IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-889
Filed 21 October 2026
Anson County, Nos. 20CR050877-030, 20CR050878-030
STATE OF NORTH CAROLINA
v.
LATRAVIOUS JAMEER TYSON, Defendant.
Appeal by defendant from judgments entered 15 August 2024 by Judge Dawn
McDonald Layton in Superior Court, Anson County. Heard in the Court of Appeals
25 March 2026.
Attorney General Jeff Jackson, by Special Deputy Attorney General Juliane L.
Bradshaw, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
Zimmer, for defendant-appellant.
STROUD, Judge.
Defendant Latravious Tyson appeals from judgments entered upon jury
verdicts finding him guilty of four sexual crimes against a minor. On appeal, he
argues that the trial court erred in denying his motion to dismiss one of the statutory
sexual offense charges because, under the corpus delicti rule, there was insufficient
evidence of an essential element of that crime – the sexual act. Defendant also
contends that the court erred when it failed to ex mero motu declare a mistrial based
on the prosecutor’s improper questions and the investigating officer’s inadmissible
STATE V. TYSON
Opinion of the Court
responses. Finally, Defendant argues—and the State agrees—that there is a clerical
error in one of the judgments; however, they disagree as to which judgment contains
the error.
We hold that the court did not err in denying Defendant’s motion to dismiss
because there was sufficient evidence, including independent evidence supporting
Defendant’s convictions for the sex offenses occurring immediately before and
immediately after the sex offense at issue, corroborating Defendant’s confession to
the sex offense at issue. We also hold that the court did not err in failing to declare a
mistrial ex mero motu, as it ensured Defendant received a fair trial by carefully
addressing the improper questions and non-responsive answers. Finally, we
determine that the judgment in File No. 20CR050878-030 contains a clerical error
and we remand that judgment to the trial court to correct the error.
I. Background
The evidence presented at trial tended to show that Defendant had been a close
friend of Lea’s1 father, who died when Lea was three years old. When Lea was about
ten years old, she met Defendant through Defendant’s brother. Defendant began
communicating with Lea daily on her cell phone, by messenger or Snapchat, to check
on her and ask about her day. Lea referred to Defendant as her uncle; she thought
Defendant “was going to care for [her] and be a support in [her] life.”
1 We use a pseudonym to protect the identity of the juvenile.
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In the summer of 2020, Lea was eleven years old, and Defendant was twenty;
they had known each other for about a year. Lea testified that in August, Defendant
texted her and asked if she wanted to get ice cream with him. He picked Lea up from
her house and they drove to a store called Peaches and Cream. Defendant bought
Lea a milkshake. While sitting in Defendant’s car drinking her milkshake,
Defendant asked Lea to “suck his penis.” She did not want to do this and told him
no, but he insisted. Lea could not get away from Defendant, so she complied. He
then asked Lea to get into the backseat of his car and take off her clothes below her
waist. Defendant put on a condom and raped her. Lea was scared and confused.
Defendant threw the used condom into the grass and told Lea not to tell anyone what
had happened.
A few weeks later, Defendant picked Lea up at her house and took her to a
dead-end road near the airport. Lea thought Defendant was just showing her the
area where he and her father used to race cars; however, Defendant asked Lea to
perform fellatio on him again. She was scared and complied with his request.
Defendant then returned Lea home. He continued to text and asked her to call him
when she was naked or in the shower. Lea testified that she kept communicating
with Defendant because she “just wanted to feel loved and cared about from [her]
dad’s side. And [she] just thought that was the only way that [she] could get love and
support from” them.
A few weeks later, as punishment for sneaking out of the house, Lea’s mom
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Opinion of the Court
and stepfather took away her cell phone. When they went through her phone, they
found messages from Defendant asking Lea to send him nude photos. Lea’s parents
took Lea and her phone to the Anson County Sheriff’s Department (Sheriff’s
Department). At that time, Lea did not tell the officers what Defendant had done to
her because she “was scared” and “didn’t know what would happen next.”
