State v. Alonzo

Decision Date21 August 2018
Docket NumberNo. COA17-1186,COA17-1186
Citation261 N.C.App. 51,819 S.E.2d 584
Parties STATE of North Carolina v. Edward M. ALONZO, Defendant.
CourtNorth Carolina Court of Appeals

Attorney General Joshua H. Stein, by Assistant Attorney General Ellen A. Newby, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.

MURPHY, Judge.

Defendant, Edward M. Alonzo, appeals his convictions of taking indecent liberties with a child and felony child abuse. These convictions result from the sexual conduct Defendant inflicted on his daughter, Sandy,1 while the family resided in Fayetteville between 1990-1993. At issue is whether a trial court commits plain error by giving jury instructions that follow the present Pattern Jury Instruction, but are not in accordance with current law. Further, here, we must determine whether the trial court erred in excluding portions of Defendant’s testimony under Rules 401 and 403. N.C.G.S. § 8C-1, Rules 401, 403. Upon review, we find no plain error, and no error, respectively.


Defendant began sexually molesting Sandy when she was only four years old. This assault continued as their military family moved throughout the United States and Europe. Despite Sandy informing her mother, Defendant’s behavior persisted.

In 2012, having obtained the age of majority, Sandy contacted local, federal, and military authorities across the country regarding the molestation she endured as a child. When Sandy contacted the Cumberland County Sheriff’s Department, where the family resided in Fayetteville from approximately 1990-1993, they ultimately informed her that there is no statute of limitations for felonies in North Carolina.2

A grand jury issued superseding indictments on 3 January 2017 against Defendant for taking indecent liberties with a child, felonious child abuse, and first degree statutory sexual offense. At trial, Ms. Alonzo (Defendant’s ex-wife and Sandy’s mother) testified that she witnessed Defendant molest Sandy sometime between December 1990 and January 1991, when Defendant was home on compassionate leave from the Army. Defendant attempted to testify that the reason for his compassionate leave was the rape of his other daughter by a neighbor. However, the trial court disallowed this testimony, deeming it both irrelevant and more prejudicial than probative. At the close of the trial, the judge instructed the jury using the Pattern Jury Instructions, including, inter alia , N.C.P.I.—Crim. 239.55B, the instruction for felonious child abuse.

On 11 January 2017, Defendant was convicted of taking indecent liberties with a child and felonious child abuse. The jury found him not guilty of first degree statutory sexual offense.3 Defendant timely appealed, focusing on the jury instructions and the trial court’s decision to exclude portions of his proposed testimony.

A. Jury Instructions

At trial, Defendant failed to object to the instructions regarding the charge of felonious child abuse by sexual act in violation of N.C.G.S. § 14-318.4(a2) (1991).4 Therefore, the trial court’s decision will only be overturned upon a finding of plain error.

State v. Lawrence , 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012).

"[T]he North Carolina plain error standard of review [for jury instructions] applies only when the alleged error is unpreserved[.]" Id. "Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan , 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

The trial court instructed the jury that:

To find [Defendant] guilty of this offense the State must prove three things beyond a reasonable doubt: First, that [Defendant] was the parent of [Sandy]. Second, that at the time [Sandy] had not yet reached her 16th birthday. Third, that [Defendant] committed a sexual act upon [Sandy]. A sexual act is an immoral, improper or indecent act by [Defendant] upon [Sandy] for the purpose of arousing, gratifying sexual desire.

These instructions track, almost precisely, the language of the North Carolina Pattern Jury Instruction, N.C.P.I.—Crim. 239.55B, the suggested instructions for the charge of felonious child abuse. "[T]he preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions." Caudill v. Smith , 117 N.C. App. 64, 70, 450 S.E.2d 8, 13 (1994) (citation omitted).

Defendant does not argue that the Pattern Jury Instruction is inapplicable to his case. Instead, Defendant takes issue with the language of the instruction and argues the definition of "sexual act" is incorrect, pointing to an inconsistency between the Pattern Jury Instruction and this Court’s precedent. While Defendant’s argument has merit, the error does not rise to the level of plain error here.

1. Inaccuracy of Pattern Jury Instruction

Defendant addresses a discrepancy between N.C.P.I.—Crim. 239.55B and our prior interpretation of a sexual act, as applied to N.C.G.S. § 14-318.4(a2). We have previously held that the definition of "sexual act" in N.C.G.S. § 14-318.4(a2) is the definition contained in N.C.G.S. § 14-27.1(4) (recodified as N.C.G.S. § 14-27.20(4) ). State v. Lark , 198 N.C. App. 82, 88, 678 S.E.2d 693, 698 (2009). N.C.G.S. § 14-27.20(4) defines "sexual act" as:

cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person’s body: provided, that it shall be an affirmative defense that the penetration was for accepted medical purposes.

