State v. Gobal

651 S.E.2d 279, 186 N.C. App. 308, 2007 N.C. App. LEXIS 2199
CourtCourt of Appeals of North Carolina
DecidedOctober 16, 2007
DocketCOA06-773
StatusPublished
Cited by48 cases

This text of 651 S.E.2d 279 (State v. Gobal) 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. Gobal, 651 S.E.2d 279, 186 N.C. App. 308, 2007 N.C. App. LEXIS 2199 (N.C. Ct. App. 2007).

Opinions

STROUD, Judge.

On 27 July 2004, defendant was indicted by the Wake County Grand Jury on two counts of first-degree sexual offense, one count of felony child abuse, and one count of indecent liberties with a child. Defendant was tried before a jury in Wake County Superior court from 11 to 13 April 2005. The jury found defendant guilty of all charges. Thereafter, the trial court sentenced defendant to 230 to 285 months for first-degree sexual offense, felony child abuse, and indecent liberties with a child, and to a consecutive sentence of 230 to 285 months for first-degree sexual offense. Defendant appeals.

For the reasons which follow, we hold that the trial court did not commit plain error when it admitted the testimony of a police detective which tended to vouch for the veracity of the State’s main witness. We further hold that defendant invited any error assigned to the testimony of a social worker which tended to impeach defendant. Finally, we hold that defendant failed to preserve the constitutional question of double jeopardy for appellate review. Accordingly, defendant received a fair trial and her convictions are affirmed.

I. Background

Defendant’s convictions arose from events which' occurred on 2 April 2004 and involved defendant’s seven year-old daughter (“Victim”). John Paul McCloskey (“McCloskey”), with whom defendant began a sexual relationship in January of 2004, participated in those events. At the time of defendant’s trial, McCloskey was charged [310]*310with two counts of first-degree statutory sexual offense and with taking indecent liberties with a child as a result of his participation.

McCloskey and the victim were the only eyewitnesses other than defendant. The victim was not called to testify at trial. McCloskey was the State’s main witness, and defendant testified in her own behalf. The State also offered into evidence tape recordings of two phone conversations McCloskey had with defendant, and three witnesses whose testimony either corroborated McCloskey’s testimony or tended to impeach defendant.

McCloskey testified as follows: At some time prior to 2 April 2004, defendant mentioned to him that she had fantasies of herself, McCloskey, and the victim all having sex together. On Friday, 2 April 2004, defendant and the victim arrived at about 1:30 p.m. at McCloskey’s apartment in Apex to spend the weekend. The three of them went out to the mall for a while and returned to his apartment to have dinner. While defendant was cleaning up the dishes, McCloskey washed the victim’s hair, as requested by defendant. By about 6:00 p.m., the three of them sat down to watch TV. Defendant then grabbed the victim and McCloskey by their hands and brought both of them into the bedroom. In the bedroom, defendant lay down on her back, with no clothes on. McCloskey was wearing shorts, and the victim was wearing a T-shirt and underwear. McCloskey described the victim’s demeanor at this point as “easygoing.” McCloskey then began to perform cunnilingus on defendant. According to McCloskey, the victim interjected, “I can take care of Mom from hpre,” so McCloskey began kissing defendant while the victim masturbated her. After kissing McCloskey, defendant performed fellatio on him for about ten minutes. During the time that defendant was performing fellatio on McCloskey, the victim continued to masturbate defendant. Defendant then, asked the victim if she would like McCloskey to do the same thing to her that he had done to defendant, referring to cunnilingus. McCloskey then performed cunnilingus on the victim for about three to five minutes. Defendant then told the victim to “[g]o down and lick [McCloskey’s] penis” and the victim then performed fellatio on McCloskey, while McCloskey kissed defendant. McCloskey and defendant completed the sexual encounter by having intercourse while the victim was lying on the bed next to them. They then got dressed and went to the living room to watch a movie or TV. Defendant and the victim stayed with McCloskey for the rest of the weekend but nothing else “weird” happened. Defendant and the victim returned to their home in Pender County on Sunday.

[311]*311According to McCloskey, defendant was worried about losing her children if anyone found out about the events of 2 April 2004. He and defendant discussed the sexual encounter several times after it had occurred, and defendant tried to figure out ways that they could maintain consistency in their stories, so that “neither one of [them] got in trouble.” They considered saying that “[McCloskey] just licked [the victim] or gave [the victim] oral sex and that [defendant] was not in the room.” or that defendant “caught [McCloskey and the victim] on the couch.”

McCloskey further testified that on 14 June 2004, he met with Detective Tim Kerley at the Apex Police Department for an interview. At the beginning of the interview, McCloskey denied that anything happened with the victim, but after Detective Kerley suggested that he take a polygraph test, McCloskey decided that he would admit what really happened. McCloskey testified that he decided to tell the truth because he was feeling awful and guilty about what had happened. McCloskey gave Detective Kerley a handwritten statement regarding the events of 2 April 2004, which was admitted into evidence.

According to McCloskey, after he gave the handwritten statement to Detective Kerley, McCloskey left the police department and contacted his attorney. McCloskey’s attorney provided him with a tape recorder to record some conversations with defendant. McCloskey decided to record these conversations with defendant because defendant had asked him to change his statement to say that “she wasn’t involved or implicated in any way.” The State offered into evidence, without objection, recordings that McCloskey made of two telephone conversations with defendant, each about 20 minutes long, on 19 June 2004 and 20 June 2004. In the 19 June 2004 conversation, defendant asked McCloskey to “talk to my lawyer and tell her a different story.” She asked McCloskey if he was going to try to help her out and stressed to him that she did not want to lose her children and that the unborn baby was his.1 McCloskey stated in the conversation that because of the charges, he did not think that either of them would be able to be around children and that his father would like to adopt the baby. Defendant responded “that don’t [sic] have to be, John. If you’ll help me, if you’ll change your story and at least be for me and not totally against me ... do it for the baby’s sake.” After further conversation about the possibility of a perjury charge, defendant told McCloskey, “[t]he only way to save my kids is you. You’re the [312]*312only one that can help me save my kids .... And at least, John, as long as I have them, I can send you pictures or send your mama pictures of the baby, and you could have some contact, I mean, a little bit.”

In the second phone conversation, recorded 20 June 2004, defendant and McCloskey again discussed defendant’s concern that she would lose her children. Defendant again asked McCloskey if he would try to help her. He asked her what he needed to do. Defendant told him that the “only thing that’s going to help me, and it might not keep me out 100 percent, but help me is to say I wasn’t there .... [W]e know you’re going to get in trouble no matter what the outcome is, but at least you can help me cover my tracks a little bit.”

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Cite This Page — Counsel Stack

Bluebook (online)
651 S.E.2d 279, 186 N.C. App. 308, 2007 N.C. App. LEXIS 2199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gobal-ncctapp-2007.