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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