Opinion
No. COA09-1259.
Filed March 16, 2010.
Beaufort County No. 07CRS52684.
Appeal by defendant from judgments entered 19 March 2009 by Judge Quentin T. Sumner in Beaufort County Superior Court. Heard in the Court of Appeals 24 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State. William D. Spence, for defendant-appellant.
Brandon Lee Allen ("defendant") appeals judgments entered upon jury verdicts finding him guilty of first degree sex offense and taking indecent liberties with a child. We find no error.
I. Background
"Tonya" is the victim in this case. Tonya's mother lived together with defendant, her boyfriend, first in the Copperfield Apartments in New Bern, North Carolina, and then in a residence in Blounts Creek, North Carolina. Tonya and her sister lived with their father and stepmother, but would visit her mother often. During these visits, defendant and Tonya developed an inappropriate physical relationship.
To protect the victim's privacy and for ease of reading, the minor victim is referred to in this opinion by the pseudonym Tonya. We are dismayed that the appendix to defendant's brief contains portions of the transcript which reveal Tonya's full legal name. While this is not a violation of the Rules of Appellate Procedure which govern this case, we remind defendant's counsel that this appendix would violate the new N.C.R. App. P. 4(e) (2009), and strongly encourage defendant's counsel to more vigilantly protect the privacy of minor child victims.
On 8 August 2007, Tonya's mother discovered defendant and Tonya in a compromising position. Defendant was standing directly beyond Tonya and Tonya's pajama pants were pulled down. Tonya's mother ordered defendant to leave and took Tonya to a bathroom in order to inspect her for evidence of sexual activity.
Tonya's mother then drove Tonya to her father's house in New Bern. Tonya and her parents went to see a magistrate and then went to the hospital. At the hospital, Sexual Assault Nurse Examiner Cynthia Morton ("Nurse Morton") performed a sexual offense kit and examined Tonya's genital area. During her examination, Nurse Morton observed signs of recent blunt force penetrating trauma to Tonya's genital area.
On 9 August 2007, defendant voluntarily met with Deputy Dwight Williams ("Deputy Williams") of the Beaufort County Sheriff's Department and Detective Laura Penninger ("Det. Penninger") of the New Bern Police Department. Deputy Williams informed defendant that he was not under arrest and that he could leave at any time. Defendant initially denied engaging in any inappropriate behavior with Tonya. However, after he was informed that a sexual offense kit had been performed on Tonya, defendant provided a written statement in which he admitted engaging in a sexual relationship with Tonya. Defendant also stated that during his encounter with Tonya on 8 August 2007, he put his finger "inside her." Defendant was not arrested after providing this statement. However, Deputy Williams did collect a DNA sample from defendant. Subsequent laboratory tests failed to match defendant's DNA to any samples obtained from Tonya's sexual offense kit.
On 13 August 2007, defendant was interviewed by Det. Penninger. On this occasion, Det. Penninger advised defendant of his Miranda rights, which defendant subsequently waived. Defendant told Det. Penninger about the history of his relationship with Tonya, and admitted that he had engaged in sexual intercourse with Tonya on multiple occasions. This interview was not recorded, but Det. Penninger later reduced it to writing from memory. During the interview, defendant never specifically spoke about the events of 8 August.
Defendant was subsequently arrested and indicted for two counts of first degree rape of a child, one count of indecent liberties with a child, and one count of first degree sex offense with a child. Defendant was tried in Beaufort County Superior Court, beginning on 17 March 2009. At the close of the State's evidence, defendant made a motion to dismiss all charges, which was denied by the trial court. Defendant did not present any evidence.
On 19 March 2009, the jury returned verdicts of guilty to first degree sex offense and indecent liberties. Defendant was found not guilty of the two counts of first degree rape. After the verdicts were announced, defendant made a motion to arrest judgment. This motion was denied by the trial court. For the conviction for first degree sex offense, defendant was sentenced to a minimum of 240 months to a maximum of 297 months. For the conviction for indecent liberties, defendant was sentenced to a minimum of 16 months to a maximum of 20 months. These sentences were to be served consecutively in the North Carolina Department of Correction. Defendant appeals.
II. Leading Questions
Defendant argues that the trial court erred in allowing the State to excessively lead Tonya during direct examination. We disagree.
Leading questions should be permitted on direct examination when necessary to develop the witness's testimony. Among other things, this means that it is within the discretionary power of the trial judge to allow leading questions on direct examination. . . . Rulings by the trial judge on the use of leading questions are discretionary and reversible only for an abuse of discretion.
State v. Riddick, 315 N.C. 749, 755-56, 340 S.E.2d 55, 59 (1986) (internal citations omitted). "A trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision." Id. at 756, 340 S.E.2d at 59.
