State v. Sellers
| Decision Date | 04 August 2015 |
| Docket Number | No. COA14–1272.,COA14–1272. |
| Citation | 776 S.E.2d 898 (Table) |
| Parties | STATE of North Carolina v. Omar Kareem SELLERS, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Roy Cooper, by Assistant Attorney General Elizabeth J. Weese, for the State.
Dunn, Pittman, Skinner & Cushman, PLLC, by Rudolph A. Ashton, III, for Defendant–Appellant.
Omar Kareem Sellers (“Defendant”) appeals from judgments entered upon jury verdicts finding him guilty of first-degree kidnapping, attempted statutory rape of a person who was fourteen years old, sexual offense of a person who was fourteen years old, and taking indecent liberties with a child. We find no error in part, and remand for resentencing.
Evidence at trial showed that Defendant was operating his mobile ice cream business in Wake County on 16 August 2012, when he met fourteen-year-old J.D.E. J.D.E., who was staying with relatives in Garner, interacted with Defendant twice that day. J.D.E.'s first encounter with Defendant was in the morning, when Defendant sold ice cream to her and other children, and then offered them free ice cream if they would play a trivia game with him. During J.D.E.'s second encounter with Defendant later that day, he again sold her ice cream, played trivia games with the neighborhood children, and told the children he would hire anyone who wanted a job. The children, including J.D.E., gave Defendant their names and ages. Defendant told J.D.E. he needed help selling ice cream in another area of Garner, and she accepted his job offer. J.D.E. got into Defendant's ice cream truck, they drove to nearby neighborhoods, and J.D.E. helped Defendant with ice cream sales. Before Defendant drove from J.D.E.'s neighborhood with her in his ice cream truck, Defendant did not ask J.D.E.'s parent or guardian for permission to leave with her.
When Defendant left the Garner area, driving towards Clayton, he began asking J.D.E. inappropriate questions, such as whether she would consider Defendant, who was a thirty-nine-year-old man, to be her boyfriend. Defendant stopped to get J.D.E. food from a McDonald's, and eventually parked his ice cream truck at a remote self-service car wash. Both the McDonald's and the car wash were located in Johnston County. While parked at the car wash, Defendant continued asking inappropriate questions including, as J.D.E. put it at trial: “were my boobs fake” and “if my breasts were fake.”
After helping Defendant clean empty ice cream boxes, J.D.E. got back inside the ice cream truck and Defendant showed her where he kept his sex toys and marijuana brownies. Defendant then asked J.D.E. to show him her breasts, and she did, because she thought if she “cooperated maybe everything would be okay.” Defendant fondled J.D .E.'s exposed breasts. Defendant then asked J.D.E. to pull her pants down and he digitally penetrated her vagina. J.D.E. told Defendant: “I don't feel comfortable,” and Defendant told her: “I'm almost done.” Finally, Defendant had J.D.E. bend over a stool and he attempted to insert his penis into her vagina. J.D.E. pushed him away and “kept repeating that [she] wasn't comfortable.”
Shortly after J.D.E. pushed Defendant away, she told him she wanted to go home. Defendant drove away from the car wash, telling J .D.E. he would take her home. However, an Amber alert had been issued identifying Defendant and his ice cream truck, and as Defendant was driving with J.D.E., police stopped Defendant's truck. Police removed J.D.E. from the ice cream truck and placed Defendant under arrest.
J.D.E. provided statements to Garner police detectives and went with police to identify the McDonald's and the car wash where Defendant had taken her. A police officer took J.D.E. and her mother to WakeMed Hospital, where medical professionals performed a rape kit on J.D.E. Defendant voluntarily provided the State Bureau of Investigation (“SBI”) with DNA samples. Agents from the SBI analyzed samples taken from J.D.E.'s rape kit and clothing and concluded that her underwear contained semen. However, the samples lacked sufficient quantity and/or quality for the SBI to determine if Defendant's DNA was the male contributor to the samples.
At trial, two other young girls testified regarding an encounter each of them had with Defendant during the summers of 2010 and 2011. In each event, the girls and their families reported Defendant to the police. M.U. testified that in 2011, when she was eleven years old, Defendant gave her free ice cream, offered her work several times, gave her his business card, and told her if she came over, he would give her “Jell–O shots.” She testified that Defendant asked her if she could make her “booty bounce.” M.U. never got into Defendant's ice cream truck, but positively identified a picture of it from the present case as being the same ice cream truck Defendant had used in 2011.
