State v. Pabon
| Decision Date | 11 February 2022 |
| Docket Number | No. 467A20,467A20 |
| Citation | 867 S.E.2d 632 |
| Parties | STATE of North Carolina v. Rafael Alfredo PABON |
| Court | North Carolina Supreme Court |
Joshua H. Stein, Attorney General, by Jeffrey B. Welty, Special Deputy Attorney General, for the State-appellee.
George B. Currin, Asheville, for defendant-appellant.
¶ 1 Here we consider whether defendant was prejudiced by the trial court's admission of certain testimony that we assume without deciding violated the Confrontation Clause of the Sixth Amendment and Rule 404(b) of the North Carolina Rules of Evidence. Because we conclude that even assuming there was error, defendant was not prejudiced, we modify and affirm the ruling of the Court of Appeals.
¶ 2 On 23 January 2017, a Cabarrus County grand jury indicted defendant Rafael Pabon for the second-degree forcible rape and first-degree kidnapping of Samantha Camejo-Forero (Forero). On 6 March 2017, superseding indictments were issued for the same charges. Beginning on 4 December 2018, defendant was tried by a jury in Superior Court, Cabarrus County, with Judge Christopher W. Bragg presiding.
¶ 3 At trial, the State's evidence tended to show as follows: Defendant first met Forero in November 2015 to discuss a roof repair warranty. At the time, Forero worked "flipping houses" in the Charlotte area, and defendant worked as a construction contractor. After their initial meeting, defendant and Forero communicated periodically via text or phone call about work projects, their professions, and their families. Defendant was married and had a daughter; Forero was unmarried and had a son. Forero testified that she developed a friendship with defendant and that they would occasionally get together for lunch or coffee.
¶ 4 On the morning of 4 January 2017, defendant and Forero planned to get breakfast together. Forero testified that she had recently purchased a house and wanted to see if defendant could help her find a painter. Shortly after 8:30am, defendant picked Forero up at her house in Matthews. Defendant had—unprompted—brought Forero a latte, which he handed to her to drink. Very quickly after starting to drink the latte, Forero began "feeling weird." Forero testified feeling as if "you were in a movie[,] like ... it wasn't your body but you know you're there but you're not." Forero began having difficulty moving and could not think clearly.
¶ 5 After driving for around forty-five minutes from Matthews to Concord, defendant and Forero arrived at a Denny's restaurant. Forero testified that she could not read the menu, had difficulty controlling her body and mind, and could not remember if she ate. Video surveillance footage from the Denny's, which was played at trial, showed Forero slouching at the table, staring into space, struggling to put food into her mouth, nodding off, falling over, and having difficulty walking while leaving. Demekia Harold-Strod, the waitress who served defendant and Forero, testified that Forero looked as if she was on drugs, was moving very slowly, had her head down a lot, and made little or no eye contact.
¶ 6 After leaving Denny's around 10:30 a.m., defendant drove Forero about thirty minutes away to his friend Mark Stones's house. Defendant claimed that he needed to pick up Stones's mail while Stones was out of town. Stones’ house was located in a secluded, wooded area without any close neighbors. When defendant and Forero entered the house, Forero sat on a couch. Forero testified that defendant then sat next to her on the couch and began making unwanted sexual advances toward her, including kissing and touching her, pulling up her sweater, and kissing her breast. Forero testified that although she did not want or consent to defendant's advances, she was mentally and physically incapacitated and unable to stop them. Forero testified that defendant then picked her up, carried her to a nearby bedroom, and laid her on a bed. Defendant removed his clothes, removed Forero's underwear, and continued to kiss and touch her. Forero testified that defendant then engaged in nonconsensual vaginal intercourse with her. Forero testified that she later walked to a nearby bathroom, where she saw a used condom on the floor. Afterward, defendant acted "like nothing happened."
