State v. Pabon

Decision Date06 October 2020
Docket NumberNo. COA19-741,COA19-741
Citation850 S.E.2d 512
Parties STATE of North Carolina v. Rafael Alfredo PABON, Defendant.
CourtNorth Carolina Court of Appeals

Attorney General Joshua H. Stein, by Special Deputy Attorney General Ryan Frank Haigh, for the State.

Currin & Currin, by George B. Currin, Asheville, for defendant-appellant.

BERGER, Judge.

On December 14, 2018, a Cabarrus County jury found Rafael Alfredo Pabon ("Defendant") guilty of first-degree kidnapping and second-degree forcible rape. Defendant appeals, arguing that (1) the trial court erred when it denied his motions to dismiss; (2) the trial court erred when it admitted 404(b) evidence; (3) the trial court erred when it admitted expert testimony; (4) the indictments were facially invalid; (5) the trial court committed plain error when it failed to properly instruct the jury; (6) the trial court erred when it allowed the jury to consider evidence of aggravating factors; and (7) the trial court erred when it ordered Defendant to enroll in satellite-based monitoring ("SBM"). We disagree.

Factual and Procedural Background

In November 2015, Defendant met Samantha Ivethe Camejo-Forero ("the victim") to discuss a roof repair warranty. The victim and Defendant subsequently developed a friendship, and she would ask Defendant for assistance with her home repair business.

On January 4, 2017, Defendant drove to the victim's house to take her to breakfast. At 8:36 a.m., the victim left her house in Defendant's vehicle. Defendant handed her a latte to drink. The victim drank the latte and began "feeling weird." Throughout the car ride, the victim "couldn't think[, and] couldn't move."

At 9:42 a.m., Defendant and the victim arrived at a Denny's restaurant for breakfast. The restaurant was 42 miles away from the victim's house. Defendant and the victim sat on the same side of the booth, which the victim stated was abnormal. The victim "couldn't even read" the menu and had no recollection of what she ordered or whether she ate. She testified that she was not "in control of [her] body," and at one point, the victim appeared to be asleep at the table.

At 10:28 a.m., Defendant and the victim left the Denny's restaurant and drove to get the mail for Defendant's friend. After driving for 16 miles, they arrived at Defendant's friend's house at 11:04 a.m. While at the house, the victim testified that she was sitting on a couch when Defendant began kissing and touching her, including kissing her breast. The victim did not want to be kissed or touched by Defendant. Defendant then took the victim to a bedroom where he laid her on the bed. Defendant said, "You don't know how bad I want this," and took off the victim's clothes. Defendant then engaged in nonconsensual vaginal intercourse with the victim. Soon after, the victim went to the bathroom and saw a used condom.

At 12:48 p.m., Defendant and the victim started the drive back to the victim's house. Around 12:49 p.m., the victim talked with her mother on the phone but could not remember the conversation. Her mother testified that the victim was "speaking in a very slurred kind of way." The victim recalled that while in the car, Defendant acted "like nothing had happened."

At 1:34 p.m., the victim arrived home. Before the victim went inside, Defendant said, "Give me a kiss." The victim, appearing to her mother to be "very pale ... like a zombie or a dead person," then went into her mother's room, without speaking, and fell asleep.

Around 5:00 p.m. that afternoon, the victim awoke. She felt "weird," "couldn't walk straight," and "knew what happen[ed]." At 5:23 p.m., the victim texted Defendant the following:

Hi Rafa. I would like to ask you what happened at Denny's. Did I finish my breakfast? I told that you I didn't feel well, I feel weird, and I almost couldn't walk real good. I came home and I just pass out until now, and I still feel in me weird. What happen?

At 5:28 p.m., Defendant called the victim. Defendant told the victim that nothing had happened. According to her, Defendant said, "We just pick[ed] up the mail, you wait[ed] for me in the car, and -- I took you back home." Defendant told the victim that they were at his friend's house for "five minutes, no more than that." Once the parties hung up, the victim fell back asleep until the next morning.

On January 5, the victim again called Defendant because she was "still feeling weird, ... like it was a dream[.]" The victim then contacted the Matthews Police Department and was directed to take a rape test at a hospital. The victim left for the hospital "dressed the exact same way that she was [the] night before." The victim told medical professionals and law enforcement officers what she remembered about the incident.

On January 6, 2017, the victim gave a formal statement to detectives. She granted detectives access to her phone, her location data, and subsequently provided a hair sample. On January 23, 2017, Defendant was indicted on charges of second-degree forcible rape and first-degree kidnapping.

At trial, Frank Lewallen, a forensic scientist at the North Carolina State Crime Laboratory, testified that he reviewed the procedures and the results of the victim's blood and urine samples. Lewallen testified that the initial urine test was positive for Amphetamine, Methylenedioxyamphetamine, and Benzodiazepine. The State Crime Lab then conducted confirmatory testing of the urine samples using gas chromatography mass spectrometry

("GCMS"). The victim's urine tested positive for a 7-aminoclonazepam, "a breakdown product of Clonazepam [,] which is a Benzodiazepine." Lewallen confirmed that Clonazepam is a "central nervous depressant" with side effects of "feeling like they were in a dream ... [and] a loss of inhibition or loss of anxiety."

