IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-413
Filed: 21 November 2017
Guilford County, No. 15 CRS 72481-85
STATE OF NORTH CAROLINA
v.
DARIS LAMONT SPINKS
Appeal by defendant from judgments entered 26 May 2016 by Judge Richard
L. Doughton in Guilford County Superior Court. Heard in the Court of Appeals 4
October 2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Jennie
W. Hauser and Assistant Attorney General Michael E. Bulleri, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Andrew
DeSimone, for defendant-appellant.
TYSON, Judge.
Daris Lamont Spinks (“Defendant”) appeals from judgments entered upon jury
verdicts convicting him of two counts of statutory sexual offense, one count of
statutory rape, and two counts of indecent liberties. We find no error in Defendant’s
convictions. We dismiss Defendant’s appeal of the trial court’s order on lifetime
satellite based monitoring (“SBM”) without prejudice.
I. Factual Background
A. State’s Evidence
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Opinion of the Court
The State’s evidence tended to show the victim (“Amy”) and Defendant knew
each other through Amy’s older sister, Alexis, for a period of about five years. When
Amy’s sister had her own apartment, Amy would visit and Defendant would bring his
10-year old daughter over. Amy testified at one of these visits Defendant attempted
to pull her pants down and put his lips to her bottom to make a noise.
Amy testified Defendant and her sister had a baby daughter together. She
testified Defendant, Alexis and their baby daughter stayed at Amy’s house twice in
December 2014. Amy was 13 years old at this time. Around 1:00 a.m. on the first
night, Defendant entered Amy’s room and threated to harm her if she said anything.
Defendant pulled down her pants and touched her buttocks, stomach, and breasts.
Defendant then engaged in vaginal intercourse with Amy. Amy pushed him away.
Defendant then performed cunnilingus upon her. Amy told him to stop, but he
continued. Defendant told Amy if she told anyone, his child would be taken away,
and he would hurt Amy or have someone else hurt her.
The next time Defendant stayed at Amy’s house in December 2014, Amy set
up a computer tablet in her room to record any other incidents which may occur.
Defendant entered Amy’s room during the night and threatened to hurt her.
Defendant again engaged in vaginal intercourse with and performed cunnilingus on
Amy. He left Amy’s room when his child began to cry in another room. Amy told
Defendant the following morning that she had recorded him. Defendant repeated to
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Opinion of the Court
Amy that his child would be taken away if she told anyone. He told Amy he would
kill her.
Several days later, Defendant gave Amy a new pair of Nike shoes. Defendant
told her the shoes were provided for her to “shut up” and to delete the video. Amy
deleted the video, while in front of Defendant, and accepted the shoes.
Amy told Defendant sometime in mid-January she was going to report the
incidents. Soon thereafter, a rock was thrown through her window in the middle of
the night. Defendant came to Amy’s house the following day to look at the window.
While Defendant was in the home, Amy told him she was going to tell someone about
his assaults. Amy testified Defendant told her he was going to kill her.
A few days later, Amy told her mother that Defendant had sexually assaulted
her in December. Amy, her mother, and brother went to the police department two
days later to report the sexual assaults.
Dr. Stacy Thomas testified she had practiced as a pediatrician for over ten
years. Dr. Thomas estimated she has examined over 500 child victims of alleged
sexual abuse. Dr. Thomas was qualified as an expert witness in pediatrics, especially
the evaluation and treatment of physically and sexually abused children. She was
admitted to testify as an expert witness without Defendant’s objection.
Dr. Thomas testified she physically examined Amy on 16 March 2015. Prior
to the examination, Dr. Thomas was briefed about the contents of an interview of
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Opinion of the Court
Amy by Greensboro Police Detective Hines. Detective Hines told Dr. Thomas that
Amy had disclosed one act of cunnilingus and one act of vaginal intercourse by
Defendant. Dr. Thomas testified Amy exhibited symptoms “consistent with
depression and anxiety.” Amy’s physical examination revealed she was in good
physical health, and her external genital and anal exams were normal. During Amy’s
exam, Amy became hysterical, cried and shook.
Dr. Thomas compiled her findings into a report after completing her
examination of Amy. This report was admitted into evidence without Defendant’s
objection.
The State offered the testimony of child witness (“Katy”) over Defendant’s Rule
404(b) and Rule 403 objections. Katy testified she was six years old in 2011. Katy
testified she went to her friend’s birthday party, where Defendant and Defendant’s
daughter also attended. Katy testified the party included a sleep over. Katy testified
Defendant opened the door to the bedroom during the night where she and her friend
slept, but closed it after both girls woke up. Katy testified someone had later entered
into the room and engaged in anal intercourse with her. Katy identified Defendant
as the person who had sexually assaulted her. After the assault, Defendant told Katy
to be quiet and he would give her a dollar. Katy testified the next morning Defendant
gave her a dollar.
