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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. JAMES EDWARD BELL, JR.
Filed: 15 July 2003
1. Evidence_rape victim's statement_corroborative
A detective's testimony about a statutory rape victim's statement was properly admitted
as corroborative evidence. The trial court is in the best position to determine whether the
testimony of the detective corroborated that of the witness.
2. Criminal Law_reinstruction--verdict reached but not returned
The court's re-instruction of the jury on the age element of statutory rape was not
erroneous where the court realized the error in the original instruction, correctly instructed the
jury, and returned the jurors to the jury room after they had announced that they had a verdict but
before the verdict was delivered. Defendant was not subjected to double jeopardy because there
had been no final judgment before the re-instruction, and the court did not attempt to coerce a
3. Rape_sufficiency of evidence_identification of defendant
There was sufficient evidence that defendant was the perpetrator of a rape where the
victim testified that defendant raped her, and had said this to her aunt, her mother, the police, the
paramedics, and the doctors at the emergency room. The existence of contrary evidence is not
4. Rape_penetration_sufficiency of evidence
There was sufficient evidence of penetration in a rape case. Complete penetration need
Appeal by defendant from judgments entered 16 May 2002 by
Judge W. Allen Cobb, Jr. in New Hanover County Superior Court.
Heard in the Court of Appeals 11 June 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Chris Z. Sinha, for the State.
Terry W. Alford for defendant.
James Edward Bell, Jr. (defendant) appeals from the jury's
conviction and his sentence for first-degree statutory rape and
second-degree forcible rape. We find no error.
On 1 September 2001, Pamela Bell lived with her three
children, a four-year old, a two-year old, and an infant, across
the street from B.H.'s family. B.H. was twelve years and eleven
months old and was babysitting Bell's two youngest children. B.H.
took the two-year-old to a store with her across the street for a
snack and met defendant, who introduced himself as Pamela Bell's
uncle. Defendant was forty-two years old at the time.
Around 9:30 p.m., B.H. took the two-year-old back to Pamela
Bell's apartment to baby-sit for the night while the infant stayed
with B.H.'s mother. When she arrived, defendant was sitting on the
porch while Pamela Bell was in the apartment with her boyfriend.
The three adults spent the evening talking, eating, and drinking.
Pamela Bell and her boyfriend smoked marijuana.
B.H. remained in the living room with the two-year-old after
Pamela Bell and her boyfriend went upstairs. Defendant left the
apartment briefly before returning home and entering the living
room where B.H. was located. Defendant began feeling B.H.'s legs
and climbed on top of her. B.H. was unable to push him off.
Defendant placed one hand over B.H.'s mouth and used the other hand
to pull down B.H.'s pants.
B.H. testified that defendant placed his penis between B.H.'s
legs and it hurt. Defendant attempted to insert his penis into
her vagina but that it was on the side. B.H. testified, [i]t
didn't never go in, it was on the outside, but he thought it was in
and he just kept on pushing. Defendant repeatedly told her Let
me put it in, I promise I won't come. B.H. testified that she wasafraid throughout the attack.
B.H. finally pushed defendant off of her, told him she was
going home, and would tell her mother what he had done. B.H.
testified defendant went into the bathroom and began to cry. She
left the apartment and ran home, without her shoes or jacket.
Although B.H.'s mother was not home when she arrived, B.H.
related what had occurred to her aunt and to her sister. B.H.
found blood on her underwear and experienced burning when she
urinated. When her mother returned, B.H.'s sister told their
mother that B.H. had been raped. Their mother called 911 to summon
the police and an ambulance. B.H. then told her mother of the
B.H. also related the events to at least two police officers,
the paramedic, the emergency room doctor and nurses, and to a
social worker at the hospital. Kevin J. Reese, M.D., the emergency
room doctor, treated B.H. and noted that B.H.'s labia minora, the
inner lips, were acutely swollen, tender to the touch and red and
opined that the injuries appeared to be fresh.
Detective Christopher Hunt of the Wilmington Police Department
arrested defendant at Bell's apartment at approximately 2:15 a.m.
and took him to the police station. Detective Hunt interviewed
defendant after defendant waived his Miranda rights. Detective
The first question I asked him, was there
anyone in the apartment except for family
members? ... The first response was that there
was no one in the apartment. I asked him
again and reiterated again, also there was no
one there, but family members. I asked him a
third time. He stated that -- on the third
response, that there was a little girl therebaby-sitting. I asked him if he knew her and
he stated no. He stated that the girl was
fast. So I asked him to explain what fast
meant. He stated it meant grown up or trying
to be an adult. I asked him if he had touched
the girl in any way and he stated no. I then
explained to him that she claimed that she had
been raped by him and he replied again that
she was being fast, that she had wanted him to
kiss her. That is when the Defendant invoked
his right to remain silent.
Defendant moved to dismiss the charges for insufficient evidence of
actual penetration. The trial court denied the motion.
Defendant testified on his own behalf and stated that on 1
September 2001 he was living with Pamela Bell. He left to go to
visit other family across town but returned later that evening.
