State v. Diaz , 256 N.C. App. 528 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-444
Filed: 21 November 2017
Pitt County, No. 15CRS052923, 15CRS055098, 15CRS055100-02
STATE OF NORTH CAROLINA
v.
RAUL PACHICANO DIAZ, Defendant.
Appeal by Defendant from judgments entered 18 May 2016 by Judge Jeffery
B. Foster in Pitt County Superior Court. Heard in the Court of Appeals 3 October
2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Neil
Dalton, for the State.
Marilyn G. Ozer, for Defendant-Appellant.
MURPHY, Judge.
The State may not condition one constitutional right upon the violation of
another. Thus, a defendant cannot be required to make a sworn statement asserting
his date of birth in his affidavit of indigency and the State use this evidence against
him later to prove elements of alleged crimes.
Raul Pachicano Diaz (“Defendant”) appeals from jury verdicts convicting him
of abduction of a child, three counts of statutory rape, and four counts of second degree
sexual exploitation. On appeal, Defendant argues: (1) his constitutional rights to due
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Opinion of the Court
process, a fair trial before an impartial jury, and against self-incrimination were
violated when the State gave jurors copies of his affidavit of indigency; and (2) there
was insufficient evidence on the abduction of a child charge for the charge to go to the
jury. We grant Defendant a new trial on the abduction of a child charge and statutory
rape charges, and hold the trial court did not commit error in allowing jurors to see
Defendant’s amount of bond in his affidavit and in denying Defendant’s motion to
dismiss the abduction of a child charge.
I. Background
The State’s evidence tended to show the following. Defendant and Julie1 began
dating in “late fall, early winter” of 2014. Julie was a freshman in high school, and
Defendant was a senior at the same school. At that time, Julie was fourteen years
old. Defendant first told Julie he was eighteen years old, but she later found out he
was nineteen years old.
Beginning in January 2015, the two started skipping school together.
Sometimes the two went “out” or to Durham, but other times the two went to
Defendant’s home. While at Defendant’s home, the two engaged in sexual intercourse
on multiple occasions. During one of their sexual engagements in March or April,
Defendant asked Julie if he could record the two of them having sex. Julie agreed to
1 We use this pseudonym to protect the identity of the juvenile.
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let Defendant tape them, but then later worried Defendant would use it to
“manipulate” her. Defendant taped their sexual activity on multiple occasions.
Sometime in March or April, Defendant got the idea to leave town. Julie
agreed to leave for several reasons: First, she was in love with Defendant. Second,
Defendant told Julie that if she did not go with him, she was never going to see him
again. Third, Julie feared he would “use those videos to manipulate [her]” by showing
them to people. While Defendant did not force Julie to go with him, she “felt forced.”
At first, Julie was “nervous, scared, afraid, [and] sad” to leave town, but then she
became “excited and happy” at the prospect of “mak[ing] things different.” Julie did
not tell her mother she planned to leave town.
On 14 April 2015, Julie got on her school bus, as if she was attending school,
but then got off the bus and met Defendant. The two waited for Julie’s mother to
leave Julie’s home. After Julie’s mother was gone, they went to Julie’s home and
packed Julie’s belongings. Then, they went and retrieved Defendant’s belongings
from his home.
The two drove Defendant’s car to Defendant’s uncle’s home in New Mexico.
Once they arrived, Defendant’s uncle told them they had to “do things right” and
instructed Julie and Defendant to go back home. Defendant’s uncle also told Julie to
call her mother. Julie called her mother, but refused to tell her mother where she
was.
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Defendant and Julie left New Mexico and drove to Broken Arrow, Oklahoma.
There, the two “tried to get settled.” Both Defendant and Julie began working, and
the two leased an apartment together. On 20 May 2015, U.S. Marshals arrived at
Julie’s place of work. The Marshals asked for her, and she tried to lie and conceal
her identity. The Marshals took her away,2 and then she flew to Charlotte.
On 2 June 2015, Julie gave a written statement to Detective Mitchell of the
Pitt County Sheriff’s Office. In the written statement, Julie asserted Defendant said,
“If you want to go back, I’ll take you back. I[’]m not forcing you to do anything!” Julie
told Defendant, “No I don’t want to go back. I don’t want to!” However, at trial Julie
asserted that at the time she wrote the statement, she still loved Defendant and “felt
that [she] had to protect him.”
