State v. Foust, COA11–1067.
| Decision Date | 17 April 2012 |
| Docket Number | No. COA11–1067.,COA11–1067. |
| Citation | 724 S.E.2d 154 |
| Parties | STATE of North Carolina v. Robert Mitchell FOUST. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by Defendant from judgment entered 19 August 2010 by Judge James E. Hardin, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 8 February 2012.
Attorney General Roy Cooper, by Assistant Attorney General Laura E. Parker, for the State.
Cheshire, Parker, Schneider, & Bryan, P.L.L.C., Raleigh, by Maitri “Mike” Klinkosum, for Defendant.
On 15 February 2010, Robert Mitchell Foust (“Defendant”) was indicted for first degree rape. Defendant pled not guilty, and the case came on for trial before Judge James E. Hardin, Jr. on 16 August 2010. The State's evidence at trial tended to show the following.
In late September 2008, Donna Toomes' fiancé passed away from liver cancer. Not long after that, in September or October 2008, Defendant, who worked at a garage diagonal to Ms. Toomes' home, came to her house to ask about her son. After that, Defendant began visiting often, even daily, and bringing Ms. Toomes beer, cigarettes, candy bars, etc. Ms. Toomes believed Defendant was just being friendly.
In early December 2008, Ms. Toomes was in her home visiting with George, a friend, and her mother, Dorothy Draver. Defendant came to the house, and an altercation with George broke out. On cross-examination, Defendant's counsel questioned Ms. Toomes about the altercation. These questions elicited responses that George told Ms. Toomes that Defendant hit him with a baseball bat and that there were broken items in the house after the altercation.
On 9 December 2008, Defendant had been drinking and again showed up at Ms. Toomes' house. While Ms. Toomes had a male visitor, Defendant said to Ms. Toomes, “I guess you're just a whore.” He also told her, Ms. Toomes wrote about this incident in her day planner, stating,
On 19 December 2008, Defendant went to Ms. Toomes' house and offered to take her to the grocery store. Defendant asked Ms. Toomes to go to the grocery store with him, and she agreed to go, as there were four other people at her home and she felt safe. They left for Harris Teeter, with Defendant driving a truck owned by Tommy Campbell, who owned the shop where Defendant worked.
After she entered the truck, Ms. Toomes noticed they were driving in the opposite direction from the Harris Teeter. Defendant turned onto a road, turned off the truck, and got out. Defendant then returned to the truck, turned the truck around, and stopped the truck again. Ms. Toomes told Defendant she was scared and uncomfortable. She had a straight razor in her back pocket that she pulled out and clicked twice.
Defendant then punched Ms. Toomes twice, once with his elbow and once with his fist. During the attack, Ms. Toomes' glasses were broken, and she began bleeding. Ms. Toomes asked Defendant why he hit her, and he responded that he had needs and that she was going to be the one to meet them. Defendant came over to the passenger side of the truck and pulled Ms. Toomes out by her legs, leaving her lying with her buttocks on the edge of the seat. Defendant pulled her jeans down to her knees, pushed her panties to the side, and forced her to have intercourse with him.
Ms. Toomes testified that she did not consent, repeatedly asking him why he was raping her and telling him that he did not have to do it. She stared at the ceiling of the truck during the attack. At one point, Ms. Toomes grabbed a shirt that was on the back of the truck seat to cover her face to stop the bleeding. When Defendant finished, Ms. Toomes pulled herself back into the truck and convinced Defendant to drive her home. At her house, she tried to get out of the truck with the shirt in her hand. Defendant snatched the shirt from her and said, “What are you doing, trying to collect evidence against me?” Ms. Toomes told Defendant she would not tell anyone what had happened. She arrived home at 1:30 a.m. and told her roommate and a few other people present what happened, but did not call the police because she did not want Defendant to get violent with her or her kids.
