State v. Jones
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NO. COA13-215 NORTH CAROLINA COURT OF APPEALS Filed: 17 December 2013 STATE OF NORTH CAROLINA v. Orange County Nos. 09 CRS 50739 40, 09 CRS 50742 43, 50748 JIMMY I. JONES, Defendant. Appeal by defendant from judgments entered 2 May 2012 by Judge R. Allen Baddour in Orange County Superior Court. Heard in the Court of Appeals 21 October 2013. Roy Cooper, Attorney General, by Jill A. Bryan, Assistant Attorney General, for the State. Mark Montgomery, for defendant appellant. MARTIN, Chief Judge. Defendant Jimmy I. Jones was charged in proper bills of indictment with one count of first-degree rape, two counts of second-degree rape, and eight counts of indecent liberties with a minor. He appeals from judgments entered upon jury verdicts finding him guilty of the first- and second-degree rape of his stepdaughter, as well as multiple counts of taking indecent liberties with his stepdaughter and with two of his nieces. find no error. We -2The evidence presented at trial tended to show that, from October 1975 through February 1981, defendant his stepdaughter and two of his nieces. sexually abused At trial, one niece testified that, beginning from the time that she was about seven years old, each time she visited the home that defendant shared with her aunt which the niece visited every weekend so that her mother and aunt could rehearse for their singing group defendant place[d] [her] in his lap and would take [her] hand and touch his genitals. She also testified that, when she was nine or ten years old, defendant began regularly entering the bedroom that she shared with her cousins in the middle of the night and fingers abuse would play with inside her vagina. continued until she [her] genitals by placing his She further testified that this was about fourteen years old and stopped visiting her aunt s house. Defendant s other niece testified that, between the ages of five and eleven years old, when she would go to visit her cousins at the home shared by her aunt and defendant, defendant would repeatedly hug her and grind[] his hips against hers, kissed her by putting his tongue in her mouth, and would bring her into one of the bedrooms, lay her prostrate on top of him, and grind[] against her hips and vagina. She further testified that, on one occasion, when she was eight or nine -3years old, defendant called her into the bedroom, placed her right hand onto his exposed penis, and held it there and asked her if it felt good. Finally, defendant s stepdaughter testified that, when she was twelve years old, on a night that her mother was away from the house, defendant took her from her own bedroom and brought her into underwear, her mother s and had bedroom, vaginal took off intercourse her with nightgown her. She and also testified that defendant took her to her mother s bedroom and had vaginal intercourse with her again when she was fourteen years old, and again when she was sixteen years old. About twenty-five years later, in the spring of 2008, Sergeant Tina Rimmer in the Criminal Investigative Division of the Orange County Sheriff s Office received a phone call from a detective with investigation the Durham involving Police [defendant] Department and a regarding juvenile. an The detective informed her that, through his investigation, he had received information in reference to [defendant s two nieces] being victimized by [defendant], also, at a residence in Orange County, Sergeant which was Rimmer described to her located in interviewed Sergeant Rimmer s defendant s two the manner in which defendant abused them when they were minor children. jurisdiction. nieces, who had sexually One of the nieces -4also gave the sergeant a list of names of people who could [also] be potential stepdaughter. victims, Without one objection of whom from was defendant s defendant at trial, Sergeant Rimmer read into evidence the statements she took from defendant s chronicled stepdaughter their and two nieces, at the hands abuse which of statements defendant and corroborated the testimony of each accusing witness. At the close of the State s evidence, defendant moved to dismiss the charge of first-degree rape and four of the eight charged counts of taking indecent liberties with a child, which motions were denied. renew his evidence. motions The Defendant offered no evidence and did not to jury dismiss found at the defendant close guilty of of all one of the count of first-degree rape, two counts of second-degree rape, and eight counts of indecent liberties with a child. The court sentenced defendant to three concurrent life sentences and two consecutive ten-year terms of imprisonment to run at the expiration of the life sentences. Defendant appeals. _________________________ Defendant first contends the trial court committed plain error when it charged the jury on the offenses of first- and second-degree rape by repeatedly describe the complaining witness. using the We disagree. term victim to -5 Because our courts operate using the adversarial model, we treat preserved and unpreserved error differently. Preserved legal error is reviewed under the harmless error standard of review. State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012). Unpreserved error in criminal cases, on the other hand, is reviewed only for plain error, id., which is normally limited to instructional and evidentiary error. 