Due to a potential conflict with the Sheriff’s Department, the North Carolina
State Bureau of Investigation was called to investigate Lea’s allegations. Special
Agent Deemus Pulliam and Agent Scott Bassett visited the Sheriff’s Department and
acquired Lea’s phone, which her mom had left with the officers. Lea’s phone
contained Defendant’s location, as he had previously shared it with her. As a result,
on 29 September 2020, Agents Pulliam and Bassett tracked Defendant’s location and
went to talk to him.
The agents found Defendant in his car in a parking lot. They pulled up beside
Defendant’s car, rolled down their passenger side window, and asked Defendant to
pull into a nearby parking lot to talk. Defendant agreed and parked his car. Agent
Pulliam began recording the interview. He asked Defendant if there was “someone
[Defendant] was like an uncle to,” and Defendant responded with Lea’s name.
Defendant “indicated that he knew why [the officers] were there.” Defendant agreed
to talk in Agent Pulliam’s car. Agent Pulliam informed Defendant that he was free
to leave.
During the conversation, Defendant admitted that he engaged in sexual
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Opinion of the Court
intercourse with Lea, directed Lea to perform oral sex on him, and digitally
penetrated Lea. Agent Pulliam questioned Defendant about his actions in his car
outside of Peaches and Cream in detail. Although he could not remember the exact
date, Defendant told Agent Pulliam that around “the last week in August in 2020,”
he had taken Lea to Peaches and Cream. After he bought her ice cream, Lea “us[ed]
her mouth to perform fellatio on his penis.” According to Defendant, “he had to teach
her how to do that.” Defendant proceeded to explain that he “had vaginal intercourse
with [Lea], which happened in the back seat of his SUV.” Defendant told Agent
Pulliam that “right before they had sex, he used his fingers and inserted them into
her vagina.” Agent Pulliam asked, “Did you insert your fingers first to get her used
to it?” Defendant replied, “Somewhat yeah.” Defendant traced the outline of his right
hand on a piece of paper and indicated “which finger” and “how far” that finger
“penetrated her vagina.” In fact, Defendant “actually shaded in an area to be specific
about how far [his finger] penetrated, and then he signed that at the bottom.” The
State entered the picture of Defendant’s shaded hand into evidence.
Defendant also told the officers about another incident with Lea, which
happened approximately two to three weeks after the first encounter, on a road by
the airport. After the agents spoke with Defendant, they dropped him off at his
friend’s house. Not long after, the officers returned to the house and arrested
Defendant.
On 6 October 2020, Lea was interviewed at the Child Advocacy Center. During
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Opinion of the Court
the interview, she disclosed more details of the sexual assaults. However, she did not
state that Defendant had penetrated her vagina with his finger before he had
intercourse with her on the day he took her to Peaches and Cream.
Defendant was charged with: “Statutory Rape of a Child by Adult (Peaches &
Cream)” (statutory rape); “Statutory Sex Offense (fellatio) with Child by Adult
(Peaches & Cream)” (sex offense by fellatio); “Statutory Sex Offense with Child by
Adult (Peaches & Cream)” (sex offense by digital penetration); and “Statutory Sex
Offense with Child by an Adult (road near Airport)” (sex offense at airport). The jury
convicted Defendant of all four charges. The convictions for statutory rape, sex
offense by fellatio, and sex offense by digital penetration all stemmed from the events
in Defendant’s car on the day he took Lea to Peaches and Cream. The conviction for
sex offense at airport stemmed from the incident in Defendant’s car a few weeks later,
on the day he took Lea to a dead-end road.
Defendant filed a petition for certiorari (PWC) with this Court on 21 November
2025.
II. Appellate Jurisdiction
Defendant’s PWC recognizes that in “his haste to remedy the failure to give
notice of appeal at the conclusion of the trial, counsel failed to give proper oral or
written notice of appeal” under Rule 4 of the North Carolina Rules of Appellate
Procedure. As a result, on 21 November 2025, Defendant filed a PWC under Rule 21
of the North Carolina Rules of Appellate Procedure, seeking review of all four
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Opinion of the Court
convictions. See N.C. R. App. P. 21(a)(1) (“The writ of certiorari may be issued in
appropriate circumstances by either appellate court to permit review of the
judgments and orders of trial tribunals when the right to prosecute an appeal has
been lost by failure to take timely action . . . .”). Defendant asserts that because “he
was represented by counsel who failed to enter proper notice of appeal, this defect
should not deprive him of his right to appeal because his intent was clear, and the
State has not been misled by the improper notice.”
