in the Court of Appeals 3 October 2017.
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.
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.
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
State's evidence tended to show the following. Defendant
and Julie 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.
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.
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.
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
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,  and then she flew to Charlotte.
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."
about 3 June 2015, Defendant was arrested. 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.
October 2015, Defendant completed an affidavit of indigency.
In the sworn affidavit, Defendant asserted his date of birth
was 20 November 1995.
the affidavit listed Defendant's "Bond Type" as
"Secured", in an amount of $500, 000.00.
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.
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
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).
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 ...