In Re DW

615 S.E.2d 90, 171 N.C. App. 496, 2005 N.C. App. LEXIS 1358
CourtCourt of Appeals of North Carolina
DecidedJuly 19, 2005
DocketCOA04-1211
StatusPublished

This text of 615 S.E.2d 90 (In Re DW) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re DW, 615 S.E.2d 90, 171 N.C. App. 496, 2005 N.C. App. LEXIS 1358 (N.C. Ct. App. 2005).

Opinion

615 S.E.2d 90 (2005)

In the Matter of D.W.

No. COA04-1211.

Court of Appeals of North Carolina.

July 19, 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Gail E. Dawson, for the State.

Anthony M. Brannon, Raleigh, for defendant-appellant.

*91 MARTIN, Chief Judge.

Defendant juvenile, D.W., was adjudicated responsible for first-degree attempted rape and indecent liberties between children. A sentence of nine months probation was imposed. For the reasons that follow, we find no error in the trial court's ruling.

The State presented evidence at trial tending to show the following: In June 2004, eight-year-old A.M. lived with her mother, step-father, fourteen-year-old step-brother (D.W.), three-year-old brother, and six-week-old brother. A.M. testified that on 23 June 2004 she was in the living room sitting on the couch with her baby brother. At the time, her mother was in her bedroom with the three-year-old. D.W. was in his room, then came out, went into the kitchen, and went to the mailbox. When D.W. came back into the house he took the baby from A.M. and put the baby in his crib. D.W. then told A.M. to "come here" and pulled her into his room. A.M. testified that D.W. pulled down her pants and touched her "private" with his "private." A.M.'s mother entered D.W.'s room and saw D.W. run into the closet. At that time his pants were down around his legs. A.M. was shown a drawing of a boy without clothing and a girl without clothing and was able to identify their body parts. A.M. indicated on the drawings that D.W. touched her vagina with his penis.

The testimony of A.M.'s mother and Officer Adrian Hucks of the Charlotte-Mecklenburg Police Department indicated that A.M. told each of them the same sequence of facts. A.M.'s mother testified that when she entered the room, she saw A.M. in D.W.'s bed with the covers up to her neck. She removed the covers from A.M. and found that *92 the child was not wearing any bottoms. She waited for D.W.'s father to return home from work, then she and D.W.'s father talked to D.W. about the incident. D.W. maintained that he did not do anything. A.M.'s mother called the police, and Officer Hucks arrived and took a statement from A.M. Later, A.M. complained that she felt a burning sensation when she urinated, so her mother took her to the hospital.

At the close of the State's evidence, defendant juvenile moved to dismiss the charges based on the insufficiency of the evidence and a failure to show the ages of A.M. and D.W. A review of the evidence showed that evidence of A.M.'s age had been presented, but there had been no evidence of D.W.'s age. The State was permitted, over defendant juvenile's objection, to reopen the evidence and present evidence that D.W. was fourteen years of age at the time of the incident.

Defendant juvenile presented testimony on his own behalf. His testimony during direct examination was not recorded and is therefore not included in the transcript. However, his testimony on cross-examination is in the transcript before us. D.W. testified on cross-examination that on the morning of 23 June 2004 he watched a movie. After the movie he went to the bathroom. A.M. was in his room when he returned. D.W. testified that he was on the floor when his step-mother came into the room. When he heard her coming, D.W. ran into the closet. He testified that he was not pulling his pants up while he ran to the closet. D.W. did not leave the closet until A.M. and his step-mother left the room.

The trial court adjudicated defendant juvenile responsible for attempted first-degree rape and indecent liberties between minors. The trial court imposed a sentence of nine months probation. Defendant juvenile appeals.

The record on appeal contains six separate assignments of error. Defendant brings forward three of the assignments of error in two separate arguments. The remaining assignments of error are deemed abandoned. N.C. R.App. P. 28(a) (2004). Defendant asserts that (1) he is entitled to a new trial because although he testified at trial, the trial court inadvertently failed to record his testimony, and (2) the trial court erred in denying his motion to dismiss at the end of all of the evidence when the evidence was insufficient to support an adjudication that defendant committed attempted first-degree statutory rape and indecent liberties between children. We will first address the trial court's denial of defendant's motion to dismiss.

