A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-898

NORTH CAROLINA COURT OF APPEALS

Filed: 6 August 2002

STATE OF NORTH CAROLINA

v .                         Caswell County
                            No. 99 CRS 2467-68
WILLIAM DAVIS    
        

    Appeal by defendant from judgments dated 8 December 2000 by Judge W. Osmond Smith, III in Superior Court, Caswell County. Heard in the Court of Appeals 24 April 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Belinda A. Smith, for the State.

    Theresa K. Pressley for defendant.

    McGEE, Judge.

    William Davis (defendant) was indicted on 27 September 1999 on two counts of first degree statutory sex offense against his daughter (the victim) in violation of N.C. Gen. Stat. § 14-27.4. Defendant was determined to be indigent and counsel was appointed to represent defendant on 3 January 2000. Defendant's first appointed counsel withdrew and a second attorney was appointed on 11 January 2000; defendant's second appointed counsel withdrew and a third attorney was appointed to represent defendant on 22 May 2000.
    Defendant moved for funds to employ an investigator and a forensic expert in a motion dated 6 June 2000, which was granted by the trial court. Defendant filed motions dated 1 July 2000 for (1)a bill of particulars, (2) production by the State of documents favorable to defendant pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963), and (3) disclosure of confidential records of the victim and any testifying witnesses pursuant to Pennsylvania v. Ritchie, 480 U.S. 39, 94 L. Ed. 2d 40 (1987).
    Defendant was committed to Dorothea Dix Hospital pursuant to a motion and order dated 1 July 2000 for an examination into defendant's capacity to proceed to trial. The examination report stated defendant was competent to proceed to trial, had the ability to understand the nature of the charges against him, and was competent to cooperate with his attorney and the court during his trial. Based upon this examination, the trial court found defendant had the capacity to proceed to trial in an order dated 27 November 2000.
    In a motion dated 14 September 2000, defendant moved the trial court to compel the State to comply with the orders allowing defendant's earlier motions. The State filed a bill of particulars dated 18 September 2000. The trial court ordered an in camera review and inspection of certain records from the Virginia Department of Social Services in an order dated 23 September 2000.
    In a motion dated 15 November 2000, defendant moved the trial court to continue his trial claiming (1) he had not received confidential information requested, (2) the State had brought additional indictments against defendant and defendant had filed a motion for joinder of all charges joinable for trial, (3) defendant had filed a bill of particulars for the additional charges, and (4)defendant needed time to adequately prepare a defense to all charges against him.
    Five days prior to trial defendant received confidential information requested from the State. The trial court heard arguments on defendant's motion to continue on 27 November 2000. The trial court denied defendant's motion to continue and motion for joinder. Following denial of defendant's motion to continue, defendant waived his right to assistance of counsel, elected to proceed pro se, and requested standby counsel, which the trial court granted.
    The victim, who was eight years old at the time of trial, testified to defendant's actions that occurred thirteen days before her fourth birthday. She testified that following an overnight visit with defendant, she returned to her foster mother's home and told her foster mother that defendant "put his private in my buttocks and jumped up and down and said the F-word and put his private in my mouth and made me suck on it. . . . [and] told me to drink the milk." She further testified that this had happened "since [she] was a baby."
    The victim's foster mother testified that after the victim visited with her father, she was upset, unruly and had nightmares. She testified that the victim visited defendant overnight on 17 November 1996 and following that visit, the victim hugged defendant good-bye. However, when defendant told the victim he would see her again in two weeks, the victim began to cry. The foster mother stated that as she and the victim were driving home, she asked thevictim what was wrong. The victim told her that defendant puts "[h]is wee-wee in my mouth and tells me to suck the milk out." The victim also told her foster mother that defendant "puts his wee-wee in my butt and pees in my butt." The foster mother reported the victim's statements to Michael Christian (Christian), a child protective services worker in Pittsylvania County, Virginia who interviewed the victim on 21 November 1996.
    Dr. Joann Barton, a pediatric nurse practitioner at Duke University Medical Center, testified as an expert witness in the field of child development and stated that it would be highly improbable for a child of the age of four to six to create sexual acts in her mind. After reviewing records of the victim taken on or about 23 April 1997 at the Medical College of Virginia in Richmond, Virginia, Dr. Barton testified that there "was some redness of the vaginal area, and in the anal area . . . that there had been some trauma to the area and there was also thickening of the radial folds of the tissue that surrounds the anus." Dr. Barton testified this evidence indicated "[t]hat the child had been sexually abused anally."
    At the close of the State's evidence, defendant moved to dismiss the charges against him, which the trial court denied.
    Defendant testified denying that he had ever sexually abused any of his children. He presented evidence tending to negate the likelihood that sexual abuse of the victim had occurred, including expert witness testimony that the physical evidence did not show the victim had been sexually abused. Two of defendant's otherchildren testified that they told Dr. Franklin Russell (Dr. Russell) they were not aware of sexual abuse of the victim by defendant; however, one child also testified that she lied to Dr. Russell and that she was aware of sexual abuse by her father upon the victim as well as herself.
    Defendant did not renew his motion to dismiss at the close of all the evidence. The jury found defendant guilty of two counts of first degree sexual offense. Defendant was sentenced to 300 to 369 months in prison for each count, with the sentences to run consecutively. Defendant appeals.

