{ "id": 139354, "name": "STATE OF NORTH CAROLINA v. REGINALD VAN JOHNSON", "name_abbreviation": "State v. Johnson", "decision_date": "1997-05-09", "docket_number": "No. 434A96", "first_page": "119", "last_page": "126", "citations": [ { "type": "official", "cite": "346 N.C. 119" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "476 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": -1 }, { "cite": "123 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "year": 1996, "opinion_index": -1 }, { "cite": "120 S.E.2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1961, "pin_cites": [ { "page": "76" } ], "opinion_index": 0 }, { "cite": "254 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627880 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0697-01" ] }, { "cite": "194 S.E. 461", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "opinion_index": 0 }, { "cite": "212 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619827 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/nc/212/0762-01" ] }, { "cite": "272 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "125", "parenthetical": "citing, e.g., Ford, 297 N.C. 28, 252 S.E.2d 717; Ford Motor Co., 281 N.C. 496, 189 S.E.2d 484; Tickle v. Hobgood, 212 N.C. 762, 194 S.E. 461 (1938)" }, { "page": "125" } ], "opinion_index": 0 }, { "cite": "301 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568158 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "510", "parenthetical": "citing, e.g., Ford, 297 N.C. 28, 252 S.E.2d 717; Ford Motor Co., 281 N.C. 496, 189 S.E.2d 484; Tickle v. Hobgood, 212 N.C. 762, 194 S.E. 461 (1938)" }, { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0508-01" ] }, { "cite": "189 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "490-91" } ], "opinion_index": 0 }, { "cite": "281 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575351 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0496-01" ] }, { "cite": "331 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "656" } ], "opinion_index": 0 }, { "cite": "314 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689817 ], "year": 1985, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0028-01" ] }, { "cite": "137 L. Ed. 2d 339", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "472 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "892" } ], "opinion_index": 0 }, { "cite": "343 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798956 ], "year": 1996, "pin_cites": [ { "page": "742" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0725-01" ] }, { "cite": "243 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1978, "pin_cites": [ { "page": "346", "parenthetical": "\"I am not going to be able to allow the testimony of these various witnesses to be read back to you ....\"" } ], "opinion_index": 0 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0503-01" ] }, { "cite": "252 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566549 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0028-01" ] }, { "cite": "262 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574253 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0245-01" ] } ], "analysis": { "cardinality": 880, "char_count": 19591, "ocr_confidence": 0.765, "pagerank": { "raw": 2.1472633932830044e-07, "percentile": 0.7680831971284813 }, "sha256": "6f6f72b62ed11ee313ae30e5780c674def8dd095152477ff20ff7645efdae493", "simhash": "1:ad6a722e767b0efe", "word_count": 3346 }, "last_updated": "2023-07-14T19:49:00.247328+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. REGINALD VAN JOHNSON" ], "opinions": [ { "text": "LAKE, Justice.\nThe defendant was indicted on 28 February 1994 for first-degree statutory rape and taking indecent liberties with a child. The defendant was tried before a jury, and the jury found the defendant guilty of both offenses. Judge W. Osmond Smith III consolidated the offenses for judgment and sentenced defendant to a term of life imprisonment. The Court of Appeals determined that the trial court committed prejudicial error and that defendant is entitled to a new trial. The State appeals from that decision. For the reasons stated herein, we agree with the Court of Appeals and conclude that the defendant is entitled to a new trial.\nAt trial, evidence was presented tending to show that on Saturday, 9 October 1993, the defendant, seventeen-year-old Reginald Van Johnson, was spending the weekend at the home of his aunt and uncle. Present in the home that evening were seven children: three were the children of defendant\u2019s aunt and uncle (defendant\u2019s cousins); three were the children of his aunt\u2019s cousin Barbara; and the last was Barbara\u2019s five-year-old niece, \u201cJ\u201d. Defendant agreed to baby-sit the children while his aunt and Barbara went out that night. Defendant often baby-sat Barbara\u2019s three children, but had never seen J prior to that night. Defendant\u2019s uncle did not go with the women and was present in the home all night.