I. Motion to Dismiss

In reviewing a motion to dismiss on the grounds of sufficiency of the evidence, the issue is "whether substantial evidence exists as to each essential element of the offense charged and of the defendant being the perpetrator of that offense." State v. Glover, 156 N.C.App. 139, 142, 575 S.E.2d 835, 837 (2003). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). A motion to dismiss should be denied if there is substantial evidence, whether direct, circumstantial, or both, that the defendant committed the offense charged. State v. Thaggard, 168 N.C.App. 263, 281, 608 S.E.2d 774, 786 (2005). "The trial court must consider the evidence `in the light most favorable to the State,' and the State is entitled to every reasonable inference to be drawn from it." State v. Quinn, 166 N.C.App. 733, 739, 603 S.E.2d 886, 889 (2004) (quoting State v. Bright, 301 N.C. 243, 257, 271 S.E.2d 368, 377 (1980)).

A. Attempted First-Degree Rape

Defendant contends that the trial court erred when it failed to dismiss the allegation of attempted first-degree rape at the end of all of the evidence. In order for defendant to be adjudicated responsible for attempted first-degree rape of a child,

the State must show that the victim was twelve years old or less, that the defendant was at least twelve years old and at least four years older than the victim, that the defendant had the intent to engage in vaginal *93 intercourse with the victim, and that the defendant committed an act that goes beyond mere preparation but falls short of actual commission of intercourse.

State v. Gregory, 78 N.C.App. 565, 571, 338 S.E.2d 110, 114 (1985), cert. denied, 498 U.S. 879, 111 S.Ct. 211, 112 L.Ed.2d 171 (1990); see N.C. Gen.Stat. § 14-27.2 (2003). Since Gregory, the statute was amended to read that the victim must be thirteen years old or less. N.C. Gen.Stat. § 14-27.2 (2003)(stating that a person is guilty of first-degree rape for vaginal intercourse "with a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim"). The evidence tended to show that defendant was fourteen years old and AM was eight years old at the time of the offense. Therefore, defendant was six years older than the victim, and the age elements of attempted first-degree rape of a child are satisfied.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Moser
328 S.E.2d 315 (Court of Appeals of North Carolina, 1985)
In Re Hartsock
580 S.E.2d 395 (Court of Appeals of North Carolina, 2003)
State v. Glover
575 S.E.2d 835 (Court of Appeals of North Carolina, 2003)
State v. Thaggard
608 S.E.2d 774 (Court of Appeals of North Carolina, 2005)
State v. Powell
261 S.E.2d 114 (Supreme Court of North Carolina, 1980)
In Re Rholetter
592 S.E.2d 237 (Court of Appeals of North Carolina, 2004)
State v. Bright
271 S.E.2d 368 (Supreme Court of North Carolina, 1980)
State v. Quinn
603 S.E.2d 886 (Court of Appeals of North Carolina, 2004)
State v. Gregory
338 S.E.2d 110 (Court of Appeals of North Carolina, 1985)
State v. Vick
461 S.E.2d 655 (Supreme Court of North Carolina, 1995)
State v. Hammonds
541 S.E.2d 166 (Court of Appeals of North Carolina, 2000)
State v. Hammonds
554 S.E.2d 645 (Supreme Court of North Carolina, 2001)
In re D.W.
615 S.E.2d 90 (Court of Appeals of North Carolina, 2005)
In re T.C.S.
558 S.E.2d 251 (Court of Appeals of North Carolina, 2002)
Macon County Department of Social Services v. Rholetter
592 S.E.2d 237 (Court of Appeals of North Carolina, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
615 S.E.2d 90, 171 N.C. App. 496, 2005 N.C. App. LEXIS 1358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dw-ncctapp-2005.