Floyd Edward May, Sr., (Defendant) appeals from judgment convicting him of one count of first-degree statutory rape. We conclude that Defendant is entitled to a new trial because the State has failed to meet its burden to prove that the trial court’s error in charging a deadlocked jury in violation of N.C. CONST, art. I, § 24 was harmless beyond a reasonable doubt.
I. Facts and Procedural History
Defendant is a divorced adult male in his mid-60’s living on social security disability. Defendant has an adult son, Mike May. Mike May fives with his wife Shannon May and their two daughters, Beth and Tammy,
For the better part of fourteen years, Defendant lived with his son’s family in their mobile home, sharing a bedroom with his older granddaughter Beth. At some point, Defendant began sleeping in a playhouse/ shed behind the mobile home.
The two alleged episodes between Defendant and Tammy forming the basis for the charges against Defendant occurred during the summer of 2011, when Tammy was ten years old. Regarding the first episode, Tammy testified that she went into her older sister’s bedroom where Defendant was lying on a bed watching television. Tammy lay down beside Defendant while the door to the bedroom was closed. She testified that while they were watching television, Defendant “moved her shorts to the side and put his ‘wee-wee’ in [her] ‘moo-moo’
The second episode occurred on 15 July 2011 in the swimming pool behind the mobile home. Tammy testified that on that day, while she and Defendant were in the pool, Defendant moved her bathing suit to the side and put his “wee-wee” in her “moo-moo.” That same day, Tammy told her mother what Defendant had done to her. Also, Tammy’s father confronted Defendant regarding Tammy’s allegations, which Defendant denied.
Later on 15 July 2013, Tammy’s parents took her to Alamance Regional Hospital where she was seen by Dr. Jade Sung. Dr. Sung testified that Tammy told her about Defendant “vaginally penetrat[ing] her in the swimming pool.” Dr. Sung examined Tammy and noted that Tammy had no inner-thigh bruising, no contusions on her external genitalia, no tears, rips, cuts or bleeding and “no signs of physical assault.” Dr. Sung testified that Tammy had some inflammation and irritation around her cervix, which could have been caused by a number of things such as chlorine. Dr. Sung testified, in sum, that her physical examination of Tammy was “unremarkable.”
The following day on 16 July 2011, Tammy was examined by nurse Rebecca Wheeler and two physicians at UNC Hospital. Ms. Wheeler testified that Tammy told her that she had discomfort in her mid-abdominal area and that Defendant had “put his thing in her moo-moo.”
On 8 September 2011, Tammy was seen by Dr. Dana Hagele at Crossroads, a child advocacy center in Alamance County. Dr. Hagele testified that Tammy told her about all three episodes. Dr. Hagele also conducted a physical exam of Tammy, an exam which she described as “completely unremarkable.”
Deputy Bobby Baldwin testified that he interviewed Tammy in November 2011. He stated that the account Tammy gave during the interview was consistent with her trial testimony, except in one regard. Specifically, Deputy Baldwin testified that in the November 2011 interview, Tammy had stated that the first episode, which occurred in Beth’s bedroom, only consisted of Defendant putting his “wee wee” in her mouth, whereas during the trial, she testified that Defendant had also put his “wee wee” in her “moo moo.”
On 31 October 2011, Defendant was indicted on two counts of first-degree statutory rape, one count of first-degree sexual offense of a child, and one count of indecent liberties with a child. Defendant was tried on 16 April 2012 in Alamance County Superior Court. At the close of evidence, the trial court dismissed the charge of indecent liberties with a child but submitted the other three charges to the jury.
The trial court charged the jury three different times: The first charge was given just before the jury began deliberations; the second charge was given after the jury had deliberated for about two hours, and after it had sent a written note to the trial court indicating that they “were deadlocked”; and the third charge was given when, after thirty more minutes of deliberation, the jury sent another written note to the trial court indicating that “it is 10-2 and we are hopelessly deadlocked.” In its third charge
[Foreperson], you don’t need to sit down. I have you all’s note. And I’m going, in my discretion, I’m going to ask you to resume your deliberations for another half an hour. I’m not going to stretch it any farther than that, but I’m going to ask you to give it your best shot. And it’s your choice, not mine, but I’m not going to hot bond you, and we’re not going to make you to stay until 5 o’clock, but I’m going to ask you to go back and try again, remembering the instructions I gave you. And at 3:30 I’m going to ask you to come out, unless you’ve hit, hit the button and reached the decision prior to that. And that’s your choice.
I mean, I can’t tell you what to do. I appreciate your note letting me know, but I’m going to ask you, since the people have so much invested in this, and we don’t want to have to redo it again, but anyway, if we have to we will. That’s not my call either. That doesn’t belong to me.