Dr. Ernest Lykissa, a clinical and forensic toxicologist, testified that he tested the victim's hair sample, which represented hair growth from December 22, 2016 to January 19, 2017. After testing the hair sample with a liquid chromatograph mass spectrometer

, Dr. Lykissa determined the victim's hair contained Cyclobenzaprine – a muscle relaxant. Cyclobenzaprine "floods the brain with serotonin," the neurotransmitter that causes sleep, but in excess, can "numb [a person] to death." Dr. Lykissa also confirmed the State Crime Lab's conclusion that Clonazepam was in the victim's urine. Like Cyclobenzaprine,

Clonazepam

has numbing effects that "make [a person] very sleepy." The effect of taking Cyclobenzaprine and Clonazepam together results in a "[v]ery serious impairment of [a person's] mental and physical faculties." If a person were to take these two drugs with caffeine, they "can't see well, ... can't hear well, ... and [they're] very close to [their] demise." Dr. Lykissa concluded that the victim's symptoms were consistent with someone who recently took Cyclobenzaprine, Clonazepam, and caffeine.

Lucy Montminy, a sexual assault nurse examiner, testified to treating the victim at Novant Health on January 5, 2017. During in-take, the victim identified Defendant as her assailant. Montminy testified that the victim's mannerisms were consistent with an individual who was "under the influence of impairing substances." The victim was prescribed various antibiotics to treat any potential sexually transmitted disease

. None of these medications contained Cyclobenzaprine or Clonazepam. Other than these prescribed medications, the victim "was not taking any medications." Montminy testified that during her examination of the victim, she discovered an "injury to [the victim's] vaginal area" that was "consistent with penetration." Montminy's observations were consistent with drug related rape.

Kari Norquist, a forensic scientist, testified that she conducted DNA analysis on the victim's rape test samples, which included swabs of the victim's left breast. Norquist determined there were substantial amounts of Defendant's DNA on the victim's left breast sample, and that the amount of Defendant's DNA on the victim's left breast was not common with a casual transfer of DNA.

Outside the presence of the jury, the trial court conducted a voir dire hearing related to 404(b) evidence from Chanel Samonds and Elise Weyersburg. The trial court determined that their testimony was admissible, and provided a limiting instruction to the jury.

Samonds, Defendant's sister-in-law, testified that Defendant came to her house on the morning of September 8, 2008. After Samonds asked Defendant to leave, he stood up, "tried to kiss [Samonds’] neck" and "pushed [her] back down on the couch[, a]nd pinned [her] hands above [her] head so that he could start kissing [her]." Despite Samonds’ objections and refusal, Defendant attempted to kiss her mouth. Defendant then removed Samonds’ pants and digitally penetrated her vagina. With Samonds "half on the couch and half off the couch," Defendant then engaged in nonconsensual vaginal intercourse with Samonds.

Weyersberg, Defendant's other sister-in-law, testified that around 2006 when she was 19 or 20 years old, she was living with her parents along with Defendant and his wife. During this time, Weyersberg "felt uncomfortable with" Defendant. On one occasion, Weyersberg was in the kitchen when Defendant came behind her and rubbed her shoulders while moving his hands towards her breasts. At the same time, Defendant told her "how he had an orgy in Bolivia" while she continued to move away from him because she felt "very uncomfortable." Weyersberg did not tell her parents about the incident. On a separate occasion, Weyersberg was on the computer when Defendant approached her and asked if she wanted a massage. At the same time, Defendant was "trying to put his hand up the bottom of [her] pant leg." Weyersberg then left the room and later told her parents about the incident.

Defendant testified at trial that he picked the victim up for breakfast on January 4, went to the Denny's restaurant, and then stopped at his friend's house. Defendant testified that he and the...

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6 cases
  • State v. Pabon
    • United States
    • North Carolina Supreme Court
    • 11 Febrero 2022
    ...each of defendant's arguments and "find[ing] that [d]efendant received a fair trial free of prejudicial error." State v. Pabon , 273 N.C. App. 645, 671, 850 S.E.2d 512 (2020). Specifically, two of the seven issues raised by defendant are pertinent to this appeal.¶ 28 First, the Court of App......
  • State v. Wendorf
    • United States
    • North Carolina Court of Appeals
    • 1 Diciembre 2020
    ...of this Court to supplement an appellant's brief with legal authority or arguments not contained therein." State v. Pabon , ––– N.C. App. ––––, ––––, 850 S.E.2d 512, 530 (2020).Defendant's Rule 605 argument, to the extent there is one, is not that Judge Boone was "presiding at the [hearing]......
  • State v. Woods
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    • 15 Diciembre 2020
    ...from that evidence." State v. Dick , 126 N.C. App. 312, 317, 485 S.E.2d 88, 91 (1997) (citation omitted). State v. Pabon , ––– N.C. App. ––––, ––––, 850 S.E.2d 512, –––– (2020). Further, "in borderline or close cases, our courts have consistently expressed a preference for submitting issues......
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