STATE OF NORTH CAROLINA
v
.
RANDY ADAM HOWARD
Attorney General Roy Cooper, by Special Deputy Attorney
General Karen E. Long, for the State.
Osborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, for
defendant-appellant.
CALABRIA, Judge.
Randy Adam Howard (“defendant”) appeals from judgment entered
in Davie County Superior Court upon a jury verdict finding him
guilty of statutory rape.
According to the State's evidence, Connie Collet (“Ms.
Collet”) invited defendant, aged twenty-eight, to stay at her home
since she was friends with his mother. During his visit, he helped
Ms. Collet with her handicapped daughters. Ms. Collet's younger
daughter, Naomi Collet (“the victim”), who was fifteen years of age
and had been diagnosed with mild mental retardation, engaged in
sexual intercourse with defendant in late November and December
1998.
In January of 1999, Detective John Stephens (“Detective
Stephens”) of the Davie County Sheriff's Department investigated a
report from Social Services concerning sexual activity between
defendant and the victim. As a result of that investigation and
fears concerning the loss of her children stemming from her
knowledge of their sexual relationship, Ms. Collet agreed to allow
defendant to marry the victim. On 13 January 1999, defendant and
the victim were married in South Carolina. When the married couple
returned later that same day, Ms. Collet went to defendant's
residence, picked up the victim, and returned the victim to her
residence. The victim subsequently returned to defendant's
residence for one week before she expressed her desire to return to
Ms. Collet's home.
On 1 February 1999, after an appointment with a nurse at the
health department, the victim was found to be five weeks pregnant.
After defendant and the victim proceeded with a divorce, Detective
Stephens reinstated his investigation of defendant for statutory
rape. On 13 March 2000, defendant was indicted for statutory rape
in violation of N.C. Gen. Stat. § 14-27.7A.
This matter came to trial in Davie County Superior Court on 14
January 2002, the Honorable Jerry Cash Martin, presiding.
Defendant moved to continue the case, asserting that, without
additional time to prepare for trial, he would be denied effective
assistance of counsel. The trial court denied defendant's motion.
The trial court further denied defendant's motions to dismiss the
charge at the close of the State's evidence and at the close oftrial. After defendant's mother testified on his behalf concerning
the nature of the relationship between defendant and the victim,
the case went to the jury, which returned a verdict of guilty of
statutory rape. The court entered judgment on the conviction,
sentencing defendant to 202 to 252 months. Defendant appeals.
Defendant asserts the trial court erred in (I) denying
defendant's motion to continue the trial and (II) failing to
dismiss the charge. Defendant also asserts (III) N.C. Gen. Stat.
§ 14-27.7A is unconstitutional. Finally, defendant asserts the
trial court committed plain error by (IV) allowing testimony by a
nurse not qualified as an expert and (V) allowing testimony
concerning interactions between Detective Stephens and defendant.
I. Motion to Continue
Defendant asserts he was denied effective assistance of
counsel when the trial court denied his motion to continue because
preparation time for trial was inadequate.
A motion for a continuance is ordinarily
addressed to the sound discretion of the trial
court, and the ruling will not be disturbed
absent a showing of abuse of discretion. When
a motion to continue raises a constitutional
issue, however, the trial court's ruling
thereon involves a question of law that is
fully reviewable on appeal by examination of
the particular circumstances presented in the
record. Even when the motion raises a
constitutional issue, denial of the motion is
grounds for a new trial only upon a showing
that “the denial was erroneous and also that
[the defendant] was prejudiced as a result of
the error.” [State v.] Branch, 306 N.C.
[101,] 104, 291 S.E.2d [653,] 656 [(1982)].
State v. Blakeney, 352 N.C. 287, 301-02, 531 S.E.2d 799, 811 (2000)
(citations omitted). Where the constitutional issue assertedconcerns effective assistance of counsel, we review the question of
law fully to determine whether defendant has shown “he did not have
ample time to confer with counsel and to investigate, prepare and
present his defense.” State v. Harris, 290 N.C. 681, 687, 228
S.E.2d 437, 440 (1976).