\nDefendant\u2019s aunt and Barbara left the house at approximately 1:20 a.m. Defendant\u2019s three cousins were asleep in a bedroom at that time, and the remaining four children, including J, were asleep in the living room. As the women were leaving, defendant\u2019s uncle walked to the front door to tell them something and inadvertently stepped on J, who was lying on the floor. J woke up immediately and began to cry. She then moved to the mattress beside her cousin Jerome and went back to sleep.\nDefendant\u2019s uncle testified that he dozed off and on in his bedroom while the women were gone, but that he did not hear any unusual noises from the living room where the defendant and J were. The children present saw nothing unusual, nor did they hear any moaning, crying or screaming that night. The defendant testified that he spent most of his time baby-sitting lying on the floor near the kitchen and talking to a girlfriend on the telephone. He also testified that J was asleep the entire time and that he never touched her in any manner.\nDefendant\u2019s aunt and Barbara returned home at approximately 2:45 a.m. Barbara testified that the defendant was on the phone when they entered the house. J was \u201chard asleep,\u201d and Barbara had difficulty getting J to wake up. J\u2019s clothes were in the same condition as when Barbara left, and the only thing that was different was that J was on a mattress instead of lying on the floor. Barbara took her three children and J back to her house. Later, on Sunday, 10 October 1993, Barbara overheard J and her son Jerome talking about telling Barbara something. When Barbara asked J what they were talking about, J told her that the defendant had \u201crocked\u201d her the night before. Barbara took this to mean some type of sexual contact. J also told Barbara that the defendant had taken her pants off but that he had not taken off her panties. Barbara stated that J never used the term \u201cwalked\u201d in describing the alleged incident and that the term usually came from her own child.\nJ\u2019s mother, Charlene, picked J up later that day. J told her mother that defendant had \u201cwalked on her.\u201d Charlene asked J to explain what she meant, and J \u201cdid a back and forth rocking motion.\u201d Charlene was familiar with this \u201cwalked on her\u201d expression because J had used it previously to describe the same back and forth rocking motion while playing \u201cmamma and daddy\u201d with her cousin Jerome. Later that day, J complained to her mother \u201cthat her privates were hurting.\u201d Her mother examined J\u2019s genital area and described it as swollen and irritated.\nThe next day, 11 October 1993, Charlene took J to the emergency room at Granville Medical Center where she was examined by Dr. Robert Wallison. Dr. Wallison\u2019s examination revealed that J\u2019s \u201cexternal genitalia showed some mild redness, indicating irritation of sorts,\u201d and that a portion of the interior of her vagina also appeared irritated. J\u2019s vaginal opening was enlarged beyond that expected of a five year old, and there was \u201ca small amount of a whitish, mucoid kind of discharge\u201d inside her vagina. The discharge was explained as either a \u201cbenign discharge . . . caused by normal bacteria that grows in the vagina\u201d or a minor infection unrelated to any sexual activity. Dr. Wallison testified there was no trace of blood in the vaginal area, no abnormal vaginal tearing and no evidence of \u201cmale sexual hormones or semen.\u201d\nThe Franklin County Department of Social Services and the Louisburg Police Department were informed of the incident. Detective Ralph Brown of the Louisburg Police Department interviewed J, and J related essentially the same story she had told her mother. On 20 October 1993, Gladys Alston of the Franklin County Department of Social Services conducted an interview with J using anatomical dolls. The interview was videotaped, was introduced into evidence and was shown to the jury.\nUpon referral to the Child Medical Evaluation Clinic of the University of North Carolina Hospitals (\u201cclinic\u201d), J was interviewed on 19 November 1993 by mental health consultant Janet Hadler. Ms. Hadler testified that when she asked J who touched her genitals, J first responded it was a woman named \u201cNici.\u201d When Ms. Hadler later asked, \u201cWas there something you told your mom? Was there something [that] happened at your house or at someone else\u2019s house?