On or about 3 June 2015, Defendant was arrested.3 On 14 September 2015, a
Pitt County Grand Jury indicted Defendant for abduction of a child, three counts of
statutory rape, and four counts of first degree sexual exploitation of a minor.
On 6 October 2015, Defendant completed an affidavit of indigency. In the
sworn affidavit, Defendant asserted his date of birth was 20 November 1995.
2 Julie testified the U.S. Marshals took her to “where they put the bad children”, and she could
not remember the name of the location.
3 Two of the warrants for arrest list 3 June 2015 as the date of arrest. Defendant’s brief also
asserts the date he was served with warrants of arrest was 3 June 2015. We note some of the warrants
have an ineligible date marked as the date of arrest, and others are dated for 8 July 2015.
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Opinion of the Court
Additionally, the affidavit listed Defendant’s “Bond Type” as “Secured”, in an amount
of $500,000.00.
On 16 May 2016, Defendant’s case came on for trial. Julie and her mother
testified. Following Julie’s testimony, the State moved to admit the affidavit of
indigency into evidence. Defendant objected on the grounds of “relevance, due
process, hearsay, [and] confrontation.” The trial court overruled Defendant’s
objection and allowed the State to publish the affidavit to the jury by distributing an
individual copy to each juror. When the State rested, Defendant moved to dismiss all
of the charges against him. The trial court denied Defendant’s motions. Defendant
did not present any evidence, and Defendant renewed his motions to dismiss. The
trial court denied Defendant’s motions.
The jury found Defendant guilty of abduction of a child, three counts of
statutory rape, and four counts of second degree sexual exploitation. The trial court
sentenced Defendant as a prior record level I. The court consolidated the abduction
convictions and all three statutory rape convictions and sentenced Defendant to 65 to
138 months imprisonment. The court also ordered Defendant pay $1,054.10 in
restitution, for Julie’s flight from Oklahoma to Charlotte. For the sexual exploitation
convictions, the court imposed four consecutive suspended terms of 25 to 90 months
imprisonment. Lastly, the court imposed 36 months of supervised probation for each
sexual exploitation conviction. Defendant filed timely written notice of appeal.
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II. Standard of Review
We review preserved violations of constitutional rights de novo. State v.
Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citing State v. Tate, 187
N.C. App. 593, 599, 653 S.E.2d 892, 897 (2007)). “Once error is shown, the State bears
the burden of proving the error was harmless beyond a reasonable doubt.” Id. at 214,
683 S.E.2d at 444 (citing N.C.G.S. § 15A-1443 (b) (2009)). “In determining whether
error is harmless beyond a reasonable doubt, . . . the rule is that if there is a
reasonable possibility that the evidence complained of might have contributed to the
conviction, it is not harmless beyond a reasonable doubt.” State v. Knight, 53 N.C.
App. 513, 514-15, 281 S.E.2d 77, 78 (1981).
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).
“Upon defendant’s motion for dismissal, the question for the Court is whether there
is substantial evidence (1) of each essential element of the offense charged, or of a
lesser offense included therein, and (2) of defendant’s being the perpetrator of such
offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526
S.E.2d 451, 455 (2000) (quotation marks and citation omitted). “In making its
determination, the trial court must consider all evidence admitted, whether
competent or incompetent, in the light most favorable to the State, giving the State
the benefit of every reasonable inference and resolving any contradictions in its
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Opinion of the Court
favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515
U.S. 1135, 132 L. Ed. 2d 818 (1995).
Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence
does not rule out every hypothesis of innocence. If the
evidence presented is circumstantial, the court must
consider whether a reasonable inference of defendant’s
guilt may be drawn from the circumstances. Once the court
decides that a reasonable inference of defendant’s guilt
may be drawn from the circumstances, then it is for the
jury to decide whether the facts, taken singly or in
combination, satisfy it beyond a reasonable doubt that the
defendant is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (quotation marks, citations, brackets, and
emphasis omitted).
III. Analysis
We address Defendant’s arguments in two parts: (1) Defendant’s affidavit of
indigency; and (2) Defendant’s motion to dismiss the abduction of a child charge.
