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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
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STATE OF NORTH CAROLINA v. BENSON MAURICE MOORE
Filed: 21 December 2004
1. Constitutional Law_effective assistance of counsel_failure to record jury selection
A defendant did not receive ineffective assistance of counsel where his counsel did not
record jury selection, which precluded appeal of a Batson issue. The case does not fall into the
limited circumstances where prejudicial error may be assumed, and satisfactory, race-neutral
reasons were presented for the peremptory challenges.
2. Appeal and Error_preservation of issues--failure to raise argument at trial
An equal protection argument to the statutory rape statute (based on the statute not
applying to married couples) was barred because it was not raised at trial. There was no reason
to invoke N.C.R. App. P. 2 in light of holdings from North Carolina and from the U.S. Supreme
3. Rape_statutory_age of victim_birthday rule
There was sufficient evidence of statutory rape where the victim was 2 days older than
15. The plain language of N.C.G.S. § 14-27.7A(a) does not qualify the age of the victim and,
under the birthday rule in North Carolina, people reach an age on their birthday and remain that
age until their next birthday.
Judge Wynn concurs in the result.
Appeal by defendant from judgment dated 11 June 2003 by Judge
Judson D. DeRamus, Jr. in Superior Court, Rockingham County. Heard
in the Court of Appeals 30 August 2004.
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Anne M. Gomez, for defendant-appellant.
Benson Maurice Moore (defendant) was convicted of statutory
rape in violation of N.C. Gen. Stat. § 14-27.7A(a) and was
sentenced to 300-369 months in prison on 11 June 2003. Defendantappeals.
The State's evidence at trial tended to show that on 27 June
2001, defendant came to S.R.'s home to have her braid his hair.
Defendant asked S.R. how old she was and S.R. replied that she had
just turned fifteen. Defendant did not believe that S.R. was only
fifteen. He also asked S.R. whether she was a virgin and S.R.
replied that she was. Both defendant and S.R. agreed they would
have sex that night and that defendant would call S.R. to make
arrangements to get together.
Defendant called S.R. later that day and said that he would
meet her "down the street" at 1:30 a.m. S.R. had to sneak out of
her house to meet defendant. Defendant picked S.R. up and drove
her to his house. Defendant and S.R. had vaginal intercourse in
defendant's bedroom, during which he ejaculated into her.
Defendant then drove S.R. home. Defendant and S.R. subsequently
saw each other in the neighborhood occasionally and had a few
conversations, but they never again had sexual intercourse.
S.R. discovered she was pregnant and delivered a baby on 16
March 2002. The State's evidence also showed that defendant
visited S.R. in the hospital and acknowledged in the presence of
others that he thought he was the baby's father. Defendant also
submitted to paternity testing, which showed a 99.97 percent
probability that defendant was the baby's father. S.R. did not
initiate any paternity action against defendant and admitted that
she had wanted to have sex with him on 27 June 2001. S.R.'s
grandmother, with whom S.R. lived, reported defendant to police.
The State also presented evidence showing that in 1997, whendefendant was nineteen, he had sex with a thirteen-year-old girl,
M.H., whom he knew to be thirteen at the time. In that case,
defendant had admitted to having sex with M.H. and had pled guilty.
In the present case, defendant testified that he never had sex
with S.R. and the only time that he could have had sex with her was
during a party at her house in July 2001. Defendant testified that
he had a lot to drink at that party and did not remember what
happened that night. He further testified that he never told
anyone or otherwise acknowledged that he was the father of S.R.'s
In his appeal, defendant has only presented arguments in
support of assignments of error twenty, thirty-two, thirty-three,
and thirty-four. All other assignments of error are deemed to be
abandoned pursuant to N.C.R. App. P. 28(b)(6).
 Defendant first argues that his attorney rendered
ineffective assistance of counsel for failing to request that the
jury selection be recorded. Under Strickland v. Washington,
assistance of counsel is deemed ineffective when both "counsel's
performance was deficient" and "the deficient performance
prejudiced the defense." Strickland, 466 U.S. 668, 687, 80 L. Ed.
