State v. Diaz

IN THE SUPREME COURT OF NORTH CAROLINA

No. 412PA17

Filed 16 August 2019

STATE OF NORTH CAROLINA
v.
RAUL PACHICANO DIAZ

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 808 S.E.2d 450 (N.C. Ct. App. 2017), granting defendant a

new trial in part and finding no error in part upon appeal from judgments entered on

18 May 2016 by Judge Jeffrey B. Foster in Superior Court, Pitt County. Heard in the

Supreme Court on 10 April 2019.

Joshua H. Stein, Attorney General, by Neil Dalton, Special Deputy Attorney
General, for the State-appellant.

Marilyn G. Ozer for defendant-appellee.

HUDSON, Justice.

This case is before us pursuant to the State’s petition in the alternative for

discretionary review1 of the Court of Appeals’ opinion which granted defendant a new

trial on his abduction of a child and statutory rape charges after determining that he

was prejudiced by the trial court’s decision to allow his affidavit of indigency to be

1The State’s notice of appeal based upon a constitutional question was dismissed ex
mero motu on 9 May 2018.
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Opinion of the Court

admitted to prove his age—an element of the charges—in violation of his

constitutional right against self-incrimination. State v. Diaz, 808 S.E.2d 450, 457

(N.C. Ct. App. 2017). Pursuant to the State’s petition in the alternative for

discretionary review, we now address whether:

. . . the Court of Appeals err[ed] when it . . . held there was
a self-incrimination clause violation where a form filled out
by the defendant was admitted into evidence to show the
defendant’s age which was an element of his crimes, when
the defendant’s age was testified to without objection by
uncontroverted testimony by the victim who lived in the
same household.

We conclude that admission of the affidavit was in error; however, because the

trial court’s error in allowing the affidavit of indigency to be admitted was harmless

beyond a reasonable doubt, we affirm the Court of Appeals’ opinion in part and

reverse it in part.2

I. Factual and Procedural Background

At trial, the State offered the only evidence. The factual background of this

case was established mainly through the testimony of the juvenile victim, Julie.3

Julie’s testimony tended to show the following.

Defendant and Julie met and began dating in the “late fall, early winter” of

2We are not reviewing the Court of Appeals’ conclusions as to: (1) the amount of
defendant’s bond on the affidavit of indigency, Diaz, 808 S.E.2d at 455–56; and (2) defendant’s
motion to dismiss the abduction of a child charge, id. at 457–58. Those issues are not before
us.
3 The Court of Appeals used this pseudonym in order to protect the identity of the

juvenile. Diaz, 808 S.E.2d at 452 n.1. We will also use that pseudonym in this opinion.

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Opinion of the Court

2014. At the time they met, Julie was a freshman in high school and defendant was

a senior at the same high school. Julie was fourteen years old, and she would not turn

fifteen until 21 July 2015. Defendant told Julie that he was eighteen, but Julie later

found out that he was nineteen. Julie testified that defendant’s birthdate was 26

November 1995. On cross-examination, Julie testified that she never saw defendant’s

driver’s license, birth certificate, or passport.

After they met, Julie and defendant began “talking.” However, at the end of

January 2015, Julie and defendant began skipping school to have sex at defendant’s

house. The two continued having sex through April of 2015. Julie testified that she

wanted to have sex with defendant all “but the first time.”

At one point in March or April of 2015, defendant asked Julie if he could record

them while they were having sex. Julie testified that defendant’s request was

unexpected and that although she initially did not object to it, she was later worried

that defendant might “use[ ] [i]t to manipulate [her].” Defendant made four separate

recordings and the trial court admitted all of them into evidence.

On 14 April 2015, Julie and defendant left North Carolina. Julie testified that

although it was defendant’s idea to leave North Carolina, she agreed to leave with

him because: (1) she thought she was in love with him; (2) he told her that she would

never see him again if she did not come with him; and (3) she was scared that he was

going to use the recordings that he took of them having sex to manipulate her to go

with him. Julie ultimately testified on cross-examination that although, in her view,

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Opinion of the Court

defendant did not force her to leave with him, she “felt forced.”

After leaving North Carolina, defendant and Julie first went to defendant’s

uncle’s house in New Mexico. Defendant’s uncle, however, “didn’t help [them].” He

told them that they needed to “go back and do things right.” He also told Julie that

she needed to call her mother. Julie did so, but she did not tell her mother where her

and defendant were.

After leaving defendant’s uncle’s house, Julie and defendant went to Broken

Arrow, Oklahoma. Julie testified that they “tried to get settled” there. They got an

apartment together, and both she and defendant found jobs. Julie testified that at

that point, the two were “[b]asically starting a new life” and “helping each other out.”