B. Defendant’s Evidence
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Opinion of the Court
Keisha Oats, testified Defendant was her nephew. Ms. Oats testified
Defendant, Alexis, their baby, and Alexis’ sister, Amy, visited at her home on
Christmas Eve 2014. Ms. Oats testified Defendant and the others left her home
around 1:30 am.
Defendant testified when they left Ms. Oats home on Christmas Eve, he,
Alexis, their baby and Amy went to Amy’s mother’s home, where he and Alexis had
cooked and wrapped presents. Defendant denied performing any sexual acts upon
Amy in December of 2014 and January of 2015, threatening Amy in December of 2014
and January of 2015, and going to Amy’s home on New Year’s Eve 2014 and giving
Amy a pair of shoes.
Defendant testified he found out about Amy’s allegations after the Super Bowl
in February and Detective Hines had contacted him soon thereafter. Defendant met
with Detective Hines and denied the allegations. Defendant also denied the
allegations against him by Katy. Defendant admitted he had stayed overnight at
Amy’s home on Christmas Eve and on another night around Thanksgiving of 2014.
The jury returned verdicts finding Defendant guilty of two counts of statutory
sexual offense of a person who was thirteen years old, one court of statutory rape of
a person who was thirteen years old, and two counts of indecent liberties. The trial
court sentenced him to two consecutive terms of 280 to 396 months in prison, and
ordered lifetime sex offender registration and SBM. Defendant appeals.
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Opinion of the Court
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2015)
and N.C. Gen. Stat. § 15A-1444 (2015).
III. Issues
Defendant asserts three issues on appeal: (1) testimony from Katy concerning
a previous alleged assault was improperly admitted under Rule 404(b) and unfairly
prejudicial to him under Rule 403; (2) the trial court committed plain error by
admitting Dr. Thomas’ expert diagnosis and opinions, and he received ineffective
assistance of counsel on this matter; and (3) the trial court erred by ordering
Defendant to a lifetime registration on the sexual offender registry and SBM.
IV. Katy’s Testimony
Defendant contends the trial court erred in admitting testimony from Katy
under Rule 404(b). He argues the alleged acts at issue were different, the children
were of significantly different ages, the circumstances surrounding the alleged
assaults were different in nature, and the circumstances following each of the alleged
acts were different.
A. Standard of Review
Our Supreme Court has held:
when analyzing rulings applying Rules 404(b) and 403, we
conduct distinct inquiries with different standards of
review. When the trial court has made findings of fact and
conclusions of law to support its 404(b) ruling. . . we look to
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Opinion of the Court
whether the evidence supports the findings and whether
the findings support the conclusions. We review de novo
the legal conclusion that the evidence is, or is not, within
the coverage of Rule 404(b). We then review the trial court’s
Rule 403 determination for abuse of discretion.
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012).
“A trial court may be reversed for an abuse of discretion only upon a showing
that its ruling was so arbitrary that it could not have been the result of a reasoned
decision.” State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985) (citation
omitted).
B. Analysis
1. Rules 401 and 402
“‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” N.C. Gen. Stat. §
8C-1, Rule 401 (2015). “All relevant evidence is admissible.” N.C. Gen. Stat. § 8C-1,
Rule 402 (2015).
2. Rule 404(b)
Our Supreme Court has held “a careful reading of Rule 404(b) clearly shows,
evidence of other offenses is admissible so long as it is relevant to any fact or issue
other than the character of the accused.” State v. Weaver, 318 N.C. 400, 403, 348
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S.E.2d 791, 793 (1986) (citing 1 Brandis on North Carolina Evidence § 91 (2d rev. ed.
1982)).
The rule lists numerous purposes for which evidence of
prior acts may be admitted, including motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake, entrapment or accident. This list is not
exclusive, and such evidence is admissible as long as it is
relevant to any fact or issue other than the defendant’s
propensity to commit the crime. In addition, this Court has
been markedly liberal in admitting evidence of similar sex
offenses by a defendant.
Beckelheimer, 366 N.C. at 130, 726 S.E.2d at 159 (internal citations and
quotation marks omitted).
North Carolina courts have interpreted Rule 404(b) as a rule of inclusion, not
exclusion. Id. at 131, 726 S.E.2d at 159. This inclusion is constrained by the
requirements of similarity and temporal proximity of the evidence of the acts. State
v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002).
