State v. Phachoumphone , 257 N.C. App. 848 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-247
Filed: 6 February 2018
Cleveland County, Nos. 14 CRS 2047–48
STATE OF NORTH CAROLINA
v.
NOUI PHACHOUMPHONE
Appeal by defendant from judgment entered 22 September 2016 by Judge Eric
L. Levinson in Cleveland County Superior Court. Heard in the Court of Appeals 4
October 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth
Guzman, for the State.
William D. Spence, for defendant-appellant.
ELMORE, Judge.
Noui Phachoumphone (defendant) appeals from a judgment entered after a
jury convicted him of first-degree sex offense with a child and of taking indecent
liberties with a child. The State’s evidence tended to show that, during the evening
of 19 August 2014, defendant’s sister, Sara, entered defendant’s girlfriend’s
apartment and saw defendant engaging in sexual activities with his girlfriend’s six-
year-old daughter, Tara.1
1 Pseudonyms are used to protect identities and for ease of reading.
STATE V. PHACHOUMPHONE
Opinion of the Court
On appeal, defendant contends the trial court violated N.C. Gen. Stat. § 15A-
1225.1’s procedural requirements by authorizing Tara’s testimony to be taken
remotely without holding a recorded evidentiary hearing on the matter or entering
an order supporting its decision to allow the State’s motion. Defendant also contends
the trial court erred by denying his motions to dismiss both charges for insufficient
evidence, and by failing to intervene ex mero motu when the prosecutor argued to the
jury that certain out-of-court statements established substantive evidence of
defendant’s guilt. We hold that defendant received a fair trial, free of prejudicial
error.
I. Background
Prior to August 2014, six-year-old Tara lived in apartment 36 at Chesterfield
Apartments in Kings Mountain with her mother and her mother’s boyfriend,
defendant, who was forty years old. Defendant’s sister, Sara, also lived in a nearby
apartment at Chesterfield Apartments.
During the evening of 19 August 2014, Sara was outside smoking a cigarette
when she noticed defendant, also outside, drinking and “pretty intoxicated.” A few
minutes after Sara saw defendant go into apartment 36, she saw Tara walking
outside by herself and then enter the apartment. Sara believed Tara was supposed
to be staying with her babysitter at a nearby apartment in Chesterfield Apartments,
so she went to investigate. After Sara’s knocks on the door to apartment 36 went
-2-
STATE V. PHACHOUMPHONE
Opinion of the Court
unanswered, she entered the apartment and saw defendant and Tara lying together
in a bed on the living room floor. Exactly what Sara observed is disputed. According
to Sara’s statements to police immediately after the incident, she saw defendant lying
on top of Tara while both were naked, and saw defendant masturbating while rubbing
Tara’s vagina; however, according to her trial testimony, she merely observed
defendant with his pants on but no shirt, Tara’s dress halfway off and somewhat up,
and defendant with his hands around her. Whatever Sara saw when she entered the
apartment, it caused her to became extremely upset, she tried to remove Tara from
the apartment, and she got into a heated argument with defendant when he refused
to let her take Tara. Sara then called 911.
Sergeant Doug Shockley of the Kings Mountain Police Department responded
to the call at Chesterfield Apartments, where a 6-year-old girl was reportedly being
held against her will. When he arrived, he met Sara, who was “crying hysterically”
and appeared “very nervous and upset.” Sgt. Shockley met defendant at the door.
Defendant reported that he and Sara did not get along, and she was just trying to
cause him trouble. Defendant stated that Tara became frightened that night and
came downstairs to sleep beside him on the couch. Sgt. Shockley instructed
defendant to wait outside as he spoke with Tara.
When Sgt. Shockley entered the apartment to speak with Tara, he saw her
sitting on the couch, clutching a pillow, and “crying hysterically, shaking.” According
-3-
STATE V. PHACHOUMPHONE
Opinion of the Court
to Sgt. Shockley, Tara immediately stated: “ ‘I don’t know why he did this to me.’ ”
Tara clarified: “ ‘[Defendant], I don’t know why he was laying on top of me. He was
rubbing me down there’ ” and then Tara “pointed toward . . . her genital area.” Sgt.
Shockley then contacted Detective Sergeant Lisa Proctor, who instructed that Sara,
Tara, and defendant be taken into the police station for questioning.
During Sara’s police interview, she reported that when she entered the
apartment, defendant was “totally naked” and masturbating while playing with Tara.
During Tara’s interview, she reported that defendant “was naked,” “had gotten on top
of her,” “taken her clothes off,” and “touched her in her cootie with his hands.”
The next day, Tara was examined by Dr. Christopher Cerjan, a pediatrician at
Shelby Children’s Clinic. During the exam, Tara reported to Dr. Cerjan that
defendant “took [her clothes] off,” “touched her with . . . his hands,” and “pointed to
her groin.” Dr. Cerjan discovered that Tara had very little hymen tissue, which he
opined was abnormal for a six-year-old and that a penetrating injury was the only
possible cause. He also found redness inside Tara’s vaginal area, indicating that the
penetration likely occurred within the preceding forty-eight hours.
