State v. Perkins, No. COA13–1352.

• Docket Nº: No. COA13–1352.
• Citation: 760 S.E.2d 38
• Case Date: July 01, 2014
• Court: Court of Appeal of North Carolina (US)

760 S.E.2d 38

STATE of North Carolina
v.
Gregory Aldon PERKINS, Defendant.

No. COA13–1352.

Court of Appeals of North Carolina.

July 1, 2014.

[760 S.E.2d 39]

Appeal by defendant from judgments entered 4 December 2012 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 7 May 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Anita LeVeaux, for the State.

Glenn Gerding for defendant-appellant.

BRYANT, Judge.

Pursuant to Rule 609 of our Rules of Evidence, a defendant who testifies at trial may be impeached with evidence of a prior conviction. Whether a defendant's testimony at trial was chilled by the State's use of Rule 609 depends on the particular facts of the case. A defendant has a prior conviction when, on the date judgment is entered, he has already been sentenced for a crime. Where no authority exists in support of defendant's argument that the trial court erred by failing to intervene ex mero motu during the prosecutor's sentencing argument before the trial court, defendant's argument must be dismissed.

[760 S.E.2d 40]

On 4 December 2009, defendant Gregory Aldon Perkins was arrested on charges of first-degree sexual offense with a child, first-degree rape of a child, and incest. Defendant was indicted and tried on those charges during the November 2010 session of Wake County Superior Court but, after the jury failed to reach a verdict, a mistrial was declared.

Defendant was tried a second time on twenty counts of various child sexual assault offenses. Defendant was convicted of one count of indecent liberties with a child. Because the jury failed to reach verdicts on the remaining counts, a mistrial was declared. Judgment was entered and defendant was sentenced on 29 September 2011 for the indecent liberties conviction. Defendant was sentenced to an active term of sixteen to twenty months, and ordered to register as a sex offender upon his release and to undergo a risk assessment for satellite-based monitoring.

On 26 November 2012, defendant was retried and convicted by a jury on four charges: one count each of first-degree sexual offense by digital vaginal penetration, first-degree sexual offense by cunnilingus, first-degree rape of a child, and incest. The State's evidence at trial tended to show the following.

In June 1998, defendant was hired by “Jane” ¹ to perform computer system work for the Town of Albemarle. At that time, Jane was married with two girls, “Susan” and “Carrie”; defendant was married but had no children. Defendant and Jane separated from their spouses to begin dating each other; they married in June 2001 and subsequently moved from Albemarle to Apex.

Carrie testified that when she was in the third grade, defendant began to sexually abuse her. Defendant would give Carrie a back rub before moving his hands beneath her clothes. The sexual abuse included defendant digitally penetrating her vagina and performing oral sex on her. Defendant also taught Carrie how to perform oral sex on him. According to Carrie, the abuse occurred as many as four times a week.

In the summer before starting sixth grade, defendant had vaginal intercourse with Carrie. Defendant offered Carrie a “deal” by which she could receive things such as new clothes, no curfew restrictions, or spending more time with friends if she cooperated with his requests for sex. When Carrie was in the ninth grade, defendant convinced Jane to let Carrie start taking birth control. Carrie reiterated that defendant would typically abuse her about four times a week.

In 2008, defendant announced that he was unhappy with his marriage to Jane and wanted to move out of the house. Defendant's last sexual encounter with Carrie occurred sometime between Christmas 2008 and January 2009 when he moved out.

In October 2009, Carrie became upset while looking at pictures of accused sexual offenders in a newspaper and told her boyfriend that defendant had sexually abused her. Carrie then told her sister, Susan, and her mother, Jane, that defendant had abused her “for a long time.” Jane called the Apex Police Department.

The Apex Police interviewed Carrie, Susan, Jane, and Carrie's boyfriend. They also interviewed two childhood friends of Carrie who, years before, had been told by Carrie that she was being sexually abused by defendant. Mental health counselors determined that Carrie was depressed and exhibited symptoms of post-traumatic stress disorder associated with long-term child sexual abuse. When interviewed by the Apex Police, defendant denied Carrie's allegations and stated that Carrie created the allegations against him because she did not want defendant to reconcile with Jane.

After his conviction on all four counts, defendant stipulated to being a prior conviction level II. The trial court found as a mitigating factor that defendant was honorably discharged from the military but that this factor did not warrant sentencing in the mitigated range. Defendant was sentenced to three consecutive active sentences of 276 to 341 months each for first-degree sexual offense by digital vaginal penetration (09 CRS 211758), first-degree sexual offense by

[760 S.E.2d 41]

cunnilingus (09 CRS 211759), and first-degree rape of a child under the age of thirteen (09...