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State v. Phillips

Court of Appeals of North Carolina

December 3, 2019


          Heard in the Court of Appeals 30 October 2019.

          Appeal by defendant from judgment entered 31 August 2018 by Judge William A. Wood II in Catawba County No. 16 CRS 1556 Superior Court.

          Attorney General Joshua H. Stein and Chief Deputy Attorney General Alexander M. Peters for the State.

          The Epstein Law Firm PLLC, by Drew Nelson, for defendant-appellant.

          TYSON, JUDGE.

         Antonio 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.

         I. Background

         C.C., 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 afterwards.

         A. C.C.'s Testimony

         C.C. 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 talked.

         C.C. 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 okay in."

         Defendant 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.

         Defendant 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.

         B. Eckard's Testimony

         Eckard 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.

         C. Defendant's Testimony

         Defendant, 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."

         Eckard 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 [C.C.]"

         Defendant "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.

         Defendant's 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 rape kit.

         D. DNA Evidence

         C.C. 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.

         Dr. 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.

         The 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.

         Dr. 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.

         A DNA 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."

         One of 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."

         The 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.

         After a few questions about alleles, the prosecutor continued to ask Dr. Wilson to make statements about the inconclusive minor contribution:

Q: Okay. And were you able to see any alleles in that minor profile?
A: I did see alleles.
Q: How many did you see?
A: Six.
Q: Six alleles?
A: Uh-huh (Affirmative).
Q: Okay.
A: Yes.
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 inconclusive.
Q: Okay. If I asked you to look at those, are you able to do it here?
A: If made to do so, yes.

         Defendant's counsel objected, but was overruled.

         The prosecutor continued:

Q: Unfortunately, Ms. Wilson, I'm making you do that.
A: Okay.
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.

         After 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, inter alia:

[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 comparison.
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, I ...

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