Opinion
No. COA11–1435.
2012-06-5
STATE of North Carolina v. Tommy Edward MOODY.
Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling–Sendor, for Defendant-appellant.
Appeal by Defendant from judgments and commitments entered 14 April 2011 by Judge V. Bradford Long in Randolph County Superior Court. Heard in the Court of Appeals 24 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling–Sendor, for Defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Tommy Edward Moody (“Defendant”) appeals from judgments entered upon jury verdicts finding him guilty of one count of first-degree statutory rape and one count of taking indecent liberties with a child. We find no error.
I. Factual & Procedural Background
The State's evidence at trial tended to show the following. In 2005, Defendant and his mother, Darla Moody, moved in with E.S. and her parents, Janet Murray and Edward Strickland. Defendant was thirteen years old at the time and E.S. was an infant. Defendant lived there “off and on” through April 2010. Mr. Strickland made clear that Defendant was not permitted to change E.S.'s diaper while he was living with them.
We use the initials “E.S.” throughout this opinion to protect the identity of the minor victim.
Defendant did not live with E.S. between 1 February 2009 and 1 May 2009. Defendant lived with Ms. Moody, and Ms. Moody often watched E.S. at their house while E.S.'s parents were at work. Defendant was usually at the house with them.
In the spring or summer of 2009, Ms. Murray was lying in bed with E.S. when E.S. starting crying and said that Defendant had tried to make her suck his “goober.” Ms. Murray attempted to elicit more information from E.S. by asking, “Where's his goober?” and “What do you mean he made you try to suck it?” but E.S. was unable to respond because she could not stop crying. Ms. Murray brought E.S. to Ms. Moody and asked E.S. to explain to her what had happened. E.S. had difficulty articulating the incident and managed to say only that Defendant “wanted her to suck it and she didn't want to.” Ms. Moody became “very, very angry” with Defendant, and Defendant left the house for a few weeks to live with his father. Ms. Murray decided not to tell Mr. Strickland about E.S.'s allegations because “child molestation is a very heavy charge” and she was not convinced that E.S. was telling the truth. E.S.'s speech impediment made it difficult to follow her account of what had happened, and it seemed E.S. was unable to keep her story straight. Ms. Murray also did not want to believe that her daughter had been molested.
In April 2010, after Ms. Moody and Defendant had moved out of her home, Ms. Murray learned from a friend, Dusty Potts, that while at her house Mr. Potts had walked in on Defendant changing E.S.'s diaper, and that Defendant had acted “very nervous and just very suspicious.” Ms. Murray recalled E.S.'s allegations of sexual abuse and said, “Oh my God, it must be true.” Accompanied by Mr. Strickland, Ms. Murray asked E.S. to describe what Defendant had done to her. E.S. stated that Defendant “put his goober in her [vagina] and it hurt.” She said she “told him to stop and he wouldn't listen.” Mr. Strickland immediately contacted the police.
Officer Erik Snodgrass of the Asheboro Police Department responded to Mr. Strickland's call reporting the possible sexual abuse of his daughter. When Officer Snodgrass arrived at Mr. Strickland's house, Mr. Strickland was very upset about his daughter's allegations. Mr. Strickland also expressed concern for the welfare of Ms. Moody's adopted infant son, P.B., who also lived at the house with them. Officer Snodgrass obtained a statement from Mr. Strickland in which Mr. Strickland described how his sister, Ms. Moody, usually watched E.S. while he was at work, and that Defendant was usually with them. Mr. Strickland recited what E.S. had told him and Ms. Murray earlier that evening that “quote, [Defendant] told me to suck it, and when I didn't he put me in time out.” Ms. Murray was also at the house and corroborated Mr. Strickland's statement.
We use the initials P.B. to protect the identity of the minor child.
After E.S.'s initial disclosure to her parents regarding the abuse, she “wanted to talk a lot, but cried most of the time” and had nightmares. E.S. told her mother “how bad it hurt” and stated that when Defendant “put his goober in her butt, [ ] she felt like her butt was going to break off.” She also described how Defendant would masturbate in front of her, and then “make her lick the white spit off the head of his goober.” She said that “if she didn't want to, [Defendant] would grab her by the back of the head and ... make her do it.”