723 S.E.2d at 333. Id. at 516, For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. was Id. at 518, 723 S.E.2d at 334. fundamental, after a examination defendant of the must entire To show that an error establish record, prejudice that, the error had a probable impact on the jury s finding that the defendant was guilty. Id. (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). Defendant concedes that the court instructed the jury on the offenses of first- and second-degree rape by using the same language as that which is set forth in the North Carolina Pattern Jury Instructions for these offenses, which use the term victim to identify the person against whom offenses are alleged to have been committed. the charged See N.C.P.I. Crim. 207.10 (2002); N.C.P.I. Crim. 207.20 (2007). Defendant also concedes that defense counsel did not object to the court s -6use of this term in its instructions to the jury at trial, and further admits that when a judge calls a person a victim, it does not mean that the judge believes the person to be a victim, nor would a juror understood [sic] this to be so. See State v. Richardson, 112 N.C. App. 58, 67, 434 S.E.2d 657, 663 (1993) ( The word victim is included in the pattern jury instructions promulgated by the North Carolina Conference of Superior Court Judges and is first-degree used rape regularly and to instruct first-degree on sexual the charges offense. ), of disc. review denied, 335 N.C. 563, 441 S.E.2d 132 (1994); see also State v. Henderson, 155 N.C. App. 719, 722, 574 S.E.2d 700, 703 ( [I]t is clear from case law that the use of the term victim in reference to prosecuting witnesses does not constitute plain error when used in instructions. ), appeal dismissed and disc. review denied, 357 N.C. 64, 579 S.E.2d 569 (2003). Nevertheless, defendant urges this Court to conclude that the trial court s use of this term in its instruction was prejudicial in accordance with our decision in State v. Walston, __ N.C. App. __, __, __, 747 S.E.2d 720, 726, 728 (2013) (concluding the trial court s use of the term victim in its instruction to the jury was prejudicial error). Walston is distinguishable from the present case. However, First, in Walston, the trial court denied defendant s request to modify -7the pattern jury instructions to use the term alleged victim in place of the term victim, and objected repeatedly to the proposed instructions, see id. at __, 747 S.E.2d at 726 27, whereas, in the present case, defendant made no such request to modify the language in the instruction and did not raise any objection to the use of this term at trial. since conflicting testimony was presented Next, in Walston, from the accusing witnesses and from defendant, who testified on his own behalf, there were disputed issues of fact as to whether the sexual offenses even occurred, see id., whereas, here, there were no such conflicts in the testimony presented. Court in Walston prejudicial concluded error, see id. that at the __, Moreover, while this trial court 747 S.E.2d at committed 728, this defendant makes no specific argument that he has suffered any prejudice as a result of the trial court s uncontested use of the term victim in its jury instructions. For these reasons, we find Walston inapplicable to the present case, and hold that the trial court did not commit plain error when it used the term victim in its instruction to the jury on the offenses of first- and second-degree rape. Finally, defendant contends the trial court erred because it allowed the prosecutor to repeatedly refer[] to the complainants as victims during his closing argument, and did -8not intervene ex mero motu to prevent the prosecutor from expressing his personal opinion concerning the guilt of the defendant or the veracity of [the] witness[es]. The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002). Under this standard, [o]nly an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken. 555 S.E.2d 557, 592 State (2001) v. Anthony, (alteration in 354 N.C. 372, original) 427, (quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002). (1996)), cert. [D]efendant must show that the prosecutor s comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair. Id. at 427 28, 555 S.E.2d at 592 (alteration in original) (quoting State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 -9(1999)). In the present case, defendant challenges the prosecutor s use of the word victim when he described the elements of the charged offenses, and when he stated that these first incidents of abuse by the [d]efendant is [sic] a pattern of abuse that continued for years in this household . . . involving multiple victims, and that the third victim who testified, . . . there s a couple of sets of charges involving her testimony and the evidence in her case. Defendant suggests, in his argument on this issue, that the prosecutor s comments in this case are analogous to comments made by the prosecutors in State v. Smith, 279 N.C. 163, 165 67, 181 S.E.2d 458, 459 61 (1971) (ordering a new trial where the prosecutor called the defendant a Liar, and told the jury: I don t care who they bring in here . . . to say to you that his character and reputation in the community in which he lives is good. I tell you it isn t worth a darn. . . . I don t believe a living word of what he says about this case. (omissions in original)), and State v. Locklear, 294 N.C. (ordering 210, a 214 15, new trial 218, 241 S.E.2d where the 65, prosecutor 68, 70 (1978) told a defense witness during cross-examination, [Y]ou are lying through your teeth and you know you are playing with a perjury count; don t you?, and concluded the exchange with the witness by saying, -10 Now, think fast, Leonard. up there. ). the remarks approach the Think up a good story while you are However, defendant has failed to establish that spoken by the level of prosecutor gross in impropriety the present illustrated remarks made by the prosecutors in Smith and Locklear. defendant has not shown that the prosecutor s by case the Because comments so infected [this] trial with unfairness that they rendered [his] conviction[s] fundamentally unfair, see Davis, 349 N.C. at 23, 506 S.E.2d at 467, we overrule this issue on appeal. No Error. Judges STEELMAN and DILLON concur.
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