State v. Carter

• Decision Date: 01 November 2011
• Docket Number: No. COA11–36.,COA11–36.
• Citation: 718 S.E.2d 687
• Parties: STATE of North Carolina v. David Allen CARTER.
• Court: North Carolina Court of Appeals

718 S.E.2d 687

STATE of North Carolina

v.David Allen CARTER.

No. COA11–36.

Court of Appeals of North Carolina.

Nov. 1, 2011.

Appeal by defendant from judgments entered 27 May 2010 by Judge W. David Lee in Iredell County Superior Court. Heard in the Court of Appeals 16 August 2011.

Attorney General Roy Cooper, by Assistant Attorney General Angenette R. Stephenson, for the State.

Mark Montgomery, Durham, for defendant-appellant.

ERVIN, Judge.

Defendant David Allen Carter appeals from judgments sentencing him to 192 months to 240 months imprisonment based upon his conviction for first-degree sexual offense in File No. 08 CrS 57285 and to a consecutive term of 192 months to 240 months imprisonment based upon his conviction for first-degree sexual offense in File No. 08 CrS 57286. On appeal, Defendant contends that the trial court erred by (1) denying his motion to dismiss the first-degree sexual offense charge lodged against him in File No. 08 CrS 57286 for insufficiency of the evidence; (2) failing to instruct the jury on the lesser included offense of attempted first-degree sexual offense in File No. 08 CrS 57286; (3) excluding testimony that the complainant was “overly dramatic,” “manipulative,” and “attention seeking;” (4) limiting the purposes for which the jury could consider certain extrajudicial statements by the complainant; (5) making reference to “the victim” while instructing the jury; (6) denying his motion for an independent psychological evaluation of the complainant; and (7) ordering Defendant to enroll in lifetime satellite-based monitoring. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that Defendant is entitled to a new trial in File No. 08 CrS 57286 and that the trial court's SBM order in File No. 08 CrS 57285 should be vacated and that that case should be remanded to the trial court for further proceedings not inconsistent with this opinion. Otherwise, we find no error in the trial court's judgment in File No. 08 CrS 57285.

I. Factual Background

A. Substantive Facts

1. State's Evidence

Vanessa,¹ who is Defendant's step-daughter, was born on 19 April 2000. When Vanessa asked to use the family's home computer in June 2008, Defendant had her go into the bathroom, where he made her pull down her pants. At that point, Defendant stuck his “doodle” in or on her bottom, which was where her “poop” came out, and made her “suck” on his “doodle.” According to Vanessa, similar incidents had occurred on other occasions. Vanessa claimed that Defendant made her suck on his “doodle” at least “one day each month.” Vanessa had accused Defendant of engaging in similar behavior a year earlier, when the family lived in South Carolina.

On 4 August 2008, Vanessa told her mother that Defendant was doing things to her, including putting his “ ‘doodle’ on her bum.” Eight days later, Vanessa's mother telephoned Sergeant Todd Marcum of the Mooresville Police Department to report Vanessa's allegations. On 14 August 2008, Sergeant Marcum interviewed Defendant, who denied having engaged in any improper behavior with Vanessa. On the same date, Vanessa told Captain Julie Gibson of the Iredell County Sheriff's Department that Defendant had put his penis in her “butt” 50 times. In certain pictures that she drew during this interview, Vanessa depicted Defendant as putting his “doodle” in her bottom and mouth.

Tammy Carroll, a sexual assault nurse examiner at Iredell Memorial Hospital, noted a small anal fissure, which is a tear or an erosion of skin caused by trauma, while examining Vanessa. According to Ms. Carroll, a penis “inside a butt crack or ... on butt cheeks,” “constipation,” “a large amount of diarrhea,” or “any type of other trauma” could cause an anal fissure.

2. Defendant's Evidence

On the day prior to the earlier occasion on which Vanessa had accused Defendant of molesting her, Vanessa was upset about being punished for wandering too far from home. When asked about her allegations against Defendant on the following day, Vanessa said that she “didn't really mean that” and acknowledged that she was “just angry [and] ... upset.” Similarly, Vanessa threw a “complete tantrum” on 4 August 2010 because a family trip to an amusement park in Charlotte was cut short due to inclement weather. Vanessa had seen Defendant and her mother having sex and watching adult television and had been caught looking at adult magazines. Vanessa's mother claimed that Vanessa was not being “truthful” or “very honest” when she accused Defendant of sexually abusing her.