Julie testified that although she was “in favor of being out” in Oklahoma, she “kind

of wanted to go back.” Julie and defendant were away from North Carolina for about

a month in total before U.S. Marshals found them in Oklahoma. Once they were

found, U.S. Marshals arranged for Julie to return home to Greenville, N.C., on a flight

from Oklahoma to Charlotte. Julie had no interaction with defendant after she

returned home.

On 2 June 2015, Julie made a written statement to one of the U.S. Marshals

who picked her up at the airport in Charlotte. Julie testified at trial that she still

loved defendant and felt like she had to protect him at the time that she wrote the

statement. The statement tended to: (1) contradict Julie’s trial testimony that it was

defendant who came up with the idea to record them having sex back in March or

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Opinion of the Court

April; and (2) demonstrate that defendant was willing to take Julie back home if she

wanted to go back.

On 14 September 2015, defendant was indicted for: (1) one count of abduction

of a child under N.C.G.S. § 14-41; (2) three counts of statutory rape under then

N.C.G.S. § 14-27.7A(b);4 and (3) four counts of first-degree sexual exploitation of a

minor under N.C.G.S. § 14-190.16.

On 6 October 2015, defendant completed and signed an affidavit of indigency

so that a court-appointed attorney could be assigned to his case. Within the sworn

affidavit, defendant listed his date of birth as 20 November 1995.

Defendant’s trial began on 16 May 2016. At trial, Julie testified to the facts

stated herein.5 At the end of Julie’s testimony, the State offered as evidence a copy of

defendant’s affidavit of indigency. The State asserted that the affidavit was a self-

authenticating document under Rule 902 of the North Carolina Rules of Evidence.

Defendant objected to the admission of the affidavit on the grounds of “relevance, due

process, hearsay, confrontation.” The trial court ruled that the affidavit was

admissible because under “Rule 902 Rules of Evidence, it is a self-authenticating

4 Now amended and recodified as N.C.G.S. § 14-27.25. See An Act to Enact the Women
and Children’s Protection Act of 2015, S.L. 2015-62, § 1(a), 2015 N.C. Sess. Laws 135, 135–
36 (amending N.C.G.S. § 14-27.7A); An Act to Reorganize, Rename, and Renumber Various
Sexual Offenses to Make Them More Easily Distinguishable From One Another as
Recommended by the North Carolina Court of Appeals in State of North Carolina v. Slade
Weston Hicks, Jr.,” and to Make Other Technical Changes, S.L. 2015-181, § 7(a)–(b), 2015
N.C. Sess. Laws 460, 461–62 (recodifying N.C.G.S. § 14-27.7A as N.C.G.S. § 14-27.25 and
amending the recodified statute according to the changes made in “S.L. 2015-62”).
5 The State also offered testimony from Julie’s mother.

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Opinion of the Court

document.” The trial court then allowed the State to publish the affidavit to the jury.

At the close of the State’s evidence, defendant moved to dismiss all charges. The trial

court denied defendant’s motion to dismiss.

The jury found defendant guilty of the following: (1) one count of abduction of

a child, (2) three counts of statutory rape; and (3) four counts of second-degree sexual

exploitation.. At sentencing, the trial court sentenced defendant as a prior record level

I offender. The court consolidated sentencing for defendant’s abduction of a child and

statutory rape convictions and sentenced him to a term of 65 to 138 months in prison.

The trial court also ordered defendant to pay $1,054.51 in restitution as a civil

judgment. Further, the trial court sentenced defendant to consecutive, suspended

terms of 25 to 90 months in prison for each second-degree sexual exploitation

conviction. Lastly, the court ordered 36 months of supervised probation for each

second-degree sexual exploitation conviction. Defendant entered his notice of appeal

on 19 May 2016.

The Court of Appeals granted defendant a new trial on his abduction of a child

and statutory rape charges. Diaz, 808 S.E.2d at 452, 457–58. In so doing, the court

reached two conclusions that are pertinent here. First, the Court of Appeals

concluded that “the trial court erred in admitting the affidavit of indigency, which

showed Defendant’s age—an element in the abduction of a child charge and the

statutory rape charges—over Defendant’s objection. The State cannot violate

Defendant’s right against self-incrimination to prove an element of charges against

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Defendant.” Id. at 456. Specifically, the Court of Appeals reasoned that “Defendant

cannot be required to complete an affidavit of indigency to receive his right to counsel,

and the State then use the affidavit against Defendant, violating his constitutional

right against self-incrimination.” Id. As supporting authority, the Court of Appeals

relied on our decision in State v. White, where we stated that “[a] defendant cannot

be required to surrender one constitutional right in order to assert another.” Id.

(bracket in original) (citation omitted) (quoting State v. White, 340 N.C. 264, 274, 457

S.E.2d 841, 847 (1995); see also Simmons v. United States, 390 U.S. 377, 394, 88 S.

Ct. 967, 976, 19 L. Ed. 2d 1247, 1259 (1968).

