State v. Collins

783 S.E.2d 9, 245 N.C. App. 478, 2016 N.C. App. LEXIS 193
Court of Appeals of North Carolina·Decided February 16, 2016·No. 15-659·Published·Cited by 4 cases

Opinions

TYSON, Judge.

*479Anfernee Maurice Collins ("Defendant") appeals from judgments entered following his conviction of four counts of first-degree rape of a child. We vacate three of Defendant's four convictions and arrest the judgments for those three convictions for lack of jurisdiction, find no error on the fourth conviction, and remand for resentencing and rehearing on the imposition of lifetime satellite-based monitoring.

I. Background

A.B. testified to four acts of sexual intercourse, which occurred between her and Defendant in 2011. On 8 April 2013, Defendant was indicted in two separate documents for four counts of first-degree rape of a child. All four charges were stated in identical language and two counts were alleged in each indictment. According to the indictments, the four offenses allegedly occurred between "January 1, 2011 and November 30, 2011." The jury convicted Defendant of all four offenses. The offenses were consolidated and Defendant was sentenced to two consecutive terms of 192 to 240 months in prison. Upon release from prison, Defendant was also ordered to be subject to satellite-based monitoring for the remainder of his natural life.

A. First Incident

A.B. was fourteen years old when she testified at trial in 2014. She testified the first incident of sexual intercourse occurred in the spring or summer of 2011, while she was a student in the fourth grade. A.B. told the investigating officer the incident occurred "towards the end of the school year. [She] advised that it was summer time."

A.B.'s grandmother had dropped A.B. off at her aunt's house. When she arrived, Defendant and his mother were both in the home. A.B. fell asleep on the couch. Her aunt, Defendant's mother, left the home to go to work. When A.B. awoke, she and Defendant began talking. Defendant asked A.B. what sports she liked to play, and A.B. told Defendant she liked to play basketball at the local recreational center. Defendant told her to be careful about walking to the center alone. A.B. responded, "whatever," and walked to the refrigerator to get a drink.

*480Defendant told A.B. "not to talk to him like that," grabbed A.B. by the arm, and pulled her into his bedroom. Defendant pushed A.B. onto the bed and forced himself onto her despite her requests to stop. A.B. testified that Defendant held her down, pulled her pants and his pants down, and "put his private area in [her] private area." Afterward, A.B. testified Defendant stated "not to tell anybody and he was going to kill everybody [she] knew."

B. Second Incident

The second incident occurred on a day when A.B. was visiting at a friend's house. She developed a serious headache and called her grandmother. Her grandmother was unable to pick her up and told her to walk four or five houses down the street to her aunt's house. Defendant was present at the house when A.B. arrived. A.B. went into her aunt's bedroom alone to lay down and watch television. Defendant entered the bedroom about ten minutes later. A.B. tried to leave the room, but Defendant blocked her way. He held her down on the bed, pulled up her skirt, and forcibly engaged in sexual intercourse with her.

A.B. testified she was not sure exactly when the second incident occurred. The following *12exchange occurred during direct examination of A.B.:

Q: Do you remember when that was? Was it still in the fourth grade?
A: Yes, sir.
Q: If you are not sure it's okay. Make sure.
A: I'm not really sure.

The investigating officer testified A.B. told him the second incident had occurred "during the first semester of her fifth grade year."

C. Third Incident

A.B. also did not recall when in 2011 the third incident occurred. A.B. testified she was at her aunt's house and Defendant gave her a pill. She took the pill and did not remember anything until she woke up while Defendant was "having sex" with her. A.B. was "drowsy, sleepy," and Defendant was "inside her" for "a couple of minutes." After the incident, A.B. "just put [her] clothes back on and went back to sleep."

D. Fourth Incident

The final incident occurred "around Thanksgiving" of 2011. A.B. was alone at her aunt's house when Defendant came in the back door. He *481pushed her down on the couch, kissed her on the mouth, and stated he was "going to go away for a while." Defendant then pulled down A.B.'s pants and engaged in intercourse with her.

Over a year later, in November of 2012, A.B. told her stepmother she had been raped by Defendant. On the same day, A.B.'s stepmother took her to speak with a law enforcement officer. Defendant was seventeen years old when he was arrested on 21 December 2012.

E. Defendant's Age

Defendant's arrest warrants erroneously stated his date of birth as 14 September 1994. According to the uncontroverted evidence presented by both the State and Defendant, Defendant was born on 14 September 1995. He turned sixteen years old on 14 September 2011. Defendant would have been either fifteen or sixteen years old during the relevant time period between 1 January 2011 and 30 November 2011, when A.B. alleged all the offenses occurred, and as is alleged in both indictments.

Defense counsel moved to dismiss all charges at the close of the State's evidence "based on the fact that the State has not proved beyond a reasonable doubt that [Defendant] committed these various acts that he's charged with."

The following exchange occurred:

THE COURT: ... And the Defendant's date of birth that is in evidence?
PROSECUTOR: That is in evidence is September 14th 1995.
....
THE COURT: So during the year 2011, 2012, the victim would be 11 and 12 years old?
PROSECUTOR: Yes. The incidents all occurred before her-either before her birthday in 2011, which would make her 10 years old or 11 years old at the time of the incidents.
THE COURT: So they all allegedly occurred in 2011?
PROSECUTOR: Yes, sir.
THE COURT: And the Defendant's date of birth of 9/14/95 would have made him, in 2011, 17 or 18 years old?
PROSECUTOR: Seventeen.
*482THE COURT: Seventeen? So the victim, according to the State's evidence, would be less than 13?
PROSECUTOR: Yes, sir.
THE COURT: The Defendant was at least 12 years old?
PROSECUTOR: Yes, sir.
THE COURT: And he was at least four years older than the victim?
PROSECUTOR: Correct.

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State v. Collins, 783 S.E.2d 9, 245 N.C. App. 478, 2016 N.C. App. LEXIS 193 (N.C. Ct. App. 2016).

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