State v. Watts

• Citation: 616 S.E.2d 290
• Decision Date: 02 August 2005
• Docket Number: No. COA04-874.,COA04-874.
• Parties: STATE of North Carolina v. Charles Eugene WATTS.
• Court: North Carolina Supreme Court

616 S.E.2d 290

STATE of North Carolina v. Charles Eugene WATTS.

No. COA04-874.

Court of Appeals of North Carolina.

August 2, 2005.

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Appeal by Defendant from conviction and sentence entered 13 June 2003 by Judge B. Craig Ellis in Superior Court, Scotland County. Heard in the Court of Appeals 1 March 2005.¹

Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

Bruce T. Cunningham, Jr., Southern Pines, for the defendant-appellant.

WYNN, Judge.

In State v. Futrell, 112 N.C.App. 651, 659, 436 S.E.2d 884, 888 (1993), this Court reviewed "the process of DNA analysis[]" and found that a population-statistical analysis is the third part of DNA analysis. Here, Defendant argues, inter alia, that a witness tendered as an expert in forensic DNA analysis was not qualified to testify on population statistics. Given that our case law evidences the admissibility of testimony on population statistics by (forensic) DNA analysis experts and Defendant presents no authority to support his argument, we uphold the admission of the testimony on population statistics. But, for reasons given in Allen, ___ N.C. at ___, 615 S.E.2d at ___, and Speight, ___ N.C. at ___, 614 S.E.2d at ___, we must remand this case for resentencing because the trial court improperly found an aggravating factor and sentenced Defendant in the aggravated range in violation of the Sixth Amendment to the United States Constitution.

Upon the verdict of a jury, Defendant was convicted of raping a thirteen-year-old female ("the minor") and sentenced to 360 to 441 months imprisonment without parole. The record reflects that the minor moved to North Carolina with her father in 2000 after her parents separated. Defendant, Charles Eugene Watts, is related to the minor. The minor began working for Defendant at his garage because her father was sick, his income was low, and the minor needed things for school. At the time, the minor was thirteen years old; Defendant was forty-seven.

At trial, the minor provided the following testimony: Defendant began sexually assaulting her soon after she started working for him. Defendant kissed her, put his fingers into her vagina, and then raped her twice a day every weekday. Before Defendant raped her, the minor had not had sexual intercourse with anyone. Defendant told the minor that he would hurt her and her family if she told anybody.

On 7 September 2000, while driving the minor to school, Defendant grabbed the back of her head, pushed it into his lap, and forced her to perform oral sex on him. Defendant then drove to his garage, where he again raped the minor before taking her to school. She took the bus home from school, showered, and visited a neighbor, Susan Butler. She told Ms. Butler what had been happening. Testimony at trial established that Ms. Butler immediately talked to the minor's father; he, along with the minor and Ms. Butler, went to the police.

Thereafter, the police sent the minor to the hospital, where her underwear and physical samples were taken. A pregnancy test was administered, with a positive result. The treating obstetrician-gynecologist estimated the time of conception to be somewhere between 9 August and 19 August, during which time the minor was allegedly being raped by Defendant. The fetus was not viable, and an evacuation was performed. The products of conception extracted during the evacuation were preserved and picked up by the police.

Defendant consented to giving a blood sample. He contended that he was sterile, denied having any sexual contact with the minor, contended that the minor had a bad reputation, and accused the minor of making sexual advances toward him.

Defendant was arrested and tried for statutory rape of a thirteen-year-old victim at the 10 June 2003 session of Superior Court, Scotland County. During the trial, the physician who performed the evacuation was asked to identify the products of conception, which were "leaking somewhat." The trial court interrupted the examination, asking that the products be put in a cooler and a lid be placed on the cooler. The trial court recessed for five minutes in order for the bailiff to get "spray" and the trial judge then stated, "For the record State's Exhibit Number 35 has a very unpleasant odor[.]" Thereafter, a forensic DNA analyst who had examined the products of conception and blood samples of Defendant and the minor testified at trial that the probability of Defendant's paternity was 99.99 percent. Special Agent David Freeman, a forensic molecular geneticist with the State Bureau of Investigation, also testified at trial. He discussed DNA analysis conducted primarily by a colleague who was on vacation. Special Agent Freeman testified, inter alia, that the profile from the male fraction of the DNA taken from the minor's underwear was 4.48 million trillion times more likely to be from Defendant than from another unrelated individual within North Carolina's Caucasian population, 17.3 million trillion times more likely to be from Defendant than from another unrelated individual within North Carolina's African-American population, 5.59 million trillion times more likely to be from Defendant than from another unrelated individual within North Carolina's Caucasian Lumbee Indian population, and 20.7 million trillion times more likely to be from Defendant than from another unrelated individual within North Carolina's Hispanic population. Special Agent Freeman testified that, in his opinion, it was scientifically unlikely that the semen found on the minor's underwear originated from anyone other than Defendant.