Second, the Court of Appeals concluded that the trial court’s constitutional

error in admitting the affidavit of indigency was not harmless beyond a reasonable

doubt under N.C.G.S. § 15A-1443(b) because:

Julie's testimony about Defendant’s date of birth was
incorrect. Julie testified Defendant was born on 26
November 1995, but the affidavit reflects that Defendant
was born on 20 November 1995. Additionally, as evinced
through cross-examination, Julie did not testify regarding
a basis for her knowledge. Julie had never seen an official
document showing Defendant's correct date of birth or age.

Diaz, 808 S.E.2d at 457.

We allowed the State’s petition in the alternative for discretionary review on 9

May 2018 and now review whether the Court of Appeals erred in concluding that: (1)

the trial court erred when it admitted defendant’s affidavit of indigency into evidence,

id. at 456; and (2) the trial court’s error in admitting the affidavit of indigency was

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Opinion of the Court

not harmless beyond a reasonable doubt, id. at 457.

II. Analysis

Because we conclude that the trial court’s error in admitting the affidavit of

indigency was harmless beyond a reasonable doubt, we affirm the decision of the

Court of Appeals in part and reverse it in part.

“It is well settled that de novo review is ordinarily appropriate in cases where

constitutional rights are implicated.” Piedmont Triad Regional Water Auth. v.

Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (citing State v.

Rogers, 352 N.C. 119, 124, 529 S.E.2d 671, 674–75 (2000); Ornelas v. United States,

517 U.S. 690, 696–97, 116 S. Ct. 1657, 1661–62, 134 L. Ed. 2d 911, 918–19 (1996));

see also State v. Bowditch, 364 N.C. 335, 340, 700 S.E.2d 1, 5 (2010) (“An appellate

court reviews conclusions of law pertaining to a constitutional matter de novo.” (citing

State v. Williams, 362 N.C. 628, 632, 669 S.E. 2d 290, 294 (2008))).

A. Whether the Court of Appeals erred in concluding that the trial

court committed constitutional error when it admitted defendant’s

affidavit of indigency into evidence.

Under the Sixth Amendment to the United States Constitution, an indigent

defendant has a right to the assistance of counsel, and this right has been extended

to indigent defendants in state courts by the Fourteenth Amendment. Gideon v.

Wainwright, 372 U.S. 335, 342–45, 83 S. Ct. 792, 795–97, 9 L. Ed. 2d 799, 804–806

(1963).

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Opinion of the Court

Under the Fifth Amendment to the United States Constitution,6 individuals

“shall [not] be compelled in any criminal case to be witness[es] against [themselves].”

Pennsylvania v. Muniz, 496 U.S. 582, 588, 110 S. Ct. 2638, 2643, 110 L. Ed. 2d. 528,

543 (1990) (quoting U.S. Const. amend. V) . Further, although the privilege against

self-incrimination “does not protect a suspect from being compelled by the State to

produce ‘real or physical evidence,’ ” Id. at 589, 110 S. Ct. at 2643, 110 L. Ed. 2d. at

543 (quoting Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 1832, 16 L.

Ed. 2d. 908, 916 (1966)), it does protect a suspect “from being compelled to testify

against [one]self, or otherwise provide the State with evidence of a testimonial or

communicative nature,” id. at 589, 110 S. Ct. at 2643, 110 L. Ed. 2d. at 543–44

(quoting Schmerber, 384 U.S. at 761, 86 S. Ct. at 1830, 16 L. Ed. 2d. at 914). In order

for a communication to be testimonial within the meaning of the Fifth Amendment,

it “must itself, explicitly or implicitly, relate a factual assertion or disclose

information. Only then is a person compelled to be a ‘witness’ against [one]self.” Id.

at 589, 110 S. Ct. at 2643, 110 L. Ed. 2d. at 544 (quoting Doe v. United States, 487

U.S. 201, 210, 108 S. Ct. 2341, 2347, 101 L.Ed.2d 184, 197 (1988)). “ ‘[T]he vast

majority of verbal statements thus will be testimonial’ because ‘[t]here are very few

instances in which a verbal statement, either oral or written, will not convey

6 The Fifth Amendment is applicable to the States through the Fourteenth
Amendment under Malloy v. Hogan, 378 U.S. 1, 3, 84 S. Ct. 1489, 1491, 12 L. Ed. 2d 653, 656
(1964).

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Opinion of the Court

information or assert facts.’ ” Id. at 597, 110 S. Ct. at 2648, 110 L. Ed. 2d at 549

(second alteration in original) (quoting Doe, 487 U.S. at 213, 108 S. Ct. at 2349, 101

L. Ed. 2d at 199).

In considering the “purposes of the [Fifth Amendment] privilege,” id. at 595,

110 S. Ct. at 2647, 110 L. Ed. 2d at 547–48 (footnote omitted) (citing Doe, 487 U.S. at

212–13, 108 S. Ct. at 2348–49, 101 L.Ed.2d at 198–199), the Court has concluded that

they are served when “the privilege is asserted to spare the accused from having to

reveal, directly or indirectly, [ ] knowledge of facts relating [the accused] to the offense

or from having to share [the accused’s] thoughts and beliefs with the Government.”

