State v. Whitman

635 S.E.2d 906, 179 N.C. App. 657, 2006 N.C. App. LEXIS 2167
CourtCourt of Appeals of North Carolina
DecidedOctober 17, 2006
DocketCOA05-1410
StatusPublished
Cited by13 cases

This text of 635 S.E.2d 906 (State v. Whitman) 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. Whitman, 635 S.E.2d 906, 179 N.C. App. 657, 2006 N.C. App. LEXIS 2167 (N.C. Ct. App. 2006).

Opinion

GEER, Judge.

Defendant Kelly M. Whitman appeals his convictions for statutory rape, statutory sex offense, indecent liberties with a child, and incest. On appeal, defendant primarily argues that the trial court erred by: (1) denying defendant’s motion for a bill of particulars; (2) allowing the State to amend the offense dates reflected on certain indictments on the day of trial and denying defendant’s subsequent motion for a continuance; (3) admitting certain photographs into evidence; (4) denying defendant’s motion to dismiss the charges for insufficient evidence; and (5) coercing the jury into rendering a verdict. We disagree with each of defendant’s arguments and, accordingly, find no error.

*660 Facts

At trial, the State’s evidence tended to show the following facts. “Mary,” 1 born in 1983, was rempved from her mother’s custody when she was about seven years old and placed into foster care with defendant Kelly M. Whitman,'born in 1948, and his wife, Barbara Whitman. The Whitmans had fostered and adopted numerous children and continued to do so during the time Mary lived with them.

On 4 July 1997, when Mary was 14, Ms. Whitman was staying at the hospital while her father was preparing for heart surgery. Defendant and Mary remained at home, and defendant had Mary sleep with him in the Whitmans’ bed. During the night, defendant pushed up against Mary and fondled her chest and between her legs while, according to Mary, “breathing really heavy.” Subsequently, defendant began taking Mary on “driving lessons,” during which he would fondle her chest and legs while she steered and shifted the gears.

Mary was legally adopted by the Whitmans when she was approximately 15 years old. Shortly thereafter, however, the WTiitmans separated, and defendant moved into his own apartment. Although Mary initially lived with Ms. Whitman, she later moved in with defendant.

Defendant would often travel for work; and Mary occasionally went with him if she was not in school. On one such trip, after Mary had been adopted by the Whitmans, defendant gave her vodka mixed with orange juice. Apparently having drank too much, Mary began to feel sick and laid down. Defendant took off their clothes, began kissing Mary, performed oral sex on her, and ultimately had sexual intercourse with her. Defendant stopped after Mary began crying.

Defendant and Mary thereafter began having sexual intercourse about “three times a week,” according to Mary. Typically, defendant gave Mary alcohol and then touched and kissed her. Whenever Mary tried to “jerk away,” defendant would get mad, so Mary would then “just sit there” while defendant took off her clothes and fondled her. Defendant always performed oral sex on Mary, and, on several occasions, made her perform oral sex on him. The two would usually engage in sexual intercourse after the oral sex.

The last instance of sexual intercourse between defendant and Mary occurred in the summer of 2002, when Mary was 19 years old. Defendant had Mary accompany him on a trip to Baltimore, *661 Maryland, and they had sex in defendant’s hotel room after an evening of drinking. Mary moved out of defendant’s home about a week later to move in with her boyfriend, whom she planned to marry.

Shortly thereafter, Mary spent a day helping Ms. Whitman in her duties as a substitute teacher at a local elementary school. While the children were in recess, Mary told Ms. Whitman about defendant’s sexual conduct with her. Ms. Whitman confronted defendant with Mary’s allegations, which, according to Mary, he ultimately admitted. Ms. Whitman testified that Mary, after yelling accusations at defendant, then asked him, in front of Ms. Whitman, “Are you denying this?” Defendant responded “[n]o,” but then told Ms. Whitman, “It’s not what you think.”

Mary and her boyfriend were later married by Claude Spencer Chamberlain, Jr., a minister who happened to also be a detective with the Durham County Sheriff’s office. After the wedding, Mary’s relationship with Ms. Whitman began to deteriorate, and Ms. Whitman threatened to go to Mary’s new husband and “tell him about [Mary’s] past.” Mary then called Detective Chamberlain because she felt she could trust him.

Detective Chamberlain, along with Sergeant William M. Oakley, III of the Durham County Sheriff’s Office, interviewed Mary on 12 December 2002. Concerned about the lack of physical evidence, Sergeant Oakley obtained Mary’s consent to electronically monitor and record a conversation between her and defendant, ostensibly regarding an unrelated car insurance claim. Sergeant Oakley, Detective Chamberlain, and Mary ultimately recorded three conversations between defendant and Mary. The conversations included the following excerpts:

F [Mary]: ... I am having a lot of problems right now.
M [defendant]: huh huh
F: and I need you to help me to understand why you did this to me.
M: [Mary,] I don’t know. And I wish I could explain it to you. And I wish it had never happened and I mean that from the bottom of my heart.
F: You know I was put in foster care with you guys so I could get out of being molested by everybody[.]
*662 M: I understand that [Mary].
F: and then you
M: and I totally
F: and then you promised me you, it would never happen again and then you turn around and you do it.
M: I totally understand everything you say. I really do and there is nobody at fault at this but me.
F: Why would you make me suck your dick?
M: [Mary], you know, I can’t explain that [Mary], I can’t explain any of this [Mary]. I really can’t.
F: ... [W]hat did you get out of for [sic] having sex with me for[?]
M: [Mary.]
F: For God the first time when I was like what 14?
M: Let me ask you a question [Mary.]
F: 14 until the age of 19[.]
M: Let me ask you a question. If I knew that, I would be able to answer it, do you understand that. . . .
F: You have no idea why you did that?
M: I have no idea. It was Sex [sic]. That is the only thing I can tell you. I have no idea.
F: Don’t you think you have a problem?
M: No I don’t think I have a problem.
F: You don’t have a problem?
M: I had a problem.
F: Why[?]
M: Because it was wrong about what I did.
F: [D]id you enjoy what you did, did you enjoy the sex, did you enjoy doing that?

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Cite This Page — Counsel Stack

Bluebook (online)
635 S.E.2d 906, 179 N.C. App. 657, 2006 N.C. App. LEXIS 2167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-whitman-ncctapp-2006.