From the resulting conviction of statutory rape of a thirteen-year-old victim and sentence, Defendant appealed to this Court.

In his appeal, Defendant first contends that the trial court erred by denying his objection to Special Agent Freeman's testimony concerning his opinion about population statistics when he had not been tendered or qualified in that field. Defendant argued error as to Special Agent Freeman's statements that: (1) the profile from the male fraction of the DNA taken from the minor's underwear was 4.48 million trillion times more likely to be from Defendant than from another unrelated individual within North Carolina's Caucasian population; and (2) in his opinion, it was scientifically unlikely that the semen found on the minor's underwear originated from anyone other than Defendant.

Preliminarily, we point out that Defendant lodged only general objections during Special Agent Freeman's testimony and did not ask to be heard when the objections were overruled. Moreover, defense counsel questioned Special Agent Freeman at length about population statistics. The transcript does not clearly demonstrate the grounds for the objections, and the testimony was not on its face admissible for no purpose. Defendant therefore failed to preserve this issue for appeal. State v. Tyler, 346 N.C. 187, 203, 485 S.E.2d 599, 608 ("An objection to a witness's qualifications as an expert in a given field or upon a particular subject is waived if it is not made [] upon this special ground, and a mere general objection to the content of the witness's testimony will not ordinarily suffice to preserve the matter for subsequent appellate review." (quotation omitted)), cert. denied, 522 U.S. 1001, 118 S.Ct. 571, 139 L.Ed.2d 411 (1997); State v. Perkins, 154 N.C.App. 148, 152-53, 571 S.E.2d 645, 648 (2002) (where "Defendant's counsel gave no basis for the [general] objections and the transcript does not clearly demonstrate grounds for the objections[,]" the issue was not preserved for appeal except for plain error review (quotations and citations omitted)); State v. Hamilton, 77 N.C.App. 506, 509, 335 S.E.2d 506, 508 (1985), disc. review denied, 315 N.C. 593, 341 S.E.2d 33 (1986) ("We note [] that a general objection, if overruled, is ordinarily not effective on appeal." (citation omitted)).

Because Defendant failed to preserve the issue of Special Agent Freeman's qualifications, the proper standard for review is plain error. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) ("[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court"); Perkins, 154 N.C.App. at 152-53, 571 S.E.2d at 648. Defendant failed, however, to assert plain error in both his assignments of error and his appellate brief. Where a defendant fails specifically and distinctly to allege plain error, the defendant waives his right to have the issues reviewed for plain error and we therefore refrain from any review. State v. Forrest, 164 N.C.App. 272, 277, 596 S.E.2d 22, 25-26 (2004) ("when a defendant fails to specifically and distinctly allege that the trial court's ruling amounts to plain error, defendant waives his right to have the issues reviewed under plain error[]") (citing State v. Hamilton, 338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994)); State v. Flippen, 349 N.C. 264, 274-75, 506 S.E.2d 702, 710 (1998), cert. denied, 526 U.S. 1135, 119 S.Ct. 1813, 143 L.Ed.2d 1015 (1999) (where defendant failed to assert plain error in his assignments of error, he waived plain error review).

Nonetheless, in the interest of justice and fairness of the judicial process, and given the considerable gravity of Defendant's lengthy sentence to imprisonment, we invoke our discretion under Rule 2 of the North Carolina Rules of Appellate Procedure to review the merits of this assignment of error. N.C. R.App. P. 2 ("To prevent manifest injustice to a party ... either court of the appellate division may ... suspend or vary the requirements or provisions of any of these rules in a case pending before it...."); State v. Poplin, 304 N.C. 185, 282 S.E.2d 420 (1981) (granting review under Rule 2 where the defendant made no arguments and cited no authority in his brief because of the severity of the sentence of life imprisonment); but see ...