STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 02CRS51720
ROOSEVELT ERICK LINCOLN
Attorney General Roy Cooper, by Assistant Attorney General Sue
Y. Little, for the State.
William D. Auman for defendant-appellant.
LEVINSON, Judge.
Defendant Roosevelt Erick Lincoln was charged with two counts
of first degree rape of a child and taking indecent liberties with
a child. The State's evidence tended to show that on the morning
of 14 February 2002, Shalece Lincoln returned to her residence she
shared with her husband (defendant), son, and two daughters to find
her seven-year-old daughter (the minor victim) partially undressed
in defendant's bedroom. The minor victim's shorts and panties,
which were “inside out,” were on the floor of the bedroom. Lincoln
observed defendant standing in the hallway with an erection. In
response, Lincoln called the police. She subsequently heard
defendant tell a family acquaintance, who had brought her back home that morning, that he had “f--ked up.”
When Officer Benjamin Jones of the Winston Salem Police
Department arrived at the residence, he spoke with defendant.
Defendant told the officer that he had been in bed with his wife
earlier in the morning and that “he wanted to get him some [but]
she wouldn't give it up.” Defendant also told the officer that
when he observed the minor victim without clothing, he became
aroused. Defendant admitted that he told the minor victim to come
into his bedroom but not to tell anyone. Detective J. Mark
Griffin, a juvenile investigator with the Winston Salem Police
Department, interviewed the minor victim as part of his
investigation into the 14 February 2002 incident. The victim told
the detective that defendant took her into his bedroom on the
morning in question, pulled down her shorts and panties, and after
spitting on his penis, attempted to insert it into her vagina. The
minor victim testified that “it did go in and it hurt, but he only
kept it there for a minute because he heard a noise.” At trial,
the minor victim testified in conformity with her statement to
Detective Griffin. She further testified that she saw some “white
stuff” come out of her father's “wee wee.” Medical examinations of
the minor child's vagina and anus failed to disclose any
abnormalities. The examining physician testified, however, that a
child could be sexually abused and have a normal examination.
Defendant testified at trial that he did not do anything to
his daughter on the morning of 14 February 2002. He denied knowing
why the minor victim was in his bedroom or having an erection onthe morning of the incident. Defendant further denied telling
Officer Jones that he became aroused upon seeing the minor victim
or that he had taken her into his bedroom. Defendant did, however,
admit to telling the officer that he tried to have sex with his
wife that morning but she refused.
The jury acquitted defendant of one of the rape charges, but
found him guilty of the other rape charge and the indecent
liberties charge. The trial court sentenced defendant to a
consolidated term of 220-273 months imprisonment. Defendant
appeals.
By his first assignment of error on appeal, defendant argues
that the trial court erred in allowing the State to introduce
evidence of his prior sexual misconduct with the minor victim, in
violation of N.C.G.S. § 8C-1, Rule 404(b) (2001). We note,
however, that defendant failed to object to the admission of the
evidence at trial on this basis. The record shows that defendant's
objections were based solely on hearsay at trial. Hence,
defendant's argument is not properly before the Court. This Court
has previously stated, “[W]here a theory argued on appeal was not
raised before the trial court, 'the law does not permit parties to
swap horses between courts in order to get a better mount.'” State
v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5, 1996 (quoting Weil
v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). Moreover,
while defendant argues that the evidence should have been excluded
on the court's own motion (based on Rule 404(b)) and that failure
to do so constitutes plain error, defendant has failed to allegeplain error in his assignment of error as required by N.C.R. App.
P. 10(c)(4). See State v. King, 342 N.C. 357, 464 S.E.2d 288
(1995) (requiring that plain error be specifically alleged in an
appellant's assignments of error to present an issue for plain
error review). We summarily overrule this assignment of error.
By his second assignment of error, defendant argues that the
trial court erred in allowing Officer Jones to testify regarding a
statement made on the morning of 14 February 2002. Specifically,
defendant contends that the testimony should have been excluded
since it was proffered by the State prior to his testifying and was
therefore hearsay at that time. Defendant also contends that the
testimony should have been excluded as he was in the “functional
equivalent of custody” and was not advised of his Miranda rights.
We disagree.
N.C.G.S. § 8C-1, Rule 801(d)(A) (2001) provides, “A statement
is admissible as an exception to the hearsay rule if it is offered
against a party and it is his own statement, in either his
individual or a representative capacity[.]” In State v. Nichols,
321 N.C. 616, 365 S.E.2d 561 (1988), our Supreme Court held that a
defendant's statement(s) may constitute party admissions and are
admissible under Rule 801(d)(A). Id. at 631, 365 S.E.2d at 570.
In the instant case, the testimony of Officer Jones was that
defendant made an incriminating statement regarding his interaction
with the minor victim on 14 February 2002. In accordance with
Nichols, we conclude that this statement was properly considered a
party admission and admitted into evidence by the trial court. Defendant references no authority for his position to the contrary,
and we find none. Moreover, defendant's contention that the
testimony of Officer Jones was inadmissible because he was not
advised of his Miranda rights must fail.
