State v. Whitman, COA05-1410.
| Decision Date | 17 October 2006 |
| Docket Number | No. COA05-1410.,COA05-1410. |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Kelly M. WHITMAN, Defendant. |
Terry W. Alford, Spring Hope, for defendant-appellant.
Defendant Kelly M. Whitman appeals his convictions for statutory rape, statutory sex offense, indecent liberties with a child, and incest. On appeal, defendant primarily argues that the trial court erred by: (1) denying defendant's motion for a bill of particulars; (2) allowing the State to amend the offense dates reflected on certain indictments on the day of trial and denying defendant's subsequent motion for a continuance; (3) admitting certain photographs into evidence; (4) coercing the jury into rendering a verdict; and (5) denying defendant's motion to dismiss the charges for insufficient evidence. We disagree with each of defendant's arguments and, accordingly, find no error.
At trial, the State's evidence tended to show the following facts. "Mary,"1 born in 1983, was removed from her mother's custody when she was about seven years old and placed into foster care with defendant Kelly M. Whitman, born in 1948, and his wife, Barbara Whitman. The Whitmans had fostered and adopted numerous children and continued to do so during the time Mary lived with them.
On 4 July 1997, when Mary was 14, Ms. Whitman was staying at the hospital while her father was preparing for heart surgery. Defendant and Mary remained at home, and defendant had Mary sleep with him in the Whitmans' bed. During the night, defendant pushed up against Mary and fondled her chest and between her legs while, according to Mary, "breathing really heavy." Subsequently, defendant began taking Mary on "driving lessons," during which he would fondle her chest and legs while she steered and shifted the gears.
Mary was legally adopted by the Whitmans when she was approximately 15 years old. Shortly thereafter, however, the Whitmans separated, and defendant moved into his own apartment. Although Mary initially lived with Ms. Whitman, she later moved in with defendant.
Defendant would often travel for work, and Mary occasionally went with him if she was not in school. On one such trip, after Mary had been adopted by the Whitmans, defendant gave her vodka mixed with orange juice. Apparently having drank too much, Mary began to feel sick and laid down. Defendant took off their clothes, began kissing Mary, performed oral sex on her, and ultimately had sexual intercourse with her. Defendant stopped after Mary began crying.
Defendant and Mary thereafter began having sexual intercourse about "three times a week," according to Mary. Typically, defendant gave Mary alcohol and then touched and kissed her. Whenever Mary tried to "jerk away," defendant would get mad, so Mary would then "just sit there" while defendant took off her clothes and fondled her. Defendant always performed oral sex on Mary, and, on several occasions, made her perform oral sex on him. The two would usually engage in sexual intercourse after the oral sex.
The last instance of sexual intercourse between defendant and Mary occurred in the summer of 2002, when Mary was 19 years old. Defendant had Mary accompany him on a trip to Baltimore, Maryland, and they had sex in defendant's hotel room after an evening of drinking. Mary moved out of defendant's home about a week later to move in with her boyfriend, whom she planned to marry.
Shortly thereafter, Mary spent a day helping Ms. Whitman in her duties as a substitute teacher at a local elementary school. While the children were in recess, Mary told Ms. Whitman about defendant's sexual conduct with her. Ms. Whitman confronted defendant with Mary's allegations, which, according to Mary, he ultimately admitted. Ms. Whitman testified that Mary, after yelling accusations at defendant, then asked him, in front of Ms. Whitman, "Are you denying this?" Defendant responded "[n]o," but then told Ms. Whitman, "It's not what you think."
Mary and her boyfriend were later married by Claude Spencer Chamberlain, Jr., a minister who happened to also be a detective with the Durham County Sheriff's office. After the wedding, Mary's relationship with Ms. Whitman began to deteriorate, and Ms. Whitman threatened to go to Mary's new husband and "tell him about [Mary's] past." Mary then called Detective Chamberlain because she felt she could trust him.
Detective Chamberlain, along with Sergeant William M. Oakley, III of the Durham County Sheriff's Office, interviewed Mary on 12 December 2002. Concerned about the lack of physical evidence, Sergeant Oakley obtained Mary's consent to electronically monitor and record a conversation between her and defendant, ostensibly regarding an unrelated car insurance claim. Sergeant Oakley, Detective Chamberlain, and Mary ultimately recorded three conversations between defendant and Mary. The conversations included the following excerpts:
F [Mary]: . . . I am having a lot of problems right now.
. . . .
. . . .
. . . .
On 17 March 2003, defendant was indicted for one count each of statutory rape, statutory sex offense, incest, and indecent liberties with a child. A jury convicted defendant of each charge. At sentencing, the trial court found no aggravating factors, but found several factors in mitigation, including that defendant had been honorably discharged from the military, supported his family, had a support system in the community, and had a positive employment history. Based on these findings, the trial court entered a mitigated range sentence of 150 to 189 months imprisonment for statutory rape, followed by a consecutive mitigated sentence of 159 to 180 months imprisonment for the remaining consolidated convictions. Defendant timely appealed to this Court.
Defendant first argues that the trial court erred by denying his motion for a bill of particulars providing the exact dates and times of the alleged offenses. "The granting or denial of a motion for a bill of particulars is a matter soundly within the discretion of the trial court and is not subject to review except in cases of palpable and gross abuse of discretion." State v. Garcia, 358 N.C. 382, 390, 597 S.E.2d 724, 733 (2004), cert. denied, 543 U.S. 1156, 125 S.Ct. 1301, 161 L.Ed.2d 122 (2005).
In Garcia, our Supreme Court noted that N.C. Gen.Stat. § 15A-925(b) (2005) specifically requires that a motion for a bill of particulars "`must allege that the defendant cannot adequately prepare or conduct his defense'" without the information requested in the motion. Garcia, 358 N.C. at 390, 597 S.E.2d at 732 (quoting N.C. Gen.Stat. § 15A-925(b)). The Court then found that this criteria was not met when (1) the record did not indicate any factual information later introduced at trial that was beyond defendant's knowledge and necessary to enable defendant to adequately prepare and conduct his defense, and (2) the State had provided open-file discovery. Id., 597 S.E.2d at 733. See also State v. Williams, 355 N.C. 501, 542, 565 S.E.2d 609, 633 (2002) (), cert. denied, ...
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