State v. Mullis, COA22-183

Docket NºCOA22-183
Citation2022 NCCOA 702
Case DateOctober 18, 2022
CourtCourt of Appeal of North Carolina (US)




No. COA22-183

Court of Appeals of North Carolina

October 18, 2022

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 7 September 2022.

Appeal by defendant from judgment entered 15 July 2021 by Judge Michael J. O'Foghludha in Wilson County Superior Court. Nos. 18 CRS 51881, 53732-33

Attorney General Joshua H. Stein, by Special Deputy Attorney General Sondra C. Panico, for the State.

Daniel J. Dolan for defendant.

DIETZ, Judge.

¶ 1 Defendant Joshua Mullis appeals his convictions for multiple counts of statutory sex offense and indecent liberties with a child. Mullis raises a number of unpreserved evidentiary and instructional challenges. As explained below, Mullis has not overcome the high bar to show plain error with respect to any of these arguments. Mullis also challenges the trial court's order requiring him to register as a sex


offender. Mullis did not timely appeal that order and petitioned this Court for a writ of certiorari with an accompanying request to invoke Rule 2 and consider an unpreserved challenge to the registration order. Applying the rationale from our Supreme Court's recent decision in State v. Ricks, 378 N.C. 737, 2021-NCSC-116, in our discretion, we deny the petition and dismiss that portion of the appeal.

Facts and Procedural History

¶ 2 In 2018, twelve-year-old Mary[1] was at the home of her mother's friend Kara, watching a movie with Kara's daughter Alice, when Defendant Joshua Mullis arrived. Mullis and Mary watched the movie together on one couch, while Alice was asleep on another couch. When the movie ended, Mullis asked Mary to take a picture of herself using his phone and she did. Mullis then told Mary that her body looked nice. Mary testified that Mullis started touching her breasts and buttocks. Mullis then started "tongue kissing" her. Mary described that his breath smelled "bad," "like cigarettes and alcohol," and that she did not want to kiss him.

¶ 3 Mary testified that Mullis asked her to perform oral sex on him. After Mary removed his penis from his pants, Mullis put it in her mouth while he pushed her head down with his hands. Mullis ejaculated in Mary's mouth. Mullis then turned


Mary around and pulled down her pants. She described that Mullis "tried to put it in my anal, tried to put it in my butt," but he wasn't able to "put his penis all the way in." When asked, "How much of it was he able to put in," Mary stated, "Just the tip." Mary pulled her pants back up and Mullis put his penis in her mouth again. Mary told Mullis that she wanted him to stop.

¶ 4 Alice woke up, saw what was happening, and separated Mullis from Mary. Mary testified that Kara was home but asleep while all of this was happening, and that she did not wake Kara because she was worried how Kara would react. Mary stated that she "just didn't know what to do," that she was "12 at the time and just in a really fragile state of mind" so she "didn't say anything." Alice told Kara what she had seen.

¶ 5 Mary's mother, Beth, testified that she received a call from Kara that something had happened with Mary. Beth rushed back to Kara's house. Beth questioned Mary about what had happened. Mary eventually told her mother that Mullis had kissed her and then made her have oral and anal sex with him. Beth went out to her car and called the police. When law enforcement arrived, Beth told them what Mary had said. An ambulance arrived and paramedics took Mary to the hospital for examination and collection of a sexual assault kit. Officers arrested Mullis.

¶ 6 In 2019, the State charged Mullis for three counts of statutory sex offense with a child and three counts of indecent liberties with a child. The case went to trial in July 2021.


¶ 7 At trial, Mary and her mother testified to the events described above. The State also presented testimony from several investigating officers. Detective Juan Quintanilla testified that he responded to Beth's call in May 2018. Beth reported to him that Mullis had engaged in oral and anal sex with her minor daughter. Detective Quintanilla located Mullis and detained him. He also attempted to interview Alice, but she refused to speak with him.

¶ 8 Detective Patricia Hendricks testified that she interviewed Mullis on 19 May 2018 after he waived his Miranda rights. Mullis told Detective Hendricks that he was 24 years old. Mullis initially denied having any sexual contact with Mary. After Detective Hendricks explained DNA evidence to Mullis, Mullis then admitted that he kissed Mary and stated that she grabbed his penis. Mullis asserted that he told Mary to stop because it was wrong.

