Opinion
No. 07-1214.
Filed April 15, 2008.
Iredell County No. 05CRS54187.
Appeal by Defendant from judgment entered 16 March 2007 by Judge Kimberly S. Taylor in Iredell County Superior Court. Heard in the Court of Appeals 20 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General Elizabeth L. Oxley, for the State. Parish Cooke, by James R. Parish, for Defendant.
Defendant, Charles Kenneth Rorer, was indicted in September 2005 for statutory rape of "Beth," in violation of N.C. Gen. Stat. § 14-27.7A(a). He was found guilty by an Iredell County jury in March 2007, and sentenced to a prison term of 240 to 297 months. Defendant has appealed from this conviction and judgment. We find no error.
To preserve the privacy of the minor, we refer to her in this opinion by the pseudonym "Beth."
The State's evidence at trial tended to show, in pertinent part, the following: Beth testified that she was born on 5 July 1991. In 2004 she was thirteen years old and lived with her parents and her older brother, Brandon. Beth's friend Nicole lived within walking distance, and Beth sometimes visited overnight at Nicole's house. Nicole was two years older than Beth and lived with her mother, Diane; her brother, Bo; and Defendant, her mother's boyfriend. Beth met Defendant in 2004, when Nicole introduced him as her mother's "new boyfriend." Beth testified that Defendant was "30 something" years old.
During the summer of 2004, Beth went on two outings that included the Defendant. The first was a one-day fishing trip in July 2004. Beth's mother drove her, Bo, and two cousins to a lake; Defendant drove Nicole and Brandon in his truck. A few weeks later, in August 2004, Defendant and Diane took Nicole, Brandon, Beth, and Bo on a three day camping trip. When she first met Defendant, Beth thought he was "nice" and "cute," and she confided in him about family problems. However, during the August 2004 camping trip, Defendant made Beth uncomfortable by touching her lower back and commenting on her appearance in a swim suit.
The incident giving rise to the charge against Defendant occurred in November 2004. Late one afternoon during the school's Thanksgiving break, Beth was at Nicole's house. Beth, Bo, Nicole, Brandon, and other children, were playing hide and seek in Nicole's back yard. Shortly before dusk, Defendant joined the game, wearing clothing with a camouflage pattern. While Beth was hiding in an area of "weeds and bushes," Defendant grabbed her and forced her to the ground. Beth testified that Defendant "grabbed [her] by [her] arm" then "jerked [her] back, and he shoved [her] to the ground." Defendant then engaged in forcible intercourse with Beth, who was unable to get away from him. Afterwards he warned Beth not to tell anyone or "something would happen."
Beth testified that after Defendant raped her she never went back to Nicole's house, and that she "withdrew from everybody" and "stayed in [her] room." Several weeks after she was raped, Beth found two letters and a photograph inside the bookbag she took with her on overnight visits at Nicole's house. The photograph was of Defendant and the letters were handwritten. One letter stated the following:
Hey Sweet Peach
This is [the] second letter I've been able to write[.] Haven't got to see you for four days now and I'm going crazy[.] Next time I tell you I'm working or hanging outside even if Nicole is not here just walk up anyway[.] Pretend that you just came over to see if Nicole or the other girls might have been in the circle[.] When I see you we can go behind the shop or up to my camper and hang out and talk so sometimes just walk up here even if have all read called (sic) I miss you very much have you on my mind 24/7 I need a hug and kiss from you[.] You also need to not say anything else about [us] to Nick[.] She's been acting fun[ny] now like she's not sure to invite you over or not since we got back from fishing[.] Me and her actually got in an argument cause I wanted you to come over and she wants to invite someone else over and I wouldn't let her. So just walk on down if when you get here no one sees you[,] we can take off for just a little while[.] If someone does then just hang out like you normally do. Well missing you so bad. I don't want to get you pregnant cause if I did your parents would put me in prison and I don't want to go there so we will be careful. But if I could move in a apartment and you were 18 I would snatch you up and take you with me. And if we could get married and have children I would want you. I love you very much not just love you. But In love with you, so next time you want to go for a jog or walk. walk down to our circle and driveway and look to see if I'm outside or home. Please keep trying and don't bust my bubble cause I'm really in love with you. And our age doesn't bother me if all good with you. Just come see me we[']ll set a spot somewhere that we can exchange letters on days we can see each other. To My Sweet Peach I you 4Ever and always. I'll be working on my truck for the next few days so I'm either under it or in garage so look for me I'm waiting for you. Any and every day[.] I'm thinking of you 24 hrs a day can not get . you off my mind so you have to be ready for long haul[.] In other words your mind forever.