"It is settled law in this State that leading questions are necessary and permitted on direct examination when a witness has difficulty understanding the question because of immaturity, age, infirmity or ignorance or when the inquiry is into a subject of delicate nature such as sexual matters." State v. Hannah, 316 N.C. 362, 365, 341 S.E.2d 514, 515 (1986) (internal quotations and citations omitted). In the instant case, Tonya was twelve years old at the time of the trial. In addition, she was testifying specifically about delicate sexual matters that occurred when she was eleven years old. We discern no abuse of discretion by the trial court in permitting leading questions in these circumstances. This assignment of error is overruled.
III. Defendant's Written Statement
Defendant argues that the trial court erred by allowing into evidence his written statement to Deputy Williams from 9 August 2007. We disagree.
Initially, we note that defendant did not object to the introduction of this statement at trial; therefore, we review this assignment of error for plain error.
A reversal for plain error is only appropriate in the most exceptional cases. Plain error analysis should be applied cautiously and only when after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done. An appellate court must be convinced that absent the error the jury probably would have reached a different verdict.
State v. Smith, 362 N.C. 583, 596, 669 S.E.2d 299, 308 (2008) (internal quotations and citations omitted).
Defendant contends that his written statement was the result of a custodial interrogation, and because defendant was not given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the statement should be excluded.
Miranda applies only in the situation where a defendant is subject to custodial interrogation. The proper inquiry for determining whether a person is "in custody" for purposes of Miranda is based on the totality of the circumstances, whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. In this case, we must examine whether a reasonable person in defendant's position, under the totality of the circumstances, would have believed that he was under arrest or was restrained in his movement to the degree associated with a formal arrest.
State v. Barden, 356 N.C. 316, 337, 572 S.E.2d 108, 123 (2002) (internal quotations and citations omitted).
As defendant concedes, when defendant's interview with Deputy Williams began, defendant, who had voluntarily come to the police station, was told that he was not under arrest and could leave at any time. After defendant gave his statement, he was allowed to leave the police station without incident. Based upon the totality of the circumstances, defendant could not have believed that he was under arrest or restrained in his movement to the degree associated with a formal arrest. Therefore, defendant was not "in custody"
for purposes of Miranda and no Miranda warnings were required. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977) (per curiam) (holding that a defendant was not in custody when his freedom to leave the police station to which he had come voluntarily was not restricted in any way and, after providing a statement, the defendant left the police station without hindrance); see also State v. Martin, 294 N.C. 702, 707, 242 S.E.2d 762, 765 (1978) (holding that a defendant was not in custody when he voluntarily went to the police station and made a statement while he was not under arrest and his freedom was not restricted, and police officers returned him to his home afterwards). The fact that Deputy Williams mentioned Tonya's rape kit does not alter this conclusion. An officer's presentation of evidence to a suspect "has nothing to do with whether [defendant] was in custody for purposes of the Miranda rule." Mathiason, 429 U.S. at 495, 97 S. Ct. at 714, 50 L.Ed. 2d at 721. This assignment of error is overruled.
IV. Motion to Dismiss
Defendant argues that the trial court erred in denying his motion to dismiss all charges against him. We disagree.
We review a trial court's denial of a motion to dismiss criminal charges de novo, to determine 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. Substantial evidence is evidence that a reasonable mind might find adequate to support a conclusion. The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. . . .[C]ontradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve[.]
State v. Fraley, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (2010) (internal quotations and citations omitted).
A. First degree sex offense
A defendant is guilty of first-degree sexual offense if the State proves, beyond a reasonable doubt, that (1) the defendant engaged in a sexual act with a victim who is under the age of thirteen, and (2) the defendant is at least twelve years old and at least four years older than the victim. A sexual act, as defined by statute, means 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. . . .
Smith, 362 N.C. at 592-93, 669 S.E.2d at 306 (internal quotations and citations omitted).
Defendant contends that his motion to dismiss the charge of first degree sex offense should have been granted for two reasons. First, defendant argues that under the corpus delicti rule, there was not substantial, independent evidence sufficient to sustain his conviction. Second, defendant argues that there was insufficient evidence to establish every element of the offense.
1. Corpus Delicti
"Under the corpus delicti rule, the State may not rely solely on the extrajudicial confession of a defendant, but must produce substantial independent corroborative evidence that supports the facts underlying the confession." Id. at 588, 669 S.E.2d at 303.
"The rule does not require that the evidence aliunde the confession prove any element of the crime. The corpus delicti rule only requires evidence aliunde the confession which, when considered with the confession, supports the confession and permits a reasonable inference that the crime occurred." State v. Trexler, 316 N.C. 528, 532, 342 S.E.2d 878, 880 (1986) (citation omitted).
Defendant contends that under the Supreme Court's holding in Smith, defendant's written statement is not admissible under the corpus delicti rule. In Smith, the defendant's extrajudicial confession that the victim had performed fellatio on him was determined to be inadmissible under the corpus delicti rule because the victim denied the act had ever taken place, the defendant's description of the act was vague, and the State provided "no independent proof, such as physical evidence or witness testimony." 362 N.C. at 594-96, 669 S.E.2d at 307-08. The facts of the instant case differ significantly from the facts in Smith.