It is well settled that Miranda warnings are only required
when a person is being subjected to custodial interrogation. State
v. Patterson, 146 N.C. App. 113, 121, 552 S.E.2d 246, 253, disc.
review denied, 354 N.C. 578, 559 S.E.2d 549 (2001) (citations
omitted). “Custodial interrogation” was defined by the United
States Supreme Court in Miranda as “questioning initiated by law
enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant
way.” Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706
(1966). In State v. Gaines, 345 N.C. 647, 662, 483 S.E.2d 396,
405, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997), the
North Carolina Supreme Court summarized the law regarding the
application of Miranda in custodial interrogations and stated that
“in determining whether a suspect [is] in custody, an appellate
court must examine all the circumstances surrounding the
interrogation; but the definitive inquiry is whether there was a
formal arrest or a restraint on freedom of movement of the degree
associated with a formal arrest.” This “definitive inquiry” is
conducted under a subjective, reasonable man standard. State v.
Buchanan, 353 N.C. 332, 341-42, 543 S.E.2d 823, 829 (2001).
The trial court in this case conducted a voir dire hearing
prior to the introduction of Officer Jones' testimony and basedupon the evidence presented made the following findings and
conclusions:
The Court will find for purposes of the
record that at that time the officer was
voluntarily allowed into the house; that at
that time the officer or officers showed no
force towards the defendant; he was not placed
in handcuffs, no weapons apparently were
drawn. In fact, the officer was positioned in
the residence away from the door and, in fact,
the defendant was-- was closer to the door
than the officer. The defendant was never
told he was under arrest. The defendant was,
in fact, in his own home and the defendant
actually left after speaking to the officer.
So, the Court will find that he was not
in custody for purposes of the interrogation,
and the Court will find that these questions
do not violate the defendant's rights in any
way.
Defendant did not object to the trial court's findings, and indeed,
the evidence of record supports them. Further, as defendant was
not “in custody” within the meaning of Miranda, he was not entitled
to any warnings thereunder. Accordingly, defendant's contention
that he was entitled to such warnings fails. Defendant's second
assignment of error is overruled.
By his third and final assignment of error, defendant argues
that the trial court erred in denying his motion to dismiss all of
the charges against him because there was insufficient evidence to
show that he committed the offenses charged. Again, we disagree.
A motion to dismiss for insufficiency of the evidence is
properly denied if viewing the evidence in the light most favorable
to the State and giving the State every reasonable intendment
arising therefrom, there is substantial evidence that the defendantcommitted the offense charged. State v. Jarrett, 137 N.C. App.
256, 262, 527 S.E.2d 693, 697 (2000). It is well settled that
“[i]f 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, 696 (1958); see also State v.
Williams, 136 N.C. App. 218, 220, 523 S.E.2d 428, 430 (1999)
(defining substantial evidence as being “more than a scintilla”).
“Contradictions and discrepancies [in the evidence] are for the
jury to resolve and do not warrant [dismissal].” State v. Pallas,
144 N.C. App. 277, 286, 548 S.E.2d 773, 780 (2001).
Defendant was convicted of first degree rape of a child and
taking indecent liberties with a child. To obtain a conviction for
first degree rape of a child, the State must show that the
defendant is at least 12 years old and at least four years older
than the victim, and that he engaged in vaginal intercourse with
the victim, who is less than 13 years old. N.C.G.S. § 14-27.2
(a)(1) (2001). “The slightest penetration of the female sex organ
by the male sex organ is sufficient to constitute vaginal
intercourse within the meaning of the statute.” State v.
McNicholas, 322 N.C. 548, 556, 369 S.E.2d 569, 574 (1988). Under
North Carolina law,
a) A person is guilty of taking indecent
liberties with children if, being 16 years of
age or more and at least five years older than
the child in question, he either:
(1) Willfully takes or attempts to take
any immoral, improper, or indecent
liberties with any child of either sexunder the age of 16 years for the purpose
of arousing or gratifying sexual desire;
or
(2) Willfully commits or attempts to
commit any lewd or lascivious act upon or
with the body or any part or member of
the body of any child of either sex under
the age of 16 years.
N.C.G.S. § 14-202.1 (a)(1) and (2) (2001). The crime of indecent
liberties has been described by our Supreme Court as a “single
offense which may be proved by evidence of the commission of any
one of a number of acts.” State v. Hartness, 326 N.C. 561, 567,
391 S.E.2d 177, 180 (1990).
In the case sub judice, the evidence in the light most
favorable to the State tends to show that defendant, who was
twenty-seven at the time of the incident, pulled down the shorts
and panties of the minor victim, who was seven years old at the
time in question, and engaged in vaginal intercourse with the minor
victim, so as to support a conviction of first degree rape of a
child and taking indecent liberties with a child. The testimony of
the minor victim alone was sufficient to submit these matters to
the jury. See State v. Bailey, 36 N.C. App. 728, 245 S.E.2d 97
(1978) (acknowledging that the unsupported testimony of the victim
in a prosecution for rape may be sufficient to submit a matter of
a defendant's guilt to the jury); see also State v. Quarg, 334 N.C.
92, 100, 431 S.E.2d 1, 5 (1993) (“The uncorroborated testimony of
the victim is sufficient to convict [a defendant for indecent
liberties with a child] under N.C.G.S. § 14-202.1 if the testimony
establishes all of the elements of the offense.”), and anycontradictions and discrepancies in the evidence of record were
issues for the jury to resolve. Accordingly, we conclude that the
trial court properly denied defendant's motion to dismiss. This
assignment of error is also overruled.
Having overruled all of defendant's assignments of error, we
hold that defendant received a fair trial, free from prejudicial
error.
No error.
Chief Judge EAGLES and Judge BRYANT concur.
Report per Rule 30(e).
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