               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-444

                               Filed: 21 November 2017

Pitt County, No. 15CRS052923, 15CRS055098, 15CRS055100-02

STATE OF NORTH CAROLINA

              v.

RAUL PACHICANO DIAZ, Defendant.


        Appeal by Defendant from judgments entered 18 May 2016 by Judge Jeffery

B. Foster in Pitt County Superior Court. Heard in the Court of Appeals 3 October

2017.


        Attorney General Joshua H. Stein, by Special Deputy Attorney General Neil
        Dalton, for the State.

        Marilyn G. Ozer, for Defendant-Appellant.


        MURPHY, Judge.


        The State may not condition one constitutional right upon the violation of

another. Thus, a defendant cannot be required to make a sworn statement asserting

his date of birth in his affidavit of indigency and the State use this evidence against

him later to prove elements of alleged crimes.

        Raul Pachicano Diaz (“Defendant”) appeals from jury verdicts convicting him

of abduction of a child, three counts of statutory rape, and four counts of second degree

sexual exploitation. On appeal, Defendant argues: (1) his constitutional rights to due
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process, a fair trial before an impartial jury, and against self-incrimination were

violated when the State gave jurors copies of his affidavit of indigency; and (2) there

was insufficient evidence on the abduction of a child charge for the charge to go to the

jury. We grant Defendant a new trial on the abduction of a child charge and statutory

rape charges, and hold the trial court did not commit error in allowing jurors to see

Defendant’s amount of bond in his affidavit and in denying Defendant’s motion to

dismiss the abduction of a child charge.

                                         I. Background

      The State’s evidence tended to show the following. Defendant and Julie1 began

dating in “late fall, early winter” of 2014. Julie was a freshman in high school, and

Defendant was a senior at the same school. At that time, Julie was fourteen years

old. Defendant first told Julie he was eighteen years old, but she later found out he

was nineteen years old.

      Beginning in January 2015, the two started skipping school together.

Sometimes the two went “out” or to Durham, but other times the two went to

Defendant’s home. While at Defendant’s home, the two engaged in sexual intercourse

on multiple occasions. During one of their sexual engagements in March or April,

Defendant asked Julie if he could record the two of them having sex. Julie agreed to




      1   We use this pseudonym to protect the identity of the juvenile.

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let Defendant tape them, but then later worried Defendant would use it to

“manipulate” her. Defendant taped their sexual activity on multiple occasions.

       Sometime in March or April, Defendant got the idea to leave town. Julie

agreed to leave for several reasons: First, she was in love with Defendant. Second,

Defendant told Julie that if she did not go with him, she was never going to see him

again. Third, Julie feared he would “use those videos to manipulate [her]” by showing

them to people. While Defendant did not force Julie to go with him, she “felt forced.”

At first, Julie was “nervous, scared, afraid, [and] sad” to leave town, but then she

became “excited and happy” at the prospect of “mak[ing] things different.” Julie did

not tell her mother she planned to leave town.

       On 14 April 2015, Julie got on her school bus, as if she was attending school,

but then got off the bus and met Defendant. The two waited for Julie’s mother to

leave Julie’s home. After Julie’s mother was gone, they went to Julie’s home and

packed Julie’s belongings. Then, they went and retrieved Defendant’s belongings

from his home.

       The two drove Defendant’s car to Defendant’s uncle’s home in New Mexico.

Once they arrived, Defendant’s uncle told them they had to “do things right” and

instructed Julie and Defendant to go back home. Defendant’s uncle also told Julie to

call her mother. Julie called her mother, but refused to tell her mother where she

was.



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        Defendant and Julie left New Mexico and drove to Broken Arrow, Oklahoma.

There, the two “tried to get settled.” Both Defendant and Julie began working, and

the two leased an apartment together. On 20 May 2015, U.S. Marshals arrived at

Julie’s place of work. The Marshals asked for her, and she tried to lie and conceal

her identity. The Marshals took her away,2 and then she flew to Charlotte.

        On 2 June 2015, Julie gave a written statement to Detective Mitchell of the

Pitt County Sheriff’s Office. In the written statement, Julie asserted Defendant said,

“If you want to go back, I’ll take you back. I[’]m not forcing you to do anything!” Julie

told Defendant, “No I don’t want to go back. I don’t want to!” However, at trial Julie

asserted that at the time she wrote the statement, she still loved Defendant and “felt

that [she] had to protect him.”