Rule 404(b) is “subject to but one exception requiring the exclusion of evidence
if its only probative value is to show that the defendant has the propensity or
disposition to commit an offense of the nature of the crime charged.” State v. Lyons,
340 N.C. 646, 668, 459 S.E.2d 770, 782 (1995) (emphasis original) (citation omitted).
The record indicates the State offered Katy’s testimony to establish Defendant
had a common scheme or plan to commit assaults upon young females. The trial
court determined Katy’s testimony to be “very similar to what the allegations are in
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Opinion of the Court
this case” and “if [the State] [is] offering to show there is an existence in the mind of
the defendant, a common scheme or plan in the crime involved and the charge in this
case, I think it’s admissible.”
Defendant argues the allegations are too dissimilar to show a common scheme
or plan. Defendant relies upon State v. Gray, which found the proffered 404(b)
evidence was not “substantial evidence tending to support a reasonable finding by
the jury that the defendant committed [a] similar act.” State v. Gray, 210 N.C. App.
493, 512, 709 S.E.2d 477, 490-91 (2011) (emphasis original) (citations and quotations
omitted). In Gray, the defendant engaged in forcible anal intercourse with a young
boy at night and later sexually assaulted a young girl by inserting his finger into the
girl’s vagina during daylight hours. Id. at 511-12, 709 S.E.2d at 490. The defendant
was a guest in the home where each child victim was staying. Id. at 512, 709 S.E.2d
at 490.
This Court held the similarities in the two acts “show little more than that the
alleged perpetrator of both acts was attracted to young children, and that he used the
fact that he was a welcome guest in the house where each child was staying to find
time alone with that child in order to commit the assaults.” Id. This Court recognized
“[t]hese facts are all too common in cases involving sexual assaults on minors by an
adult.” Id.
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Opinion of the Court
The case and incidents before us are distinguishable from Gray. Amy and
Katy are of the same sex; Defendant allegedly had forcible intercourse with both of
them; and the assaults took place during the early hours of the morning. In addition
to these factors, here Defendant was a guest in the home where each child was
staying, entered their bedrooms well after midnight, and later bribed both victims for
their silences.
“Our case law is clear that near identical circumstances are not required;
rather, the incidents need only share some unusual facts that go to a purpose other
than propensity for the evidence to be admissible.” Beckelheimer, 366 N.C. at 132,
729 S.E.2d at 160 (citation and quotations omitted).
Here, Katy’s testimony tended to prove Defendant had a common scheme or
plan to have (1) intercourse; (2) with young female children who were asleep; (3) at
night; (4) while he was a guest staying overnight in a home; and (5) offered a bribe to
his victims afterwards to buy their silence. The trial court correctly concluded that
Katy’s testimony was offered to show a purpose other than simply Defendant’s
propensity to commit the crimes.
[E]ven though evidence may tend to show other crimes,
wrongs, or acts by the defendant and his propensity to
commit them, it is admissible under Rule 404(b) so long as
it also is relevant for some purpose other than to show that
defendant has the propensity for the type of conduct for
which he is being tried.
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Opinion of the Court
State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987) (emphasis original)
(citation and quotations omitted).
The purpose of the evidence was relevant to show the common scheme or plan
held by Defendant, although this evidence may also tend to show Defendant’s
propensity to commit sexual assaults. See id. (“evidence may tend to show other
crimes, wrongs, or acts by the defendant and his propensity to commit them . . . .”).
Record evidence demonstrates the trial court’s admission of the 404(b) evidence
was not arbitrary or the result of an unreasoned decision. We find no error in the
admission of Katy’s testimony under Rule 404(b).
3. Rule 403
Admissible evidence under Rule 404(b) must also meet the criteria of Rule 403.
“Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2015). Otherwise
admissible evidence, whose probative value is outweighted by the danger of unfair
prejudice, is inadmissible under this rule. State v. Scott, 331 N.C. 39, 43, 413 S.E.2d
787, 789 (1992). However, “[e]vidence which is probative of the State’s case
necessarily will have a prejudicial effect upon the defendant; the question is one of
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Opinion of the Court
degree.” State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990) (citation omitted).
It is within the trial court’s discretion whether to admit such evidence. Id.
Defendant argues the testimony of alleged anal intercourse against a much
younger child by a much older adult, inflamed the jury to compel his conviction. The
evidence showed Defendant’s common scheme or plan to have forcible intercourse
with young female victims asleep in their bedrooms, while he and his daughter were
guests staying overnight in a home and to bribe the victims afterwards for their
silence. The probative value of Katy’s testimony, although prejudicial, did not
substantially outweigh the danger of unfair prejudice. Defendant has failed to show
the trial court abused its discretion in admitting Katy’s Rule 404(b) testimony under
Rule 403.
