State v. Lopez

• Court: North Carolina Court of Appeals
• Writing for the Court: STROUD, Judge
• Citation: State v. Lopez, 852 S.E.2d 658 (N.C. App. 2020)
• Decision Date: 01 December 2020
• Docket Number: No. COA19-743,COA19-743
• Parties: STATE of North Carolina v. Carmelo LOPEZ, Defendant.

852 S.E.2d 658

STATE of North Carolina

v.Carmelo LOPEZ, Defendant.

No. COA19-743

Court of Appeals of North Carolina.

Filed: December 1, 2020

Attorney General Joshua H. Stein, by Special Deputy Attorney General Jennifer T. Harrod, for the State.

W. Michael Spivey, Rocky Mount, for defendant-appellant.

STROUD, Judge

Defendant appeals his convictions for two counts of first degree statutory sexual offense and two counts of taking an indecent liberty with a child. Defendant contends the trial court erred in two evidentiary issues: not allowing evidence of the immigration status of a witness and allowing evidence that he refused a medical test; defendant also contends the trial court erred in denying his motion to dismiss. For the following reasons, we conclude there was no error.

I. Background

The State's evidence showed that in 2016 defendant invited his girlfriend and her then approximately six-year old daughter, Jane,¹ to move in with him. Due to Jane's mother's work schedule, defendant was alone with Jane at night, and on multiple occasions she said he would take off her pants and "do bad stuff to me." Defendant used "[h]is hands and his tongue" to "touch[ Jane] in the place that [she] go[es] pee[.]" Defendant would touch "with his fingers" "in the inside" of "the place where [she] go[es] pee[.]" Defendant would also touch "inside" "where [she] pee[d]" "with his tongue[.]"

Jane told her mother defendant "did something bad to [her]." Jane's mother confronted defendant; he originally denied the allegations but then asked her "not to charge him" and said "he had a lot of money in Mexico and he could give [her] whatever [she] needed." Soon after, Jane developed a rash "where [she] go[es] pee" that burned when she urinated. Jane's mother took Jane to the doctor, and she was diagnosed with genital herpes. Jane's mother was tested for genital herpes ; she requested defendant also get tested, but he refused. A search warrant was then executed requiring defendant get tested; he tested positive.

A jury found defendant guilty of two counts of first degree statutory sexual offense and two counts of taking an indecent liberty with a child. The trial court entered judgment on the two counts of statutory sexual offense and arrested judgment on the two counts of taking an indecent liberty with a child. Defendant appeals.

II. Admission of Evidence

Defendant makes two arguments contending the trial court erred in the admission of evidence.

A. Standard of Review

Although the trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal. Because the trial court is better situated to evaluate whether a particular piece of evidence tends to make the existence of a fact of consequence more or less probable, the appropriate standard of review for a trial court's ruling on relevancy pursuant to Rule 401 is not as deferential as the abuse of discretion standard which applies to rulings made pursuant to Rule 403.

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. N.C. Gen. Stat. § 8C–1, Rule 401 (2013). Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. N.C. Gen. Stat. § 8C-1, Rule 403 (2013).

State v. Blakney , 233 N.C. App. 516, 520–21, 756 S.E.2d 844, 847–48 (2014) (citations quotation marks, and brackets omitted). "We review a trial court's Rule 403 determination for an abuse of discretion. An abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Baldwin , 240 N.C. App. 413, 418, 770 S.E.2d 167, 171 (2015) (citations and quotation marks omitted).

B. Evidence Regarding Immigration Status of Jane's Mother

Defendant contends the trial court erred in not allowing him to cross-examine Jane's mother regarding her immigration status. Defendant's argument at trial was that by alleging her daughter was a victim of a crime, Jane's mother could apply for a U Visa.² While defendant frames this as a "cross-examination" issue, the trial court allowed defendant to make an extensive proffer of Jane's mother's immigration status, and ultimately ruled the evidence was irrelevant; thus we address the actual legal issue before us, the relevancy of Jane's mother's immigration status.