Id. at 595, 110 S. Ct. at 2647, 110 L. Ed. 2d. at 548 (quoting Doe, 487 U.S. at 213, 108

S. Ct. at 2349, 101 L.Ed.2d at 199). “At its core, the privilege reflects our fierce

‘unwillingness to subject those suspected of a crime to the cruel trilemma of self-

accusation, perjury or contempt.’ ” Id. at 596, 110 S. Ct. at 2647, 110 L. Ed. 2d at 548

(quoting Doe, 247 U.S. at 212, 108 S. Ct. at 2348, 101 L. Ed. 2d at 198). “Whatever

else it may include, therefore, the definition of ‘testimonial’ evidence articulated in

Doe must encompass all responses to questions that, if asked of a sworn suspect

during a criminal trial, could place the suspect in the ‘cruel trilemma.’ ” Id. at 596–

97, 110 S. Ct. at 2648, 110 L. Ed. 2d at 549. “The difficult question whether a

compelled communication is testimonial for purposes of applying the Fifth

Amendment often depends on the facts and circumstances of the particular case.”

Doe, 487 U.S. at 214–15, 108 S. Ct. at 2350, 101 L. Ed. 2d at 200 (citing Fisher v.

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Opinion of the Court

United States, 425 U.S. 391, 410, 96 S. Ct. 1569, 1581, 48 L. Ed. 2d 39, 56 (1976)).

“It is consistent with the history of and the policies underlying the Self-

Incrimination Clause to hold that the privilege may be asserted only to resist

compelled explicit or implicit disclosures of incriminating information.” Id. at 212,

108 S. Ct. at 2348, 101 L. Ed. 2d at 198. “A defendant cannot be required to surrender

one constitutional right in order to assert another.” White, 340 N.C. at 274, 457 S.E.2d

at 847 (citing Simmons, 390 U.S. at 394, 88 S. Ct. at 976, 19 L. Ed. 2d at 1259). The

United States Supreme Court’s opinion in Simmons provides an instructive

illustration of when a defendant is impermissibly compelled to testify by a

circumstance in which “one constitutional right should have to be surrendered in

order to assert another.” Simmons, 390 U.S. at 394, 88 S. Ct. at 976, 19 L. Ed. 2d. at

1259. In Simmons, the trial court allowed testimony that the defendant gave to

establish his Fourth Amendment standing during a hearing on a motion to suppress

to be used against him in the guilt phase of his trial. Id. at 389, 88 S. Ct. 973–74, 19

L. Ed. 2d. at 1256. In concluding that “these circumstances” were “intolerable,” id. at

394, 88 S. Ct. at 976, 19 L. Ed. 2d. at 1259, the Court reasoned that:

“[a] defendant is ‘compelled’ to testify in support of a
motion to suppress only in the sense that if he refrains from
testifying he will have to forgo a benefit, and testimony is
not always involuntary as a matter of law simply because
it is given to obtain a benefit. However, the assumption
which underlies this reasoning is that the defendant has a
choice: he may refuse to testify and give up the benefit.
When this assumption is applied to a situation in which the
‘benefit’ to be gained is that afforded by another provision

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Opinion of the Court

of the Bill of Rights, an undeniable tension is created.
Thus, in this case [defendant] was obliged either to give up
what he believed, with advice of counsel, to be a valid
Fourth Amendment claim or, in legal effect, to waive his
Fifth Amendment privilege against self-incrimination.”

Id. at 393–94, 88 S. Ct. at 976, 19 L. Ed. 2d. at 1259 (footnotes omitted).

Here, we affirm the Court of Appeals’ conclusion that the trial court committed

constitutional error when it admitted defendant’s affidavit of indigency into evidence.

In doing so, the trial court required defendant “to surrender one constitutional right,”

his Fifth Amendment right against compelled self-incrimination, “in order to assert

another,” his right to the assistance of counsel as an indigent defendant under the

Sixth Amendment. White, 340 N.C. at 274, 457 S.E.2d at 847 (citing Simmons, 390

U.S. at 394, 88 S. Ct. at 976, 19 L. Ed. 2d. at 1259).

Specifically, as an indigent person, defendant had a constitutional right to the

assistance of counsel in state court. Gideon, 372 U.S. at 342–45, 83 S. Ct. at 795–97,

9 L. Ed. 2d at 804–06. In order to assert that right, North Carolina law requires an

indigent person to complete an affidavit of indigency which is a sworn statement

made before a court. N.C.G.S. § 7A-451(c1) (2015) (providing that the determination

of indigency will be made “[u]pon application, supported by the defendant’s

affidavit”); id. § 7A-453(a) (providing that after the Office of Indigent Services makes

a preliminary determination as to indigency, “[t]he court shall make the final

determination”); id. § 7A-456(a) (recognizing that statements “in regard to the

question of [a defendant’s] indigency” are “made . . . under oath or affirmation.”).