(emphasis added).
A second letter stated:
Hey shouldn't of said anything to her cause now she doesn't want you to spend the night and she'll tell Diane. I had it fixed for you to come over but Nic [F_ked] it up. Well I miss you. Hope to see you soon whenever you can sneak down let me know or just come down to play Do Not tell her anything else. Nothing at all[.] Keep just you and me please. Love you . I think about you every minit (sic). Wishing you were here. Somehow I need to see you and we need to talk. Wish you was old enough to leave[.] We'd get a place of our own[.] Sorry so short
(emphasis added).
Beth testified that Defendant's nickname for her was "Sweet Peach" and that he called Nicole "Nic." She also testified that Defendant sometimes worked on his truck in the garage at Nicole's house. After discovering the letters, Beth folded them up and put them back in her bookbag. In March 2005 her mother found the letters in the bookbag, and Beth told both her parents that Defendant had raped her.
Testimony offered by Beth's parents tended to corroborate parts of Beth's testimony. Beth's mother testified that Beth was born on 5 July 1991; that Nicole had described the Defendant as her mother's "new boyfriend"; that Defendant had been present on the fishing and camping trips in the summer of 2004; and that after November 2004, Beth had become very withdrawn and no longer visited Nicole. Beth's mother testified further that in March 2005 she found the letters in Beth's backpack, and Beth told her parents that Defendant had raped her. She subsequently took Beth to the police and to a children's center called the "Dove House." Beth's mother also testified to her daughter's description of the rape itself, which generally corroborated Beth's testimony in court. Beth's father testified that Beth had been friends with Nicole until November 2004, when she became "more and more withdrawn." After her mother found the letters in March 2005, Beth told her father that Defendant had raped her. His testimony about the rape generally corroborated Beth's testimony that Defendant had forced her to the ground during a game of hide and seek at Nicole's house, and then forced her to engage in intercourse with him.
Beth's brother, Brandon, testified that in November 2004, during the Thanksgiving school vacation, he and Beth played hide and seek at Nicole's house, with Nicole, Nicole's brother, and several other children. As it was getting dark, Defendant joined them, dressed in camouflage clothing. A little while later, he was unable to find Beth or the Defendant and "couldn't figure out why." When Beth rejoined the others, she insisted on returning home immediately.
The State also presented testimony from Dr. Shelly Rinker, M.D., who was qualified by the trial court as an expert in pediatrics and sexual assault examinations of children. Dr. Rinker testified that she conducted medical examinations at the Dove House, a "child advocacy center." On 13 April 2005 she conducted a complete physical examination of Beth. Dr. Rinker examined Beth's genital area for "scars or tears or bruises" and for "any abrasions, tears, active bleeding." She testified that such indices of genital trauma are more likely if "the event was within 24, 48 hours" and that four months after a single incidence of forcible rape any bruises or hymenal tearing would likely have healed. In Beth's case, Dr. Rinker testified that her "findings were normal[.]"
The Defendant's trial evidence tended to show, in pertinent part, the following: Detective Sergeant Cheryl Hilderbrand of the Iredell County Sheriff's Department testified that in April 2005 she interviewed Beth's mother, who provided an overview of Beth's account of being raped. Det. Hilderbrand explained to Beth and her mother that in Iredell County young victims of sexual assault are not interviewed by law enforcement officers. Instead, a videotaped interview of the child is conducted at the Dove House by a forensic interviewer. Det. Hilderbrand did not interview the other children who had been playing hide and seek with Beth, and did not conduct a physical examination of the yard where the rape was alleged to have occurred.
Defense witness Colleen Medwid testified that she was a forensic interviewer employed by the Dove House child advocacy center. In April 2005 she conducted a videotaped interview of Beth. Ms. Medwid identified a copy of the videotape, which Defendant introduced into evidence. The tape was played in its entirety for the jury. During the taped interview, Beth told Ms. Medwid that the Defendant was thirty-seven years old.
Other evidence will be discussed as necessary to the resolution of the issues presented on appeal. Following the presentation of evidence, the jury returned a verdict of guilty. Defendant was sentenced to a prison term of 240 to 297 months. Defendant appeals from this conviction and judgment.
