State v. White

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-797

NORTH CAROLINA COURT OF APPEALS

Filed: 17 February 2015

STATE OF NORTH CAROLINA

v. Columbus County

No. 10 CRS 051833

TERRY LEE WHITE

Appeal by defendant from judgment entered 19 December 2013

by Judge Douglas B. Sasser in Columbus County Superior Court.

Heard in the Court of Appeals 4 November 2014.

Attorney General Roy Cooper, by Assistant Attorney General

Lisa K. Bradley, for the State.

William D. Spence for defendant-appellant.

McCULLOUGH, Judge.

Defendant Terry Lee White appeals his conviction of sexual

offense against a minor while in a parental role. For the

reasons stated herein, we hold no error.

I. Background

Defendant was indicted in case number 10 CRS 51832 for one

count of statutory rape or sexual offense of a person who is 13,

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14, or 15 years old and one count of sexual offense by a person

in a parental role based on offenses alleged to have occurred in

January 2007. On 7 October 2010, defendant was indicted in case

number 10 CRS 51833 for one count of statutory rape or sexual

offense of a person who is 13, 14, or 15 years old and one count

of sexual offense by a person in a parental role based on

offenses alleged to have occurred in October 2006.

Defendant’s case came on for trial on 16 through 19

December 2013 in Columbus County Superior Court, before the

Honorable Douglas B. Sasser, presiding. The evidence indicated

that defendant was involved in a dating relationship with Ms.

North1 from 2001 until 2010. Ms. North has two daughters, Cara

and Elizabeth, who are not defendant’s biological children.

Cara and Elizabeth are nine months apart and were seven years

old when Ms. North began dating defendant.

Ms. North testified that she was born and raised in

Columbus County but moved to Rockingham County in 2002 with

defendant and her two daughters. Ms. North returned to Columbus

County in 2003, went back to Rockingham County in 2004, and

finally returned to Columbus County in 2006. During these

1

Pseudonyms have been used throughout this opinion to protect the

identity of some individuals.

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times, she testified that defendant lived or stayed with her

family “[m]ost of the time.”

Ms. North paid the rent and light bill. Defendant worked

and “would help provide, you know, things for [the kids], give

[Cara] snack money for school, basic things, make sure they get

Christmas, you know.” Cara testified that that she viewed

defendant “[l]ike a stepdaddy.” Defendant would buy Cara and

Elizabeth “stuff at the store” but would never discipline them.

In 2003, when Cara was nine years old, defendant told Cara

that he was taking her to her friend’s house. Instead,

defendant took Cara “down a dirt road and stopped and asked me

what would I do to keep [Ms. North] from going to jail.”

I started naming things and he said anything

and I said yeah, why. He unzipped his pants

and pulled out a knife to fix his crack can

and showed me naked pics of [Ms. North]

smoking weed and told me if I told anybody

he would turn them into the police and [Ms.

North] would go to jail and me and

[Elizabeth] would be separated in two homes.

I didn’t want that. He made me . . . suck

his thing[.]

Cara testified that in October 2006, when Cara was twelve

years old, defendant asked Cara to go into a back room of the

house. Defendant pulled his pants down and sat on the bed, Cara

sat beside him, and defendant forced Cara to perform oral sex on

him. Cara further testified that

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[Defendant] would always tell me either I

would stay home while my mom went to the

store and I would ride with him to the store

but in October when we moved back to

Columbus County the first time he told me to

go in my mama’s room; he said you know what

I want you to do[.]

Defendant would “have [Cara] perform oral sex on him and he put

some crack on a can and smoked it.” Defendant threatened Cara

that if she told anyone about their encounters, he would show

the incriminating pictures of Ms. North to the police.

Cara also testified to a second incident with defendant in

Columbus County:

The second time he said come on back here,

you know what you’ve got to do and I started

to run out the back door to my neighbor’s

house and he grabbed my arm. He said he

swears and promises if I don’t tell he will

never do it again and he never done it

again.

