Heard in the Court of Appeals December 3, 2014
Forsyth County. No. 13CRS001562.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Margaret A. Force, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for the Defendant.
DILLON, Judge. Judges BRYANT and DIETZ concur.
Appeal by Defendant from judgments entered 5
December 2013 by Judge A. Moses Massey in Forsyth County Superior Court.
Robert Arthur Pace (" Defendant" ) appeals from judgments entered upon a jury verdict finding him guilty of first-degree rape and indecent liberties with a child. We find no error in part and we vacate in part with instructions to the trial court to conduct further proceedings consistent with this opinion.
The evidence tended to show the following: On 16 September 1989, an unknown male intruder broke into the room where the victim, a female, was sleeping. The victim was seven years old at the time. The intruder ordered the victim to turn over on her stomach; he pulled down her panties; he licked her anal area; and he began to penetrate her vaginally and anally while holding the blade of a knife to her nose. When he had finished, he escaped out the window.
The victim's mother took her to the emergency room after the incident. While there, a doctor examined the victim and also processed a rape kit, sealing it and handing it over to police.
Thereafter, the case went cold for many years. In 2013, however, an agent with the State Bureau of Investigation (" SBI" ) determined that DNA present on the victim's panties, stored with the rape kit, matched a DNA profile now present in CODIS, the State's Combined DNA Index System, a database of DNA samples taken from convicted offenders. Based on that match, the State came to suspect Defendant. The State obtained an additional sample of Defendant's DNA to compare to the DNA detected on the victim's panties. Based on that comparison, the SBI agent confirmed the match.
Defendant was indicted on various charges in connection with the 1989 attack. He was tried by a jury, which found him guilty of one count of first-degree rape and one count of taking indecent liberties with a child.
The trial court entered separate judgments on each conviction, sentencing Defendant to life in prison for first-degree rape and an additional ten years in prison for indecent liberties, and ordering that the sentences run consecutively. Defendant entered his notice of appeal in open court.
Defendant essentially makes three arguments on appeal, which we address in turn.
A. Evidentiary Issues
Defendant's first argument concerns the trial testimony of the victim's mother. Specifically, Defendant contends that the trial court committed plain error in allowing her to provide certain hearsay testimony and that the court abused its discretion in allowing her to offer an opinion as to changes she observed in her daughter's behavior after the assault. We disagree.
" Unpreserved error . . . is reviewed only for plain error." State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012). " For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred . . . [that] had a probable impact on the jury's finding[.]" Id. at 518, 723 S.E.2d at 334 (internal marks and citation omitted) (emphasis added).
In the present case, the victim's mother testified that when she took her daughter to counseling, she was told, " [s]omething violent has happened to her." Assuming, arguendo, that this testimony constituted inadmissible hearsay -- as evidence that the alleged sexual assault in fact occurred, see N.C. Gen. Stat. § 8C-1, Rules 801, 802 (2013), Defendant failed to object to this testimony, and we do not believe the trial court's failure to strike the testimony on its own motion had a probable impact on the jury's verdict. See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. Rather, the State presented substantial, ...