2d 674, 693 (1984). The first part of this standard requires that
a defendant show "that counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by
the Sixth Amendment."
In other words, "the defendant must
show that counsel's representation fell below an objective standard
at 688, 80 L. Ed. 2d at 693. The secondpart of the standard "requires showing that counsel's errors were
so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687, 80 L. Ed. 2d at 693. The
Strickland Court elaborated on this point, holding that "[t]he
defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome."
Id. at 694, 80 L. Ed. 2d at 698.
Defendant argues that his counsel's performance at trial fell
below an objective standard of reasonableness because a reasonable
attorney would have recorded the entire jury selection process,
knowing that many issues might arise during the selection process
that would be appealable. Specifically, defendant asserts that his
trial counsel's failure to request that the proceedings be recorded
precluded defendant from being able to appeal his Batson claim.
Relying on Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986),
defendant's counsel took exception to two of the State's peremptory
challenges that were used to excuse two African American jurors.
While the discussion between the attorneys and the trial court
occurred out of the jury's presence and was recorded, the remainder
of the selection process was not recorded. Defendant argues that
a reasonable attorney would have known that the Batson issue could
only effectively be reviewed on appeal if the record included
specific information. For instance, this Court has held that for
a Batson claim to be reviewed on appeal, the record should include
evidence, such as the following: "the total number of potentialjurors questioned by the prosecutor; their race or gender; the
number or percent accepted; whether similarly situated prospective
jurors received disparate treatment on the basis of race or gender;
whether the remarks to prospective jurors suggested any bias."
State v. Shelman, 159 N.C. App. 300, 310, 584 S.E.2d 88, 96, disc.
review denied, 357 N.C. 581, 589 S.E.2d 363 (2003). While this
failure to request that the selection process be recorded may
amount to a deficient performance, we do not agree that it rises to
the level of depriving defendant of his Sixth Amendment right to
counsel. See Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693.
Furthermore, defendant does not show that defense counsel's
performance at trial prejudiced his defense. Rather than arguing
that his defense was prejudiced, defendant merely argues that
prejudice should be presumed. Defendant directs us to United
States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657 (1984), which was
decided the same day as Strickland and held that there were some
cases where the deficiency of the defense counsel's performance was
so great that prejudice need not be litigated. Cronic, 466 U.S. at
658, 80 L. Ed. 2d at 667. Defendant asserts that prejudice can be
presumed in the present case by analogizing his case to Roe v.
Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985 (2000). In
Flores-Ortega, the United States Supreme Court held that "when
counsel's constitutionally deficient performance deprives a
defendant of an appeal that he otherwise would have taken, the
defendant has made out a successful ineffective assistance of
counsel claim entitling him to an appeal." Id. at 484, 145 L. Ed.
2d at 1000. Defendant argues that "but for counsel's deficientperformance, [defendant] would have appealed" the Batson issue, and
thus defendant was deprived of an appeal that he would otherwise
In making this argument, however, defendant disregards the way
in which the Supreme Court qualified its holding in Cronic. The
Supreme Court continued to lay out instances when prejudice might
be presumed, and limited the instances to where there is "complete
denial of counsel," no "meaningful adversarial testing," or where
"the likelihood that any lawyer, even a fully competent one, could
provide effective assistance is so small that a presumption of
prejudice is appropriate without inquiry into the actual conduct of
the trial." Cronic, 466 U.S. at 659-60, 80 L. Ed. 2d at 668. The
Supreme Court has since reiterated that these three situations are
the few times where prejudice may be presumed rather than proven.
See Bell v. Cone, 535 U.S. 685, 695-96, 152 L. Ed. 2d 914, 927
In Flores-Ortega, the Supreme Court held that the defendant
was constitutionally deprived of counsel when his counsel failed to
file a notice of appeal. Flores-Ortega, 528 U.S. at 477, 145 L.
