State v. Velasco, COA24-333, ___ N.C. App. ___ (Feb. 19, 2025)

In this Johnston County case, defendant appealed her convictions for first-degree forcible rape, first-degree forcible sexual offense, sexual servitude of a child victim, and incest of her daughter, arguing error in (1) omitting a parenthetical phrase from the pattern jury instructions for flight, and (2) instructing the jury on aiding and abetting. The Court of Appeals held that defendant waived (1), and found no error in (2).

In 2020, defendant and her husband lived separately from her daughters, who lived with their father, defendant’s ex-husband. Defendant maintained communication with her daughters, and in August 2020, two of her daughters snuck out of their father’s house to spend the night with defendant at her apartment. While there, defendant gave her daughters alcohol and partied with them, although both were underage. The older daughter and victim in the case became sick at one point, and defendant took her to lay down in a bedroom where her husband was also present. At that point, defendant’s husband began touching the victim in a sexual manner, and defendant returned to the bedroom with a pair of scissors, telling her husband “I know you want to.  You can do it.” Slip Op. at 4. The husband used the scissors to cut off the victim’s underwear, and he began raping the victim. Defendant returned to the bedroom and began taking pictures with her cellphone. Eventually, defendant told her husband to stop and brought the victim clothes, and in the morning they drove the daughters back to their father’s house. After the victim reported the incident, defendant was brought to trial and eventually convicted.

Taking up (1), defendant argued it was error to omit the first sentence of N.C.P.I-Crim. 104.35, the pattern instruction on flight. Defendant did not object at trial, and although the Court of Appeals may review instructional errors that were not objected to for plain error, the defendant must “specifically and distinctly” argue the error was plain error under Rule of Appellate Procedure 10(a)(4). Id. at 11. Here, defendant did not and the argument was waived, leading the court to dismiss it.

Moving to (2), defendant argued that it was plain error to instruct the jury on aiding and abetting the crimes as the instruction was based solely on defendant being the victim’s biological mother. The court explained that the objected-to instruction “Aiding and Abetting – Parent” which instructed the jury that a parent who is present and fails to take all steps to protect their child from attack or sexual assault is subject to conviction based on aiding and abetting. Id. at 15. The instruction specifically pointed to State v. Walden, 306 N.C. 466 (1982), where the Supreme Court established parents have a “duty to take every step reasonably possible under the circumstances of a given situation to prevent harm to their children.” Slip Op. at 16 (quoting Walden at 475). However, the court noted a caveat that “one may not be found to be an aider and abettor” solely because they are present, and thus evidence must show “the defendant said or did something showing [their] consent to the criminal purpose and contribution to its execution.” Id. at 16-17 (quoting Walden at 476). Here, the court noted that even if the instruction provided did not fully capture the caveat from Walden, the State provided evidence showing defendant took actions and made statements showing her consent, highlighting that defendant told her husband “you can do it” and bringing him scissors, taking photographs while he raped her daughter, and providing alcohol and marijuana gummies to her daughters while they were underage. As a result, defendant could not show plain error.