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QUESTIONS PRESENTED
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1
ARGUMENTS
I............................................
THERE IS INSUFFICIENT EVIDENCE TO SUPPORT
THE DEFENDANT’S CONVICTION FOR THE TWO
COUNTS OF FIRST DEGREE SEXUAL OFFENSE AS
CHARGED IN THE SUPERCEDING INDICTMENT,
BECAUSE THERE IS NO EVIDENCE THAT THE
ACTS OCCURRED DURING THE PERIOD OF THE
ALLEGED DATE OF OFFENSE.
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6
II...........................................
THE DEFENDANT’S CONVICTIONS MUST BE
VACATED BECAUSE THE INDICTMENT
ENCOMPASSES A PERIOD OF TIME BEFORE THE
DEFENDANT WAS 16 YEARS OLD, AND
THEREFORE FAILS TO ESTABLISH THAT THE
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III..........................................
THE DEFENDANT’S SENTENCE VIOLATES THE
EIGHTH AMENDMENT OF THE U.S.
CONSTITUTION AND ARTICLE I OF THE NORTH
CAROLINA CONSTITUTION’S PROHIBITION
AGAINST CRUEL OR UNUSUAL PUNISHMENT,
BECAUSE IT SUBJECTS THE DEFENDANT TO A
TERM OF IMPRISONMENT OF 32 TO 40 YEARS,
FOR ACTS COMMITTED WHEN THE DEFENDANT
WAS, AT MOST, 16 YEARS OLD.
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CONCLUSION
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21
CERTIFICATE OF SERVICE
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v
Cases
Ewing v. California, 538 U.S. 11 (2003).................................................................17
Harmelin v. Michigan, 501 U.S. 957 (1991)...........................................................18
In re Sauls, 270 N.C. 180, 154 S.E.2d 327 (1967)..................................................10
In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006)................................................10
Kennedy v. Louisiana, 128 S. Ct. 2641 (2008)........................................................18
Lockyer v. Andrade, 538 U.S. 63 (2003).................................................................17
Roper v. Simmons, 543 U.S. 551 (2005)..........................................................passim
Solem v. Helm, 463 U.S. 277 (1983).................................................................17, 18
State v. Batdorf, 293 N.C. 486, 238 S.E. 2d. 497 (1977)........................................13
State v. Cutler, 271 NC 379, 156 S.E. 2d 679 (1967)...............................................7
State v. Evans, 279 NC 447, 183 S.E. 2d 540 (1971)................................................7
State v. Green, 348 N.C. 588, 502 S.E. 2d. 819 (1998)..........................................16
State v. Knight, 261 NC 17, 134 S.E. 2d. 101 (1964)................................................8
State v. Smith, 40 NC App 72, 252 S.E. 2d 535 (1979)............................................7
State v. Williams, 211 NC 569, 190 S.E. 2d. 898 (1937)..........................................8
Wood v. Guilford Cty., 355 N.C. 161, 558 S.E.2d 490 (2002)................................13
Statutes
N.C.G.S. § 7B-1601................................................................................................11
N.C.G.S. § 7B-2200................................................................................................11
N.C.G.S. § 15A-1442................................................................................................2
N.C.G.S. § 15A-1443(b)..........................................................................................15
N.C.G.S. § 15A-924................................................................................................12
N.C.G.S. § 15A-925(e)..............................................................................................8
1
The defendant was tried on 23-26 March 2009 in the Criminal Session of
Superior Court of Forsyth County, with the Honorable Lindsay R. Davis presiding.
The defendant was found guilty of two counts of first degree sexual offense (R pp.
43-44). On 26 March 2009, Judge Davis entered judgment, giving the defendant
defendant’s motion to extend time to serve the proposed record (R p. 58). The
proposed record was served on 29 July 2009 (R p. 62), filed with the Court of
printed record was mailed 5 October 2009. The Court of Appeals denied
defendant’s motion to extend time to file the brief, but allowed defendant’s
subsequent motion to reconsider the earlier motion, and the Court extended the
1442.
