{ "id": 4174127, "name": "STATE OF NORTH CAROLINA v. KEVIN LEWIS JACKSON", "name_abbreviation": "State v. Jackson", "decision_date": "2010-02-16", "docket_number": "No. COA09-692", "first_page": "564", "last_page": "569", "citations": [ { "type": "official", "cite": "202 N.C. App. 564" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "665 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641744 ], "year": 2008, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0471-01" ] }, { "cite": "670 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642390, 12642391 ], "weight": 2, "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/670/0566-01", "/se2d/670/0566-02" ] }, { "cite": "663 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641565 ], "year": 2008, "pin_cites": [ { "page": "894" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0886-01" ] }, { "cite": "191 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160151 ], "year": 2008, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0462-01" ] }, { "cite": "445 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "22" } ], "opinion_index": 0 }, { "cite": "336 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2536933 ], "year": 1994, "pin_cites": [ { "page": "565-66" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0559-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "687" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "362 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "year": 2008, "opinion_index": 0 }, { "cite": "191 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159151 ], "year": 2008, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0637-01" ] }, { "cite": "488 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "779" }, { "page": "779" } ], "opinion_index": 0 }, { "cite": "346 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139608 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "385" }, { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0365-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378" }, { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "660" }, { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] } ], "analysis": { "cardinality": 615, "char_count": 12819, "ocr_confidence": 0.754, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.33980456003419507 }, "sha256": "d61754dc0f1a1d6efe295f35dc88021f8a236b567fc752fb1ed3b50b9a8456fd", "simhash": "1:4b1b92e4d20ec8fc", "word_count": 2104 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KEVIN LEWIS JACKSON" ], "opinions": [ { "text": "BRYANT, Judge.\nOn 5 November 2008, a jury found defendant Kevin Lewis Jackson guilty on charges of taking indecent liberties with a child and statutory rape of a person fourteen years of age. The trial court consolidated the offenses and sentenced defendant to an active term of 335 to 411 months. Defendant appeals. We find no prejudicial error.\nFacts\nThe evidence tended to show the following. T.C. is the seventeen-year-old niece of defendant; defendant is the biological brother of T.C.\u2019s father. T.C. testified that when she was fourteen or fifteen years old, she often stayed with defendant and his family. When she was fourteen years old, T.C. became pregnant and then gave birth to a baby boy in July 2006; T.C. testified that defendant is the baby\u2019s father.\nT.C. testified that defendant began touching her inappropriately when she was fourteen years old. She and defendant had sexual intercourse more than once, usually when the rest of the family was asleep or out of the house. Defendant never used a condom. When T.C. became pregnant, she refused to name defendant as the father, even though she had not had sex with anyone else. T.C. was afraid of defendant and thought he would hurt her if she told anyone. She knew that defendant owned a gun.\nT.C.\u2019s mother, T.W., testified that she found out defendant was the father when T.C. was about six months pregnant. T.W. found out defendant had given T.C. a cell phone, and when T.W. tried to take the phone away, T.C. fought with her. T.W. had police take T.C. to detention. T.W. suspected defendant was the father and asked for a DNA test through the court system, which established defendant\u2019s paternity with a probability of 99.99%.\nOfficer Shabeer Mohammad of the Charlotte-Mecklenburg Police Department testified that on 14 June 2006, he responded to a call from the residence of T.W. At the Gaston County Detention Center, he interviewed T.C., who initially told him that someone named John had gotten her pregnant. Officer Mohammad then asked about her relationship with defendant, and T.C. admitted she and defendant had sex. She told him that defendant was the person who had gotten her pregnant. In July 2006, defendant gave Detective Donald Simmons a statement in which he claimed that T.C. must have impregnated herself with a used condom from his bedroom after defendant had sex with his wife. He did not mention being drugged by T.C.\nAt the close of the State\u2019s evidence, defendant moved to dismiss all three charges; the motion was denied. Defendant testified in his defense. He stated that on one Saturday in December 2005, when his wife was out of the house, he consumed food and drink prepared by T.C. and then felt \u201cwoozy.