State v. Thompson

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1198
NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Alamance County
No. 11 CRS 56118
JONATHAN DONALD THOMPSON

Appeal by Defendant from judgment entered 26 April 2013 by

Judge James E. Hardin, Jr. in Superior Court, Alamance County.

Heard in the Court of Appeals 4 March 2014.

Attorney General Roy Cooper, by Special Deputy Attorney
General Jennie Wilhelm Hauser, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel Shatz, for Defendant.

McGEE, Judge.

Jonathan Donald Thompson (“Defendant”) was convicted on 26

April 2013 of first-degree sex offense with a child and taking

indecent liberties with a child. The State’s evidence tended to

show that, on the evening of 6 September 2011 and into the early

morning of 7 September 2011, Defendant was helping to paint the

interior of his father’s house in preparation for his father’s
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return from the hospital. Other people were helping to paint

the house that evening, including a woman with a four-year-old

daughter (“the child”). As Defendant and others painted the

house, the child was asleep on blankets spread out on a hallway

floor. Defendant was drinking beer and also took someone’s

prescription Klonopin without permission. Defendant and a

friend (“the friend”) continued to paint after the others had

stopped. The friend testified Defendant left the room they were

painting four or five times during the night, for about ten to

fifteen minutes each time. One of the times Defendant left the

room, the friend saw Defendant kneeling beside the child, facing

the child.

The following morning, the child screamed from the

bathroom. The child indicated that urinating was painful. At

first, the child’s mother assumed the pain was the result of a

medical condition the child had that affected the child’s

vagina, and which could be exacerbated if the child did not

maintain proper hygiene. The mother drew a bath for the child,

but the child stated that she did not need a bath because

Defendant was responsible for the pain. The child stated that

Defendant had inserted his finger into her vagina.

The child’s aunt, who was at the house, told the child’s

mother to take the child to be examined by a doctor. The child
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was taken to Crossroads, a child advocacy center in Alamance

County that provides medical, psychological, and other advocacy

services. The child was then taken to UNC Hospital where a nurse

attempted to collect evidence for a rape kit. Because the child

was so upset, no internal genital swab was collected from the

child. However, a swab was collected from the child’s exterior

vaginal region, in the hope of collecting skin cells transferred

from the perpetrator. Though the swab sample was sent to the

State Bureau of Investigation (“SBI”), it was ultimately

returned without testing because the SBI did not have the proper

facilities to collect DNA samples from any transferred skin

cells. Visual examination of the child’s genitals indicated

redness and abrasions that were consistent with digital

penetration.

The child returned to Crossroads on 15 September 2011,

where Dr. Adrea Theodore (“Dr. Theodore”), who worked at

Crossroads, interviewed and examined her. Dr. Theodore

testified the child indicated Defendant had inserted his finger

in her vagina six times, and the child said she could clearly

recognize Defendant. The child said she could see paint on

Defendant’s fingers, and that Defendant had told her not to tell

anyone. One of Defendant’s sisters testified that when she

spoke with Defendant on the evening of 7 September 2011,
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Defendant cried and said he could not remember doing anything to

the child, and that he didn’t think he could do such a thing.

The child’s aunt testified the child had become “a totally

different child” since the incident, and had become very shy

when previously she had been outgoing.

Defendant was arrested and charged with first-degree sex

offense with a child and taking indecent liberties with a child.

Defendant was tried by a jury, and found guilty of both charges.

Defendant appeals.

I.

In his first argument, Defendant contends the trial court

committed plain error by not intervening ex mero motu to exclude

testimony of one of the State’s expert witnesses. We disagree.

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.”
[See] Walker, 316 N.C. at 39, 340 S.E.2d at
83 ([the defendant must show] “that absent
the error the jury probably would have
reached a different verdict”). 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[.]”
 -5-
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations omitted).

Dr. Theodore testified, without objection, as an expert in

pediatrics. Under cross-examination by Defendant’s attorney,

Dr. Theodore testified that Crossroads usually held a weekly

“meeting where members of the Burlington Police and members of

the Sheriff’s Department, folks from DSS, people from the

Crossroads staff, and people from the DA's Office attend” and

“collaborate about the pending sexual assault cases in the

county.” Defendant’s attorney then asked Dr. Theodore: “In the

cases where you have given an opinion, each time, your opinion

has been that what you saw was consistent with some form of

sexual abuse. Is that correct?” Dr. Theodore responded that

was true for every case that had gone to trial. On re-direct,

the State asked: “Doctor Theodore, has the State ever prosecuted

a sex offense case in which you formed an opinion that there

wasn't sexual abuse?” Dr. Theodore responded that she was not

aware of any such instance.

It is this last portion of testimony to which Defendant now

objects. It is clear that on cross-examination, Defendant was

attempting to attack Dr. Theodore’s credibility by showing a

bias in Dr. Theodore’s testimony that favored the State. Though

presumably attempting to rehabilitate the witness by its re-
 -6-
direct, the State essentially asked Dr. Theodore the same

question that had been posed by Defendant’s attorney moments

earlier. That question, and Dr. Theodore’s response, could be

seen as validating Defendant’s suggestion that Dr. Theodore was

biased in favor of the State and, therefore, was a less credible

witness.