Rule 4 of the North Carolina Rules of Appellate Procedure provides that a
criminal defendant can appeal a judgment by: (1) “giving oral notice of appeal at trial”
or (2) “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 or order.”
N.C. R. App. P. 4(a)(1)-(2). A written notice of appeal “shall specify the party or
parties taking the appeal; shall designate the judgment or order from which appeal
is taken and the court to which appeal is taken; and shall be signed by counsel of
record for the party or parties taking the appeal, or by any such party not represented
by counsel of record.” N.C. R. App. P. 4(b).
In his PWC, Defendant explains that after his trial had concluded and he had
left the courtroom, his attorney “realized he failed to give notice of appeal on the
record as is his normal practice.” Thereafter, defense counsel “ran down to the clerk’s
office and said he forgot to put it on record.” The clerk “noted the appeal on her
minutes from trial” and “checked the box on the judgment indicating that notice of
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Opinion of the Court
appeal had been given.” Thus, Defendant’s purported notice of appeal violates Rule
4, as it was neither written and filed with the clerk of superior court, N.C. R. App. P.
4(a)(1), nor given orally in open court, N.C. R. App. P. 4(a)(2). The notice was relayed
to the clerk, not the trial court, and it was given after the trial’s conclusion.
“Our Supreme Court has said that a jurisdictional default, such as a failure to
comply with Rule 4, precludes the appellate court from acting in any manner other
than to dismiss the appeal.” State v. Hammonds, 218 N.C. App. 158, 162, 720 S.E.2d
820, 823 (2012) (citation and quotation marks omitted). However, “[a]bsent specific
statutory language limiting the Court of Appeals’ jurisdiction, the court maintains its
jurisdiction and discretionary authority to issue the prerogative writs, including
certiorari.” State v. Ledbetter, 371 N.C. 192, 197, 814 S.E.2d 39, 43 (2018). We
exercise our discretion and allow Defendant’s PWC under Rule 21.
III. Motion to Dismiss
Defendant first argues that the trial court erred by denying his motion to
dismiss the charge of sex offense by digital penetration because the State failed to
establish the corpus delicti of that crime. Defendant contends that there was
“insufficient evidence of digital penetration” because the State relied only on his
confession, which “lacked sufficient corroboration.” Defendant only challenges the
conviction for sex offense by digital penetration; he does not challenge the convictions
for sex offense by fellatio or statutory rape, which happened on the same date, nor
does he challenge the conviction for sex offense by airport, which happened on a later
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date.
A. Standard of Review
This Court reviews the trial court’s ruling with respect to a
motion to dismiss for insufficient evidence on a de novo
basis. The question for the trial court is whether there is
substantial evidence of each essential element of the
offense charged, or of a lesser included offense, and of the
defendant’s being the perpetrator of such offense.
Substantial evidence is relevant evidence that a reasonable
person might accept as adequate, or would consider
necessary to support a particular conclusion. The evidence
can be circumstantial or direct, or both. However, the trial
court must consider all evidence admitted, whether
competent or incompetent, in the light most favorable to
the State, giving the State the benefit of every reasonable
inference and resolving any contradictions in its favor. In
considering such motions, the trial court is concerned only
with the sufficiency of the evidence to take the case to the
jury and not with its weight. Contradictions and
discrepancies do not warrant dismissal of the case but are
for the jury to resolve. If, however, the evidence is
sufficient only to raise a suspicion or conjecture as to either
the commission of the offense or the identity of the
defendant as the perpetrator the motion to dismiss must be
allowed.
State v. English, 241 N.C. App. 98, 104, 772 S.E.2d 740, 744-45 (2015) (citations,
quotation marks, and ellipses omitted).