Ed. 2d at 994-95. The Supreme Court held that the failure to file
a notice of appeal was more than a denial of counsel at a critical
stage in the trial; rather, it was a "more serious denial of the
entire judicial proceeding itself." Id. at 483, 145 L. Ed. 2d at
999. Defendant in our case wants us to consider the failure to
record the jury selection to be on par with the failure to file
notice of appeal. However, unlike in Flores-Ortega, defendant is
not deprived of an entire judicial proceeding, only an issue onappeal. Defendant is not deprived of counsel at any critical stage
of the proceedings; nor does he fall into any of the other limited
circumstances in which prejudice might be presumed. Defendant must
thus show that "there is a reasonable probability that, but for
[his] counsel's unprofessional errors, the result of the proceeding
would have been different." See Strickland, 466 U.S. at 694, 80 L.
Ed. 2d at 698.
As mentioned before, defendant does not argue that his defense
was prejudiced and we do not find anything in the record on appeal
to indicate that the failure to record the jury selection process
denied defendant a fair trial. To make a Batson claim, a defendant
must establish a
case of purposeful racial
discrimination. Batson, 476 U.S. at 93, 90 L. Ed. 2d at 85. In
the present case, the trial court ruled that defendant had not made
case on the Batson issue. On appeal, we will only
overturn such a determination by the trial court if it is clearly
erroneous. State v. White, 349 N.C. 535, 549, 508 S.E.2d 253, 262
(1998) (citing State v. Fletcher, 348 N.C. 292, 313, 500 S.E.2d
668, 680 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 113
(1999)), cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999). In
the present case, we find no error.
When determining whether a defendant has made a
case of discrimination, a trial court should consider all relevant
circumstances, including "defendant's race, the victim's race, the
race of key witnesses, questions and statements of the prosecutor
which tend to support or refute an inference of discrimination, a
pattern of strikes against minorities, or the State's acceptancerate of prospective minority jurors." White, 349 N.C. at 548, 508
S.E.2d at 262. Even though defendant argues that most of this
information is absent from the record because defense counsel did
not request that the jury selection be recorded, there is
sufficient evidence in the transcript to show that the trial
court's decision was not clearly erroneous. Defendant was African
American, as was S.R. and S.R.'s grandmother, the State's
prosecuting witness. There were four African American jurors in
the potential pool of jurors and only two were dismissed
peremptorily. Moreover, the State voluntarily provided race-
neutral explanations for excusing two African American jurors, even
though it was not required to do so. See Purkett v. Elem, 514 U.S.
765, 767, 131 L. Ed. 2d 834, 839 (1995) (explaining that if the
defendant makes a
Batson claim, the burden shifts to
the state to give a race-neutral justification for dismissing the
juror). Specifically, the State said that one of the jurors
excused was "the only juror of the 13 potential jurors that
indicated that she knew the defendant," and the other "was the only
juror of the 13 questioned who indicated that he had a prior
criminal history." Both of these reasons are satisfactory race-
neutral explanations for excusing jurors peremptorily. See State
v. Porter, 326 N.C. 489, 499, 391 S.E.2d 144, 151 (1990) (stating
that courts have properly allowed venire persons to be dismissed
when they have criminal records or where they have known the
defendant, counsel, or a relative of either). These explanations
are facially based on something other than race and as the Supreme
Court has held, "[u]nless a discriminatory intent is inherent inthe prosecutor's explanation, the reason offered will be deemed
race neutral." Hernandez v. New York, 500 U.S. 352, 360, 114 L.
Ed. 2d 395, 406 (1991). Thus, there is nothing in the record that
suggests that defendant was harmed by any deficiency in his defense
counsel's performance at trial, and we hold that defendant's
assignment of error on this issue is without merit.
 Defendant next argues that he was denied equal protection
of the law because N.C. Gen. Stat. § 14-27.7A
(See footnote 1)
distinguishes between married and unmarried persons and is thus
unconstitutional. N.C. Gen. Stat. § 14-27.7A(a) (2003) states:
[a] defendant is guilty of a Class B1 felony
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.