The State argues, and Defendant concedes, that a later decision of this Court diverges from this definition of sexual act, declining to extend the N.C.G.S. § 14-27.1(4) definition to N.C.G.S. § 14-318.4(a2). State v. McClamb , 234 N.C. App. 753, 758-59, 760 S.E.2d 337, 341 (2014) (citations omitted). As such, there is a conflict between our precedent. However, "when there are conflicting lines of opinions from this Court, we generally look to our earliest relevant opinion in order to resolve the conflict." State v. Meadows , ––– N.C. App. ––––, ––––, 806 S.E.2d 682, 693 (2017), cert. granted –––, N.C. ––––, 812 S.E.2d 847 (2018). As we are bound by our earlier decision in Lark , the State’s argument regarding McClamb is without merit.

As a result, there is inconsistency between N.C.P.I.—Crim. 239.55B and our controlling interpretation of "sexual act" as applied to N.C.G.S. § 14-318.4(a2). See Lark , 198 N.C. App. at 88, 678 S.E.2d at 698. While the Pattern Jury Instruction allows a broader categorization of what qualifies as a "sexual act," our precedent defines the words more narrowly. Compare id., with N.C.P.I.—Crim. 239.55B. We express concern about this split in definitions for "sexual act." This divergence indicates the necessity of updating the Pattern Jury Instructions to be in accordance with our precedent. Lark , 198 N.C. App. at 88, 678 S.E.2d at 698 ; N.C.P.I.—Crim. 239.55B. The Pattern Jury Instruction’s definition of sexual act must conform with this Court’s definition in Lark .

As binding precedent supports Defendant’s claim of inaccurate jury instructions, we must now determine whether the trial court’s use of the Pattern Jury Instruction constituted plain error.

2. Prejudice

In deciding whether this error in the Pattern Jury Instruction rises to the level of plain error, we first hold that Defendant’s claim that "[t]he combination of the jury’s verdicts finding [Defendant] not guilty of sex offense and guilty of ... the [child abuse] charge directly establishes" plain error is unconvincing. Defendant argues that the proper definition of sexual act for the felonious child abuse charge "would have mirrored" the instruction the jury received for sexual act in relation to Defendant’s first degree statutory sexual offense charge.5 Defendant alleges the not guilty verdict on the sexual offense charge demonstrates that the jury had reasonable doubt that Defendant penetrated Sandy, and, that had the Lark definition of sexual act been given for the child abuse instruction, Defendant would have been found not guilty of that crime as well. Defendant’s prejudice argument focuses on this alleged "inconsistency" between the jury’s verdicts.

However, as inconsistent verdicts are not prima facie evidence of error, and as we are not convinced a proper jury instruction would have rendered a different verdict, we hold that the trial court’s instructions did not prejudice the jury. Lawrence , 365 N.C. at 516, 723 S.E.2d at 333 ; State v. Mumford , 364 N.C. 394, 398-401, 699 S.E.2d 911, 914-16 (2010).

While verdicts that are "inconsistent and contradictory" indicate error, "verdicts that are merely inconsistent" may be both grounded in logic and not erroneous. Mumford , 364 N.C. at 398-401, 699 S.E.2d at 914-16. To determine whether conflicting verdicts are "merely inconsistent," or both "inconsistent and contradictory," we must look to the relationship between the charges. Id. Erroneous jury decisions occur when contradictory verdicts are "mutually exclusive," one guilty finding eliminating the possibility of an accurate guilty verdict on the other charges. Id. (citations omitted). However, the charges Defendant faced, indecent liberties with a child, felonious child abuse, and first degree statutory sexual offense, were not "mutually exclusive" because "guilt of one [did not] necessarily exclude[ ] guilt of the other[s]." Id. at 400, 699 S.E.2d at 915 ; see State v. Farlow , 336 N.C. 534, 444 S.E.2d 913 (1994) (establishing that the charges of indecent liberties with a child and first degree sexual offense are not mutually exclusive). Therefore, what Defendant proposes as inconsistencies within these jury verdicts, acquittal on the sexual offense charge, but guilty of the child abuse charge, does not rise to the...

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