Defendant first argues that the trial court erred by failing to dismiss the charge of rape against Defendant, on the grounds that there was insufficient evidence of Defendant's age. We conclude that Defendant failed to preserve this issue for appellate review.
At the close of the State's evidence, Defendant moved to dismiss the charge against him, on the grounds that there was insufficient evidence of vaginal intercourse between Defendant and Beth. However, Defendant did not move to dismiss the charge against him at the close of all the evidence. The North Carolina Supreme Court has held:
Defendant did not renew his motion to dismiss at the close of all the evidence. Thus, under [N.C. R. App. P. Rule] 10(b)(3), . . . the issue of insufficiency was not preserved for appellate review. N.C.G.S. § 15A-1446(d)(5) provides that questions of insufficiency of the evidence may be the subject of appellate review even when no objection or motion has been made at trial. However, Rule 10(b)(3) provides that a defendant who fails to make a motion to dismiss at the close of all the evidence may not attack on appeal the sufficiency of the evidence at trial. We have specifically held in this regard that: "To the extent that N.C.G.S. § 15A-1446(d)(5) is inconsistent with N.C. R. App. P. 10(b)(3), the statute must fail." This assignment of error is overruled.
State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995) (quoting State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987)). This assignment of error is overruled.
Defendant next argues that he received ineffective assistance of counsel at trial. As discussed above, by failing to move for dismissal at the close of all the evidence, Defendant waived appellate review of the issue of the sufficiency of the evidence against him. On appeal, he argues that his trial counsel's failure to properly preserve this issue deprived him of his right to the effective assistance of counsel. We disagree.
The standard of review for claims of ineffective assistance of counsel is well established:
A defendant's right to counsel includes the right to the effective assistance of counsel. When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness. In order to meet this burden defendant must satisfy a two part test. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 247-48 (1985) (citing McMann v. Richardson, 397 U.S. 759, 771, 25 L. Ed. 2d 763, 773 (1970); and Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 693 (1984)).
"Both prongs of this test must be satisfied in order to establish ineffective assistance of counsel. To demonstrate prejudice, a `defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. al-Bayyinah, 359 N.C. 741, 751, 616 S.E.2d 500, 506 (2005) (quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698)).
In the instant case, we conclude that even assuming, arguendo, that defense counsel's failure to move for dismissal at the close of all the evidence was a mistake "so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment," Braswell, 312 N.C. at 562, 324 S.E.2d at 248, there is no "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698 (internal quotation marks omitted). Thus, even if Defendant could meet the first prong of the test for ineffective assistance of counsel, he cannot meet the second prong.
Defendant argues on appeal that his trial counsel was remiss in not moving to dismiss the charge against him at the close of all the evidence. "In evaluating the sufficiency of the evidence, we must determine if there was substantial evidence of each essential element of the crime charged." State v. Elliott, 360 N.C. 400, 412, 628 S.E.2d 735, 743-44 (2006) (citing State v. Smith, 307 N.C. 516, 518, 299 S.E.2d 431, 434 (1983)). "`Substantial evidence' is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion." State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citations omitted).
"In ruling on a motion to dismiss, the trial court is required to view the evidence in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State. Moreover, `circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.'" State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002) (quoting State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988)). "Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. Where, as here, a motion to dismiss calls into question the sufficiency of the evidence, the issue for the trial court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances." State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995) (citing State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).
In the instant case, Defendant was charged with statutory rape, in violation of N.C. Gen. Stat. § 14-27.7A(a) (2007), which provides in relevant part that:
A defendant is guilty of a Class B1 felony if the defendant engages in vaginal intercourse or a sexual act with another person who is 13, 14, or 15 years old and the defendant is at least six years older than the person[.]
It is undisputed that Beth was thirteen (13) years old at the time Defendant was alleged to have raped her. Therefore, the State was required to produce evidence that Defendant was six years older than Beth, or at least nineteen (19) years old. Defendant's sole argument regarding the sufficiency of the evidence is that the State failed to do so. We disagree.
