State v Bell

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-40 NORTH CAROLINA COURT OF APPEALS Filed: 16 August 2011 STATE OF NORTH CAROLINA v. Forsyth County No. 09 CRS 57481 09 CRS 9616 ANTONIO LAROD BELL Appeal by defendant from judgments and order entered 13 August 2010 by Superior Court. Judge W. Douglas Albright in Forsyth County Heard in the Court of Appeals 12 May 2011. Roy Cooper, Attorney General, by Lauren Assistant Attorney General, for the State. M. Clemmons, Michael E. Casterline for defendant. THIGPEN, Judge. Defendant Antonio Bell appeals from a conviction of two counts of statutory sexual offense for sexual acts 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. We must decide whether the trial court erred by (I) allowing the prosecutor to make three improper statements during closing -2argument and (II) ordering satellite-based monitoring. prosecutor s order closing imposing Defendant enroll in lifetime We find no error in relation to the argument, lifetime to but vacate satellite-based the trial court s monitoring because Defendant was not convicted of a reportable conviction. The State s evidence tended to show that in November 2008, J.S., the minor victim, met Defendant while she and her friend were walking to another friend s house. J.S. was 14 years old at that time, and Defendant was 19 years old. Over the next few weeks, J.S. visited Defendant at his house on three occasions. During the vagina with visits, his Defendant fingers; touched Defendant J.S. s breasts performed and cunnilingus her on J.S.; J.S. performed fellatio on Defendant; and the two engaged in intercourse. On 26 October 2009, Defendant was indicted on one count of statutory rape and three counts of statutory sex offense of a 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. At trial, the jury found Defendant guilty of one count of statutory sex offense for cunnilingus offense for fellatio. and one count of statutory sex The jury found Defendant not guilty of statutory rape and not guilty of one count of statutory sexual -3offense for digital penetration. The trial court sentenced Defendant to two consecutive sentences of 100 to 129 months imprisonment and ordered him to enroll in lifetime satellitebased monitoring upon his release from prison. Defendant appeals. On appeal, Defendant argues the trial court erred by (I) allowing the prosecutor to make three improper statements during closing argument and (II) ordering Defendant to enroll in lifetime satellite-based monitoring. I. Improper Statements in Prosecutor s Closing Argument In his first argument on appeal, Defendant contends the trial court improper erred statements by allowing during the prosecutor closing to argument. make three Specifically, Defendant argues the prosecutor made an improper comment (1) about Defendant s failure to testify; (2) stereotyping Defendant based on his age and gender; and (3) about Defendant s knowledge of J.S. s age, a fact outside the record. We will review each of the challenged statements in turn. At trial, Defendant objected only to the statement about Defendant s knowledge of J.S. s age. The standard of review for alleged errors in closing arguments depends on whether there was a timely objection made or overruled, or whether no -4objection was made and defendant contends that the trial court should have intervened ex mero motu. State v. Chappelle, 193 N.C. App. 313, 325, 667 S.E.2d 327, 334 (2008) (citation and quotation marks omitted). Where an objection was overruled, the trial court s ruling is reviewed for an abuse of discretion only where inclusion improper remarks prejudiced were of defendant. a magnitude Id. that (citations their omitted). Where no objection was made, this Court reviews the remarks for gross impropriety. considering trial court Id. whether (citations defendant abused its was omitted). prejudiced discretion, we [B]efore or must whether first whether the prosecutor s remarks were improper. the determine Id. at 326, 667 S.E.2d at 335 (citation omitted). Defendant first argues the trial court should have intervened when the prosecutor made a statement referring to Defendant s failure to testify in constitutional right to remain silent. Criminal testify and it defendants is have improper a for violation Defendant s We disagree. constitutional prosecutors defendant s exercise of this right. of to right not comment on to a State v. Prevatte, 356 N.C. 178, 248, 570 S.E.2d 440, 479 (2002) (citation omitted), cert. denied, 538 U.S. 986, 123 S. Ct. 1800, 155 L.Ed. 2d 681 -5(2003). However, if a prosecutor s comment on a defendant s failure to testify was not extended or was a slightly veiled, indirect comment on a defendant s failure to testify, there was no prejudicial violation (citations omitted). of the defendant s rights. Id. Furthermore, [i]t is well settled that the State may properly draw the jury s attention to the failure of the defendant to produce exculpatory evidence to contradict the State s case. State v. Alston, 341 N.C. 198, 243, 461 S.E.2d 687, 711-12 