In the present case, defendant's counsel requested a
continuance based on a lack of communication and the unavailability
of the defendant until “a few days” before trial. The facts of the
present case, however, do not establish any constitutional
violation. Defendant's trial counsel was appointed on 17 July
2000, approximately one and a half years prior to the date of
trial. Defendant was available to communicate with counsel during
the process of discovery and waiver of arraignment between July and
November of 2000. There is no evidence defendant was unavailable
until he fled the country in or around January 2001. Defendant was
taken into custody in Australia and returned to the United States.
Though defendant asserts his whereabouts were unknown to his
counsel until October 2001, defendant has shown no evidence of
attempting to contact his counsel, either personally or through his
family, at any time until “a few days” before trial, when counsel
for defendant was apprised of the possibility of a witness in
Oklahoma. Additionally, defendant failed to show his incarceration
rendered him inaccessible to counsel or incapable of establishing
communication with him. Accordingly, defendant failed to establish
he was deprived of any constitutional right by a lack of areasonable opportunity to consult with his attorney in preparation
for trial.
II. Motion to Dismiss
Defendant asserts the trial court erred in denying his motion
to dismiss because the evidence was insufficient to support the
conviction of statutory rape. Defendant contends the State failed
to establish that he engaged in the prohibited sexual activity and
that he was at least six years older than the victim at the time of
the alleged acts. “A motion to dismiss on the ground of
sufficiency of the evidence raises . . . the issue 'whether there
is substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the
offense.'” State v. Barden, 356 N.C. 316, 351, 572 S.E.2d 108, 131
(2002) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920,
925 (1996)). “The existence of substantial evidence is a question
of law for the trial court, which must determine whether there is
relevant evidence that a reasonable mind might accept as adequate
to support a conclusion.” Id. (citing State v. Vause, 328 N.C.
231, 236, 400 S.E.2d 57, 61 (1991)). “The court must consider the
evidence in the light most favorable to the State and give the
State the benefit of every reasonable inference from that
evidence.” State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721
(2001). Evidence may be direct, circumstantial, or both. State v.
Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
Absent marriage, guilt under N.C. Gen. Stat. § 14-27.7A is
established where the State proves a defendant “engages in vaginalintercourse or a sexual act with another person who is 13, 14, or
15 years old and the defendant is at least six years older than the
person.” N.C. Gen. Stat. § 14-27.7A (2001). Defendant contends
the State failed to prove vaginal intercourse between defendant and
the victim and failed to prove defendant was more than six years
older than the victim. We disagree.
The evidence produced at trial was sufficient to establish the
statutory elements. The victim testified as follows:
Q. Tell the ladies and gentlemen of the jury
what type of sexual act occurred.
A. Just sex.
Q. Just sex. Sexual intercourse?
A. Yes.
Throughout the trial, each of the State's witnesses referred to the
sexual activity between the victim and defendant as sex,
intercourse, or sexual intercourse. Moreover, the victim became
pregnant late in December, according to two sonograms performed by
the health department. Considering the evidence in the light most
favorable to the State and giving it the benefit of all inferences
drawn therefrom, there was relevant evidence that a reasonable mind
might accept as adequate to support the conclusion that defendant
and the victim engaged in vaginal intercourse.
Regarding proof of the age difference between defendant and
the victim, the victim testified correctly that defendant's birth
date was 10 July 1970 and her own birth date was 2 May 1983.
Moreover, the State introduced the marriage certificate intoevidence, which set forth the ages of defendant and the victim at
twenty-eight years old and fifteen years old, respectively. We
hold the State presented substantial evidence of the age difference
between the victim and defendant. Accordingly, the statutory
elements of N.C. Gen. Stat. § 14-27.7A were met, and this
assignment of error is overruled.
