in the Court of Appeals 30 October 2019.
by defendant from judgment entered 31 August 2018 by Judge
William A. Wood II in Catawba County No. 16 CRS 1556 Superior
Attorney General Joshua H. Stein and Chief Deputy Attorney
General Alexander M. Peters for the State.
Epstein Law Firm PLLC, by Drew Nelson, for
Morquett Phillips ("Defendant") appeals from the
jury's conviction of statutory rape of C.C., a
13-year-old female. See N.C. R. App. P. 42(b)(3)
(initials are used instead of a minor's name in appeals
filed under N.C. Gen. Stat. § 7A-27 involving sexual
offenses committed against a minor). We find prejudicial
error, and reverse and remand for a new trial.
then 13 years old, and her friend Justine Eckard, then 21
years old, were at Defendant's apartment on the evening
of 8 December 2013. The first trial resulting from the events
of that evening ended in an acquittal on some charges and a
mistrial on this charge. At a second trial, C.C., Eckard, and
Defendant each testified to different versions of how the
three individuals arrived at Defendant's apartment, how
they left, and what happened while all three were there and
testified she and Eckard walked to a McDonald's
restaurant to access the restaurant's wireless internet.
They encountered Defendant there and he invited them back to
his apartment. Eckard knew Defendant and told C.C. "it
was a good idea." C.C. had previously met Defendant once
before, and she trusted Eckard. Defendant drove both of them
to his apartment. They entered through the back door.
Defendant and C.C. smoked marijuana, while the three of them
smoked "too much" marijuana, which caused her to
"get really relaxed" and "take down [her]
guard." Eckard had to leave the apartment around 9:00
p.m., Defendant called her a cab, and she left. C.C. was
interested in staying with Defendant and smoking more
marijuana. C.C. relied upon Eckard and "knew she
wouldn't leave me in a situation that I wouldn't be
told C.C. that "he wanted to treat [her] like a real
man." He bent her over and initiated sexual contact with
her after Eckard had left. C.C. told Defendant she "was
not comfortable with things that he did to [her]."
Defendant penetrated C.C. anally, orally, and vaginally. C.C.
did not remember if Defendant ejaculated, but she assumed he
did when he finished.
then gave C.C. a black tank top he owned, called a cab for
C.C., and she left. C.C. told her mother she had been raped
when she arrived home. Her mother called the police, who
responded. Paramedics also arrived and transported C.C. to
Frye Regional Medical Center. C.C. testified she had no
sexual contact with Eckard or any other person other than
Defendant while at his apartment.
testified she and C.C. had walked to McDonald's
"trying to find something to do." C.C. had
Defendant's phone number and had the idea to contact him.
Eckard agreed they should send Defendant a text message and
go to his apartment. Defendant picked them up and drove them
to his apartment. They entered through the front door. Eckard
played a game on her phone and listened to music, while C.C.
and Defendant smoked marijuana. Eckard wanted to leave and
get home to comply with her mother's curfew. She left
Defendant's apartment around 9:30 or 10:00 p.m. in a cab
he had called for her. Although Eckard testified she had
"begged" C.C. to leave with her, C.C. chose to stay
behind. Eckard also testified she had no sexual contact with
Defendant or with C.C. that night.
age 36 at the time of the incident, testified he first saw
C.C. and Eckard walking up the sidewalk from his front porch.
He had neither seen them at McDonald's, nor picked them
up, and had not driven them to his apartment. Defendant had
not received a text message from them "because neither
one of them [had] my number." On Defendant's porch,
he and C.C. smoked marijuana while Eckard "play[ed] a
little game on her phone."
repeatedly asked Defendant for money, which irritated him,
until he asked her what she was going to do for the money.
She said she would make it "worth [his] while."
Eckard and Defendant walked into the apartment, leaving C.C.
outside on the porch. Eckard then performed oral sex on
Defendant. Defendant ejaculated during his contact with
Eckard and went into the restroom to take a shower. When he
left the restroom, he found both Eckard and C.C. laying on
his bed. Defendant saw Eckard's face and hands between
C.C.'s legs, with Eckard's finger "inside
"snapped" and asked them what they were doing.
Eckard asked for her money, which Defendant gave her. He told
them to get their stuff together and leave. Eckard and C.C.
left together. Defendant then saw C.C. walking back up the
street by herself. When Defendant asked her what she was
doing, she said she needed a ride home. Defendant called her
a cab and she left. Defendant denied any sexual acts or
contact with C.C.
testimony at trial conflicted with previous statements he had
made to police during the investigation. During an interview
with an investigator, Defendant initially claimed he did not
know "whether [C.C.] was legal or not," but at
trial he admitted he knew C.C. was thirteen years old. He
initially claimed neither C.C. nor Eckard had entered into
his apartment that night but had entered only the building.
