{
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  "name": "STATE OF NORTH CAROLINA v. JIMMY I. JONES, Defendant",
  "name_abbreviation": "State v. Jones",
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    "judges": [
      "Judges STEELMAN and DILLON concur."
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      "STATE OF NORTH CAROLINA v. JIMMY I. JONES, Defendant"
    ],
    "opinions": [
      {
        "text": "MARTIN, Chief Judge.\nDefendant Jimmy I. Jones was charged in proper bills of indictment with one count of first-degree rape, two counts of second-degree rape, and eight counts of indecent liberties with a minor. He appeals from judgments entered upon jury verdicts finding him guilty of the first- and second-degree rape of his stepdaughter, as well as multiple counts of taking indecent liberties with his stepdaughter and with two of his nieces. We find no error.\nThe evidence presented at trial tended to show that, from October 1975 through February 1981, defendant sexually abused his stepdaughter and two of his nieces. At trial, one niece testified that, beginning from the time that she was about seven years old, each time she visited the home that defendant shared with her aunt \u2014 which the niece visited every weekend so that her mother and aunt could rehearse for their singing group \u2014 defendant \u201cplace [d] [her] in his lap\u201d and \u201cwould take [her] hand and touch his genitals.\u201d She also testified that, when she was nine or ten years old, defendant began regularly entering the bedroom that she shared with her cousins \u201cin the middle of the night\u201d and \u201cwould play with [her] genitals\u201d by placing his fingers inside her vagina. She further testified that this abuse continued until she was about fourteen years old and stopped visiting her aunt\u2019s house.\nDefendant\u2019s other niece testified that, between the ages of five and eleven years old, when she would go to visit her cousins at the home shared by her aunt and defendant, defendant would repeatedly hug her and \u201cgrind[]\u201d his hips against hers, kissed her by putting his tongue in her mouth, and would bring her into one of the bedrooms, lay her prostrate on top of him, and \u201cgrind[] \u201d against her hips and vagina. She further testified that, on one occasion, when she was eight or nine years old, defendant called her into the bedroom, placed her right hand onto his exposed penis, and held it there and asked her \u201cif it felt good.\u201d\nFinally, defendant\u2019s stepdaughter testified that, when she was twelve years old, on a night that her mother was away from the house, defendant took her from her own bedroom and brought her into her mother\u2019s bedroom, took off her nightgown and underwear, and had vaginal intercourse with her. She also testified that defendant took her to her mother\u2019s bedroom and had vaginal intercourse with her again when she was fourteen years old, and again when she was sixteen years old.\nAbout twenty-five years later, in the spring of 2008, Sergeant Tina Rimmer in the Criminal Investigative Division of the Orange County Sheriff\u2019s Office received a phone call from a detective with the Durham Police Department regarding an investigation \u201cinvolving [defendant] and a juvenile.\u201d The detective informed her that, through his investigation, he had received information \u201cin reference to [defendant\u2019s two nieces] being victimized by [defendant], also,\u201d at a residence in Orange County, which was located in Sergeant Rimmer\u2019s jurisdiction. Sergeant Rimmer interviewed defendant\u2019s two nieces, who described to her the manner in which defendant had sexually abused them when they were minor children. One of the nieces also gave the sergeant a list of names of people who \u201ccould [also] be potential victims,\u201d one of whom was defendant\u2019s stepdaughter. Without objection from defendant at trial, Sergeant Rimmer read into evidence the statements she took from defendant\u2019s stepdaughter and two nieces, which statements chronicled their abuse at the hands of defendant and corroborated the testimony of each accusing witness.