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State v. Walton

Court of Appeals of North Carolina

October 21, 2014

STATE OF NORTH CAROLINA
v.
MALIK JAQUEZ WALTON, Defendant

Heard in the Court of Appeals September 9, 2014.

Appeal by defendant from judgments entered 10 July 2013 and 30 July 2013 by Judge Thomas H. Lock in Superior Court, Johnston County, No. 11CRS052914.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General William V. Conley, for the State.

Mark Montgomery, for defendant-appellant.

STROUD, Judge. Judges MCGEE and BRYANT concur.

OPINION

STROUD, Judge.

Defendant appeals judgments convicting him of first degree sexual offense and second degree kidnapping. For the following reasons, we find no error.

I. Background

The State's evidence tended to show that in May of 2011, Stacy[1] was in a bedroom with defendant and her fifteen-month old son. Defendant was the father of Stacy's son. Defendant slapped Stacy and began repeatedly choking her and threatened to kill her as he held a knife to her neck. Defendant then put both his fingers and his penis in Stacy's vagina and her anus. Defendant

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was indicted for second degree rape, first degree kidnapping, and first degree sexual offense. Defendant was tried by a jury, and the jury found him guilty of second degree kidnapping and first degree sexual offense. The trial court entered judgments accordingly. Defendant appeals.

II. Medical History Testimony

Defendant first contends that " the trial court committed plain error in allowing two medical witnesses to testify that [Stacy]'s history was consistent with sexual assault." (Original in all caps.) Defendant argues that " Emergency Room Nurse Tonia Nowak testified that [Stacy]'s injuries were consistent with her history. . . . Emergency Room Physician Dr. Brendan Berry testified that [Stacy]'s demeanor, history and examination, was 'consistent with the sexual assault that she described.' . . . This was reversible error." As defendant did not object to the testimony, he now asks that we review his contentions for plain error. See State v. Harding, 110 N.C.App. 155, 161, 429 S.E.2d 416, 420 (1993) (" Due to defendant's failure to object at trial, we must review this objection under the plain error rule." )

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice--that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error ...

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