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Opinion of the Court

Therefore, when defendant was completing his affidavit of indigency, he was

asserting his Sixth Amendment right to assistance of counsel.

Additionally, by completing the affidavit of indigency, defendant also

implicated his Fifth Amendment right to be free from compulsory self-incrimination.

Specifically, “on the facts and circumstances of th[is] particular case,” defendant’s

communication on his affidavit of indigency that his birthdate is “11/20/95,” is

testimonial. Doe, 487 U.S. at 214–15, 108 S. Ct. at 2350, 101 L. Ed. 2d at 200 (citing

Fisher, 425 U.S. at 410, 96 S. Ct. at 1581, 48 L. Ed. 2d at 56). First, in providing his

date of birth on the affidavit, defendant did “explicitly . . . relate a factual assertion

or disclose information.” Muniz, 496 U.S. at 589, 110 S. Ct. at 2643, 110 L. Ed. 2d. at

544 (quoting Doe, 487 U.S. at 210, 108 S. Ct. at 2347, 101 L. Ed. 2d at 197).

Second, defendant’s sworn statement, N.C.G.S. § 7A-456(a), as to his age on

his affidavit of indigency, if asked of him as “a sworn suspect during a criminal trial,

[w]ould place [him] in the ‘cruel trilemma’ ” Muniz, 496 U.S. at 597, 110 S. Ct. at

2648, 110 L. Ed. 2d at 549, of “self-accusation, perjury or contempt.’ ” Id. at 596, 110

S. Ct. at 2647, 110 L. Ed. 2d at 548 (quoting Doe, 487 U.S. at 212, 108 S. Ct. at 2348,

101 L. Ed. 2d at 198). Specifically, defendant’s charges relevant to this issue are his

charges for abduction of a child and statutory rape. The crime of abduction of a child

requires that the victim be “any minor child who is at least four years younger than

the person” abducting the victim. N.C.G.S. § 14-41(a) (2015) (emphasis added).

Further, the particular type of statutory rape that defendant was charged with

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required that “defendant engage[ ] in vaginal intercourse or a sexual act with another

person who is 13, 14, or 15 years old and the defendant is more than four but less

than six years older than the person[.]” Id. § 14-27.7A(b) (2015). Therefore, had

defendant been asked to state his date of birth by the prosecutor at trial, he would

have faced the “cruel trilemma of self-accusation, perjury or contempt.” Id. at 596,

110 S. Ct. at 2647, 110 L. Ed. 2d at 548 (quoting Doe, 247 U.S. at 212, 108 S. Ct. at

2348, 101 L. Ed. 2d at 198).

In addition to the above, defendant’s statement of his date of birth on his

affidavit of indigency was testimonial “on the facts and circumstances of th[is]

particular case,” Doe, 487 U.S. at 214–15, 108 S. Ct. at 2350, 101 L. Ed. 2d at 200

(citing Fisher, 425 U.S. at 410, 96 S. Ct. at 1581, 48 L. Ed. 2d at 56, because the

General Statutes treat an affidavit of indigency as a sworn statement—made before

a court under penalty for false statements—to establish defendant’s entitlement to

services. Specifically, the General Statutes required that defendant support his

application with a sworn affidavit. N.C.G.S. § 7A-451(c1) (“Upon application,

supported by the defendant’s affidavit . . . .”); see also id. § 7A-456(a) (recognizing that

the affidavit would be made “under oath or affirmation”). Defendant’s own affidavit

of indigency itself required that all of his statements be “Sworn/Affirmed” by him.

Further, even though the Office of Indigent Defense Services has some authority to

make a preliminary determination as to a defendant’s indigency, “[t]he court shall

make the final determination,” of a defendant’s indigency. Id. at § 7A-453(a).

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Moreover, defendant would have been subject to penalty had he made false

statements on his affidavit of indigency. See id. § 7A-456(a)–(b) (stating that making

a false statement “under oath or affirmation in regard to the question of [ ] indigency

constitutes a Class I felony,” and requiring “[a] judicial official making the

determination of indigency” to notify the applicant of the penalty); see also State v.

Denny, 361 N.C. 662, 667–68, 652 S.E.2d 212, 215 (2007) (upholding defendant’s

perjury conviction for making a false statement on his affidavit of indigency

concerning his real estate assets). Defendant’s own affidavit even states that he is

making statements concerning his indigency “[u]nder penalty of perjury.” These facts

and circumstances demonstrate that defendant’s statement of his birthdate on his

affidavit was testimonial.