In the instant case, Tonya testified that, on the evening in question, defendant was standing behind her and he pulled down her pajamas. Tonya further testified that she felt something in her "private area," which is what Tonya called the area between her legs. At that point, Tonya's mother walked in and witnessed Tonya and defendant, alone, in a compromising position. Tonya was subsequently examined by Nurse Morton, who determined that Tonya's vaginal area had suffered recent blunt force penetrating trauma. This testimony and physical evidence provided sufficient evidence aliunde to support defendant's written statement. Therefore, the trial court properly allowed defendant's written statement into evidence. This assignment of error is overruled.
2. Sufficiency of evidence
Defendant argues that the State failed to provide substantial evidence that defendant penetrated Tonya's vaginal area with his finger. Defendant's written statement indicated that he reached inside Tonya's pants and put his finger "inside her." Defendant contends that the phrase "inside her" is a vague phrase and could reference either Tonya's vaginal or anal opening.
Tonya's testimony, considered in the light most favorable to the State, indicated that on the night in question, defendant got behind her and pulled down her pajamas. Tonya then felt something in her "private area," which she explained referred to the area between her legs. Additionally, Nurse Morton testified that her examination of Tonya revealed that she had suffered a recent abrasion on her vaginal area as the result of blunt force penetrating trauma. Nurse Morton found no evidence of any trauma to Tonya's anus. This evidence, coupled with defendant's written statement, was sufficient to submit the charge of first degree sex offense to the jury. This assignment of error is overruled.
B. Indecent Liberties
A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:
(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
N.C. Gen. Stat. § 14-202.1(a) (2009). "[T]he crime of indecent liberties is a single offense which may be proved by evidence of the commission of any one of a number of acts." Smith, 362 N.C. at 597, 669 S.E.2d at 309.
Defendant does not contend that no evidence of an indecent liberty was presented. Rather, defendant argues that, because Tonya's testimony was at times contradictory about whether defendant touched her on 8 August 2007, the evidence of indecent liberties was too vague and speculative to allow the charge to go to the jury. "However, [w]hen ruling on a motion to dismiss for insufficient evidence. . . . [a]ny contradictions or conflicts in the evidence are resolved in favor of the State and evidence unfavorable to the State is not considered." State v. Williams, 363 N.C. 689, 706, 686 S.E.2d 493, 505 (2009) (internal quotations and citations omitted). Tonya testified that defendant removed her pajamas and put something between her legs. Defendant's statement indicated that he removed Tonya's pajamas and put his finger inside of her. This evidence was sufficient to allow the jury to consider the indecent liberties charge. This assignment of error is overruled.
V. Entry of Judgment
Defendant argues that the trial court erred in denying defendant's motion to arrest judgment. Defendant contends that the first degree sex offense and indecent liberties charges arose out of the same act or transaction, and therefore judgment could not be entered on both convictions. We disagree.
A motion in arrest of judgment is proper when it is apparent that no judgment against the defendant could be lawfully entered because of some fatal error appearing in (1) the organization of the court, (2) the charge made against the defendant (the information, warrant or indictment), (3) the arraignment and plea, (4) the verdict, and (5) the judgment.
State v. Perry, 291 N.C. 586, 589, 231 S.E.2d 262, 265 (1977) (citations omitted). "Judgment may be arrested when and only when some fatal error or defect appears on the face of the record proper." State v. McNeil, 280 N.C. 159, 162, 185 S.E.2d 156, 158 (1971).
Defendant argues that, pursuant to State v. Laney, 178 N.C. App. 337, 631 S.E.2d 522 (2006), he cannot be convicted of both first degree sexual offense and taking indecent liberties with a child in the instant case because both offenses are based on a single transaction. In Laney, this Court held that two incidents of sexual touching that occurred as part of a single transaction could not support two separate convictions for indecent liberties. Id. at 340-41, 631 S.E.2d at 524-25.
The holding of Laney only applies when a single transaction is used to support two separate convictions for indecent liberties; it does not control the instant case. Rather, this case is controlled by State v. Swann, where our Supreme Court held that the same act may support convictions for both first degree sexual offense and indecent liberties. 322 N.C. 666, 677-78, 370 S.E.2d 533, 539-40 (1988). The fact that the two convictions in the instant case are based upon a single transaction did not bar the trial court from entering judgment on both convictions. This assignment of error is overruled.
VI. Conclusion
Defendant has failed to bring forth any argument regarding his remaining assignments of error. As such, we deem these assignments of error abandoned pursuant to N.C.R. App. P. 28(b)(6) (2008). Defendant received a fair trial, free from error.
No error.
Judges HUNTER, Robert C. and HUNTER, Jr., Robert N. concur.
Report per Rule 30(e).