B. Corpus Delicti Rule
Defendant argues that the court erred in denying his motion to dismiss the sex
offense by digital penetration charge because his “confession to digital penetration
was not strongly corroborated.”
“A person is guilty of statutory sexual offense with a child by an adult if the
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Opinion of the Court
person is at least 18 years of age and engages in a sexual act with a victim who is a
child under the age of 13 years.” N.C. Gen. Stat. § 14-27.28(a) (2025). “Sexual act” is
defined as “[c]unnilingus, fellatio, analingus, or anal intercourse, but does not include
vaginal intercourse. Sexual act also means the penetration, however slight, by any
object into the genital or anal opening of another person’s body.” N.C. Gen. Stat. §
14-27.20(4) (2025). Defendant challenges the sufficiency of the evidence regarding
the “sexual act” of digital penetration.
“As a modern doctrine, the corpus delicti rule states no criminal conviction can
be based upon [a] defendant’s extrajudicial confession or admission, although
otherwise admissible, unless there is other evidence tending to establish the corpus
delicti.” State v. Messer, 255 N.C. App. 812, 820, 806 S.E.2d 315, 321 (2017) (citation
and quotation marks omitted). Since the eighteenth century, corpus delicti has been
present in North Carolina case law. Id. at 820–21, 806 S.E.2d at 322. “For almost
two hundred years the rule stood, ‘a conviction cannot be sustained upon a naked
extrajudicial confession. There must be independent proof, either direct or
circumstantial, of the corpus delicti in order for the conviction to be sustained.’ ” Id.
at 821, 806 S.E.2d at 322. In 1985, however, our Supreme Court “loosened the
‘quantum and quality’ of corroborative evidence needed to satisfy corpus delicti” in
State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985). Id. The Parker Court “adopted
a version of corpus delicti known as “the ‘trustworthiness’ doctrine, which focuses on
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the reliability of a defendant's confession rather than independent evidence of the
corpus delicti.” Id. (citations omitted).
In Parker, the defendant was convicted of two counts of first-degree murder
and two counts of armed robbery. 315 N.C. at 224, 337 S.E.2d at 488. On appeal, the
defendant argued that the armed robbery conviction of one of the murdered men had
to be vacated because, apart from the defendant’s extrajudicial confession that he
“‘took $10.00 off the guy,’ there was no evidence of the corpus delicti of that armed
robbery.” Id. at 227, 337 S.E.2d at 490. After reviewing the history of the corpus
delicti rule and the versions applied in different jurisdictions, the Supreme Court
adopted our corpus delicti rule:
We adopt a rule in non-capital cases that when the State
relies upon the defendant’s confession to obtain a
conviction, it is no longer necessary that there be
independent proof tending to establish the corpus delicti of
the crime charged if the accused’s confession is supported
by substantial independent evidence tending to establish
its trustworthiness, including facts that tend to show the
defendant had the opportunity to commit the crime.
We wish to emphasize, however, that when independent
proof of loss or injury is lacking, there must be strong
corroboration of essential facts and circumstances
embraced in the defendant’s confession. Corroboration of
insignificant facts or those unrelated to the commission of
the crime will not suffice. We emphasize this point because
although we have relaxed our corroboration rule
somewhat, we remain advertent to the reason for its
existence, that is, to protect against convictions for crimes
that have not in fact occurred.
Id. at 236, 337 S.E.2d at 495 (emphasis in original).
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The Court noted that the case presented a new consideration: in prior cases
addressing the corpus delicti rule, the defendant was charged with one offense;
however, the defendant in Parker was convicted of two crimes. Id. at 238, 337 S.E.2d
at 496. In those prior cases, “the question for the [C]ourt was whether there were
sufficient facts and circumstances corroborative of the defendant’s confession to that
single crime to warrant a belief in the trustworthiness of his admissions.” Id.
