State v. Martinez

• Decision Date: 16 May 2017
• Docket Number: No. COA16-374-2,COA16-374-2
• Citation: 253 N.C.App. 574,801 S.E.2d 356
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Jesus MARTINEZ, Defendant.

253 N.C.App. 574

801 S.E.2d 356

STATE of North Carolina

v.Jesus MARTINEZ, Defendant.

No. COA16-374-2

Court of Appeals of North Carolina.

Filed: May 16, 2017

Attorney General Joshua H. Stein, by Special Deputy Attorney General Lauren M. Clemmons, for the State.

Hale Blau & Saad, P.C., Raleigh, by Daniel M. Blau, for the Defendant.

DILLON, Judge.

Jesus Martinez ("Defendant") appeals from judgments entered upon jury verdicts finding him guilty of eleven felonies based on sexual conduct he engaged in with a minor.

I. Background

The evidence at trial tended to show as follows: Defendant was cohabiting with his girlfriend ("Mother"), their infant child, and Mother's three children from a prior relationship.

Mother testified that one morning, she walked into the bedroom she shared with Defendant and saw the sheets "moving up and down." She pulled back the sheets and saw her eight-year-old daughter, Chloe¹ , curled into a "little ball" and "hiding." Mother later asked Chloe what had been happening, and Chloe replied that Defendant had engaged in certain sexual conduct with her and had also done so in the past.

At trial, Chloe testified in detail regarding incidents where Defendant had engaged in sexual acts with her.

Defendant testified that when Mother walked into the bedroom, he and Chloe had simply been spending time together in bed, that both had been fully clothed, and that Mother had misinterpreted the situation.

Mother informed law enforcement of the incident, and Defendant was subsequently arrested and indicted for numerous offenses. Defendant was convicted of eleven felonies: four counts of sex offense in a parental role, two counts of sex offense with a child, and five other felonies. Defendant timely appealed.

II. Analysis

Defendant makes four arguments on appeal: (1) that a medical expert witness impermissibly vouched for Chloe's credibility; (2) that a prospective juror made grossly prejudicial remarks during jury selection; (3) that the trial court's disjunctive instruction relating to the six "sexual offense" charges constituted plain error; and (4) that Defendant should have been allowed to introduce certain evidence to impeach the testimony of Chloe's mother. We address each argument in turn.

A. Expert Testimony

Defendant's first set of arguments relate to a statement made by Dr. Patricia Morgan which Defendant contends constituted improper vouching by an expert. During direct examination, Dr. Morgan made the following statement:

PROSECUTOR: ... [W]ould you be able to confirm [from a medical exam] whether or not [Chloe] could have experienced vaginal bleeding a month or so prior?

DR. MORGAN: It might be difficult to say because, again, that finding in and of itself I could see it in a girl who may not have experienced abuse. But in the fact that she did experience abuse , as well as have those findings of bleeding that she—

[Defense Counsel interrupted Dr. Morgan's testimony with an objection, but then withdrew the objection immediately.]

DR. MORGAN: Could you give me the question again, please? I want to make sure I'm answering it properly.

PROSECUTOR: Yes, ma'am. I was just asking if in looking at the hymen, if you knew one way or the other if she previously experienced bleeding. Can you tell by looking at it?

DR. MORGAN: If by looking at it I wouldn't be able to necessarily say if she had any bleeding because, again, the nature of the hymen is that it heals. And so I really couldn't say unless there was some residual or something that was evidence that shows that there was trauma.

(emphasis added).

On appeal, Defendant contends Dr. Morgan's statement emphasized above—that "in the fact that she did experience abuse"—constituted inadmissible expert opinion regarding Chloe's credibility . Defendant also contends that his counsel's failure to object constituted ineffective assistance of counsel.

Our Supreme Court has held that in the absence of physical evidence to support a diagnosis of sexual abuse, expert testimony that sexual abuse has in fact occurred is not admissible because it is an impermissible opinion regarding the victim's credibility. State v. Stancil , 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002).

However, we conclude that Dr. Morgan's statement, considered in the context of her testimony as a whole, does not amount to an assertion that Chloe was in fact abused. Rather, a proper understanding of the transcript is that Dr. Morgan was speaking of a hypothetical victim when she made the statement. Indeed, Dr. Morgan testified that Chloe's medical exam was normal and that she could not determine from the exam whether or not Chloe had been sexually abused.