I.

    By his first assignment of error, defendant argues the trial court erred in denying defendant's motion to continue. Specifically, defendant contends the trial court's denial of his motion to continue denied his Sixth Amendment right to a fair trial because, although he "relentlessly pursued" exculpatory information, he was only given this information five days prior to trial.
    A motion to continue is generally "addressed to the discretion of the trial court, and absent a gross abuse of that discretion, the trial court's ruling is not subject to review." State v. Taylor, 354 N.C. 28, 33, 550 S.E.2d 141, 146 (2001), cert. denied, ___ U.S. ___, 152 L. Ed. 2d 221 (2002) (citing State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981)). "When a motion to continue raises a constitutional issue, the trial court's ruling is fully reviewable upon appeal." Taylor, 354 N.C. at 33, 550 S.E.2dat 146. However, "[e]ven if the motion raises a constitutional issue, a denial of a motion to continue is grounds for a new trial only when defendant shows both that the denial was erroneous and that he suffered prejudice as a result of the error." Id. at 33- 34, 550 S.E.2d at 146 (citing State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982)). To establish that the trial court's failure to give additional time to prepare constituted a constitutional violation, defendant must show "how his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion." State v. Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526 (1986).
    In the case before us, defendant received requested confidential information five days before the trial began on 27 November 2000. A review of the confidential information provided to defendant showed two sets of documents defendant stated he was unaware of and that he claimed were essential to his trial. The first set of documents included a record from Lynchburg Hospital dated 20 November 1996, which had a summary of an examination of the victim by Dr. Michael Voth. In this document, Dr. Voth noted no apparent injuries to the victim although sexual abuse was alleged to have occurred. Dr. Voth's record of the examination is the first medical examination of the victim subsequent to the time period that the State alleged abuse of the victim by defendant. Defendant argued at the motion hearing that after discovering Dr. Voth's examination notes, he needed more time to obtain further records concerning the examination, to find Dr. Voth, and to havehim testify as to the contents of the examination.
    The second set of documents included records from Dr. Russell, who treated two of defendant's other children. Defendant argued at the hearing on his motion to continue that Dr. Russell's records reveal that "[t]hese children are continuing to deny any knowledge of sexual abuse taking place in the family." Defendant stated that he wanted to be able to call Dr. Russell and his other children as witnesses based upon the information contained in Dr. Russell's records.
    Defendant had been tried on different charges in an earlier case in Virginia and the trial court in the present case, in order to determine what records were within defendant's knowledge and control, called Christian to testify. Christian testified that in March 1997 "[a]ll of the medical records and the entire case files had been turned over to [defendant's] lawyer in Virginia[,]" including Dr. Voth's records. Christian did not know if Dr. Russell's records were included in the file turned over to defendant's lawyer for the case in Virginia. The trial court denied defendant's motion to continue because the information contained in Dr. Voth's records had been in the control and knowledge of defendant since March 1997.
    We find the trial court did not err in denying defendant's motion to continue. First, not only did Christian testify that Dr. Voth's records were known to defendant and had been in his lawyer's custody since March 1997, the alleged exculpatory evidence within those records was read to the jury by defendant's expert witness,Rosalyn Harris-Hoffitt (Harris-Hoffitt). After reviewing the examination results from the Lynchburg Hospital visit, Harris- Hoffitt stated that the diagnosis from that visit stated that there was "[n]o apparent injury" to the victim.
