State v. Sweat

718 S.E.2d 655, 216 N.C. App. 321, 2011 N.C. App. LEXIS 2235

• Court: Court of Appeals of North Carolina
• Decided: October 18, 2011
• Docket: No. COA11-57
• Status: Published

Opinions

STROUD, Judge.

Defendant appeals his convictions for first degree sexual offense and sexual offense with a child arguing that (1) his motion to dismiss should have been granted as there was insufficient evidence of fellatio, and (2) the jury was erroneously instructed on fellatio. We con-dude that (1) the trial court properly denied defendant’s motion to dismiss as there was sufficient evidence of fellatio, but (2) the jury was erroneously instructed as to two of the charges. Therefore, we find no error in part and order a new trial in part.

I. Background

The State’s evidence tended to show that when Tammy,¹ then approximately eight or nine years old, was in the third grade between August 2007 and 2008, defendant, her live-in uncle, made her “[t]ouch his private” and touched her “boobs[;]” both incidents happened on more than one occasion. In March 2009, Tammy was in defendant’s apartment when he “stuck his private in” Tammy’s “private in front.” Defendant also put “his private” in Tammy’s “butt” and “[sjomething [white] came out.” Defendant put “his private in [Tammy’s] butt” “[m]ore than once.”

On 30 March 2009, defendant told an investigator with the Buncombe County Office of the Sherriff “that he had had sexual contact with the victim[,]” that “he had had sex with [Tammy] on one occasion[,]” and “that there were at least four sexual encounters with the victim.” Defendant wrote a statement for the police which read:

Brickyard Road. She pulled out my p-e-n-d-s and sucked it. I said ‘no’ but she wanted to t-y-e it. She 1-e-n-k-s it. I had s-a-i-n-d ‘no,’ but she want to, so she did it. For s-u-o-c-d. That happened two times. She put my p-l-a-n-s in her butt. B-e-a-c-k part we play on the bed and [Tammy] put her hand down in my pants, pull it out and t-y-e it or can I s-a-n-d, but she want to. I know she it out again. I s-a-i, ‘This is not r-i-n-t’ to her. She s-u-i-n-d things. She tried to put it in her butt that day[.]

On or about 3 August 2009, defendant was indicted for two counts of first degree statutory sexual offense under N.C. Gen. Stat. § 14-27.4(a)(l), five counts of indecent liberties with a child under N.C. Gen. Stat. § 14-202.1, two counts of sexual offense with a child under N.C. Gen. Stat. § 14-27.4A(a), and one count of rape of a child under N.C. Gen. Stat. § 14-27.2A(a). Defendant was tried by a jury and found guilty of all of the charges against him. The trial court entered judgments against defendant, and defendant appeals.

II. Motion to Dismiss

Defendant first argues that the trial court erred in denying his motion to dismiss three of his four charges for first-degree statutory sexual offense and sexual offense with a child; defendant contends that the State’s evidence only establishes one act of anal intercourse for purposes of one of defendant’s four charges and that the other three charges were based upon fellatio. Defendant reasons that pursuant to the corpus delicti rule as applied in State v. Smith, 362 N.C. 583, 669 S.E.2d 299 (2008), there was insufficient evidence of fellatio for purposes of three of the charges, and thus his motion to dismiss should have been granted as to these charges. Even if assume arguendo, that three of defendant’s charges were based upon fellatio, we still disagree that defendant’s motion to dismiss should have been granted, as Smith does not support defendant’s argument. See id.

The standard of review for a motion to dismiss is well known. A defendant’s motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant’s being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The 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 that evidence. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.

State v. Johnson, _ N.C. App. _, _, 693 S.E.2d 145, 148 (2010) (citations and quotation marks omitted).

Pursuant to N.C. Gen. Stat. § 14-27.4(a)(l),

A person is guilty of a sexual offense in the first degree if the person engages in a sexual act... [w]ith 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 victimj.]

N.C. Gen. Stat. § 14-27.4(a)(l) (2007). “A person is guilty of sexual offense with a child if the person is at least 18 years of age and engages in a sexual act with a victim who is a child under the age of 13 years.” N.C. Gen. Stat. § 14-27.4A(1) (2007).

“Sexual act” 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: provided, that it shall be an affirmative defense that the penetration was for accepted medical purposes.

N.C. Gen. Stat. § 14-27.1(4) (2007). Here, defendant only challenges the element of the “sexual act” by fellatio. See generally §§ N.C. Gen. Stat. 14-27.1(4), -27.4(a)(1), -27.4A(1).

