                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                        No. COA17-1186

                                    Filed: 21 August 2018

Cumberland County, No. 14-CRS-56074

STATE OF NORTH CAROLINA

               v.

EDWARD M. ALONZO, Defendant.


       Appeal by Defendant from judgment entered 11 January 2017 by Judge Gale

M. Adams in Cumberland County Superior Court. Heard in the Court of Appeals 5

June 2018.


       Attorney General Joshua H. Stein, by Assistant Attorney General Ellen A.
       Newby, for the State.

       Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel
       Shatz, for defendant-appellant.


       MURPHY, Judge.


       Defendant, Edward M. Alonzo, appeals his convictions of taking indecent

liberties with a child and felony child abuse. These convictions result from the sexual

conduct Defendant inflicted on his daughter, Sandy,1 while the family resided in

Fayetteville between 1990-1993. At issue is whether a trial court commits plain error


       1  We refer to Defendant’s daughter by a pseudonym as she was under the age of 18 at the time
of the offenses.
                                        STATE V. ALONZO

                                       Opinion of the Court



by giving jury instructions that follow the present Pattern Jury Instruction, but are

not in accordance with current law. Further, here, we must determine whether the

trial court erred in excluding portions of Defendant’s testimony under Rules 401 and

403. N.C.G.S. § 8C-1, Rules 401, 403. Upon review, we find no plain error, and no

error, respectively.

                                       BACKGROUND

       Defendant began sexually molesting Sandy when she was only four years old.

This assault continued as their military family moved throughout the United States

and Europe. Despite Sandy informing her mother, Defendant’s behavior persisted.

       In 2012, having obtained the age of majority, Sandy contacted local, federal,

and military authorities across the country regarding the molestation she endured as

a child. When Sandy contacted the Cumberland County Sheriff’s Department, where

the family resided in Fayetteville from approximately 1990-1993, they ultimately

informed her that there is no statute of limitations for felonies in North Carolina.2

       A grand jury issued superseding indictments on 3 January 2017 against

Defendant for taking indecent liberties with a child, felonious child abuse, and first

degree statutory sexual offense.          At trial, Ms. Alonzo (Defendant’s ex-wife and

Sandy’s mother) testified that she witnessed Defendant molest Sandy sometime

between December 1990 and January 1991, when Defendant was home on


       2  State v. Taylor, 212 N.C. App. 238, 249, 713 S.E.2d 82, 90 (2011) (“In [North Carolina] no
statute of limitations bars the prosecution of a felony.” (citation omitted)).

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                                         Opinion of the Court



compassionate leave from the Army. Defendant attempted to testify that the reason

for his compassionate leave was the rape of his other daughter by a neighbor.

However, the trial court disallowed this testimony, deeming it both irrelevant and

more prejudicial than probative. At the close of the trial, the judge instructed the

jury using the Pattern Jury Instructions, including, inter alia, N.C.P.I.--Crim.

239.55B, the instruction for felonious child abuse.

       On 11 January 2017, Defendant was convicted of taking indecent liberties with

a child and felonious child abuse. The jury found him not guilty of first degree

statutory sexual offense.3           Defendant timely appealed, focusing on the jury

instructions and the trial court’s decision to exclude portions of his proposed

testimony.

                                            ANALYSIS

                                     A. Jury Instructions

       At trial, Defendant failed to object to the instructions regarding the charge of

felonious child abuse by sexual act in violation of N.C.G.S. § 14-318.4(a2) (1991).4

Therefore, the trial court’s decision will only be overturned upon a finding of plain

error. State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012).




       3 First degree statutory sexual offense is defined as “a sexual act with a victim who is a child
under the age of 13 years and the defendant is at least 12 years old and is at least four years older
than the victim.” N.C.G.S. § 14-27.29(a) (2017).
       4 For the purposes of this case, there is no substantive difference between N.C.G.S. § 14-

318.4(a2) (1991) and the versions applied in the cases cited in this opinion.