(emphasis in original). The Supreme Court found a case from Missouri, State v Hunt,
570 S.W.2d 777 (Mo. App.1978), conviction vacated on other grounds, 441 U.S. 901,
60 L.Ed.2d 370 (1979),2 which presented a “similar” factual situation. In Hunt, “the
defendant was accused of more than one crime, the corpus delicti plainly was
established as to one, and the issue was whether the defendant’s confession to the
other crime was sufficiently corroborated by independent evidence so as to engender
a belief in its truth.” Parker, 315 N.C. at 238, 337 S.E.2d at 496. The Hunt Court
determined that the independent evidence supporting one conviction (kidnapping)
was sufficient to corroborate the defendant’s confession to the other crime (sodomy)
he committed during the kidnapping. Id.
Returning to the facts of its own case, the Court in Parker held that
under the particular facts presented in this case, where the
defendant was charged with multiple crimes; the corpus
2 The defendant in Hunt was convicted of kidnapping and sodomy of a four-year-old child; he conceded
that there was independent evidence of the kidnapping, but he argued that his confession was the only evidence of the act of sodomy he committed during the kidnapping. Hunt, 570 S.W.2d at 779 (Mo. App. 1978).
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Opinion of the Court
delicti as to the more serious offenses was established
independently of the defendant’s confession; an element of
the crime, use of a deadly weapon, was also established by
independent evidence; and the State’s evidence closely
paralleled the defendant’s statements as to the manner in
which he committed the offenses, there was sufficient
corroborative evidence to bolster the truthfulness of the
defendant’s confession and to sustain a conviction as to the
[one of the victims] armed robbery even though there was
no independent evidence tending to prove the corpus delicti
of that crime.
Id. at 238–39, 337 S.E.2d at 496–97.
The same is true here. Lea’s testimony “closely paralleled” Defendant’s
“statements as to the manner in which he committed the offenses.” Id. The corpus
delicti of the sex offense by fellatio and the statutory rape was established by
independent evidence, Lea’s testimony. Defendant was convicted of sex offense by
fellatio, which occurred immediately before the sex offense by digital penetration; he
was convicted of a statutory rape, which occurred immediately after the sex offense
by digital penetration. According to his confession, he digitally penetrated Lea, an
eleven-year-old virgin, to prepare her for the statutory rape.
Citing State v. Smith, 362 N.C. 583, 669 S.E.2d 299 (2008), Defendant argues
that his confession to the sex offense by digital penetration “was not strongly
corroborated.” Defendant contends that although he had “the opportunity to digitally
penetrate [Lea] during the incident at Peaches and Cream, [Lea] did not say he
penetrated her with anything but his penis.” We disagree.
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In Smith, the defendant was charged with several sexual offenses; he was
convicted of first-degree sexual offense and indecent liberties with a child and was
acquitted of first-degree rape. Id. at 584, 669 S.E.2d at 301. The charged offenses
did not all occur on the same date or place. Id. at 585–87, 669 S.E.2d at 301–02. The
first-degree sexual offense charge was based on fellatio on the defendant by the
victim. Id. at 586, 669 S.E.2d at 302. In his confession, the defendant claimed that
on the night in question, he had “passed out in a drunken stupor on [a] bed, and [was]
later awakened to find [the victim] between his legs, attempting to fellate him. [The
d]efendant testified he immediately pushed her away.” Id. at 586, 669 S.E.2d at 302.
The victim, however, consistently denied having any sexual contact with the
defendant on that occasion. Id. at 593, 669 S.E.2d at 306. The defendant’s confession
was the only evidence to support the first-degree sexual offense conviction. Id. The
Supreme Court noted how the corpus delicti rule should apply based on the “unique
situation” in that case:
A critical fact exists that necessarily bears upon our
analysis: the victim twice denied that a first-degree sexual
offense ever occurred. When interviewed by Detective
Arrowood six weeks after the alleged events transpired,
[the victim] stated that there was no sexual contact
between [the] defendant and her on the night of the first
visit. Additionally, [the victim] testified at trial that during
the first visit, she was alone with [the] defendant in
Jonathan’s bedroom, and while [the] defendant made
inappropriate comments to her, no sexual contact occurred
on the night of the first visit. A victim of sexual violence,
especially a minor victim, is not required to testify to the
sexual offense in order for a conviction to stand. However,
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Opinion of the Court
in this unique situation, in which the victim explicitly
denies that the offense ever occurred, we believe it is
imperative to adhere to Parker’s emphasis that “strong”
corroboration evidence supporting [the] defendant’s
extrajudicial confession must be shown when proof of injury
or loss is otherwise lacking.
