An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1688


Filed: 21 October 2003


         v.                        Alamance County
                                No. 01 CRS 57549

    Appeal by defendant from judgment entered 8 August 2002 by Judge J. B. Allen, Jr. in Superior Court in Alamance County. Heard in the Court of Appeals 6 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crumpler, for the State.

    Megerian & Wells, by Franklin E. Wells, Jr., for defendant- appellant.

    HUDSON, Judge.    
    On 26 August 2001, Robin Smith (Smith) decided to walk to a neighborhood store to buy some cigarettes and gum. She was also carrying a note for a man named Jamie whom she had previously met at the store and hoped to see again. After Smith left the store, the defendant, Larry Donnell Williamson, walked up beside her and started talking to her. Smith stated that defendant “smelled like alcohol bad”, looked “kind of wild eyed” and was “talking crazy.” Smith kept walking, and defendant walked with her. Defendant asked if she was dating anybody, and she told him no, but she was going to leave someone a note and then go back home. As they approached the apartment where Jamie lived, they saw a group of men, sodefendant suggested they walk around the block, and when they returned the men would be gone.
    The two kept walking, and defendant briefly left Smith to drop off beer at a friend's apartment. When defendant returned, he started talking about sex, asking Smith if she had “ever been with a colored man.” Soon they came to a small walking track. Defendant told her he liked white women because “white women like to give blow jobs.” When Smith told defendant she did not want to do that, defendant grabbed Smith, pulled a knife and told her he would slice her face up if she did not keep walking with him. Defendant then took Smith off the road to a wooded area, made her take her clothes off, laid the knife next to her head and had sex with her. Afterwards, Smith ran to a friend's house. They called the police, who came and took Smith to the hospital.
    Several days later, defendant voluntarily went to the police station to talk to the police about their investigation into Smith's rape. The officers read defendant his Miranda rights, then interviewed him. In his statement, defendant admitted meeting Smith and having sex with her in the woods by the track, but stated that it was consensual. However, defendant eventually stated that “he got impatient, forced himself on her and 'took the p---y.'”
    Prior to trial, defendant moved to suppress the statement he made to police, arguing that he had requested counsel and indicated that he did not want to answer any other questions without an attorney present. The trial court denied the motion, finding as fact that defendant did not request an attorney during theinterview. The jury convicted defendant of second degree rape and sentenced him to a term of 168 to 211 months imprisonment. Defendant appeals.
    We first consider whether the trial court erred in denying defendant's motion to suppress. Defendant concedes that he waived counsel before being questioned, but contends that when questioning became hostile, he asked for an attorney. Defendant argues that once he asked for an attorney, all questioning should have ceased. Accordingly, defendant argues that his statement to the police should have been suppressed. After careful review of the record, briefs and contentions of the parties, we affirm the court's ruling on the motion.
    “The scope of review on appeal of the denial of a defendant's motion to suppress is strictly limited to determining whether the trial court's findings of fact are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court's conclusions of law.” State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893 (1993). Here, Detective Pete Acosta of the Graham Police Department testified that “at no time” did defendant ask to talk to counsel. The record thus contains substantial competent evidence to support the trial court's finding that defendant never invoked his Fifth Amendment rights before or during the interview with police. The findings are binding on this Court. Accordingly, we conclude that defendant's statement was properly admitted as evidence at trial.     Defendant next argues that the trial court erred by failing to intervene ex mero motu when the prosecutor improperly commented on his failure to testify at trial. During closing arguments, the prosecutor characterized the case as being “her words against his. Who was under oath when they made their statement?” Defendant contends that by posing this question, the prosecutor called attention to the defendant's failure to testify, implicitly criticizing him for asserting his right to remain silent. Defendant argues that the trial court's failure to intervene amounted to an abuse of discretion. We find no error.
    Our Supreme Court has stated:
        A defendant has the right to refuse to testify under the Fifth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment, and under Article I, Section 23 of the North Carolina Constitution. A defendant's exercise of this right may not be used against him, and any reference by the State to a defendant's failure to testify violates that defendant's constitutional rights. A statement that may be interpreted as commenting on a defendant's decision not to testify is improper if the jury would naturally and necessarily understand the statement to be a comment on the failure of the accused to testify. However, a prosecutor's reference to a defendant's failure to testify does not mandate an automatic reversal but requires the court to determine whether the error is harmless beyond a reasonable doubt.

State v. Mitchell, 353 N.C. 309, 326, 543 S.E.2d 830, 840-41 (internal citations omitted), cert. denied, 534 U.S. 1000, 151 L. Ed. 2d 389 (2001). Assuming arguendo that the prosecutor's comment in the present case was error, we believe that the trial court's failure to intervene ex mero motu was harmless beyond a reasonabledoubt. There was no dispute that defendant was the perpetrator of the offense, and he admitted to having sex with the victim. The only serious question was whether the sex was consensual. However, even defendant admitted to police during questioning that he got impatient with Smith and forced himself on her. Accordingly, in light of defendant's incriminating statement, we hold that the prosecutor's indirect comment on defendant's failure to testify was harmless beyond a reasonable doubt.
    No error.
    Judges MCGEE and GEER concur.
    Report per Rule 30(e).

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