\u201d He went into the bathroom, and when he came out, T.C. was in his bedroom. Defendant sat down on his bed, and \u201cafter that things went bad.\u201d He stated that \u201cI really do not remember anything too much after that.\u201d The next day, he \u201cfelt like somebody hit me over the head with a two by four,\u201d and he felt nauseated. Defendant testified he was \u201cshocked\u201d by the result of the DNA test. He stated that, in July 2006, T.C. called him and told him that she had put an ecstasy pill in his drink on the night they had sex. He denied that he willingly or consciously had sex with T.C. and claimed \u201cinvoluntary intoxication.\u201d\nAt the close of all the evidence, defendant renewed his motions to dismiss, which the court denied.\nDefendant contends the trial court (I)' committed plain error by allowing the prosecutor to improperly attack defendant\u2019s right to remain silent, and (II) erred in allowing the prosecutor and witnesses to refer to the complainant as the \u201cvictim\u201d and by using the word \u201cvictim\u201d several times in charging the jury. We find no prejudicial error.\nI\nDefendant first contends the trial court committed plain error in allowing the prosecutor to cross-examine him about his pre- and post-arrest silence regarding his belief that he had been drugged. We disagree.\nThe following exchange occurred between defendant and the prosecutor on cross-examination:\nQ. You never told Detective Simmons anything about this Ecstasy drugging, did you?\nA. No; it wasn\u2019t relevant at the time because I didn\u2019t find out until July. Like I said I met with Detective Simmons the early part of July. I believe it was on the 3rd if I\u2019m not mistaken.\nQ. But you didn\u2019t call him in the two years since this case has been pending, you didn\u2019t pick up the phone and call him and say I was drugged?\nA. At that point in time I was protecting my equal rights. Why would I need to contact Detective Simmons during that point. At that point I needed to seek legal counsel because it was a serious case.\nQ. You have never told anyone this very detailed story about being drugged until this very moment, isn\u2019t that right?\nA. No, ma\u2019am; actually the first person I told was my previous counsel....\nQ. So you wanted to keep this Ecstasy defense a secret?\nDefendant did not object but contends the trial court should have intervened ex mero motu. In the alternative, defendant argues his trial counsel provided ineffective assistance by failing to object to the cross-examination.\n\u201cPlain error\u201d does not connote \u201csimply obvious or apparent error.\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Under this standard of review, the defendant must show: \u201c(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.\u201d State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).\n\u201c[T]he State may use the defendant\u2019s pre-arrest silence for impeachment purposes at trial.\u201d State v. Boston, 191 N.C. App. 637, 648, 663 S.E.2d 886, 894, appeal dismissed and disc. review denied, 362 N.C. 683, 670 S.E.2d 566 (2008). Once the defendant has been arrested and advised of his Miranda rights, however, the State\u2019s use of his silence against him violates his constitutional right against self-incrimination. Id. Violations of a defendant\u2019s constitutional rights are prejudicial unless the error is harmless beyond a reasonable doubt. N.C. Gen. Stat. \u00a7 15A-1443(b) (2009).\nHere, the challenged cross-examination could refer to either defendant\u2019s pre- or post-arrest silence or to both. Defendant was not arrested until September 2007. He testified that T.C. told him she drugged him sometime in July 2006, and it is unclear whether defendant knew of his alleged drugging at the time he was interviewed by police in early July 2006. Because we conclude that the jury would not have reached a different result but for the cross-examination, we need not resolve to which period of time the cross-examination was intended to refer. The record reflects substantial evidence of defendant\u2019s guilt, including: testimony from T.C., the results of paternity testing, and defendant\u2019s own testimony that he does not deny being the father of T.C.\u2019s child. Since any error was not prejudicial, defendant has failed to show plain error. Bishop, 346 N.C. at 385, 488 S.E.2d at 779.\nDefendant also asserts that his trial counsel provided ineffective assistance in failing to object to the cross-examination. To prevail on a claim of ineffective assistance of counsel, defendant must show that his counsel\u2019s performance was deficient and prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). Here, the State presented substantial evidence of defendant\u2019s guilt, and the only issue in contention was his defense of involuntary intoxication. Defendant cannot show his counsel\u2019s failure to object to the brief portion of his cross-examination quoted above prejudiced him. This assignment of error is overruled.\nII\nDefendant next argues the trial court erred or committed plain error in allowing the prosecutor and State\u2019s witnesses to refer to the complainant as the \u201cvictim,\u201d thereby reinforcing the complainant\u2019s credibility at the expense of defendant. Defendant also contends that the trial judge\u2019s use of the word \u201cvictim\u201d in the charge to the jury constituted an improper opinion on the guilt or innocence of defendant, requiring a new trial. We find no merit in this argument.