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                                   Opinion of the Court



      “[T]he North Carolina plain error standard of review [for jury instructions]

applies only when the alleged error is unpreserved[.]” Id. “Under the plain error

rule, defendant must convince this Court not only that there was error, but that

absent the error, the jury probably would have reached a different result.” State v.

Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

      The trial court instructed the jury that:

             To find [Defendant] guilty of this offense the State must
             prove three things beyond a reasonable doubt: First, that
             [Defendant] was the parent of [Sandy]. Second, that at the
             time [Sandy] had not yet reached her 16th birthday. Third,
             that [Defendant] committed a sexual act upon [Sandy]. A
             sexual act is an immoral, improper or indecent act by
             [Defendant] upon [Sandy] for the purpose of arousing,
             gratifying sexual desire.

These instructions track, almost precisely, the language of the North Carolina

Pattern Jury Instruction, N.C.P.I.--Crim. 239.55B, the suggested instructions for the

charge of felonious child abuse. “[T]he preferred method of jury instruction is the use

of the approved guidelines of the North Carolina Pattern Jury Instructions.” Caudill

v. Smith, 117 N.C. App. 64, 70, 450 S.E.2d 8, 13 (1994) (citation omitted).

      Defendant does not argue that the Pattern Jury Instruction is inapplicable to

his case. Instead, Defendant takes issue with the language of the instruction and

argues the definition of “sexual act” is incorrect, pointing to an inconsistency between

the Pattern Jury Instruction and this Court’s precedent.           While Defendant’s

argument has merit, the error does not rise to the level of plain error here.


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                                  STATE V. ALONZO

                                  Opinion of the Court



1. Inaccuracy of Pattern Jury Instruction

      Defendant addresses a discrepancy between N.C.P.I.--Crim. 239.55B and our

prior interpretation of a sexual act, as applied to N.C.G.S. § 14-318.4(a2). We have

previously held that the definition of “sexual act” in N.C.G.S. § 14-318.4(a2) is the

definition contained in N.C.G.S. § 14-27.1(4) (recodified as N.C.G.S. § 14-27.20(4)).

State v. Lark, 198 N.C. App. 82, 88, 678 S.E.2d 693, 698 (2009). N.C.G.S. § 14-27.20(4)

defines “sexual act” as:

             cunnilingus, 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:
             provided, that it shall be an affirmative defense that the
             penetration was for accepted medical purposes.

The State argues, and Defendant concedes, that a later decision of this Court diverges

from this definition of sexual act, declining to extend the N.C.G.S. § 14-27.1(4)

definition to N.C.G.S. § 14-318.4(a2). State v. McClamb, 234 N.C. App. 753, 758-59,

760 S.E.2d 337, 341 (2014) (citations omitted). As such, there is a conflict between

our precedent. However, “when there are conflicting lines of opinions from this Court,

we generally look to our earliest relevant opinion in order to resolve the conflict.”

State v. Meadows, ___ N.C. App. ___, ___, 806 S.E.2d 682, 693 (2017), cert. granted

___, N.C. ___, 812 S.E.2d 847 (2018). As we are bound by our earlier decision in Lark,

the State’s argument regarding McClamb is without merit.




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                                    STATE V. ALONZO

                                    Opinion of the Court



       As a result, there is inconsistency between N.C.P.I.--Crim. 239.55B and our

controlling interpretation of “sexual act” as applied to N.C.G.S. § 14-318.4(a2). See

Lark, 198 N.C. App. at 88, 678 S.E.2d at 698. While the Pattern Jury Instruction

allows a broader categorization of what qualifies as a “sexual act,” our precedent

defines the words more narrowly. Compare id., with N.C.P.I.--Crim. 239.55B. We

express concern about this split in definitions for “sexual act.”         This divergence

indicates the necessity of updating the Pattern Jury Instructions to be in accordance

with our precedent. Lark, 198 N.C. App. at 88, 678 S.E.2d at 698; N.C.P.I.--Crim.

239.55B. The Pattern Jury Instruction’s definition of sexual act must conform with

this Court’s definition in Lark.

       As binding precedent supports Defendant’s claim of inaccurate jury

instructions, we must now determine whether the trial court’s use of the Pattern Jury

Instruction constituted plain error.