    Next, although there is no evidence that Dr. Russell's report was within the control or knowledge of defendant, defendant received the report five days prior to trial. Further, two of defendant's other children testified at trial, and defendant had the opportunity to examine them regarding alleged exculpatory statements they made to Dr. Russell. Those children testified that they told Dr. Russell they were not aware of sexual abuse of the victim by defendant; however, one child also testified that she lied to Dr. Russell and that she was aware of sexual abuse by her father upon the victim as well as herself.
    The trial court did not abuse its discretion in denying defendant's motion to continue. "'[W]hat constitutes a reasonable length of time for defense preparation must be determined upon the facts of each case.'" State v. McCullers, 341 N.C. 19, 31, 460 S.E.2d 163, 170 (1995) (quoting State v. Searles, 304 N.C. 149, 153-54, 282 S.E.2d 430, 433, (1981)). In light of the facts and circumstances of this case, defendant presented no evidence that he would have been better prepared had the documents not within his knowledge or control been given to him earlier, or that he was materially prejudiced by the denial of his motion to continue. Defendant's first assignment of error is overruled.
II.
    Defendant contends by his second assignment of error that the trial court erred in allowing defendant to represent himself. Specifically, defendant argues that he did not knowingly waive his right to counsel and that his request for standby counsel negated his waiver of counsel.
    A criminal defendant has a constitutional right to refuse counsel and represent himself. U.S. Const. amend. VI and XIV; Art. I, § 23 N.C. Const.; N.C. Gen. Stat. § 15A-1242 (1999). "Although [a defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the life-blood of the law.'" Faretta v. California, 422 U.S. 806, 834, 45 L. Ed. 2d 562, 581 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 25 L. Ed. 2d 353, 363 (1970)) (Brennan, J. concurring). However, "[b]efore allowing a defendant to waive in-court representation by counsel, . . . the trial court must insure that constitutional and statutory standards are satisfied." State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992), disc. review denied, 351 N.C. 119, 541 S.E.2d 468 (1999). A defendant's "waiver of the right to counsel and election to proceed pro se must be expressed 'clearly and unequivocally.'" Thomas, 331 N.C. at 673, 417 S.E.2d at 475 (quoting State v. McGuire, 297 N.C. 69, 81, 254 S.E.2d 165, 173, cert. denied, 444 U.S. 943, 62 L. Ed. 2d 310 (1979)). In order to satisfy the constitutional standard, the trial court must then make a thorough inquiry to determine whether the defendant "knowingly, intelligently, and voluntarily" waived his right to counsel. Thomas, 331 N.C. at 674, 417 S.E.2d at 476 (citing Faretta, 422 U.S. at 835, 45 L. Ed. 2d at 581-82)). Our Supreme Court "has held that N.C.G.S. § 15A-1242 satisfies any constitutional requirements by adequately setting forth the parameters of such inquiries." State v. Fulp, 355 N.C. 171, 175, 558 S.E.2d 156, 159 (2002) (citations omitted). N.C. Gen. Stat. § 15A-1242 (1999) states that
         [a] defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:     (1)    Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
            (2)    Understands and appreciates the consequences of this decision; and
            (3)    Comprehends the nature of the charges and proceedings and the range of permissible punishments.

    An inquiry that complies with N.C. Gen. Stat. § 15A-1242, fully satisfies the constitutional requirement that a wavier of counsel must be knowing and voluntary. State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994), cert. denied, 515 U.S. 1107, 132 L. Ed. 2d 263 (1995).
    Further, if a defendant is indigent, the trial court is required to obtain a written waiver of counsel pursuant to N.C. Gen. Stat. § 7A-457 which states in part that:
        [a]n indigent person who has been informed of his right to be represented by counsel at any in-court proceeding, may, in writing, waive the right to in-court representation by counsel, if the court finds of record that at the time of wavier the indigent person acted with full awareness of his rights and of the consequences of the wavier. In making such afinding, the court shall consider, among other things, such matters as the person's age, education, familiarity with the English language, mental condition, and the complexity of the crime charged.