The State's attorney noted how far afield the questions had wandered and summarized Jane's mother's testimony during voir dire that she

stated that she and the Defendant at no time discussed her applying for a Visa in this case. She has not applied for a Visa in this case. I can as an officer of the Court tell you that she has not applied for a Visa with our office as a victim in this case because I would have been consulted about it.

The discussion continued:

THE COURT: She's the parent of the victim. She's not the victim.

[State's Attorney]: Correct, your Honor. She can't apply. She can't apply under the law for U Visa, so she can't make application. I understand that [defendant's attorney] feels like this goes to the credibility of the witness. I don't understand how [Jane's] immigration status or [Jane's mother's] status in light of the fact that no application has been filed and that they did not discuss it in reference to this case, how that therefore allows for [defendant's attorney] to parade [Jane's mother's] immigration status in front of the jury. She's already insinuated it to the jury. I don't get to parade the fact that Mr. Lopez is here illegally and that despite whatever happens with this case he's getting deported, I don't get to say that in front of the jury. She can ask questions that goes to credibility as it goes to this case, have you applied for a Visa, did you ever talk to Mr. Lopez about applying for a Visa in this case, but she has not provided enough for those issues to go in front of the jury. It is irrelevant, all of the questions about applying for marriage licenses and all of that. It's not relevant whatsoever to this case.

The trial court then asked defendant's attorney about the relevancy of the information she was seeking: "[W]hat does the information that you're seeking to elicit, what are facts of consequence does it make more or less probable?" Defendant's attorney responded simply, "Well, whether or not any sexual abuse actually occurred." The trial court then excluded the immigration status evidence under Rule of Evidence 401 and 403. Defendant now contends he had a right to question Jane's mother about her immigration status because "she may have had a motive to instigate, encourage, coach, or embellish allegations of abuse to avoid possible deportation because she was an illegal immigrant."

We agree with the trial court's ruling on relevancy of the evidence and disagree with defendant's assertions that Jane's mother's immigration status "has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence[;]" the fact here being "whether or not any sexual abuse actually occurred." N.C. Gen. Stat. § 8C-1, Rule 401 (2017). Defendant has not demonstrated how fabricating sexual abuse would allow Jane's mother "to avoid possible deportation because she was an illegal immigrant[,]" particularly in light of the fact that Jane's mother had not applied for the U Visa defendant was claiming as the motive for the lie.

Defendant focuses his argument to this Court on the importance of being able to question a witness's credibility and bias. We note that to the extent defendant wanted to question Jane's mother about fabricating the sexual abuse or to attack her credibility, he was free to do so; the only prohibition was information regarding her immigration status. Accordingly, we overrule this argument. Because Jane's mother's immigration status was not relevant, we need not address defendant's argument regarding Rule 403. See generally N.C. Gen. Stat. § 8C-1, Rule 403 (2017) (noting relevancy as a precursor to other considerations of exclusion).

C. Evidence Regarding Testing for Herpes

During defendant's trial there was much discussion regarding whether evidence of defendant's positive herpes test, taken after being arrested, should be admitted as evidence to the jury. As to the issue on appeal, the trial court allowed Jane's mother to testify that she asked defendant to be tested after Jane had tested positive for herpes, and he refused to be tested. Later, a search warrant was executed to test defendant for herpes; that test was positive, but it did not distinguish whether defendant had the same type of herpes, Type 1 or Type 2, that Jane had. The State sought to present evidence of defendant's positive herpes test, but the trial court excluded that evidence based on Rule 403 because the positive test results did not show that the type of herpes was the same as that which infected Jane. Again, "[w]e review a trial court's Rule 403 determination for an abuse of discretion. An abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." Baldwin , 240 N.C. App. at 418, 770 S.E.2d at 171.

Defendant contends that "the trial court erred by admitting evidence that ... [defendant] would not submit to testing for herpes after it excluded the results of any test upon ... [defendant] because the danger...