State v Givens, (02-876) 07/01/2003

    On 31 July 2000, defendant was indicted on three counts of first degree rape and one count of second degree kidnapping. Subsequently, a jury trial was held, and on 3 August 2001, defendant was convicted of two counts of first degree rape, one count of attempted first degree rape, and one count of second degree kidnapping. The trial court found that defendant had a prior record level III and sentenced him to a term of imprisonment of 180 to 225 months for the consolidated offenses of attempted first degree rape and second degree kidnapping and to a concurrent term of 270 to 333 months for the consolidated offenses of first degree rape.    The victim, Q., was born on 11 May 1989. In the fall of 1999, when the alleged acts occurred, Q. lived with her mother, step- father, three brothers, and defendant, the nephew of Q.'s step- father. In 1999, defendant was 33 years old.
    The State's evidence tended to show the following: On an afternoon in the fall of 1999, defendant was caring for Q. and her brothers while Q.'s mother was at work. After finishing their chores, Q.'s brothers went outside, and she went into the bathroom. When she exited the bathroom, defendant was nearby holding a butcher knife. Defendant grabbed Q. by her neck and told her to remove her pants. Defendant then directed Q. into the living room and to lie on the floor. Once Q. was on the floor with her pants lowered to her ankles, defendant unbuttoned his pants and exposed his penis. Defendant then got on his knees between Q.'s legs and touched his penis to her “private part.” Q.'s brothers knocked on the front door. Defendant ordered Q. back into the bathroom. After her brothers left the house, she came out of the bathroom. Defendant blindfolded Q. with a bandana and taped her mouth closed with duct tape. Defendant removed the tape and tied a plastic grocery bag over Q.'s head. Defendant then lit a marijuana cigarette and blew smoke through a hole he made in the plastic bag. He then closed the hole.
    After Q. began coughing, defendant removed the plastic bag and the bandana. He told her to place her hands on the sofa and to spread her legs. Although Q. complied, she told defendant she would tell her mother. Defendant responded that he would eithertell Q.'s mother that she let him “do it” or he would “kill her [mother].” He then lowered his pants and penetrated Q.'s “private part” with his penis.
    Subsequently, Q.'s brothers knocked on the front door again. Defendant pushed Q. back into the bathroom. While in the bathroom, Q. overheard defendant tell her brothers that he was going to lock them out of the house. After Q.'s brothers left, defendant told Q. to go into a bedroom. Q. lay in the middle of the bed and defendant knelt between her legs. Defendant again penetrated her vagina with his penis. Interrupted by Q.'s mother's return to the home, defendant told Q. to put her pants back on, and he put on his own pants and returned to watching television.
    Q. did not tell her mother what happened because she feared defendant would kill her. Later that day, Q. saw defendant with her mother's gun secured in the waistband of his pants. Soon thereafter, defendant left the house and did not return. The following day, Q's mother filed a police report, dated 2 September 1999, concerning the theft of her gun.
    In the spring of 2000, Q. alleged for the first time that she was raped by defendant. She told her principal, Ms. Cox, who immediately notified the Department of Social Services (DSS) and Q's mother. That same day, Q. told her mother of the same incidents. Also that afternoon, on behalf of DSS, Burt Fitch interviewed Q., who told him of the same incidents. Q. testified that she spoke to Ms. Cox about the incidents because she began having dreams and flashbacks.    After her interview with Mr. Fitch, Q. was taken to the Pediatrics Resource Center at Carolinas Medical Center (PRC). Q. underwent a multi-disciplinary evaluation involving medical examinations and interviews. Ms. Julianna Hamilton, a psychologist, testified that she conducted an interview with Q. at the request of the PRC. She stated that Q. exhibited changes in her behavior, including nightmares and flashbacks concerning defendant, lack of appetite, intense fear, separation anxiety from her mother, general anxiety, and deliberate and delayed disclosure. Ms. Hamilton testified that these behaviors were consistent with those of sexually abused children.
    Also as part of Q.'s multi-disciplinary evaluation, Ms. Shane Smith, a pediatric nurse practitioner, performed a physical examination of Q. She testified that she found scarring, thickening, and discoloration of Q.'s vaginal tissue, which she believed was the result of blunt trauma consistent with the kind of sexual abuse alleged by Q.