Near the end of the first day of trial, the State called Tara to testify. Because
she was unresponsive, the court decided to excuse the jury for the evening and start
fresh the next day. On day two, the State directly examined Tara for nearly two-and-
a-half hours but was unable to elicit any helpful testimony about the incident. Tara
-4-
STATE V. PHACHOUMPHONE
Opinion of the Court
demonstrated that she understood the difference between a truth or a lie, but either
did not respond at all or merely shook her head “yes” or “no” to several questions.
Tara was unwilling to say defendant’s name but did indicate that something
happened between her and defendant, that it happened to her body, and appeared to
indicate by confirming when the State pointed to this location on a bear used for
demonstrative purposes, that it happened between her legs. Tara confirmed that
“this [was] the right spot on [her] body where [she was] hurt.” However, Tara was
largely unresponsive when asked to provide any further details. The State then
called Sara to testify.
Sara’s trial testimony differed from her prior statements to police. Sara
testified that when she entered the apartment, she saw defendant “laying on . . . the
bed on the floor in the living room, and [Tara] next to him.” “What [she] . . . clearly
it didn’t look appropriate. So immediately [she] told [Tara] to get up and come with
[her].” She testified that defendant “had his pants on but he was shirtless,” and Sara
only “saw [Tara]’s dress halfway off and somewhat up. And [defendant] . . . had his
hands around her but that, that was it.” She explained: “I mean . . . from that
moment, I just reacted and I called out [Tara’s] name to come with me. And when
[defendant] heard, they just stood up and that’s when the . . . argument started.”
When pressed by the State during direct, Sara stated that at the time she gave her
recorded police interview, she was “drunk,” “upset,” “mad,” and “wasn’t thinking
-5-
STATE V. PHACHOUMPHONE
Opinion of the Court
clearly. . . .” Sara further stated that “it was dark,” she “didn’t see anything” but
“jumped to conclusion [sic],” and “might have exaggerated” during the police
interview. Sara admitted that in her prior recorded statement, she told police that
she saw defendant “totally naked with his private part out and [masturbating] while
he was playing with [Tara],” but stated at trial that she “said it out of anger,”
“exaggerated it a little bit,” and “that’s not what happened.”
At the start of the third day of trial, the State filed a motion under N.C. Gen.
Stat. § 15A-1225.1 to allow Tara’s testimony to be taken remotely, arguing that Tara
“would suffer and has suffered serious emotional distress by testifying in front of the
defendant” and that “this emotional distress has made it difficult for [Tara] to speak,
and [Tara]’s ability to communicate with the trier of fact is impaired and thus
interferes with the ability of jurors to ascertain the truth.” Defense counsel objected
on the ground that the motion was untimely filed, and the State never presented an
expert to support the motion. After considering the parties’ arguments, and its own
observation of Tara’s prior in-court testimony, the trial court allowed the motion,
authorizing Tara’s testimony to be taken remotely.
During Tara’s remote testimony, she demonstrated what defendant had done
to her by inserting her finger through a hole an interpreter had created with her
hands. She explained that “it hurt,” that no one else had ever touched her that way,
and that defendant had undressed her before committing the act.
-6-
STATE V. PHACHOUMPHONE
Opinion of the Court
After the State’s presentation of evidence, defense counsel called defendant’s
brother and defendant to testify. Defendant’s brother stated that defendant and Tara
had a great relationship, that defendant was “like a father figure to [Tara],” and that
defendant was largely responsible for Tara’s care when her mother was at work.
Defendant’s testimony corroborated these remarks from his brother. According to
defendant, during the night of the incident, he was watching television and relaxing,
drinking a beer, while wearing shorts and a t-shirt. Tara was on the bed, had fallen
asleep in shorts and a t-shirt, and he had just covered her with a blanket when Sara
came into the apartment. Sara immediately stated “ ‘I know you been [sic] drinking.
I’m taking [Tara].” According to defendant, when he refused to give up Tara, Sara
warned “ ‘I’m going to call the cops and tell them you messing [sic] with her.’ ”
Defendant testified that he never did anything inappropriate with Tara.
At the conclusion of the evidence, defendant unsuccessfully moved to dismiss
both charges for insufficiency of the evidence. The jury found defendant guilty as
charged. The trial court imposed a prison sentence of 300 to 428 months for the first-
degree sex offense with a child count, and a concurrent sentence of 21 to 35 months
for the indecent liberties count. The trial court also ordered defendant to register as
a sex offender for a period of thirty years, to enroll in lifetime satellite-based
monitoring, and to have no contact with Tara for the remainder of his natural life.
Defendant appeals.
-7-
STATE V. PHACHOUMPHONE
Opinion of the Court
II. Alleged Errors
On appeal, defendant contends the trial court erred by (1) failing to follow N.C.