As I opened the door [to the apartment], I heard noise and I
noticed it was a boy and a girl on the sofa. The young man left
out the back door of the apartment.
Defendant testified that he questioned the girl regarding
whether Pamela Bell knew that she had a young man over at the
apartment. Her response was, 'none of your damn business' and
that 'I'm grown.' As defendant was calling for Pamela Bell, B.H.
left through the front door. Defendant went upstairs to sleep
without telling Pamela Bell or her boyfriend what he had seen. The
next thing he remembered was waking up with guns in my face from
the Wilmington Police.
Defendant renewed and was denied his motions to dismiss. The
trial court instructed on and submitted the charges of (1) first-
degree statutory rape, attempted first-degree statutory rape, and
not guilty of first-degree statutory rape, and (2) second-degree
rape, attempted second-degree rape, and not guilty of second-degreerape. The trial court instructed the jury that for defendant to be
guilty of statutory rape, the State must prove that the victim was
a child of the age of 12 years or less. A child would be 12 years
of age if she had reached her 12th birthday. If she has passed her
12th birthday by even a moment, she would be more than 12 years of
After sending the jury in to deliberate, the jury requested
re-instruction on the elements of the charges and B.H.'s date of
birth. The trial court sent a copy of the jury instructions to the
jury and told them to rely on their memory of the evidence
regarding B.H.'s date of birth.
While the jury was deliberating, the trial court recognized
that the instruction given on statutory rape was in error because
the law required the victim to be under the age of 13. As the
trial court called for the jury to return for re-instruction, the
court was informed that the jury had reached a verdict. The trial
court did not receive or read the verdict and sealed it for
The trial court stated to the jury:
After the jury was sent to the jury room for
your deliberations, the Court has discovered
that as to one of the elements of one of the
offenses, I read you an erroneous statement of
Now, what I am going to do is to read you a
correct statement of the law, then I'm going
to send you back to the jury room and let
y'all talk among yourselves to see if this
correct statement of the law has any bearing
on your decision ...
Ladies and gentlemen, as to that second
element, that was an incorrect statement of
the law and the correct statement of the lawis or should have read:
Second, that at the time of the acts alleged,
the victim was a child under the age of 13
After the new instruction, the jury deliberated for approximately
fourteen minutes before returning a unanimous verdict finding
defendant guilty of first-degree statutory rape and guilty of
second-degree forcible rape. The original sealed jury verdict
found defendant not guilty of statutory rape and guilty of second-
degree forcible rape. Defendant was sentenced to concurrent
sentences of 339 months to 416 months and 120 months to 153 months.
Defendant contends the trial court erred in (1) allowing into
evidence Detective Hunt's testimony of B.H.'s statement to him, (2)
refusing to accept the original verdict, re-instructing on
statutory rape, and accepting the new verdict, and (3) denying
defendant's motion to dismiss for insufficient evidence.
III. Detective Hunt's Testimony
 Defendant contends the trial court erred in allowing
Detective Hunt to testify that on the night of the incident,
[B.H.] did state to me that he did get inside some before she
pushed him off. Over defendant's objection, the trial court
admitted the statement as corroborative evidence. Defendant argues
that the statement is not corroborative because B.H. testified it
didn't never go in.
Corroborative testimony is testimony which tends to
strengthen, confirm, or make more certain the testimony of anotherwitness. State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92
In order to be admissible as corroborative
evidence, a witness's prior consistent
statements merely must tend to add weight or
credibility to the witness's testimony.
Further, it is well established that such
corroborative evidence may contain new or
additional facts when it tends to strengthen
and add credibility to the testimony which it
State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993)
(citations omitted). If the previous statements are generally
consistent with the witness' testimony, slight variations will not
render the statements inadmissible, but such variations . . .
affect [only] the credibility of the statement. State v. Martin,
309 N.C. 465, 476, 308 S.E.2d 277, 284 (1983). A trial court has
'wide latitude in deciding when a prior consistent statement can be
admitted for corroborative, nonhearsay purposes.' State v. Lloyd,
354 N.C. 76, 104, 552 S.E.2d 596, 617 (2001) (quoting State v.
Call, 349 N.C. 382, 410, 508 S.E.2d 496, 513 (1998)).
The State tendered the testimony of Detective Hunt to
corroborate the testimony of B.H. B.H. testified that defendant:
(1) felt her legs; (2) pulled down her pants; (3) got on top of
her; (4) held her down; (5) placed his penis between her legs and
(6) that it hurt; (7) that defendant said let me put it in, I
won't come; (8) that she felt burning between her legs; (9) that
she discovered blood in her underpants although she was not having
her period; and (10) that it hurt for the doctor to examine her.
When this testimony is considered along with the testimony of
Dr. Reese that although there was no indication of completepenetration, there was bruising of the inner lip of the labia
minora near the hymen, B.H.'s testimony could be construed that
defendant did not completely penetrate her beyond the inner lips of
the labia minora. The trial court is in the best position to
determine whether the testimony of Detective Hunt corroborated the
testimony of B.H. See State v. Williams, 355 N.C. 501, 566, 565
S.E.2d 609, 647 (2002). The trial court did not err in admitting
Detective Hunt's testimony as corroborative evidence. This
assignment of error is overruled.