2. Prejudice

       In deciding whether this error in the Pattern Jury Instruction rises to the level

of plain error, we first hold that Defendant’s claim that “[t]he combination of the

jury’s verdicts finding [Defendant] not guilty of sex offense and guilty of . . . the [child

abuse] charge directly establishes” plain error is unconvincing. Defendant argues

that the proper definition of sexual act for the felonious child abuse charge “would

have mirrored” the instruction the jury received for sexual act in relation to



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                                         STATE V. ALONZO

                                         Opinion of the Court



Defendant’s first degree statutory sexual offense charge.5 Defendant alleges the not

guilty verdict on the sexual offense charge demonstrates that the jury had reasonable

doubt that Defendant penetrated Sandy, and, that had the Lark definition of sexual

act been given for the child abuse instruction, Defendant would have been found not

guilty of that crime as well. Defendant’s prejudice argument focuses on this alleged

“inconsistency” between the jury’s verdicts.

       However, as inconsistent verdicts are not prima facie evidence of error, and as

we are not convinced a proper jury instruction would have rendered a different

verdict, we hold that the trial court’s instructions did not prejudice the jury.

Lawrence, 365 N.C. at 516, 723 S.E.2d at 333; State v. Mumford, 364 N.C. 394, 398-

401, 699 S.E.2d 911, 914-16 (2010).

       While verdicts that are “inconsistent and contradictory” indicate error,

“verdicts that are merely inconsistent” may be both grounded in logic and not

erroneous. Mumford, 364 N.C. at 398-401, 699 S.E.2d at 914-16. To determine

whether conflicting verdicts are “merely inconsistent,” or both “inconsistent and

contradictory,” we must look to the relationship between the charges. Id. Erroneous

jury decisions occur when contradictory verdicts are “mutually exclusive,” one guilty




       5  The definition of “sexual act” given for the first degree statutory sexual offense charge was
“any penetration, however slight, by an object into the genital opening of a person’s body.” The proper
definition for sexual act in relation to the felonious child abuse charge is, in pertinent part,
“penetration, however slight, by any object into the genital or anal opening of another person’s body.”
Lark, 198 N.C. App. at 88, 678 S.E.2d at 698.

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                                   Opinion of the Court



finding eliminating the possibility of an accurate guilty verdict on the other charges.

Id. (citations omitted). However, the charges Defendant faced, indecent liberties

with a child, felonious child abuse, and first degree statutory sexual offense, were not

“mutually exclusive” because “guilt of one [did not] necessarily exclude[] guilt of the

other[s].” Id. at 400, 699 S.E.2d at 915; see State v. Farlow, 336 N.C. 534, 444 S.E.2d

913 (1994) (establishing that the charges of indecent liberties with a child and first

degree sexual offense are not mutually exclusive).         Therefore, what Defendant

proposes as inconsistencies within these jury verdicts, acquittal on the sexual offense

charge, but guilty of the child abuse charge, does not rise to the level of plain error in

the jury instructions. Mumford, 364 N.C. at 398-401, 699 S.E.2d at 914-16.

      Further, we are not convinced the jury would reach a different result had the

proper jury instruction been given. Lark, 198 N.C. App. at 88, 678 S.E.2d at 698;

N.C.P.I.--Crim. 239.55B. “It is well established in North Carolina that a jury is not

required to be consistent . . . .” State v. Rosser, 54 N.C. App. 660, 661, 284 S.E.2d 130,

131 (1981) (citations omitted). Since 1925, our Supreme Court has found validity in

inconsistent jury verdicts, stating that:

             The offenses are designated in the statute separately, and
             while the jury would have been fully justified in finding the
             defendant guilty on both counts, under the evidence in this
             case, their failure to do so does not, as a matter of law,
             vitiate the verdict . . . .




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                                     STATE V. ALONZO

                                     Opinion of the Court



State v. Sigmon, 190 N.C. 684, 691, 130 S.E. 854, 857 (1925).           Furthermore,

throughout North Carolina jurisprudence, our appellate courts have reaffirmed the

legitimacy of inconsistent jury verdicts. Rosser, 54 N.C. App. at 661, 284 S.E.2d at

131; State v. Davis, 214 N.C. 787, 71 S.E.2d 104 (1939) (upholding jury verdicts

finding Defendant guilty of transporting liquor for the purpose of selling it, but not

guilty of possessing liquor).