T.J. met Defendant in 2010, when she was sixteen years old, at her neighborhood pool. Defendant spoke with T.J., her sister, and a friend about working for him in his ice cream truck. That day, both T.J. and her sister worked separately with Defendant. T.J. got into Defendant's ice cream truck with Defendant, but he did not drive around selling ice cream, instead he stopped at a self-service car wash. During the drive to the car wash, Defendant started talking about marijuana and asked T.J. if she smoked it. After parking at the car wash, Defendant took out a sex toy and asked to see T.J.'s breasts. Frightened of Defendant, T.J. lifted her shirt and Defendant touched her breasts. Defendant then took T.J. home.
Defendant was charged with first-degree kidnapping, statutory rape of a person who was fourteen years old, sexual offense of a person who was fourteen years old, and taking indecent liberties with a child. Defendant was tried before a jury on 7 April 2014 in Wake County Superior Court, and was found guilty of attempted statutory rape, sexual offense, indecent liberties with a child, and first-degree kidnapping. Defendant received a sentence of 157 to 248 months' imprisonment for attempted statutory rape, 240 to 348 months' imprisonment for the consolidated charges of sexual offense and indecent liberties with a child, and 58 to 130 months' imprisonment for the charge of first-degree kidnapping. The trial court ordered Defendant to register as a sex offender. Defendant appeals.
Defendant argues: (1) the trial court erred in admitting 404(b) evidence regarding M.U. and T.J. because the evidence was not sufficiently similar to the present case and its prejudicial effect outweighed its probative value; (2) the trial court erred in denying Defendant's motion to exclude language in a DNA report regarding “insufficient quality and/or quantity[;]” (3) the indictment for first-degree kidnapping contained a fatal variance by omitting language referring to parent or guardian consent; (4) the trial court lacked jurisdiction because the crimes occurred in Johnston County and Defendant was indicted by a grand jury in Wake County; and (5) the consecutive sentences for sexual offense and kidnapping violated double jeopardy, as the sexual offense was used to raise kidnapping to first-degree kidnapping.
Defendant first contends the trial court erred in admitting testimony of M.U. and T.J. because their testimony was not sufficiently similar and its probative value was outweighed by its prejudicial effect. Defendant challenges the trial court's admissibility ruling as to the evidence's relevancy under N.C. Gen.Stat. § 8C–1, Rule 404(b), and its prejudicial effect under N.C. Gen.Stat. § 8C–1, Rule 403. We disagree.
Ordinarily, “[w]hen the trial court has made findings of fact and conclusions of law to support its 404(b) ruling, as it did here, we look to whether the evidence supports the findings and whether the findings support the conclusions.” State v. Beckelheimer,366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012). Id.
However, to assess either challenge, a defendant must properly preserve the issue for appeal by making a timely objection at trial. See State v. Thibodeaux,352 N.C. 570, 577, 532 S.E.2d 797, 803 (2000), cert. denied,531 U.S. 1155, 148 L.Ed.2d 976 (2001) ; see alsoN.C.R.App. P. 10(b)(1). “To be timely, an objection to the admission of evidence must be made at the time it is actually introduced at trial.” State v. Ray,364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (internal quotation marks omitted). A defendant's objection “must be contemporaneous with the time such testimony is offered into evidence.” Id.Thus, any objection made before the actual presentation of evidence at trial will not suffice to preserve the issue on appeal. See id.For example, “ ‘[a] motion in limineis insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.’ “ State v. Tutt,171 N.C.App. 518, 520, 615 S.E.2d 688, 690 (2005) (quoting State v. Hayes,350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) ).
Alternatively, when a defendant fails to preserve an error for review, a defendant may challenge the admission of evidence under a standard of plain error. See State v. Flaugher,214 N.C.App. 370, 376, 713 S.E.2d 576, 582–83 (2011) . To assert the standard, the brief must specifically and distinctly contend plain error as the basis for appeal. SeeN.C.R.App. P....
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