An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-288


Filed: 18 November 2003


         v.                        Forsyth County
                                Nos. 02CRS51720

    Appeal by defendant from judgment entered 20 November 2002 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 10 November 2003.

    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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