V. Dr. Thomas’ Testimony
Defendant next argues the trial court committed plain error by admitting (1)
Dr. Thomas’ assessment of “Child sexual abuse” and (2) her expert opinions which
impermissibly bolstered and vouched for Amy’s credibility. Defendant acknowledges
he did not preserve these errors by objection at trial. Defendant also argues that
because of this plain error, he received ineffective assistance of counsel.
A. Standard of Review
Unpreserved errors in criminal cases are reviewed only for plain error. N.C.R.
App. P. 10(a)(4); State v. Black, 308 N.C.736, 739-41, 303 S.E.2d 804, 805-07 (1983).
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Opinion of the Court
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.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and
quotation marks omitted).
Defendant must show an error occurred and that the error was “fundamental”
such that the jury “probably would have returned a different verdict[,]” to receive a
new trial. Id. at 519, 723 S.E.2d at 335.
B. Analysis
1. “Child Sexual Abuse”
Our Rules of Evidence prohibit an expert witness from commenting on the
credibility of another witness. State v. Wise, 326 N.C. 421, 426, 390 S.E.2d 142, 145,
cert. denied, 498 U.S. 853, 112 L. Ed. 2d 113 (1990). “[A]n expert may not testify that
sexual abuse has occurred without physical evidence supporting her opinion.” State
v. Towe, 366 N.C. 56, 60, 732 S.E.2d 564, 567 (2012) (citation and quotation marks
omitted). “However, if a proper foundation has been laid, an expert may testify about
the characteristics of sexually abused children and whether an alleged victim exhibits
such characteristics.” Id. at 62, 732 S.E.2d at 567-68 (citation and quotation omitted).
Defendant asserts his case is controlled by Towe. The expert in Towe was the
director of the child sexual abuse team at the local hospital. Id. at 63, 732 S.E.2d at
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Opinion of the Court
569. The jury heard she was a published author in the field of sexual exploitation of
children and had frequently been qualified as an expert in pediatrics and child sexual
abuse in previous cases. Id. at 63-64, 732 S.E.2d at 569.
The expert in Towe testified that between 70-75% of children who have been
sexually abused have no abnormal physical findings, and she would place the victim
in that category. Id. at 60, 732 S.E.2d at 566. The Supreme Court found this
testimony to be improper and qualified as plain error. Id. at 64, 732 S.E.2d at 568.
Dr. Thomas testified to general characteristics of abused children, but did not
offer an opinion that Amy had been sexually abused, or that Amy fell into the category
of children who have been sexually abused, but who showed no physical symptoms of
such abuse. The report published to the jury includes a statement “Chief Concern:
Possible child sexual abuse.” The controverted statement in Dr. Thomas’
examination report of Amy is a paragraph titled “ASSESSMENT AND
RECOMMENDATIONS,” where the paragraph begins with “Child sexual abuse by
[Amy’s] disclosure.”
While the jury has the duty to weigh the credibility of the expert’s testimony,
the expert’s opinion tendered in Towe left little room for the jury to find the victim
incredible. The proffered testimony by the expert in Towe impermissibly bolstered
the credibility of the child victim. Towe, 366 N.C. at 63, 732 S.E.2d at 568. Dr.
Thomas’ testimony was not conclusory and left the ultimate issue to the jury to
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Opinion of the Court
determine whether the facts and circumstances of the case were explainable by the
possibility presented by Dr. Thomas.
Dr. Thomas did not offer an opinion that Amy had been sexually abused. The
phrase in her report merely introduces the paragraph of the report dealing with
Amy’s disclosures. Dr. Thomas’ testimony did not impermissibly bolster or vouch for
Amy’s veracity. See id. Defendant’s argument to the contrary is overruled.
2. “Consistent,” “Compelling” and “Concerning”
Defendant argues Dr. Thomas’ statements in her written report published to
the jury that Amy’s disclosures have been “consistent and compelling” and
subsequently that she “agree[s] with law enforcement in this compelling and
concerning case” served to impermissibly bolster Amy’s credibility.
Defendant argues State v. Aguallo, State v. O’Connor and State v. Frady
require a new trial in this case. In Aguallo, the expert testified she thought the child
victim “was believable.” State v. Aguallo, 318 N.C. 590, 599, 350 S.E.2d 76, 81 (1986).