1
All transcript references in Defendant-Appellant’s Brief are to the transcript of
proceedings in the Superior Court on 23-26 March 2009. This transcript is
contained in four volumes (Vol. I-IV), with pages sequentially numbered 1-352.
3
Defendant Kerry Pettigrew was nine years old when he began living with his
weekends or during school vacations (T pp. 134, 138). Kenneth enjoyed doing
things with his father, who was also Kerry’s dad (T p. 130). Kenneth also loved his
big brother, Kerry. The two brothers played with each other, squabbling sometimes
over petty things. Kenneth recalled rolling around on the floor with his brother, and
doing other things together during his visits: playing basketball, visiting other
family members, doing things with their father, and going to church (T pp. 118-
119). When he visited, Kenneth slept in the same bedroom as his brother (T pp.
117, 133). Kerry (born 1/23/1985) is over five years older than Kenneth (born
11/21/1990) (T p. 206).
At trial, Kenneth testified that when he was five years old, his brother, who
was then 11, showed him his genitals when they were in their bedroom (T p. 122).
Kenneth testified that over time, his brother forced Kenneth into masturbating him,
licking his butt, engaging in oral sex, and participating in forcible anal sex (T pp.
p. 155), and Kenneth didn’t tell anyone because he was afraid of what Kerry would
Kenneth stated that when the sexual acts began, his father’s family was
living in an apartment building (T pp. 116, 120). In 1999, when Kenneth was 8, the
Kenneth, the sexual contact with his brother continued every year at the
times he visited, but not every time (T pp. 138-139, 143). When questioned,
Kenneth could recall that sometimes the sexual acts took place in the bedroom they
shared, and sometimes in the living room (T pp. 141-142). He described, in detail,
one particular incident which took place shortly after the family moved into the
home, in the summer of 1999 (T pp. 136-137, 200). However, when questioned,
Kenneth was not able to give details of any other specific instances after 1999 (T p.
141). According to Kenneth, “The instances were all fairly identical” (T p. 141).
time, before he confronted his brother in the summer of 2001 (T pp. 139, 141). On
that day, Kenneth got angry at Kerry for borrowing his bike, and Kenneth refused
Kerry’s request to “Go upstairs” (T p. 140). Kenneth testified that Kerry chased
him with a knife while he rode his bike to a neighbor’s house (T p. 140). The
police were called, and a report was filed on 6 August 2001 (T p. 255). No sexual
After the confrontation in 2001, Kenneth didn’t tell anyone about the alleged
abuse for over five years. In April 2007, when he was 16 years old and Kerry was
22, Kenneth told his father and mother (T p. 143). In September 2007, Kenneth
Kerry was indicted for sexual offenses against his brother (R p. 6).
The defendant was tried on two charges: 07 CrS 61801 and 07 CrS 61802,
each of which included two counts of first degree sexual offense and one count of
indecent liberties with a child (T p. 3). The defense moved to dismiss the charges
at the close of State’s evidence, asserting that the State had failed to present
evidence that the alleged acts had occurred within the dates of offense alleged on
regarding 07 CrS 61802 and dismissed that charge (T p. 261). The trial court
denied the defendant’s motion regarding 07 CrS 61801 (T p. 264). The jury found
the defendant guilty of two counts of first degree sexual offense, and found the
ARGUMENTS
Introduction
The State was required to prove that the defendant engaged in sexual acts
with the alleged victim on or about 1 February 2001 through 20 November 2001,
as a required element of the two charged counts of first degree sex offense.
Defendant asserts that none of the evidence offered by the State established that
sexual acts had occurred between these dates; therefore, the State did not met the
burden of proving its case. Accordingly, the trial court erred when it denied the
Standard of Review
This Court reviews de novo whether the State presented evidence sufficient
must present substantial evidence of each essential element of the crime charged.