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L.Ed. 2d 100 (1996). In this case, Defendant did not object at trial to the prosecutor s statement that you have no evidence to the contrary that . . . the [bedroom] door was slightly closed, there was a little crack (Emphasis added). his constitutional in the door, or it was closed. Defendant argues the statement implicates right not to testify because it suggests Defendant had an obligation to present evidence to the contrary. However, our Supreme Court has considered and rejected the contention that statements by the prosecutor in closing argument that the evidence was uncontradicted or unrebutted amount to impermissible comments on the defendant s failure to testify. Id. at 243, 461 S.E.2d at 711 (citations omitted). Accordingly, -6the prosecutor s statement that you have no evidence to the contrary was not improper, and the trial court did not err by failing to intervene ex mero motu. Defendant next contends the trial court erred by failing to intervene when the prosecutor made sexist comments in her closing argument that stereotyped Defendant based on the actions and thoughts of a 19-year-old male. We disagree. A prosecutor should refrain from making characterizations relating to a defendant which are calculated to cause prejudice before the jury when characterizations may there is no legitimately evidence be from inferred. which such State v. Thompson, 118 N.C. App. 33, 43, 454 S.E.2d 271, 277 (citation and quotation marks omitted), disc. review denied, 340 N.C. 262, 456 S.E.2d 837 (1995). However, [i]n arguing to the jury, the State may comment on any contradictory evidence as a basis for the jury s disbelief of a witness s testimony. State v. Anderson, 322 N.C. 22, 39, 366 S.E.2d 459, 469-70 (citation omitted), cert. denied, 488 U.S. 975, 109 S. Ct. 513, 102 L.Ed. 2d 548 (1988). arguments are Additionally, not to be [s]tatements considered in made in closing isolation or out of context, but must be reviewed in the context in which they were made and the overall factual circumstances to which they -7referred. Chappelle, 193 N.C. App. at 325, 667 S.E.2d at 334. In the present case, J.S. s credibility was questioned at trial and there was contradictory evidence about whether the alleged sexual acts actually took place. In an attempt to restore J.S. s credibility, the prosecutor made the following statement in her closing argument, to which Defendant did not object: Is it not believable that a 19-year-old boy would get any girl he could in the house that would be willing to have sex? Not just [J.S.], but any girl? Is it hard to believe that he would have sex if somebody else was in the house? They re all males. He s 19. This statement was made comparing J.S. s presented at trial testimony was believable. in testimony and the to context the explaining See id. of the prosecutor contradictory to the Because jury the evidence why J.S. s State may comment on any contradictory evidence as a basis for the jury s disbelief of a witness s testimony, Anderson, 322 N.C. at 39, 366 S.E.2d at 469-70, the prosecutor s statement regarding the believability of J.S. s testimony was not improper. Thus, the trial court did not err by failing to intervene ex mero motu. Defendant also contends the trial court erred in allowing the prosecutor to argue that Defendant should have known J.S. was under 18. Defendant argues this statement was an improper -8reference to facts outside the record and a misstatement of law. Because Defendant objected to this statement at trial, we review whether the trial court abused its discretion by failing to sustain the objection. State v. McCollum, 177 N.C. App. 681, 686, 629 S.E.2d 859, 862 (quotation omitted) (2006). When applying the abuse of discretion standard to closing arguments, this Court first determines if the remarks were improper. . . . Next, we determine if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court. State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002) (citation omitted). [C]ounsel are allowed wide latitude in arguments to the jury in contested cases. They are allowed to argue to the jury the law and facts in evidence and all the reasonable inferences to be drawn therefrom. State v. Payne, 312 N.C. 647, 665, 325 S.E.2d 205, 217 (1985) (citations omitted). However, counsel may not argue to the jury incompetent and prejudicial matters and may not travel outside the record by injecting facts and personal opinions not included in evidence. Id. (citation omitted). Here, the prosecutor made the following statement during closing argument: -918-year-olds and 19-year-olds don t have to be back at the house at four or five o clock in the afternoon, six o clock in the afternoon. 18-year-olds don t have to come over to your house with their little girlfriends and their little boyfriends on their bikes. Come on. He should have known better. 