State v. Marlow

747 S.E.2d 741, 229 N.C. App. 593, 2013 WL 5184179, 2013 N.C. App. LEXIS 959
CourtCourt of Appeals of North Carolina
DecidedSeptember 17, 2013
DocketNo. COA13-18
StatusPublished
Cited by9 cases

This text of 747 S.E.2d 741 (State v. Marlow) 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
State v. Marlow, 747 S.E.2d 741, 229 N.C. App. 593, 2013 WL 5184179, 2013 N.C. App. LEXIS 959 (N.C. Ct. App. 2013).

Opinion

McCullough, Judge.

Benjamin Scott Marlow (“defendant”) appeals from ids convictions for first-degree rape (four counts), indecent liberties with a child (four counts), first-degree sex offense with a child (four counts), and incest (two counts) on the following grounds: (1) the trial court committed plain error when it read stipulations into the record that were neither definite nor certain; (2) the trial court subjected defendant to double jeopardy when it sentenced defendant for both statutory rape and incest because statutory rape is a lesser included offense of incest; (3) the trial court failed to follow the statutory mandate in calculating defendant’s prior record level; and (4) the trial court erroneously ordered defendant to enroll in lifetime satellite-based monitoring (“SBM”) when it found aggravating factors warranting such an imposition. For the following reasons, we find no error.

I. Background

Prior to the summer of 2010, defendant had been living with his father. During late summer of 2010, when defendant was twenty-one years of age, he went to live with his mother and her three daughters, T.A., P.A., and S.A.1 Because defendant’s mother had the children with a man who was not the biological father of defendant, they are his half-sisters. At the time defendant moved in, all of the daughters were 11 years of age or younger.

During defendant’s brief tenancy at his mother’s house, he became close with his half-sisters. Due to the small size of the house, the living arrangements were such that defendant had to sleep in the living room or the dining room. T.A. and P.A. had their own bedrooms, and S.A. slept in the dining room. The daughters enjoyed having defendant in the house; and when defendant was not working, he would sometimes play games and watch television with the girls.

Throughout the next few months, defendant began inappropriately touching P.A. and T.A. On one occasion, T.A. had come home from [595]*595trick-or-treating and was watching television with defendant. Around 11:00 p.m., T.A.’s parents told her to go to bed. T.A. then asked that defendant go to her room and cover her up, and defendant agreed. Defendant then lay down with T.A. Sometime thereafter, defendant began to rub T.A.’s leg. He later placed his hand inside of her pants, but over her underwear, and then on her buttocks, inside of her underwear. Before moving out in early 2011, defendant also came into similar contact with P.A., T.A.’s twin sister.

On “fifteen or twenty” more occasions, defendant initiated similar contact with T.A. T.A. testified that defendant continued to get into her bed late at night, place his hands down her pants, and that he began putting his hand up her shirt. T.A. testified that defendant even began placing his finger inside her vagina, causing her discomfort or pain. T.A. also testified that on multiple occasions defendant began rubbing his penis outside of her vagina, and eventually inserted his penis inside of her vagina. The act of defendant placing his penis inside of T.A. ’s vagina happened in various places, including multiple times outside in the woods, as well as in the living room.

T.A. also testified that defendant would force T.A. to put his penis inside of her mouth by grabbing her head and telling her to lick his penis. T.A. testified that when this happened, defendant would not ejaculate in her mouth. She knew this because she would see him manipulate his penis and wipe the “white liquid” on his shirt. On other occasions when defendant would insert his penis into T.A.’s mouth, he would ejaculate. The act of defendant placing his penis inside T.A.’s mouth occurred “five to ten times.” At some point after Halloween, T.A. testified that defendant also penetrated her anus with his penis. According to T.A., the anal penetration “hurt worse than him putting his finger in my vagina, but it hurt just about the same as when he put his penis in my vagina.”

Throughout defendant’s stay, he was able to convince T. A. not to say anything about the aforesaid incidents, because if she did, “he would never get to see her again.” However, on 1 March 2011, T.A. reported to a counselor at school that her brother had been touching her private parts and that she was forced to touch his as well. The counselor then contacted the Department of Social Services so a social worker could conduct interviews of T.A. and PA. Then, on 4 March 2011, a detective from the sheriff’s department interviewed T.A. and P.A. and recorded the interviews on DVD. T.A. and P.A. were then examined by a pediatrician who specialized in observing signs of physical and sexual abuse. Upon examination, the pediatrician opined that T.A.’s hymen and anus [596]*596appeared to have been penetrated with a finger or other object. The pediatrician did not report similar findings for P.A.

On 21 March 2011, the sheriff’s detective interviewed defendant about the information they received. On 11 April 2011, defendant was indicted for a sex offense against T.A., leading to his arrest just ten days later. Defendant was eventually indicted and charged with a total of fourteen sex offenses; thirteen against T.A. and one against P.A.

Prior to trial, defendant filed several motions, including a motion to suppress an interview with the sheriff’s detective, a motion to have defendant examined for mental capacity, and other motions concerning evidentiary issues. Also prior to trial, defendant agreed to stipulate to his age and his relationship with the alleged victims. Specifically, defendant stipulated that he was twenty-one years of age during the time the alleged events took place, and that he was the half-brother of the alleged victims because they shared a common parent, their mother. At trial, no objections were made when the stipulations were read to the jury.

During the State’s case-in-chief, the State introduced testimony from T.A., P.A., the school counselor, the social worker who initially interviewed the daughters, the pediatrician who examined them, and the sheriff’s detective who conducted an interview of defendant. Defendant chose not to testify at trial. Following the close of the State’s evidence, the jury deliberated for approximately forty-five minutes before returning guilty verdicts for all fourteen charged sex offenses.

During sentencing, the trial court inquired about defendant’s prior record. Defendant stipulated that he was previously convicted of possession of drug paraphernalia while he was on unsupervised probation for underage possession of alcohol. The stipulation resulted in his classification as a Prior Record Level II. Defendant was then sentenced within the presumptive range to consecutive terms, totaling a minimum of 1,356 months’ imprisonment to a maximum of 1,686 months’ imprisonment. In addition to the consecutive terms of imprisonment, the trial court found aggravating factors and ordered defendant to enroll in lifetime SBM upon release from prison.

II. The Trial Court’s Acceptance of Agreed Upon Stipulations

Defendant’s first argument on appeal is that the trial court committed plain error in admitting two stipulations after the close of the State’s case-in-chief. We disagree.

As a part of the adversarial nature of our legal system, parties have an obligation to raise obj ections to errors at the trial level. State v. Oliver, [597]*597309 N.C. 326, 334, 307 S.E.2d 304, 311 (1983);

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Cite This Page — Counsel Stack

Bluebook (online)
747 S.E.2d 741, 229 N.C. App. 593, 2013 WL 5184179, 2013 N.C. App. LEXIS 959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marlow-ncctapp-2013.