7
State v. Smith, 40 NC App 72, 252 S.E.2d 535 (1979). If the evidence raises no
withstand the motion to dismiss even though the suspicion aroused is strong. State
v. Evans, 279 NC 447, 183 S.E.2d 540 (1971); State v. Cutler, 271 NC 379, 156
Factual Background
Kenneth Pettigrew, the State’s chief witness, testified that the sexual acts
with the defendant occurred many times after their family moved to the
Williamsburg house in 1999 (T pp. 138-139), and he testified that there was never
a year that it didn’t happen after moving to that house (T p. 143). Kenneth could
not, under questioning, recall details of any single specific instance that occurred
after 1999 (T pp. 136-139, 141, 200). The last instance of alleged abuse happened
at some unknown date before the incident Kenneth described in the summer of
which alleged that the date of offense was “on or about 02/01/2001 through
11/20/2001” (R p. 18). Prior to trial, the defense filed a motion for a bill of
particulars (R p. 24). The State responded with a bill of particulars, stating, in part:
“The date of the alleged offenses occurred on or about February 1, 2001 through
N.C.G.S. § 15A-925(e) limits the evidence of the State to the items set out in
a bill of particulars. Our Courts have consistently ruled when a bill of particulars is
furnished by the State, the legal effect of the bill of particulars is to limit the
evidence to the transactions or items stated within the State’s response. See, State
v. Knight, 261 NC 17, 134 SE2d 101 (1964); State v. Williams, 211 NC 569, 190
Here, the State’s chief witness testified that the defendant engaged him in
sexual acts many times after their family moved to the Williamsburg house in
1999, but the State did not present evidence of any single, specific incidence
occurring after 1999. The last instance of alleged abuse happened at some
unknown date before the incident in the summer of 2001 (T pp. 139-140, 255).
Moreover, it cannot reasonably be inferred from this evidence that any act occurred
during the period of time set forth in the bill of particulars. Therefore, the State
provided no proof that sexual acts had occurred “on or about 2/1/01 through
Conclusion
While the evidence may suggest some sexual behavior on the part of the
defendant, the State failed to proffer sufficient evidence that the defendant engaged
2001, as alleged in the indictment and stated in the bill of particulars. Because the
first degree sexual offenses. Accordingly, the defendant is entitled to have his
conviction vacated.
Introduction
The indictment does not specify an exact date or a specific range of dates for
the alleged offenses. Instead, the date of offense is given as “on or about” a range
of dates which begin just days after the defendant turned 16. The indefinite
2
Contemporaneously with filing this brief, counsel for the defendant-appellant
filed a Motion to Allow Amendment of Record on Appeal to Include Additional
Assignment of Error. This Court has not yet ruled on the Motion. This Argument is
submitted contingent upon the Court granting the Motion.
10
that the charged acts were committed when he was 16. Therefore, the State failed
Standard of Review
“Jurisdiction rests upon the law and the law alone. It is never dependent upon the
conduct of the parties.” In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006).
Although the defendant’s attorney did not object to the issue of the Superior
jurisdiction is immaterial.” In re Sauls, 270 N.C. 180, 187, 154 S.E.2d 327, 333
(1967).
Factual Background
As previously noted, the State’s chief witness testified that the defendant
engaged him in sexual acts many times after 1999, but he could not recall details of
any single, specific instance that occurred after 1999 (T pp. 138-139, 141, 143,
200). The witness testified that the last instance of alleged abuse happened at some
unknown date before the confrontation in the summer of 2001 (T pp. 139-140,
255).
11
years old on 23 January 2001. The indictment alleged the date of offense as “on or
The Superior Court does not have original jurisdiction to try offenses that
7B-1601. The District Court “has exclusive, original jurisdiction over any case
jurisdiction, the age of the juvenile at the time of the alleged offense governs.”
jurisdiction to try felony cases committed by individuals who are over 16 at the
The Superior Court may try felony offenses by those younger than 16 when
those cases have been properly transferred to Superior Court, pursuant to N.C.G.S.
§ 7B-2200. To invoke the Superior Court jurisdiction for acts committed before the
perpetrator turned 16, it is necessary to first initiate the case in the District Court.
