State v. Elder
| Decision Date | 20 July 2021 |
| Docket Number | No. COA20-215,COA20-215 |
| Citation | 278 N.C.App. 493,863 S.E.2d 256 |
| Parties | STATE of North Carolina v. Michael Steven ELDER |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Special Deputy Attorney General Benjamin O. Zellinger, for the State.
Ward, Smith & Norris, P.A., by Kirby H. Smith, III, New Bern, for defendant-appellant.
¶ 1 Defendant Michael Steven Elder appeals from judgments entered upon a jury's verdicts finding him guilty of felonious breaking or entering, felonious common-law robbery, assault inflicting serious injury, second-degree sexual offense, first-degree rape, and two counts of first-degree kidnapping. He also appeals from the civil judgment entered against him for his court-appointed attorney's fees. On appeal, Defendant argues that the trial court erred by (1) denying his motions to dismiss the charges of first-degree rape, first-degree kidnapping, and common-law robbery; (2) admitting a nurse as an expert witness and allowing her to authenticate the victim's medical records; (3) admitting hearsay statements made by the victim; (4) sentencing Defendant for both first-degree rape and first-degree kidnapping; and (5) entering a civil judgment for attorney's fees without providing Defendant with notice and an opportunity to be heard. After careful review, we conclude that the trial court erred in denying Defendant's motion to dismiss one charge of first-degree kidnapping ("Count III"), and that the trial court erred by imposing a sentence on both the first-degree rape conviction and the remaining first-degree kidnapping conviction. Otherwise, Defendant received a trial free from error. However, we conclude that the trial court erred in entering a civil judgment against Defendant for attorney's fees without providing him with notice and an opportunity to be heard, and therefore, we vacate the civil judgment for attorney's fees. Accordingly, we reverse Defendant's second kidnapping conviction, and remand the matter to the trial court for resentencing and for a hearing regarding the imposition of attorney fees.
¶ 2 On 7 July 2007, A.H.1 was 80 years old and lived alone in Afton, North Carolina. She was tending the flower garden in her front yard when she noticed a light-colored car slowly drive by, turn around, and then head back toward her house. She went inside and locked the storm door behind her.
¶ 3 Shortly thereafter, a man carrying a black satchel knocked on her door. A.H. opened the exterior door but kept the storm door locked. The man offered to demonstrate a vacuum cleaner. A.H. informed him that she was not interested in his services, and he offered his card should she change her mind. When A.H. unlocked the storm door and reached out her hand to take the card, the man grabbed her hand, pushed the door open, and entered her home. The man asked where she kept her money, and A.H. told him that she did not have any money. After binding her hands and feet with a black cord, the man shoved her toward a bedroom, pushed her onto the bed, and began to remove her clothes. The man "pulled his penis out[,]" told A.H. that he needed money, and demanded her jewelry. As he removed the jewelry that she was wearing, the man asked A.H. how long it had been since she "had been f*****."
¶ 4 After raping A.H. and forcing her to perform oral sex on him, the man began rifling through her dresser drawers, inquiring as to where she kept "her good stuff." He looked through A.H.’s pocketbooks and located approximately $450 in cash in her billfold.
¶ 5 A.H. told the man that her daughter was on her way to the house; he replied that he would kill A.H.’s daughter if she arrived before he left. The man then tied A.H.’s hands and put her in a bedroom closet. A.H. told him that she could not breathe in the closet, so he tied her to a chair in a different bedroom. The man informed A.H. that he was going to take a shower and left the room; A.H. heard the water running in the bathroom.
¶ 6 Eventually, A.H. was able to untie herself. Although the water was still running in the bathroom, she did not see the light-colored car outside her house. A.H. then checked the bathroom and saw that the man was gone. She called her daughter Linda, and her daughter's husband Harry answered the phone. A.H. told him that she had been raped and robbed, and Linda and Harry hurried to her home. Upon their arrival, Linda and Harry found that the storm door had been partially torn away from the doorjamb.
¶ 7 Law enforcement officers and EMS personnel arrived shortly thereafter. EMS personnel transported A.H. to Maria Parham Hospital by ambulance. However, hospital personnel there could not complete a rape kit, so A.H. was transferred to WakeMed Hospital. At WakeMed, Sexual Assault Nurse Examiner ("SANE") Cindy Carter administered a rape kit, and provided the kit and other evidence collected from A.H. to Detective Sergeant Ben Jackson of the Warren County Sheriff's Office. Warren County law enforcement officers then submitted the rape kit to the State Bureau of Investigation ("SBI") Crime Lab for DNA processing.
