State v. Lindsay, COA23-563, ___ N.C. App. ___ (Mar. 5, 2024)

In this Gaston County case, defendant appealed his convictions for forcible sexual offense, assault on a female, and sexual battery, arguing error in (1) admitting out-of-court hearsay statements, and (2) failing to intervene ex mero motu during the State’s closing argument. The Court of Appeals found no error. 

In April of 2021, Defendant was staying with a family while visiting from New York, where he forced his way onto the eighteen-year-old daughter while she was sleeping. When the matter came to trial, the State called an officer who had interviewed the victim and her mother after the assault. The officer testified at trial about what the mother and the victim had told her during the interview. The State also offered recorded versions of interviews conducted by the police department. Defense counsel did not object to the testimony or the recorded interviews. Defendant was convicted after a bench trial and appealed. 

Beginning with (1), the Court of Appeals explained that the out-of-court statements in question were reviewed under the plain error standard, and noted that “we give the trial court the benefit of the doubt that it adhered to basic rules and procedure when sitting without a jury.” Slip Op. at 12. Here, the court did not find the statements inadmissible, as “the out-of-court statements at issue were corroborative and not substantially different from the in-court testimony.” Id. at 14. Because the statements were corroborating evidence of the testimony from the victim and her mother given during the trial, they did not represent hearsay. Additionally, the court noted the unusual nature of the review, as “the standard in a bench trial is distinct from plain error review and requires that defendant introduce facts showing the trial judge, in fact, considered inadmissible evidence.” Id. at 15. 

Looking to (2), defendant argued that the State improperly vouched for the truth of the victim’s testimony during closing argument. The court noted that the statements at issue were simply that the victim “had no reason to lie” about the assault, not direct statements vouching for her truthfulness. Id. at 16. Additionally, the court again pointed out that the matter was a bench trial, and “the trial judge presumably disregarded any personal beliefs purportedly inserted into the State’s closing argument that pertained to whether [the victim] was telling the truth.” Id. at 17. 

Judge Murphy dissented in part and concurred in the result only by separate opinion, dissenting from the majority’s statement regarding plain error review in a bench trial, but agreeing that defendant did not demonstrate prejudice.