      As precedent dictates the validity of inconsistent verdicts, Defendant’s

argument of inconsistency indicating plain error fails to satisfy us “that absent the

error, the jury probably would have reached a different result.” Jordan, 333 N.C. at

440, 426 S.E.2d at 697. Therefore, we hold that the trial court’s utilization of the

Pattern Jury Instruction does not rise to the level of plain error.

      Lark’s definition of “sexual act” as applied from N.C.G.S. § 14-27.1(4) to

N.C.G.S. § 14-318.4(a2) remains binding on our review and results in a split between

the Pattern Jury Instruction and current law. Lark, 198 N.C. App. at 88, 678 S.E.2d

at 698. However, the trial court’s decision to follow the Pattern Jury Instruction did

not rise to the level of plain error as Defendant failed to demonstrate that the jury

would have reached a different verdict had correct jury instructions been given, with

the proper definition of “sexual act.” Jordan, 333 N.C. at 440, 426 S.E.2d at 697.

                                B. Exclusion of Testimony




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                                         Opinion of the Court



       Defendant also appeals the trial court’s exclusion of his proposed testimony

regarding the sexual assault of his other daughter by a neighbor. Defendant alleges

that his testimony concerning the sexual assault of his other daughter by a neighbor

operates as substantive evidence of the fact that he did not sexually assault Sandy

during his compassionate leave.6 Defendant also alleges that this proposed testimony

should have been allowed to impeach the testimony of Ms. Alonzo relating to her

having witnessed Defendant sexually assault Sandy during his compassionate leave.

On appeal, Defendant maintains that his testimony informing the jury of the sexual

assault of his other daughter proves that he “would have been sufficiently deterred”

from molesting Sandy during that same time period as “Ms. Alonzo [was] watching

him like a hawk.” Further, Defendant alleges that his testimony would “discredit[]

Ms. Alonzo’s testimony” that she saw him sexually assault Sandy, making her

explanation for not contacting the police after witnessing his acts “less convincing.”

       The trial court found Defendant’s proposed testimony irrelevant under

N.C.G.S. § 8C-1, Rule 401, and alternatively found that it did not satisfy the

balancing test of N.C.G.S. § 8C-1, Rule 403. On appeal, the trial court’s Rule 401

decisions are “given great deference.” Dunn v. Custer, 162 N.C. App. 259, 266, 591

S.E.2d 11, 17 (2004) (citation omitted).             A trial court’s ruling under Rule 403’s


       6  At trial, Defendant argued that this part of his testimony would show that “he wouldn’t have
molested [Sandy] in Fayetteville because of the trauma, because of the all of the things that the family
would have had to have gone through and that new ordeal, that new situation would have made him
less likely to molest [Sandy].”

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                                   STATE V. ALONZO

                                   Opinion of the Court



balancing test will not be disturbed absent an abuse of discretion. State v. Whaley,

362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008).

1. Substantive Use

      a. Rule 401

      Defendant claims that his testimony regarding the unrelated sexual assault of

his other daughter offers substantive, relevant evidence that he did not sexually

molest Sandy during his compassionate leave. “In order to be relevant, the evidence

must have a logical tendency to prove any fact that is of consequence in the case being

litigated.” State v. Griffin, 136 N.C. App. 531, 550, 525 S.E.2d 793, 806 (internal

quotation marks and citation omitted) (2000). Defendant, however, fails to establish

how his proposed testimony concerning the sexual assault of his other daughter by

another person would have the “logical tendency to prove” he was therefore less likely

to assault Sandy.    Id.   As Defendant’s arguments fail to establish this alleged

correlation, his proposed testimony does not “have a logical tendency to prove” that

Defendant would not have sexually molested Sandy. Id.; N.C.G.S. § 8C-1, Rule 401.