Gen. Stat. § 15A-1225.1’s procedural requirements in authorizing Tara’s testimony
to be taken remotely, denying his motions to dismiss (2) the first-degree sex offense
with a child charge and (3) the indecent liberties charge, and (4) failing to intervene
ex mero motu when the State argued to the jury that Sara’s and Tara’s out-of-court
statements were substantive evidence of his guilt.
III. Motion for Remote Testimony
Defendant first contends the trial court violated N.C. Gen. Stat. § 15A-1225.1’s
procedural requirements by failing to (1) “hold a recorded evidentiary hearing,” (2)
“issue an order,” and (3) “include in said order the five requirements set forth in
section (d) of the statute.” Defendant does not challenge the trial court’s ultimate
ruling permitting Tara to testify remotely under N.C. Gen. Stat. § 15A-1225.1; rather,
he challenges the procedure employed in authorizing her remote testimony. We agree
that the trial court erred by failing to follow statutory procedure, but overrule
defendant’s challenges on the ground that he has failed to demonstrate how any of
these alleged procedural errors prejudiced him.
A. Review Standard
We review alleged statutory errors de novo. State v. Mackey, 209 N.C. App.
116, 120, 708 S.E.2d 719, 721 (2011). Yet “a new trial does not necessarily follow a
-8-
STATE V. PHACHOUMPHONE
Opinion of the Court
violation of statutory mandate.” State v. Love, 177 N.C. App. 614, 623, 630 S.E.2d
234, 240–41 (2006) (citation omitted). A defendant “must show not only that a
statutory violation occurred, but also that [he or she was] prejudiced by this
violation.” Id. (citation omitted); see also State v. Braxton, 352 N.C. 158, 178, 531
S.E.2d 428, 439 (2000) (“[E]ven if it be assumed arguendo that the jury selection
procedure violated the randomness requirement of N.C.G.S. § 15A-1214(a), defendant
has not demonstrated on appeal how he was prejudiced by the procedure.” (emphasis
added)); State v. Nobles, 350 N.C. 483, 506, 515 S.E.2d 885, 899 (1999) (holding the
trial court erred by failing to follow a statutory mandate but refusing to award a new
trial where the “defendant has not met his burden of showing prejudice as a result of
the trial court’s failure to follow the requirements of N.C.G.S. § 15A-1233(a)”).
B. Discussion
Under N.C. Gen. Stat. § 15A-1225.1 (2015), a trial court may authorize a child
victim to testify remotely “when [it] determines: (1) That the child witness would
suffer serious emotional distress, not by the open forum in general, but by testifying
in the defendant’s presence, and (2) That the child’s ability to communicate with the
trier of fact would be impaired.” Id. § 15A-1225.1(b). Subsection (c) of the statute
provides: “Upon motion of a party . . . and for good cause shown, the [superior] court
shall hold a[ recorded] evidentiary hearing to determine whether to allow remote
testimony.” Id. § 15A-1225.1(c); see also State v. Jackson, 216 N.C. App. 238, 240,
-9-
STATE V. PHACHOUMPHONE
Opinion of the Court
717 S.E.2d 35, 37 (2011) (“Upon a motion for remote testimony, the trial court must
‘hold an evidentiary hearing[.]’ . . .” (quoting N.C. Gen. Stat. § 15A-1225.1(c) (2009))).
Subsection (d) contemplates that a trial court enter an order “allowing or disallowing
the use of remote testimony” that “shall state the findings of fact and conclusions of
law that support the court’s determination.” N.C. Gen. Stat. § 15A-1225.1(d).
Subsection (d) provides further that “[a]n order allowing the use of remote testimony
shall do the following:
(1) State the method by which the child is to testify.
(2) List any individual or category of individuals
allowed to be in, or required to be excluded from, the
presence of the child during the testimony.
(3) State any special conditions necessary to
facilitate the cross-examination of the child.
(4) State any condition or limitation upon the
participation of individuals in the child’s presence
during his or her testimony.
(5) State any other condition necessary for taking or
presenting the testimony.
Id.
Both parties cite to two cases in which this Court addressed challenges to a
trial court’s N.C. Gen. Stat. § 15A-1225.1 authorization to take a child victim’s
testimony remotely. See State v. Lanford, 225 N.C. App. 189, 204–08, 736 S.E.2d 619,
629–31 (2013); Jackson, 216 N.C. App. at 240–41, 244–47, 717 S.E.2d 37–38, 40–42.
- 10 -
STATE V. PHACHOUMPHONE
Opinion of the Court
But neither case provides guidance in assessing the procedure employed here. In
both Lanford and Jackson, the State filed a pretrial motion for remote testimony, and
the trial court held an evidentiary hearing before trial where it considered testimony
from the State’s witness(es) concerning whether the child would suffer serious
emotional distress and be unable to communicate effectively to the jury. Lanford,
225 N.C. App. at 206–07, 736 S.E.2d at 630–31; Jackson, 216 N.C. App. at 239, 717
S.E.2d at 37. Here, contrarily, the State filed its motion during trial, after
unsuccessfully attempting to elicit Tara’s testimony, and the State never presented
any witnesses specifically to testify on whether Tara would suffer serious emotional
distress or be unable to communicate effectively to the jury if she testified in
defendant’s presence. Additionally, the trial court here never entered an order on the
motion.