On 6 May 2010, Ms. Murray brought E.S. to the Asheboro Police Department and recited her daughter's allegations to Detective Deborah McKenzie. Detective McKenzie interviewed E.S. out of Ms. Murray's presence for approximately 30 minutes. E.S. told Detective McKenzie that Defendant was “mean,” that he would pull her pants down and “whoop her,” and that he would tell her “not to tell anyone.” E.S. also stated that Defendant “would tell her to get naked and take a bath,” touch her private parts, and ask her to suck his penis. She stated that Defendant did this “lots of times.”
The State's evidence also showed that E.S. was treated for urinary tract infections on several occasions between April 2009 and April 2010. The infections ceased when Defendant moved out of Ms. Murray's home in May 2010.
On 11 October 2010, a Randolph County grand jury indicted Defendant on one count of first-degree statutory rape and one count of taking indecent liberties with a child. The indictments charged Defendant with committing these offenses between 1 February 2009 and 1 May 2009. The matter came on for trial at the 11 April 2011 Criminal Session in Randolph County Superior Court, Judge V. Bradford Long presiding.
E.S. was five years old when she took the stand and testified at trial. She testified that Defendant had touched her vagina, which she referred to as her “Suzie Bug.” She stated that Defendant made her put her mouth on his penis—his “goober”—and made her move her head up and down until “white stuff” came out. She also stated that Defendant put his penis in her vagina six times, and that it was painful. She recalled Defendant whispering she was his girlfriend one time while his penis was inside her. Defendant would not stop having sex with her when she was crying and telling him to stop, and he told her not to tell anyone.
The record indicates that E.S. turned six during the trial.
Ms. Murray and Mr. Strickland corroborated E.S.'s testimony and testified to the factual account set forth above. Carolyn Murray, E .S.'s grandmother, testified that E.S. told her in the summer of 2010 that Defendant “had hurt her Suzie–Bug and made it bleed, and that she was scared ... it would happen again.” Mr. Potts also testified for the State regarding the time he encountered Defendant changing E.S.'s diaper.
Dr. Robert Robbins, a family physician, testified as a medical expert for the State. Dr. Robbins testified that Ms. Murray presented E.S. for evaluation at White Oak Family Physicians on the morning of 12 May 2010. He described in detail his physical examination of E.S., which included an examination of her external genitalia. The examination revealed that E.S.'s vaginal opening was wider than normal, and that her hymen was thickened—“cobblestone”—like—and appeared traumatized. Dr. Kendall Garing, a pediatrician, also took part in the examination and offered additional expert medical testimony at trial. Dr. Garing testified that she had treated E.S. for urinary tract infections prior to the 12 May 2010 examination, and that she was called in to assist in evaluating E.S. for signs of possible sexual abuse. She testified that the trauma to E.S.'s hymen would not have been caused by the urinary tract infections, and that, in her opinion, E.S. manifested symptoms consistent with sexual abuse.
The State also tendered Michelle Noble, a licensed therapist, as an expert in child abuse. Ms. Noble first described her initial assessment of E.S. on 17 May 2010. She testified that when she asked E.S. why she thought she was there, E.S. responded it was because “Defendant hurt my Suzie–Q and white spit came out of his goober on me.” At later sessions, E.S. stated that she wanted to kill Defendant and wanted him in jail because of what he had done to her. Ms. Noble testified that since their first meeting, E.S. consistently identified Defendant as the person who had sexually abused her. Ms. Noble testified over objection that it was her opinion that E.S. exhibited symptoms and characteristics consistent with a child who had been sexually abused. Ms. Noble cited E.S.'s nightmares, consistent disclosures, and fear of Defendant as the basis for her opinion. Defendant's motion to dismiss the charges against him at the close of the State's evidence was denied.
Defendant testified in his own defense at trial. Defendant stated that his mother's boyfriend, Robbie Lilly, initiated the sexual abuse allegations because Mr. Lilly did not want Ms. Moody to leave the state with P.B. Defendant further stated that he had a positive relationship with Ms. Murray and her children, including E.S., but that he disagreed with Ms. Murray's methods of disciplining her children. This disagreement, according to Defendant, is why Defendant temporarily left Ms. Murray's home to live with his father. On cross-examination, Defendant denied E.S.'s allegations of sexual abuse and denied that he had ever changed E.S.'s diaper.
