State v. May

749 S.E.2d 483, 230 N.C. App. 366, 2013 WL 5912046, 2013 N.C. App. LEXIS 1140
CourtCourt of Appeals of North Carolina
DecidedNovember 5, 2013
DocketNo. COA13-37
StatusPublished
Cited by3 cases

This text of 749 S.E.2d 483 (State v. May) 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. May, 749 S.E.2d 483, 230 N.C. App. 366, 2013 WL 5912046, 2013 N.C. App. LEXIS 1140 (N.C. Ct. App. 2013).

Opinion

DILLON, Judge.

Floyd Edward May, Sr., (Defendant) appeals from judgment convicting him of one count of first-degree statutory rape. We conclude that Defendant is entitled to a new trial because the State has failed to meet its burden to prove that the trial court’s error in charging a deadlocked jury in violation of N.C. CONST, art. I, § 24 was harmless beyond a reasonable doubt.

I. Facts and Procedural History

Defendant is a divorced adult male in his mid-60’s living on social security disability. Defendant has an adult son, Mike May. Mike May fives [368]*368with his wife Shannon May and their two daughters, Beth and Tammy,1 in a mobile home park in Alamance County. This case involves two episodes of Defendant’s alleged sexual abuse of Tammy, his younger granddaughter.

For the better part of fourteen years, Defendant lived with his son’s family in their mobile home, sharing a bedroom with his older granddaughter Beth. At some point, Defendant began sleeping in a playhouse/ shed behind the mobile home.2 By 2011, Defendant moved in with a woman in another mobile home in the same park.

The two alleged episodes between Defendant and Tammy forming the basis for the charges against Defendant occurred during the summer of 2011, when Tammy was ten years old. Regarding the first episode, Tammy testified that she went into her older sister’s bedroom where Defendant was lying on a bed watching television. Tammy lay down beside Defendant while the door to the bedroom was closed. She testified that while they were watching television, Defendant “moved her shorts to the side and put his ‘wee-wee’ in [her] ‘moo-moo’3,” and that Defendant also “stuck his wee-wee” in her mouth.

The second episode occurred on 15 July 2011 in the swimming pool behind the mobile home. Tammy testified that on that day, while she and Defendant were in the pool, Defendant moved her bathing suit to the side and put his “wee-wee” in her “moo-moo.” That same day, Tammy told her mother what Defendant had done to her. Also, Tammy’s father confronted Defendant regarding Tammy’s allegations, which Defendant denied.4

Later on 15 July 2013, Tammy’s parents took her to Alamance Regional Hospital where she was seen by Dr. Jade Sung. Dr. Sung [369]*369testified that Tammy told her about Defendant “vaginally penetrat[ing] her in the swimming pool.” Dr. Sung examined Tammy and noted that Tammy had no inner-thigh bruising, no contusions on her external genitalia, no tears, rips, cuts or bleeding and “no signs of physical assault.” Dr. Sung testified that Tammy had some inflammation and irritation around her cervix, which could have been caused by a number of things such as chlorine. Dr. Sung testified, in sum, that her physical examination of Tammy was “unremarkable.”

The following day on 16 July 2011, Tammy was examined by nurse Rebecca Wheeler and two physicians at UNC Hospital. Ms. Wheeler testified that Tammy told her that she had discomfort in her mid-abdominal area and that Defendant had “put his thing in her moo-moo.”5 She testified that their physical examination of Tammy revealed that she had a “normal” hymen and “no evident signs of physical assault.”

On 8 September 2011, Tammy was seen by Dr. Dana Hagele at Crossroads, a child advocacy center in Alamance County. Dr. Hagele testified that Tammy told her about all three episodes. Dr. Hagele also conducted a physical exam of Tammy, an exam which she described as “completely unremarkable.”

Deputy Bobby Baldwin testified that he interviewed Tammy in November 2011. He stated that the account Tammy gave during the interview was consistent with her trial testimony, except in one regard. Specifically, Deputy Baldwin testified that in the November 2011 interview, Tammy had stated that the first episode, which occurred in Beth’s bedroom, only consisted of Defendant putting his “wee wee” in her mouth, whereas during the trial, she testified that Defendant had also put his “wee wee” in her “moo moo.”

On 31 October 2011, Defendant was indicted on two counts of first-degree statutory rape, one count of first-degree sexual offense of a child, and one count of indecent liberties with a child. Defendant was tried on 16 April 2012 in Alamance County Superior Court. At the close of evidence, the trial court dismissed the charge of indecent liberties with a child but submitted the other three charges to the jury.

The trial court charged the jury three different times: The first charge was given just before the jury began deliberations; the second charge was given after the jury had deliberated for about two hours, [370]*370and after it had sent a written note to the trial court indicating that they “were deadlocked”; and the third charge was given when, after thirty more minutes of deliberation, the jury sent another written note to the trial court indicating that “it is 10-2 and we are hopelessly deadlocked.” In its third charge6, the trial court addressed the jury as follows:

[Foreperson], you don’t need to sit down. I have you all’s note. And I’m going, in my discretion, I’m going to ask you to resume your deliberations for another half an hour. I’m not going to stretch it any farther than that, but I’m going to ask you to give it your best shot. And it’s your choice, not mine, but I’m not going to hot bond you, and we’re not going to make you to stay until 5 o’clock, but I’m going to ask you to go back and try again, remembering the instructions I gave you. And at 3:30 I’m going to ask you to come out, unless you’ve hit, hit the button and reached the decision prior to that. And that’s your choice.
I mean, I can’t tell you what to do. I appreciate your note letting me know, but I’m going to ask you, since the people have so much invested in this, and we don’t want to have to redo it again, but anyway, if we have to we will. That’s not my call either. That doesn’t belong to me.
I’ll ask you just to give us another half hour an horn and continue to deliberate with a view towards reaching an agreement if it can be done without violence to your individual judgment. As I said earlier, none of you should change your opinion if you, you know, if you feel like that’s what your conscience dictates, you stick by it.
So with that, I’m going to ask you to go back and continue.

After this third charge, the jury deliberated for exactly thirty minutes, upon which it convicted Defendant of one count of first-degree statutory rape based on the episode in Beth’s bedroom. The jury, however, failed to reach a unanimous verdict as to the other two charges; and, accordingly, the trial court declared a mistrial as to those charges. Based on [371]*371the single conviction, the trial court sentenced Defendant to 230 to 285 months imprisonment. From this judgment, Defendant appeals.7

II. Analysis

On appeal, Defendant contends that he is entitled to a new trial because the trial court (A) coerced the jury’s guilty verdict; (B) erroneously admitted inadmissible expert opinion evidence from State’s witnesses Dr. Dana Hagele and Ms.

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Related

State v. May
772 S.E.2d 458 (Supreme Court of North Carolina, 2015)
State v. Massenburg
759 S.E.2d 703 (Court of Appeals of North Carolina, 2014)
State v. Lockhart
Court of Appeals of North Carolina, 2014

Cite This Page — Counsel Stack

Bluebook (online)
749 S.E.2d 483, 230 N.C. App. 366, 2013 WL 5912046, 2013 N.C. App. LEXIS 1140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-may-ncctapp-2013.