III. Constitutionality of N.C. Gen. Stat. § 14-27.7A
Defendant next asserts N.C. Gen. Stat. § 14-27.7A violates the
guarantees against cruel and unusual punishment, equal protection
under the law, and due process of law. Defendant first argues that
the criminal sentence imposed is unconstitutionally
disproportionate to the crime for which defendant was convicted.
We note the sentence imposed is within the limits fixed by the
structured sentencing laws found in N.C. Gen. Stat. § 15A-1340.17
(2001). Moreover, this Court has already considered the issue of
disproportionate punishment under N.C. Gen. Stat. § 14-27.7A and
found no constitutional infirmity. State v. Anthony, 133 N.C. App.
573, 516 S.E.2d 195 (1999).
The General Assembly established a statutory
scheme to protect young females from older
males. Section 14-27.7A defines two offenses
in subsections (a) and (b), with a greater
penalty corresponding to a greater age
differential between the parties. Where the
female is even younger, section 14-27.2
provides a penalty yet more severe than that
found in section 14-27.7A. This statutory
scheme, calibrating sentence severity to the
gravity of the offense, reflects a rational
legislative policy and is not disproportionate
to the crime.
Id., 133 N.C. App. at 578, 516 S.E.2d at 198 (citation omitted). Defendant argues N.C. Gen. Stat. § 14-27.7A violates his equal
protection rights by discriminating on the grounds of age and
marital status. “Where a statute is challenged on the basis that
it denies a person equal protection under the law, the level of
judicial scrutiny depends on whether the alleged denial involves a
fundamental right or a suspect class.” State v. McCleary, 65 N.C.
App. 174, 185, 308 S.E.2d 883, 891 (1983). With respect to
defendant's argument that the statute impermissibly delineates
between classes of individuals based on their age, age is not a
suspect class; therefore,
the test is whether the difference in
treatment made by the law has a reasonable
basis in relation to the purpose and subject
matter of the legislation. A statute is only
void as denying equal protection when
similarly situated persons are subject to
different restrictions or are given different
privileges under the same conditions.
Id., 65 N.C. App. at 186, 308 S.E.2d at 891-92.
The question is whether the State has a reasonable basis to
punish more severely individuals who prey sexually on children aged
13, 14, or 15 as the age differential between the accused and the
victim increases. Our Supreme Court, in considering N.C. Gen.
Stat. § 14-27.7A, stated that its structure reflects “a legitimate
legislative decision that sexual intercourse or sexual acts with
children deserve more severe punishment if the victim is younger or
based on a greater difference in age between the victim and the
older defendant.” State v. Anthony, 351 N.C. 611, 617, 528 S.E.2d
321, 324 (2000). Accordingly, defendant's argument is without
merit. With regards to marital status, defendant argues N.C. Gen.
Stat. § 14-27.7A creates an arbitrary distinction between married
and unmarried persons. We disagree. The United States Supreme
Court has indicated that sexual relations between married
individuals is entitled, through the right of privacy, to
heightened protection from governmental intrusion. Griswold v.
Connecticut, 381 U.S. 479, 485-86, 14 L. Ed. 2d 510, 516 (1965)
(noting the idea of allowing the “police to search the sacred
precincts of marital bedrooms for telltale signs of the use of
contraceptives [to be] repulsive to the notions of privacy
surrounding the marriage relationship”). In excepting married
individuals from criminal liability under N.C. Gen. Stat. § 14-
27.7A, our Legislature chose to respect this right of privacy by
acknowledging that marriage closes the bedroom door. Moreover, it
would be incongruous for our statutory scheme to allow an
individual 14-16 years of age to marry another under certain
circumstances without reference to the age difference between
them,
(See footnote 1)
yet criminalize the consummation of that marriage under N.C.
Gen. Stat. § 14_27.7A. Because the decision to distinguish sexual
acts between married individuals from sexual acts between unmarried
individuals is rational and not arbitrary, defendant's argument
must fail.