Ms. Moody testified that she, Defendant, and Mr. Lilly moved in with Mr. Strickland and Ms. Murray in 2005 to help take care of their children. She stated that Ms. Murray never mentioned E.S.'s allegations to her, and she corroborated Defendant's testimony that he moved out of Ms. Murray's home after an argument regarding Ms. Murray's treatment of her children. Ms. Moody also corroborated Defendant's testimony that Mr. Lilly initiated the allegations against Defendant because he feared she would take their son to New Jersey. The trial court denied Defendant's motion to dismiss the charges against him at the close of all the evidence.
On 14 April 2011, the jury convicted Defendant of one count of first-degree rape of a child under N.C. Gen.Stat. § 14–27.2(a)(1) (2011) and one count of indecent liberties with a child under N.C. Gen.Stat. § 14–202.1 (2011). That same day, the trial court sentenced Defendant to consecutive sentences of 240 to 297 months for the first-degree rape conviction and 16 to 20 months for the indecent liberties conviction. Defendant entered notice of appeal in open court at the conclusion of sentencing.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen.Stat. § 7A–27(b) (2011), as Defendant appeals from a final judgment of the superior court as a matter of right.
III. Analysis
A. The Trial Court's Jurisdiction
Defendant first contends the evidence was insufficient to prove he was at least sixteen years of age at the time of the charged offenses and was therefore insufficient to establish original jurisdiction in the superior court, which served as the trial court for this matter. We disagree.
“[W]hether a trial court has subject matter jurisdiction is a question of law, which is reviewable on appeal de novo.” “Subject matter jurisdiction cannot be conferred upon a court by consent, waiver or estoppel, and failure to demur or object to the jurisdiction is immaterial.”
The district court “has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be delinquent. For purposes of determining jurisdiction, the age of the juvenile at the time of the alleged offense governs.” If, however, a juvenile commits a criminal offense on or after the juvenile's 16th birthday, the juvenile is subject to prosecution as an adult in superior court.
....
N.C. Gen.Stat. § 15A–924(a)(4) provides that an indictment must include “[a] statement or cross reference in each count indicating that the offense charged was committed on, or on or about, a designated date, or during a designated period of time.”
State v. Pettigrew, 204 N.C.App. 248, 257, 693 S.E.2d 698, 704,appeal dismissed,364 N.C. 439, 706 S.E.2d 467 (2010) (citations omitted) (alterations in original).
Here, the indictments alleged that Defendant committed the charged offenses between 1 February 2009 and 1 May 2009. Defendant concedes that he attained the age of sixteen years on 11 December 2008 and that he was sixteen years old throughout the entire time period set forth in the indictments. Under Pettigrew, these facts alone rendered Defendant subject to prosecution as an adult in superior court. Thus, the trial court's subject matter jurisdiction in the instant case was proper.
Defendant argues “the adequacy of [the] indictments to charge [Defendant] as an adult does not resolve the jurisdictional issue here: whether there was sufficient evidence to prove beyond a reasonable doubt that he was an adult when the alleged offenses were committed.” Defendant's argument is misguided and mistakenly relies upon a standard employed by our Courts in reviewing the sufficiency of the evidence to support submission of the case to the jury. This standard does not apply in our review of the trial court's subject matter jurisdiction. The trial court exercised its subject matter jurisdiction based upon Defendant's age as alleged in the indictments, not upon the State's evidence presented at trial. State v. Dellinger, 343 N.C. 93, 95, 468 S.E.2d 218, 220 (1996) (“For purposes of determining subject matter jurisdiction over a juvenile, age at the time of the alleged offense governs.”). As previously stated, Defendant does not contest the fact that he was sixteen years old at the time of the alleged offenses. While proof of Defendant's age is an essential element of the charged offenses, seeN.C. Gen.Stat. § 14–202.1(a) (2011) and N.C. Gen.Stat. § 14–27.2(a)(1) (2011), and would therefore be relevant in reviewing the trial court's denial of Defendant's motion to dismiss these charges at the close of all the evidence, Defendant does not specifically raise this argument, and it is not the function of this Court to raise the argument for him. SeeN.C. R.App. P. 28(b)(6) ( “Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned .”).