Id. at 593, 669 S.E.2d at 306 (emphasis added) (citations omitted).
That “critical fact” is not present here. See, e.g., id. Although Lea did not
testify about digital penetration, she also never denied (at the Child Advocacy Center
or during trial testimony) that it had happened. Additionally, Defendant was
convicted of two other crimes from that same date; one occurred immediately before
and one occurred immediately after the sex offense by digital penetration. Defendant
does not argue that his motion to dismiss should have been allowed as to the charge
of sex offense by fellatio or statutory rape. So, under Parker, the evidence supporting
these offenses strongly corroborates Defendant’s confession. 315 N.C. at 238–39, 337
S.E.2d at 496–97.
Defendant also argues that his confession needs particularly strong
corroboration because “he argued at length” to the trial court “that his statement to
Agent Pulliam was coerced.” He contends that under the circumstances, he likely
“felt pressured to agree with the suggestions of the officers about what happened.”
Defendant’s suggestion of a coerced confession does not change our analysis.
Defendant filed a motion to suppress his interview, and some of the facts he asserted
in that motion are the same facts he contends are coercive here: several officers were
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Opinion of the Court
present during his interview, the officers were “armed with firearms in plain view or
sight,” and he was in an isolated area. The trial court denied Defendant’s motion to
suppress the interview after making detailed findings of fact. Defendant has not
challenged the trial court’s ruling on the motion to suppress or its ruling on objections
relevant to this issue.
We hold that the trial court did not err in denying Defendant’s motion to
dismiss the charge of sex offense by digital penetration.
IV. Failure to Declare Mistrial
Defendant next argues that the trial court erred by “not declaring a mistrial
after repeated improper questions by the prosecutor and inadmissible statements by
Agent Pulliam.”
A. Standard of Review
Defendant did not request a mistrial at trial. A trial judge may declare a
mistrial upon his own motion if it “is impossible for the trial to proceed in conformity
with law” or “it appears there is no reasonable probability of the jury’s agreement
upon a verdict.” N.C. Gen. Stat. § 15A-1063(1)-(2) (2025). Upon a defendant’s motion
or with his concurrence the judge may declare a mistrial at
any time during the trial. The judge must declare a mistrial
upon the defendant’s motion if there occurs during the trial
an error or legal defect in the proceedings, or conduct inside
or outside the courtroom, resulting in substantial and
irreparable prejudice to the defendant’s case.
N.C. Gen. Stat. § 15A-1061 (2025). “It is well settled that a motion for a mistrial and
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the determination of whether [a] defendant’s case has been irreparably and
substantially prejudiced is within the trial court’s sound discretion.” State v. Shore,
258 N.C. App. 660, 678, 814 S.E.2d 464, 475 (2018) (citation and quotation marks
omitted).
B. Analysis
Defendant contends that the “prosecutor’s numerous improper questions and
[Agent] Pulliam’s non-responsive and prejudicial answers made it impossible for the
trial to continue in conformity with the law, resulting in substantial prejudice to [his]
right to a fair trial by an unprejudiced jury.”
First, Defendant argues the prosecutor demonstrated a pattern of asking
improper questions. Defendant characterizes these improper questions as:
“[s]takeout questions in jury selection; [q]uestions designed to elicit inadmissible
responses; [q]uestions stating her personal beliefs and characterizations; [q]uestions
that were leading; and [q]uestions that were irrelevant.” According to Defendant, the
“improper questions started in jury selection,” when the prosecutor stated that she
“d[id] not expect to present DNA or fingerprints in th[e] case” and asked if any if the
jurors would “require the presentation of DNA or fingerprints in th[e] case.”
Defendant objected, and the trial court sustained the objection. Defendant also points
to when the State questioned Lea, near the beginning of her testimony, “Why are we
here?” and she responded: “Because I was sexually assaulted by Mr. Tyson.” The
court sustained the objection, directed the jury to disregard the answer, and
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instructed the prosecutor to rephrase her question.