I’ll ask you just to give us another half hour an horn and continue to deliberate with a view towards reaching an agreement if it can be done without violence to your individual judgment. As I said earlier, none of you should change your opinion if you, you know, if you feel like that’s what your conscience dictates, you stick by it.
So with that, I’m going to ask you to go back and continue.
After this third charge, the jury deliberated for exactly thirty minutes, upon which it convicted Defendant of one count of first-degree statutory rape based on the episode in Beth’s bedroom. The jury, however, failed to reach a unanimous verdict as to the other two charges; and, accordingly, the trial court declared a mistrial as to those charges. Based on the single conviction, the trial court sentenced Defendant to 230 to 285 months imprisonment. From this judgment, Defendant appeals.
On appeal, Defendant contends that he is entitled to a new trial because the trial court (A) coerced the jury’s guilty verdict; (B) erroneously admitted inadmissible expert opinion evidence from State’s witnesses Dr. Dana Hagele and Ms. Rebecca Wheeler; and (C) erroneously allowed the State to offer evidence of “other crimes” allegedly committed by Defendant for which he was not indicted. We address each argument in order below.
A. Jury Instruction
Defendant contends that he is entitled to a new trial because the trial court’s third charge to the jury was in violation of the standards established by our Legislature in N.C. Gen. Stat. § 15A-1235, and that these errors — when viewed in light of the totality of the circumstances — resulted in an unconstitutional coercion of “a hopelessly deadlocked” jury to return a guilty verdict, in violation of N.C. Const, art. I, § 24. In our analysis, we must determine (a) whether the trial court committed error in its third charge; (b) if there was error, by what standard this Court is to conduct its review; and (c) whether, after applying this standard, the error warrants a new trial. We conclude Defendant is entitled to a new trial.
1. Did the Instruction Constitute Error?
Defendant argues that the trial court erred in that its third charge violated the standards adopted by our Legislature in N.C. Gen. Stat. § 15A-1235 in a number of respects. N.C. Gen. Stat. § 15A-1235 was enacted in 1978 to serve as “the proper reference for standards applicable to charges which may be given a jury that is apparently unable to agree upon a verdict.” State v. Easterling,
If it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b). The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
Id.
We agree with Defendant that the trial court’s third charge violated N.C. Gen. Stat. § 15A-1235. For instance, when the trial judge was informing the jury that he was requiring them to deliberate for an additional thirty minutes, he erred by stating, “I’m going to ask you, since the people have so much invested in this, and we don’t want to have to redo it again, but anyway, if we have to we will.” Our Courts have held that instructing a deadlocked jury regarding the time and expense associated with the trial and a possible retrial constitutes error. See State v. Lipfird,
Further, as argued by Defendant, we believe the trial court erred in referencing only a portion of the four-part instruction contained in N.C. Gen. Stat. § 15A-1235(b) during its third charge. Though, pursuant to N.C. Gen. Stat. § 15A-1235(c), a trial court is not required to give a re-instruction under subsection (b) to a deadlocked jury; however, “[w]hen[] a trial judge gives a deadlocked jury any of the instructions authorized by N.C.G.S. § 15A-1235(b), he must give them all.” State v. Aikens,
2. What is the Appropriate Standard of Review?
Having concluded that the trial court committed errors while giving its third charge to the jury, we must determine the proper standard by which this Court reviews those errors. Both parties agree that the scope of our review is based on a “totality of circumstances.” State v. Patterson,
N.C. Const, art. I, § 24 provides that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.” Id. Our Supreme Court has held that “[i]t is well settled that Article I, Section 24 of the Constitution of North Carolina prohibits a trial court from coercing a jury to return a verdict.” Patterson,
As the State argues, our Supreme Court has held that where a defendant has failed to object to an offending charge during the trial, any argument raised on appeal based on a violation of N.C. Const, art. I, § 24 of our State’s constitution is waived, and any argument based on a violation of N.C. Gen. Stat. § 15A-1235 is reviewed for plain error. See Aikens,
Defendant’s sole assignment of error concerns the trial judge’s instructions and remarks to the jury following a report by it that it was deadlocked. Because defendant made no objection to the additional instructions or remarks by the trial judge, the plain error standard is applicable. It is defendant’s contention that the judge coerced a guilty verdict, thereby violating defendant’s right to a fair trial and an impartial jury under both the federal and state constitutions and N.C.G.S. §§ 15A-1232 and -1235. Because defendant failed to raise the alleged constitutional issues before the trial court, he has waived these arguments, and they may not be raised for the first time in this Court. We turn then to the question of whether the trial court’s instructions and remarks constitute plain error under the applicable statute and decisions of this Court.