The Supreme Court held this was an impermissible expert opinion as to the
credibility of the victim. Id. at 599, 350 S.E.2d at 81. The Court in Aguallo found the
error to be prejudicial and allowed a new trial where the State’s evidence of the
defendant’s guilt was “not overwhelming.” Id., 350 S.E.2d at 82.
In O’Connor, the expert testified she had found no physical indications of
sexual assault. State v. O’Connor, 150 N.C. App. 710, 711, 564 S.E.2d 296, 297, disc.
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Opinion of the Court
review denied, 356 N.C. 173, 567 S.E.2d 144 (2002). She stated the victim had told
her he had been sexually assaulted on three occasions. Id. The expert’s written report
of her findings and conclusions was admitted into evidence without objection. Id. The
report contained the statement, “It is my impression that [J.M.’s] disclosure was
credible.” Id. This Court held it was plain error to admit into evidence that portion
of the report. Id. at 712, 564 S.E. 2d at 297.
In Frady, the expert neither examined nor interviewed the victim. State v.
Frady, 228 N.C. App. 682, 684, 747 S.E.2d 164, 166 (2013). The trial court allowed
the expert witness to testify that the victim’s “disclosure [was] consistent with sexual
abuse.” Id. This Court held the expert’s statement was “essentially” an expression of
her opinion that the victim was credible. Id. at 686, 747 S.E.2d at 167. The Court
held this admission to be a prejudicial error where the only evidence of the
defendant’s guilt was the victim’s testimony and the State offered the expert
testimony as rebuttal, being the last testimony the jury would hear before retiring to
deliberate. Id.
Our appellate courts have repeatedly held that it is not improper for an expert
to testify to a victim’s examination being “consistent” with the victim’s statements of
abuse. State v. Kennedy, 320 N.C. 20, 31-32, 357 S.E.2d 359, 366 (1987) (no error to
admit physician’s opinion that victim’s symptoms were consistent with sexual abuse);
State v. Wise, 326 N.C. 421, 427, 390 S.E.2d 142, 146 (1990) (no error where expert
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Opinion of the Court
merely described her personal observations concerning the emotions of the victim
during the counseling sessions); State v. Marine, 135 N.C. App. 279, 281, 520 S.E.2d
65, 66 (1999) (no error where expert testified that one of the indicators that she used
to conclude victim suffered from post-traumatic stress syndrome was that the victim
“has experienced actual or threatened serious injury….”).
While our courts have allowed admission upon proper foundation, an expert
opinion that the victim’s symptoms or physical examination are “consistent” with the
victim’s statements of abuse, Defendant asserts Dr. Thomas’ use of the terms
“consistent and compelling” and “compelling and concerning” are tantamount to
stating Amy’s allegations are credible.
Our “courts have consistently held that the testimony of an expert to the effect
that a prosecuting witness is believable, credible, or telling the truth is inadmissible
evidence.” State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988).
At oral argument, Defendant argued the problematic word here is
“compelling.” Dr. Thomas’ report contains the term “compelling” twice. In the first
use, Dr. Thomas’ written statement is “Her disclosures have been consistent and
compelling.” Merriam Webster offers three definitions of compelling as “forceful,”
“demanding attention” or “convincing.” Compelling Definition, MERRIAM-
WEBSTER. COM, https://www.merriam-webster.com/dictionary/compelling (last
visited Oct. 26, 2017). The term “compelling” as used here could be construed as
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impermissible opinion testimony regarding Amy’s credibility. Bailey, 89 N.C. App. at
219, 365 S.E.2d at 655.
The second use, the expert witness’ agreement with “law enforcement[’s]
involvement in this compelling and concerning case” is not as troubling. The context
of this statement reveals Dr. Thomas used the terms “compelling” and “concerning”
to connote forceful, demanding attention, gut-wrenching, troubling, worrying or any
of the many other adjectives that could describe the sex offenses.
Presuming arguendo, the court’s admission of the statements in the doctor’s
report was error, we must determine whether it rises to the level of plain error. “A
plain error is one so fundamental as to amount to a miscarriage of justice or which
probably resulted in the jury reaching a different verdict than it otherwise would
have reached.” State v. Carroll, 356 N.C. 526, 539, 573 S.E.2d 899, 908 (2002). Thus
our question is whether the jury would probably have reached a different verdict if
this testimony had not been admitted. Bagley, 321 N.C. at 213, 362 S.E.2d at 251.
