State v. Thompson

• Decision Date: 06 October 2020
• Docket Number: No. COA19-1099,COA19-1099
• Citation: 852 S.E.2d 365
• Parties: STATE of North Carolina v. Benjamin Edwin THOMPSON
• Court: North Carolina Court of Appeals

852 S.E.2d 365

STATE of North Carolina

v.Benjamin Edwin THOMPSON

No. COA19-1099

Court of Appeals of North Carolina.

Filed: October 6, 2020

Attorney General Joshua H. Stein, by Special Deputy Attorney General Lauren M. Clemmons, for the State.

Vitrano Law Offices, PLLC, Wake Forest, by Sean P. Vitrano, for defendant.

ARROWOOD, Judge.

Benjamin Edwin Thompson ("defendant") appeals from judgments entered on his convictions for statutory sexual offenses with children, sexual activity by a substitute parent or custodian, and sale or delivery of controlled substances to a minor. Defendant argues the trial court plainly erred by admitting expert testimony about one victim's PTSD without a limiting instruction. Defendant also requests that this Court grant him a writ of certiorari to determine whether the trial court erred in ordering him to submit to satellite-based monitoring for a lifetime and for ten years. For the following reasons, we affirm in part and reverse in part.

I. Background

On 10 October 2016, a grand jury indicted defendant on several charges arising out of offenses against the minor children A.W. and A.B.¹ Defendant was indicted on two counts of statutory sexual offenses with a child against 12-year-old A.W., two counts of a sex act by a substitute parent or custodian, and two counts of selling or delivering controlled substances to a minor under 13 years of age. Regarding 13-year-old A.B., defendant was indicted on two counts of statutory sexual offenses with a child under 15 years of age and two counts of selling or delivering controlled substances to a minor under 16 years of age but more than 13 years of age. The matter came on for trial on 22 January 2019.

The State's evidence at trial tended to show the following. A.W. is defendant's step-daughter and the best friend of A.B. When A.W. was 12 and A.B. was 13, defendant provided them with alcohol, Xanax, and marijuana on several occasions. Defendant also sent the girls inappropriate messages through text and on Snapchat. In one such message, defendant insisted A.W. "owe[d] [him] a finger f***." In another, defendant requested that A.B. send him nude photos. A.W. testified that defendant on multiple occasions put his hand down her pants and rubbed and penetrated her vagina with his fingers. A.B. gave a similar account of defendant touching her in the same manner.

The State introduced into evidence a number of messages police recovered from A.W.’s phone which corroborated her account, including several of the inappropriate messages from defendant. Several witnesses also corroborated A.W.’s and A.B.’s accounts. A.W.’s mother saw a text message from defendant to A.W. saying "you owe me a finger f***" and telling her to use Snapchat to communicate because they were "safer on there." In addition, A.B.’s mother read an entry in A.W.’s diary in which A.W. wrote that "Ben was always trying to look at their p****** and Ben was always ... trying to finger f*** them[.]" When first confronted by their mothers about whether something was going on with defendant, A.W. and A.B. initially lied about the nature of their interactions with him. At the direction of defendant, A.W. and A.B. told their mothers that "finger f***" meant "flipping the bird." However, A.W.’s step-mother and her friend D.D. both testified A.W. confided in them about the things defendant would do and say to her. Detective Jessica Woosley of the Cleveland County Sheriff's Department testified that A.W. and A.B. again recounted the sexual abuse during investigative interviews.

The State also presented testimony of A.W.’s therapist, Jessica Talbert ("Talbert"), who was tendered as an expert licensed in clinical therapy in the area of assessment and treatment of children and adolescents in trauma. A.W. was referred to Talbert because she was cutting herself, having trouble functioning at school, was not eating or sleeping, and expressed a desire to kill herself. After assessing A.W., Talbert diagnosed her with post-traumatic stress disorder ("PTSD") and major depressive disorder. Talbert further testified that over the course of treatment A.W. discussed the details of her sexual abuse by defendant, including that he touched her vagina, told her to touch his penis, and made inappropriate comments to her of a sexual nature. Talbert also explained that, due to feelings of shame and guilt, most children either never disclose sexual abuse or only disclose a little at a time. Defendant did not object to this testimony being used for corroborative purposes, and the trial court did not issue a limiting instruction to the jury.