\u201d J responded by telling her about an incident at defendant\u2019s house. J told her that defendant had taken both of their clothes off and had touched her with \u201chis pee pee thing.\u201d J also told Ms. Hadler that defendant had touched her more than once and on different days.\nDr. Michael Knudsen, a pediatrician, examined J while she was at the clinic on 19 November 1993. During his examination, Dr. Knudsen observed no abnormalities of the external vaginal features, and J\u2019s labia major appeared normal. There was a small amount of discharge and a \u201cvery small amount of actual erythema, or reddening, to the edges of her labia minora.\u201d A culture of the discharge revealed it to be the result of an overgrowth of bacteria flora, common for children of J\u2019s age. J\u2019s hymen was intact, and there was no tenderness. Dr. Knudsen compared his notes with Dr. Wallison\u2019s notes and opined, \u201cI think that the difference in findings from my examination and from his examination make it highly, highly probable that penetration by a male penis could have occurred.\u201d However, on cross-examination, Dr. Knudsen stated that all of the results of his examination were normal, with the exception of the small amounts of redness that could have been caused by any number of things, including trauma, pressure, irritation and infection.\nJ testified at trial. Her testimony, however, was frequently self-contradictory. She initially stated that she did not know the difference between the truth and a falsehood, but later appeared to demonstrate an understanding of the terms when asked a series of short questions by the prosecutor. When asked to identify the defendant, J could not do so; she stated that she did not know the defendant and that she had not seen him during the weekend of 9 October 1993. However, she later stated that she did see the defendant and that he \u201cwalked\u201d on her and \u201cput [his penis] inside my pee pee thing.\u201d When asked whether she \u201c[woke] up when [defendant] put his pee pee thing in [her] pee pee thing,\u201d J responded \u201cno.\u201d When asked how long she had been on the living room floor when defendant touched her, J answered \u201cfour days.\u201d When asked about the \u201cwalked on\u201d expression, J stated she had just thought of the term.\nTiffany Johnson, the eleven-year-old daughter of defendant\u2019s aunt, was present on the night of 9 October 1993 and also testified at the trial. She stated that she did not hear or see anything unusual that night, even though she got up once to get some water and even though she was awake when her mother and Barbara returned home. However, she testified that earlier that day, J had told her that J\u2019s cousin Jerome had \u201cdone it to her\u201d at her Aunt Barbara\u2019s house. Tiffany did not tell anyone about this.\nAt the close of all the evidence, defendant renewed his motion to dismiss, which was denied. The trial court instructed the jurors and sent them to the jury room for deliberations.\nThe specific events giving rise to this appeal occurred during jury deliberations. Sometime after retiring to the jury room for deliberations, the jurors indicated that they had a question. The jury returned to the courtroom, and the following exchange occurred:\nCourt: Do I understand the jury has a question?\nForeperson: We would like to hear Barbara\u2019s testimony, if possible, and \u2014 and, ah, [J\u2019s] testimony as far as the \u2014 that was the next, ah\u2014\nAnother Juror: It was the first.\nForeperson: \u25a0 \u2014 The very first.\nCourt: I\u2019ll need to instruct you that we will not be able to replay or review the testimony for you. I can review further instructions, and try to read them a little better than I did, but that of course is not a summary of the evidence. But I will instruct you that it\u2019s your duty to consider the evidence as you recall it, and consider the view of other jurors, again, reaching in your minds as to what that testimony is.\nThe jury then resumed deliberations. Subsequently, the jury returned verdicts of guilty on both the counts of first-degree statutory rape and taking indecent liberties with a child.\nThe sole issue to be addressed is whether the trial court exercised discretion, as required by N.C.G.S. \u00a7 15A-1233(a), in its decision not to let the jurors review the testimony of J and her Aunt Barbara. The defendant contends that the language used by the trial court in its denial of the jurors\u2019 request indicates that the trial court did not believe it was statutorily permitted to let the jurors review the testimony. Thus, defendant maintains the trial court failed to consider the request under the statutorily required discretionary standard. We find defendant\u2019s argument to be persuasive.