In State v. Hammett, 361 N.C. 92, 97, 637 S.E.2d 518, 522 (2006), our Supreme
Court held the expert witness improperly vouched for the child victim’s credibility
when the expert added “that she would reach the same conclusion based on [the child
victim’s] history alone and that the physical evidence was not a necessary basis for
her conclusions” to her previous admissible testimony that her findings were
consistent with abuse. While the Court held the admission of this part of the expert’s
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testimony was error, the Court recognized, as here, the issue had not been preserved
by the defendant and applied plain error review. Id. at 98, 637 S.E.2d 522. Under a
plain error review, the Supreme Court “believe[d] the jury would not have acquitted
defendant if the challenged statements had been excluded.” Id. at 99, 637 S.E.2d at
523.
Here, the victim testified and described in detail about the alleged assault. The
State offered witnesses, who corroborated Defendant’s access to the victim, as well as
a 404(b) witness showing Defendant’s common scheme to have intercourse with
young females. This other evidence along with Dr. Thomas’ trial testimony of Amy’s
demeanor, emotional state and behavior since the alleged incident provide sufficient
other evidence of Defendant’s guilt. Defendant has failed to show prejudice in the
trial court in the admission of Dr. Thomas’ statements and reports. The trial court’s
admission of Dr. Thomas’ statements in her report that Amy’s disclosures have been
“consistent and compelling” does not rise to the level of plain error.
3. Ineffective Assistance of Counsel (“IAC”)
Defendant asserts an alternative argument if this Court does not find plain
error in the admission of Dr. Thomas’ report. Defendant argues his counsel was
ineffective because he failed to object when the State tendered Dr. Thomas as an
expert witness or when the State introduced Dr. Thomas’ report. “When a defendant
attacks his conviction on the basis that counsel was ineffective, he must show that
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Opinion of the Court
his counsel’s conduct fell below an objective standard of reasonableness.” State v.
Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985) (citing Strickland v.
Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984)).
To meet this burden, Defendant must satisfy Strickland’s two-part test:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s error were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.
Strickland, 466 U.S. at 687, 80 L.Ed.2d at 693.
IAC claims brought on direct review are “decided on the merits when the cold
record reveals that no further investigation is required.” State v. Fair, 354 N.C. 131,
166, 557 S.E.2d 500, 525 (2001) cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
Our Supreme Court has recently held that whether defense counsel “made a
particular strategic decision remains a question of fact, and is not something which
can be hypothesized” by an appellate court on direct appeal. State v. Todd, __ N.C.
__, __, 799 S.E.2d 834, 838 (2017).
Defendant presents attorney conduct that cannot be determined by the “cold
record” alone. We dismiss Defendant’s IAC claim without prejudice.
VI. Lifetime SBM
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Opinion of the Court
Defendant petitions this Court issue our writ of certiorari to hear his appeal.
We allow Defendant’s petition to review his claim. He asserts the State failed to
establish his enrollment in SBM constituted a reasonable search under the Fourth
Amendment as required by Grady v. North Carolina, __ U.S. __, __, 191 L. Ed. 2d
459, 462-63 (2015). This Court has made it clear that “the State shall bear the burden
of proving that the [satellite-based monitoring] program is reasonable.” State v. Blue,
__ N.C. App. __, __, 783 S.E.2d 524, 527; State v. Morris, __ N.C. App. __, __, 783
S.E.2d 528, 530.
The transcript of Defendant’s SBM hearing shows:
[Prosecutor]: Your Honor, looking at the AOC-CR 615
form, Judicial Findings and Order Sex Offenders Active
Punishment, the State would contend--
THE COURT: Do you have it filled out?
[Prosecutor]: No, sir.
THE COURT: Let’s get it. You have it filled out here?
THE CLERK: No, it’s not filled out.
[Prosecutor]: The State contends that number one, that
would be a B1 sexually violent offense.
THE COURT: That’s also a rape of a child.
[Prosecutor]: No, sir, that’s a different statute. That is
under the age of 13.
THE COURT: A B1?
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STATE V. SPINKS
Opinion of the Court
[Prosecutor]: Yes, sir.
THE COURT: And two would be the defendant has not
been classified as a sexually violent predator. Number
three; the defendant is not a recidivist. Number four; the
offense of conviction is an aggravated offense and that’s as
to the statutory rape, and five; the offense did involve the
physical, mental and sexual abuse of a minor.
[Prosecutor]: Yes, sir. As to the order, we would contend
number one should be A; natural life registration because
you find one of the factors two to four was found in the
affirmative.
THE COURT: For his natural life?
[Prosecutor]: Yes, sir, and satellite based monitoring, I
believe 2B, which is because the aggravating factors were
found in the affirmative.
THE COURT: That’s correct, 2B?
[Prosecutor]: Yes, sir.