Based on our interpretation of the statutory language, we agree that the
procedures employed violated N.C. Gen. Stat. § 15A-1225.1’s express requirements.
However, “a new trial does not automatically follow a finding of statutory error.”
State v. Garcia, 358 N.C. 382, 406, 597 S.E.2d 724, 742–43 (2004). Defendant has
failed to demonstrate how he was prejudiced by the particular procedure employed.
See id. at 407–08, 597 S.E.2d at 743 (requiring a defendant “to show how the
identified statutory violation [concerning the jury selection process] prejudiced his
case”—that is, how “the aberrant procedure resulted in a biased jury, an inability to
- 11 -
STATE V. PHACHOUMPHONE
Opinion of the Court
question the prospective jurors, an interference with his right to challenge, or any
other defect without which a different result might have been reached.”)
Here, the State had previously called Tara to testify during its case-in-chief for
nearly two-and-a-half hours, affording the trial court an opportunity to closely
observe her behavior, demeanor, and the effectiveness of her communication while
testifying in front of defendant, and providing competent evidence to support its
motion. That presentation developed a “record very clear to the Court” that Tara had
suffered serious distress by testifying in front of defendant and that her ability to
communicate effectively with the jury was “very evident[ly]” impaired. According to
the “[c]ourt’s observations . . . when [Tara] was in the courtroom for numerous hours,
it was apparent,” and the trial judge found, that Tara “was consistently frightened in
her eyes”; that when the trial judge “looked into [Tara’s] eyes, into her face[,]” she
“just appeared to be scared”; that Tara “would very, very occasionally smile”; that
Tara “articulated that she was, quote, scared herself” and “[h]er affect was consistent
with that”; and that Tara “was hugging a bear . . . and was leaning into the person
that was holding her on her lap.”
Furthermore, the trial court held a lengthy conference on the State’s motion,
considered both parties’ arguments, and explicitly allowed defendant to present
evidence on the matter before rendering the required determinations that (1) Tara
“would suffer serious emotional distress by continuing to be in the courtroom and in
- 12 -
STATE V. PHACHOUMPHONE
Opinion of the Court
the defendant’s presence[ ]” and that (2) “[c]learly [Tara]’s ability to communicate
would continue to be impaired.” During the conference on the motion, the prosecutor
explained that she had met with Tara multiple times before trial, brought her into
the courtroom so Tara could practice answering questions in court, and brought Tara
to another court session so she would be familiar with a full courtroom setting.
Therefore, the prosecutor explained, she “did not anticipate the level of terror and
shutdown that we had when [Tara] testified,” which the prosecutor emphasized “was
readily apparent to the court.” The prosecutor elaborated:
[Tara], you know, on day one was sobbing and
keening and would not state her name the minute she
walked in this courtroom.
Yesterday when [Tara] testified, she progressively
turned her back away from the defendant. She would not
say his name. [Tara] has expressed to her father, to my
assistant, to her father’s girl friend, to everybody, that she
does not want to see [defendant]. And I think that
reluctance was very obvious and really impacted [Tara’s]
ability to testify in front of the jury, which I think has
impacted the jury’s ability to know and understand the
events of this day.
[Tara] refuses to speak in English and said she
wanted to speak in Spanish to the extent that she spoke at
all, even though she understands and speaks English.
Defendant does not dispute these statements on appeal, argue that good cause did
not exist to authorize Tara’s remote testimony, or challenge the trial court’s
substantive ruling in any respect.
- 13 -
STATE V. PHACHOUMPHONE
Opinion of the Court
The trial court’s repeated and indubitable findings and conclusions were
supported by competent evidence in light of its own close observation of Tara’s
behavior and demeanor while testifying in front of defendant for multiple hours, the
prosecutor’s statements implying that Tara did not fear testifying in the open forum
generally but in front of defendant particularly, and the bench conference on the
matter. Defendant was afforded an opportunity to present evidence on the State’s
motion, and to the extent the procedure employed may have prohibited defendant
from examining a State witness on the matter, defendant has failed to show how this
alleged procedural error prejudiced him. The transcript indicates that Tara
demonstrated a fear of defendant and was unable to communicate effectively while
testifying in front of him, and the trial court determined that her prior in-court
testimony established a “record . . . very clear” that this was the case. Under these
particular circumstances, defendant has failed to demonstrate prejudicial error in the
hearing procedure employed by the trial court in authorizing the use of Tara’s remote
testimony. See Maryland v. Craig, 497 U.S. 836, 860 (1990) (“[W]e decline to
establish, as a matter of federal constitutional law, any . . . categorical evidentiary
prerequisites for the use of the one-way television procedure.”).
As to defendant’s challenge concerning the trial court’s failure to issue an order
in allowing the State’s motion, defendant similarly has failed to establish prejudice.
