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State v. Diaz

Court of Appeals of North Carolina

November 21, 2017


          Heard in the Court of Appeals 3 October 2017.

          Appeal by Defendant from judgments entered 18 May 2016 by Judge Jeffery B. Foster in Pitt County No. 15CRS052923, 15CRS055098, 15CRS055100-02Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Neil Dalton, for the State.

          Marilyn G. Ozer, for Defendant-Appellant.

          MURPHY, Judge.

         The State may not condition one constitutional right upon the violation of another. Thus, a defendant cannot be required to make a sworn statement asserting his date of birth in his affidavit of indigency and the State use this evidence against him later to prove elements of alleged crimes.

         Raul Pachicano Diaz ("Defendant") appeals from jury verdicts convicting him of abduction of a child, three counts of statutory rape, and four counts of second degree sexual exploitation. On appeal, Defendant argues: (1) his constitutional rights to due process, a fair trial before an impartial jury, and against self-incrimination were violated when the State gave jurors copies of his affidavit of indigency; and (2) there was insufficient evidence on the abduction of a child charge for the charge to go to the jury. We grant Defendant a new trial on the abduction of a child charge and statutory rape charges, and hold the trial court did not commit error in allowing jurors to see Defendant's amount of bond in his affidavit and in denying Defendant's motion to dismiss the abduction of a child charge.

         I. Background

         The State's evidence tended to show the following. Defendant and Julie[1] began dating in "late fall, early winter" of 2014. Julie was a freshman in high school, and Defendant was a senior at the same school. At that time, Julie was fourteen years old. Defendant first told Julie he was eighteen years old, but she later found out he was nineteen years old.

         Beginning in January 2015, the two started skipping school together. Sometimes the two went "out" or to Durham, but other times the two went to Defendant's home. While at Defendant's home, the two engaged in sexual intercourse on multiple occasions. During one of their sexual engagements in March or April, Defendant asked Julie if he could record the two of them having sex. Julie agreed to let Defendant tape them, but then later worried Defendant would use it to "manipulate" her. Defendant taped their sexual activity on multiple occasions.

         Sometime in March or April, Defendant got the idea to leave town. Julie agreed to leave for several reasons: First, she was in love with Defendant. Second, Defendant told Julie that if she did not go with him, she was never going to see him again. Third, Julie feared he would "use those videos to manipulate [her]" by showing them to people. While Defendant did not force Julie to go with him, she "felt forced." At first, Julie was "nervous, scared, afraid, [and] sad" to leave town, but then she became "excited and happy" at the prospect of "mak[ing] things different." Julie did not tell her mother she planned to leave town.

         On 14 April 2015, Julie got on her school bus, as if she was attending school, but then got off the bus and met Defendant. The two waited for Julie's mother to leave Julie's home. After Julie's mother was gone, they went to Julie's home and packed Julie's belongings. Then, they went and retrieved Defendant's belongings from his home.

         The two drove Defendant's car to Defendant's uncle's home in New Mexico. Once they arrived, Defendant's uncle told them they had to "do things right" and instructed Julie and Defendant to go back home. Defendant's uncle also told Julie to call her mother. Julie called her mother, but refused to tell her mother where she was.

          Defendant and Julie left New Mexico and drove to Broken Arrow, Oklahoma. There, the two "tried to get settled." Both Defendant and Julie began working, and the two leased an apartment together. On 20 May 2015, U.S. Marshals arrived at Julie's place of work. The Marshals asked for her, and she tried to lie and conceal her identity. The Marshals took her away, [2] and then she flew to Charlotte.

         On 2 June 2015, Julie gave a written statement to Detective Mitchell of the Pitt County Sheriff's Office. In the written statement, Julie asserted Defendant said, "If you want to go back, I'll take you back. I[']m not forcing you to do anything!" Julie told Defendant, "No I don't want to go back. I don't want to!" However, at trial Julie asserted that at the time she wrote the statement, she still loved Defendant and "felt that [she] had to protect him."

         On or about 3 June 2015, Defendant was arrested.[3] On 14 September 2015, a Pitt County Grand Jury indicted Defendant for abduction of a child, three counts of statutory rape, and four counts of first degree sexual exploitation of a minor.

         On 6 October 2015, Defendant completed an affidavit of indigency. In the sworn affidavit, Defendant asserted his date of birth was 20 November 1995.

         Additionally, the affidavit listed Defendant's "Bond Type" as "Secured", in an amount of $500, 000.00.

         On 16 May 2016, Defendant's case came on for trial. Julie and her mother testified. Following Julie's testimony, the State moved to admit the affidavit of indigency into evidence. Defendant objected on the grounds of "relevance, due process, hearsay, [and] confrontation." The trial court overruled Defendant's objection and allowed the State to publish the affidavit to the jury by distributing an individual copy to each juror. When the State rested, Defendant moved to dismiss all of the charges against him. The trial court denied Defendant's motions. Defendant did not present any evidence, and Defendant renewed his motions to dismiss. The trial court denied Defendant's motions.

         The jury found Defendant guilty of abduction of a child, three counts of statutory rape, and four counts of second degree sexual exploitation. The trial court sentenced Defendant as a prior record level I. The court consolidated the abduction convictions and all three statutory rape convictions and sentenced Defendant to 65 to 138 months imprisonment. The court also ordered Defendant pay $1, 054.10 in restitution, for Julie's flight from Oklahoma to Charlotte. For the sexual exploitation convictions, the court imposed four consecutive suspended terms of 25 to 90 months imprisonment. Lastly, the court imposed 36 months of supervised probation for each sexual exploitation conviction. Defendant filed timely written notice of appeal.

          II. Standard of Review

         We review preserved violations of constitutional rights de novo. State v. Graham, 200 N.C.App. 204, 214, 683 S.E.2d 437, 444 (2009) (citing State v. Tate, 187 N.C.App. 593, 599, 653 S.E.2d 892, 897 (2007)). "Once error is shown, the State bears the burden of proving the error was harmless beyond a reasonable doubt." Id. at 214, 683 S.E.2d at 444 (citing N.C. G.S. § 15A-1443 (b) (2009)). "In determining whether error is harmless beyond a reasonable doubt, . . . the rule is that if there is a reasonable possibility that the evidence complained of might have contributed to the conviction, it is not harmless beyond a reasonable doubt." State v. Knight, 53 N.C.App. 513, 514-15, 281 S.E.2d 77, 78 (1981).

         "This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). "Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quotation marks and citation omitted). "In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every ...

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