This is true even when the perpetrator is not identified until after he turns 18. Here,
the court would lack jurisdiction unless the State had proceeded under N.C.G.S. §
7B-1601(d) for any conduct that occurred before the defendant turned 16.
12
the offense charged was committed on, or on or about, a designated date, or during
a designated period of time.” Error as to a date or its omission is not ground for
jurisdiction of the court to try the offense. Because the defendant turned 16 just
nine days before 1 February 2001, a date of offense described as “on or about
period before the defendant turned 16. At trial, the evidence was that there was
sexual contact between the brothers many times after moving to the Williamsburg
house in 1999. However, when questioned, the defendant’s brother could not recall
details of any single specific instance occurring after 1999, and he testified that the
alleged abuse had ceased by the summer of 2001. The jury was instructed,
consistent with the indictment, that they could convict if the offenses were
In this case, the use of the term “about” creates doubt in the jury’s
determination that the offense was committed after the defendant turned 16. The
allegations and proof in this case encompass a period of time where the offense
A challenge to the jurisdiction may be raised for the first time on appeal. See
Wood v. Guilford Cty., 355 N.C. 161, 164, 558 S.E.2d 490, 493 (2002). In a
criminal proceeding, once jurisdiction is challenged, the State has the burden of
Here, the State cannot establish that the Superior Court had jurisdiction to
try these offenses. Given that the indictment gives only approximate dates for the
offenses, and the defendant wasn’t sixteen years old until just nine days before the
earliest approximate date set out in the indictment, it cannot be demonstrated that
these offenses occurred after the defendant turned sixteen. The indictment did not
require the State to prove that the offenses occurred between 1 February 2001 and
20 November 2001. Rather, the jury could, consistent with the indictment and the
instruction, convict the defendant by finding the he committed the acts at any time
“on or about 02/01/01 through 11/20/01” (R p. 18; emphasis added). This would
include time well before the defendant turned 16, so the State cannot establish
14
beyond a reasonable doubt that the Superior Court had jurisdiction to try these
cases
Conclusion
encompasses time before the defendant was 16, the indictment does not establish
the jurisdiction of the Superior Court. The State was required to allege specific
dates after the defendant turned 16, in order to invoke the original jurisdiction of
Introduction
The trial court gave the defendant a prison sentence 32 to 40 years for acts
committed when the defendant was, at most, 16 years old. The defendant argues
15
that the lengthy sentence is disproportionate, considering his age at the time of
offense, and the sentence violates his constitutional rights against cruel or unusual
punishment.
Standard of Review
concerns a violation of the defendant's rights under the Constitution of the United
States.
Factual Background
The defendant’s brother, Kenneth, testified that the alleged sexual acts began
when he was five years old (T p. 121). Kenneth’s birthdate is 11/21/1990; the
that the defendant was either 10 or 11 years old when the acts began. As shown in
the previous two arguments, supra, the alleged abuse is known to have concluded
some time before the confrontation in the summer of 2001. Since the State’s
evidence did not pinpoint any given sexual act in time before that date, it is
unknown exactly how old the defendant was when the alleged abuse ended.
Assuming, arguendo, that the behavior continued until the summer of 2001, the
defendant was, at most, 16 years old when the sexual acts ceased.
16
The defendant was convicted on two counts of first degree sexual offense.
The trial court sentenced the defendant to two consecutive prison terms of 192 to
North Carolina remains one of only three states that automatically prosecute
16- and 17-year-olds as adults. Janet Mason, Juvenile Law Bulletin, Number
2008/01, August 2008, UNC School of Government. Defendant contends that the
The defendant acknowledges that the North Carolina Supreme Court has
old offender does not violate the prohibition against cruel and unusual punishment.
State v. Green, 348 N.C. 588, 502 S.E. 2d. 819 (1998). However, the defendant
urges this Court to reconsider State v. Green, in light of Roper v. Simmons, 543
In Roper, the U.S. Supreme Court held that the characteristics of juvenile
their offenses before the age of 18 years old, even though the death penalty is
forth by the Supreme Court in Roper require this Court to reevaluate whether a
constitutional.
