State v. Barrett

746 S.E.2d 413, 228 N.C. App. 655, 2013 WL 3990682, 2013 N.C. App. LEXIS 845
CourtCourt of Appeals of North Carolina
DecidedAugust 6, 2013
DocketNo. COA12-1530
StatusPublished
Cited by1 cases

This text of 746 S.E.2d 413 (State v. Barrett) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barrett, 746 S.E.2d 413, 228 N.C. App. 655, 2013 WL 3990682, 2013 N.C. App. LEXIS 845 (N.C. Ct. App. 2013).

Opinion

BRYANT, Judge.

Where the victim’s pre-trial statements were admitted to corroborate her trial testimony and generally tracked her trial testimony, we find no error. Where the fact that law enforcement had a record of defendant’s date of birth as a result of prior unrelated arrests was admitted into evidence, we find no prejudicial error. Where there is no indication the trial court committed a clerical error in its written judgment precluding defendant from residing with his minor children, we overrule defendant’s argument. However, we remand for correction of a clerical error on the special conditions of probation form where the trial coxirt failed to mark the box indicating that a reportable conviction involved the sexual abuse of a minor.

On 3 December 2009, defendant Jeffery James Barrett was arrested and subsequently indicted on charges of taking indecent liberties with a child and giving fortified wine to a person under twenty-one years of age. A trial commenced in Union County Superior Court during the session beginning 20 August 2012, the Honorable Anna M. Wagoner, Judge presiding.

At trial, the State presented evidence which showed that on 21 August 2009, the victim, a fifteen year old girl named Lucy1, was living with her adoptive mother and two older foster brothers in Wingate, N.C. One of the foster brothers was defendant Jeffery Barrett, who was thirty-nine years old.

On 21 August 2009, defendant invited Lucy to watch a ballgame at Walter Bickett Stadium in Monroe, N.C. When they arrived at the ballpark around 9:30 p.m., the game had ended. Defendant then drove to a gas station/convenience store and purchased an apple-flavored drink that he shared with Lucy. Lucy testified the beverage tasted like alcohol and made her feel “[w]oozy.” Defendant then drove Lucy to Dickerson Park, an area with which Lucy was unfamiliar. At the park, defendant told Lucy “I want to show you something.” Defendant lowered the back of Lucy’s car seat and started to kiss her neck. Defendant repeated “I want to show you something[.]” Lucy testified that when she asked what it was, defendant touched her breast and rubbed her vagina, through her clothing. Lucy testified that she asked him to stop more than two times, but defendant continued. Defendant then told Lucy he wanted to lick her, at which point Lucy pushed defendant off of her and ran from the car, out of the park. Lucy ran until she came to a police station, [657]*657which she found locked, then continued running until she came to a convenience store.

A store clerk, Estella Segura, testified that she was working at the Sunoco gas station on Franklin Street in Monroe during the evening of 21 August 2009. She identified Lucy as the young woman who came into the store that evening.

A. She came in - I guess she was running because she came in fast through the door. She was shaky, she was kind of like - looked like she was crying.
Q. Did she seem upset?
A. Yes.
Q. Did she talk to you?
A. Not too much. She just - what she said - she just told me what - what she - what happened....
She said her brother had tried to rape her.

Segura called the police. Detective Katherine Hower with the Monroe Police Department received a call from the police communications center reporting a possible rape shortly before midnight. Det. Hower responded to the call, and spoke with Lucy at the convenience store and then again at the police station. Detective Hower testified to the events that occurred that night as they were related to her by Lucy.

Detective Shannon Huntley, an officer in the Monroe Police Department who was assigned to the juvenile investigations unit, also interviewed Lucy and testified to statements Lucy made during the interview. Det. Huntley related that Lucy was enrolled in a school curriculum for exceptionally challenged children - “children who either are handicapped or have cognitive disabilities or typically are lower functioning individuals.” Det. Huntley testified that on 21 August 2009, Lucy was fifteen years old and defendant was thirty-nine years old.

Following the presentation of the State’s evidence, the trial court granted defendant’s motion to dismiss the charge of giving fortified wine to a person less than twenty-one years old. Defendant did not present any evidence. Following the close of all the evidence, the jury returned a verdict of guilty on the charge of taking indecent liberties with a child. The trial court entered judgment in accordance with the jury verdict and sentenced defendant to an active term of seventeen to twenty-one [658]*658months. The trial court then suspended the sentence and placed defendant on supervised probation for a period of thirty months, including special conditions. Defendant appeals.

On appeal, defendant raises the following issues: (I) whether the trial court committed plain error by admitting prior statements made by Lucy for corroboration; (II) whether defendant was prejudiced by the admission of a reference to his prior unrelated arrests; and (III) whether a clerical error was made on defendant’s judgment and commitment order.

I

Frst, defendant argues the trial court committed plain error by admitting prior statements made by the victim for corroboration where they directly contradicted trial testimony, added significant new evidence, and were offered for the truth of the matter asserted. We disagree.

Standard of Review

At trial, the prosecutor for the State questioned store clerk Estelle Segura, Det. Hower, and Det. Huntley each about statements Lucy made on the night of 21 August 2009 or during the ensuing investigation. Defendant objected to each question as calling for a hearsay response. The trial court overruled each objection, allowing the witness to testify for purposes of providing corroboration. Following the testimony, defendant failed to object and move to strike the testimony on the basis of inconsistent or contrary testimony that failed to corroborate Lucy’s trial testimony.

Now, on appeal, defendant argues that the testimony admitted for purposes of corroboration directly contradicts Lucy’s trial testimony, adds significant new evidence, and was offered for the truth of the matter asserted. Because this argument against the admission of trial testimony was not presented before the trial court, we review it only for plain error.

[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where the error is grave error which amounts to a denial of a fundamental right of the accused, or the error [659]*659has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326

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Bluebook (online)
746 S.E.2d 413, 228 N.C. App. 655, 2013 WL 3990682, 2013 N.C. App. LEXIS 845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barrett-ncctapp-2013.