Cara testified that she believed that defendant wanted her to

perform oral sex on him.

Detective Rene Trevino with the Columbus County Sheriff’s

Department testified that on 23 May 2010, she came into contact

with Cara and Ms. North. Cara and Ms. North had come into the

sheriff’s office to report a sexual assault. A recording of

Detective Trevino’s interview of Cara and Ms. North was admitted

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into evidence. Detective Trevino testified that she made a

referral to the department of social services.

Diane Guedo, a family nurse practitioner who was employed

at a child advocacy center, evaluating children with suspected

sexual and physical abuse, testified for the State. She was

tendered as a specialist in sexual abuse, physical abuse, and

neglect. Guedo testified that she conducted a child medical

examination of Cara on 13 July 2010. Cara told Guedo about two

“incidents with [defendant]” that began at age nine. Cara also

talked about an incident after 2006 where defendant came into

her room and “licked her genital area.” Based on the results of

a physical exam, Guedo testified that she could not tell if

there had been any trauma to Cara’s genital area in 2006 or in

2007. She further testified that an absence of physical

findings did not support nor discount a disclosure of sexual

abuse.

Marcie Thompson, an investigator and assessor for the

Columbus County Department of Social Services, testified that

she came into contact with Ms. North in 2010. Thompson had

received a report containing allegations of inappropriate sexual

contact by a person living as a stepfather and caretaker in the

home and was able to conduct an interview with Ms. North.

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At the close of the State’s evidence, both charges in case

number 10 CRS 51832 were dismissed. At the close of all the

evidence, the charge of statutory rape or sexual offense of a

person who is 13, 14, or 15 years old in case number 10 CRS

51833 was dismissed.

On 19 December 2013, a jury found defendant guilty of a

sexual offense against a minor while in a parental role.

Defendant was sentenced to a term of 40 to 57 months

imprisonment. Defendant appeals.

II. Discussion

On appeal, defendant argues that the trial court erred by

(A) denying defendant’s motion to dismiss the charge of

committing a sexual offense against a minor while in a parental

role for insufficiency of the evidence; (B) failing to instruct

the jury on all elements of the crime of sexual offense while in

a parental role; (C) failing to define the terms “minor” and

“fellatio”; and (D) admitting the testimony of Diane Guedo.

A. Motion To Dismiss

Defendant first argues that the trial court erred by

denying his motion to dismiss the charge of sexual offense

against a minor while in a parental role because there was

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insufficient evidence that defendant had assumed the position of

a parent in the victim’s home in October 2006. We disagree.

When reviewing a defendant’s motion to

dismiss a charge on the basis of

insufficiency of the evidence, this Court

determines whether the State presented

substantial evidence in support of each

element of the charged offense. Substantial

evidence is relevant evidence that a

reasonable person might accept as adequate,

or would consider necessary to support a

particular conclusion. In this

determination, all evidence is considered in

the light most favorable to the State, and

the State receives the benefit of every

reasonable inference supported by that

evidence.

State v. Jones, 367 N.C. 299, 304, 758 S.E.2d 345, 349 (2014)

(citation and quotation marks omitted).

Here, defendant was charged with sexual offense against a

minor while in a parental role in violation of N.C. Gen. Stat §

14-27.7(a). “This crime requires a finding that the defendant

had (1) assumed the position of a parent in the home, (2) of a

minor victim, and (3) engaged in a sexual act with the victim

residing in the home.” State v. Oakley, 167 N.C. App. 318, 322,

605 S.E.2d 215, 218 (2004) (citation omitted).

Defendant now argues that there was insufficient evidence

of the required element that defendant assumed a position of a

parent in the home. It is well established that “to convict a

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defendant of violating G.S. § 14-27.7(a), the evidence of the

relationship between the defendant and the child-victim must

provide support for the conclusion that the defendant functioned

in a parental role. Such a parental role will generally include

evidence of emotional trust, disciplinary authority, and

supervisory responsibility.” State v. Bailey, 163 N.C. App. 84,

93, 592 S.E.2d 738, 744 (2004).