That defendant’s statement was testimonial is not the end of the analysis; in

order to implicate his Fifth Amendment right, it must also have been compelled. Doe,

487 U.S. at 212, 108 S. Ct. at 2348, 101 L. Ed. 2d at 198 (“. . . the privilege may be

asserted only to resist compelled explicit or implicit disclosures of incriminating

information.” (emphasis added))). Here, like in Simmons, although defendant’s

decision to disclose his date of birth on his affidavit of indigency could be seen as

voluntary “[a]s an abstract matter,” Simmons, 390 U.S. at 393, 88 S. Ct. at 976, 19 L.

Ed. 2d at 1259, we cannot overlook the “undeniable tension [that] is created” by the

fact that defendant needed to disclose his date of birth in order to exercise his right

to the assistance of counsel, which is a “ ‘ benefit’ . . . afforded by another provision of

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the Bill of Rights,” id. at 394, 88 S. Ct. at 976, 19 L. Ed. 2d at 1259. In such an

instance, the “reasoning . . . that the defendant has a choice: he may refuse to testify

and give up the benefit,” is ultimately unpersuasive. See id. at 394, 88 S. Ct. at 976,

19 L. Ed. 2d at 1259 (emphasis added). Therefore, defendant’s statement of his

birthdate on his affidavit of indigency was a compelled, testimonial statement that

triggered his Fifth Amendment privilege against compulsory self-incrimination.

Accordingly, by allowing defendant’s affidavit of indigency to be admitted into

evidence here, the trial court committed constitutional error by “requir[ing]

[defendant] to surrender one constitutional right in order to assert another.” White,

340 N.C. at 274, 457 S.E.2d at 847 (citing Simmons, 390 U.S. at 394, 88 S. Ct. at 976,

19 L. Ed. 2d at 1259). Like in Simmons where defendant “was obliged either to give

up what he believed, with advice of counsel, to be a valid Fourth Amendment claim

or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination,”

here defendant “was obliged either to give up” his right, as an indigent, to the

assistance of counsel under the Sixth Amendment, “or, in legal effect, to waive his

Fifth Amendment privilege against self-incrimination.” Simmons, 390 U.S. at 394, 88

S. Ct. at 976, 19 L. Ed. 2d at 1259.

The State’s argument to the contrary that this case is governed by our prior

decision in State v. Banks, 322 N.C. 753, 370 S.E.2d 398 (1988), is unpersuasive. In

Banks, a police deputy was allowed to testify at trial that the defendant told the

deputy that his birthdate was “8 May 1956” as the deputy was “booking” defendant.

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322 N.C. at 758, 370 S.E.2d at 402. In that case, the defendant challenged the

deputy’s testimony on the ground that “evidence of his age was obtained in violation

of his privilege against compulsory self-incrimination.”7 Id. at 758, 370 S.E.2d at 402.

In reliance on our previous decision in State v. Ladd, we concluded that “the Miranda

requirements are inapplicable to routine questions asked during the booking process

unless such questions are designed to elicit incriminating information from a

suspect.” Id. at 760, 370 S.E.2d at 403; see also id. at 759, 370 S.E.2d at 402–403

(citing and quoting State v. Ladd, 308 N.C. 272, 286–87, 302 S.E.2d 164, 173 (1983)).

We concluded that the deputy’s questioning defendant as to his birthdate during the

booking procedure was not “designed to elicit incriminating information from”

defendant because the deputy was asking for “certain routine information” that was

“regularly obtain[ed],” including “the suspect’s name, date of birth, age, sex, race,

social security number and address.” Id. at 760, 370 S.E.2d at 403. Further, we

concluded that the Ladd exception applied because the deputy “was not investigating

any crime nor did he interrogate defendant for the purpose of eliciting incriminating

information.” Id. at 760, 370 S.E.2d at 403. As such, we ultimately concluded “that

defendant's Fifth Amendment privilege against compulsory self-incrimination was

not violated,” notwithstanding defendant’s argument that his “age [wa]s an essential

7 The defendant in Banks also challenged the admission of the deputy’s testimony
because the State failed to disclose the statement during voluntary discovery. Banks, 322
N.C. at 758, 370 S.E.2d at 402.

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element of the crimes for which he was being booked.” Id. at 760, 370 S.E.2d at 403.

Our decision in Banks is inapplicable here because Banks dealt with a wholly

separate basis for concluding that a defendant was compelled to give incriminating

testimony. Here, we are not concerned with—and we make no conclusions in regard

to—whether defendant was compelled to state his birthdate on his affidavit of

indigency because he was being interrogated while under police custody as was the

case in Miranda v. Arizona, 384 U.S. 436, 439, 86 S. Ct. 1602, 1609, 16 L. Ed. 2d 694,

704 (1966). Rather, defendant was compelled to state his birthdate on his affidavit of

indigency because doing so was necessary to obtain a “benefit . . . afforded by another

provision of the Bill of Rights.” Simmons, 390 U.S. at 394, 88 S. Ct. at 976, 19 L. Ed.