“flows from the basic precept of justice that punishment for crime should be
graduated and proportioned to the offense.” Roper v. Simmons, 543 U.S. 551, 560
imposed on the defendant for acts committed at the age of 16, can run afoul of the
Eighth Amendment. See Solem v. Helm, 463 U.S. 277, 288-290 (1983) (holding
that a “criminal sentence must be proportionate to the crime for which the
defendant has been convicted” and rejecting the argument that the proportionality
principle applied only to capital cases); Lockyer v. Andrade, 538 U.S. 63, 72
(2003) (holding that it was clearly established that the proportionality principle
applied to sentences for terms of years); Ewing v. California, 538 U.S. 11 (2003).
imprisonment. Under its well-settled precedent, this Court considers the sentence’s
sentencing laws and practices of the States and the international community. No
Michigan, 501 U.S. 957, 1004 (1991) (Kennedy J., concurring in part and
concurring in judgment); Solem, 463 U.S. at 290 n.17. These factors include: (i)
whether the particular sentence would serve a legitimate penological purpose, with
due deference for legislative judgments; (ii) a comparison of the gravity of the
offense with the harshness of the punishment imposed; and (iii) a comparison of
the sentence imposed to evolving standards of decency as reflected in the laws and
practices of the States and the international community. See, e.g., Kennedy v.
Louisiana, 128 S. Ct. 2641, 2651-2658 (2008); Roper, 543 U.S. at 561, 564-567,
575-578.
age at the time of offense. Roper3 concluded that juveniles are less culpable than
adults for their criminal conduct, primarily because of three basic differences
between juveniles and adults. First, juveniles possess less maturity and an
3
In Roper v. Simmons, a “juvenile” is an individual under the age of 18. In the
present case, while the defendant was not considered a juvenile under North
Carolina law, he was, at most, 16 years old at the time of the offense.
19
considered actions and decisions. Second, juveniles are more vulnerable and
Third, the personality and character traits of juveniles are less well-formed and
and adults have been confirmed by the undisputed scientific evidence and ratified
classifications for voting, marriage, and other adult activities. Roper and the
scientific data confirm that the irresponsible conduct of juveniles is morally less
Roper render the 32 to 40 year prison sentence imposed in this case unjustifiable.
acknowledged and scientific research has proven, the threat of adult punishment
does not deter misconduct by juveniles. Finally, the long sentence here all but
can render their sentences unconstitutional, even though such sentences would be
Juveniles thus “cannot with reliability be classified among the worst offenders.”
Roper, 543 U.S. at 569. As applied in this case, these principles demonstrate that
Conclusion
Both our U.S. Supreme Court and most state courts recognize the
North Carolina continues to try those teenagers as adults. The 32-to-40 year
sentence given to the defendant for acts committed when he was, at most, 16 years
cruel and unusual punishment. Therefore, even if the Court affirms the defendant’s
conviction, this Court must vacate the defendant’s sentence and remand the case
for resentencing.
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CONCLUSION
For the reasons argued above, this Court must vacate the defendant’s
convictions. Alternatively, this Court must vacate the defendant’s sentence and
[Electronically filed]
_________________________
Michael E. Casterline
Attorney for Appellant
68 North Market Street
Asheville, NC 28801
828/ 253-6401
mcasterline@gmail.com
This brief, submitted in 14 pt. New Times Roman type, contains fewer than
8,750 words, including any footnotes and citations in the text. This brief is therefore
within the word-count limit for briefs in proportional type, as allowed by N.C. R.
App. P. 28(j)(2).
[Electronically filed]
__________________________
Michael E. Casterline
Attorney for Defendant-Appellant
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CERTIFICATE OF SERVICE
This is to certify that the undersigned has this date filed the foregoing
Carolina Court of Appeals, and served a copy upon all parties to this cause by
under the exclusive care and custody of the United States Postal Service, properly
[Electronically filed]
_____________________________
Michael E. Casterline
Attorney at Law
68 North Market Street
Asheville, NC 28801