State v. Garcia
| Decision Date | 20 April 2021 |
| Docket Number | No. COA20-380,COA20-380 |
| Citation | 857 S.E.2d 150 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Ricardo Solis GARCIA |
Attorney General Joshua H. Stein, by Assistant Attorney General Erin E. Gibbs, for the State.
Joseph P. Lattimore, for defendant-appellant.
¶ 1 Defendant Ricardo Solis Garcia appeals from a judgment entered upon a jury's verdict finding him guilty of statutory rape of a person who is 13, 14, or 15 years old, in violation of N.C. Gen. Stat. § 14-27.7A(a) (2015).1 Defendant raises three arguments on appeal: (1) that the trial court lacked subject-matter jurisdiction over Defendant's case because the victim was identified in the indictment only by her initials; (2) that the trial court committed plain error by permitting the jury to hear certain statements by a forensic interviewer, in a recorded interview with the victim, that amounted to impermissible witness vouching; and (3) that Defendant's trial attorney provided ineffective assistance of counsel by opening the door to testimony from a State's witness regarding the victim's credibility. We conclude that Defendant received a fair trial, free from error.
¶ 2 In the winter of 2015, Defendant and P.G.,2 age 13 at the time of the offense, were neighbors. Defendant and P.G.’s father knew each other, and P.G. occasionally visited Defendant's home and translated his mail.
¶ 3 At trial, P.G. testified to the following facts:
¶ 4 While P.G. was walking to her school bus stop in the early morning of 12 February 2015, Defendant drove up and told her to get into his car. She refused, but the interaction caused her to miss the bus, so she accompanied Defendant to his house. P.G. stayed at Defendant's house from around 7:15 a.m. until 2:00 p.m. P.G. testified that nothing inappropriate happened on 12 February; she and Defendant spent the day talking on his sofa. P.G. left Defendant's house and sat on a bench on her street until approximately 3:00 p.m., when she returned home. P.G. testified that on another day in February 2015, Defendant pulled up at her bus stop and asked her to get in his car, but she refused.
¶ 5 In the morning of 6 March 2015, P.G. walked to her bus stop. While she was waiting for the bus, Defendant drove by; P.G. recognized his car. Defendant then pulled up and offered to drive P.G. to school, which she declined. Defendant told her again that he would take her to school, and she got into the backseat of his car. However, after stopping for gasoline, Defendant drove to a motel. P.G. remained in the car while Defendant entered the motel office. When he exited the office, he instructed P.G. to get out of the car, and they entered a motel room, where Defendant closed the drapes, turned on the heater, and went into the restroom.
¶ 6 Defendant returned and directed P.G. to remove her clothes, but she refused. After pushing P.G. onto the bed and ordering her again to disrobe, Defendant removed her clothes and, in P.G.’s words, "told [her] to do sex with him." Defendant then extracted what P.G. described as a white "protector" from its blue packaging and put it on his penis. Next, Defendant "put his penis in [P.G.’s] vagina" and "tried to pick [her] leg up." When Defendant finished, he went to the bathroom, and P.G. sat on the bed. Defendant returned, lay down on the bed, and fell asleep; he slept for five or six hours while P.G. sat on the bed. When he awoke, Defendant told P.G. not to tell anybody what had happened, or else he would "do something" to her family. He then drove her home.
¶ 7 Defendant also told P.G. to write a note to her school and "make an excuse up" to explain her absence. P.G. wrote a note that stated that she had been sick on 6 March, which she presented to school personnel on the next school day. Eventually, school officials questioned P.G.’s absence on 6 March, and her father asked P.G. what had happened. At first, she told her parents and school officials that she had spent the day with a friend. Later, however, she admitted that she had been with Defendant on 6 March.
¶ 8 School officials referred P.G. to law enforcement, and P.G. spoke with Morganton Public Safety officers. She gave the officers an overview of what happened on 6 March: that Defendant took her to a hotel, removed her clothes, had vaginal intercourse with her, and threatened her family. Sergeant Roger Tate referred P.G. to Southmountain Children and Family Services,3 a child advocacy center. Rhonda Robbins, a forensic interviewer and victim's advocate, interviewed P.G. there on 25 March 2015.