THE COURT: All right. I’m going to find that he has been
convicted of a reportable conviction under 14-208.6, he has
a sexually violent offense. Under 14-208(5), he has not been
classified as a sexually violent predator, under the
procedure set out in 14-208.20, he is not a recidivist; in
number three, it is an aggravated offense and it did involve
the physical[,] mental[,] and sexual abuse of a minor, and
the registration is going to be for his natural life upon
release from imprisonment. He is enrolled in satellite
based monitoring for his natural life unless terminated
pursuant to the statute. That’s going to be the judgment of
the Court as well.
....
[Defense counsel]: Your honor, I talked to my client if this
were to happen we are giving Notice of Appeal.
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STATE V. SPINKS
Opinion of the Court
Under our precedents, if Defendant had challenged the constitutionality of the
SBM as applied to him, we would have been required to reverse the court’s order of
SBM. See State v. Greene, __ N.C. __, __ S.E.2d __, 2017 WL 4364396, at *2 (N.C. Ct.
App. Oct. 3, 2017). However, here Defendant raised no constitutional challenge at
any point of this “hearing.” Defendant’s counsel filed no motion, objection or
argument that the SBM imposed upon Defendant was an unreasonable search.
In State v. Bishop, __ N.C. __, __ S.E.2d __, 2017 WL 4364391 (2017), the
defendant was convicted of taking indecent liberties with a child. The trial court
sentenced him to SBM for thirty years. 2017 WL 4364391 at 1. At the hearing, the
defendant did not challenge the court’s imposition of SBM on constitutional grounds.
Id. Further, the defendant did not timely file a notice of appeal. Defendant petitioned
this Court for a writ of certiorari. Before this Court, the defendant argued the petition
should issue and sought this Court to invoke Rule 2 of the North Carolina Rules of
Appellate Procedure, because his constitutional argument was otherwise waived on
appeal. Id. This Court held the defendant was “no different from other defendants
who failed to preserve their constitutional arguments in the trial court, and because
he has not argued any specific facts that demonstrate manifest injustice if we decline
to invoke Rule 2, we do not believe this case is an appropriate use of that
extraordinary step.” Id. at 2.
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STATE V. SPINKS
Opinion of the Court
As with the defendant in Bishop, Defendant cannot prevail on this issue
without invoking Rule 2, because his constitutional argument was waived. In our
discretion, we decline to invoke Rule 2 to issue a writ of certiorari to review
Defendant’s unpreserved argument on direct appeal. Defendant’s purported appeal
of his SBM is dismissed.
As with the admission of expert testimony, Defendant argues in the alternative
that his counsel rendered IAC and that the designation of SBM proceedings as civil
should not bar a determination that he received ineffective assistance of counsel on
this issue. Defendant concedes we are bound by our precedents in State v. Wagoner,
199 N.C. App. 321, 332, 683 S.E.2d 391, 400 (2009) (holding IAC claims are only
available in criminal matters and SBM is not a criminal punishment) and In re Civil
Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989) (“Where a panel of the Court of
Appeals has decided the same issue, albeit in a different case, a subsequent panel of
the same court is bound by that precedent[.]”). Defendant’s argument is dismissed.
VII. Conclusion
The trial court properly allowed Katy’s testimony of Defendant’s sexual assault
under Rules 404(b) and 403. Defendant failed to demonstrate any plain error with
respect to the admission of Dr. Thomas’ expert testimony and report. Defendant has
waived direct appellate review of any Fourth Amendment challenge to the order
requiring him to enroll in the SBM program for life.
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STATE V. SPINKS
Opinion of the Court
We find no error in the jury’s convictions or in the judgments entered thereon.
Defendant’s petition for writ of certiorari to review the trial court’s imposition of SBM
is allowed. His appeal of SBM as applied to him is dismissed without prejudice.
Defendant’s IAC claims regarding the expert testimony have been prematurely
asserted on direct appeal and are dismissed without prejudice. It is so ordered.
NO ERROR IN PART. IAC CLAIMS DISMISSED WITHOUT PREJUDICE IN
PART.
Judge HUNTER concurs.
Judge STROUD concurs with separate opinion.
- 25 -
No. COA17-413– State v. Spinks
STROUD, Judge, concurring.
I concur in the majority opinion fully on all issues except the last, as to the
SBM order. On this issue, I concur in the result only. I write separately to note my
concern regarding the trial court’s failure to consider the Grady issues arising from
the SBM order. But I will not address the substance of the issue or dissent primarily
because a hearing to consider “the reasonableness of [the] search” depends upon “the
totality of the circumstances, including the nature and purpose of the search and the
extent to which the search intrudes upon reasonable privacy expectations.” Grady v.
