State v. Jones
| Decision Date | 29 December 2022 |
| Docket Number | COA22-518 |
| Citation | 2022 NCCOA 936 |
| Parties | STATE OF NORTH CAROLINA v. ERNEST PAUL JONES |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 30 November 2022.
Appeal by defendant from judgment entered 24 September 2021 by Judge James G. Bell in Columbus County Superior Court. No. 19 CRS 478
Attorney General Joshua H. Stein, by Special Deputy Attorney General Lauren M. Clemmons, for the State.
Glenn Gerding Appellate Defender, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant.
¶ 1 Ernest Paul Jones ("defendant") appeals from judgment entered upon his conviction for indecent liberties with a child. Defendant contends the trial court erred by denying his motion to dismiss for insufficient evidence and allowing certain testimony by the State's expert. For the following reasons, we reverse and remand for a new trial.
¶ 2 In early 2019, Jennifer Melvin ("Ms. Melvin") the human resources business manager for Rust Enterprises, received a complaint related to one of the company's nine McDonald's. Both a customer and an employee's assistant aide made complaints regarding defendant, a seventy-three-year-old male, for incidents occurring at the company's Whiteville McDonald's location. After speaking with the complainants and store manager, Ms. Melvin reviewed the security footage at the business from the date and time in question.
¶ 3 On the recording from 28 January 2019, Ms. Melvin observed defendant enter the store with a "manilla type envelope" and go to sit down with a group, two adults and one female child, who were already inside at one of the tables. After he sat down, defendant handed over the envelope and the group started "chang[ing] chairs several times." After spending some time in the restaurant, defendant left with the child through one door while the adults from the group left through another door.
¶ 4 After watching the surveillance tape, Ms. Melvin felt that police intervention was necessary and contacted the Whiteville Police Department to file a report. To assist with the investigation, Ms. Melvin provided the police with the existing security camera footage and live access to the cameras.
¶ 5 On 8 February 2019, Ms. Melvin was notified that defendant was in the store again and, after notifying law enforcement so they could view the livestream, she also "began observing[.]" On this occasion, defendant arrived at the McDonald's with the same child in his vehicle and they entered the store together. Defendant and the child "had an interaction" with the "family" and then defendant and the child left together, and the family left separately. At this point, Ms. Melvin turned the case over to law enforcement and ended her involvement in the investigation.
¶ 6 Thereafter, the Whiteville Police Department contacted the SBI to assist with their investigation. Agent Timothy Dean Saunders ("Agent Saunders") was assigned the case, and through investigation identified the child from the videos as J.A.R.[1], a fifteen-year-old female at that time, and the adults as her parents. Agent Saunders learned it was not unusual for J.A.R. and her family to spend time at McDonald's with defendant. Additionally, Agent Saunders conducted surveillance of defendant and his interactions with J.A.R. at the McDonald's.
¶ 7 During surveillance on 18 February 2019 at approximately 2:30 p.m., Agent Saunders watched defendant leave the McDonald's with J.A.R., alone, and go to defendant's residence. Agent Saunders could not say how long defendant and J.A.R. were at the residence since surveillance was discontinued at 6:00 p.m. that evening.
¶ 8 On 20 February 2019, Agent Saunders and Will Campbell ("Detective Campbell"), with the New Hanover County Sheriff's Office, interviewed defendant, while other agents interviewed J.A.R.'s parents with a translator since they only "spoke a little bit of English[.]" During his interview, defendant stated that he was very close with J.A.R.'s family, and knew them since J.A.R. was a baby. Although defendant stated in the interview he had never touched J.A.R., he did admit to kissing her on the lips on two occasions.
¶ 9 Defendant told law enforcement that one kiss happened while they were in his car at her house less than a week prior and the other kiss happened at a laundromat. Defendant further stated that on one occasion where he kissed J.A.R., she "resisted" and "didn't act like [he] wanted her to do it so [he] didn't mess with her anymore." Defendant stated that when he kissed J.A.R. at the laundromat, her mother saw it and said nothing. Defendant stated he kissed J.A.R. because "she look[ed] good."