2d at 1259. Therefore, the issue of whether the Ladd exception to Miranda would

hypothetically apply here had defendant been subject to interrogation in police

custody is irrelevant. See Banks, 322 N.C. at 760, 370 S.E.2d at 403 (disagreeing with

defendant’s argument “the testimony would not be admissible under the Ladd

exception to Miranda requirements”). The compulsion that defendant encountered

here, standing alone, is “intolerable.” Simmons, 390 U.S. at 394, 88 S. Ct. at 976, 19

L. Ed. 2d at 1259.

B. Whether the Court of Appeals erred in concluding that the trial

court’s error was not harmless beyond a reasonable doubt.

In his brief, defendant argues that forcing a defendant to choose between

constitutional rights under Simmons and White constitutes reversible error.

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“A violation of the defendant’s rights under the Constitution of the United

States is prejudicial unless the appellate court finds that it was harmless beyond a

reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable

doubt, that the error was harmless.” N.C.G.S. § 15A-1443(b) (2017). A constitutional

error is not harmless beyond a reasonable doubt if “there is a reasonable possibility

that the evidence complained of might have contributed to the conviction.” State v.

Soyars, 332 N.C. 47, 58, 418 S.E.2d 480, 487 (1992) (quoting Chapman v. California,

386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710 (1967)).

Here, the Court of Appeals concluded that the error in admitting defendant’s

affidavit of indigency was not harmless beyond a reasonable doubt because “Julie’s

testimony about Defendant’s date of birth was incorrect,” and “as evinced through

cross-examination, Julie did not testify regarding a basis for her knowledge. Julie had

never seen an official document showing Defendant’s correct date of birth or age.”

Diaz, 808 S.E.2d at 457. The State now argues that the admission of defendant’s

affidavit of indigency was harmless beyond a reasonable doubt because: (1) “there is

no requirement that a person see another’s driver[’]s license, birth certificate or

passport to know the other person’s age;” (2) the victim—whose testimony as to

defendant’s age received no objection at trial—“was intimately involved with the

defendant for an extended period of time” and the jury was “highly likely” to believe

such testimony; and (3) even though there was a six-day discrepancy between

defendant’s actual birthdate and the date that the victim testified to, the discrepancy

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Opinion of the Court

was harmless because the victim’s testimony still established that defendant was

born in November 1995.

Here we conclude that there is no “reasonable possibility” that the admission

of defendant’s affidavit of indigency “might have contributed to the conviction.”

Soyars, 332 N.C. at 58, 418 S.E.2d at 487 (quoting Chapman, 386 U.S. at 24, 87 S.

Ct. at 828, 17 L. Ed. 2d at 710).

Before analyzing the evidence of defendant’s age offered at trial, we must

clarify, under North Carolina law: (1) what it means for the State to be required to

prove a defendant’s age; and (2) what evidence is competent to prove a defendant’s

age. First, “when the fact that [a defendant] was at the time in question over a certain

age is one of the essential elements to be proved by the State,” the State “must prove

only that [the defendant] was at the time of the offense charged over [that age].”

Banks, 322 N.C. at 758, 370 S.E.2d at 402 (quoting State v. Gray, 292 N.C. 270, 287,

233 S.E.2d 905, 916 (1977)). Therefore, “the exact age of the defendant is not in issue,

nor need the state prove it.” Id. at 758, 370 S.E.2d at 402 (quoting Gray, 292 N.C. at

287, 233 S.E.2d at 916). This rule, however, should not be “extend[ed] to any case,

criminal or civil, where the exact age of someone must be proved.” Id. at 758, 370

S.E.2d at 402 (emphasis in the original) (quoting Gray, 292 N.C. at 287, 233 S.E.2d

at 916).

Here, neither defendant’s charge of abducting a child nor his charge of

statutory rape required the State to prove his exact age. Specifically, with regard to

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the abduction of a child charge, the State only had to prove that defendant was at

least four years older than Julie when she was a minor. See N.C.G.S. § 14-41(a). With

regard to defendant’s statutory rape charge, the State only had to prove that

defendant was “more than four but less than six years older than” Julie when she

was “13, 14, or 15 years old.” Id. § 14-27.7A(b). As such, the State was never required

to prove defendant’s exact age. Therefore, the Court of Appeals’ reasoning that the

error in admitting defendant’s affidavit of indigency was not harmless beyond a

reasonable doubt because “Julie’s testimony about Defendant’s date of birth was

incorrect,” is a red-herring. Diaz, 808 S.E.2d at 457.

