State v. Phachoumphone

• Decision Date: 06 February 2018
• Docket Number: No. COA17-247,COA17-247
• Citation: 810 S.E.2d 748,257 N.C.App. 848
• Parties: STATE of North Carolina v. Noui PHACHOUMPHONE
• Court: North Carolina Court of Appeals

257 N.C.App. 848

810 S.E.2d 748

STATE of North Carolina

v.Noui PHACHOUMPHONE

No. COA17-247

Court of Appeals of North Carolina.

Filed: February 6, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth Guzman, for the State.

William D. Spence, Kinston, for defendant-appellant.

ELMORE, Judge.

Noui Phachoumphone (defendant) appeals from a judgment entered after a jury convicted him of first-degree sex offense with a child and of taking indecent liberties with a child. The State's evidence tended to show that, during the evening of 19 August 2014, defendant's sister, Sara, entered defendant's girlfriend's apartment and saw defendant engaging in sexual activities with his girlfriend's six-year-old daughter, Tara.¹

On appeal, defendant contends the trial court violated N.C. Gen. Stat. § 15A-1225.1's procedural requirements by authorizing Tara's testimony to be taken remotely without holding a recorded evidentiary hearing on the matter or entering an order supporting its decision to allow the State's motion. Defendant also contends the trial court erred by denying his motions to dismiss both charges for insufficient evidence, and by failing to intervene ex mero motu when the prosecutor argued to the jury that certain out-of-court statements established substantive evidence of defendant's guilt. We hold that defendant received a fair trial, free of prejudicial error.

I. Background

Prior to August 2014, six-year-old Tara lived in apartment 36 at Chesterfield Apartments in Kings Mountain with her mother and her mother's boyfriend, defendant, who was forty years old. Defendant's sister, Sara, also lived in a nearby apartment at Chesterfield Apartments.

During the evening of 19 August 2014, Sara was outside smoking a cigarette when she noticed defendant, also outside, drinking and "pretty intoxicated." A few minutes after Sara saw defendant go into apartment 36, she saw Tara walking outside by herself and then enter the apartment. Sara believed Tara was supposed to be staying with her babysitter at a nearby apartment in Chesterfield Apartments, so she went to investigate. After Sara's knocks on the door to apartment 36 went unanswered, she entered the apartment and saw defendant and Tara lying together in a bed on the living room floor. Exactly what Sara observed is disputed. According to Sara's statements to police immediately after the incident, she saw defendant lying on top of Tara while both were naked, and saw defendant masturbating while rubbing Tara's vagina; however, according to her trial testimony, she merely observed defendant with his pants on but no shirt, Tara's dress halfway off and somewhat up, and defendant with his hands around her. Whatever Sara saw when she entered the apartment, it caused her to became extremely upset, she tried to remove Tara from the apartment, and she got into a heated argument with defendant when he refused to let her take Tara. Sara then called 911.

Sergeant Doug Shockley of the Kings Mountain Police Department responded to the call at Chesterfield Apartments, where a 6-year-old girl was reportedly being held against her will. When he arrived, he met Sara, who was "crying hysterically" and appeared "very nervous and upset." Sgt. Shockley met defendant at the door. Defendant reported that he and Sara did not get along, and she was just trying to cause him trouble. Defendant stated that Tara became frightened that night and came downstairs to sleep beside him on the couch. Sgt. Shockley instructed defendant to wait outside as he spoke with Tara.

When Sgt. Shockley entered the apartment to speak with Tara, he saw her sitting on the couch, clutching a pillow, and "crying hysterically, shaking." According to Sgt. Shockley, Tara immediately stated: " ‘I don't know why he did this to me.’ " Tara clarified: " ‘[Defendant], I don't know why he was laying on top of me. He was rubbing me down there’ " and then Tara "pointed toward ... her genital area." Sgt. Shockley then contacted Detective Sergeant Lisa Proctor, who instructed that Sara, Tara, and defendant be taken into the police station for questioning.

During Sara's police interview, she reported that when she entered the apartment, defendant was "totally naked" and masturbating while playing with Tara. During Tara's interview, she reported that defendant "was naked," "had gotten on top of her," "taken her clothes off," and "touched her in her cootie with his hands."