N.C. Gen. Stat. § 7A-457(a) (1999).
    The record shows that the trial court in this case properly satisfied the constitutional and statutory requirements for allowing defendant to represent himself. After the trial court denied defendant's motion to continue, defendant's attorney informed the trial court that defendant wanted to waive appointed counsel, represent himself, and have the trial court appoint standby counsel. The trial court took sworn testimony from defendant as to defendant's age, education, work history, and whether defendant had a mental handicap. Defendant clearly and unequivocally stated to the trial court that he wanted to proceed pro se. The trial court also engaged in a lengthy colloquy ensuring that defendant knew he had the right to appointed counsel at trial, that defendant understood the elements of the offenses he was charged with, and that he understood the nature of the proceedings, the sentencing procedures as well as the range of punishments he was facing. Only after this lengthy inquiry by the trial court did defendant complete the waiver of counsel form, which he first read along with the trial court. After reviewing the waiver of counsel form, defendant checked the appropriate box indicating that he waived his right to appointed counsel, wrote that he requested standby counsel, and signed the waiver of counsel form. We find the trial court's inquiry satisfies the statutoryrequirements of N.C. Gen. Stat. § 15A-1242, fully satisfying the constitutional requirement that defendant's waiver be knowing and voluntary, and the trial court properly obtained a written waiver of counsel pursuant to N.C. Gen. Stat. § 7A-457 after considering the statutory requirements.
    We also find defendant's argument that his request for standby counsel negated any knowing and voluntary waiver of right to counsel to be without merit. N.C. Gen. Stat. § 15A-1243 (1999) states that
        [w]hen a defendant has elected to proceed without the assistance of counsel, the trial judge in his discretion may appoint standby counsel to assist the defendant when called upon and to bring to the judge's attention matters favorable to the defendant upon which the judge should rule upon his own motion.

The trial court in this case informed defendant that standby counsel would not sit at the table next to him at trial, and that standby counsel would not be appointed to give defendant both the benefit of representing himself and having a lawyer represent him as well. Defendant replied, "I understand." The trial court again ensured that defendant understood the waiver of counsel form before he signed it.
    "When a defendant executes a written waiver which is in turn certified by the trial court, the waiver of counsel will be presumed to have been knowing, intelligent, and voluntary, unless the rest of the record indicates otherwise." State v. Warren, 82 N.C. App. 84, 89, 345 S.E.2d 437, 441 (1986). The record here does not indicate otherwise. Defendant's second assignment of error isoverruled.
III.