\nDefendant\u2019s only objection to the use of the word \u201cvictim\u201d by the prosecutor was overruled by the trial court. Even if the trial court erred in overruling defendant\u2019s objection to the prosecutor\u2019s use of the term \u201cvictim,\u201d he must show prejudice to receive a new trial. See N.C.G.S. \u00a7 15A-1443(b). The remaining uses of the word by the prosecutor and the State\u2019s witness went unchallenged and must be reviewed for plain error. Odom, 307 N.C. at 660, 300 S.E.2d at 378. Our Supreme Court has held that a trial court referring to the prosecuting witness as \u201cthe victim\u201d does not constitute plain error. State v. McCarroll, 336 N.C. 559, 565-66, 445 S.E.2d 18, 22 (1994). In light of the substantial evidence presented, we see no prejudice. Accordingly, we conclude that the trial court did not err in overruling defendant\u2019s objection, nor did the trial court commit plain error by failing to intervene ex mero mo tu to prosecution references to T.C. as \u201cthe victim.\u201d\nSimilarly, defendant\u2019s argument that the trial court\u2019s use of the word \u201cvictim\u201d in the jury charge constituted improper personal opinion has no merit. The trial court tracked the language of the pattern jury instruction for statutory rape nearly word-for-word, and the instruction uses the term \u201cvictim\u201d ten times. See N.C.P.I. \u2014 Crim.207.15.2. Moreover, the indictment uses the word \u201cvictim\u201d two times. The trial court did not err, let alone commit plain error. See State v. Martin, 191 N.C. App. 462, 471, 665 S.E.2d 471, 476 (2008).\nDefendant argues in the alternative that he received ineffective assistance of counsel because his attorney failed to object to every reference to the prosecuting witness as the \u201cvictim.\u201d As discussed above, the State presented substantial evidence of defendant\u2019s guilt, and we conclude that defendant cannot show he was prejudiced by these remarks. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693. Defendant has failed to show ineffective assistance of counsel, and this assignment of error is overruled.\nNo prejudicial error.\nJudges ELMORE and STROUD concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General W. Wallace Finlator, Jr., for the State.", "Mark Montgomery for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEVIN LEWIS JACKSON\nNo. COA09-692\n(Filed 16 February 2010)\n1. Evidence\u2014 cross-examination \u2014 defense of involuntary intoxication \u2014 pre- and post-arrest silence\nThe trial court did not commit plain error in an indecent liberties and statutory rape case by allowing the prosecutor to cross-examine defendant about his pre- and post-arrest silence regarding his belief that he had been drugged because the record reflected substantial evidence of defendant\u2019s guilt including testimony from the victim, the results of the paternity testing, and defendant\u2019s own testimony that he did not deny being the father of the victim\u2019s child.\n2. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object to cross-examination\nDefendant did not receive ineffective assistance of counsel in an indecent liberties and statutory rape case based on his trial counsel\u2019s failure to object to the cross-examination of defendant about his pre- and post-arrest silence regarding his belief that he had been drugged. The State presented substantial evidence of defendant\u2019s guilt, and the only issue in contention was his defense of involuntary intoxication. Defendant cannot show that his counsel\u2019s failure to object to the pertinent portion of the cross-examination prejudiced him.\n3. Criminal Law-\u2014 referring to complainant as \u201cvictim\u201d \u2014 failure to show prejudicial error\nThe trial court did not err or commit plain error in an indecent liberties and statutory rape case by allowing the prosecutor and State\u2019s witnesses to refer to the complainant as the \u201cvictim\u201d because there was no prejudice in light of the substantial evidence. Further, the trial court\u2019s use of the word \u201cvictim\u201d in the jury charge tracked the language of the pattern jury instruction.\n4. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object to referring to complainant as \u201cvictim\u201d\nDefendant did not receive ineffective assistance of counsel in an indecent liberties and statutory rape case based on his trial counsel\u2019s failure to object to every reference to the prosecuting witness as the \u201cvictim\u201d because there was substantial evidence of defendant\u2019s guilt, and defendant failed to show how he was prejudiced by these remarks.\nAppeal by defendant from judgment entered 5 November 2008 by Judge J. Gentry Caudill in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 January 2010.\nAttorney General Roy Cooper, by Assistant Attorney General W. Wallace Finlator, Jr., for the State.\nMark Montgomery for defendant-appellant." }, "file_name": "0564-01", "first_page_order": 592, "last_page_order": 597 }