\nN.C.G.S. \u00a7 15A-1233(a) governs the trial court\u2019s duty regarding jury requests to review trial testimony:\n(a) If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.\nN.C.G.S. \u00a7 15A-1233(a) (1988). It is a well-established rule in North Carolina that the decision whether to grant or refuse a request by the jury for a restatement of the evidence after jury deliberations have begun lies within the discretion of the trial court. State v. Hough, 299 N.C. 245, 262 S.E.2d 268 (1980); State v. Ford, 297 N.C. 28, 252 S.E.2d 717 (1979); State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). The statutory requirement of N.C.G.S. 15A-1233(a) that the trial court exercise its discretion is a codification of this common-law rule. State v. Fullwood, 343 N.C. 725, 742, 472 S.E.2d 883, 892 (1996), cert. denied, -U.S. \u2014, 137 L. Ed. 2d 339 (1997); State v. Ashe, 314 N.C. 28, 34, 331 S.E.2d 652, 656 (1985). When a motion addressed to the discretion of the trial court is denied upon the ground that the trial court has no power to grant the motion in its discretion, the ruling is reviewable. Calloway v. Ford Motor Co., 281 N.C. 496, 505, 189 S.E.2d 484, 490-91 (1972). \u201cIn addition, there is error when the trial court refuses to exercise its discretion in the erroneous belief that it has no discretion as to the question presented. Where the error is prejudicial, the defendant is entitled to have his motion reconsidered and passed upon as a discretionary matter.\u201d State v. Lang, 301 N.C. 508, 510, 272 S.E.2d 123, 125 (1980) (citing, e.g., Ford, 297 N.C. 28, 252 S.E.2d 717; Ford Motor Co., 281 N.C. 496, 189 S.E.2d 484; Tickle v. Hobgood, 212 N.C. 762, 194 S.E. 461 (1938)).\nWe hold that the trial court\u2019s response to the jury\u2019s request in this case must be interpreted as a statement that the trial court believed it did not have discretion to consider the request. First, the precise words chosen by the trial court strongly indicate that it did not believe it had the discretion to grant the jurors\u2019 request. The trial court told the jury, \u201cI\u2019ll need to instruct you that we will not be able to replay or review the testimony for you.\u201d (Emphasis added.) Among other things, a \u201cneed\u201d is defined as \u201ca requirement, necessary duty, or obligation,\u201d a \u201cnecessity arising from existing circumstances.\u201d Random House Webster\u2019s College Dictionary 904 (1991). \u201cAble\u201d is defined as \u201chaving the necessary power, skill, resources, or qualifications to do something.\u201d Id. at 3. Taken together, the trial court\u2019s denial, in these words as defined, can be rephrased as, \u201cI am required to instruct you that we do not have the power or qualifications to review the testimony for you.\u201d Examined in this light, the trial court\u2019s words clearly indicate it did not exercise discretion in denying the request. Second, the context of the trial court\u2019s denial indicates it did not believe it had discretion to grant the request. The trial court first tells the jury that it \u201cwill not be able to replay or review the testimony.\u201d The trial court then immediately goes on to tell the jury that it \u201ccan review further instructions.\u201d (Emphasis added.) This juxtaposition of determinations \u2014 what it cannot do set off against what it can do \u2014 is telling. Combined with the subsequent admonishment that it is the jurors\u2019 \u201cduty to consider the evidence as [they] recall it,\u201d the trial court\u2019s comments are indicative of its understanding that it was not empowered to let the jurors review the testimony at issue.\nThe State argues that the language used by the trial court in this case is substantially the same as that held not to be erroneous in Fulcher, 294 N.C. at 514, 243 S.E.2d at 346 (\u201cI am not going to be able to allow the testimony of these various witnesses to be read back to you ....\u201d). However, a careful reading of Fulcher reveals that the discretion issue was not addressed on appeal. Id. The basis of this Court\u2019s decision, as framed by the defendant, was that the trial court had not expressed an improper opinion about the value of the testimony in question by virtue of its refusal to let the jury review it. Id. As a result, the decision in Fulcher is inapposite to the resolution of the issue at bar. Even if discretion had been at issue, the language used by the trial court in Fulcher is markedly different from that used in this case when viewed in the context of the trial court\u2019s entire statement. The entire sentence of the trial court\u2019s denial in Fulcher reads, \u201cI am not going to be able to allow the testimony of these various witnesses to be read back to you, for if you emphasize certain portions of it out of context it might tend to exaggerate it.