¶ 7 Around 12:45 p.m., defendant and Forero left Stones's house and began driving back to Forero's house. During the drive, Forero's mother, Aura Forero de Camejo (Camejo), who lived with Forero, called Forero's cell phone. Camejo testified that she called Forero "because [she] thought it was strange that a breakfast would have lasted so long." Forero answered, and the two had a short conversation. Camejo testified that Forero's speech was significantly slurred, that she had difficulty speaking, and that she had never sounded like that before. Forero did not remember talking to Camejo. Forero still could "not feel anything" and "didn't feel [herself]." She could not remember most of the drive home.
¶ 8 Around 1:30 p.m., defendant dropped Forero back off at her home. Camejo testified that upon arriving, Forero was very pale, was swaying as she walked, and "looked like a zombie or a dead person." Forero immediately threw herself onto Camejo's bed and went to sleep. Forero slept through an alarm at 3:10 p.m. to pick her son up from the bus stop and still could not get up when her son arrived home and began shaking her and calling for her to wake up.
¶ 9 Around 5:00 p.m., Forero woke up and still felt "weird[,]" "couldn't walk straight[,]" and "couldn't think." Forero testified that "the first thing I ha[d] on my mind when I woke up ... was him, it was his face all over me, and I knew what happen[ed]." At 5:23 p.m., Forero texted defendant to ask him what had happened because although she knew, she "want[ed] him to tell [her]." At 5:28 p.m., defendant called Forero and told her that nothing had happened—that after having breakfast at Denny's he had picked up the mail at Stones's house while she waited in the car, and then took her back home. After talking to defendant on the phone, Forero fell back asleep for the rest of the evening.
¶ 10 The next day, 5 January 2017, Forero again called defendant to ask him what had happened. Forero told defendant that she still did not feel well from the previous day and that she couldn't remember what had happened. Defendant again claimed that nothing unusual had happened, that they had just eaten breakfast and went to Stones's house to pick up the mail.
¶ 11 Forero then began researching online about "resources for victims of rape" and "how to report a rape." She contacted the Matthews Police Department and was directed to take a rape test at a hospital. She then left for the hospital "dressed the exact same way that she was [the] night before."
¶ 12 Forero went to Novant Health Presbyterian Medical Center in Charlotte. There, Lucille Montminy, a sexual assault nurse examiner, conducted Forero's sexual assault examination. During the pre-examination interview, Forero told Montminy that defendant had raped her the day before and recounted her memory of the events surrounding the rape. At trial, Montminy testified that Forero's account of the events during this interview was fully consistent with Montminy's knowledge of drug-assisted sexual assaults, including memory loss, confusion about the events, and feeling sick. During the subsequent physical examination, Montminy noted injuries to Forero's vaginal area that were "indicative of a penetration injury" from a penis. After the physical examination, Montminy collected blood and urine samples to be used in subsequent testing.
¶ 13 The next day, 6 January 2017, Forero gave a formal statement to detectives at the Matthews Police Department, who later transferred the case to the Cabarrus County Sheriff's Office. Forero granted detectives access to her phone, including her text messages, call records, and location data. Forero also provided detectives a hair sample to be used in subsequent testing.
¶ 14 At trial, the State presented testimony from two forensic toxicologists involved in the testing and analysis of Forero's biological samples: Frank Lewallen and Dr. Ernest Lykissa. Frank Lewallen was the forensic scientist manager at the Triad Regional Laboratory of the North Carolina State Crime Laboratory, located in Greensboro. Lewallen testified that his lab analyzed samples of Forero's blood and urine collected on 5 January 2017 during the sexual assault examination. Lewallen specified that he did not personally perform any of the testing of Forero's samples; rather, the testing was performed by two other forensic toxicologists, Brian Morse and Megan Deitz, and Lewallen subsequently reviewed their analysis. Lewallen noted that at the time of trial, Morse and Deitz were attending a training in Indiana.
¶ 15 Lewallen testified that while the initial screening of Forero's blood samples screened negative for drugs or alcohol, the initial screening of her urine sample revealed "a positive indication for Amphetamine
and Methylenedioxyamphetamine and for Benzodiazepines." Next, Lewallen testified that a subsequent confirmatory analysis test performed by Deitz again detected these results. Specifically, the following exchange took place regarding Lewallen's review of Deitz's confirmatory testing:
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