18-year-old girls would take the time to know the first and last name of the defendant, how old he is. 18-year-old girls don t keep pursuing and calling the boys over and over again. Defense counsel objected to this statement at trial on the basis of arguing facts outside the record. the prosecutor to rephrase that The trial court directed from a Couch it in terms of your contention. stated, The maturity level of questioned by the defendant. . . . statement of fact. The prosecutor then [J.S.] should have She told him she was 15. knew that she was too young for him. been He Her behavior indicated that. Assuming arguendo that the remarks were improper, Defendant has failed to show prejudice resulting from the prosecutor s comments. because Defendant s knowledge of J.S. s age was not relevant the charged offenses are strict liability offenses. Furthermore, the State s evidence tended to show J.S. was 14 and turned 15 years old, and Defendant was 19 years old when the two engaged in considering sexual the conduct. trial court s Based on instruction this to evidence, the and prosecutor -10following defense counsel s objection, we find there was no prejudicial error. II. Lifetime Satellite-Based Monitoring In Defendant s second argument on appeal, he contends the trial court erred in ordering satellite-based monitoring. him to enroll in lifetime The State concedes error because Defendant was not convicted of a reportable conviction pursuant to N.C. Gen. Stat. § 14-208.40A (2009). In reviewing a satellite-based monitoring order, we review the trial court s findings of fact to determine whether they are supported by competent record evidence, and we review the trial court s conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found. State v. Kilby, 198 N.C. App. 363, 367, 679 S.E.2d 430, 432 (2009) (quotation marks and citation omitted). When an offender is convicted of a reportable conviction as defined by G.S. 14-208.6(4), N.C. Gen. Stat. § 14-208.40A(a), and [i]f the court finds that the offender has been classified as a sexually violent predator, is a recidivist, has committed an aggravated offense, or was convicted of G.S. 14-27.2A or G.S. 14-27.4A, the court shall order the offender to enroll in a satellite-based monitoring program for life. N.C. Gen. Stat. § -1114-208.40A(c). The definition of reportable conviction includes [a] final conviction for an offense against a minor, a sexually violent offense, offenses[.] An or an attempt to commit any of those N.C. Gen. Stat. § 14-208.6(4)(a) (2009). offense against a minor includes: kidnapping, abduction of children, felonious restraint, and a solicitation or conspiracy to commit any of these offenses [or] aiding and abetting any of these offenses. N.C. Gen. Stat. § 14-208.6(1m) (2009). Sexually violent offense is defined as: a violation of G.S. 14-27.2 (first degree rape), G.S. 14-27.2A (rape of a child; adult offender), G.S. 14-27.3 (second degree rape), G.S. 14-27.4 (first degree sexual offense), G.S. 14-27.4A (sex offense with a child; adult offender), G.S. 14-27.5 (second degree sexual offense), G.S. 14-27.5A (sexual battery), G.S. 14-27.6 (attempted rape or sexual offense), G.S. 14-27.7 (intercourse and sexual offense with certain victims), G.S. 14-27.7A(a) (statutory rape or sexual offense of person who is 13-, 14-, or 15-years-old where the defendant is at least six years older), G.S. 14-43.13 (subjecting or maintaining a person for sexual servitude), G.S. 14-178 (incest between near relatives), G.S. 14-190.6 (employing or permitting minor to assist in offenses against public morality and decency), G.S. 14-190.9(a1) (felonious indecent exposure), G.S. 14-190.16 (first degree sexual exploitation of a minor), G.S. 14-190.17 (second degree sexual exploitation of a minor), G.S. 14-190.17A (third degree -12sexual exploitation of a minor), G.S. 14190.18 (promoting prostitution of a minor), G.S. 14-190.19 (participating in the prostitution of a minor), G.S. 14-202.1 (taking indecent liberties with children), G.S. 14-202.3 (Solicitation of child by computer or certain other electronic devices to commit an unlawful sex act), G.S. 14202.4(a) (taking indecent liberties with a student), G.S. 14-318.4(a1) (parent or caretaker commit or permit act of prostitution with or by a juvenile), or G.S. 14-318.4(a2) (commission or allowing of sexual act upon a juvenile by parent or guardian). The term also includes the following: a solicitation or conspiracy to commit any of these offenses; aiding and abetting any of these offenses. N.C. Gen. Stat. § 14-208.6(5) (2009). In this case, Defendant was statutory sex offense in convicted of two counts of violation of N.C. Gen. Stat. 14- 27.7A(b) (2009) for sexual acts 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. These offenses are not reportable convictions as defined by N.C. Gen. Stat. § 14208.6(4)(a). reportable Because conviction Defendant as required was by not N.C. convicted Gen. Stat. of § a 14- 208.40A, the trial court erred in ordering lifetime satellitebased monitoring. Thus, we vacate the trial imposing lifetime satellite-based monitoring. VACATED IN PART, NO ERROR IN PART. court s order -13Judges CALABRIA and ERVIN concur. Report per Rule 30(e).

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