The next day, Ms. Toomes told her mother about the rape, and her mother took pictures of her injuries. These photos were introduced at trial. Ms. Toomes put her clothes from that night, including her jeans, which had a broken zipper, into a plastic bag. She wrote in her planner a few hours after she got home that Defendant had raped and beaten her.
Martha Traugott, a special agent with the North Carolina State Bureau of Investigation (“SBI”), testified regarding her analysis of Ms. Toomes' clothes. Ms. Toomes' panties tested positive for semen, saliva, and blood. Her jeans tested positive for semen. Sharon Hinton, a forensic biologist with the SBI, testified that the sperm on the panties matched Defendant.
Ms. Draver testified that she was at Ms. Toomes' house the day of Defendant's altercation with George, and that Defendant was upset that he had to leave while George got to stay. Ms. Draver also testified regarding Ms. Toomes' statements to her the morning after the rape. She also testified that following the rape she had a conversation with Defendant where she said, In response, Defendant said, “I'm sorry I disrespected your home.”
Detective Larry Kernodle with the Alamance County Sheriff's Department testified that on 11 May 2009, he was investigating an unrelated matter and visited Ms. Toomes at her home to ask about Defendant. Ms. Toomes told him about the altercation with George and the incident on 9 December 2008 before describing the rape to him. During the course of the interview, Detective Kernodle collected Ms. Toomes' day planner, the photos of her following the assault, and the bag containing her clothes. Ms. Toomes rode with Detective Kernodle to the site of the assault, which Detective Kernodle recognized, as Defendant had previously lived in a vehicle at the end of that dead end road. During cross-examination, the following exchange occurred:
Q ( [Defense Counsel]:) This, this incident happened in the, in the City of Burlington. Is that right?
A Correct.
Q All right. And, but Burlington PD hasn't taken part in the investigation at all, have they?
A No, sir.
Q So, is it safe to say you've taken a personal interest in the case?
[Prosecution]: Well, objection, Your Honor.
COURT: Sustained.
At the close of the State's evidence, Defendant made a motion to dismiss which was denied. Defendant made an offer of proof of two letters from potential witnesses but presented no evidence to the jury. Defendant renewed his motion to dismiss at the close of all the evidence, and the motion was denied.
During closing arguments, the State began its argument by saying
What happened in the fall of 2008 is no different than a hunter in the field, a beast in the field sitting [sic] a prey, stalking the prey, learning the prey, and at some point in time, eventually taking what he wants, and that's what happened here.
Defendant did not object to these statements. Also during the course of closing arguments, the State made the following statements:
Make no mistake, this was not two teenagers going out parking behind some area trying to make out. This was violent. This was forcible. This was brutal.
Uncontradicted, mind you, uncontradicted evidence of what he did to her. There's been no explanation. There's nothing saying, well, that could have been at a different time.
....
But that's what happened to her. And again there's no other explanation for this. There's no challenge to this. There's no counter-argument, if you will, to how this happened. None. It is what it is.
....
Ain't no other way that it got down there, and there certainly is no evidence whatsoever that there was any consensual sex. There's absolutely no evidence whatsoever of consensual oral sex. There's absolutely not one shred of evidence of any type of foreplay.
....
And there's been not one shred of contrary expert testimony of any type to say there's a problem, 'cause there's not a problem.
Except for the objection to the first statement noted above, Defendant did not object to the remaining statements.
The jury found Defendant guilty of first degree rape. Defendant was sentenced to a minimum of 480 months and a maximum of 585 months imprisonment.
Defendant appeals from a final judgment in superior court where he was convicted of a non-capital offense. Therefore, we have jurisdiction over his appeal pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).
Defendant first argues that the trial court committed plain error in introducing evidence of Defendant's altercation with George and of the 9 December name-calling incident. We disagree.
Because Defendant did not object at trial to any of the testimony regarding the two incidents, we review for plain error. See N.C. R.App. P. 10(a)(4) (). Plain error is applied “ ‘cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “ fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” ’ ” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citations omitted). Plain error...
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