- 14 -
STATE V. PHACHOUMPHONE
Opinion of the Court
In the context of authorizing a courtroom closure, this Court has stated that
“[i]n making its [required] findings, the trial court’s own observations can serve as
the basis of a finding of fact as to facts which are readily ascertainable by the trial
court’s observations of its own courtroom.” State v. Godley, 234 N.C. App. 562, 565,
760 S.E.2d 285, 288 (citation, internal quotation marks, and brackets omitted), disc.
rev. denied, 367 N.C. 792, 766 S.E.2d 626 (2014); see id. at 566–68, 760 S.E.2d at 289–
90 (upholding findings based on the trial court’s “opportunity to observe the alleged
victim” and the “attitude and demeanor of the victim and the defendant and the
general nature and character of the audience” as supported by competent evidence
based in part on the “trial court’s own observations of the . . . personnel inside the
courtroom . . . .”). In this same context, this Court has found competent evidence
existed to support a finding that “[t]here existed a particular fragile mental and
emotional state of the victim due to the circumstances of the crime” based in large
part on the trial court’s observation of the victim. See State v. Rollins, 231 N.C. App.
451, 456–57, 752 S.E.2d 230, 234–35 (2013). We explained:
[T]his type of finding of fact is one that the trial court is
particularly well-qualified to make, and one that we are not
well-qualified to question. The trial judge had the
opportunity to observe [the victim], defendant, and the
other witnesses during the trial, including [the victim’s]
demeanor during the State’s evidence up to the point of the
State’s motion. Observations of this sort are something
that cannot be captured in a written transcript but are
crucial in this particular determination.
- 15 -
STATE V. PHACHOUMPHONE
Opinion of the Court
Id. We find this reasoning particularly instructive here.
Based on the trial court’s two-and-a-half hour observation of Tara’s behavior
and demeanor while testifying in front of defendant, it had sufficient competent
evidence from which to issue its findings on the matter, and defendant does not
specifically challenge the propriety of any of those findings; rather, he challenges the
method by which the trial court rendered its findings and conclusions. The
requirement that the trial court make written findings and conclusions serves to aid
appellate review. While it would have been better practice for the trial court to reduce
its oral findings to writing, we hold that those findings are adequate for appellate
review, were supported by competent evidence, supported the conclusions, and
justified the trial court’s ultimate ruling. Accordingly, we overrule this challenge.
As to defendant’s challenge that the trial court failed to issue an order
reflecting that it considered N.C. Gen. Stat. § 15A-1225.1(d)’s five enumerations,
defendant similarly has failed to demonstrate prejudice.
Defendant does not argue that the taking of Tara’s remote testimony, from a
logistical standpoint, prejudiced him in any respect. See Garcia, 358 N.C. at 407–08,
597 S.E.2d at 743 (“[D]efendant . . . has made no attempt . . . to show how the
identified statutory violation prejudiced his case. Defendant has not complained that
the aberrant [jury selection] procedure resulted in a biased jury, an inability to
question the prospective jurors, an interference with his right to challenge, or any
- 16 -
STATE V. PHACHOUMPHONE
Opinion of the Court
other defect without which a different result might have been reached.”). Moreover,
the transcript reflects that the trial court thoughtfully considered N.C. Gen. Stat. §
15A-1225.1(d)’s enumerations.
During the conference on the matter, the following relevant exchange occurred
concerning the logistics of taking Tara’s testimony remotely:
[PROSECUTOR]: Mr. Sheppard is here from the
[Administrative Office of the Courts] with the equipment,
and he has set it up. It had to be somewhere close to the
courtroom. So [Tara] will be in a closed room with, I would
propose, my assistant and just sitting yesterday as she was
in the courtroom, and we will be able to see them and the
interpreter. And [Tara] cannot see us but she can hear us.
And we can see her and everyone around her and every
motion she makes. . . . by remote testimony.
[Tara] will be visible to the court on its monitor and
to the courtroom on this monitor just by television. You
will be able to see her sitting in that room. Mr. Sheppard’s
set up the camera in here and in there and the audio
equipment. There’s a microphone that whoever is
questioning her will probably need to use to facilitate the
best ability for her to hear us, and she will have a
microphone available to her as well. So it will be just like
[Tara]’s sitting here except she’s in another room visible to
us on the screen. You can see and hear everything she does
and says.
THE COURT: So you’re talking about staying in the
courtroom and questioning her from here?
[PROSECUTOR]: Yes, the defendant and counsel
staying . . . .
....
THE COURT: Well, I mean, you certainly would have the
- 17 -
STATE V. PHACHOUMPHONE
Opinion of the Court
option of not being present, but [defense counsel], if he
wished to be present . . . , by statute it says that he has to
be given the opportunity to be physically present with the
witness.
....
THE COURT: So with respect to [defense counsel], if it’s
allowed, then he would have that option of being in [the
courtroom] or being in the room with [Tara]. And then the
statute talks about making sure there’s contact or ability
to communicate with [defendant] . . . during that time
period. . . .
[DEFENSE COUNSEL]: I don’t know how I would
communicate with [defendant] unless he’s in there with
me. It’s a little much to walk back and forth . . . .