¶ 9 Detective Jamar Battle testified that officers collected DNA evidence during the investigation, including DNA from Mullis and Mary, and sent that evidence to the State crime lab for testing. Detective Battle interviewed Mary and testified that Mary told him that Mullis forced her to perform oral sex. Mary reported that she told Mullis to stop, but that he kept pushing her head down with his hand on the back of her head. Detective Battle testified that Mary told him Mullis attempted to penetrate Mary's anus with his penis, that she was not sure whether it went all the way in, but


that it hurt. Mary told Detective Battle that Mullis only stopped when Alice woke up.

¶ 10 April Perry, a forensic scientist with the State Crime Lab, testified after the trial court accepted her as an expert in forensic biology. Perry described the procedure for comparing DNA in the lab and testified that a rape kit was collected from Mary and a suspect kit was collected from Mullis. The DNA evidence was admitted into evidence without objection from Mullis. Perry explained that she generated a DNA profile from a penile swab of Mullis and found that a major component of the DNA on the swab belonged to Mary. Perry opined that this was more likely caused by an exchange of bodily fluid rather than by casual touch. Perry also testified that a major component of the DNA from Mary's rectal swab, obtained from the opening of the anus and inside of the rectum, was consistent with Mullis's DNA profile, and that it was "very possible" the DNA was from semen. Perry then went on to explain the statistical probability that the DNA from the swabs would match anyone other than Mary and Mullis.

¶ 11 At the close of the State's evidence, Mullis moved to dismiss the charges. The trial court denied the motion.

¶ 12 Mullis testified in his defense. He asserted that Mary tried to grab his penis outside of his pants twice on 19 May 2018, but that he pushed her hand away. Mullis denied asking Mary to take a photo of herself. In his testimony, Mullis admitted that he had kissed Mary two or three days earlier when he had been drinking, but he


denied kissing her on 19 May 2018. He also denied having anal sex with Mary and denied that she performed oral sex on him. Mullis stated that he only took a nap and played cards that day. On cross-examination and recross-examination, the State questioned Mullis about discrepancies between his prior statements to police and his trial testimony. Without objection, the State asked Mullis several times whether he had been "untruthful" in his initial statements to investigators. Mullis admitted that he had.

¶ 13 On 15 July 2021, the jury convicted Mullis of all charges. The trial court entered a consolidated judgment sentencing Mullis to a term of 300 to 420 months in prison. The trial court also determined that Mullis was convicted of an aggravated offense and ordered him to register as a sex offender for life. Following entry of judgment, the trial court asked Mullis's counsel, "Does your client wish to give Notice of Appeal?" Mullis's counsel responded, "Yes," and the trial court made appellate entries.


I. Appellate jurisdiction

¶ 14 We must first address our jurisdiction to reach the merits of the issues raised in this appeal. Mullis has filed two separate petitions for a writ of certiorari seeking our review of the criminal judgment and the civil sex offender registration order in this matter.


¶ 15 The first petition seeks review of the criminal judgment. Mullis filed this petition "out of an abundance of caution" because, in open court, his notice of appeal consisted of his counsel's affirmative response to the trial court's question about noticing an appeal, rather than an explicit statement by his counsel that he was giving notice of appeal. Although "admittedly not a model of clarity," we hold that counsel's statement clearly showed "Defendant's intention to enter a notice of appeal" and was sufficient under Rule 4 of the Rules of Appellate Procedure to confer jurisdiction on this Court to review that judgment. State v. Daughtridge, 248 N.C.App. 707, 712, 789 S.E.2d 667, 670 (2016). We dismiss his first petition as moot and address the merits of his challenges to the criminal judgment below. Id.

¶ 16 The second petition asks us to review the trial court's civil order imposing lifetime sex offender registration. On appeal, Mullis asserts that the trial court erred in finding that he was convicted of an aggravated offense as defined by the applicable statute. Mullis acknowledges that he did not file a written notice of appeal from the order, as required to appeal this type of civil order. See State v. Brooks, 204 N.C.App. 193, 194-95, 693 S.E.2d 204, 206 (2010). Mullis further asks this Court to invoke Rule 2 to reach the merits of this issue should we issue a writ of certiorari, conceding that he did not raise any objections to the trial court's registration order or aggravated offense...

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