State v. Quinn

• Decision Date: 02 November 2004
• Docket Number: No. COA03-1319.,COA03-1319.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Vincent Percy QUINN, Jr.

603 S.E.2d 886

166 NC App. 733

STATE of North Carolina v. Vincent Percy QUINN, Jr.

No. COA03-1319.

Court of Appeals of North Carolina.

November 2, 2004.

Roy A. Cooper, III, Attorney General, by Jennie Wilhelm Mau, Assistant Attorney General, for the State.

Paul Pooley, Durham, for defendant-appellant.

MARTIN, Chief Judge.

Defendant was indicted for first degree kidnapping "for the purpose of facilitating the commission of a felony, Statutory Rape," and for two counts of first degree statutory sexual offense of a child thirteen years old. Evidence presented at trial tended to show the following: Defendant met 13 year old "D.B." in an Internet chat room during the summer of 2001. After interacting by computer several times a week, they exchanged photos and telephone numbers. D.B. phoned defendant using either her calling card or with a calling card number provided by defendant. In July 2001, D.B. wanted to run away from her Marmaduke, Arkansas, home and made plans for defendant to pick her up near there, but defendant did not arrive. On 15 September 2001, D.B. packed a backpack and went to a park near her mother's home, where she had agreed to meet defendant, but he was not there and D.B. abandoned her plan to run away. Later that afternoon, D.B. recognized defendant from his photograph and the out-of-state license plates on his automobile, which was parked at a stop sign near her house, and "at the last second ... decided to go with him anyway."

Defendant and D.B. traveled to North Carolina and defendant rented a motel room in Durham, where they remained from 16 September 2001 until 20 September 2001. D.B. testified that defendant fondled her breasts, penetrated her vagina with his penis and with his fingers, and that they performed oral sex on one another. Defendant left the motel to go to work each day and D.B. stepped outside only when the maids cleaned the room.

When D.B. failed to return home on 15 September 2001, her older sister revealed the Internet profile of defendant to their mother, who contacted the police. Local police notified the state police and the FBI. With the owners' consent, the FBI confiscated both D.B.'s family computer and the computer used by defendant, which was owned by his former girlfriend. The computers revealed the interaction between D.B. and defendant. On 21 September 2001, FBI agents went to the motel in Durham and spoke with D.B.; while they were there the defendant phoned and asked her to meet him at a nearby McDonald's. D.B. informed the agents and they proceeded there to arrest defendant. After having been given his Miranda warnings, defendant made a statement to investigators regarding the events of 15-20 September 2001.

The trial court granted the State's motion to consolidate these charges with a charge of statutory rape of the same victim by defendant in the same transaction. The jury convicted defendant of two counts of first degree sexual offense and one count of first degree kidnapping, but was unable to reach a verdict on the statutory rape charge. Defendant was sentenced to consecutive sentences of 336 months to 413 months for each first degree sexual offense charge and a consecutive sentence of 116 months to 149 months for first degree kidnapping. Defendant appeals.

Defendant brings forward eight assignments of error in five separate arguments. Defendant has not presented arguments in support of the remaining thirteen assignments of error contained in the record on appeal. Therefore, they are deemed abandoned. N.C. R.App. P. 28(b)(5).

Defendant first argues that the short-form indictments for first degree statutory sexual offense fail to meet constitutional standards. In his brief he acknowledges that our courts have upheld the constitutionality of the short-form indictment; however, defendant contends that these prior holdings should be overruled in light of Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This argument was rejected by our Supreme Court in State v. Hunt, 357 N.C. 257, 270, 582 S.E.2d 593, 602, cert. denied, 539 U.S. 985, 124 S.Ct. 44, 156 L.Ed.2d 702 (2003), which specifically cited State v. Edwards, 305 N.C. 378, 380, 289 S.E.2d 360, 362 (1982) as upholding short-form indictments charging sex offenses. Accordingly, this assignment of error is overruled.

Second, defendant maintains the trial court erred and abused its discretion when it admitted testimony that defendant viewed sexually explicit photos on his home computer. We disagree. Our Supreme Court "has been liberal in allowing evidence of similar offenses in trials on sexual crime charges." State v. Frazier, 344 N.C. 611, 615, 476 S.E.2d 297, 300, (1996); see also State v. Coffey, 326 N.C. 268, 280, 389 S.E.2d 48, 55 (1990),

cert. denied

421 S.E.2d 360 (1992) (admitting testimony concerning prior sexual act in front of a child admissible to show motive); State v. Rael, 321 N.C. 528, 534, 364 S.E.2d 125, 129 (1988) (permitting evidence of possession of pornography as relevant to corroborate victim's testimony). The photographs at issue here were displayed to testifying witnesses for the permissible purposes of establishing defendant's use of his girlfriend's computer and defendant's motive, preparation, and plan.

Defendant argues that even if this evidence was relevant under G.S. § 8C-1, Rule 404(b), the trial judge abused his discretion when weighing its probative value and prejudicial effect. N.C. Gen.Stat. § 8C-1, Rule 403 (2003). "Necessarily, evidence which is probative in the State's case will have a prejudicial effect on the defendant." State v. Mercer, 317 N.C. 87, 93-94, 343 S.E.2d 885, 889 (1986). The exclusion of evidence under this rule is a matter within the trial court's discretion and will only be reversed on appeal with a showing that its decision was manifestly unsupported by reason. State v. Womble, 343 N.C. 667, 690, 473 S.E.2d 291, 304 (1996), cert. denied, 519 U.S. 1095, 117 S.Ct. 775, 136 L.Ed.2d 719 (1997). Here, the judge did not admit the images, only testimony by other users of the computer that they were not familiar with the images. The State was allowed to lay its foundation but was cautioned that the pictures were inflammatory. The trial court took the additional precaution of placing them in an envelope to avoid the images being shown to the jury. The decision to allow the testimony is not unsupported by reason and this argument is overruled.

Third, defendant contends the trial court erred by instructing the jury on kidnapping theories not set forth in the indictment. The State concedes error, but argues it was harmless. Defendant argues that the variance between the first degree kidnapping indictment and the judge's instructions to the jury allowed conviction on theories not included in the indictment. The first degree kidnapping indictment charged that defendant

unlawfully, willfully, and feloniously did kidnap [D.B.], a person under the age of sixteen years, by unlawfully confining her, restraining her and removing her from one place to another, without her consent, and for the purpose of facilitating the commission of a felony, Statutory Rape, and the victim was not released by the defendant in a safe place.

(Emphasis added). Defendant argues that the judge erred when he instructed the jury:

So I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged dates of September 16 through September 20, 2001, the defendant unlawfully confined, restrained or removed [D.B.] from one place to another, and that [D.B.] had not reached her sixteenth birthday, and her parent did not consent to this confinement, restraint, or removal and that this was done for the purpose of facilitating the defendant's commission of first degree sexual offense, and that this confinement, restraint, or removal, was a separate and complete act independent of and apart from the felony of first degree sexual offense, and that [D.B.] had been sexually assaulted or not released in a safe place, it would be your duty to return a verdict of first degree kidnapping.

(Emphasis added). Defendant did not object to this variance at trial, so we apply the plain error standard of review. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)

(adopting plain error standard of review). Plain error is error that "probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Bagley, 321 N.C....