THE COURT: . . . [T]he statute contemplates that
[defendant] would not be physically present with you [in
the room with Tara], but we could try to make
arrangements, if it’s allowed, to be closer. In other words,
. . . so the walk maybe isn’t quite as far[.] . . . [T]he statute
. . . contemplates that . . . you would need to have access to
[defendant], to consult with him throughout . . . .
It says, “and has the ability to communicate
privately with the defendant during the testimony.” So we
need to make sure [defendant] is at least close to you.
....
THE COURT: . . . [I]f it’s your thinking[, defense counsel,]
that . . . you don’t wish to be present [in the room with
Tara], that’s fine. That’s your choice. And if you want to
question [Tara] from [the courtroom], that’s fine. If
[defendant] wants to do it from [the courtroom], then he
has that option. If he wants [defense counsel] to go into the
room with [Tara] during the entire direct and cross . . .
obviously you have got that option. That’s your choice.
In terms of where the room is[ ] . . . .
- 18 -
STATE V. PHACHOUMPHONE
Opinion of the Court
Is there an[ adjacent] room . . . where [defendant,] or
out in the hallway[,] where [defendant] could sit in a chair,
. . . close by?
....
THE COURT: . . . [T]he Deputy is indicating somewhere in
the hallway would work, somewhere close by.
....
THE COURT: Just make sure [Tara]’s in the room first,
and then [defendant] . . . can head over just a few steps
away outside into the hallway.
....
THE COURT: . . . So [the prosecutor] want[s] to have the
assistant holding [Tara]? Then are you also intending to
have the interpreter there?
[PROSECUTOR]: Yes, sir. I think just from the chairs and
the setup, it would be easiest if [the support person] sat in
the blue chair and put [Tara] on her lap. So [Tara] would
be far enough up that we could see her the best way
possible, and then the interpreter could sit or stand next to
her[.] . . .
THE INTERPRETER: I probably would sit right behind
her.
....
THE COURT: . . . I will allow [Tara] to sit on the [support]
person’s lap and have the interpreter there.
....
[PROSECUTOR]: Okay. The first thing[ ] . . . logistically
we need to know is whether [defense counsel] prefers to
- 19 -
STATE V. PHACHOUMPHONE
Opinion of the Court
stay in [the courtroom], like I am going to do, or prefers to
go in the room with [Tara].
[DEFENSE COUNSEL]: I prefer to be in the room with
[Tara].
After this conference, the trial court brought out the jury and explained:
THE COURT: [The prosecutor] wants to recall [Tara], and
[she] will be testifying by different means. And I have . . .
made arrangements for . . . [defense counsel,] and for
[defendant] to be close by . . . , in a remote room where there
will be questions and responses. And [defense counsel] will
be in the room with [Tara], though [defendant] will not be
in the room but very close by. . . .
So we will . . . excuse [defense counsel] and
[defendant]. And . . . the [prosecutor is] going to be
questioning . . . [Tara] from the courtroom. So [defense
counsel] will be present [with Tara] but [the prosecutor is]
going to be in the courtroom with us.
As reflected, although the trial court failed to issue a written order, it
thoughtfully considered N.C. Gen. Stat. § 15A-1225.1(d)’s enumerations, and
defendant does not allege any prejudice resulting from the trial court’s consideration
or application of those enumerations in its ruling. Accordingly, we overrule this
challenge.
IV. Motions to Dismiss
Defendant next contends the trial court erred by denying his motions to
dismiss both charges for insufficient evidence. We disagree.
A. Standard of Review
- 20 -
STATE V. PHACHOUMPHONE
Opinion of the Court
We review de novo the denial of a motion to dismiss for insufficient evidence.
State v. Barnett, 368 N.C. 710, 713, 782 S.E.2d 885, 888 (2016) (citation omitted).
Such a motion “is properly denied if substantial evidence exists to show: (1) each
essential element of the offense charged” and “(2) that defendant is the perpetrator
of such offense.” Godley, 234 N.C. App. at 568, 760 S.E.2d at 290 (citation and
quotation marks omitted). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” State v. Brown,
310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citation omitted).
“It is well settled that upon a motion to dismiss in a criminal action, all the
evidence admitted, whether competent or incompetent, must be considered by the
trial judge in the light most favorable to the State, giving the State the benefit of
every reasonable inference that might be drawn therefrom.” Id. Further, “[i]f a
motion to dismiss calls into question the sufficiency of circumstantial evidence, the
issue for the court is whether a reasonable inference of the defendant’s guilt may be
drawn from the circumstances.” State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61
(1991) (citation omitted).
A. First-degree Sex Offense Charge
Defendant first contends the trial court erred by denying his motion to dismiss
the first-degree sex offense with a child charge on the ground that the State presented
insufficient substantial evidence that he digitally penetrated Tara.
