State v. Worley, 110519 NCCA, COA18-1162
|Opinion Judge:||ZACHARY, Judge.|
|Party Name:||STATE OF NORTH CAROLINA v. DALLAS JAY WORLEY|
|Attorney:||Attorney General Joshua H. Stein, by Assistant Attorney General Damie Adegbuyi Sesay, for the State. Mark Montgomery for defendant-appellant.|
|Judge Panel:||Judges BRYANT and TYSON concur.|
|Case Date:||November 05, 2019|
|Court:||Court of Appeals of North Carolina|
Heard in the Court of Appeals 22 May 2019.
Appeal by defendant from judgment entered 23 March 2018 by Judge Karen Eady-Williams in Cleveland County Nos. 16 CRS 50448-49, 50453 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney General Damie Adegbuyi Sesay, for the State.
Mark Montgomery for defendant-appellant.
Defendant Dallas Jay Worley appeals from a judgment entered upon a jury's verdicts finding him guilty of two counts of statutory sex offense with a child by an adult, and one count of first-degree kidnapping. Defendant argues the trial court (1) erred by ordering him to submit to lifetime satellite-based monitoring upon his release from prison; and (2) committed plain error by permitting two expert witnesses to vouch for the child's credibility. Upon review, we hold that Defendant received a fair trial, free from prejudicial error.
The evidence presented at trial established that Defendant repeatedly sexually assaulted his seven-year-old niece, "Jane."1 On multiple occasions, Defendant subjected Jane to anal penetration and oral sex. Although Defendant threatened to kill her if she ever revealed what he was doing, Jane eventually informed her mother; she was then taken to the emergency room for examination. On 14 March 2016, Defendant was indicted for two counts of statutory sex offense with a child by an adult, and one count of first-degree kidnapping.
Defendant's case came on for trial before the Honorable Karen Eady-Williams on 19 March 2018 in Cleveland County Superior Court. The State tendered two witnesses as medical experts: Dr. Daniel Troha and Dr. Nancy Hendrix. Dr. Troha examined Jane and testified that he observed that "there was a lot of redness around the labia and in the area surrounding that and the anus," but he could not specifically identify the cause of the redness. Dr. Hendrix, who examined Jane after she had been discharged from the hospital, found that (1) there was "a little bit of redness" around her vaginal area and anus, (2) there was swelling around her anus, and (3) "the actual anus [was] opened a little bit, about 3 millimeters."
On 23 March 2018, the jury returned verdicts finding Defendant guilty of all charges. The trial court sentenced Defendant to an active term of 300 to 420 months in the custody of the North Carolina Division of Adult Correction, and ordered that he submit to satellite-based monitoring for the remainder of his life upon his release from prison. Defendant gave oral notice of appeal in open court.
I. Satellite-Based Monitoring Order
Defendant first argues that the trial court erred by ordering him to submit to lifetime satellite-based monitoring upon his release from prison, absent evidence that lifetime satellite-based monitoring was a reasonable Fourth Amendment search. Procedurally, however, Defendant's failure to comply with our Appellate Rules renders this Court unable to review this claim.
First, Defendant neglected to file written notice of appeal from the satellite-based monitoring order. A satellite-based monitoring proceeding is a civil action. State v. Dye, ___ N.C. App.___, ___, 802 S.E.2d 737, 741 (2017). "Any party . . . in a civil action . . . may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties." N.C. R. App. P. 3(a). Accordingly, failure to comply with Rule 3 leaves this Court without jurisdiction to hear the satellite-based monitoring order. Currin-Dillehay Bldg. Supply v. Frazier, 100 N.C.App. 188, 189, 394 S.E.2d 683, 683, appeal dismissed and cert. denied, 327 N.C. 633, 399 S.E.2d 326 (1990).
In addition, Defendant did not argue before the trial court that satellite-based monitoring constituted an unreasonable Fourth Amendment search. See N.C. R. App. P. 10(a)(1) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make."). "[C]onstitutional arguments not brought forth at the lower court level will be dismissed on appeal pursuant to Rule 10(a)(1)." In re Davis, ___ N.C. App.___, ___, 808 S.E.2d 369, 374 (2017).
Having failed to follow these Rules, on 21 January 2019, Defendant filed a petition for writ of certiorari requesting that this Court reach the merits of his constitutional challenge to the satellite-based monitoring order. Defendant "essentially asks this Court to take two extraordinary steps to reach the merits, first by issuing a writ of certiorari to hear his appeal, and then by invoking Rule 2 of the North Carolina Rules of Appellate Procedure to address his unpreserved constitutional argument." State v. DeJesus, ___ N.C. App.___, ___, 827 S.E.2d 744, 753 (quotation marks omitted), disc. review denied, ___ N.C. ___, 830 S.E.2d 837 (2019).2
We decline to take these extraordinary steps. Defendant fails to identify any evidence of manifest injustice warranting the invocation of Rule 2. Therefore, in our discretion, we deny Defendant's petition and dismiss his appeal of the satellite-based monitoring order.
II. Expert Vouching
Defendant argues that "the trial court committed plain error in allowing two of the State's experts to vouch for" Jane's credibility. Specifically, Defendant takes issue with the testimony of Dr. Nancy Hendrix and Ms. Michelle Sullivan. We address each of Defendant's arguments in turn.
A. Standard of Review
In criminal cases, unpreserved issues "may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C. R. App. P. 10(a)(4). Because Defendant failed to object to either of the experts' testimony vouching for Jane's credibility, Defendant is only entitled to plain error review, and may prevail only by showing "that a fundamental error occurred at trial." State v. Oliphant, 228 N.C.App. 692, 696, 747 S.E.2d 117, 121 (2013), disc...
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