A. Defendant’s Affidavit of Indigency
Defendant alleges the trial court erred in allowing jurors to see his affidavit of
indigency for two reasons: (1) it violated his right to a fair trial because it indicated
he was under a secured bond of $500,000, which had not been posted, thus, indicating
he was still in custody; and (2) putting his date of birth on the affidavit violated his
right against self-incrimination. We address these arguments in turn, but first we
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Opinion of the Court
must determine whether Defendant properly preserved his objection for appellate
review.
i. Preservation for Appellate Review
After his valid objection to preserve his constitutional rights, Defendant failed
to specifically obtain a ruling from the trial court on the constitutional issues he now
attempts to raise on appeal. Thus, Defendant has not properly preserved these
constitutional issues for appellate review.
In order to preserve a question for appellate review, a party
must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon
the party’s request, objection or motion.
State v. Blizzard, 169 N.C. App. 285, 292, 610 S.E.2d 245, 250 (2005) (emphasis
added) (citation omitted); see N.C.R. App. P. 10(a) (1) (2017). “Assignments of error
are generally not considered on appellate review unless an appropriate and timely
objection was entered and ruling obtained.” Id. at 292, 610 S.E.2d at 250 (emphasis
added) (citing State v. Short, 322 N.C. 783, 790, 370 S.E.2d 351, 355 (1988)). As such,
“a constitutional question which is not raised and passed upon in the trial court will
not ordinarily be considered on appeal.” State v. Hunter, 305 N.C. 106, 112, 286
S.E.2d 535, 539 (1982) (emphasis added) (citations omitted).
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Opinion of the Court
In the instant case, the State moved the trial court to admit into evidence
Defendant’s affidavit of indigency as a certified true copy of a public document.
Defendant objected, listing both evidentiary and constitutional grounds for the
objection, and the trial court ruled as follows:
[Defense counsel]: We would object, your Honor; relevance,
due process, hearsay, confrontation.
THE COURT: All right. The Court is going to find that the
document marked State’s Exhibit 3 is an affidavit of
indigency. The document was signed by the Defendant
under oath before the deputy clerk of court on October 6th,
2015. That this is a true copy of the original document as
it appears in the court file in these matters, at the District
Court level. And pursuant to 902, Rule 902 Rules of
Evidence, it is a self-authenticating document, and the
Court is going to admit it into evidence.
(emphasis added).
Where, as here, the trial court did not rule on Defendant’s objection on
constitutional grounds, this Court should not consider for the first time on appeal the
constitutional questions Defendant raises now. See id. at 112, 286 S.E.2d at 539; see
State v. Davis, 198 N.C. App. 146, 148-49, 678 S.E.2d 709, 712-13 (2009) (invoking
Rule 2 in order to address the question raised by the defendant on appeal which
defendant failed to preserve for appellate review where the defendant’s counsel failed
to obtain a ruling on the issue). However, based on the specific circumstances in this
case and in order to avoid the possibility of a manifest injustice, we exercise our
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Opinion of the Court
discretion under Rule 2 of the North Carolina Rules of Appellate Procedure and reach
the merits of Defendant’s constitutional arguments. N.C.R. App. P. 2 (2017).
ii. The Amount of Bond on the Affidavit of Indigency
Defendant first argues the amount of bond on his affidavit of indigency violated
his constitutional right to a fair trial. Specifically, Defendant argues he was
prejudiced by the jurors knowing he was in custody. We disagree.
“Essential to the concept of due process is the principle that every person who
stands accused of a crime is entitled to the ‘fundamental liberty’ of a fair and
impartial trial.” State v. Tolley, 290 N.C. 349, 364, 226 S.E.2d 353, 366 (1976)
(citations omitted). The presumption of innocence “is a basic component of a fair trial
under our system of criminal justice.” Id. at 364, 226 S.E.2d at 366 (citations
omitted). Thus, “courts must guard against factors which may undermine the
fairness of the fact-finding process and thereby dilute the principle that guilt is to be
established by probative evidence and beyond a reasonable doubt.” Id. at 365, 226
S.E.2d at 366 (quotation marks and citations omitted).
