Heard in the Court of Appeals September 10, 2014
[Copyrighted Material Omitted]
Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State.
W. Michael Spivey, for defendant.
ELMORE, Judge. Judges CALABRIA and STEPHENS concur.
Appeal by defendant from judgments entered 18 June 2013 by Judge Paul C. Ridgeway in Wake County Superior Court,
No. 11 CRS 226769, 11 CRS 226773-75.
Robert Earl Spence, Jr. (defendant) appeals from judgments entered upon his convictions for four counts of first-degree rape, four counts of first-degree sex offense, and four counts of incest with a near relative. Defendant was sentenced to three consecutive terms of active imprisonment each for a minimum of 230 months and a maximum of 285 months.
The State indicted defendant on three counts of rape, sex offense, and incest in each of six cases (eighteen counts in total) stemming from alleged sexual misconduct between defendant and his daughter (" Donna" ). At trial, the State presented evidence that defendant continually sexually abused Donna when she was five years old until she was twelve. Donna recalled the locations where the abuse occurred but was unable to remember dates or time-frames. The State attempted to establish the time-frames by establishing the years in which defendant lived at the various locations of the alleged abuse. The approximate time-frames established that defendant separated from his wife in 2002, moved out of the family home and briefly lived with his cousin, Dartanian Hinton, followed by his oldest brother, Ellis Rodney McCoy. Defendant lived with McCoy from approximately 2003 until early 2005. Subsequently, defendant lived with his younger brother, David Edison Spence, for the duration of 2005. During the final months of 2005 or early in 2006, defendant resided with ATN Hinton for about five or six months. Thereafter, defendant married and moved into the home of his new wife, Joann Freeman. In July 2006, defendant divorced Ms. Freeman, re-married, and moved into another house with his third wife, Angel Spence.
During her trial testimony, Donna became nervous, visibly upset, and began to directly ask defendant questions about his conduct towards her. In response, the trial court recessed court and, over defendant's objection, ordered that the courtroom remain closed for the duration of Donna's direct and cross-examination testimony.
At the close of all the evidence, defendant made a motion to dismiss three of the first-degree sex offense charges that were alleged to have occurred in 2001, 2004, and 2005 for insufficiency of the evidence. The trial court denied defendant's motion, and the charges were submitted to the jury.
While reading the jury instructions, the trial court, without any objection by defendant, followed the pattern jury instructions by referring to Donna as " the victim." During deliberations, the jury asked the trial court whether a penis was an " object" for the purposes of " penetration" to support the counts of first-degree sex offense. The trial court, without any objection by defendant, answered, " the use of the word 'any object' refers to parts of the human body as well as inanimate or foreign objects. So that is the definition of the term 'object.' And then under that definition the penis being a part of the human body, that would be within the definition of an object."
The jury returned with unanimous verdicts of guilty of four counts of first-degree rape, four counts of first-degree sex offense, and four counts of incest with a near relative.
a.) Preservation of Constitutional Issue
Defendant first contends that the trial court erred by violating his sixth amendment constitutional right to a public trial when it closed the courtroom during Donna's testimony. The State contends that defendant
failed to preserve this issue on appeal. We disagree.
N.C. Appellate Procedure Rule 10(a)(1) mandates that " [i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C.R. App. P. 10(a)(1). Accordingly, " where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the reviewing court." State v. Ellis, 205 N.C.App. 650, 654, 696 S.E.2d 536, 539 (2010) (citation and quotation marks omitted). This general rule applies to constitutional questions, as constitutional issues not raised before the trial court " will not be considered for the first time on appeal." Id.
Pursuant to the sixth amendment of the United States constitution, a criminal defendant is entitled to a " public trial." U.S. Const. amend. VI.
The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions. In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.
Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31, 38 (1984) (citations and quotation marks omitted).
In order to preserve a constitutional issue for appellate review, a defendant must voice his objection at trial such that it is apparent from the circumstances that his objection was based on the violation of a constitutional right. State v. Rollins (Rollins I),
__ N.C.App. __, __, 729 S.E.2d 73, 76 (2012).
Here, the trial court ordered that bystanders in the courtroom, who included people on defendant's witness list, remain outside the courtroom for the remainder of the alleged victim's testimony. Defendant's attorney objected in response to the closure of the courtroom:
DEFENDANT'S ATTORNEY: Your Honor, just if your Honor could note defendant's objection. People that are here that are on my witness list who have been seated in the audience haven't contributed to this disruption and haven't been making faces or gestures which would in any way cause the upset that the witness has been displaying and I object to them being removed, but I understand the Court has enormous discretion in the matter. I just don't like it. . . . I'm concerned that the jury may feel that somehow my part of the audience had something to do with the witness's behavior and I don't think that's the case and I wouldn't want to let that be inferred or implied in the Court's ruling, so if the Court could fashion some statement to that effect I'd be grateful.
Before defendant cross-examined Donna, the trial court ordered that the courtroom remain closed, and defendant objected to the closure once again.
TRIAL COURT: All right. I've considered whether there's any particular reason to allow bystanders to be in the courtroom during the cross-examination and I'm inclined to continue the order closing the courtroom during the remainder of this witness's testimony, including cross-examination, so that would be for the same reasons and findings of ...