\nAt the close of the State\u2019s evidence, defendant moved to dismiss the charge of first-degree rape and four of the eight charged counts of taking indecent liberties with a child, which motions were denied. Defendant offered no evidence and did not renew his motions to dismiss at the close of all of the evidence. The jury found defendant guilty of one count of first-degree rape, two counts of second-degree rape, and eight counts of indecent liberties with a child. The court sentenced defendant to three concurrent life sentences and two consecutive ten-year terms of imprisonment to run at the expiration of the life sentences. Defendant appeals.\nDefendant first contends the trial court committed plain error when it charged the jury on the offenses of first- and second-degree rape by repeatedly using the term \u201cvictim\u201d to describe the complaining witness. We disagree.\n\u201cBecause our courts operate using the adversarial model, we treat preserved and unpreserved error differently. Preserved legal error is reviewed under the harmless error standard of review.\u201d State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012). \u201cUnpreserved error in criminal cases, on the other hand, is reviewed only for plain error,\u201d id., which \u201cis normally limited to instructional and eviden-tiary error.\u201d Id. at 516, 723 S.E.2d at 333. \u201cFor error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial.\u201d Id. at 518, 723 S.E.2d at 334. \u201cTo show that an error was fundamental, a defendant must establish prejudice \u2014 that, after examination of the entire record, the error \u2018had a probable impact on the jury\u2019s finding that the defendant was guilty.\u2019 \u201d Id. (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)).\nDefendant concedes that the court instructed the jury on the offenses of first- and second-degree rape by using the same language as that which is set forth in the North Carolina Pattern Jury Instructions for these offenses, which use the term \u201cvictim\u201d to identify the person against whom the charged offenses are alleged to have been committed. See N.C.P.I. \u2014 Crim. 207.10 (2002); N.C.P.I. \u2014 Crirn. 207.20 (2007). Defendant also concedes that defense counsel did not object to the court\u2019s use of this term in its instructions to the jury at trial, and further admits that \u201cwhen a judge calls a person \u2018a victim,\u2019 it does not mean that the judge believes the person to be a victim, nor would a juror understood [sic] this to be so.\u201d See State v. Richardson, 112 N.C. App. 58, 67, 434 S.E.2d 657, 663 (1993) (\u201cThe word \u2018victim\u2019 is included in the pattern jury instructions promulgated by the North Carolina Conference of Superior Court Judges and is used regularly to instruct on the charges of first-degree rape and first-degree sexual offense.\u201d), disc. review denied, 335 N.C. 563, 441 S.E.2d 132 (1994); see also State v. Henderson, 155 N.C. App. 719, 722, 574 S.E.2d 700, 703 (\u201c [I]t is clear from case law that the use of the term \u2018victim\u2019 in reference to prosecuting witnesses does not constitute plain error when used in instructions.\u201d), appeal dismissed and disc. review denied, 357 N.C. 64, 579 S.E.2d 569 (2003).\nNevertheless, defendant urges this Court to conclude that the trial court\u2019s use of this term in its instruction was prejudicial in accordance with our decision in State v. Walston, _ N.C. App. _, _, _, 747 S.E.2d 720, 726, 728 (2013) (concluding the trial court\u2019s use of the term \u201cvictim\u201d in its instruction to the jury was prejudicial error). However, Walston is distinguishable from the present case. First, in Walston, the trial court denied defendant\u2019s request to modify the pattern jury instructions to use the term \u201calleged victim\u201d in place of the term \u201cvictim,\u201d and \u201cobjected repeatedly to the proposed instructions,\u201d see id. at._, 747 S.E.2d at 726-27, whereas, in the present case, defendant made no such request to modify the language in the instruction and did not raise any objection to the use of this term at trial. Next, in Walston, since conflicting testimony was presented from the accusing witnesses and from defendant, who testified on his own behalf, there were disputed issues of fact as to whether the sexual offenses even occurred, see id., whereas, here, there were no such conflicts in the testimony presented. Moreover, while this Court in Walston concluded that the trial court committed prejudicial error, see id. at_, 747 S.E.2d at 728, this defendant makes no specific argument that he has suffered any prejudice as a result of the trial court\u2019s uncontested use of the term \u201cvictim\u201d in its jury instructions. For these reasons, we find Walston inapplicable to the present case, and hold that the trial court did not commit plain error when it used the term \u201cvictim\u201d in its instruction to the jury on the offenses of first- and second-degree rape.