that if she did not, she “was going to get in trouble.”

After eating, defendant told Sarah that they were “going to do this one more time.” He took her to his son's room again, stripped off her clothes, and again engaged in vaginal intercourse with her. Defendant then told Sarah to go to sleep and left the room. Sarah could hear defendant walking about the house and was scared to move.

The next morning, Easter Sunday, defendant entered his son's bedroom and asked Sarah where he should take her. Sarah asked to be driven to the house of Ms. Gilchrist, the family friend. On the drive over, defendant told Sarah that she should forgive him because God already had. He also instructed her to shower and douche when she got home. As Sarah exited defendant's truck, defendant said, [D]on't ever tell anybody because I'm going to turn you into a frog.”

Once inside, Sarah used Ms. Gilchrest's phone to call her mother and told her mother that defendant raped her. Sarah told nobody else at that time. Once back at her own house, Sarah told her uncle that she did not want to attend defendant's church and instead went to church with her grandmother. Sarah called a member of defendant's church and said she was sick and could not dance for the Easter services. Sarah never changed the clothes she was wearing while at defendant's house. She attended church wearing a large coat over the clothes. Sarah's uncle noted that Sarah did not dress as she regularly did for church, did not dress appropriately for the weather, was ill-tempered, and was not her usual self that day.

Sarah's parents returned from their trip close to midnight and took Sarah to WakeMed Hospital. At WakeMed, a physician's assistant, Katherine Hardy, and a nurse, Leslie Duran, took statements from Sarah, examined Sarah, and collected a rape kit. Ms. Hardy noted that Sarah had a “friable cervix ... at the 6:00 position.” Deputy Dwayne Medlin with the Johnston County Sheriff's Office also interviewed Sarah and then took the completed rape kit and a bag of Sarah's clothing from Nurse Duran.

Laboratory tests on vaginal swabs collected with the rape kit revealed sperm with a DNA profile that matched defendant's DNA. Tests on the rectal swabs revealed sperm with a mixture of DNA—defendant's and Sarah's DNA profiles could not be excluded as contributors to the mixture. In addition, sperm with DNA matching defendant's DNA was found in cuttings from Sarah's panties, along with a reaction consistent with the presence of human saliva.

On 2 November 2009, defendant was indicted for second degree rape, rape by a custodian, two counts of second degree forcible sex offense, two counts of sex offense by a custodian, and two counts of crime against nature. On 1 August 2011, defendant was additionally indicted for first degree kidnapping and three counts of sexual servitude. On 23 September 2011, the State dismissed two counts of sex offense by a custodian, two counts of crime against nature, two counts of sexual servitude, and the first degree kidnapping charge. According to the transcript, the charge of rape by a custodian was also dismissed, although the dismissal was omitted from the record.

Defendant testified in his own defense at trial. He denied engaging in any sexual activity with Sarah and stated that Sarah's mother wanted defendant destroyed because he had ended their affair. He testified that on the Friday before Ms. Mills left for her week-long trip, she called him to come over, and they had sexual intercourse using a condom. Ms. Mills then removed the condom from defendant using a dry bath cloth, and defendant left. Later that day, when Ms. Mills called asking defendant to return, defendant told Ms. Mills that their affair was over.

Defendant also testified that Sarah stayed at his house on the night of 11 April 2009. Defendant spent much of the evening preparing a barbeque hog for Easter Sunday and only periodically checked on Sarah. He ordered a pizza for them at some point.

The jury found defendant guilty of second degree rape, two counts of second degree forcible sex offense, and sexual servitude. The trial court sentenced defendant to three consecutive, presumptive-range terms of 72 to 96 months imprisonment. Defendant filed a timely written pro se notice of appeal. His appellate counsel has filed a petition for writ of certiorari because of possible defects in that notice of appeal. The State, in response to the petition, has asserted that it “takes no legal position regarding the disposition of this petition.”

Discussion

We first address defendant's notice of appeal. While defendant's written notice of appeal was timely, the record contains no indication that defendant served the notice of appeal on the State. However, “a party upon whom service of notice of appeal is required may waive the failure of service by not raising the issue by motion or otherwise and by participating without objection in the appeal.” Hale v. Afro–Am. Arts Int'l, Inc., 335 N.C. 231, 232, 436 S.E.2d 588, 589 (1993). Here, the State has not raised the issue of lack of service of the...

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    • United States
    • Court of Appeal of North Carolina (US)
    • January 2, 2018
    ...failure to designate this Court in her notice of appeal does not warrant dismissal of this appeal. See State v. Ragland , 226 N.C. App. 547, 553, 739 S.E.2d 616, 620 (denying defendant’s petition for certiorari where "defendant’s failure to serve the notice of appeal and his mistake in fail......
  • State v. Gantt
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    ...intended to appeal to this Court.’ " State v. Rouse , 234 N.C. App. 92, 94, 757 S.E.2d 690, 692 (2014) (quoting State v. Ragland , 226 N.C. App. 547, 553, 739 S.E.2d 616, 620, disc. review denied , 367 N.C. 220, 747 S.E.2d 548 (2013) ). Accordingly, neither of these technical deficiencies a......
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    ...by objecting to the petition for writ of certiorari. Accordingly, lack of service has not been waived. See also State v. Ragland, ––– N.C.App. ––––, ––––, 739 S.E.2d 616, 620,disc. review denied,––– N.C. ––––, 747 S.E.2d 548 (2013). 3. The fact that Defendant's girlfriend did not see Defend......
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