        On or about 3 June 2015, Defendant was arrested.3 On 14 September 2015, a

Pitt County Grand Jury indicted Defendant for abduction of a child, three counts of

statutory rape, and four counts of first degree sexual exploitation of a minor.

        On 6 October 2015, Defendant completed an affidavit of indigency. In the

sworn affidavit, Defendant asserted his date of birth was 20 November 1995.




        2 Julie testified the U.S. Marshals took her to “where they put the bad children”, and she could
not remember the name of the location.
        3 Two of the warrants for arrest list 3 June 2015 as the date of arrest. Defendant’s brief also

asserts the date he was served with warrants of arrest was 3 June 2015. We note some of the warrants
have an ineligible date marked as the date of arrest, and others are dated for 8 July 2015.

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Additionally, the affidavit listed Defendant’s “Bond Type” as “Secured”, in an amount

of $500,000.00.

      On 16 May 2016, Defendant’s case came on for trial. Julie and her mother

testified. Following Julie’s testimony, the State moved to admit the affidavit of

indigency into evidence.    Defendant objected on the grounds of “relevance, due

process, hearsay, [and] confrontation.”      The trial court overruled Defendant’s

objection and allowed the State to publish the affidavit to the jury by distributing an

individual copy to each juror. When the State rested, Defendant moved to dismiss all

of the charges against him. The trial court denied Defendant’s motions. Defendant

did not present any evidence, and Defendant renewed his motions to dismiss. The

trial court denied Defendant’s motions.

      The jury found Defendant guilty of abduction of a child, three counts of

statutory rape, and four counts of second degree sexual exploitation. The trial court

sentenced Defendant as a prior record level I. The court consolidated the abduction

convictions and all three statutory rape convictions and sentenced Defendant to 65 to

138 months imprisonment.       The court also ordered Defendant pay $1,054.10 in

restitution, for Julie’s flight from Oklahoma to Charlotte. For the sexual exploitation

convictions, the court imposed four consecutive suspended terms of 25 to 90 months

imprisonment. Lastly, the court imposed 36 months of supervised probation for each

sexual exploitation conviction. Defendant filed timely written notice of appeal.



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                              II. Standard of Review

      We review preserved violations of constitutional rights de novo.         State v.

Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citing State v. Tate, 187

N.C. App. 593, 599, 653 S.E.2d 892, 897 (2007)). “Once error is shown, the State bears

the burden of proving the error was harmless beyond a reasonable doubt.” Id. at 214,

683 S.E.2d at 444 (citing N.C.G.S. § 15A-1443 (b) (2009)). “In determining whether

error is harmless beyond a reasonable doubt, . . . the rule is that if there is a

reasonable possibility that the evidence complained of might have contributed to the

conviction, it is not harmless beyond a reasonable doubt.” State v. Knight, 53 N.C.

App. 513, 514-15, 281 S.E.2d 77, 78 (1981).

      “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).

“Upon defendant’s motion for dismissal, the question for the Court is whether there

is substantial evidence (1) of each essential element of the offense charged, or of a

lesser offense included therein, and (2) of defendant’s being the perpetrator of such

offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455 (2000) (quotation marks and citation omitted).         “In making its

determination, 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



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favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515

U.S. 1135, 132 L. Ed. 2d 818 (1995).

             Circumstantial evidence may withstand a motion to
             dismiss and support a conviction even when the evidence
             does not rule out every hypothesis of innocence. If the
             evidence presented is circumstantial, the court must
             consider whether a reasonable inference of defendant’s
             guilt may be drawn from the circumstances. Once the court
             decides that a reasonable inference of defendant’s guilt
             may be drawn from the circumstances, then it is for the
             jury to decide whether the facts, taken singly or in
             combination, satisfy it beyond a reasonable doubt that the
             defendant is actually guilty.

Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (quotation marks, citations, brackets, and

emphasis omitted).

                                     III. Analysis

      We address Defendant’s arguments in two parts: (1) Defendant’s affidavit of

indigency; and (2) Defendant’s motion to dismiss the abduction of a child charge.