It is not clear to us that Dr. Theodore’s testimony, even

assuming arguendo it was improper, was more helpful to the State

than to Defendant. Defendant fails in his burden of proving

“‘that absent the error the jury probably would have reached a

different verdict.’” Lawrence, 365 N.C. at 518, 723 S.E.2d at

334 (citation omitted). This argument is without merit.

II.

In Defendant’s second argument, he contends the trial court

erred in failing to intervene ex mero motu to stop improper

closing arguments by the State. We disagree.

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. In other words, the
reviewing court must determine whether the
argument in question strayed far enough from
the parameters of propriety that the trial
court, in order to protect the rights of the
parties and the sanctity of the proceedings,
should have intervened on its own accord
and: (1) precluded other similar remarks
 -7-
from the offending attorney; and/or (2)
instructed the jury to disregard the
improper comments already made.

State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002)

(citation omitted). “When the defense fails to object to a

prosecutor's argument, ‘the remarks “must be gross indeed for

this Court to hold that the trial court abused its discretion in

not recognizing and correcting ex mero motu the comments

regarded by defendant as offensive only on appeal.”’” State v.

Cummings, 352 N.C. 600, 621, 536 S.E.2d 36, 52 (2000) (citations

omitted). “To determine the propriety of the prosecution's

argument, the Court must review the argument in context and

analyze the import of the argument within the trial context,

including the evidence and all arguments of counsel.” Id. at

621, 536 S.E.2d at 52 (citation omitted).

Defendant objects to several statements made in the State’s

closing argument. First, Defendant objects to an argument

addressing the testimony of Dr. Theodore discussed in

Defendant’s first argument. The State argued, “if Doctor

Theodore came to the State with any case, and said . . . nothing

happened in my opinion, I would argue to you, the State would

not prosecute a case like that. The State is not in the

business of prosecuting people when it doesn’t have any evidence

of it.” Defendant argues that the “clear message” of this
 -8-
argument was “that Dr. Theodore believe[d] the crime occurred,”

because “if she did not think the crime occurred, the State

would not have prosecuted [Defendant].” Dr. Theodore’s

testimony was that, in her opinion, the results of her

examination of the child were consistent with the child’s vagina

having been digitally penetrated. The State’s argument was

that, had their expert witness’ opinion been that no sexual

abuse had occurred, the State would not have continued to

prosecute the case. This is not the same as arguing that Dr.

Theodore believed abuse occurred. When the State prosecutes a

case, it is assumed the State believes it has sufficient

evidence of the defendant’s guilt to proceed. We do not find

that these remarks “were so grossly improper that the trial

court committed reversible error by failing to intervene ex mero

motu.” Jones, 355 N.C. at 133, 558 S.E.2d at 107 (citation

omitted).

Second, Defendant objects to the following argument made by

the State at closing: “[Y]ou heard in the opening statement from

defense counsel that [] [D]efendant has maintained his innocence

this whole time. But he also gave an hour and a half interview

on DVD. Well, you didn't see that interview did you. He didn't

keep his promise on that.” Defendant’s attorney gave the

following statement in his opening argument:
 -9-
[Defendant] has maintained his innocence
throughout this process. When he was
contacted by the Burlington Police and they
told him, we want to talk to you, he came
in, and he gave an interview . . . for an
hour and a half, subjected to all their
questions. They recorded this interview,
and they put it on DVD.

While we do not condone the depiction of the defense as not

having kept a promise, State v. Anderson, 200 N.C. App. 216,

224, 684 S.E.2d 450, 456 (2009), Defendant’s attorney did

discuss the DVD interview in his opening statement, which could

reasonably be construed as an indication that Defendant was

planning to introduce Defendant’s recorded statement in support

of his assertion that he had maintained his innocence from the

beginning.

When defendant forecasts evidence in the
opening statement, the State is permitted to
comment upon the lack of evidence supporting
such a forecast in closing argument. “Since
the evidence did not support the facts
contained in defendant's opening statement,
it was not improper for the district
attorney to highlight the absence of
evidence.”

Id. at 224, 684 S.E.2d at 456 (citation omitted). Defendant

argues that the State was improperly making an argument that it

knew to be false – that Defendant had not, in fact, maintained

his innocence from the beginning. However, the DVD in question

was never made part of the record, so there is no way for this

Court to know what statements Defendant made in the recorded
 -10-
interview. The challenged statement does not rise to the level

of gross impropriety.

Finally, Defendant argues that the State, in its closing

argument, improperly stated Defendant never requested additional

testing of the DNA evidence. Specifically, Defendant objects to

the italicized portion of the following statements:

Everything the State gets in its file by
law, we have to turn over to the defense, to
the defendant. They have a right to see
everything we have. No surprises in
criminal law. You don't pull a rabbit out
of the hat on somebody. They know what we
have from the very beginning. They know,
they did know, the defendant knew that swabs
were taken in this case, and that they were
sitting at the BPD or the SBI or somewhere,
and there had been no results in this case.