North Carolina, __ U.S. __, __, 191 L. Ed. 2d 459, 462, 135 S. Ct. 1368, 1371 (2015).
The reasonableness of the search and the totality of the circumstances under which
the SBM will operate will depend necessarily upon the defendant’s circumstances and
the operation of SBM at the time the monitoring will be done of the defendant.
Attempting to determine the reasonableness of satellite based monitoring which will
not take effect for nearly 50 years and possibly as long as 66 years would be an
exercise in futility.
At the time of his conviction and sentencing, defendant was almost 32 years
old. He was sentenced to two consecutive terms of imprisonment of a minimum of
280 months and a maximum of 396 months. In other words, he will be in prison for
at least 46 years, 7 months or as much as 66 years. If he is released from prison upon
completion of his minimum sentences, he will be nearly 79 years old; if he is released
after completing his maximum sentences, he will be nearly 98 years old.
STATE V. SPINKS
STROUD, J., concurring
If the trial court were to conduct a Grady hearing, it would need to consider
evidence presented about various factors, such as “the nature of the privacy interest
upon which the search . . . intrudes”; “the character of the intrusion that is complained
of” and the type of private information the search discloses; and “the nature and
immediacy of the governmental concern at issue . . ., and the efficacy of [government
action] for meeting it.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654, 658, 660,
132 L. Ed. 2d 564, 575, 577-78, 579, 115 S. Ct. 2386, 2391, 2393, 2394 (1995). One
type of evidence at this type of hearing would be information regarding the size and
intrusiveness of the monitoring device as well as how it functions to monitor the
defendant and how the device is maintained. Even if a court were to consider only
the facts relevant to the monitoring device -- ignoring whether a 98 year old man
presents the same potential threats to society as a 32 year old man -- it is simply
impossible to predict what sort of satellite-based monitoring technology will be used
in 2063, or in 2083, or anywhere in between. The SBM technology as it exists now is
irrelevant to this defendant. The changes in technology in the last 47 years have
been tremendous. The cell phone is just one example of these changes. Wireless
phones existed only in science fiction 47 years ago; cell phones were not invented until
1973. Cell phones used to be large, bulky devices that weighed several pounds. Even
just a few years ago, cell phones had one function: phone calls. Cell phones now weigh
a few ounces and have more computing and data storage capability than the largest
2
STATE V. SPINKS
STROUD, J., concurring
and most advanced computers in the world of 47 years ago. And 66 years ago, in
1951, the first commercial computer produced in the United States, the UNIVAC,
debuted. It weighed about 16,000 pounds and took up about 382 square feet of floor
space; its computing speed was glacial compared to the most basic cell phone
available today.
The United States Supreme Court has recognized in recent cases the need to
consider how modern technology actually works as part of analysis of the
reasonableness of searches. See Riley v. California, __ U.S. __, __, 189 L. Ed. 2d 430,
446-47, 134 S. Ct. 2473, 2489-90 (2014) (“One of the most notable distinguishing
features of modern cell phones is their immense storage capacity. Before cell phones,
a search of a person was limited by physical realities and tended as a general matter
to constitute only a narrow intrusion on privacy. . . . But the possible intrusion on
privacy is not physically limited in the same way when it comes to cell phones. The
current top-selling smart phone has a standard capacity of 16 gigabytes (and is
available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages
of text, thousands of pictures, or hundreds of videos. . . . . The storage capacity of cell
phones has several interrelated consequences for privacy. First, a cell phone collects
in one place many distinct types of information . . . that reveal much more in
combination than any isolated record. Second, a cell phone’s capacity allows even
just one type of information to convey far more than previously possible. . . . Third,
3
STATE V. SPINKS
STROUD, J., concurring
the data on a phone can date back to the purchase of the phone, or even earlier. . . .
Finally, there is an element of pervasiveness that characterizes cell phones but not
physical records.” (Citations omitted)). And again, the technology of SBM is just one
part of the analysis of the “totality of the circumstances” which the trial court must
undertake based on Grady.
I would encourage the General Assembly to consider addressing the absolute
futility of having trial courts conduct SBM hearings immediately upon sentencing
offenders who are to serve extremely long sentences. Holding this type of hearing so
many years before any possible release is simply a waste of time and resources for
prosecutors, defense counsel, and the trial courts. A hearing to consider SBM held
shortly before a convicted sex offender is to be released upon completion of his
sentences would allow the trial court to make a meaningful assessment of SBM based
upon technology available and the offender’s circumstances at that time.
I therefore concur with the majority opinion on all issues except the last. On
that last issue -- relating to the SBM order -- I concur only in the result.
4