A. Defendant’s Affidavit of Indigency

      Defendant alleges the trial court erred in allowing jurors to see his affidavit of

indigency for two reasons: (1) it violated his right to a fair trial because it indicated

he was under a secured bond of $500,000, which had not been posted, thus, indicating

he was still in custody; and (2) putting his date of birth on the affidavit violated his

right against self-incrimination. We address these arguments in turn, but first we




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must determine whether Defendant properly preserved his objection for appellate

review.

      i. Preservation for Appellate Review

      After his valid objection to preserve his constitutional rights, Defendant failed

to specifically obtain a ruling from the trial court on the constitutional issues he now

attempts to raise on appeal. Thus, Defendant has not properly preserved these

constitutional issues for appellate review.

             In order to preserve a question for appellate review, a party
             must have presented to the trial court a timely request,
             objection or motion, stating the specific grounds for the
             ruling the party desired the court to make if the specific
             grounds were not apparent from the context. It is also
             necessary for the complaining party to obtain a ruling upon
             the party’s request, objection or motion.

State v. Blizzard, 169 N.C. App. 285, 292, 610 S.E.2d 245, 250 (2005) (emphasis

added) (citation omitted); see N.C.R. App. P. 10(a) (1) (2017). “Assignments of error

are generally not considered on appellate review unless an appropriate and timely

objection was entered and ruling obtained.” Id. at 292, 610 S.E.2d at 250 (emphasis

added) (citing State v. Short, 322 N.C. 783, 790, 370 S.E.2d 351, 355 (1988)). As such,

“a constitutional question which is not raised and passed upon in the trial court will

not ordinarily be considered on appeal.” State v. Hunter, 305 N.C. 106, 112, 286

S.E.2d 535, 539 (1982) (emphasis added) (citations omitted).




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      In the instant case, the State moved the trial court to admit into evidence

Defendant’s affidavit of indigency as a certified true copy of a public document.

Defendant objected, listing both evidentiary and constitutional grounds for the

objection, and the trial court ruled as follows:

             [Defense counsel]: We would object, your Honor; relevance,
             due process, hearsay, confrontation.

             THE COURT: All right. The Court is going to find that the
             document marked State’s Exhibit 3 is an affidavit of
             indigency. The document was signed by the Defendant
             under oath before the deputy clerk of court on October 6th,
             2015. That this is a true copy of the original document as
             it appears in the court file in these matters, at the District
             Court level. And pursuant to 902, Rule 902 Rules of
             Evidence, it is a self-authenticating document, and the
             Court is going to admit it into evidence.

(emphasis added).

      Where, as here, the trial court did not rule on Defendant’s objection on

constitutional grounds, this Court should not consider for the first time on appeal the

constitutional questions Defendant raises now. See id. at 112, 286 S.E.2d at 539; see

State v. Davis, 198 N.C. App. 146, 148-49, 678 S.E.2d 709, 712-13 (2009) (invoking

Rule 2 in order to address the question raised by the defendant on appeal which

defendant failed to preserve for appellate review where the defendant’s counsel failed

to obtain a ruling on the issue). However, based on the specific circumstances in this

case and in order to avoid the possibility of a manifest injustice, we exercise our




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discretion under Rule 2 of the North Carolina Rules of Appellate Procedure and reach

the merits of Defendant’s constitutional arguments. N.C.R. App. P. 2 (2017).

      ii. The Amount of Bond on the Affidavit of Indigency

      Defendant first argues the amount of bond on his affidavit of indigency violated

his constitutional right to a fair trial.     Specifically, Defendant argues he was

prejudiced by the jurors knowing he was in custody. We disagree.

      “Essential to the concept of due process is the principle that every person who

stands accused of a crime is entitled to the ‘fundamental liberty’ of a fair and

impartial trial.” State v. Tolley, 290 N.C. 349, 364, 226 S.E.2d 353, 366 (1976)

(citations omitted). The presumption of innocence “is a basic component of a fair trial

under our system of criminal justice.”       Id. at 364, 226 S.E.2d at 366 (citations

omitted).   Thus, “courts must guard against factors which may undermine the

fairness of the fact-finding process and thereby dilute the principle that guilt is to be

established by probative evidence and beyond a reasonable doubt.” Id. at 365, 226

S.E.2d at 366 (quotation marks and citations omitted).