Having clarified what the State was required to prove at trial, we now turn to

the issue of what evidence is competent to establish the age of a person. The Court of

Appeals seems to have concluded that the admission of defendant’s affidavit of

indigency was not harmless beyond a reasonable doubt on account of the fact that

Julie’s testimony as to defendant’s age could not have been competent because she

never saw “an official document showing Defendant's correct date of birth or age.” See

id. at 457. The conclusion that Julie’s testimony as to defendant’s age was

incompetent unless she saw official documentation showing defendant’s date of birth

is without legal support. Specifically, under Rule 701 of the North Carolina Rules of

Evidence, a lay witness may provide testimony as to that witness’s “opinions or

inferences” which are: (1) “rationally based on the perception of the witness”; and (2)

“helpful to a clear understanding of [the witness’s] testimony or the determination of

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Opinion of the Court

a fact in issue.” N.C. R. Evid. 701. In Banks, we determined that this rule allowed a

police deputy to testify as to the defendant’s age based upon the deputy’s “ample

opportunity to observe defendant both during the booking process and while they

were together in the courtroom.” Banks, 322 N.C. at 757, 370 S.E.2d at 401. We

concluded that the deputy’s opinion testimony as to the defendant’s age comported

with the requirements of Rule 701 of the North Carolina Rules of Evidence because

it “was rationally based on his perception of defendant, and it was helpful to the jury

in determining the age requirements of the crimes charged.” Banks, 322 N.C. at 757,

370 S.E.2d at 401.

Here, there is an even stronger argument than in Banks that Julie’s testimony

“was rationally based on her perception[s]” of defendant. N.C. R. Evid. 701.

Specifically, Julie attended the same high school as defendant where, at the time, she

was a member of the freshman class, and he was a member of the senior class. They

engaged in an intimate relationship that lasted for several months, including a few

weeks during which they “basically start[ed] a new life” together in Oklahoma. As a

result, Julie had even more of an opportunity to form a rational opinion as to

defendant’s age than the deputy in Banks who only observed the defendant in that

case for the duration of the booking process and while the defendant was in the

courtroom. Banks, 322 N.C. at 757, 370 S.E.2d at 401. Further, Julie’s testimony was

helpful to “the determination of a fact in issue” here, that fact being defendant’s age.

N.C. R. Evid. 701. Therefore, the Court of Appeals’ apparent conclusion that Julie’s

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Opinion of the Court

opinion as to defendant’s age was somehow incompetent is unfounded. See Diaz, 808

S.E.2d at 457.

Having clarified that the State was not required to prove defendant’s date of

birth at trial, and that Julie’s opinion testimony was competent as to the issue of

defendant’s age, we now turn to analyzing the evidence admitted at trial as to

defendant’s age in order to determine whether the admission of his affidavit of

indigency was harmless beyond a reasonable doubt. We conclude that there is no

“reasonable possibility that [defendant’s affidavit of indigency] might have

contributed to [his] conviction[s],” Soyars, 332 N.C. at 58, 418 S.E.2d at 487 (quoting

Chapman, 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710). Specifically, although

Julie did incorrectly testify as to the day that defendant was born, she did correctly

testify that he was born in November of 1995. This evidence established that

defendant was nineteen years old at all times relevant to the abduction of a child and

statutory rape charges.8 Julie’s testimony that her birth date was 21 July 2000

established that she was fourteen years old at all times relevant to the charges

against defendant. As such, Julie’s testimony provided evidence that supported

defendant’s guilt. See N.C.G.S. § 14-41(a) (requiring that a defendant be at least four

years older than the abducted minor); id. § 14-27.7A(b) (requiring that a defendant

8 Per defendant’s indictments, the relevant date for the abduction of a child charge is
“on or about” 14 April 2015. The relevant dates for the statutory rape charges are: (1) “on or
about” 14 April 2015; (2) between 1 March 2015 and 15 March 2015; and (3) between 16
March 2015 and 31 March 2015.

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Opinion of the Court

be “more than four but less than six years older than” a victim who is either “13, 14,

or 15 years old”). Given that Julie’s testimony resulted from her intimate relationship

with defendant that lasted several months, and involved them “basically starting a

new life” together, such testimony constituted strong and essentially uncontradicted

evidence of defendant’s age, and there is no “reasonable possibility” that the jury

would have unduly relied on defendant’s affidavit of indigency to convict defendant.

Soyars, 332 N.C. at 58, 418 S.E.2d at 487 (quoting Chapman, 386 U.S. at 24, 87 S.

Ct. at 828, 17 L. Ed. 2d at 710).

Accordingly, we reverse the conclusion of the Court of Appeals that the trial

court’s error in admitting defendant’s affidavit of indigency was not harmless beyond

a reasonable doubt. Diaz, 808 S.E.2d at 457.

III. Conclusion

Because we conclude that the trial court’s constitutional error in admitting

defendant’s affidavit of indigency into evidence was harmless beyond a reasonable

doubt, we affirm in part and reverse in part the ruling of the Court of Appeals.

AFFIRMED IN PART; REVERSED IN PART.

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