B. Procedural History

On 13 October 2008, the Iredell County grand jury returned bills of indictment charging Defendant with two counts of first-degree sexual offense and one count of crime against nature. The charges against Defendant came on for trial before the trial court and a jury at the 24 May 2010 criminal session of the Iredell County Superior Court. At the conclusion of all the evidence, the State voluntarily dismissed the crime against nature charge. On 27 May 2010, the jury found Defendant guilty of both counts of first-degree sexual offense. As a result, the trial court sentenced Defendant to consecutive terms of 192 months to 240 months imprisonment based upon Defendant's convictions for two counts of first-degree sexual offense. In addition, the trial court ordered Defendant to enroll in SBM for the duration of his natural life. Defendant noted an appeal to this Court from the trial court's judgments.

II. Legal Analysis

A. Sufficiency of Evidence of Anal Penetration

On appeal, Defendant contends that the trial court erred by denying his motion to dismiss the first-degree sexual offense charge lodged against him in File No. 08 CrS 57286 on the grounds that the State failed to provide sufficient evidence of anal penetration. We disagree.

When reviewing a challenge to the sufficiency of the evidence to support a conviction, this Court determines “whether [the State presented] substantial evidence (1) of each essential element of the offense charged and (2) that [the] defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990) (citation omitted). “[T]he trial court must examine the evidence in the light most advantageous to the State, drawing all reasonable inferences from the evidence in favor of the State's case.” State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (citation omitted), cert. denied, 537 U.S. 1005, 123 S.Ct. 495, 154 L.Ed.2d 403 (2002).

According to N.C. Gen.Stat. § 14–27.4(a)(1), “[a] person is guilty of a sexual offense in the first degree if the person engages in a sexual act with a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim.” A “sexual act” includes “cunnilingus, fellatio, analingus, or anal intercourse ... [and] the penetration, however slight, by any object into the genital or anal opening of another person's body.” N.C. Gen.Stat. § 14–27.1. “Anal intercourse requires penetration of the anal opening of the victim by the penis[.]” State v. DeLeonardo, 315 N.C. 762, 764, 340 S.E.2d 350, 353 (1986) (citation omitted). As a result, in order to prove Defendant's guilt of first-degree sexual offense in File No. 08 CrS 57286, the State was required to offer evidence tending to show that Defendant's penis penetrated Vanessa's anus. State v. Norman, 196 N.C.App. 779, 786, 675 S.E.2d 395, 400, disc. review denied, 363 N.C. 587, 683 S.E.2d 382 (2009).

The record contains contradictory evidence concerning the extent to which anal penetration actually occurred. Vanessa testified that Defendant's penis was between her “butt cheeks,” “on” or “over” her anus, and pressing on her anal opening. However, when asked if Defendant “stuck ... his penis ... in a certain part of [her] body,” Vanessa answered “yes.” In addition, Vanessa testified that Defendant was “pushing his doodle in really, really hard, and for some reason I'm very, very delicate, and he was pushing it really hard and it would make it feel very sore and stuff [a]nd sometimes it would feel like it would be bleeding.” According to Ms. Carroll, Vanessa's anal fissure could have been caused by a penis being placed “inside a butt crack or on a butthole or on butt cheeks” or by “[c]onstipation, a large amount of diarrhea, ... irritable bowel syndrome ... [or] any type of other trauma.” Finally, a drawing that Vanessa made depicting the Defendant “putting his doodle in [her] bottom” was admitted into evidence.

Defendant analogizes this case to State v. Hicks, 319 N.C. 84, 90, 352 S.E.2d 424, 427 (1987), in which the Supreme Court reversed a defendant's first-degree sexual offense conviction. In concluding that testimony that the defendant “put his penis in the back of” the complainant did not establish the necessary penetration, the Supreme Court stated that, “[g]iven the ambiguity of [the victim's] testimony as to anal intercourse, and absent corroborative evidence (such as physiological or demonstrative evidence),” the evidence did not suffice to support a conviction. Id. On the other hand, in State v. Norman, 196 N.C.App. at 779, 675 S.E.2d at 395, we upheld the defendant's conviction against a sufficiency of the evidence challenge given that the complainant testified that the defendant “[stuck] his ding-a-ling in my back or my bottom,” Id. at 787, 675 S.E.2d at 400–01; responded affirmatively when asked if the defendant “put [his ding-a-ling] in [the complainant's] butt ... inside of it,” Id. at 787, 675 S.E.2d at 401; and stated that “it hurts when [Defendant] sticks his ding-a-ling in my front and in my back.” Id. After carefully reviewing the record in this case, we believe that the testimony presented at trial is like that in Norman and unlike that in Hicks.

At its essence, Defendant's challenge to the sufficiency of the evidence to support...