    Defendant contends the trial court erred in denying his motion to dismiss. On appeal, defendant complains generally of inconsistencies in Q.'s testimony and embellishments on the part of Q. He argues the trial court erred because the State's case rested entirely upon Q.'s account of the events and her account was “inherently incredible.” Defendant fails to assert the lack of evidence of any specific element of any of the crimes for which he was convicted.     At trial, when testifying, Q. did not remember exactly what she told Ms. Cox other than that she was raped. Also, because Q. told Ms. Cox of the rape at a time when she was involved in a school theft, defendant contends Q. was upset because Ms. Cox was going to tell her mother of the theft. Defendant also highlights inconsistencies in Q.'s allegations. When describing the events to Mr. Fitch, Q. did not mention a blindfold, duct tape, or a plastic bag. Additionally, she did not tell Mr. Fitch that anything happened in a bedroom.
    On a motion to dismiss for insufficient evidence, the trial court must consider “all the evidence . . . in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Pierce, 346 N.C. 471, 491, 488 S.E.2d 576, 588 (1997). The State must produce substantial evidence (1) of each essential element of the crime charged, or of a lesser included offense, and (2) that defendant is the person who committed the offense. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). “Substantial evidence” is that amount of “'relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” State v. Rogers, 109 N.C. App. 491, 504, 428 S.E.2d 220, 228 (quoting State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980)), cert. denied, 334 N.C. 625, 435 S.E.2d 348 (1993) . The trial court is to consider all evidence, “'whether competent or incompetent, which is favorable to the State.'” State v. Blue, 138 N.C. App. 404, 412, 531 S.E.2d 267, 273 (2000)(quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)), aff'd in part and reversed in part on other grounds, 353 N.C. 364, 543 S.E.2d 478 (2001).
    N.C.G.S. § 14-27.2(a)(1) (2001) provides, in pertinent part:
        A person is guilty of rape in the first degree if the person engages in vaginal intercourse . . . [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[.]

Additionally, a person is guilty of attempted rape where he has the specific intent to rape the victim and “'committed an act that goes beyond mere preparation but falls short of the actual commission of the rape.'” State v. Oxendine, 150 N.C. App. 670, 673-74, 564 S.E.2d 561, 564 (2002) (quoting State v. Schultz, 88 N.C. App. 197, 200, 362 S.E.2d 853, 855 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386 (1988)), disc. review denied, 356 N.C. 689, __ S.E.2d __ (2003). Any “'overt act manifesting a sexual purpose or motivation'” is sufficient evidence of intent. Oxendine, 150 N.C. App. at 674, 564 S.E.2d at 564 (quoting State v. Dunston, 90 N.C. App. 622, 625, 369 S.E.2d 636, 638 (1988)).
    N.C.G.S. § 14-39(a)(2) (2001) provides, in pertinent part:
        Any person who shall unlawfully confine, restrain, or remove from one place to another, . . . or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:

        . . . .

(2) [f]acilitating the commission of any felony.
Upon careful review of the evidence, granting the State the benefit of every reasonable inference, we find there was sufficient evidence of each of the offenses charged to submit these issues to the jury. Additionally, defendant's argument that the trial court erred in failing to dismiss the case because of contradictions in Q.'s statements is without merit. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982) (holding any “contradictions and discrepancies” in the evidence are for the jury to resolve and “do not warrant dismissal”).

    Next, defendant contends the trial court erred in denying his motion for a mistrial. He argues he was irreparably harmed by Ms. Hamilton's statement that she believed Q. had been sexually abused and that her statement impermissibly provided credibility to Q.'s allegations. After the trial court instructed Ms. Hamilton, the State's witness and an expert in “child maltreatment,” “not to give a legal opinion[,]” the following exchange took place on direct examination:
        Q.    Ms. Hamilton, . . . do you have an opinion as to whether these things that you have listed for us are consistent with a child who alleged that she has been sexually abused or assaulted?

        [DEFENSE COUNSELOR]: Objection.

        THE COURT: Overruled. The question is do have an opinion.

        A.    Yes.

        Q.    And what is that opinion, please.

        [DEFENSE COUNSELOR]: Objection.
        THE COURT: Overruled.