Defendant presented evidence including his own testimony and that of his mother, sister, son, and a coworker. He testified that A.W. suffered from mental health issues since 2013 and would lie to her parents about things. Defendant also denied exposing himself to the girls, touching them inappropriately, or providing them with any alcohol or drugs. At the conclusion of the evidence, defendant made a motion to dismiss. The trial court denied the motion, and the jury subsequently found defendant guilty of all charges. The trial court consolidated the offenses against A.W. and A.B. into two judgments and imposed consecutive sentences of 300 to 420 months and 240 to 348 months. After considering whether satellite-based monitoring ("SBM") would be appropriate, the trial court ordered that defendant enroll in SBM for the remainder of his natural life upon his release from prison for his offenses against A.W., and for an additional 10 years for his offenses against A.B. In addition, defendant was required to register as a sex offender and made subject to a permanent no-contact order. Defendant gave oral notice of appeal in open court. No written notice of appeal of the SBM order was filed.

II. Discussion

Defendant appeals from the trial court's judgments against him, arguing in the first place that the trial court plainly erred by admitting expert testimony that A.W. suffered from PTSD without giving a limiting instruction. Defendant also filed a petition for writ of certiorari requesting that this Court review the trial court's order imposing SBM. He argues that the trial court erred in (1) ordering him to enroll in lifetime SBM because such order was unconstitutional, and (2) ordering him to enroll in SBM for ten years without finding that he required the highest level of supervision and monitoring.

As an initial matter, we address this Court's jurisdiction with respect to the SBM order. Due to the civil nature of SBM proceedings, defendant was required to file a written notice of appeal from the SBM order pursuant to Rule 3 of the Appellate Rules of Procedure in order to properly bring the matter before this Court. State v. Lopez, 264 N.C. App. 496, 503, 826 S.E.2d 498, 503 (2019). Defendant failed to do so. However, "this Court has granted a defendant's petition for writ of certiorari to review a meritorious challenge to an SBM order notwithstanding his failure to file a written notice of appeal—timely or otherwise." State v. Hutchens , ––– N.C.App. ––––, ––––, 846 S.E.2d 306, 310 (2020) (unpublished) (citing Lopez 264 N.C. App. at 504, 826 S.E.2d at 504 ). In our discretion, we grant defendant's petition and address the merits of his appeal.

A. Expert Testimony

Defendant first argues that the trial court plainly erred in admitting expert testimony A.W. suffered from PTSD where such evidence was not accompanied by a limiting instruction. At trial, defendant objected to Talbert's testimony on hearsay grounds, arguing against its admittance "unless it's for corroboration purposes only." The trial court found the testimony admissible under Rule 803(4), and defendant did not thereafter request a limiting instruction. Because defendant did not object to the admission of the expert testimony for corroborative purposes without a limiting instruction, he failed to preserve the matter for appeal. Nevertheless, this Court reviews unpreserved evidentiary objections for plain error.

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity, or public reputation of judicial proceedings.

State v. Lawrence , 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations, quotation marks, and brackets omitted).

At trial, Talbert testified that she interviewed A.W. following a referral from law enforcement and administered certain assessments and questionnaires. Talbert thereby formed an opinion that A.W. suffered from PTSD and major depressive disorder. Defendant raised no objection to this testimony being admitted for corroborative purposes, and the trial court did not instruct the jury that it should limit its consideration of the testimony for any specific purpose.

Our Supreme Court has held that "evidence that a prosecuting witness is suffering from post-traumatic stress syndrome should not be admitted for the substantive purpose of proving that a rape has in fact occurred." State v. Hall , 330 N.C. 808, 821, 412 S.E.2d 883, 890 (1992). However, "it may be admitted for certain corroborative purposes" or "help to explain delays in reporting the crime or to refute the defense of consent." Id. at 821-22, 412 S.E.2d at 890-91. "If admitted, the trial judge should take pains to explain to the jurors the limited uses for which the evidence is admitted." Id. at 822, 412 S.E.2d at 891. "The rule, however, in this State has long been that an instruction limiting admissibility of testimony to corroboration is not required unless counsel specifically requests such instruction."

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