Next, Defendant argues that Agent Pulliam’s answers to several questions
were inadmissible. Specifically, Agent Pulliam “offered testimony that exceeded the
scope of the question and improperly opined on the credibility of both [Defendant’s]
and [Lea’s] statements.” Defendant gives several examples; we note one. At trial,
Agent Pulliam gave a non-responsive answer that also commented on Lea’s
credibility:
[PROSECUTOR]: Now, after your interaction with . . .
Defendant concluded on September 20th of 2020, did you
take any steps to speak with [Lea]?
[AGENT PULLIAM]. To directly speak with her? No.
[PROSECUTOR]: And why -- why was that?
[AGENT PULLIAM]: As part of this process and trying to
remain fair and impartial, and especially when it comes to
children who were abused and have been through stuff, we
would typically try to use a Child Advocacy Center. And
that’s – so that people who have specialized training and
it’s – it’s an environment where they typically – and I think
[Lea] testified she felt more comfortable in and that there
is maybe not this pressure to try to say something or not
say something. So because of that I didn’t go interview her.
We typically would just wait and then schedule an
interview and let her talk with kind of that whole
independent entity. So they aren’t law enforcement
officers at the Child Advocacy Center. Most of them are
counselors or have background in that or social work, and
they have their own process that they’ll go through that’s
the same for everyone that comes through. And it’s – so we
get the best, most accurate information, and that it’s in an
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environment that is not overly traumatic.3
THE COURT: I’m sorry, sustained to accurate information.
That’s – if the – if the jury will disregard the
characterization of it being accurate.
In sum, Defendant argues that the prosecutor and Agent Pulliam’s conduct “during
the trial should have resulted in a mistrial.”
The State’s brief does not respond directly to any of the multiple questions and
answers addressed in Defendant’s brief; the State simply contends that “none of the
questions rose to the level of prejudice that should have prompted a trial court to
declare a mistrial ex mero muto.” We take the State’s response to mean that it does
not deny Defendant’s contention that the prosecutor did ask many improper
questions, to which Defendant objected and the trial court sustained, or that the trial
court sua sponte sustained and directed the jury to disregard. And we agree—the
prosecutor asked many improper questions and Agent Pulliam gave testimony that
was not responsive to questions and included inadmissible information.
In State v. Edmonds, 236 N.C. App. 588, 763 S.E.2d 552 (2014), this Court
addressed the defendant’s argument that “the State’s line of questioning ‘appear[ed]
3 We will not include large portions of the testimony but, upon review of the transcript, it appears that
many of the alleged inappropriate questions and answers may have been the State’s attempt to elicit evidence which would have properly come from a witness from the Child Advocacy Center. The State had expected this witness to be available, but she was not available at the time of the trial. Additionally, the trial court sustained Defendant’s objections to the State’s attempts to introduce Lea’s interview from the Child Advocacy Center, so it was not in evidence. Defendant consistently objected to the State’s attempts to get this evidence in through the backdoor, and the trial court consistently sustained the objections and instructed the jury to disregard the offending question or testimony.
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to have been a deliberate tactic to inform the jury through questions what could not
be proved through admissible evidence.’” Id. at 596, 763 S.E.2d at 558 (citations
omitted). We explained that:
the crux of [the] defendant[’s] . . . argument is best
summarized as follows: [the] defendant contends that the
trial court erred in failing to declare a mistrial ex mero
motu in response to acts of prosecutorial misconduct during
his trial. We disagree.
A trial court’s decision not to intervene ex mero motu to
declare a mistrial on the basis of a prosecutor’s questions
to a witness will not be disturbed on appeal unless the trial
court clearly has abused its discretion. Where a
prosecutor’s questions are improper, the trial court has the
authority to provide a curative instruction to the jury or to
declare a mistrial.
Id. at 594, 763 S.E.2d at 557 (citations and quotation marks omitted). The Court
rejected the defendant’s argument because “the prosecutor did not place inadmissible
information before the jury,” and the court “had sustained the [defendant’s]
objections, struck one question from the record, and issued a curative instruction.”