From these rules, our appellate courts have held, generally, a defendant may
not be shackled or bonded during trial. Our Supreme Court listed three reasons for
not physically restraining a defendant during trial:
(1) it may interfere with the defendant’s thought processes
and ease of communication with counsel, (2) it intrinsically
gives affront to the dignity of the trial process, and most
importantly, (3) it tends to create prejudice in the minds of
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Opinion of the Court
the jurors by suggesting that the defendant is an obviously
bad and dangerous person whose guilt is a foregone
conclusion.
Id. at 366, 226 S.E.2d at 367. (citations omitted).
However, the Tolley rule has not been extended beyond a defendant being
physically restrained in the courtroom. First, in State v. Montgomery, 291 N.C. 235,
229 S.E.2d 904 (1976), our Supreme Court declined to extend Tolley to a situation
where several jurors saw the defendant in handcuffs while being taken from the jail
to the courthouse. Id. at 251-52, 229 S.E.2d at 913-14. The Court highlighted the
fact that the “defendant was never shackled or bound while in the courtroom.” Id. at
250, 229 S.E.2d at 912. Next, in State v. Fowler, 157 N.C. App. 564, 579 S.E.2d 499(2003), defendant argued the trial court committed constitutional error when the trial
court told the jury he was in the custody of the Sheriff’s Department. Id. at 566, 579
S.E.2d at 500-01. This Court rejected that argument and stated “the statements by
the trial court do not create the same prejudice to the defendant as that raised when
a defendant appears in court in shackles or prison garb.” Id. at 566, 579 S.E.2d at
501 (citation omitted).
Defendant argues the information on the affidavit of indigency violated his
presumption of innocence. Specifically, Defendant complains the amount of a high
bond lended itself to jurors believing the magistrate “considered the crime so grave
and the risk of escape so high[.]” Additionally, Defendant contends that because the
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Opinion of the Court
“By Whom Posted” portion was left blank, “the jurors could have understood that
[Defendant] had not been able to make bond and was in custody.”
We hold that even if the jurors inferred Defendant was in custody and unable
to pay the $500,000 bond, his right to a fair trial was not violated. As in Fowler,
there is some evidence before the jury that Defendant was in custody, but Defendant
was not shackled or handcuffed in the courtroom. Id. at 566, 579 S.E.2d at 500-01.
This inference does “not create the same prejudice to the defendant as that raised
when a defendant appears in court in shackles or prison garb.” Id. at 566, 579 S.E.2d
at 501 (citations omitted). Accordingly, we hold Defendant’s right to a fair trial was
not violated by the jurors seeing his bond amount, and that no one had posted bond,
on his affidavit of indigency.
iii. Defendant’s Date of Birth on the Affidavit of Indigency
Defendant next argues his constitutional right against self-incrimination was
violated by the State admitting his affidavit of indigency into evidence, which
contained his date of birth. We agree.
Our Supreme Court in State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995) held:
[a] defendant cannot be required to surrender one constitutional right
in order to assert another. Simmons v. United States, 390 U.S. 377, 394,
19 L. Ed. 2d 1247, 1259 (1968). A criminal defendant has a
constitutional privilege against compulsory self-incrimination. U.S.
Const. amend[s]. V, XIV; N.C. Const. art. I, § 23.
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Opinion of the Court
Id. at 274, 457 S.E.2d at 847. Thus, Defendant cannot be required to complete an
affidavit of indigency to receive his right to counsel, and the State then use the
affidavit against Defendant, violating his constitutional right against self-
incrimination. The abduction of a child offense requires Julie to be at least four years
younger than Defendant. N.C.G.S. § 14-41 (2015). The statutory rape offenses
require the State to prove Defendant was “more than four but less than six years
older” than Julie at the time of the offenses. N.C.G.S. § 14-27.7A(b) (2015).
We conclude the trial court erred in admitting the affidavit of indigency, which
showed Defendant’s age—an element in the abduction of a child charge and the
statutory rape charges—over Defendant’s objection. The State cannot violate
Defendant’s right against self-incrimination to prove an element of charges against
Defendant. Now, we must determine whether this error was harmless beyond a
reasonable doubt. See N.C.G.S. § 15A-1443 (b) (2015).
In its assertion that the error was harmless beyond a reasonable doubt, the
State points to the following portion of Julie’s testimony:
Q. . . . Do you know how old [Defendant] was back during
this time period?
A. In the beginning, he told me he was eighteen. But then
I found out he was nineteen.