Other cases from our Court in which plain error was found to be present involved much more conclusory statements made by the expert. For instance, in a case cited by Defendant, our Court found prejudicial error where an expert witness stated in response to a question: "My opinion was that she was sexually abused." State v. Dixon , 150 N.C.App. 46, 51, 563 S.E.2d 594, 598 (2002) ; see also State v. Towe , 366 N.C. 56, 60, 732 S.E.2d 564, 566 (2012) (finding plain error where expert stated that she would place the victim in the category of children who "have been sexually abused [and] have no abnormal findings"); State v. Bush , 164 N.C.App. 254, 259, 595 S.E.2d 715, 718 (2004) (finding plain error where expert stated: "My diagnosis was [that the child] was sexually abused by defendant"); State v. Couser , 163 N.C.App. 727, 732, 594 S.E.2d 420, 423-24 (2004) (finding plain error where expert testified that her diagnosis was "probable sexual abuse").

Here, we do not believe that Dr. Morgan made an impermissible statement that she believed that Chloe was in fact abused. Accordingly, defense counsel's failure to object was not error, and therefore did not constitute ineffective assistance of counsel.

B. Juror Remarks

Defendant argues that a statement by one of the prospective jurors violated Defendant's constitutional right to an impartial jury and amounted to plain error. Specifically, Defendant contends that a prospective juror's statement that her uncle was a local defense attorney who had told her his job was to "get the bad guys off" amounted to a comment on Defendant's guilt from a reliable source. We disagree.

The sole case cited by Defendant in support of this argument is State v. Gregory , in which a prospective juror stated that she helped prepare the defense for the defendant and had learned confidential information that would be favorable to the State if learned by the State. State v. Gregory , 342 N.C. 580, 587, 467 S.E.2d 28, 33 (1996). Our Supreme Court concluded that these statements "[were] likely to cause the [other] jurors to form an opinion before they heard any evidence at trial, and [ ] a juror who has formed an opinion cannot be impartial." Id. at 587, 467 S.E.2d at 33. Thus, the Court held that this statement denied the defendant a fair trial.

In contrast, here, the statement by the prospective juror was generic and did not imply that she had any particular knowledge of Defendant's case or the possibility that Defendant might be guilty. We do not believe that the trial court's failure to take specific action addressing the juror's comment amounted to plain error. See State v. Black , 328 N.C. 191, 196, 400 S.E.2d 398, 401 (1991) (stating that the trial court "has broad discretion to see that a competent, fair and impartial jury is impaneled") (internal marks omitted).

C. Jury Instructions

Defendant's third set of arguments relates to jury instructions given by the trial court regarding his six "sexual offense" convictions.

It is this set of arguments that is the basis for the limited remand by our Supreme Court. In our first opinion, we agreed with Defendant that the trial court committed plain error when it gave a jury instruction where one of the theories upon which the jury could convict was not supported by any evidence offered at trial.

Defendant was convicted of four felonies under N.C. Gen. Stat. § 14-27.4(a)(1) (first degree sexual offense with a child) and two felonies under N.C. Gen. Stat. § 14-27.7(a) (sex offense in a parental role). Both statutes require that a jury find that a defendant engaged in a "sexual act" with the victim. N.C. Gen. Stat. § 14-27.4 (2013) ; N.C. Gen. Stat. § 14-27.7 (2013). "Sexual act" is defined by the General Assembly as "cunnilingus, fellatio, analingus, or anal intercourse." N.C. Gen. Stat. § 14-27.1(4) (2013).

At trial, the State's evidence tended to show that Defendant engaged in fellatio and anal intercourse with Chloe. The State did not present any evidence that Defendant engaged in analingus with Chloe. However, the trial court instructed the jury that it could find Defendant guilty of the six felonies if it found that he committed fellatio, anal intercourse, or analingus with Chloe.

In our first opinion, we held, based on a line of cases from our Supreme Court, that the trial court's inclusion of "analingus," where there was no evidence of analingus offered at trial, essentially constituted plain error per se . In this line of cases, our Supreme Court consistently held that "[w]here the trial court erroneously submits the case to the jury on alternative theories, one of which is not supported by the evidence and the other which is, and [ ] it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict, the error entitles defendant to a new trial." State v. Lynch , 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990) ; see also State v. Pakulski , 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987) ; State v. Belton , 318 N.C. 141, 162-63, 347 S.E.2d 755, 768-69 (1986), partially overruled on other grounds by State v. Gaines , 345 N.C. 647, 483 S.E.2d 396 (1997).² Our Supreme Court has explained that a new trial is required in this case because "we must assume the jury based its verdict on the theory for which it received an improper instruction." State v....