\nFinally, defendant contends the trial court erred because it allowed the prosecutor to \u201crepeatedly refer[] to the complainants as \u2018victims\u2019 \u201d during his closing argument, and did not intervene ex mero motu to prevent the prosecutor from expressing his \u201cpersonal opinion concerning the guilt of the defendant or the veracity of [the] witness[es].\u201d\n\u201cThe standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.\u201d State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002). \u201cUnder this standard, \u2018[o]nly an extreme impropriety on the part of the prosecutor -will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.\u2019 \u201d State v. Anthony, 354 N.C. 372, 427, 555 S.E.2d 557, 592 (2001) (alteration in original) (quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996)), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002). \u201c \u2018[Defendant must show that the prosecutor\u2019s comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.\u2019 \u201d Id. at 427-28, 555 S.E.2d at 592 (alteration in original) (quoting State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999)).\nIn the present case, defendant challenges the prosecutor\u2019s use of the word \u201cvictim\u201d when he described the elements of the charged offenses, and when he stated that \u201cthese first incidents of abuse by the [defendant is [sic] a pattern of abuse that continued for years in this household... involving multiple victims,\u201d and that \u201cthe third victim who testified,. . . there\u2019s a couple of sets of charges involving her testimony and the evidence in her case.\u201d Defendant suggests, in his argument on this issue, that the prosecutor\u2019s comments in this case are analogous to comments made by the.prosecutors in State v. Smith, 279 N.C. 163, 165-67, 181 S.E.2d 458, 459-61 (1971) (ordering a new trial where the prosecutor called the defendant a \u201cLiar,\u201d and told the jury: \u201cI don\u2019t care who they bring in here ... to say to you that his character and reputation in the community in which he lives is good. I tell you it isn\u2019t worth a dam. ... I don\u2019t believe a living word of what he says about this case.\u201d (omissions in original)), and State v. Locklear, 294 N.C. 210, 214-15, 218, 241 S.E.2d 65, 68, 70 (1978) (ordering a new trial where the prosecutor told a defense witness during cross-examination, \u201c[Y]ou are lying through your teeth and you know you are playing with a perjury count; don\u2019t you?,\u201d and concluded the exchange with the witness by saying, \u201cNow, think fast, Leonard. Think up a good story while you are up there.\u201d). However, defendant has failed to establish that the remarks spoken by the prosecutor in the present case approach the level of gross impropriety illustrated by the remarks made by the prosecutors in Smith and Locklear. Because defendant has not shown that the prosecutor\u2019s comments \u201cso infected [this] trial with unfairness that they rendered [his] conviction[s] fundamentally unfair,\u201d see Davis, 349 N.C. at 23, 506 S.E.2d at 467, we overrule this issue on appeal.\nNo Error.\nJudges STEELMAN and DILLON concur.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      }
    ],
    "attorneys": [
      "Roy Cooper, Attorney General, by Jill A. Bryan, Assistant Attorney General, for the State.",
      "Mark Montgomery, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JIMMY I. JONES, Defendant\nNo. COA13-215\nFiled 17 December 2013\nCriminal Law \u2014 referring to complaining witness as victim \u2014 no plain error \u2014 no prejudice\nThe trial court did not commit plain error in a first-degree rape, second degree rape, and multiple indecent liberties case by repeatedly using the term \u201cvictim\u201d to describe the complaining witness. Defendant failed to show he suffered any prejudice.\nAppeal by defendant from judgments entered 2 May 2012 by Judge R. Allen Baddour in Orange County Superior Court. Heard in the Court of Appeals 21 October 2013.\nRoy Cooper, Attorney General, by Jill A. Bryan, Assistant Attorney General, for the State.\nMark Montgomery, for defendant-appellant."
  },
  "file_name": "0433-01",
  "first_page_order": 443,
  "last_page_order": 448
}