      From these rules, our appellate courts have held, generally, a defendant may

not be shackled or bonded during trial. Our Supreme Court listed three reasons for

not physically restraining a defendant during trial:

             (1) it may interfere with the defendant’s thought processes
             and ease of communication with counsel, (2) it intrinsically
             gives affront to the dignity of the trial process, and most
             importantly, (3) it tends to create prejudice in the minds of


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             the jurors by suggesting that the defendant is an obviously
             bad and dangerous person whose guilt is a foregone
             conclusion.

Id. at 366, 226 S.E.2d at 367. (citations omitted).

      However, the Tolley rule has not been extended beyond a defendant being

physically restrained in the courtroom. First, in State v. Montgomery, 291 N.C. 235,

229 S.E.2d 904 (1976), our Supreme Court declined to extend Tolley to a situation

where several jurors saw the defendant in handcuffs while being taken from the jail

to the courthouse. Id. at 251-52, 229 S.E.2d at 913-14. The Court highlighted the

fact that the “defendant was never shackled or bound while in the courtroom.” Id. at

250, 229 S.E.2d at 912. Next, in State v. Fowler, 157 N.C. App. 564, 579 S.E.2d 499

(2003), defendant argued the trial court committed constitutional error when the trial

court told the jury he was in the custody of the Sheriff’s Department. Id. at 566, 579

S.E.2d at 500-01. This Court rejected that argument and stated “the statements by

the trial court do not create the same prejudice to the defendant as that raised when

a defendant appears in court in shackles or prison garb.” Id. at 566, 579 S.E.2d at

501 (citation omitted).

      Defendant argues the information on the affidavit of indigency violated his

presumption of innocence. Specifically, Defendant complains the amount of a high

bond lended itself to jurors believing the magistrate “considered the crime so grave

and the risk of escape so high[.]” Additionally, Defendant contends that because the



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“By Whom Posted” portion was left blank, “the jurors could have understood that

[Defendant] had not been able to make bond and was in custody.”

      We hold that even if the jurors inferred Defendant was in custody and unable

to pay the $500,000 bond, his right to a fair trial was not violated.   As in Fowler,

there is some evidence before the jury that Defendant was in custody, but Defendant

was not shackled or handcuffed in the courtroom. Id. at 566, 579 S.E.2d at 500-01.

This inference does “not create the same prejudice to the defendant as that raised

when a defendant appears in court in shackles or prison garb.” Id. at 566, 579 S.E.2d

at 501 (citations omitted). Accordingly, we hold Defendant’s right to a fair trial was

not violated by the jurors seeing his bond amount, and that no one had posted bond,

on his affidavit of indigency.

      iii. Defendant’s Date of Birth on the Affidavit of Indigency

      Defendant next argues his constitutional right against self-incrimination was

violated by the State admitting his affidavit of indigency into evidence, which

contained his date of birth. We agree.

      Our Supreme Court in State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995) held:

      [a] defendant cannot be required to surrender one constitutional right
      in order to assert another. Simmons v. United States, 390 U.S. 377, 394,
      19 L. Ed. 2d 1247, 1259 (1968). A criminal defendant has a
      constitutional privilege against compulsory self-incrimination. U.S.
      Const. amend[s]. V, XIV; N.C. Const. art. I, § 23.




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Id. at 274, 457 S.E.2d at 847. Thus, Defendant cannot be required to complete an

affidavit of indigency to receive his right to counsel, and the State then use the

affidavit against Defendant, violating his constitutional right against self-

incrimination. The abduction of a child offense requires Julie to be at least four years

younger than Defendant. N.C.G.S. § 14-41 (2015). The statutory rape offenses

require the State to prove Defendant was “more than four but less than six years

older” than Julie at the time of the offenses. N.C.G.S. § 14-27.7A(b) (2015).

      We conclude the trial court erred in admitting the affidavit of indigency, which

showed Defendant’s age—an element in the abduction of a child charge and the

statutory rape charges—over Defendant’s objection.            The State cannot violate

Defendant’s right against self-incrimination to prove an element of charges against

Defendant. Now, we must determine whether this error was harmless beyond a

reasonable doubt. See N.C.G.S. § 15A-1443 (b) (2015).

      In its assertion that the error was harmless beyond a reasonable doubt, the

State points to the following portion of Julie’s testimony:

             Q. . . . Do you know how old [Defendant] was back during
             this time period?

             A. In the beginning, he told me he was eighteen. But then
             I found out he was nineteen.

             Q. Do you know what his birthdate was?

             A. November the 26th.



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                Q. Do you happen to know what year he was born in?