In State v. Smith, the defendant was charged with first degree rape, first degree sexual offense, and indecent liberties with a child. 362 N.C. 583, 585, 669 S.E.2d 299, 301 (2008). The evidence showed the defendant confessed to a detective at the sheriff’s department that the minor victim, K.L.C, “tried to give him a blow job.” Id. at 587, 669 S.E.2d at 303. At trial, the defendant testified K.L.C. “attempted] to fellate him.” Id. at 586, 669 S.E.2d at 302. Conversely, K.L.C., both before and at trial stated that “prior to the alleged rape no sexual or indecent acts occurred between her and defendant” and “no sexual contact between her and defendant occurred after the alleged rape.” Id. at 588, 669 S.E.2d at 303. Thus, only the defendant’s statements could be used to establish fellatio for purposes of his charge for first degree sexual offense. See id. at 586-88, 669 S.E.2d at 302-03.

Based upon the facts our Supreme Court discussed the development of the corpus delicti rule and stated,

Parker held that in noncapital cases, a conviction can stand if the accused’s confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime. Furthermore, Parker emphasizes that when independent proof of loss or injury is lacking, there must be strong corroboration of essential facts and circumstances embraced in the defendant’s confession.

Id. at 592, 669 S.E.2d at 306 (citations and quotation marks omitted). .

The Court then examined the evidence, first noting- that the victim explicitly denied that the defendant had committed a first degree sexual offense upon her:

In the instant case, a critical fact exists that necessarily bears upon our analysis: the victim twice denied that a first-degree sexual offense ever occurred. When interviewed by Detective Arrowood six weeks after the alleged events transpired, K.L.C. stated that there was no sexual contact between defendant and her on the night of the first visit. Additionally, K.L.C. testified at trial that during the first visit, she was alone with defendant in Jonathan’s, [her brother’s,] bedroom, and while defendant made inappropriate comments to her, no sexual contact occurred on the night of the first visit. A victim of sexual violence, especially a minor victim, is not required to testify to the sexual offense in order for a conviction to stand. However, in this unique situation, in which the victim explicitly denies that the offense ever occurred, we believe it is imperative to adhere to Parker’s emphasis that strong corroboration evidence supporting defendant’s extrajudicial confession must be shown when proof of injury or loss is otherwise lacking.

Id. at 593, 669 S.E.2d at 306 (citations and quotation marks omitted).

The Court then examined the corroborative evidence and found that it was not sufficiently trustworthy to show that a first degree sexual offense had occurred, particularly where the defendant’s confession itself failed to establish all of the necessary elements of the alleged crime:

The State argues that under the corpus delicti rule, defendant’s extrajudicial confession, along with several pieces of corroborative evidence, is sufficient to sustain a conviction for first-degree sexual offense. However, none of the State’s evidence is trustworthy to establish the sexual act element of a first-degree sexual offense, that KL.C.’s lips, tongue, or mouth ever touched defendant’s penis. In the extrajudicial confession, defendant stated to Detective Arrowood that K.L.C. unzipped his pants, removed his penis, and attempted fellatio, but that he could not achieve an erection because of his alcohol consumption. From this confession alone a jury could not determine beyond a reasonable doubt that K.L.C.’s mouth ever made contact with defendant’s penis, which is a required element in a sexual offense prosecution.

Id. at 593-95, 669 S.E.2d at 306-07. The State’s corroborating evidence included: (1) the defendant’s trial testimony which the Court determined was vague like the extrajudicial confession, (2) Jonathan’s testimony regarding defendant’s confession to him which the Court determined was not independent as the statements were basically a report of what happened during defendant’s interview with the detective wherein he made his extrajudicial confession, and (3) Jonathan’s testimony describing defendant’s demeanor when confessing which the Court again determined was not independent of the extrajudicial confession. See id. at 594-95, 306-07.

Finally, the Court considered defendant’s opportunity to commit a first degree sexual offense and determined that there was no independent proof of the crime:

The State last contends that under Parker, several pieces of opportunity evidence are sufficient to sustain defendant’s conviction for first-degree sexual offense. The State offers testimony from both defendant and K.L.C. that they were alone together in Jonathan’s bedroom during the first visit, as well as Jonathan’s testimony that he left K.L.C. with defendant during the first visit.