Defendant cites to our Court’s holding in State v. Bailey,

163 N.C. App. 84, 592 S.E.2d 738 (2004), to support his

argument. In Bailey, the defendant was charged with sexual

offense by a substitute parent in violation of N.C. Gen. Stat. §

14-27.7(a) (2003). Id. at 92, 592 S.E.2d at 744. At trial,

evidence demonstrated that the defendant was never romantically

involved with the victim’s mother. Id. at 94, 592 S.E.2d at

744-45. The victim’s mother testified that the defendant

“helped with the kids” and “would just baby sit them” in return

for the victim’s mother allowing the defendant to sleep in her

residence without paying rent. There were also several

statements made at trial and to officers that the defendant

“watched” the children in the household and was a “babysitter”

to the children. Id. at 94, 592 S.E.2d at 745. Our Court held

that the evidence, taken in the light most favorable to the

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State, was sufficient “to establish only that defendant babysat”

for the children in the household. Id. The victim’s mother did

not regard the defendant as her boyfriend or as a de facto

stepfather to her children. The record also did not indicate

whether “[the] defendant’s ‘babysitting’ had a quasi-parental

quality[.]” Id.

[T]here was no evidence regarding whether

defendant was authorized to make

disciplinary decisions, assist with

homework, treat minor injuries, decide

whether the children could leave the

apartment, or take them out of the apartment

himself.

Even more significant is the absence of

any evidence tending to show that the

defendant and [the victim] had a

relationship based on trust that was

analogous to that of a parent and child.

Id. Based on the foregoing, our Court reversed the defendant’s

conviction of violating N.C. Gen. Stat. § 14-27.7(a). Id. at

95, 592 S.E.2d at 745.

After thorough review, we find the facts of the case before

us distinguishable from the facts found in Bailey. In the

present case, it was undisputed that defendant was involved in a

romantic, dating relationship with the victim’s mother, Ms.

North from 2001 until 2010. Ms. North testified that defendant

lived with the family “[m]ost of the time” during these years.

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Cara testified regarding her relationship with defendant and

described defendant’s role in her home as a “stepdaddy.”

Although Cara testified that defendant never disciplined her,

she testified that defendant would purchase “stuff at the store”

for her. Ms. North testified that defendant “acted like he

loved” her daughters. Defendant would “help provide, you know,

things for them, give [Cara] snack money for school, basic

things, make sure they get Christmas, you know.” Ms. North

regularly left defendant to supervise Cara and Elizabeth and

Cara testified that defendant determined whether she would stay

at home with defendant while Ms. North went to the store or

whether she would accompany defendant to the store.

Unlike the Bailey case, the evidence here indicates that

defendant and Cara had a relationship that was analogous to that

of a parent and child. Defendant had supervisory responsibility

over Cara, helped provide her with things such as money and

food, “acted like he loved” Cara, and functioned as a

“stepdaddy” to Cara. Viewing this evidence in the light most

favorable to the State, we hold that there was sufficient

evidence to support the element that defendant served in a

parental role. Accordingly, we hold that the trial court did

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not err by denying defendant’s motion to dismiss and overrule

defendant’s argument.

B. Jury Instruction

In his second issue on appeal, defendant argues that the

trial court erred by failing to instruct the jury on all the

elements of sexual offense against a minor while in a parental

role. Specifically, defendant argues that the trial court

failed to state that the jury must find that the victim was a

minor.

“Jury instructions not challenged at trial are normally

reviewed for plain error.” State v. Smith, __ N.C. App. __, __,

736 S.E.2d 847, 850 (2013). “Under the plain error standard,

defendant must show that the instructions were erroneous and

that absent the erroneous instructions, a jury probably would

have returned a different verdict.” State v. Haire, 205 N.C.