                A. 1995.

Defendant cross-examined Julie about her knowledge of Defendant’s birthdate,

specifically that she had never seen Defendant’s driver’s license, birth certificate, or

his passport.

      We conclude the State has failed to meet the exceedingly high burden of

showing this error was harmless beyond a reasonable doubt.             Notably, Julie’s

testimony about Defendant’s date of birth was incorrect. Julie testified Defendant

was born on 26 November 1995, but the affidavit reflects that Defendant was born on

20 November 1995. Additionally, as evinced through cross-examination, Julie did not

testify regarding a basis for her knowledge. Julie had never seen an official document

showing Defendant’s correct date of birth or age. Based on this, we conclude “there

is a reasonable possibility that the evidence complained of might have contributed to

the conviction” and the error is not harmless beyond a reasonable doubt. Knight, 53

N.C. App. at 514, 281 S.E.2d at 78.

      Accordingly, we grant Defendant a new trial on the abduction of a child charge

and the statutory rape charges. We do not grant Defendant a new trial on the sexual

exploitation of a minor convictions because Defendant’s age is not an element of that

offense. See N.C.G.S. § 14-190.17 (2015). We still address Defendant’s argument




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regarding his motion to dismiss the abduction of a child charge, as any alleged error

may occur again at his new trial.

B. Motion to Dismiss the Abduction of a Child Charge

      Defendant next argues the trial court erred by denying his motion to dismiss

the abduction of a child charge. Defendant contends the evidence only shows Julie

voluntarily left her home. We disagree.

      N.C.G.S. § 14-41, titled “Abduction of children”, states:

                (a) Any person who, without legal justification or defense,
                abducts or induces any minor child who is at least four
                years younger than the person to leave any person, agency,
                or institution lawfully entitled to the child’s custody,
                placement, or care shall be guilty of a Class F felony.

Id. (emphasis added). “It is ‘not necessary for the State to show she [(the victim)] was

carried away by force, but evidence of fraud, persuasion, or other inducement

exercising controlling influence upon the child’s conduct would be sufficient to sustain

a conviction’ for this offense.” State v. Lalinde, 231 N.C. App. 308, 312-13, 750 S.E.2d

868, 872 (2013) (quoting State v. Ashburn, 230 N.C. 722, 723, 55 S.E.2d 333, 333-34

(1949)). “Of course, if there is no force or inducement and the departure of the child

is entirely voluntary, there is no abduction.” State v. Burnett, 142 N.C. 577, 581, 55

S.E. 72, 74 (1906).4




      4   This decision was reprinted in 1913 as 142 N.C. 577.

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       The evidence presented at trial shows: (1) it was Defendant’s decision to leave;

(2) Julie characterized 14 April 2015 as the day “we decided to leave”; (3) Defendant

videoed the two having sexual relations; (4) Julie wondered if he would use the tapes

against her; (5) there is no evidence that Defendant threatened to use the tapes

against her; (6) Julie testified she left with Defendant because she was in love with

him and because he said she would never see him again if she did not go with him;

and (7) When asked if Defendant forced her to go, Julie testified, “No, he didn’t, but I

felt forced.”

       When viewing all the evidence in a light most favorable to the State, there is

sufficient evidence to survive Defendant’s motion to dismiss. When asked why she

left with Defendant, Julie testified, “[Defendant] was like, ‘If you don’t come with me,

you’re never going to see me again[.]’” This testimony indicates that Defendant

induced Julie to leave with him. The evidence presented raises more than just a

suspicion or mere conjecture of guilt. Accordingly, we hold the trial court did not err

in denying Defendant’s motion to dismiss the abduction of a child charge.

                                   IV. Conclusion

       For the reasons stated above, we grant Defendant a new trial on the abduction

of a child charge and the statutory rape charges. We hold the trial court committed

no error by allowing jurors to see the amount of bond on Defendant’s affidavit of




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indigency and by denying Defendant’s motion to dismiss the abduction of a child

charge.

      NEW TRIAL IN PART; NO ERROR IN PART.

      Judge BRYANT concurs.

      Judge ARROWOOD concurs in result only.




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