Appeal by defendant from judgment entered 27 March 2003 by
Judge Robert P. Johnston in Mecklenburg County Superior Court.
Heard in the Court of Appeals 31 August 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Margaret A. Force, for the State.
Margaret Creasy Ciardella for defendant-appellant.
Russell Ellis Roberts (defendant) appeals his conviction of
one count of statutory rape of a person fifteen years old and one
count of taking indecent liberties with a child, on the grounds the
trial court erred in denying defendant's motion to dismiss both
charges for insufficiency of the evidence. We disagree and find no
The State's evidence tended to show that on 13 September 2001,
M. M., a fifteen- year-old female, along with her younger brother,
B.M., accepted a ride from an adult male and young girl in a whitecar. The adult male, identified by M.M. as defendant, dropped off
B.M. and the girl at their respective schools. He then took M.M.
to a nearby park where he asked her to strip, a request she
refused. M.M. pretended to speak with her mother on a non-
functioning cell phone. Defendant asked to use the cell phone and
was told it would not work for out-going calls. He then pushed
M.M. to the ground until she gave him the phone. Defendant led
M.M. into the surrounding woods and threatened her with a large
limb when she began to cry. M.M. was instructed to undress and
defendant directed her to lean against a tree while he proceeded to
engage in vaginal intercourse with her from behind. Defendant
withdrew, masturbated and ejaculated, then directed M.M. to put her
clothes back on. After leaving the woods, defendant told M.M. he
had a body in the trunk of his car and that she could be there too
if she said anything about what had happened.
Defendant dropped M.M. off and she returned to her home and
called her mother's fiancée, who contacted M.M.'s mother and the
police. M.M. gave a description of the defendant to the police and
was taken to the hospital and examined. A small amount of semen
was found on M.M.'s shorts, however no identifiable DNA sample was
found as a result of the examination.
Approximately one month after the incident, M.M.'s mother,
Costa S. Miller (Costa), testified that defendant, driving a
white car, approached her as she walked her son, B.M., to the bus
stop and asked if he knew her. Costa suggested defendant must have
mistaken her for her daughter after he asked if she wore glasses. B.M. identified defendant as the driver who had picked up him and
his sister on the day of the earlier incident. Costa then called
police. Defendant was identified from a photographic lineup by
M.M. and arrested. Defendant presented no evidence at trial.
Defendant was charged with one count of statutory rape of a
person fifteen years old and one count of taking indecent liberties
with a child. Defendant was convicted of both charges and was
sentenced to a minimum-maximum term of 302 to 372 months in prison.
Defendant contends the trial court erred in denying his motion
to dismiss both charges for insufficient evidence. Defendant
presents two independent grounds to support this argument: (1) the
indictment was improper under the statute governing statutory rape
of a fifteen year old, as the victim was more than fifteen, and (2)
the evidence was insufficient as to both charges of the identity of
 Defendant first contends insufficient evidence was given
as to the age of the victim. Defendant argues the statute
governing the crime of statutory rape, N.C. Gen. Stat. § 14-27.7A
(2003), is properly construed to apply only to those victims age
fifteen or younger, and therefore not applicable in this case. We
Criminal statutes must be strictly construed against the State
and liberally construed in favor of defendant. See State v.
, 272 N.C. 312, 314, 158 S.E.2d 596, 597 (1968).
However, the North Carolina Supreme Court has recognized that: '[T]he canon in favor of strict construction
[of criminal statutes] is not an inexorable
command to override common sense and evident
statutory purpose. . . . Nor does it demand
that a statute be given the narrowest
meaning; it is satisfied if the words are
given their fair meaning in accord with the
manifest intent of the lawmakers.'
State v. Jones
, 358 N.C. 473, 478, 598 S.E.2d 125, 128 (2004)
(quoting United States v. Brown
, 333 U.S. 18, 25-26, 92 L. Ed. 442,
N.C. Gen. Stat. § 14-27.7A reads in pertinent part as follows:
(a) 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.
Here the fair meaning of 15 years old, in accord with the
manifest intent of the legislature when viewed in the context of
the historical development of this area of law, includes children
during their fifteenth year, until they reach their sixteenth
In State v. McGaha
, 306 N.C. 699, 295 S.E.2d 449 (1982), the
North Carolina Supreme Court interpreted the 1981 statutory rape
law, N.C. Gen. Stat. § 14-27.4(a)(1) (1981). McGaha
held that the
age requirement of 'a victim who is a child of the age of 12 years
or less' excluded application of the law to a child aged twelve
years and eight months because the child was something more than
twelve years. McGaha
, 306 N.C. at 700-01, 295 S.E.2d at 450
(emphasis omitted). The Court in McGaha
relied on the decision in
Green v. P. O. S. of A.