App. 436, 440, 697 S.E.2d 396, 399 (2010) (citation omitted).

Defendant contends that because the trial court omitted an

essential element, that the victim must be a minor, from the

jury instruction, harmless error applies. See Smith, __ N.C.

App. at __, 736 S.E.2d at 850 (citations omitted) (stating that

a “‘trial court’s omission of elements of a crime in its

recitation of jury instructions is’ treated as an unwaivable

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violation of the right to a unanimous jury found in Article I,

Section 24 of the North Carolina Constitution, and, therefore,

is ‘reviewed under the harmless error test’”). However, we hold

that harmless error analysis does not apply to the present case

because the trial court did not omit any necessary element from

defendant’s jury charge.

As previously stated, the elements of sexual offense

against a minor while in a parental role requires a finding that

the defendant: (1) assumed the position of a parent in the

home, (2) of a minor victim, and (3) engaged in a sexual act

with the victim residing in the home. Oakley, 167 N.C. App. at

322, 605 S.E.2d at 218. In the present case, the trial court

gave the following instruction to the jury:

The defendant has been charged with

committing a sex offense while in a parental

role.

For you to find the defendant guilty of

this offense the State must prove two things

beyond a reasonable doubt.

First, that the defendant engaged in a

sexual act with the victim; fellatio is a

sexual act.

Second, that the defendant has assumed

the position of a parent in the home of a

minor with whom the minor was residing in

the house.

If you find from the evidence beyond a

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reasonable doubt that on or about the

alleged date the defendant engaged in a

sexual act with the victim and that the

victim was a child under 18 years of age and

that the defendant had assumed the position

of a parent in the home in which the minor

was residing, it would be your duty to

return a verdict of guilty.

If you do not so find or if you have a

reasonable doubt as to one or more of these

things, it would be your duty to return a

verdict of not guilty.

(emphasis added).

Here, the trial court clearly stated that in order for the

jury to find defendant guilty of sexual offense while in a

parental role, the jury must find beyond a reasonable doubt that

the “victim was a child under 18 years of age.” Furthermore,

defendant does not challenge the age of the victim, Cara. Cara

testified that her birthday was 1 February 1994 and it was

established that at the time of the alleged offense in October

2006, Cara was twelve years old. Based on the foregoing,

defendant is not able to demonstrate that the challenged jury

instruction was made in error, much less plain error.

Defendant’s argument is overruled.

C. Defining the Terms “Minor” and “Fellatio”

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In his next argument, defendant asserts that the trial

court committed plain error in its jury instructions by failing

to define the terms “minor” and “fellatio.” We disagree.

“In deciding whether a defect in the jury instruction

constitutes ‘plain error,’ the appellate court must examine the

entire record and determine if the instructional error had a

probable impact on the jury’s finding of guilt.” State v. Bell,

359 N.C. 1, 23, 603 S.E.2d 93, 109 (2004) (citation omitted).

Our Courts have held that “[i]t is not error for the court to

fail to explain words of common usage in the absence of a

request for special instructions.” State v. Riddle, 45 N.C.

App. 34, 39, 262 S.E.2d 322, 325 (1980).

In the case before us, the trial court stated that in order

to find defendant guilty of sexual offense against a minor while

in a parental role, the jury must find that “the victim was a

child under 18 years of age.” Although the trial court did not

specifically state that “a child under 18 years of age” is

considered a “minor,” we believe the term “minor” is a term of

common usage. In addition, the record does not indicate that

defendant made a request for special instructions on the word

“minor.” Therefore, the trial court did not err, much less

commit plain error, in failing to define this term.

