Heard November 17, 2014
Roy Cooper, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State-appellant.
Staples S. Hughes, Appellate Defender, by Katherine Jane Allen, Assistant Appellate Defender, for defendant-appellee.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, ___ N.C.App. ___, 749 S.E.2d 483 (2013), finding error in a judgment entered on 19 April 2012 by Judge Howard E. Manning in Superior Court, Alamance County, and ordering that defendant receive a new trial. Heard in the Supreme Court on 17 November 2014.
In this case, we consider the correct standard of review to apply when determining whether the trial court's instructions to the jury were improperly coercive, violating Article I, Section 24 of the North Carolina Constitution. We conclude that because defendant failed to object to the pertinent instructions, any error was not preserved and we hold the trial court's instructions did not result in an unconstitutional coercion of a deadlocked jury. Accordingly, we reverse the decision of the Court of Appeals.
Until early 2011, defendant Floyd Edward May, Sr., an adult male in his mid-sixties, lived with his son, Mike; Mike's wife, Shannon; and their two daughters, T.M. and B.M.
Thereafter, defendant began living with a woman in a nearby mobile home but continued to visit his son's family. T.M. was eleven years old and in fifth grade when she testified about her encounters with defendant, whom she called " Pa-Pa." In the summer of 2011, T.M. entered her sister's room, where defendant was lying on a bed, watching television. T.M. related that, while the door was closed, " Pa-Pa moved [her] shorts to the side and put his wee-wee in [her] moo-moo." When asked, she explained that the term " wee-wee" referred to a penis and " moo-moo" referred to a vagina. She added that defendant also put his " wee-wee" in her mouth during this encounter. Afterwards, T.M. went to the bathroom and felt a burning sensation when she urinated. She did not immediately tell anyone what had happened.
T.M. further testified that, during another occasion that summer, she was in a backyard playhouse with defendant, where they would sometimes watch television together. She saw defendant begin to " play" with his " wee-wee" by " moving it up and down." He then " just started sticking his wee-wee in my moo-moo." Although she felt pain and again experienced burning when she had to urinate, she told no one.
Finally, T.M. testified about defendant's actions in a swimming pool behind her home on 15 July 2011. While she was swimming with defendant, he moved her " bathing suit to the side and put his wee-wee in [her] moo-moo." Her stomach began to hurt " real bad" and she left the pool to tell her mother Shannon about the pain. T.M. also described the incident and asked if she could get pregnant. Shannon telephoned her husband Mike to tell him what she had heard and then took T.M. to a hospital. When Mike confronted defendant about the incident in the pool, defendant responded, " I didn't do that."
Shannon first took T.M. to Alamance Regional Medical Center, where T.M. was examined by Jade Sung, M.D. Dr. Sung began by interviewing T.M., who told her that her Pa-Pa had vaginally penetrated her in the swimming pool. Dr. Sung then conducted an external examination of T.M.'s abdomen and genitalia. The examination revealed no bruising of T.M.'s inner thigh, no contusions on the external genitalia, and no lacerations, tears, rips, or cuts, although Dr. Sung noted some irritation and inflammation around T.M.'s cervix. Based on the examination, Dr. Sung was unable to confirm or deny T.M.'s allegations and characterized the results of the examination as " unremarkable."
T.M. was referred to The University of North Carolina Hospitals in Chapel Hill for further examination, where, on 16 July 2011, she was seen by Rebecca Wheeler, R.N., a specialist in pediatric sexual assault examinations. T.M. told Nurse Wheeler that her " Pa-Pa did something to me yesterday. . . . He put his thing in my moo-moo." T.M. also indicated that she had been experiencing discomfort in her mid-abdominal area since the day before. Nurse Wheeler indicated that her exam of T.M. showed a normal hymen and no bleeding or lacerations, adding that ninety-five percent of children who have been sexually assaulted have no visible injury.
On 8 September 2011, T.M. was taken to Crossroads, a child advocacy center in Burlington, North Carolina, where she was seen by Dana Hagele, M.D., a board certified pediatrician. T.M. indicated to Dr. Hagele that she had visited two hospitals previously because " Pa-Pa did some nasty stuff to [her]." T.M. recounted the details of defendant's actions until she became visibly upset and no longer wanted to talk about it " so it gets out of [her] head." Dr. Hagele conducted a " head-to-toe physical" examination of T.M., including a genital inspection, the results of which were " completely unremarkable."
On 31 October 2011, defendant was indicted for one count of first-degree statutory rape and one count of indecent liberties with a child. The charge of rape arose from events alleged to have occurred in T.M.'s sister's bedroom, while the charge of indecent liberties arose from events alleged to have occurred in the backyard playhouse. The court dismissed the indecent liberties count at the close of all the evidence and we do not address it further. On 3 January 2012, defendant was indicted for an additional ...