In 2007, we reviewed an allegedly coercive charge based on a violation of N.C. Gen. Stat. § 15A-1235 for plain error in a case where a defendant failed to object when a trial judge charged a deadlocked jury concerning the time and expense of a retrial. Pate,
In 2009, however, our Supreme Court stated that “[w]hile a failure to raise a constitutional issue at trial generally waives that issue for appeal, where the error violates the right to a unanimous jury verdict under Article I, Section 24, it is preserved for appeal without any action by counsel.” State v. Wilson,
Defendant implicitly argues that the language employed by the Supreme Court in Wilson demonstrates that the Court intended that the scope of its ruling extend to all situations involving violations of N.C. Const art. I, § 24. For instance, the Supreme Court stated that it was basing its holding on the fact that “the right to a unanimous jury verdict is fundamental to our system of justice.” Wilson,
On the other hand, there is language in Wilson which suggests that the Supreme Court intended the scope of its holding to be that N.C. Const, art. I, § 24 violations are automatically preserved only in the context of a trial court instructing fewer than all jurors, and not in the context of a coerced jury instruction given to the entire jury. For instance, the following specific holding in Wilson is more limited that other language in the opinion:
[W]e hold that where the trial court instructed a single juror in violation of defendant’s right to a unanimous jury verdict under Article I, Section 24, the error is deemed preserved for appeal notwithstanding defendant’s failure to object.
Id. at 486,
Neither parly cites any Supreme Court opinion subsequent to Wilson in their arguments pertaining to the appropriate standard of review. Further, we have found no case in which the Supreme Court clarified whether it intended for its rationale in Wilson to apply to all situations involving alleged N.C. Const. . art. I, § 24 violations - thus, effectively overruling Patterson, Bussey and Aiken - or whether it intended Wilson to apply only to N.C. Const. . art. I, § 24 challenges involving a trial court speaking to fewer than all the members of the jury.
Our Court, however, has held on at least two occasions that the rationale in Wilson does exlend to situations involving a coercive charge to a fully empaneled jury. Specifically, in State v. Blackwell, we held as follows:
Defendant first contends that the trial judge coerced the jury into reaching a verdict in violation of his right to a unanimous jury verdict under Article I, Section 24 of the North Carolina Constitution. As an initial matter, we note that although defendant failed to raise this issue at trial, this argument is nonetheless preserved for appellate review.
_ N.C. App. _, _,
3. Was the Error Harmless Beyond a Reasonable Doubt?
The State “bears the burden of showing that the error was harmless beyond a reasonable doubt.” Wilson,
In any event, after considering the totality of the circumstances, we do not believe the errors were harmless beyond a reasonable doubt. Unlike many cases in which the courts have found error to be harmless, see, e.g., State v. Francis,
B. Expert Witnesses
Having ordered a new trial for Defendant, we need not address Defendant’s remaining arguments. However, we address those arguments as they may arise in a re-trial.
This Court has well established that “[e]xpert opinion testimony is not admissible to establish the credibility of the victim as a witness.” State v. Dixon,
“However, an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.” Standi,
1. Testimony of Dr. Dana Hagele
At trial, Dr. Hagele, a pediatrician that specializes in child abuse pediatrics, testified regarding her medical interview and physical examination of Tammy at Crossroads on 8 September 2011. Defendant contends that Dr. Hagele’s testimony amounted to her expert opinion that sexual abuse had in fact occurred. Defendant relies on a number of decisions including State v. Ryan, _N.C. App. _,
2. Testimony of Ms. Rebecca Wheeler
At trial, Ms. Wheeler, a registered nurse with a specialty in pediatric sexual assault examination, testified that she physically examined Tammy on 16 July 2011 for possible sexual assault injuries, but the examination showed no signs of assault.
Defendant contends that Ms. Wheeler’s testimony, like that of Dr. Hagele, amounted to opinion evidence that sexual abuse had in fact occurred. Defendant specifically objects to Ms. Wheeler’s use of the phrases, “it had
However, like Dr. Hagele, at no time during her testimony did Ms. Wheeler state that Tammy was the victim of sexual abuse or attempt to make conclusions or a diagnosis as to such. Ms. Wheeler merely testified as to her examination procedures, her experience and knowledge of “the profiles of sexually abused children[,]” and whether Tammy “ha[d] symptoms or characteristics consistent therewith.” Standi,
C. Admission of “Other Crimes” Evidence
Finally, Defendant contends that the trial court committed plain error
N.C. Gen. Stat. § 8C-1, 404(b) (2011) states the following:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
Id. “[0]ur courts have been markedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in Rule 404(b)[.]” State v. Summers,
[E]vidence of another crime is admissible to prove a common plan or scheme to commit the offense charged. But, the two acts must be sufficiently similar as to logically establish a common plan or scheme to commit the offense charged, not merely to show the defendant’s character or propensity to commit a like crime.