Defendant argues that he, a twenty-three-year-old, was punished for
allegedly having sexual intercourse with fifteen-year-old S.R.,
because he and S.R. were not married, and that had they been
married, he would have been exempt from this law. This argument,
however, is procedurally barred because the statutory rape charge
was not challenged on equal protection grounds at trial. See
N.C.R. App. P. 10(b)(1). Defendant acknowledges that defense
counsel did not present this issue to the trial court.
Nevertheless, he argues that we should review this claim pursuantto N.C.R. App. P. 2, which states that:
[t]o prevent manifest injustice to a party, or
to expedite decision in the public interest,
either court in the appellate division may,
except as otherwise expressly provided by
these rules, suspend or vary the requirements
or provisions of any of these rules in a case
pending before it upon application of a party
or upon its own initiative, and may order
proceedings in accordance with its directions.
In support of his argument that this constitutional question "is a
significant issue in the public interest," defendant makes some of
the same arguments previously addressed in this Court.
Specifically, defendant argues that the United States Supreme
Court's decision in Lawrence v. Texas
provided that sexual
relations between married persons are not entitled to greater
protection than relations between unmarried persons. See Lawrence
539 U.S. 558, 156 L. Ed. 2d 508 (2003) (extending the privacy right
set forth in Griswold v. Connecticut
, 381 U.S. 479, 14 L. Ed. 2d
510 (1965), to unmarried persons). Defendant argues that Lawrence
thus nullifies our decision in State v. Howard
in which we held
that the marriage exception from criminal liability in our
statutory rape statute, N.C.G.S. § 14-27.7A, was constitutional.
, 158 N.C. App. 226, 232, 580 S.E.2d 725, 730, disc. review
, 357 N.C. 465, 586 S.E.2d 460 (2003). We considered this
same argument in State v. Clark
and held that Lawrence
, because the Lawrence
Court expressly held that it
was not applying its decision to minors. Clark
, 161 N.C. App. 316,
320-21, 588 S.E.2d 66, 68-69 (2003) (citing Lawrence
, 539 U.S. at
578, 156 L. Ed. 2d at 525), disc. review denied
, 358 N.C. 157, 593
S.E.2d 81 (2004). Clark
controls our present case.
Defendant, however, urges us to examine the issues addressed
in light of Limon v. Kansas
, 539 U.S. 955, 156 L. Ed. 2d
652 (2003). Limon
involved greater punishment for same-sex
statutory rape offenses than for similar offenses between members
of the opposite sex. The United States Supreme Court remanded
the day after Lawrence
was decided. Defendant argues that by
, the Supreme Court indicated its willingness to
to minors. We disagree.
We first note, however, that even were we to find that Clark
was no longer controlling, we cannot overrule other decisions of
our Court. See In the Matter of Appeal from Civil Penalty
N.C. 373, 384, 379 S.E.2d 30, 36 (1989) (holding that once a panel
of the Court of Appeals has ruled on an issue, another panel is
bound by that decision until the issue is overturned by a higher
Moreover, we do not see how Limon
changes our decision in
. As the State points out, Limon
was remanded because it was
based on Bowers v. Hardwick
, 478 U.S. 186, 92 L. Ed. 2d 140 (1986),
which was overturned by Lawrence
. See Lawrence
, 539 U.S. at 578,
156 L. Ed. 2d at 525. On remand, the Kansas Court of Appeals
decided that, in light of Lawrence
, disparate punishment for the
same crime (statutory rape) between same-sex offenders and
different sex offenders was constitutional
precisely because minors
were involved. See State v. Limon
, 32 Kan. App. 2d 369, 375, 83
P.3d 229, 235, cert. granted
, ___ Kan. ___, ___ P.3d ___ (2004).