¶ 8 Special Agent Russell Holley of the SBI forensic serology department identified sperm cells in smears collected from the rape kit. On A.H.’s underwear, Forensic Scientist Supervisor Timothy Baize of the State Crime Lab detected a mixture of DNA that was consistent with A.H.’s DNA along with that of one unknown male contributor.
¶ 9 A.H. died on 18 December 2015, and her attacker remained unidentified. Then, on 12 April 2016, Det. Sgt. Jackson received a letter from the State Crime Lab, which prompted him to contact the New York Police Department's forensic investigations liaison unit. Based on that communication, Det. Sgt. Jackson acquired and executed a search warrant to collect a sample of Defendant's DNA.
¶ 10 Officers collected a cheek swab from Defendant and submitted the swab to the State Crime Lab on 19 July 2016. On 17 January 2019, the State Crime Lab produced a report that concluded that Defendant's DNA was consistent with the sample collected from A.H.’s underwear. At trial, Mr. Baize testified regarding the significance of his findings:
The probability of randomly selecting an unrelated individual with a D-N-A profile that is consistent with the D-N-A profile[ ] obtained from the second contributor, from the sperm fraction of the cutting from the panties, is approximately 1 in 10.7 trillion in the Caucasian population, one in 63.0 billion in the African-American population, and one in 312 billion in the Hispanic population.
Defendant was thereby identified from the DNA evidence.
¶ 11 On 17 January 2017, a Warren County grand jury indicted Defendant for one count of felony breaking or entering, one count of common-law robbery, one count of assault with a deadly weapon inflicting serious injury, one count of first-degree forcible sexual offense, one count of first-degree rape, and two counts of first-degree kidnapping. One count of first-degree kidnapping was based on Defendant's "moving [A.H.] from the kitchen to the back bedroom," and a second was based on Defendant's "moving [A.H.] from the back bedroom to another bedroom and put[ting] her into a closet." The State alleged that Defendant committed both kidnappings "for the purpose of facilitating the commission of a felony, first degree rape[.]" On 11 April 2017, officers executed a warrant for Defendant's arrest.
¶ 12 Defendant's case came on for trial on 27 March 2019 before the Honorable Josephine Kerr Davis in Warren County Superior Court. At the close of the State's evidence, Defendant moved to dismiss the charges against him for insufficient evidence and the trial court denied the motion. Defendant did not present evidence, and at the close of all evidence, renewed his motion to dismiss. The trial court denied the motion.
¶ 13 On 3 April 2019, the jury found Defendant guilty of felonious breaking or entering, felonious common-law robbery, assault inflicting serious injury, second-degree sexual offense, first-degree rape, and two counts of first-degree kidnapping. After consolidating Defendant's convictions for second-degree sexual offense, common-law robbery, and misdemeanor assault inflicting serious injury, the trial court entered judgment sentencing Defendant to a minimum of 84 and a maximum of 110 months of imprisonment. The trial court then consolidated Defendant's convictions for first-degree rape and two counts of first-degree kidnapping, and sentenced Defendant to a minimum of 240 and a maximum of 297 months of imprisonment, to run consecutively.
¶ 14 Defendant gave notice of appeal in open court.
¶ 15 On 7 April 2019, the trial court entered a civil judgment against Defendant in the amount of $17,212.50 for fees owed to his court-appointed attorney.
¶ 16 Defendant raises several arguments on appeal. Defendant initially argues that the trial court erred by denying his motions to dismiss the charges of first-degree rape, first-degree kidnapping, and common-law robbery. Defendant also contends that the trial court erred by admitting Nurse Marlene Malcolm as an expert witness and allowing Ms. Malcolm to authenticate A.H.’s medical records, and additionally, that the trial court committed plain error by admitting hearsay testimony. He further argues that the trial court erred by failing either to (1) arrest judgment on one first-degree kidnapping conviction and sentence him for second-degree kidnapping, or (2) arrest judgment on the first-degree rape conviction and sentence him on both first-degree kidnapping convictions. Finally, Defendant has filed a petition for a writ of certiorari requesting that this Court review the civil judgment for attorney's fees. Defendant maintains that the trial court erred by imposing a civil judgment against him without first providing him with notice and an opportunity to be heard on the issue of attorney's fees. We address each argument in turn.
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