    By his third assignment of error, defendant contends the trial court erred in not dismissing the charges at the close of all the evidence.
    Defendant moved to dismiss the charges against him at the close of the State's evidence; however, he did not move to dismiss charges at the close of all the evidence. Errors based upon a claim that "[t]he evidence was insufficient as a matter of law" can "be the subject of appellate review even though no objection, exception or motion has been made in the trial division." N.C. Gen. Stat. § 15A-1446(d)(5) (1999). However, the N.C. Rules of Appellate Procedure state that a defendant "may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial." N.C.R. App. P. 10(b)(3).
    "To the extent that [N.C. Gen. Stat. §] 15A-1446(d)(5) is inconsistent with N.C.R. App. P. 10(b)(3), the statute must fail." State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987). Therefore, in that defendant failed to move to dismiss for insufficiency of the evidence at the close of all the evidence, this assignment of error is not properly before our Court. However, we exercise our discretion pursuant to N.C.R. App. P. 2 to address the merits of defendant's argument.
    In ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each essentialelement of the charged offense and that the defendant is the perpetrator of that offense. State v. Summers, 92 N.C. App. 453, 455, 374 S.E.2d 631, 633 (1988), disc. review denied, 324 N.C. 341, 378 S.E.2d 806 (1989). "'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Summers, 92 N.C. App. at 455-56, 374 S.E.2d at 633 (quoting State v. Scott, 323 N.C. 350, 353, 372 S.E.2d 572, 575, (1988)). When ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, resolving all inferences in favor of the State. State v. Thomas, 65 N.C. App. 539, 542, 309 S.E.2d 564, 566 (1983).
    A defendant is guilty of first-degree sexual offense if he "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 victim[.]" N.C. Gen. Stat. § 14-27.4(1) (1999). "Sexual act" as used in this statute "means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse . . . [and] also means the penetration, however slight, by any object into the genital or anal opening of another person's body[.]" N.C. Gen. Stat. § 14-27.1(4) (1999).
    Defendant first argues that the victim's testimony was not sufficient to support a conviction in this case because although the victim "[m]ay have been a competent witness at the trial . . . she was non-verbal at three years of age" when the offenses allegedly occurred. Defendant's argument goes to the credibility of the victim as a witness and not her competency. "Only when thetestimony is inherently incredible will this Court find the evidence insufficient to support a jury verdict." State v. Jordan, 321 N.C. 714, 717, 365 S.E.2d 617, 619-20 (1988). In this case, defendant cites no evidence in the record as inherently incredible but only argues that the victim was "non-verbal" when the offenses occurred against her. However, witnesses testified at trial that although the victim was difficult to understand at the time of the offenses because of a speech impediment, they could understand her. This argument is without merit.
    Defendant also challenges the sufficiency of the evidence as to the sexual act because he argues that the first examination was inconclusive, with no apparent injury, and the second examination five months later showed probable sexual abuse and defendant did not have contact with the victim between the two examinations. We disagree. Through the victim's testimony, the State presented substantial evidence defendant committed acts of anal intercourse and fellatio upon the victim. See State v. Stancil, 146 N.C. App. 234, 245, 552 S.E.2d 212, 218 (2001) ("Our courts have consistently held an alleged victim's testimony is sufficient to establish that the accused committed a completed act of cunnilingus by placing his tongue on her pubic area."). See also State v. Watkins, 318 N.C. 498, 501, 349 S.E.2d 564, 565 (1986) (stating that a seven-year old child's testimony constituted sufficient evidence of penetration to support a conviction of first degree sexual offense).
    The victim described at trial defendant's actions to her which were consistent with anal intercourse and fellatio that defendantdid to her. She testified that following an overnight visit with defendant, she returned to her foster mother's home and told her foster mother that defendant "put his private in my buttocks and jumped up and down and said the F-word and put his private in my mouth and made me suck on it . . . [and] told me to drink the milk." (T467) She further testified that this had happened "since [she] was a baby."
    The foster mother testified at trial and stated that following visits with defendant, the victim would be upset, unruly and have nightmares. She testified that the victim visited defendant overnight on 17 November 1996 and following that visit, the victim hugged defendant good-bye. However, when defendant told the victim he would see her again in two weeks, the victim began to cry. The foster mother stated that as she and the victim were driving home, she asked the victim what was wrong. The victim told her that defendant puts "his wee-wee in my mouth and tells me to suck the milk out." The victim also told her foster mother that defendant "puts his wee-wee in my butt and pees in my butt." The foster mother reported the victim's statements to Christian who interviewed the victim on 21 November 1996. The victim stated that she met with Christian because defendant "had touched her wee-wee" and then described sexual acts defendant committed against her.
    Additionally, although medical evidence is not required to support a conviction of first-degree sexual offense, such evidence was also presented at trial from which a jury could infer sexual acts upon the victim occurred. See State v. Smith, 315 N.C. 76,337 S.E.2d 833 (1985). Dr. Barton testified as an expert witness in the field of child development at trial and stated that it would be highly improbable for a child of the age of four to six to make up sexual acts in her mind. After reviewing records of the victim taken on or about 23 April 1997 at the Medical College of Virginia, Dr. Barton testified that there "was some redness of the vaginal area, and in the anal area . . . that there had been some trauma to the area and there was also thickening of the radial folds of the tissue that surrounds the anus." This evidence indicated to Dr. Barton "[t]hat the child had been sexually abused anally."
    The trial court did not err in denying defendant's motion to dismiss because substantial evidence was presented at trial as to the sexual act committed by defendant upon the victim. Defendant's third assignment of error is overruled.
    No error.
    Judges WALKER and CAMPBELL concur.
    Report per Rule 30(e).

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