, 242 N.C. 78, 87 S.E.2d 14 (1955). InGreen
, a funeral benefit association required members to not be
over fifty years, and the Court held that an individual who had
passed his fiftieth birthday, but was not yet fifty-one, was over
fifty years. Green
, 242 N.C. at 82-83, 87 S.E.2d at 17. However,
in both McGaha
, the Court noted the impact of the
inclusion of modifiers on their interpretation, as McGaha
twelve years or less
, 306 N.C. at 700, 295 S.E.2d at 450,
interpreted not over
fifty years. Green
, 242 N.C. at 82-
83, 87 S.E.2d at 17.
The language adopted by the legislature in N.C. Gen. Stat. §
14-27.7A lacks these modifiers, requiring only that the victim be
fifteen years old. As the Court noted in Green
, the legislative
rules for construction of statutes and subsequent court decisions
have found the term year to mean a twelve month calender year,
unless otherwise expressed. Green
, 242 N.C. at 83, 87 S.E.2d at
N.C. Gen. Stat. § 12-3(3) (2003). Further, this Court has
held that North Carolina follows the 'birthday rule' for
determination of age, that is, a person attains a given age on the
anniversary date of his or her birth. See In re Robinson
, 120 N.C.
App. 874, 876-77, 464 S.E.2d 86, 88 (1995). Under these rules and
principles of construction, a person would become fifteen on their
fifteenth birthday and remain fifteen for a twelve month calendar
The legislature, in passing § 14-27.7A in 1995, unlike in the
1981 statute interpreted in McGaha
, specifically did not restrict
the victim's age to below a certain year, but rather specified thestatute applied to thirteen, fourteen, and fifteen year olds. When
read in conjunction with N.C. Gen. Stat. § 14-27.2 (2003), which
applies to a victim of vaginal intercourse who is a child under
age of thirteen years, it is clear the manifest intent of the
legislature was for § 14-27.7A to protect children in the three
full years following age twelve. To read the statute otherwise
would override common sense and the evident statutory purpose.
Therefore the term 15 years old in § 14-27.7A is properly
construed as applying to any victim within the calendar year
following her fifteenth birthday, until she attains the age of
Here, M.M. was fifteen years and eleven months at the time of
the offense. Further, defendant, who was thirty-three at the time
of trial, does not contest that he was more than six years older
than M.M. when the offense occurred. Sufficient proof of age was
therefore offered to support the indictment of defendant in the
charge of statutory rape of a person fifteen years old and to
survive a motion to dismiss on these grounds.
 Defendant further contends the trial court erred in
denying the motion to dismiss both charges particularly for
insufficient evidence identifying him as the assailant. We
Defendant was charged with statutory rape, discussed supra
and indecent liberties with a child. In order to obtain a
conviction for the latter, the State must prove (1) the defendant was at
least 16 years of age, (2) he was five years
older than his victim, (3) he willfully took
or attempted to take an indecent liberty with
the victim, (4) the victim was under 16 years
of age at the time the alleged act or
attempted act occurred, and (5) the action by
the defendant was for the purpose of arousing
or gratifying sexual desire.
State v. Rhodes
, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580 (1987).
The first four elements may be proved by direct evidence and the
final, that the action was for the purpose of arousing or
gratifying sexual desire, may be inferred from the evidence of the
defendant's actions. Id
. at 105, 361 S.E.2d at 580. Such a
showing is sufficient evidence to withstand a motion to dismiss the
charge of taking indecent liberties with a child. Id.
In reviewing challenges to the sufficiency of evidence, the
court must view the evidence in the light most favorable to the
State, giving the State the benefit of all reasonable inferences.
See State v. Scott
, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002).
Questions of credibility are for a jury's determination and are not
questions for the court to resolve. See State v. Gay
, 251 N.C. 78,
80, 110 S.E.2d 458, 459 (1959). The trial court should be
concerned only with whether the evidence is sufficient for jury
consideration, not with the weight of the evidence. See State v.
, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).
The State presented evidence that M.M. identified defendant as
the man who assaulted her from a photographic lineup and noted
specific features on the back of the photograph as the grounds for
her identification. M.M. also identified the defendant in court. M.M. had ample opportunity to view defendant prior to and after the
assault, and provided a detailed description to the police after
the incident. Corroboration was offered by M.M.'s brother, B.M.,
that defendant was the man who offered them a ride on the morning
of the assault. Additionally, M.M.'s account of the sexual assault
was supported by evidence of semen found on her clothing at the
time of the physical examination conducted the day of the incident.
Such evidence, along with the previously discussed proof of
the respective ages of the victim and defendant, when viewed in the
light most favorable to the State, was sufficient to allow a
reasonable inference of all elements of both crimes. Therefore the
trial court properly denied the motion to dismiss.
For these reasons, we find the trial court properly concluded
there was sufficient evidence to deny defendant's motion to
Judges TIMMONS-GOODSON and McCULLOUGH concur.
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