Defendant argues N.C. Gen. Stat. § 14-27.7A violates his due
process rights because potential or actual offenders have
insufficient notice of the severity of the sanctions incurred forthe offense. In actuality, the terms of N.C. Gen. Stat. § 14-27.7A
clearly set out that the offense is classified as a class B1 felony
as well as the elements which constitute the offense. Accordingly,
defendant's argument is more correctly one of ignorance of the law.
This Court has previously considered this defense: “it is
axiomatic that 'ignorance or mistake of law will not excuse an act
in violation of the criminal laws.' Therefore, defendant's claim
is legally without basis (as well as being utterly preposterous)
because ignorance of the law is not a valid defense.” State v.
Rogers, 68 N.C. App. 358, 385, 315 S.E.2d 492, 510-11 (quoting 21
Am. Jur. 2d, Criminal Law § 142, p. 278 (1981)). Accordingly, this
assignment of error is overruled.
IV. Testimony of LuAnn Angell
During the presentation of the State's evidence, the trial
court allowed LuAnn Angell (“Nurse Angell”), a registered nurse, to
testify concerning when the victim conceived the child. Because
defendant failed to object to this testimony at trial, defendant
asserts the trial court committed plain error because Nurse Angell
was unqualified to give such testimony because she lacked the
requisite expertise and because she was never qualified as an
expert.
Plain error is “'fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done . . . grave error which amounts to [or results in] a
denial of a fundamental right . . . a miscarriage of justice or .
. . the denial to appellant of a fair trial[.]'” State v. Odom,307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United
States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)) (emphasis
in original). “The plain error rule applies only in truly
exceptional cases. Before deciding that an error by the trial
court amounts to 'plain error,' the appellate court must be
convinced that absent the error the jury probably would have
reached a different verdict.” State v. Walker, 316 N.C. 33, 39,
340 S.E.2d 80, 83 (1986). Defendant asserts a different result
would have been reached absent Nurse Angell's testimony.
The record reveals Nurse Angell testified that (1) a pregnancy
test was administered and came out positive, (2) the date of
conception, using information obtained from the victim and two
sonograms, was in late December, and (3) the date of birth was 1
September 1999. That the victim became pregnant is undisputed and
clear from the record. The testimony concerning the date of
conception, if anything, favored defendant. A birth date of 1
September would, ordinarily, indicate a conception date of early
December; the testimony of Nurse Angell indicated the date of
conception to be in late December, closer to when defendant and the
victim were married and, therefore, beyond the criminal
consequences of N.C. Gen. Stat. § 14-27.7A. Regardless, it is
well-known that a typical pregnancy has a duration of nine months.
Finally, the date of birth is uncontroverted. Accordingly, even
absent Nurse Angell's testimony, nothing in the record supports the
contention that a different result would have been reached. This
assignment of error is overruled.V. Testimony of Detective Stephens
Finally, defendant asserts the trial court committed plain
error by allowing Detective Stephens to testify regarding
defendant's refusal to cooperate with interviews and appointments
with officers. Defendant argues this testimony allowed the State
to elicit harmful implications from defendant's refusal of
opportunities for consensual interviews in violation of his right
to remain silent. U.S. Const. amend. V; N.C. Const. art. I, § 23.
In fact, while Detective Stephens did indicate defendant did not
attend an appointed in-person interview, his testimony made clear
defendant initiated phone calls to Detective Stephens on two
separate occasions. The remainder of Detective Stephens' testimony
merely explained the method of communication between defendant and
himself as well as the information conveyed by defendant to
Detective Stephens in the conversations initiated by defendant
before he was taken into custody.
Assuming arguendo the right to remain silent is applicable in
this context, it is clear from the record that defendant, by
initiating the phone calls to Detective Stephens about which he
testified, never invoked this right. Moreover, under plain error
review, “the appellate court must be convinced that absent the
error the jury probably would have reached a different verdict[]”
in order for defendant to prevail. Walker, 316 N.C. at 39, 340
S.E.2d at 83. We find no error, much less plain error, in the
trial court allowing the testimony of Detective Stephens.
The trial of defendant was free of reversible error. No error.
Judges McCULLOUGH and TYSON concur.
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