Id. at 596, 763 S.E.2d at 558.
The trial court did the same here – it sustained many objections and issued
curative instructions, both at the time of the questions and in its final instructions to
the jury. See id. Defendant does not argue that the prosecutor was asking improper
questions in bad faith. See id. (“Our Supreme Court has held that questions asked
on cross-examination will be considered proper unless the record shows they were
asked in bad faith.” (citation, quotation marks, and brackets omitted)). The trial
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Opinion of the Court
court was in the best position to address the potential prejudicial effect of the
improper questions and non-responsive answers, and it is apparent that the court
took care to address each one and to uphold its responsibility to prevent Defendant
from being prejudiced by the improper questions or answers.
Defendant has not demonstrated that the improper questions and responses
rise to the level of “such serious improprieties as would make it impossible to attain
a fair and impartial verdict under the law.” State v. Blackstock, 314 N.C. 232, 243–
44, 333 S.E.2d 245, 252 (1985). We reject Defendant’s argument.
V. Clerical Error
Defendant argues, and the State agrees, that the trial court made a clerical
error in one of its judgments. However, they disagree as to which judgment contains
the error. Defendant contends that the judgment identified as File No. 20CR050878-030 contains the error; the State argues that the error is present in the judgment
identified as File No. 20CR050877-030. We agree with Defendant and remand the
judgment in File No. 20CR050878-030 to the trial court for correction of the clerical
error.
“When, on appeal, a clerical error is discovered in the trial court’s judgment or
order, it is appropriate to remand the case to the trial court for correction because of
the importance that the record ‘speak the truth.’ ” State v. Smith, 188 N.C. App. 842,
845, 656 S.E.2d 695, 696 (2008) (citation and quotation marks omitted). A clerical
error is “an error resulting from a minor mistake or inadvertence” especially “in
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Opinion of the Court
writing or copying something on the record, and not from judicial reasoning or
determination.” State v. Taylor, 156 N.C. App. 172, 177, 576 S.E.2d 114, 117–18
(2003) (citation and quotation marks omitted).
Defendant was charged in File No. 20CR050877-030 with statutory rape, sex
offense by fellatio, and sex offense by digital penetration; in File No. 20CR050878-030, he was charged with sex offense by airport. The judgment in File No.
20CR050877-030 only lists one offense—statutory rape—and the offense’s
corresponding file number is accurately identified as File No. 20CR050877-030. The
judgment in File No. 20CR050878-030 includes three offenses4 and each offenses’
corresponding file number: statutory sex offense with child by adult (File No.
20CR050878-030), statutory rape (File No. 20CR050877-030), and statutory rape
(File No. 20CR050877-030).
The judgment identified as File No. 20CR050877-030 accurately identifies the
offense of statutory rape and its corresponding file number (File No. 20CR050877-030). The judgment identified as File No. 20CR050878-030 accurately identifies the
offense of sex offense by airport and its corresponding file number (File No.
20CR050878-030). However, the judgment identified as File No. 20CR050878-030
also includes two other offenses from File No. 20CR050877-030: two counts of
4 Although the judgment identified as File No. 20CR050878-030 includes three offenses, only one
offense’s file number is File No. 20CR050878-030, the other two offenses’ file numbers are listed as File No. 20CR050877-030.
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Opinion of the Court
statutory rape of child by adult. This is error, as Defendant was neither charged nor
convicted of three counts of statutory rape. Instead, the judgment identified as File
No. 20CR050878-030 should include, in addition to the sex offense by airport
conviction in File No. 20CR050878-030, sex offense by fellatio (File No. 20CR050877-030) and sex offense by digital penetration (File No. 20CR050877-030). We therefore
remand to the trial court the judgment identified as File No. 20CR050878-030 for
correction of this clerical error.
VI. Conclusion
For the reasons discussed above, we hold that Defendant received a fair trial,
free from prejudicial error.
NO ERROR; REMANDED FOR CORRECTION OF CLERICAL ERROR.
Judges HAMPSON and FLOOD concur.
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