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In regards to the term “fellatio,” the trial court stated

in its jury instructions that in order to find defendant guilty,

the jury must find that “defendant engaged in a sexual act with

the victim; fellatio is a sexual act.” Once again, the record

is devoid of any evidence that defendant requested a special

instruction on this term. Further, defendant does not cite to

any authority requiring a trial court to define the term

“fellatio.” Our Court has previously held that where a

defendant “fails to cite to any case law or statute which

requires the trial court to define those terms during its jury

instruction,” a defendant has failed to meet his burden under

plain error review to warrant a new trial. State v. Wood, 174

N.C. App. 790, 794, 622 S.E.2d 120, 123 (2005) (where the

defendant failed to cite to any authority that required the

trial court to define the terms “driving while license revoked,”

“negligent driving,” and “reckless driving,” the trial court did

not commit plain error in failing to define those terms).

Accordingly, we overrule defendant’s arguments.

D. Admitting the Testimony of Diane Guedo

In his last issue, defendant contends that the trial court

erred by allowing expert witness Diane Guedo to testify that

Cara would be a “very good candidate for trauma focused

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cognitive behavioral therapy.” Defendant argues that this

testimony was irrelevant, that it amounted to impermissible

vouching for Cara’s credibility, and that Guedo was not

qualified to give such an opinion.

Diane Guedo testified that she was employed as a child

medical examiner at a child advocacy center that evaluates

children with suspected sexual and physical abuse. Guedo was a

family nurse practitioner who received her training at George

Washington University and a master’s degree from the University

of Rochester. She testified that she had worked primarily in

primary care pediatrics for the last twenty-one years and had

evaluated 771 children. Guedo was tendered as a specialist in

sexual abuse, physical abuse, and neglect. Upon the State’s

tender of Guedo as an expert witness, defendant objected. After

voir dire of Guedo, defendant withdrew his objection.

Guedo testified that she performed a child medical

examination on Cara on 13 July 2010. The child medical

examination included an interview of the non-offending care

giver, a complete medical examination, and seventeen pages of

additional documentation. Guedo indicated that there were no

physical findings of trauma to Cara’s genital area at the time

of the examination and testified that she could not tell if

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there had been trauma to Cara’s genital area in 2006. Based on

her examination, Guedo testified that the lack of physical

findings neither supported nor discounted a disclosure of sexual

abuse. Nevertheless, Guedo testified that Cara described the

incidents of sexual abuse to her. The following exchange

occurred:

[THE STATE:] . . . Ms. Guedo, based on what

[Cara] told you if that did in fact occur

what kind of psychological care would you

have prescribed?

[DEFENSE COUNSEL:] Objection.

THE COURT: Do you wish to be heard?

[DEFENSE COUNSEL:] I don’t think this

witness based on our case law it is

permissible to answer that.

THE COURT: Overruled, you may answer the

question.

[MS. GUEDO:] I thought she would be a very

good candidate for trauma focused cognitive

behavioral therapy.

[DEFENSE COUNSEL:] Objection as to

relevance, move to strike. What relevance

does it have about whether this happened or

not?

THE COURT: Overruled.

On appeal, defendant first contends that this foregoing

testimony was irrelevant. The applicable standard of review is

as follows:

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Although the trial court’s rulings on

relevancy technically are not discretionary

and therefore are not reviewed under the

abuse of discretion standard applicable to

Rule 403, such rulings are given great

deference on appeal. Because the trial court

is better situated to evaluate whether a

particular piece of evidence tends to make

the existence of a fact of consequence more

or less probable, the appropriate standard

of review for a trial court’s ruling on

relevancy pursuant to Rule 401 is not as

deferential as ‘abuse of discretion’

standard which applies to rulings made

pursuant to Rule 403.

State v. Blakney, __ N.C. App. __, __, 756 S.E.2d 844, 847

(2014) (citation omitted).

