State v. Berry

761 S.E.2d 700, 235 N.C. App. 496, 2014 WL 3823542, 2014 N.C. App. LEXIS 826
CourtCourt of Appeals of North Carolina
DecidedAugust 5, 2014
DocketCOA13-953
StatusPublished
Cited by5 cases

This text of 761 S.E.2d 700 (State v. Berry) 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. Berry, 761 S.E.2d 700, 235 N.C. App. 496, 2014 WL 3823542, 2014 N.C. App. LEXIS 826 (N.C. Ct. App. 2014).

Opinions

STEELMAN, Judge.

In accepting a stipulation of the parties and giving an instruction to the jury on howto consider the stipulation, the trial court did not express an opinion on a question of fact to be decided by the jury in violation of N.C. Gen. Stat. § 15A-1222 or express an opinion as to whether a fact had been proved in violation of N.C. Gen. Stat. § 15A-1232. Plain error review is not applicable to appellate review of a stipulation entered into by defendant at trial. The record does not provide sufficient information for this court to rule on defendant’s ineffective assistance of counsel claim, and that claim is dismissed without prejudice to defendant raising the claim in a motion for appropriate relief filed by the trial court.

I. Factual and Procedural Background

Eddie D. Berry (defendant) met Annalean Rogers (Annalean) in June of 2000. Shortly thereafter he moved into the apartment she shared with her four children: daughters A.R. and B.R. and sons C.R. and D.R. Defendant married Annalean on 5 July 2004 and assumed the role of stepfather to A.R. and her siblings.

At the time of the trial, A.R. was eighteen years old. A.R. testified that defendant sexually assaulted her for the first time a couple of weeks before defendant and Annalean got married. A.R. testified that the sexual assaults continued for several years. The final incident occurred on 4 July 2009. After this incident, A.R. called her uncle, Roy Rogers (Roy), and told him what had happened. A.R. called the police and gave a statement to Officer Robert Lovette (Officer Lovette) of the Graham Police Department. On 15 February 2010, defendant was indicted for taking indecent liberties with a child. A superseding indictment was issued on 26 November 2012 charging defendant with one count of indecent liberties with a child and one count of statutory rape.

At trial, by stipulation of the parties, the State entered into evidence a redacted interview report by Janet Hadler (Hadler), a clinical social worker who interviewed A.R. Her report contained some statements that contradicted A.R.’s trial testimony. The report also contained the following:

TSCC: This report should be used as only one source of information about the individual being evaluated. In this [498]*498respect, no decisions should be based solely on the information contained in this report. The raw and standardized scores contained in this report should be integrated with other sources of information when making decisions about this individual. [A.R.]’s TSCC is considered to be valid. . . . [A.R.]’s scores were in the clinically significant range for the following TSCC Clinical Scales/Subscales: Anxiety (T-score 67), . . . Fantasy (T-score 68), Sexual Concerns (T-score 120), Sexual Preoccupation (T-score 105), and Sexual Distress (T-score 133.) According to the manual, T-scores at or above 65 axe considered clinically significant. For the SC (sexual concerns) scale and it’s [sic] subscales SC-P and SC-D, T-scores at or above 70 are considered clinically significant. The manual states, “children with especially elevated scores on the SC scale may have been prematurely sexualized or sexually traumatized. This can occur as a result of childhood sexual abuse, [sic] exposure to pornography, witnessing sexual acts, or, in the case of adolescents, sexual assault by a peer.”

Hadler was unable to testify at trial due to a family illness. The parties stipulated that redacted portions of Hadler’s report be received as evidence for the purpose of corroborating A.R.’s testimony. The stipulation read as follows:

Janet Hadler, licensed clinical social worker, performed a child family evaluation of [A.R.] in September and October of 2009. Ms. Hadler is unavailable due to family illness. The parties have stipulated that the portion of her report of her interview with [A.R.] may be entered into evidence without her presence. This evidence may be considered for the purpose of corroboration of the witness, [A.R.],

During a conference with counsel outside of the presence of the jury, the trial judge indicated that he would allow the report to be entered into evidence as State’s Exhibit 6 pursuant to the agreed upon stipulation, which would be marked as State’s Exhibit 7. The trial judge further indicated that:

I’ll then give a limiting instruction that is consistent with pattern instruction 101.41 out of the civil pattern instructions regarding stipulations which will essentially say that the State of North Carolina and the defendant have agreed or stipulated that certain facts shall be accepted by you [499]*499[members of the jury] as true without further proof. Those facts have been stated in the record as it relates to stipulation as described in State’s Exhibit 7 since the parties have so agreed. You will take these facts as true for the purpose of this case.

The State’s attorney and defendant’s trial counsel assented to this instruction, and made no objection.

In the presence of the jury, the State’s attorney read the agreed-upon stipulation to the jury and moved, without objection, to enter State’s Exhibits 6 and 7 into evidence. The State’s attorney then moved to publish copies of Hadler’s redacted report to the jury. The trial judge, before allowing the redacted report to be published to the jury, instructed the jury as follows:

Now, before we proceed, ladies and gentlemen, I want to make sure that you understand that the State of North Carolina and the defendant have agreed or stipulated that certain facts shall be accepted by you as true without further proof.
The agreed facts in this case relate to what is marked as State’s Exhibit 7 and now received as a stipulation and State’s Exhibit 6, portions of an interview conducted by the relevant parties as described.
Since the parties have so agreed, you are to take these facts as true for the purposes of this case.

On 26 February 2013, the jury returned guilty verdicts against defendant for one count of taking indecent liberties with a minor and one count of statutory rape; he was sentenced to 336 to 415 months active imprisonment.

Defendant appeals.

II. Stipulation and Limiting Instruction

In his first argument, defendant contends that the trial court erred by instructing the jury to accept as true a redacted interview report by a licensed social worker that was entered into evidence by the State. We disagree.

A. Standard of Review

A trial judge’s expression of opinion on a question of fact violates the statutory mandates of N.C. Gen. Stat. §§ 15A-1222 and 1232, and [500]*500therefore is preserved for de novo appellate review as a matter of law. See State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989).

B. Analysis

The parties advised the trial judge that they had agreed to the following stipulation:

Janet Hadler, a licensed clinical social worker, performed a child family evaluation of [A.R.] in September and October of 2009. Ms. Hadler is unavailable due to family illness. The parties have stipulated that a portion of her report of her interview with [A.R.] may be entered into evidence without her presence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Shaw
Court of Appeals of North Carolina, 2025
State v. Austin
Supreme Court of North Carolina, 2021
Rainey v. the State
790 S.E.2d 106 (Court of Appeals of Georgia, 2016)
State v. Berry
Supreme Court of North Carolina, 2015

Cite This Page — Counsel Stack

Bluebook (online)
761 S.E.2d 700, 235 N.C. App. 496, 2014 WL 3823542, 2014 N.C. App. LEXIS 826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-berry-ncctapp-2014.