The issues presented on appeal are whether (I) there was
sufficient evidence presented at trial to convict defendant of
the charges; (II) the court committed plain error in its
instructions to the jury; and (III) the court committed plain
error in sentencing defendant.
[1] Defendant first argues that there was insufficient
evidence that he committed the offenses to warrant a conviction.
Defendant contends that because the only direct evidence ofsexual activity is C.S.'s uncorroborated testimony, the evidence
raises only a suspicion or conjecture that an offense was
committed, and therefore his motion to dismiss should have been
granted. We disagree.
In ruling on a motion to dismiss based on insufficiency of
the evidence, the trial court must determine whether there is
substantial evidence of each element of the offense charged.
See
State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984).
“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). When
reviewing the evidence, the trial court must consider even
incompetent evidence in the light most favorable to the
prosecution, granting the State the benefit of every reasonable
inference.
See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d
585, 587 (1984). In
State v. Malloy, our Supreme Court held that
when the evidence is sufficient only to raise a suspicion or
conjecture as to the identity of the defendant as the
perpetrator, the motion to dismiss must be allowed. 309 N.C.
176, 179, 305 S.E.2d 718, 720 (1983). However, even
circumstantial evidence has been considered sufficient to elevate
a claim above mere suspicion or conjecture and thus to overcome a
motion to dismiss.
See State v. Wilson, 354 N.C. 493, 521-22,
556 S.E.2d 272, 290-91 (2001)
overruled on other grounds by State
v. Millsaps, 356 N.C. 556, 572 S.E.2d 767 (2002). Defendant was charged with taking indecent liberties with a
child, statutory sex offense, and sexual activity by a custodian.
The elements of these crimes are as follows:
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 sex under 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. Gen. Stat. § 14-202.1 (2003).
A defendant is guilty of [statutory sexual
offense] if the defendant engages in vaginal
intercourse or a sexual act with another
person who is 13, 14, or 15 years old and the
defendant is at least six years older than
the person, except when the defendant is
lawfully married to the person.
N.C. Gen. Stat. § 14-27.7A(a) (2003).
... if a person having custody of a victim of
any age or a person who is an agent or
employee of any person, or institution,
whether such institution is private,
charitable, or governmental, having custody
of a victim of any age engages in vaginal
intercourse or a sexual act with such victim,
the defendant is guilty of a Class E felony.
Consent is not a defense to a charge under
this section.
N.C. Gen. Stat. § 14-27(a) (2003).
In the present case, C.S. testified to specific sexual acts
in which she and defendant engaged while she was a patient at
Moses Cone. Additionally, there was evidence presented in the
form of testimony from C.S.'s mother and sister that C.S. told
them about her interactions with defendant, and that they heardfirsthand telephone conversations between C.S. and defendant
regarding specific instances of sexual activity. Hence, there
was both direct and circumstantial evidence that these crimes
were committed. We conclude that in the light most favorable to
the State this evidence elevates the claims against defendant to
more than a mere suspicion. Therefore, the trial court properly
denied defendant's motion to dismiss the charges of indecent
liberties with a child, statutory sex offense, and sexual
activity by a custodian.
The next two assignments of error require the Court to
consider the jury instructions and sentencing under a plain error
standard. Plain error is defined in
State v. Odom as
“'fundamental error, something so basic, so prejudicial, so
lacking in its elements that justice cannot have been done,' or
'where [the error] is grave error which amounts to a denial of a
fundamental right of the accused.'” 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983) (quoting
United States v. McCaskill, 676
F.2d 995, 1002 (4th Cir. 1982) (emphasis and citations omitted)).
“The purpose of jury instructions is to enable the jury to decide
certain disputed facts, and then to apply governing principles of
law to those facts.”
State v. Moore, 311 N.C. 442, 459, 319
S.E.2d 150, 163 (1984).
[2] Defendant assigns error to the failure of the trial
court to instruct the jury on each charge for each date that the
crime charged allegedly occurred. We disagree.
Defendant complains that while he was charged with
committing the offenses of taking indecent liberties with aminor, statutory sex offense and sexual activity by a custodian
on 28 May, 29 May, 31 May, and 2 June 2000, the judge only
instructed the jury on the elements of each crime as it pertains
to the events that occurred on one particular date. The court
instructed the jury on the crimes of Indecent Liberties with a
Child alleged to have occurred on 28 May 2000, Statutory Sex
Offense alleged to have occurred on 29 May 2000, and Sexual
Activity by a Custodian alleged to have occurred on 29 May 2000.
Assuming
arguendo that the trial court's failure to
specifically instruct the jury as to the elements of each offense
on each date of the alleged offenses was error, it was not plain
error. Judge Spivey took care to instruct the jury that the
charge for each individual count of a particular offense was
identical, and that the same law applies for each charge. In his
charge to the jury, Judge Spivey stated:
[What] I will do is give you the substantive
law on each of the crimes alleged and then at
the end of all the evidence when I send you
back to deliberate on your verdict, I'll send
you a verbatim copy of the law as it applies
to each of those three crimes that are
alleged on those dates.
This Court concludes that there is no reasonable possibility
that, had the trial court specifically instructed the jury on the
same offense for each date alleged, a different result would have
ensued. We therefore overrule this assignment of error.
[3] In his final assignment of error, defendant argues that
his convictions should be vacated because the penalty imposed is
cruel and unusual. We disagree. Defendant was sentenced to a total of 18 3/4 to 23 1/4 years
for indecent liberties with a child, statutory sex offense, and
sexual activity by a custodian. He argues that because C.S. was
a few days shy of her sixteenth birthday, the threshold age for
the indecent liberties and statutory sex offense charges, the
punishment imposed for those crimes violates the Eighth Amendment
prohibition against cruel and unusual punishment. This
assignment of error has no merit.
North Carolina courts have consistently held that when a
punishment does not exceed the limits fixed by the statute, the
punishment cannot be classified as cruel and unusual in a
constitutional sense.
State v. Green, 348 N.C. 588, 502 S.E.2d
819 (1998).
In the case sub judice, the trial court imposed a prison
term within the presumptive range of sentences pursuant to
N.C.G.S. § 15A-1340.17(c). We hold that the sentence imposed
against defendant is not cruel and unusual punishment in that it
did not exceed the limits fixed by the governing statute.
Accordingly, this assignment of error is overruled.
No error.
Judges WYNN and ELMORE concur.
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