When his DNA sample was taken, he insisted investigators
would "absolutely not" find his DNA in C.C.'s
presented at the hospital in the same condition as she had
arrived home, because her mother did not allow her to change
clothes, shower, wash, or use the bathroom. A sexual assault
nurse examiner collected a rape kit and examined C.C.
"head to toe." She took oral, vaginal, and anal
swabs from C.C., and gathered all of C.C.'s clothing.
Melinda Wilson, a forensic biologist with the North Carolina
State Crime Lab, qualified as an expert witness in the area
of DNA analysis, and testified at trial. She received DNA
profiles from C.C., Defendant, and Eckard, and tested
C.C.'s clothes and swabs for DNA.
testing process takes multiple steps. Dr. Wilson testified
she extracted DNA from very small samples of the evidence,
quantified how much DNA was potentially present in each
sample, made "billions and billions and billions of
copies" of each sample to improve visibility, and then
created a graphical electropherogram ("graph") of
each unknown donor sample to compare with the known donor
samples. Because DNA is microscopic and not visible to the
human eye, the graphs represent between fifteen and
twenty-seven locations on the DNA molecule in each
person's DNA, "kind of like an address." At
each location on the graph, Dr. Wilson sees a number
representing an "allele," which she testified
"is a result that I would see as part of a DNA
profile." Each graph is representative of a DNA profile
that comes either from an unknown sample of evidence or a
known sample profile.
Wilson testified a DNA "match" occurs when the
alleles at every location on an unknown sample are the same
as all twenty-seven of the locations she views on a known
sample. If every location is not tested, there cannot be a
"match." If not all the locations are tested, but
all tested locations are the same, the unknown sample is
"consistent with" the known sample, which Dr.
Wilson testified "is not an exclusion." An
"exclusion" is the result when the unknown sample
evidence "could not come from the known standard"
in the comparison.
profile is "conclusive" when it is of sufficient
quality and quantity for comparison purposes, and
"inconclusive" when it is not. Dr. Wilson
testified, when a component is inconclusive, "you cannot
include someone as a possible source of DNA and you also
cannot exclude them as a possible source of DNA."
the five samples Dr. Wilson tested, C.C.'s external
genitalia swab, contained a "mixture of three
contributors": two "major" contributors and
one "minor." Dr. Wilson presumed C.C. was one of
the major contributors as the donor of the sample and
determined Defendant's DNA profile was consistent with
the other major contributor. The minor contributor's
profile was "inconclusive due to complexity and/or
insufficient quality of recovered DNA."
prosecutor then asked Dr. Wilson if she was "able to see
anything" about that minor contributor's profile.
Dr. Wilson answered:
No. So when a profile is inconclusive, we are not allowed by
policy to make a comparison, period. So I can't look at
it and say, well, this alleles that are there, or results
that are there in that profile, look like it's this other
person. You can't do that. So it's just is what it
is. It's inconclusive and we don't make comparisons
to it and don't make statements about it.
few questions about alleles, the prosecutor continued to ask
Dr. Wilson to make statements about the inconclusive minor
Q: Okay. And were you able to see any alleles in that minor
A: I did see alleles.
Q: How many did you see?
Q: Six alleles?
A: Uh-huh (Affirmative).
Q: And looking at those six alleles, were you able to look at
Justine Eckard's alleles at those same markers and
determine if she happened to have any of those same alleles
as those same markers?
A: No; because that's against policy because it's
Q: Okay. If I asked you to look at those, are you able to do
A: If made to do so, yes.
counsel objected, but was overruled.
Q: Unfortunately, Ms. Wilson, I'm making you do that.
Q: If you could tell me at those same markers if any of those
alleles are the same or different.
A: Okay. I'm going to do this and I'm going to
preface this with this is not scientifically accurate, so
what I'm about to do, we do not do at the State Crime
Lab, the FBI does not do it. No lab in this country, I'm
assuming most labs in the world, do not do this because
it's inconclusive. So you cannot make a conclusion on an
inconclusive component regardless of whether the alleles are
the same, that's not a match; if they're different,
it's not an exclusion.
Dr. Wilson's preface, the court excused the jury sua
sponte. The trial court asked Defendant's counsel:
"you objected and I overruled your objection. Would you
like to be heard?" Defendant's counsel argued,
[Dr. Wilson] stated that this is not procedure; this is not
anything that anyone can follow; that it's not anything
that anyone would use, but he can make her make this
So I don't know. Absent at least an offer of proof as to
what's going to come forward, Your Honor, and then you
make your ruling because I don't know what's about to
come on this. . . . [T]his is new science and this is not
accepted science so to me, I don't understand -- I mean,