The admissibility of evidence is

governed by a threshold inquiry into its

relevance. In order to be relevant, the

evidence must have a logical tendency to

prove any fact that is of consequence in the

case being litigated. All relevant evidence

is admissible, except as otherwise provided

by the Constitution of the United States, by

the Constitution of North Carolina, by Act

of Congress, by Act of the General Assembly

or by these rules. Evidence which is not

relevant is not admissible.

State v. Royster, __ N.C. App. __, __, 763 S.E.2d 577, 580-81

(2014) (citation and quotation marks omitted). Furthermore,

pursuant to Rule 403 of the North Carolina Rules of Evidence,

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

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considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1,

Rule 403 (2013).

In the present case, we believe that the challenged

testimony was irrelevant as it did not have a logical tendency

to prove any fact that is of consequence. Nevertheless, given

Cara’s personal testimony regarding the sexual abuse by

defendant and the remainder of Guedo’s testimony corroborating

Cara’s account, we believe any error by the admission of this

testimony was harmless. See N.C. Gen. Stat. § 15A-1443(a)

(2013) (stating that error is prejudicial when “there is a

reasonable possibility that, had the error in question not been

committed, a different result would have been reached at the

trial out of which the appeal arises”).

Next, defendant argues that Guedo’s testimony “implie[d] to

the jury that [Cara] was telling the truth, that the oral sex

actually happened.” Our Courts have established that “the trial

court should not admit expert opinion that sexual abuse has in

fact occurred because, absent physical evidence supporting a

diagnosis of sexual abuse, such testimony is an impermissible

opinion regarding the victim’s credibility.” State v. Stancil,

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355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (emphasis in

original).

Here, however, we find defendant’s characterization of

Guedo’s testimony erroneous and hold that the challenged

testimony does not constitute impermissible vouching for Cara’s

credibility. Guedo did not testify that sexual abuse had, in

fact, occurred. Rather, Guedo was answering a hypothetical

question presented by the State – that if Cara’s descriptions of

the alleged sexual incidents with defendant were true, what type

of psychological care and treatment would Guedo have prescribed.

Therefore, defendant’s argument is overruled.

In his last argument, defendant asserts that it was error

for the trial court to allow Guedo to testify regarding the type

of psychological care she would have prescribed had Cara, in

fact, been sexually abused because Guedo was not qualified to

render her opinion on this issue.

Pursuant to N.C. Gen. Stat. § 8C-1, Rule 702 (2013), a

witness may be qualified as an expert if the trial court finds

that through “knowledge, skill, experience, training, or

education” the witness has acquired such skill that he or she is

better qualified than the jury to form an opinion on the

particular subject. Because defendant failed to object to the

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admission of this testimony at trial, our review is limited to

plain error. State v. Henderson, 182 N.C. App. 406, 414, 642

S.E.2d 509, 514 (2007) (citation omitted) (providing that

“[p]lain error has been defined as ‘error 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’”).

At trial, Guedo testified that she worked at a child

advocacy center, evaluating children with suspected abuse, both

sexual and physical. Guedo was a family nurse practitioner who

had worked in primary care pediatrics for twenty-one years and

had evaluated 771 children in her current position. It was her

eighth time testifying as a witness as a specialist in sexual

abuse, physical abuse, and neglect. After the State tendered

Guedo as an expert in abuse and neglect, defendant objected, but

then later removed his objection.

The questions posed by the State and answers given in

qualifying Guedo as an expert in abuse and neglect failed to

establish that Guedo had any particularized experience or

training relating to prescribing psychological care to those who

were abused or neglected. It is also unclear whether an expert

in abuse and neglect would have any training or experience

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related to trauma focused cognitive behavioral therapy.

However, even if we were to hold that this testimony was

improperly admitted because the State failed to lay a sufficient

foundation to establish that Guedo was qualified to offer the

challenged testimony, we hold that this error would fall short

of amounting to plain error based on Cara’s testimony and the

testimony of corroborating witnesses.

No error.

Judges CALABRIA and STROUD concur.

Report per Rule 30(e).