Heard in the Court of Appeals May 7, 2014
Attorney General Roy Cooper, by Special Deputy Attorney General Belinda A. Smith, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.
GEER, Judge. Judges BRYANT and CALABRIA concur.
Appeal by defendant from judgment entered 14 August 2013 by Judge William R. Bell in Lincoln County Superior Court,
Nos. 11 CRS 53292, 11 CRS 53293
Defendant Slade Weston Hicks, Jr. appeals from a judgment entered on his convictions of sexual offense with a child and indecent liberties with a child. On appeal, defendant primarily argues that the trial court committed plain error by instructing the jury on sexual offense with a child under N.C. Gen. Stat. § 14-27.4A (2013) instead of first degree sexual offense under N.C. Gen. Stat. § 14-27.4(a)(1), the charge for which he was indicted. A conviction must be supported by an indictment that alleges all the elements of the offense. Because the indicted charge, N.C. Gen. Stat. § 14-27.4(a)(1), is a lesser included offense of N.C. Gen. Stat. § 14-27.4A, the indictment did not allege all the elements of the crime set out in § 14-27.4A, the crime of which defendant was convicted. Accordingly, we vacate the judgment.
However, the indictment sufficiently alleges the lesser included offense of first degree sexual offense under § 14-27.4(a)(1), and the jury's verdict on the greater offense of sexual offense with a child necessarily included a determination by the jury that the defendant was guilty of that lesser included offense. We, therefore, remand for entry of judgment and resentencing on the charge of first degree sexual offense in violation of N.C. Gen. Stat. § 14-27.4(a)(1).
The State's evidence tended to show the following facts. Defendant was born in 1985 and is 11 years older than his cousin " Sally" who was born in 1996.
Around 2007, while at a relative's house in Gaston County, North Carolina, defendant asked Sally to go into a walk-in closet. After she went in, defendant closed the closet door, grabbed her shoulder, and told her to get on her knees. He pulled his penis out of his pants so that it was level with her nose. Sally ran out of the closet when she heard her mother calling her name. She did not tell anyone what happened.
In March 2008, when Sally was 11 years old and defendant was 22 years old, Sally went to defendant's father's house in Lincoln County, North Carolina, for a family gathering. Defendant offered to take Sally to his hiding place in the woods. Once there, defendant grabbed Sally's shoulder and asked her to suck his penis, but she refused. At that point, Sally's brother and defendant's sister, who had been sent by Sally's mom to find her, were coming down the trail. Defendant told Sally to tell them something to make them go away, so Sally told her brother that she and defendant were watching the deer.
After Sally's brother and defendant's sister left, defendant picked Sally up and stood her on a tree stump. He pulled Sally's jeans and underwear down to her ankles and began touching, licking, and inserting his fingers into her vagina. He then lifted her off the log, placed her on top of him, and started humping her. Sally pushed away but did not say anything because defendant had shown her a knife and told her not to tell anyone.
In August 2011, when Sally was 16, she told her mother about the incident in the woods and her mother contacted the police. Sally went with her mother to the Gaston County Police Department and told Detective William Sampson what happened in 2007 at her relative's house in the walk-in closet and what happened in 2008 in the woods. Defendant was charged in Gaston County with indecent liberties with a child as a result of the 2007 Gaston County incident and pled guilty to that charge pursuant to an Alford plea on 4 April 2013.
With respect to the 2008 incident, defendant was indicted in Lincoln County for indecent liberties with a child in violation of N.C. Gen. Stat. § 14-202.1 and for first degree sexual offense in violation of N.C. Gen. Stat. § 14-27.4(a)(1). Defendant was tried on these charges at the 12 August 2013 Criminal Session of Lincoln County Superior Court, and the jury found defendant guilty of both charges. The trial court consolidated the offenses into a single judgment and sentenced defendant to a presumptive-range term of 300 to 369 months imprisonment.
In a separate order entered the same day, the trial court found that defendant had been convicted of a reportable conviction under N.C. Gen. Stat. § 14-208.6, specifically " sexual offense with a child, G.S. 14-27.4A," and ordered defendant to register as a sex offender upon release from prison for his natural life and to enroll in satellite-based monitoring (" SBM" ) for his natural life.
As an initial matter, we must address our jurisdiction over defendant's appeal. Although defendant filed a timely written notice of appeal of his underlying convictions, he did not file written notice of appeal from the 14 August 2013 SBM order. Because SBM orders are civil in nature, written notice of appeal is required under N.C.R. App. P. 3(a). State v. Brooks,
204 N.C.App. 193, 195, 693 S.E.2d 204, 206 (2010). Nevertheless, defendant filed a petition for writ of certiorari to review the SBM order, and we decide, in our discretion, to allow defendant's petition and to review the merits of his appeal of the SBM order.
Defendant first argues that the trial court erred by admitting certain testimony of Frieda Bellis, a psychologist who treated Sally after she told her mother about the sexual abuse. Because defendant did not object to the testimony at trial, he contends that this constituted plain error.
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 will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted).
At trial, Ms. Bellis testified that she is a psychologist who works at New Directions, a facility that provides psychological testing, therapy, and counseling. Although Ms. Bellis was not tendered as an expert witness by the State, she testified that she has a masters degree in clinical psychology, is licensed to practice psychology, and has attended symposiums regarding treating children, two of which addressed sexual abuse and trauma in children.
On direct examination, the State asked Ms. Bellis about her treatment of Sally:
Q. Okay. Now, have you ever been contacted with regard to [Sally] pursuant to ...