Evidence of Defendant's age included his appearance as viewed by the jury during trial. "It is well established that a jury may `base its determination of a defendant's age on its own observation of him even when the defendant does not testify.'" State v. Banks, 322 N.C. 753, 761, 370 S.E.2d 398, 404 (1988) (quoting State v. Gray, 292 N.C. 270, 286, 233 S.E.2d 905, 915 (1977)). In addition, Beth testified that the Defendant was "thirty-something", and told Ms. Medwid that he was thirty-seven years old:
Since the age of a defendant is a fact peculiarly within his own knowledge, the [S]tate must be left some latitude within which to carry its burden of proof on this issue. We therefore adopt the rule that lay witnesses with an adequate opportunity to observe and who have in fact observed may state their opinion regarding the age of a defendant in a criminal case when the fact that he was at the time in question over a certain age is one of the essential elements to be proved by the [S]tate.
Gray, 292 N.C. at 286-87, 233 S.E.2d at 916.
However, "our evidentiary rule does not allow a jury to determine the age of a criminal defendant beyond a reasonable doubt merely by observing him in the courtroom without having the benefit of other evidence, whether circumstantial or direct." In re Jones, 135 N.C. App. 400, 405, 520 S.E.2d 787, 789 (1999). In the instant case, in addition to Beth's testimony and the jury's own observation of Defendant, circumstantial evidence of Defendant's age included, inter alia, the following: The Defendant was the boyfriend of the mother of Beth's friend Nicole, and sometimes had a supervisory or quasi-parental role in regards to Nicole, her brother, and other children. For example, Defendant drove Nicole and her brother to the lake for the fishing trip. Also, shortly before the alleged rape, the Defendant warned the children to play more quietly so that Nicole's mother could sleep.
Moreover, the evidence strongly suggested that Defendant wrote the letters Beth found in her backpack: the letters were found in the backpack Beth took with her on overnight trips to Nicole's house; they were addressed to "Sweet Peach" which was Defendant's nickname for Beth; they referred to the author working on his truck, which Defendant sometimes did; they mentioned other members of Nicole's household; and the letters included a photograph of Defendant. There was ample evidence from which the jury could conclude that Defendant had written these letters to Beth. In his letters, Defendant repeatedly indicates that he wants a sexual or romantic relationship with Beth, and specifically refers to the age difference between Defendant and Beth, including Defendant's fear that he would be sent to prison if he impregnated Beth; his statement that the age difference didn't bother him if it was "all good" with Beth; and his frustration that Beth wasn't "old enough to leave."
"It is important to note that the exact age of the defendant is not in issue, nor need the [S]tate prove it. It must prove only that he was at the time of the offense charged over [nineteen]." Gray, 292 N.C. at 287, 233 S.E.2d at 916. We conclude that the evidence was more than sufficient to allow the jury to find that the Defendant was at least nineteen (19) years old. Accordingly, the charge against Defendant was not subject to dismissal on this basis, and Defendant would not have prevailed on a motion to dismiss at the close of all the evidence. Therefore, Defendant cannot show that, had his trial counsel moved for dismissal, it would have had an effect on the outcome of the trial. This assignment of error is overruled.
Defendant also argues that the trial court committed plain error by allowing Dr. Rinker to testify that sexual abuse often left no physical findings or medical abnormalities. We disagree. As discussed above, Dr. Rinker testified that on direct examination that she examined Beth's genital area and that the "findings were normal." She explained that it was often hard to detect "old injuries" in the hymen of a female who has entered puberty. Accordingly, Dr. Rinker characterized normal findings as "inconclusive" with regards to sexual abuse:
The lack of medical evidence is something that we see all too often in sexual abuse. The problem is that most of the cases you're not seeing them freshly after being abused; and if you could, you'd find so much more findings[.]
. . . .
And the problem with sexual abuse cases . . . [is] with that type of tissue, with the healing process, a lot of times there are no findings. So we say [the results are] inconclusive because even if you have a normal exam, it doesn't rule out abuse. You can't say yes or no. You can just say it's inconclusive. You have to rely more on the history and other facts of the case.
But as far as my job as the medical physician, if there is a finding or a discharge that's sexually transmitted, you know, I can conclusively say here's some medical evidence. If there are normal findings, I cannot say, well that means that this didn't happen. As a medical doctor, I can just say this is inconclusive based on the exam because we have normal findings. But unfortunately, in a lot of sexual abuse cases, there are normal findings.
On cross-examination, Defendant elicited testimony from Dr. Rinker that injury to the hymen of a 13 year old girl caused by an instance of forcible rape would likely be healed four months after the assault. Dr. Rinker acknowledged on cross-examination that the absence of medical findings would be consistent either with healed injuries or with the patient's not having been raped:
DEFENSE COUNSEL: . . . [C]an you tell me what your literature says about someone who is a 13-year-old who is alleged to have been forcibly raped four months later?