In Parker, this Court held that facts tending to show the defendant had the opportunity to commit the crime can be considered as independent evidence to establish the trustworthiness of the defendant’s confession. However, the opportunity evidence in Parker differs from the case at bar. In Parker, the defendant was charged with armed robbery and first-degree murder of two victims. The State was able to produce significant independent evidence of both murders and of armed robbery, including the bodies of both victims and the recovered property stolen from the first victim. However, no evidence of the second armed robbery could be shown, other than the defendant’s extrajudicial confession. This Court ruled that evidence showing the defendant had the opportunity to commit the crime was sufficient under the corpus delicti rule to sustain the second armed robbery conviction in light of the overwhelming amount and convincing nature of the corroborative evidence of more serious crimes committed against both victims at the time of the robbery. The present case differs from Parker because no independent proof, such as physical evidence or witness testimony, of any crime can be shown. Furthermore, in the case at bar, K.L.C., an alleged living victim, gave two statements averring that the sexual offense did not occur. In light of these facts, the opportunity evidence submitted by the State is not strong enough to establish the corpus delicti of first-degree sexual offense under Parker, namely, that a sexual act occurred between defendant and K.L.C.

Id. at 595-96, 669 S.E.2d at 307-08 (citations, quotation marks, ellipses, and brackets omitted). Thus, we consider whether “the accused’s confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime” and whether there is “strong corroboration of essential facts and circumstances embraced in the defendant’s confession.” See id. at 592, 669 S.E.2d at 306.

We first note that the Supreme Court’s analysis “necessarily bears upon” “a critical fact”: “the victim twice denied that a first-degree sexual offense ever occurred.” Id. at 593, 669 S.E.2d at 306. Here, though Tammy did not testify to fellatio during defendant’s trial she did, prior to defendant’s trial, inform Ms. Christine Nicholson, formerly a child protective services investigator for the Buncombe County Department of Social Services, and Ms. Cindy McJunkin of the Mission Children’s Clinic that defendant had “made [her] suck his private[,]” pushed her head and told her to “suck it[,]” and put “his private in [her] mouth.” While the jury was only allowed to consider Ms. Nicholson’s and Ms. McJunkin’s testimony and evidence regarding Tammy’s statements to the extent that they corroborated Tammy’s trial testimony, this evidence clearly shows that Tammy did not consistently deny that fellatio occurred as the victim in Smith did; id., here, within a month of the rape, Tammy told two different individuals on two different occasions that fellatio had occurred. As our Supreme Court noted in Smith, “A victim of sexual violence, especially a minor victim, is not required to testify to the sexual offense in order for a conviction to stand.” Id.

In Smith, the Court next turns to the defendant’s extrajudicial confession focusing on the fact that it only established “attempted fellatio” but not “that KL.C.’s mouth ever made contact with defendant’s penis[.]” Id. at 593-94, 669 S.E.2d at 306. Here, unlike the “attempted” language in Smith, id., defendant’s extrajudicial confession, though poorly spelled, stated: “She pulled out my p-e-n-d-s and sucked it. I said ‘no’ but she wanted to t-y-e it. She 1-e-n-k-s it. I had s-a-i-n-d ‘no,’ but she want to, so she did it. For s-u-o-c-d. That happened two times.” Unlike Smith, defendant’s extrajudicial confession does establish that Tammy’s “mouth . . . made contact with defendant’s penis[.]” Id. at 594, 669 S.E.2d at 306.

Lastly, the Supreme Court in Smith considered defendant’s “opportunity” to commit the charged crimes. Id. at 595, 669 S.E.2d at 307. In Smith, the evidence showed that the victim and defendant had only been alone together on two occasions; they did not live together, nor did the defendant have access to the victim over a long period of time. Id. at 585-88, 301-03. The Court determined that in Smith there was “no independent proof’ of “any crime.” Id. at 596, 669 S.E.2d at 308. Here, both defendant’s extrajudicial statement, Tammy’s testimony and statements, and Tammy’s aunt’s testimony establish that defendant did have an opportunity to commit the charged crimes. Furthermore, here, where defendant has been convicted of, and does not challenge on appeal, his multiple convictions of rape, indecent liberties, and sexual offense based on anal intercourse, which occurred in the same course of sexually abusive conduct with the same victim, there is “independent proof” to support a crime. Id.

Smith also analyzed the same evidence which it found was not sufficient to corroborate a first degree sexual offense and found that the evidence would support a charge of indecent liberties with a child. Id. at 597-98, 669 S.E.2d at 309. As to the indecent liberties with a child conviction, the Supreme Court determined:

While the evidence presented at trial was insufficient to sustain the sexual offense conviction, it withstands the corpus delicti rule as to the conviction for indecent liberties with a child. . . .