- 21 -
STATE V. PHACHOUMPHONE
Opinion of the Court
“A person is guilty of statutory sexual offense with a child by an adult if the
person is at least 18 years of age and engages in a sexual act with a victim who is a
child under the age of 13 years.” N.C. Gen. Stat. § 14-27.28(a) (2015). “ ‘Sexual act’
means” in relevant part “the penetration, however slight, by any object into the
genital . . . opening of another person’s body[.] . . .” Id. § 14-27.20 (2015). A finger is
an “object.” State v. Smith, 180 N.C. App. 86, 95, 636 S.E.2d 267, 273 (2006) (“ ’Any
object’ in this context includes . . . a finger.” (citation omitted)).
During Tara’s remote testimony, she demonstrated by inserting her finger into
a hole which the interpreter created with her hand, that defendant digitally
penetrated her vagina and confirmed that her demonstration showed “what
[defendant] did with his finger in [her] body.” When asked “[h]ow did that feel
physically on your body,” Tara replied: “Bad” and then clarified that “[i]t hurt.” Tara
confirmed that no one “else ever touched [her] the way [defendant] touched [her] in
[her] private part.” When asked where “[defendant] touched [her] private part and
put his finger in it,” Tara replied: “In the living room.” When asked whether she was
clothed, Tara replied that her clothes were off and that defendant had undressed her.
Dr. Cerjan performed a genital examination of Tara one day after the incident. He
testified that during his examination, he discovered that Tara’s hymen was
substantially missing, which he opined was irregular for a six-year-old, and that “the
only thing that would cause it would be a penetrating injury.” He also observed
- 22 -
STATE V. PHACHOUMPHONE
Opinion of the Court
“redness actually in [Tara’s] vaginal area . . . behind where the hymen was,” which
indicated the penetrating injury would have occurred “within the last 48 hours.”
Moreover, the State presented overwhelming corroborative evidence from
which to reasonably infer that defendant digitally penetrated Tara. Responding
officer Sgt. Shockley testified that Tara reported to him that defendant “ ‘was rubbing
[her] down there’ ” and then “pointed toward . . . her genital area.” Det. Proctor
testified that Tara reported to him that defendant “had gotten on top of her,” “had
taken her clothes off and that [defendant] . . . was naked,” and that defendant “had
touched her in her cootie with his hands.” Dr. Cerjan testified that Tara reported
that defendant “took [her clothes] off,” “touched her with . . . his hands,” and then
“pointed to her groin.” Accordingly, the trial court did not err in denying defendant’s
motion to dismiss the first-degree sexual offense with a child charge for insufficient
evidence.
Defendant also contends the trial court erred by denying his motion to dismiss
this charge because the State failed to present evidence that he digitally penetrated
Tara within the time frame specified in the indictment, August 2014. However, at
trial, defendant only moved to dismiss this charge on the basis that the State failed
to present substantial evidence of penetration, not that the State failed to present
evidence that he penetrated Tara during August 2014. Because defendant never
moved to dismiss this charge on the ground that there existed a fatal variance
- 23 -
STATE V. PHACHOUMPHONE
Opinion of the Court
between the trial evidence and the indictment, he waived his right to appellate review
of this issue. See State v. Jones, 223 N.C. App. 487, 495–497, 734 S.E.2d 617, 623–24
(2012) (dismissing alleged indictment variance error as unpreserved where the
defendant moved to dismiss for insufficient evidence but not on the grounds of a fatal
variance between the trial evidence and indictment), aff’d, 367 N.C. 299, 758 S.E.2d
345 (2014). Accordingly, we dismiss this challenge.
B. Indecent Liberties Charge
Defendant next contends the trial court erred by denying his motion to dismiss
the indecent liberties charge because the State failed to present sufficient evidence
he committed an act of indecent liberties. We disagree.
The essential elements of indecent liberties with a child under N.C. Gen. Stat.
§ 14-202.1(a) (2015) follow:
(1) the defendant was at least 16 years of age, (2) he [or
she] was five years older than his [or her] victim, (3) he [or
she] willfully took or attempted to take an indecent liberty
with the victim, (4) the victim was under 16 years of age at
the time the alleged act or attempted act occurred, and (5)
the action by the defendant was for the purpose of arousing
or gratifying sexual desire.
State v. Rhodes, 321 N.C. 102, 104–05, 361 S.E.2d 578, 580 (1987) (citation omitted).
Defendant only challenges element three: that he took or attempted to take
an indecent liberty with Tara. Having concluded above that the State presented
substantial evidence that defendant digitally penetrated Tara, this same act supports
- 24 -
STATE V. PHACHOUMPHONE
Opinion of the Court
the challenged element of this offense. See State v. Swann, 322 N.C. 666, 667–78,
370 S.E.2d 533, 539–40 (1988) (holding that the same act may support convictions
and sentences for both first-degree sex offense and indecent liberties). Accordingly,
the trial court did not err in denying the motion to dismiss the indecent liberties
charge for insufficient evidence.
V. Improper Closing Remarks
Defendant next contends the trial court erred by failing to intervene ex mero
motu when the State argued during its closing argument to the jury
impeachment/corroborative evidence as substantive evidence. We disagree.