The next day, Tara was examined by Dr. Christopher Cerjan, a pediatrician at Shelby Children's Clinic. During the exam, Tara reported to Dr. Cerjan that defendant "took [her clothes] off," "touched her with ... his hands," and "pointed to her groin." Dr. Cerjan discovered that Tara had very little hymen tissue, which he opined was abnormal for a six-year-old and that a penetrating injury was the only possible cause. He also found redness inside Tara's vaginal area, indicating that the penetration likely occurred within the preceding forty-eight hours.

Near the end of the first day of trial, the State called Tara to testify. Because she was unresponsive, the court decided to excuse the jury for the evening and start fresh the next day. On day two, the State directly examined Tara for nearly two-and-a-half hours but was unable to elicit any helpful testimony about the incident. Tara demonstrated that she understood the difference between a truth or a lie, but either did not respond at all or merely shook her head "yes" or "no" to several questions. Tara was unwilling to say defendant's name but did indicate that something happened between her and defendant, that it happened to her body, and appeared to indicate by confirming when the State pointed to this location on a bear used for demonstrative purposes, that it happened between her legs. Tara confirmed that "this [was] the right spot on [her] body where [she was] hurt." However, Tara was largely unresponsive when asked to provide any further details. The State then called Sara to testify.

Sara's trial testimony differed from her prior statements to police. Sara testified that when she entered the apartment, she saw defendant "laying on ... the bed on the floor in the living room, and [Tara] next to him." "What [she] ... clearly it didn't look appropriate. So immediately [she] told [Tara] to get up and come with [her]." She testified that defendant "had his pants on but he was shirtless," and Sara only "saw [Tara]'s dress halfway off and somewhat up. And [defendant] ... had his hands around her but that, that was it." She explained: "I mean ... from that moment, I just reacted and I called out [Tara's] name to come with me. And when [defendant] heard, they just stood up and that's when the ... argument started." When pressed by the State during direct, Sara stated that at the time she gave her recorded police interview, she was "drunk," "upset," "mad," and "wasn't thinking clearly. ..." Sara further stated that "it was dark," she "didn't see anything" but "jumped to conclusion [sic]," and "might have exaggerated" during the police interview. Sara admitted that in her prior recorded statement, she told police that she saw defendant "totally naked with his private part out and [masturbating] while he was playing with [Tara]," but stated at trial that she "said it out of anger," "exaggerated it a little bit," and "that's not what happened."

At the start of the third day of trial, the State filed a motion under N.C. Gen. Stat. § 15A-1225.1 to allow Tara's testimony to be taken remotely, arguing that Tara "would suffer and has suffered serious emotional distress by testifying in front of the defendant" and that "this emotional distress has made it difficult for [Tara] to speak, and [Tara]'s ability to communicate with the trier of fact is impaired and thus interferes with the ability of jurors to ascertain the truth." Defense counsel objected on the ground that the motion was untimely filed, and the State never presented an expert to support the motion. After considering the parties' arguments, and its own observation of Tara's prior in-court testimony, the trial court allowed the motion, authorizing Tara's testimony to be taken remotely.

During Tara's remote testimony, she demonstrated what defendant had done to her by inserting her finger through a hole an interpreter had created with her hands. She explained that "it hurt," that no one else had ever touched her that way, and that defendant had undressed her before committing the act.

After the State's presentation of evidence, defense counsel called defendant's brother and defendant to testify. Defendant's brother stated that defendant and Tara had a great relationship, that defendant was "like a father figure to [Tara]," and that defendant was largely responsible for Tara's care when her mother was at work. Defendant's testimony corroborated these remarks from his brother. According to defendant, during the night of the incident, he was watching television and relaxing, drinking a beer, while wearing shorts and a t-shirt. Tara was on the bed, had fallen asleep in shorts and a t-shirt, and he had just covered her with a blanket when Sara came into the apartment. Sara immediately stated " ‘I know you been [sic] drinking. I'm taking [Tara].’ " According to defendant, when he refused to give up Tara, Sara warned " ‘I'm going to call the cops and tell them you messing [sic] with her.’ " Defendant testified that he never did anything inappropriate with Tara.

At the conclusion of the evidence, defendant unsuccessfully moved to dismiss both charges for insufficiency of the evidence. The jury found defendant guilty as charged. The trial court imposed a prison sentence of 300 to 428 months for the first-degree sex offense with a child count, and a concurrent sentence of 21 to 35 months for the indecent liberties count. The trial court also ordered defendant to register as a sex offender for a period of thirty years, to enroll in lifetime satellite-based monitoring,...