\u201d Id. As can be seen, the trial court gave a reason for its denial, the prevention of improper emphasis. Such reasoning indicates exercise of discretion. In the present case, no such reason is given for the denial except the erroneous statement that the trial court is not able to let the jury review the testimony.\nThe State also contends that the Court of Appeals failed to give the trial court the presumption of discretion to which it is entitled under Brittain v. Piedmont Aviation, Inc., 254 N.C. 697, 120 S.E.2d 72 (1961). Such is not the case. \u201cWhen no reason is assigned by the court for a ruling which may be made as a matter of discretion . . . , the presumption on appeal is that the court made the ruling in the exercise of its discretion.\u201d Id. at 703, 120 S.E.2d at 76. However, where the statements of the trial court show that the trial court did not exercise discretion, as is evident in the present case, the presumption is overcome, and the denial is deemed erroneous.\nHaving determined that the trial court erred in not exercising its discretion in determining whether to permit the jury to review some of the testimony, we now consider whether these errors were so prejudicial as to entitle defendant to a new trial. We conclude they were. The evidence requested for review by the jury in this case was clearly \u201cmaterial to the determination of defendant\u2019s guilt or innocence.\u201d Lang, 301 N.C. at 511, 272 S.E.2d at 125. The testimonies of both J, the victim, and her Aunt Barbara were central to this case, and both testimonies involved issues of some confusion and contradiction. The medical evidence was inconclusive as to whether J had been raped, and there was no medical proof linking the defendant to the alleged crimes. Further, there were no eyewitnesses to the alleged crimes and no witnesses who heard or saw anything unusual. Thus, J\u2019s testimony was crucial because it was the only evidence directly linking defendant to the alleged crimes. As such, J\u2019s credibility was the key to the case. J\u2019s testimony was likely difficult for the jury to follow or assess due to its often confusing and self-contradictory nature. Barbara\u2019s testimony was also important because she was the first person J told about the alleged incident, and she also had information about the incident with J\u2019s cousin Jerome, about which J and Tiffany testified. \u201cThus, whether the jury fully understood the [witnesses\u2019 testimony] was material to the determination of defendant\u2019s guilt or innocence. Defendant was at least entitled to have the jury\u2019s request resolved as a discretionary matter, and it was prejudicial error for the trial judge to refuse to do so.\u201d Id.\nFor the foregoing reasons, the decision of the Court of Appeals is affirmed.\nAFFIRMED.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Jane Rankin Thompson, Assistant Attorney General, for the State-appellant.", "Terry W. Alford for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. REGINALD VAN JOHNSON\nNo. 434A96\n(Filed 9 May 1997)\nCriminal Law \u00a7 503 (NCI4th Rev.)\u2014 review of testimony\u2014 denial of jury request \u2014 failure to exercise discretion\nThe trial court in a prosecution for first-degree statutory rape and taking indecent liberties with a child improperly failed to exercise its discretion, as required by N.C.G.S. \u00a7 15A-1233(a), in denying the jury\u2019s request to review the testimony of the victim and her aunt where the trial court\u2019s statement, \u201cI\u2019ll need to instruct you that we will not be able to replay or review the testimony for you,\u201d and the trial court\u2019s statement immediately thereafter that it \u201ccan review further instructions\u201d indicate that the trial court believed it did not have discretion to grant the jury\u2019s request. Moreover, this error was prejudicial where the testimonies sought to be reviewed were central to the case and involved issues of some confusion and contradiction.\nAm Jur 2d, Trial \u00a7\u00a7 1647 et seq.\nAppeal by the State pursuant to N.C.G.S. \u00a7 7A-30(2) from the unpublished decision of a divided panel of the Court of Appeals, 123 N.C. App. 790, 476 S.E.2d 148 (1996), granting the defendant a new trial. Heard in the Supreme Court 17 March 1997.\nMichael F. Easley, Attorney General, by Jane Rankin Thompson, Assistant Attorney General, for the State-appellant.\nTerry W. Alford for defendant-appellee." }, "file_name": "0119-01", "first_page_order": 157, "last_page_order": 164 }