State v. Lopez
| Decision Date | 19 June 2012 |
| Docket Number | No. COA11–722.,COA11–722. |
| Citation | 727 S.E.2d 26 |
| Parties | STATE of North Carolina v. Rudy Rodriguez LOPEZ. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendant from judgment entered 28 October 2010 by Judge Mark Powell in Swain County Superior Court. Heard in the Court of Appeals 14 December 2011.
Attorney General Roy Cooper, by Assistant Attorney General Angenette R. Stephenson, for the State.
Mark Montgomery for defendant-appellant.
Where the trial court's rulings and instructions to the jury were proper, we find no error in the trial. Where defendant fails to demonstrate that defense counsel's performance was deficient or prejudicial, we find no violation of defendant's Sixth Amendment right to counsel. However, we vacate the trial court's order requiring that defendant submit to lifetime satellite-based monitoring and remand for additional findings consistent with this opinion.
The evidence presented at trial tended to show the following: defendant is the father of Tina and grandfather to Tina's two children, Mary and Allie.1 Defendant is the stepfather of Cleto, and step-grandfather to Cleto's two children, Betsy and Kayla. Mary, Allie, Betsy, and Kayla all routinely stayed with defendant and his wife in their trailer.
On 24 May 2009, Tina learned that defendant had sexually assaulted Mary and immediately confronted him about the abuse. Soon thereafter, Cleto learned that defendant had sexually assaulted his daughters, Betsy and Kayla. When confronted by Cleto, defendant said he was sorry for what he had done and that he was going to hang himself. Tina and Cleto reported the abuse to local law enforcement the following day. Law enforcement officers attempted to locate defendant but he was nowhere to be found. Defendant was eventually located in California, where he was arrested and extradited back to North Carolina on 25 November 2009.
Defendant was indicted on three counts of first-degree sexual offense pursuant to N.C. Gen.Stat. § 14–27.4(a)(1), as to Mary and Kayla, and four counts of taking indecent liberties with a child pursuant to N.C. Gen.Stat. § 14–202.1, as to Mary, Kayla, and Betsy.
At trial in October 2010, Mary, who was eight at that time, testified that defendant touched her in “[m]y private parts” with his hand and his “private part,” sticking it in “[m]y behind.” Mary further testified that defendant stuck his “private part” in her “behind” numerous times in the washroom and in her grandmother's bathroom. Mary said she knew defendant's private went in her “behind” because she saw it when she turned around and she felt it.
Tina and Allie both testified that Mary told them defendant “put his weenie in her butt.” Tina also testified that Mary “gestured with her pelvis several thrusts” when imitating what defendant had done to her.
Cindy McJunkin, a Sexual Assault Nurse Examiner, testified that during an interview with Mary, Mary told her that defendant “stuck his thing up there” while demonstrating on body diagrams her anus and his penis. McJunkin testified that Mary told her the incidents occurred in the washroom and her grandmother's bathroom.
Kayla, who was twelve years old at the time of trial, testified that “[defendant] molested me” when she slept on the couch or in the spare bedroom at her grandmother's house beginning when she was three or four years old and continuing until she was eleven. When defendant touched her “he would rub on my chest and my thighs and my front parts, my back parts.” Kayla also testified that defendant used his hands to touch her inside her vagina.
Nurse McJunkin interviewed Kayla in August 2010 and, at trial, testified to corroborate Kayla's testimony that defendant touched her inside her “girl parts.” When discussing exactly where defendant touched her, McJunkin testified that Kayla circled her vagina on the body diagram as well as her chest, anus and thighs. McJunkin also testified that Kayla told her that defendant stopped touching her “a week before he got caught doing it.”
Betsy, who was fourteen at the time of trial, testified that defendant “touched me in places I didn't want to be touched.” She testified defendant rubbed her upper legs, mostly over her clothes and while she was laying down. This happened many times from the time Betsy was “really young” up until the year before trial.
Defendant and defendant's wife testified in his defense. Defendant was found guilty of all charges on 28 October 2010 2. The trial court entered judgment in accordance with the jury verdict and sentenced defendant to 240–297 months for each of the three counts of first-degree sexual offense and 16–20 months for each of the four counts of taking indecent liberties with a child, all sentences to run consecutively. Defendant appeals.
_________________________
On appeal, defendant raises the following issues: whether the trial court erred in (I) improperly instructing the jury on first-degree sexual offense; (II) denying defendant's motion to dismiss the charge of first-degree sexual offense as to Mary; (III) instructing the jury on the theory of flight; (IV) referring to the complainants as victims; and (V) ordering lifetime satellite-based monitoring of defendant.
Defendant first argues the trial court committed plain error by instructing the jury on theories of first-degree sexual offense not supported by the evidence. Defendant contends that because the evidence does not support a finding that he penetrated Kayla's anus or Mary's genital opening and there is no indication as to which theory the jury used to convict him as to each child, he is entitled to a new trial. We disagree.
Here, the trial court instructed the jury on the charge of first-degree sexual offense with a child as follows:
The defendant has been charged with three counts of committing a first-degree sexual offense with a child. For you to find the defendant guilty of these offenses, the State must prove three things beyond a reasonable doubt for each offense:
First, that the defendant engaged in a sexual act with the victim. The sexual act means anal intercourse, which is any penetration, however slight, of an anus of any person by the male sexual organ of another. A sexual act also means any penetration, however slight, by an object into the genital opening of a person's body.
Second, that at the time of the act, the victim was a child under the age of 13 years.
And, third, that at the time of the act, the defendant was at least 18 years of age.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant engaged in a sexual act with the victim, who was a child under the age of 13 years, and that the defendant was at least 18 years of age, it would be your duty to return a verdict of guilty.
Defendant did not object to the jury instruction.
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C. R.App. P. 10(a)(4) (2011).
Our Supreme Court recently reaffirmed its
holding in Odom and clarif[ied] how the plain error standard of review applies on appeal to unpreserved instructional or evidentiary error. For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. See [State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) ]. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error “had a probable impact on the jury's finding that the defendant was guilty.” See id. (citations and quotation marks omitted); see also [State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) ] ( “that absent the error the jury probably would have reached a different verdict” and concluding that although the evidentiary error affected a fundamental right, viewed in light of the entire record, the error was not plain error). Moreover, because plain error is to be “applied cautiously and only in the exceptional case,” Odom, 307 N.C. at 660, 300 S.E.2d at 378, the error will often be one that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,” Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting [United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982) (footnote omitted) ] ).
State v. Lawrence, ––– N.C. ––––, ––––, ––– S.E.2d ––––, ––––, No.100PA11, slip op. at 19 (N.C. filed 13 April 2012).
In North Carolina, “[a] person is guilty of a sexual offense in the first degree if the person engages in a sexual act: (1)[w]ith 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....” N.C. Gen.Stat. § 14–27.4(a) (2011). State v. DeLeonardo, 315 N.C. 762, 764, 340 S.E.2d 350, 353 (1986); see also,N.C.G.S. § 14–27.1(4) (2011). We note that digital penetration is within the definition of sex act. See State v. Lucas, 302 N.C. 342, 275 S.E.2d 433 (1981) (). Defendant relies on State v. Hughes, 114 N.C.App. 742, 443 S.E.2d 76 (1994), to support his contention in this case. Defendant's reliance is misplaced. In Hughes, the trial court instructed the jury on first-degree sexual offense based on a sexual act of “fellatio ... and/or any penetration, however slight, by any object into the genital opening of a person's body.” Id. at 746...
To continue reading
Request your trial