This underlying rationale of the Kansas court's decision is
consistent with the rationale underlying our statutory rape law,which has the purpose of protecting minors who are not capable of
effectively consenting. See State v. Anthony
, 351 N.C. 611, 618,
528 S.E.2d 321, 324 (2000). We thus do not see a reason to suspend
N.C.R. App. P. 10(b)(1) to consider defendant's argument regarding
the constitutionality of N.C.G.S. § 14-27.7A. Accordingly, we
dismiss this assignment of error.
 Finally, in a supplemental brief allowed by this Court,
defendant contends that the trial court erred when it denied
defendant's motion to dismiss for insufficient evidence where the
evidence showed that S.R. was two days older than fifteen years
old. Defendant cites State v. McGaha
, 306 N.C. 699, 295 S.E.2d 449
(1982), which arrested the judgment of a defendant who was indicted
under N.C. Gen. Stat. § 14-27.4 because the victim, who was 12
years and eight months old, was not "12 years or less" as required
by the statute. McGaha
, 306 N.C. at 701, 295 S.E.2d at 450.
Defendant thus argues that "[b]ecause [S.R.] was fifteen years and
two days old at the time she and [defendant] allegedly had sexual
intercourse, she was 'something more than' fifteen years old at the
time of the offense." Defendant continues that "[u]nder McGaha
the language of G.S. § 14-27.7A[(a)] must be construed so as not to
include victims who are even one day beyond their [fifteenth]
birthdays." Defendant argues that for these reasons his conviction
should be vacated. We disagree and reject this argument.
We recently addressed a similar argument pertaining to the
language of N.C.G.S. § 14-27.7A(a), and held that "the fair meaning
of '15 years old,' in accord with the manifest intent of thelegislature when viewed in the context of the historical
development of this area of law, includes children during their
fifteenth year, until they have reached their sixteenth birthday."
State v. Roberts
, ___ N.C. App.___, ___, 603 S.E.2d 373, ___
(2004). We reiterate that in interpreting a statute, we first look
to understand the legislative intent behind the statute by
examining the plain language of the statute. Electric Supply Co.
v. Swain Electrical Co.
, 328 N.C. 651, 656, 403 S.E.2d 291, 294
(1991). Here, the plain language of the statute is clear and
unambiguous. Unlike the instances cited by defendant, N.C.G.S. §
14-27.7A(a) specifically refers to a "person who is
13, 14, or 15
(emphasis added). It does not qualify the age of
the person with any of the following phrases: "older," "younger,"
"more," or "less." See Roberts
, ___ N.C. App. at ___, 603 S.E.2d
at___ (stating that the "language adopted by the legislature in
N.C. Gen. Stat. § 14-27.7A lacks [the] modifiers" that appear in
N.C.G.S. § 14-27.4). In other words, the minor described in
N.C.G.S. § 14-27.7A must be the age of thirteen, fourteen or
fifteen -- not be more or less than these ages.
Moreover, as we wrote in Roberts
, our interpretation of
N.C.G.S. § 14-27.7A is consistent with our method for determining
how old someone is
, namely the "birthday rule." Roberts
, ___ N.C.
App. at ___, 603 S.E.2d at ___
(citing In re Robinson
, 120 N.C.
App. 874, 876-77, 464 S.E.2d 86, 88 (1995)). Under the "birthday
rule," a person reaches a certain age on her birthday and remains
that age until her next birthday. Robinson
, 120 N.C. App. at 877,
464 S.E.2d at 88. Applying this rule, S.R. reached the age offifteen on 25 June 2001, which was her birthday (anniversary of her
birth) and remained fifteen until 25 June 2002. Thus, she was
fifteen for the purposes of N.C.G.S. § 14-27.7A on 27 June 2001
when she and defendant had sexual intercourse. We hold that the
trial court properly denied defendant's motion to dismiss on this
Chief Judge MARTIN concurs.
Judge WYNN concurs in result.
Defendant's brief occasionally refers to N.C.G.S. § 14-27A,
but no such statute exists. Since defendant was convicted under
N.C.G.S. § 14-27.7A and since error was assigned under this
statute, we assume that defendant intended to refer to § 14-
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