Id. at 697,
“Once the trial court determines evidence is properly admissible under Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” State v. Bidgood,
This Court has stated:
Although not enumerated in Rule 404(b) itself, evidence may also be admitted to establish a chain of circumstances leading up to the crime charged:
Evidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and setup of the crime, is properly admitted if linked in time and circumstances with the charged crime, or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.
State v. Smith,
We find no error in the testimony by Tammy’s parents regarding Defendant’s alleged conduct involving Beth in her bedroom. This testimony established the time period during which Defendant lived with the family, and the circumstances surrounding Defendant’s move from Beth’s bedroom to the playhouse/shed. This testimony “pertained to the chain of events explaining the context... and set-up of the crime[]” and it was “linked in time and circumstances with the charged crime[.]” Id. at 35,
Further, we find no error regarding the admission of the testimony about the alleged episode involving Defendant and Tammy in the playhouse/shed. This incident happened during the same summer as the charged offenses. In both the alleged conduct in the playhouse/shed and the charged conduct, Defendant and Tammy lay down together in his bed to watch television when Defendant allegedly sexually abused her. In both the alleged and charged conduct, Tammy testified that Defendant moved her shorts to the side to penetrate her. In both the alleged and charged conduct, Tammy testified that the penetration hurt and that it made her urine bum.
Because the alleged conduct in the playhouse/shed and the charged conduct were not too remote in time and sufficiently similar, and because this Court takes an approach that is “ ‘markedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in Rule 404(b) [,]’ ” we believe that the testimony of the three witnesses regarding the alleged conduct in the playhouse/shed was admissible under Rule 404(b). Summers,
III. Conclusion
The trial court’s third charge to the jury did not follow the guidelines set forth in N.C. Gen. Stat. § 15A-1235. Defendant argues that these errors coerced the deadlocked jury into returning a guilty verdict against him, in violation of his right to a unanimous jury verdict under N. C. CoNSt. art. I, § 24. The State has failed to meet its burden of proving that these errors were harmless beyond a reasonable doubt. Accordingly, Defendant is entitled to a new trial.
NEW TRIAL
Notes
. Pursuant to N.C.R. App. 4(e), the minor children will be referenced with the use of pseudonyms, Beth and Tammy.
. Ms. May testified that she forced Defendant to move out of Beth’s bedroom and into the shed after she walked in on Defendant lying in the same bed with Beth, who was around thirteen years old at the time, with his legs “all the way around [Beth] [,]” while they were watching television - an account which Defendant denied during his testimony. In any case, Ms. May testified that she thought the “issue” was resolved and had no problem with her daughters continuing to spend time with Defendant.
. The evidence showed that Tammy was not allowed to use anatomical terms, but rather was taught to use the term “wee-wee” to describe the male sex organ and “moo-moo” for the female sex organ.
. The State offered evidence of a third episode involving improper sexual conduct by Defendant with Tammy which allegedly occurred in the playhouse/shed some time prior to the 15 July 2011 episode.
. Tammy testified that she felt pain, which included a burning sensation when she attempted to use the bathroom after each of the three episodes.
. This third charge, was, in essence, an Allen charge, named for the United States Supreme Court case Allen v. United States,
. Defendant was found guilty of first degree rape and judgment was entered on 19 April 2012. On 30 April 2012, Defendant entered oral notice of appeal. The trial court entered appellate entries and appointed the Appellate Defender. N.C.R. App. R 4(a)(1) and (a)(2) require that Defendant must appeal by “giving oral notice of appeal at trial," or by “filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of the judgment[.]” Defendant did not comply with N.C.R. App. R 4(a). However, on 10 January 2013, Defendant filed a petition for writ of certiorari. The State does not oppose the granting of the writ, stating, in its response, that “the State respectfully submits that it is within this Court’s discretion to allow” the writ. In any event, in our discretion, we grant Defendant’s petition for writ of certiorari.
. Blackwell, from 2013, and Gillikin, from 2011, are both published opinions. We note that in an unpublished 2012 opinion, our Court refused to extend the holding in Wilson and Ashe to an N.C. Const, art. I, § 24 challenge where a trial judge instructed a jury on alternate theories of a crime. State v. Guy, _ N.C. App. _,
. Defendant advances a number of other arguments as to why the trial court’s errors were not harmless beyond a reasonable doubt. However, we do not address the merit of these arguments since the State failed to meet its burden.
. Defendant did not lodge an objection at trial to the experts’ testimony as it pertained to the issue now presented on appeal.
. Defendant did not lodge any objection to the “other crimes” testimony at trial.