¶ 10 Defendant told investigators J.A.R. was not an "innocent" girl and had been "conning him" out of money and items, such as a car, for years. Defendant stated that J.A.R.'s parents wanted her to marry defendant and "make a baby" with defendant. Lastly, defendant denied that J.A.R. had ever been alone in his residence. Although law enforcement drove defendant back to his residence after the interview, before they left defendant's residence that day he was placed under arrest. J.A.R. was interviewed by a specialist who was specifically trained to conduct child interviews.
¶ 11 On 21 September 2021, the matter came on for trial in Columbus County Superior Court, Judge Bell presiding. At trial, J.A.R. and her family testified for the State. J.A.R.'s father testified that the family had known defendant for about seventeen years, and stated he was not concerned defendant and his daughter had more than a friendship because he was "always with them[,]" and he never left his daughter alone with defendant. Furthermore, J.A.R.'s father and mother testified they only knew of one time their daughter left McDonald's with defendant but denied knowing of any kissing on the lips, talk of marriage between J.A.R. and defendant, or of any time their daughter visited defendant's residence alone.
¶ 12 J.A.R. testified that there were two instances where defendant kissed her on the mouth. J.A.R. testified that on both occasions, defendant was attempting to kiss her on the check, like "he would usually" and she "moved [her] head accidently" causing him to kiss her on the mouth instead and she felt responsible. J.A.R. testified that she did not want defendant to kiss her on the mouth, but that she was not alarmed by his actions. J.A.R. also denied telling the specialist during her interview that there was a time defendant moved her face to kiss her and her mother was present and saw it.
¶ 13 The State's last witness was physician's assistant Becky Herrmann ("Ms. Herrmann"), who conducted a medical examination of J.A.R. and wrote a report summarizing her findings. The defense vehemently objected to the admission of Ms. Herrmann's report into evidence. Over defense's objection, the court admitted "redacted portions of the" report.
¶ 14 Ms. Herrmann testified that she provided "child medical exams with the North Carolina Child Medical Evaluation Program at UNC-Chapel Hill." A child medical exam is a "comprehensive medical evaluation" for children referred to the program when there is concern that they "have experienced some sort of abuse[.]" The report produced after such an exam contains information about why the child was referred, completed by law enforcement and DSS, notes from interviews with the child's caregivers, and details from the child's interview and medical examination.
¶ 15 After being qualified as an expert in child medical examinations and child abuse, Ms. Herrmann began testifying as to her examination of J.A.R. and the conclusions she made based on this examination, over defense's objection. In the report, Ms. Herrmann noted that J.A.R.'s parents' only concern was that she lost interest in school, but otherwise they were unconcerned about the "special interest" defendant had taken in their daughter when he had no relationship with their other children. When interviewing J.A.R., Ms. Herrmann found her to be "guarded[,]" and she had concerns J.A.R. had been "groomed."
¶ 16 At this point, defense counsel asked to do a voir dire of the witness before the introduction of her testimony for the jury. Defense counsel specifically objected to the testimony regarding "grooming" and stated that how the witness could "draw conclusions from two kisses that [defendant was] grooming [J.A.R.] [wa]s a major issue[.]" Over defense's objection, Ms. Herrmann's testimony was allowed.
¶ 17 Ms. Herrmann testified that she had concerns about child abuse and grooming since defendant had a "long-established relationship with the family, with progressive attempts to isolate the child" and gave gifts to J.A.R. and her family. In her "professional opinion[,]" Ms. Herrmann testified that J.A.R. was "a victim of a sexual offense" and "had experienced sexual victimization." Defense's objection and motion to strike were both overruled. No physical evidence of abuse was presented or noted in Ms. Herrmann's report.
¶ 18 At the close of the state's evidence, defendant made a motion to dismiss arguing there was "no evidence" and the State "failed to prove anything" other than defendant "kissed [J.A.R.] twice[.]" However, the State argued dismissal was inappropriate since they presented evidence defendant kissed J.A.R. because she was "a good-looking girl" and such evidence showed intent under the definition of indecent liberties. Defendant's motion was denied. Defendant did not...
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