Listen to this, according to 15A-903,
Subsection (d): The defendant shall have the
right to inspect and copy or photograph any
materials contained therein, talking about
the discovery, and under appropriate
safeguards to inspect, examine and test any
physical evidence or sample contained
therein.

If it was so important to the defense side,
you think they may have had it tested?
Because they didn't. I asked Jody West if
the State or the defense counsel recommend
additional testing, and he said not that he
was aware of it, and that's 'cause they
didn't. (Emphasis added).

“A prosecutor may argue to the jury the defendant's failure

to produce exculpatory evidence or evidence which contradicts
 -11-
the State's case.” State v. Hester, 343 N.C. 266, 272, 470

S.E.2d 25, 29 (1996) (citation omitted).

However, Defendant contends the State’s comments were

improper because the State knew Defendant had requested DNA

testing. The State obtained a vaginal swab taken from the child

the day following the alleged assault. Special Agent Jody West

(“Agent West”) of the SBI, testified he obtained the swab, but

returned it to the State after determining it was highly

unlikely any DNA not belonging to the child would be recovered

from the sample. This was because the amount of DNA left behind

as a result of digital penetration of a vagina was too small to

be detected by the procedures currently available to the SBI.

Agent West testified that another procedure available to some

local private testing facilities might have been able to detect

foreign DNA from the sample if foreign DNA was present.

Ultimately, no DNA testing was done on the sample.

At a pre-trial hearing, Defendant argued the “late

disclosure of the DNA evidence specifically and the information

that they were not going to test it is, it's prejudicial to the,

to my client, considering the short timeframe.” The following

colloquy then occurred:

THE COURT: So if the State had DNA evidence,
what would you be asking me to do?

MR. CONNOLLY [Defendant’s attorney]: Your
 -12-
Honor, I would ask Your Honor to allow the
defendant to seek his own test of the DNA
material.

THE COURT: And if the State doesn't have DNA
evidence, what are you asking me to do?

. . . .

MR. CONNOLLY: Well, Your Honor, I believe
that having someone from the SBI come in and
testify about, about DNA, without ever
having done a test on it, could be
prejudicial and could unnecessarily
influence the jury. I would ask you to
exclude that expert witness.

There is no record evidence that Defendant ever asked for

DNA testing to be done on the sample, or that Defendant

recommended that the State do DNA testing on the sample. At the

motions hearing, Defendant suggested DNA evidence could be

exculpatory, and said he would have requested to submit the

sample for his own testing “if the State had DNA evidence.”

However, the State did not have the swab tested for DNA

evidence. Defendant’s statement was that, in the absence of any

State’s evidence from DNA testing, Defendant would request that

the State not be allowed to call an expert witness to testify

about DNA evidence. The record discloses no instance where

Defendant requested DNA testing.

Defendant fails to show that any of the State’s closing

arguments were so grossly improper that the trial court erred by
 -13-
failing to intervene ex mero motu. This argument is without

merit.

III.

In Defendant’s third argument, he contends the trial court

erred in finding that Defendant had been convicted of an

aggravated offense and in ordering lifetime sex offender

registration and satellite-based monitoring. We agree.

We first note that Defendant failed to file a proper notice

of appeal following the hearing to determine issues surrounding

sex offender registration and satellite-based monitoring.

Defendant filed a petition for writ of certiorari on 16 December

2013, requesting that this Court address Defendant’s third

argument despite the lack of a proper notice of appeal. We

grant Defendant’s petition for writ of certiorari, and address

the merits of his argument.

Defendant was convicted of first-degree sexual offense with

a child, N.C. Gen. Stat. § 14-27.4(a)(1), and taking indecent

liberties with a child, N.C. Gen. Stat. § 14-202.1. As the

State points out in its brief, neither of these convictions

constitutes an “aggravated offense” as is required for ordering

lifetime sex offender registration and lifetime satellite-based

monitoring. State v. Santos, 210 N.C. App. 448, 454, 708 S.E.2d

208, 213 (2011); State v. Davison, 201 N.C. App. 354, 361-64,
 -14-
689 S.E.2d 510, 515-17 (2009). The trial court erred by

ordering lifetime sex offender registration and lifetime

satellite-based monitoring. In the present case, as in Santos

because the trial court made no
determination as to the other statutory
factors that might compel defendant's
enrollment in satellite-based monitoring [or
sex offender registration] for life, we
remand for consideration of defendant's
eligibility for satellite-based monitoring
pursuant to any of the other categories
described in N.C.G.S. § 14–208.40A[,] [and
sex offender registration pursuant to
N.C.G.S. § 14-208.6A].

Santos, 210 N.C. App. at 455, 708 S.E.2d at 213.

No error in part; reversed and remanded in part.

Judges STEELMAN and ERVIN concur.

Report per Rule 30(e).