DR. RINKER: Four months would give enough time for any bruises to be gone. And a one-time incident, tear on the hymen could heal within — actually a month's time, so four months later it would be gone.
DEFENSE COUNSEL: And when you say it "could be" means that — not necessarily?
DR. RINKER: Depends on actually a lot of factors. It depends on how estrogenized the hymen was at that time. And it depends on what she was forcibly raped with.
DEFENSE COUNSEL: Or whether she was raped at all?
DR. RINKER: It depends on that as well.
DEFENSE COUNSEL: So it's possible, Ma'am, isn't it, in fact, slightly that if [Beth] was not forcibly raped or even raped at all, there would be no physical findings?
DR. RINKER: That is correct.
On appeal, Defendant concedes that Dr. Rinker did not testify that Beth had in fact been sexually assaulted. However, Defendant argues that the import of Dr. Rinker's testimony was to "imply to the jury [that] the girl she had examined had been sexually abused despite a completely normal genital examination" and that Dr. Rinker's testimony constituted "an improper bolstering of the credibility of the victim-witness."
Because Defendant failed to object to Dr. Rinker's testimony, we review only for plain error. The plain error "rule must be applied cautiously, however, and only in exceptional cases where, `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.' Thus, the appellate court must study the whole record to determine if the error had such an impact on the guilt determination, therefore constituting plain error." State v. Davis, 349 N.C. 1, 29, 506 S.E.2d 455, 470 (1998) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)) (internal quotation omitted).
We conclude that Dr. Rinker's testimony was neither error nor plain error. Defendant's contentions notwithstanding, Dr. Rinker made it clear in her testimony that the absence of medical findings neither proved nor disproved whether an assault had occurred. She was careful to articulate for the jury that her role was only that of a medical physician, and that she could state only that the medical findings were "inconclusive" as to sexual assault. "A review of the evidence in the present case reveals that this is not the exceptional case where such a pervasive defect or plain error occurred which would have tainted all results and denied defendant a right to a fair trial. Accordingly, this assignment of error is without merit." Davis, 349 N.C. at 29, 506 S.E.2d at 470. This assignment of error is overruled.
Finally, Defendant argues that when he introduced a videotape into evidence and asked that it be played for the jury, the trial court erred by allowing the entire tape to be shown, including apart of the tape including reference to Defendant smoking marijuana. We disagree.
As discussed above, a forensic investigator at the Dove House conducted a videotaped interview of Beth. At trial, the Defendant introduced the videotape into evidence, and asked to play it for the jury with one part redacted. Defendant states on appeal that in this portion of the tape "[Beth] mentioned the Defendant smoked a plant that he grew in his back yard; implying the Defendant cultivated and smoked marijuana." Defendant's motion to redact this part of the video was denied. The trial court ruled that if the Defendant played part of the tape for the jury, it would allow the State to introduce the entire video.
On appeal, Defendant argues that the challenged part of the videotape was irrelevant, prejudicial, and was inadmissible under N.C. Gen. Stat. § 8C-1, Rule 404 (2007). Rule 404 governs admission of character evidence and evidence of "other crimes, wrongs, or acts" committed by a person.
"We review a trial court's rulings . . . on the admission of evidence for an abuse of discretion. This Court will find an abuse of discretion only where a trial court's ruling `is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" State v. Valdez-Hernendez, ___ N.C. App. ___, ___, 646 S.E.2d 579, 582 (2007) (quoting State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005)) (citations omitted)). We conclude, based upon our review of the videotape, even assuming, arguendo, that the trial court erred by admitting the part of the videotape wherein Beth mentioned that Defendant smoked something he grew in the yard, the Defendant was not prejudiced by the admission of this evidence. Under N.C. Gen. Stat. § 15A-1443(a) (2007), prejudice exists where "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant." In the instant case, there was very strong evidence against the Defendant, including Beth's testimony, the corroborative testimony of her parents and brother, and the letters found in Beth's backpack. This assignment of error is overruled. For the reasons discussed above, we conclude that Defendant had a fair trial, free of reversible error.
No error.
Judges McCULLOUGH and STEELMAN concur.
Report per Rule 30(e).