Q. Do you know what his birthdate was?
A. November the 26th.
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Opinion of the Court
Q. Do you happen to know what year he was born in?
A. 1995.
Defendant cross-examined Julie about her knowledge of Defendant’s birthdate,
specifically that she had never seen Defendant’s driver’s license, birth certificate, or
his passport.
We conclude the State has failed to meet the exceedingly high burden of
showing this error was harmless beyond a reasonable doubt. Notably, Julie’s
testimony about Defendant’s date of birth was incorrect. Julie testified Defendant
was born on 26 November 1995, but the affidavit reflects that Defendant was born on
20 November 1995. Additionally, as evinced through cross-examination, Julie did not
testify regarding a basis for her knowledge. Julie had never seen an official document
showing Defendant’s correct date of birth or age. Based on this, we conclude “there
is a reasonable possibility that the evidence complained of might have contributed to
the conviction” and the error is not harmless beyond a reasonable doubt. Knight, 53
N.C. App. at 514, 281 S.E.2d at 78.
Accordingly, we grant Defendant a new trial on the abduction of a child charge
and the statutory rape charges. We do not grant Defendant a new trial on the sexual
exploitation of a minor convictions because Defendant’s age is not an element of that
offense. See N.C.G.S. § 14-190.17 (2015). We still address Defendant’s argument
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Opinion of the Court
regarding his motion to dismiss the abduction of a child charge, as any alleged error
may occur again at his new trial.
B. Motion to Dismiss the Abduction of a Child Charge
Defendant next argues the trial court erred by denying his motion to dismiss
the abduction of a child charge. Defendant contends the evidence only shows Julie
voluntarily left her home. We disagree.
N.C.G.S. § 14-41, titled “Abduction of children”, states:
(a) Any person who, without legal justification or defense,
abducts or induces any minor child who is at least four
years younger than the person to leave any person, agency,
or institution lawfully entitled to the child’s custody,
placement, or care shall be guilty of a Class F felony.
Id. (emphasis added). “It is ‘not necessary for the State to show she [(the victim)] was
carried away by force, but evidence of fraud, persuasion, or other inducement
exercising controlling influence upon the child’s conduct would be sufficient to sustain
a conviction’ for this offense.” State v. Lalinde, 231 N.C. App. 308, 312-13, 750 S.E.2d
868, 872 (2013) (quoting State v. Ashburn, 230 N.C. 722, 723, 55 S.E.2d 333, 333-34
(1949)). “Of course, if there is no force or inducement and the departure of the child
is entirely voluntary, there is no abduction.” State v. Burnett, 142 N.C. 577, 581, 55
S.E. 72, 74 (1906).4
4 This decision was reprinted in 1913 as 142 N.C. 577.
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Opinion of the Court
The evidence presented at trial shows: (1) it was Defendant’s decision to leave;
(2) Julie characterized 14 April 2015 as the day “we decided to leave”; (3) Defendant
videoed the two having sexual relations; (4) Julie wondered if he would use the tapes
against her; (5) there is no evidence that Defendant threatened to use the tapes
against her; (6) Julie testified she left with Defendant because she was in love with
him and because he said she would never see him again if she did not go with him;
and (7) When asked if Defendant forced her to go, Julie testified, “No, he didn’t, but I
felt forced.”
When viewing all the evidence in a light most favorable to the State, there is
sufficient evidence to survive Defendant’s motion to dismiss. When asked why she
left with Defendant, Julie testified, “[Defendant] was like, ‘If you don’t come with me,
you’re never going to see me again[.]’” This testimony indicates that Defendant
induced Julie to leave with him. The evidence presented raises more than just a
suspicion or mere conjecture of guilt. Accordingly, we hold the trial court did not err
in denying Defendant’s motion to dismiss the abduction of a child charge.
IV. Conclusion
For the reasons stated above, we grant Defendant a new trial on the abduction
of a child charge and the statutory rape charges. We hold the trial court committed
no error by allowing jurors to see the amount of bond on Defendant’s affidavit of
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Opinion of the Court
indigency and by denying Defendant’s motion to dismiss the abduction of a child
charge.
NEW TRIAL IN PART; NO ERROR IN PART.
Judge BRYANT concurs.
Judge ARROWOOD concurs in result only.
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