As we give “great deference” to the trial court, we decline to disturb the trial court’s

Rule 401 relevancy ruling. Dunn, 162 N.C. App. at 266, 591 S.E.2d at 17.

      b. Rule 403

      Further, assuming arguendo that Defendant’s evidence regarding the sexual

assault of his other daughter was relevant, the trial court did not abuse its discretion



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                                         STATE V. ALONZO

                                         Opinion of the Court



in excluding the testimony. Whaley, 362 N.C. at 160, 655 S.E.2d at 390; N.C.G.S. §

8C-1, Rule 403. “A trial court may be reversed for abuse of discretion only upon a

showing that its actions are manifestly unsupported by reason.” White v. White, 312

N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Rule 403 requires the trial court to balance

the prejudicial and probative value of any evidence, admitting only evidence that

benefits rather than hinders the jury’s deliberation. N.C.G.S. § 8C-1, Rule 403. The

testimony concerning the sexual assault of another child by an unrelated, third-party

had the potential to confuse the jury, outweighing any probative value, and it was

therefore not an abuse of discretion for the trial court to exclude Defendant’s

testimony as it related to the production of allegedly substantive evidence.7

2. Impeachment Use

        At trial and on appeal, Defendant also maintains that his testimony could have

been used to impeach Ms. Alonzo’s testimony that he sexually assaulted Sandy.

        a. Rule 401

        Defendant asserts that because Ms. Alonzo reported the sexual assault of their

other daughter by a neighbor, she therefore would have reported any assault she

witnessed him commit. Defendant further alleges that because Ms. Alonzo did not

file any reports, the jury could have therefore determined there was no sexual assault.



        7The trial court stated that “I don’t find that [the proposed testimony] is more probative than
would be, as the State has indicated, confusing to the jury why we’re even delving into issues regarding
the other daughter.”

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                                  STATE V. ALONZO

                                  Opinion of the Court



We agree with the State that Ms. Alonzo turning in a neighbor for sexual assault is

entirely different, psychologically and emotionally, than turning in her husband.

Without an established correlation between turning in neighbors and husbands for

sexual assault, Defendant’s proposed testimony does not “have a logical tendency to

prove” that Ms. Alonzo was incorrect or untruthful in her testimony. Griffin, 136

N.C. App. at 550, 525 S.E.2d at 806. We decline to disturb the trial court’s

determination on the testimony’s relevancy.

      b. Rule 403

      Further, the trial court did not abuse its discretion in excluding this testimony

under Rule 403. Whaley, 362 N.C. at 160, 655 S.E.2d at 390; N.C.G.S. § 8C-1, Rule

403. Rule 403’s balancing test mandates the exclusion of prejudicial or otherwise

inapplicable evidence when “its probative value is substantially outweighed” by its

prejudicial or inapplicable nature. N.C.G.S. § 8C-1, Rule 403. As previously stated,

testimony concerning the sexual assault of another child by an unrelated, third-party

had the potential to confuse the jury, outweighing any probative value. It was not an

abuse of discretion for the trial court to exclude Defendant’s proposed testimony as it

related to the impeachment of Ms. Alonzo’s testimony.

                                   CONCLUSION

      The current Pattern Jury Instruction concerning the definition of “sexual act”

in N.C.G.S. § 14-318.4(a2) requires immediate attention by the North Carolina



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                                  STATE V. ALONZO

                                  Opinion of the Court



Conference of Superior Court Judges Committee on Pattern Jury Instructions or our

Supreme Court. Clarity is necessary so that the law may be uniformly applied in all

trials throughout the State.    Here, however, the trial court’s decision to utilize

N.C.P.I.--Crim. 239.55B did not rise to the level of plain error. Additionally, we

uphold the trial court’s decision to exclude portions of Defendant’s proposed

testimony regarding the unrelated sexual assault of his other daughter by another

person under Rule 401 and find it was not an abuse of discretion for the trial court to

exclude this testimony under Rule 403.

      NO PLAIN ERROR IN PART; NO ERROR IN PART.

      Judge CALABRIA concurs.

      Judge ARROWOOD concurs in result only.




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