“The standard of review for assessing alleged improper closing arguments that
fail to provoke timely objection from opposing counsel is whether the remarks were
so grossly improper that the trial court committed reversible error by failing to
intervene ex mero motu.” State v. Waring, 364 N.C. 443, 499, 701 S.E.2d 615, 650
(2010) (citation and quotation marks omitted). “Under this standard, only an extreme
impropriety on the part of the prosecutor will compel [an appellate court] to hold that
the trial judge abused his discretion in not recognizing and correcting ex mero motu
an argument that defense counsel apparently did not believe was prejudicial when
originally spoken.” State v. Anthony, 354 N.C. 372, 427, 555 S.E.2d 557, 592 (2001)
(citation, quotation marks, and brackets omitted). “To establish such an abuse, [the]
defendant must show that the prosecutor’s comments so infected the trial with
- 25 -
STATE V. PHACHOUMPHONE
Opinion of the Court
unfairness that they rendered the conviction fundamentally unfair.” Waring, 364
N.C. at 499–500, 701 S.E.2d at 650 (citation and quotation marks omitted).
“Generally, prosecutors are given wide latitude in the scope of their argument
and may argue to the jury the law, the facts in evidence, and all reasonable inferences
drawn therefrom.” State v. Goss, 361 N.C. 610, 626, 651 S.E.2d 867, 877 (2007)
(citations and internal quotation marks omitted). During closing argument, a
prosecutor “may, . . . on the basis of his analysis of the evidence, argue any position
or conclusion with respect to a matter in issue”; however, a prosecutor “may not . . .
express his [or her] personal belief as to the truth . . . of the evidence or as to the guilt
. . . of the defendant[.] . . .” N.C. Gen. Stat. § 15A-1230(a) (2015). Additionally,
arguing corroborative or prior-inconsistent-statements to the jury is error. See, e.g.,
State v. Easterling, 300 N.C. 594, 604, 268 S.E.2d 800, 806 (1980) (“The statement
having been offered only corroboratively, it was improper for the State to allude to it
as substantive evidence during closing argument.” (citation omitted)); State v. Tucker,
317 N.C. 532, 544, 346 S.E.2d 417, 424 (1986) (“Although it was proper to cross-
examine defendant concerning his prior convictions on the question of his credibility,
these convictions were not admissible as substantive evidence tending to prove his
guilt. It was error for the trial court to permit the prosecutor to argue as if they
were.”).
Here, defendant challenges the following argument the State made to the jury:
- 26 -
STATE V. PHACHOUMPHONE
Opinion of the Court
[Defendant] was naked. [Tara] was naked. He was
hovering over her playing with himself which his sister
demonstrated and the child demonstrated and the sister
said with his finger in her vagina. That ladies and
gentlemen, is proof beyond a reasonable doubt. It’s frankly
proof beyond every doubt.
To the extent these statements came solely from Sara’s and Tara’s out-of-court
statements that were inconsistent with their trial testimony, the prosecutor
inappropriately recited those statements as substantive evidence. However, “[t]o
merit a new trial, the prosecutor’s remarks must have perverted or contaminated the
trial such that they rendered the proceedings fundamentally unfair.” State v.
Phillips, 365 N.C. 103, 136, 711 S.E.2d 122, 146 (2011) (citation and internal
quotation marks omitted). To this end, defendant, without citing to any legal
authority, advances the following argument: “The [prosecutor] argued to the jury,
with the tacit approval of the trial judge, that [Sara’s] and [Tara’s] out of court
statements were sufficient for them to find defendant guilty beyond a reasonable
doubt, even ‘beyond any doubt.’ But for the [prosecutor]’s improper prejudicial closing
argument, the jury would have reached a different verdict.”
In light of the substantive evidence elicited from Tara’s remote testimony, the
trial court’s later instruction limiting the jury from considering prior-inconsistent-
statements as substantive evidence, and the other overwhelming evidence of his guilt,
we conclude that defendant has failed to “carr[y] the heavy burden of showing that
- 27 -
STATE V. PHACHOUMPHONE
Opinion of the Court
the trial court erred in not intervening on his behalf.” State v. Thompson, 188 N.C.
App. 102, 110, 654 S.E.2d 814, 819 (2008). Accordingly, we overrule this challenge.
VI. Conclusion
Although the trial court failed to follow N.C. Gen. Stat. § 15A-1225.1’s
procedural requirements, defendant has failed to demonstrate how he was prejudiced
by any of these alleged procedural errors. Because the State presented substantial
evidence of the challenged elements of both crimes, the trial court properly denied
defendant’s motions to dismiss those charges for insufficient evidence. Finally,
although the prosecutor erred to the extent it may have argued prior-inconsistent
statements to the jury, defendant failed to satisfy his burden of demonstrating how
this argument rendered the proceedings fundamentally unfair. Accordingly, the trial
court did not abuse its discretion by failing to intervene ex mero motu during the
State’s closing argument.
NO PREJUDICIAL ERROR.
Judges DIETZ and INMAN concur.
- 28 -