¶ 9 Defendant also testified at trial regarding his version of the events of 6 March 2015. He testified that he was driving to a mechanic's shop when he received a telephone call from a number that he did not recognize. The call was from P.G., who requested a ride to visit her uncles. Defendant picked her up at her house, and P.G. directed him to a hotel "where she was meeting her uncles[.]" He testified that when they arrived at the hotel, "she gave [him] $35 to pay for the hotel," which he then used to register. P.G. entered the hotel room, while Defendant waited outside by his car for about ten minutes. He then went to the hotel room and asked P.G. when her uncles would arrive, to which she responded that "her uncles weren't coming" but that her "boyfriend [was] coming." According to Defendant, P.G. told him, "Well, I want to be with you." Defendant then drove P.G. back to her house. Defendant denied having any sexual contact with P.G. or spending the day with her on 12 February 2015.
¶ 10 On 4 May 2015, a Burke County grand jury indicted Defendant for statutory rape of a person who is 13, 14, or 15 years old, in violation of N.C. Gen. Stat. § 14-27.7A(a). The indictment alleged that Defendant "unlawfully, willfully, and feloniously did engage in vaginal intercourse with P. G., a person of the age of 13 years."
¶ 11 The matter came on for trial during the 30 January 2017 criminal session of Burke County Superior Court before the Honorable J. Thomas Davis. The jury returned a verdict of guilty on 1 February 2017. The trial court entered judgment upon the jury's verdict and sentenced Defendant to an active term of 240 to 348 months in the custody of the North Carolina Division of Adult Correction. Defendant filed a petition for writ of certiorari on 14 February 2019, which this Court allowed on 1 March 2019.
¶ 12 Defendant initially argues that the trial court lacked subject-matter jurisdiction to enter judgment against him because, in the indictment, the alleged victim was identified by her initials, "P.G.," and not by her full name. We disagree.
¶ 13 A defendant may "challenge the facial validity of an indictment at any time[.]" State v. White , 372 N.C. 248, 250, 827 S.E.2d 80, 82 (2019) (citation omitted). We review the sufficiency of an indictment de novo. Id. Under de novo review, this Court "considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." State v. Biber , 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citation and internal quotation marks omitted).
¶ 14 "A valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony." White , 372 N.C. at 250, 827 S.E.2d at 82 (citation omitted). "An indictment is not facially invalid as long as it notifies an accused of the charges against him sufficiently to allow him to prepare an adequate defense and to protect him from double jeopardy." State v. Haddock , 191 N.C. App. 474, 476–77, 664 S.E.2d 339, 342 (2008).
¶ 15 This Court has previously addressed the issue of whether an indictment that uses initials to identify a victim is sufficient to impart subject-matter jurisdiction. In State v. McKoy , 196 N.C. App. 650, 675 S.E.2d 406, disc. review denied , 363 N.C. 586, 683 S.E.2d 215 (2009), we employed the tests outlined in State v. Coker , 312 N.C. 432, 435, 323 S.E.2d 343, 346 (1984), and State v. Lowe , 295 N.C. 596, 603, 247 S.E.2d 878, 883 (1978), to determine "(1) whether a person of common understanding would know that the intent of the indictments was to charge efendant with [the offense], and (2) whether efendant's constitutional rights to notice and freedom from double jeopardy were adequately protected by the use of the victim's initials." McKoy , 196 N.C. App. at 657, 675 S.E.2d at 411–12 ().
¶ 16 Applying these tests, our Court in McKoy determined that the defendant had sufficient notice to prepare his defense because he provided law enforcement with two voluntary statements in which he admitted that he knew the victim, and because he "made no argument on appeal that he had difficulty preparing his case because of the use of ‘RTB’ instead of the victim's full name." Id. at 658, 675 S.E.2d at 412. In addition, the defendant did not argue that the use of the victim's initials placed him at risk of double jeopardy, where the victim testified at trial and identified herself in open court. Id. We noted that "[a]lthough the indictments would have been clearer had they alleged the victim's full name, they still ‘named’ the victim by using her initials." Id. at 657, 675 S.E.2d at 411. We held that the indictments at issue were sufficient to meet the Coker and Lowe tests and were therefore sufficient to impart subject-matter jurisdiction on the trial court. Id. at 658, 675 S.E.2d at 412.
¶ 17 Here, as in McKoy , the arrest warrant served on Defendant listed the victim by her initials, P.G. P.G. and Defendant testified that they knew each other prior to the offense; they were neighbors. Furthermore, Defendant did not argue that ...
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