 Defendant contends the trial court erred in entering
judgment on the verdict of guilty of first-degree statutory rape
when the jury had already returned a verdict of not guilty of
statutory rape. Defendant also argues error for the trial court to
send the jury back for further deliberation based on new
instructions. Defendant argues that such action is barred by (1)
the double jeopardy clause of the United States and North Carolina
Constitutions and (2) res judicata. We disagree.
N.C. Gen. Stat. § 15A-1237(b) (2001) requires that [t]he
verdict must be unanimous, and must be returned by the jury in open
court. Here, the first verdict, based on an erroneous instruction
of law, was never read in open court, never shown to the judge or
either counsel, and sealed by the bailiff for appellate review.
The verdict was never returned by the jury in open court as
required by statute.
The trial court determined that new instructions on theelement of the age of the victim had to be given to the jury prior
to any notice of a verdict from the jury. Although defendant
contends res judicata applies, there had been no final judgment on
the merits entered in the case. Defendant was not subjected to
double jeopardy by the trial court not accepting the first verdict
and correctly re-instructing the jury.
Defendant also contends the trial court impermissibly
attempted to coerce the jury into reaching a verdict. We disagree.
The trial court explained to the jury that the previous instruction
was in error, re-instructed on the correct statement of law, and
sent the jury back to see if this correct statement of the law has
any bearing on your decision. The jury had previously questioned
the trial court regarding B.H.'s date of birth and the required
elements of the offense. After fourteen minutes of continued
deliberations, the jury returned a verdict of guilty of first-
degree statutory rape. The trial court did not err in accepting
the verdict of guilty of first-degree statutory rape and entering
judgment. This assignment of error is overruled.
V. Motions to dismiss
Defendant contends the trial court erred in denying
defendant's motions to dismiss for insufficient evidence.
Defendant makes two arguments: (1) insufficient evidence of any
crime by defendant and (2) insufficient evidence of penetration.
A. Standard of Review
A motion to dismiss should be denied if substantial evidenceexists of each essential element of the offense charged and of
defendant being the perpetrator of the offense. State v.
Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982).
Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. State v.
Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citations
omitted). In ruling on a motion to dismiss, the trial court must
view all of the evidence in the light most favorable to the State,
giving the State the benefit of every reasonable inference to be
drawn from the evidence. State v. McAllister, 138 N.C. App. 252,
259, 530 S.E.2d 859, 864, appeal dismissed, 352 N.C. 681, 545
S.E.2d 724 (2000) (citation omitted). If there is more than a
scintilla of competent evidence to support the allegations in the
warrant or indictment, it is the court's duty to submit the case to
the jury. State v. Horner, 248 N.C. 342, 344-45, 103 S.E.2d 694,
B. Defendant as Perpetrator
 Defendant presented evidence that he was not the
perpetrator of the crime, but that he walked in on B.H. with
another male. The existence of evidence contrary to the State's
evidence is not controlling in ruling on a motion to dismiss. The
crucial question is whether the State presented substantial
evidence of defendant as the perpetrator.
B.H. testified that defendant raped her. She repeated this
story to her aunt, her mother, the police, the paramedics and the
doctors at the emergency room. This assignment of error isoverruled.
 For defendant to be guilty of rape, complete penetration
need not occur. [T]he slightest penetration of the sexual organ
of the female by the sexual organ of the male is sufficient.
State v. Johnson, 317 N.C. 417, 435, 347 S.E.2d 7, 18 (1986),
superseded by statute on other grounds in, State v. Moore, 335 N.C.
567, 440 S.E.2d 797 (1994) (citing State v. Brown, 312 N.C. 237,
244-45, 321 S.E.2d 856, 861 (1984); State v. Robinson, 310 N.C.
530, 533-34, 313 S.E.2d 571, 574 (1984); State v. Stanley, 310 N.C.
353, 366, 312 S.E.2d 482, 490 (1984)). B.H. testified that after
defendant's penis was placed between her legs, he continued pushing
and it hurt. She experienced pain, burning, and found blood in
her underwear when she was not having her period. Dr. Reese
testified that although there was no indication of complete
penetration, there was bruising of the inner lip of the labia
minora near the hymen. Sufficient evidence of the penetration of
the sexual organ of the female by the sexual organ of the male
was shown. Id.
Further, the trial court submitted the issue of attempt in
both charges. The jury found that actual penetration occurred.
This assignment of error is overruled.
The trial court did not err in allowing Detective Hunt to
testify regarding B.H.'s statements or in re-instructing the jury
with the correct statement of law and entering judgment based onthe final verdict. The trial court properly denied defendant's
motions to dismiss for insufficient evidence. Defendant's
assignments of error are overruled.
Judges MARTIN and LEVINSON concur.
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