        A.    That she was sexually abused.

Upon defendant's objection to Ms. Hamilton's answer, defendant was heard outside the presence of the jury and he made a motion for mistrial. Although the State agreed with defendant that Ms. Hamilton's answer was inadmissible, it argued any potential prejudice to defendant could be cured through a curative instruction. The trial court denied defendant's motion for mistrial and instructed the jury as follows:
        [THE COURT] Members of the jury, before you left the courtroom you heard this witness testify that she had an opinion that [Q.] was sexually abused. I instruct you that you are not to consider that opinion or that answer in any respect in this trial and in respect to your deliberations on guilt or innocence. You will treat it as if it never happened.

The trial court also asked the jury members if they could abide by the instruction. Each signified that he or she could.
    In determining the effect of incompetent evidence admitted and subsequently withdrawn, “[t]he decision whether to order a mistrial lies within the sound discretion of the trial court.” Pierce, 346 N.C. at 489, 488 S.E.2d at 586; see also N.C.G.S. § 15A-1061 (2001). “The decision of the trial judge is entitled to great deference since he is in a far better position than an appellate court to determine whether the degree of influence on the jury was irreparable.” State v. Williamson, 333 N.C. 128, 138, 423 S.E.2d 766, 772 (1992). “When the trial court withdraws incompetent evidence and instructs the jury not to consider it, any prejudiceis ordinarily cured.” State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991).
    Here, Ms. Hamilton subsequently testified that Q.'s behaviors were consistent with those of sexually abused children. Furthermore, as juries are presumed to follow a trial court's instructions, State v. Barden, 356 N.C. 316, 381-82, 572 S.E.2d 108, 149 (2002), cert. denied, Barden v. North Carolina, __ U.S. __, __ L. Ed. 2d __ (2003), we find the trial court's instructions were sufficient to cure any potential prejudice. Accordingly, the trial court did not abuse its discretion by denying defendant's motion for mistrial. This assignment of error is overruled.

IV. DEFENDANT'S MOTION FOR INDEPENDENT

PSYCHOLOGICAL EXAMINATION OF Q.

Defendant next contends the trial court erred in denying his motion for an independent psychological examination of Q. He argues the denial of his motion violated his state and federal constitutional rights of due process. However, North Carolina has consistently held that trial courts do not have the authority to compel witnesses to submit to psychiatric or psychological examinations. See State v. Abraham, 338 N.C. 315, 351, 451 S.E.2d 131, 150 (1994); State v. Horn, 337 N.C. 449, 451-52, 446 S.E.2d 52, 53 (1994). This assignment of error is overruled.

    Finally, defendant contends the trial court abused its discretion by failing to disclose exculpatory material to defendant. Defendant issued a subpoena duces tecum for DSS recordsrelating to prior investigations involving Q. The trial court reviewed the requested records in camera, and concluded they were not exculpatory and declined to release them.
    Although the record on appeal states the DSS documents were to be included, the record is devoid of any such documents. This Court has made multiple attempts to obtain the necessary documents and has been unsuccessful. According to the Mecklenburg County Clerk of Court's Office, the DSS documents were not filed as part of the record in this case. Additionally, we note no excuse or justification for the absence of the documents has been proffered by defendant. Clearly, without the documents, we cannot determine if the trial court erred in refusing to disclose them.
    The Rules require that a record on appeal contain “copies of all . . . papers filed and statements . . . which are necessary for an understanding of all errors assigned. . . .” N.C.R. App. P. 9(a)(3)(i). It is an appellant's responsibility to ensure that the record on appeal is complete and in proper form. Fortis Corp. v. Northeast Forest Products, 68 N.C. App. 752, 754, 315 S.E.2d 537, 538-39 (1984). Defendant's violation of the Rules precludes any possibility of effective appellate review on this issue. Miller v. Miller, 92 N.C. App. 351, 354, 374 S.E.2d 467, 469 (1988). This assignment of error is overruled.
    Upon careful review, we find defendant's remaining assignments of error without merit. They are, therefore, overruled.
    No error.
    Judges McGEE and McCULLOUGH concur.
    Report per Rule 30(e).

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