. . . Defendant’s extrajudicial confession alone establishes all of the elements of indecent liberties with a child; thus, under the corpus delicti rule, the question becomes whether independent corroborating evidence is strong enough to prove the trustworthiness of the confession.... [A]fter reviewing the entirety of the record, we find there is strong corroborating evidence to establish the trustworthiness of defendant’s extrajudicial confession as to the indecent liberties charge.

Id. Here, just as with the indecent liberties conviction with the defendant in Smith, “[defendant's extrajudicial confession alone establishes all of the elements” of fellatio. Id. at 597, 669 S.E.2d at 309.

In summary, this case differs from Smith because defendant’s extrajudicial confession alone establishes the elements of fellatio; Tammy previously informed two different individuals on two different dates that fellatio had occurred; and defendant was convicted of and does not contest on appeal numerous other criminal sexual acts occurring within the same time frame and with the same victim which were part of the same sexual encounters as the fellatio. We conclude that “the accused’s confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime” and that there is “strong corroboration of essential facts and circumstances embraced in the defendant’s confession.” Id. at 592, 669 S.E.2d at 306. Accordingly, there was sufficient evidence of fellatio, and the trial court did not err in denying defendant’s motion to dismiss. This argument is overruled.

III. Jury Instructions

The trial court instructed the jury that in order to find defendant guilty of the four charges for first-degree statutory sexual offense and sexual offense with a child they could find he engaged in “either anal intercourse and/or fellatio” with Tammy. Defendant contends that the trial court erred in instructing the jury on fellatio in combination with an instruction on anal intercourse. We review instructions to the jury

contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed. Under such a standard of review, it is not enough for the appealing party tó show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.

State v. Glynn, 178 N.C. App. 689, 693, 632 S.E.2d 551, 554, disc. review denied and appeal dismissed, 360 N.C. 651, 637 S.E.2d 180 (2006) (citation, quotation marks, ellipsis, and brackets omitted). “A trial judge should never give instructions to a jury which are not based upon a state of facts presented by some reasonable view of the evidence. When such instructions are prejudicial to the accused he would be entitled to a new trial.” State v. Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 699 (1973).

Relying heavily on his first argument defendant contends that the evidence supports only one charge of sexual offense, specifically anal intercourse in March 2009. We have already rejected defendant’s first argument, but we do agree that the evidence before the jury established, at most, two instances of fellatio. Jenny testified that she and defendant engaged in anal intercourse “[m]ore than once.” Defendant’s extrajudicial confession stated, “She pulled out my p-e-n-d-s and sucked it. I said ‘no’ but she wanted to t-y-e it. She 1-e-n-k-s it. I had s-a-i-n-d ‘no,’ but she want to, so she did it. For s-u-o-c-d. That happened two times. ” (Emphasis added.) The corroborative evidence admitted through the testimonies of Ms. Nicholson and Ms. McJunkin was not admitted as substantive evidence of fellatio and is vague as to the number of times that fellatio occurred. Thus, the trial court could only properly instruct the jury on two of the four counts that they could find defendant guilty of “anal intercourse and/or fellatio.” As such, instruction on four charges regarding “anal intercourse and/or fellatio” was not only error, but “was likely, in light of the entire charge, to mislead the jury.” Glynn at 693, 632 S.E.2d at 554. We find no error as to defendant’s two convictions for first degree statutory sexual offense pursuant to N.C. Gen. Stat. § 14-27.4(a) (09-CRS-00455 and 09-CRS-00456) as the jury could properly have found either anal intercourse or fellatio and was not required to agree as to which one occurred. See State v. Lyons, 330 N.C. 298, 302, 412 S.E.2d 308, 312 (1991) (“There is a critical difference between the lines of cases represented by Diaz and Hartness. The former line establishes that a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. The latter line establishes that if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.” (emphasis added)). Accordingly, we order defendant receive a new trial for his two convictions for sexual offense with a child (09-CRS-54272 and 09-CRS-54275).

IV. Conclusion

For the foregoing reasons, we conclude that the trial court properly denied defendant’s motion to dismiss, but the jury was erroneously instructed as to two of the charges.

NO ERROR in part; NEW TRIAL in part.

Judge HUNTER, Robert C. concurs. Judge HUNTER, Jr., Robert N. dissents in a separate opinion.

1 . A pseudonym will be used to protect the identity of the minor.