We note that Defendant has filed a reply brief pursuant to N.C. R.App. P. 28(h)(3), which permits an appellant to file a “concise rebuttal” brief within 14 days of receiving notice that his appeal will be heard without oral argument. N.C. R.App. P. 28(h)(3). However, Rule 28(h)(3) limits the scope of a reply brief “to a concise rebuttal to arguments set out in the brief of the appellee which were not addressed in the appellant's principal brief. ” N.C. R.App. P. 28(h)(3) (emphasis added). Defendant's reply brief merely expands upon the jurisdictional argument raised in his principal brief. This is impermissible. A reply brief does not serve as a “second chance” for an appellant to develop or improve upon a previously raised argument. We therefore do not consider Defendant's reply brief in the instant case as the argument raised therein is not properly before this Court. We hold the trial court's subject matter jurisdiction was proper, and Defendant's argument on this issue is overruled.
B. Ms. Noble's Testimony
Defendant contends the trial court committed plain error in admitting Ms. Noble's testimony that E.S. “may start to forget what happened to her, you know, before potentially she gets justice, but also that she would start to confuse what happened to her.” Defendant argues this statement improperly vouched for E.S.'s credibility by implying that E.S. deserved to obtain justice for what Defendant had done to her. We disagree.
Defendant did not object to the challenged testimony and we therefore review for plain error. SeeN.C. R.App. P. 10(a)(4).
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 affect[s] the fairness, integrity or public reputation of judicial proceedings[.]”
State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, 334 (2012) (citations omitted) (first alteration in original). Our review of the record reveals that admission of the testimony at issue did not amount to plain error.
The following exchange occurred during the State's direct examination of Ms. Noble:
[Prosecutor]: Well, why don't you-why don't you tell us what your concerns are with dealing with somebody that young. I mean, are there any concerns with anybody that young with any disabilities?
[Ms. Noble]: The concern that I've had with [E.S.] is that she is so young, and she has wanted to forget this. And so over a long period of time if something traumatic has happened to you, or to me, I'm going to try to forget. I'm going to minimize it, try to make it go away. For someone as young as [E.S.], when things happen to you when you're three, when you're four, you know, that's a period of time where you're so young that some of those memories fade anyway just in the process of getting older. So I was concerned with [E.S.] that, one, she may start to forget what happened to her, you know, before potentially she gets justice, but also that she would start to confuse what happened to her.
The thrust of Defendant's argument is that E.S.'s credibility was questionable, and that Ms. Noble's testimony that E.S. might forget what had happened to her before she “potentially gets justice” swayed the jury in favor of believing E.S.'s allegations and convicting Defendant. We disagree. Dr. Robbins testified that E.S.'s hymen appeared traumatized, and both Dr. Garing and Ms. Noble testified that E.S. exhibited symptoms consistent with sexual abuse. This testimony from the State's three expert witnesses strongly corroborates E.S.'s testimony that she had been sexually abused. Moreover, Ms. Noble testified that E.S. consistently identified Defendant as her abuser during their sessions, which took place over the course of approximately five months. Ms. Murray, Mr. Strickland, and Detective McKenzie all testified to similar allegations made by E.S. regarding the abuse. In light of this substantial corroboratory testimony from other witnesses, and the overwhelming medical evidence indicating that E.S. had been sexually abused, we cannot say that E.S.'s credibility-let alone the outcome of this case-hinged upon Ms. Noble's single statement about E.S. “potentially getting justice” for what Defendant had done. Because Defendant has not met his burden in proving that the jury probably would have reached a different verdict absent this testimony, he has failed to show prejudice and, accordingly, his assignment of plain error must fail. See id. at –––, 723 S.E.2d at 335 (holding that the defendant failed to demonstrate plain error where he failed to show that the jury probably would have reached a different verdict but for the alleged error).
IV. Conclusion
For the foregoing reasons, we find no error.
No error. Judges MCGEE and STEPHENS concur.
Report per Rule 30(e).