Appeal by defendant from judgments entered 4 April 2003 by
Judge Gregory A. Weeks in Cumberland County Superior Court. Heard
in the Court of Appeals 14 September 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General William W. Stewart, Jr., for the State.
Adrian M. Lapas for defendant-appellant.
Teddy Lynn Randle (defendant) appeals from judgments entered
4 April 2003 consistent with a jury verdict finding him guilty of
attempted first degree burglary, first degree burglary, firstdegree rape, and first degree sex offense. For the reasons stated
herein, we find no error.
The State's evidence presented at trial tended to show that on
17 April 2002, defendant broke into the house of his 81 year-old
neighbor, Sue Harris (Harris). Defendant raped and sodomized
Harris in her bed. After defendant left the house, Harris called
911. Upon arrival, police officers found two damaged doors and a
broken window pane in the house. Harris was taken to a hospital
where she was examined in the emergency room. Harris had two
broken vertebrae in her back, bruising on one eyelid and her left
forehead, ruptured blood vessels on the sides of her face and neck,
bruised upper and lower extremities, and vaginal and rectal
injuries. Upon examination, Harris was admitted to the hospital.
Harris begged for pain relief and was given an intravenous narcotic
for her back pain. Harris is still in pain most of the time,
cannot bend over, has difficulty walking or standing for long
periods of time, and has frequent nightmares.
Upon investigation, police found sperm on the crotch of
Harris' panties and DNA from the sperm matched defendant's DNA
profile. Pubic hairs found on Harris and a head hair found on one
of Harris' pillows were microscopically consistent with defendant's
A week after the attack on Harris, defendant attempted to
break into the Rodgers' house, located on the same street as
Harris' house. On the night of 24 April 2002, Mrs. Rodgers
(Rodgers) noticed someone standing outside her sliding glass door
and called the police. Upon arrival, police officers found thatthe screen door had been cut open and Rodgers noticed that an
outside chair had been moved. The police took finger and palm
prints from the chair. The prints matched those of defendant.
Later that evening, Rodgers saw someone walk past her bedroom
window and, in the morning, someone tried to open her sliding glass
door. The finger prints on the glass door matched those of
defendant. In January 2003, Rodgers found a pair of underwear in
her closet and gave them to the police. Test results revealed
defendant's sperm on the underwear.
After being taken into police custody and advised of his
Miranda rights, defendant stated that he had fooled with the
lady, referring to his attack on Harris. Defendant said he pulled
down his pants and got into bed with Harris. Defendant, however,
stated that he did not penetrate Harris but rather ejaculated on
himself. Defendant also told police that he sat in the chair
outside Rodgers' back door, looked in, and then tried to enter
through the back door. Defendant stated that he ejaculated on
himself behind the house when he was unable to get into the house.
Defendant was charged with attempted first degree burglary,
first degree burglary, first degree rape, and first degree sex
offense. The case then proceeded to trial. During closing
arguments, defense counsel told jury members that they must be
entirely convinced of each and every element of the crimes. As
serious injury is the essential difference between first and second
degree rape, defense counsel then attempted to cast doubt on the
seriousness of the mental and physical injuries to Harris by
arguing Harris did not suffer serious injury. Counsel thenemphasized the lack of penetration of the victim, pointing out that
defendant ejaculated on himself. In counsel's final plea to the
jury, defense counsel argued, Teddy Randle is not guilty of first
degree rape. Teddy Randle is not guilty of first degree sexual
Upon conclusion of defense counsel's closing argument, the
trial court expressed concern that counsel had implicitly conceded
defendant's guilt to the lesser-included offenses of second degree
rape and second degree sex offense. Defense counsel did not
believe he had made any such concessions. The trial judge
conducted a hearing outside the presence of the jury, asking
defendant whether he had authorized defense counsel to concede
guilt to the lesser-included offenses. Defendant stated that he
did not authorize such concessions. The trial judge then asked
defendant whether he desired a mistrial. After consultation with
defense counsel, defendant said he did not desire a mistrial.
Defendant was convicted of all charges. Defendant was
sentenced to a term of 288 to 355 months in prison for first degree
rape and first degree burglary. Additionally, defendant was
sentenced to a term of 230 to 285 months in prison for first degree
sex offense and attempted first degree burglary, to be served at
the expiration of the preceding sentence. Defendant appeals.
 By his first assignment of error, defendant contends that
defense counsel's closing arguments at trial implicitly conceded
defendant's guilt to lesser-included offenses without firstobtaining defendant's consent, thereby constituting ineffective
assistance of counsel per se
. We disagree.
Defendant argues that defense counsel implicitly admitted
defendant's guilt to the lesser-included offenses of second degree
rape and second degree sex offense, without first obtaining
defendant's consent, by (1) arguing that defendant was not guilty
of first degree rape and sex offense, (2) focusing prominently on
the difference between first degree and second degree rape and sex
offense (i.e. the element of serious injury), and (3) by failing to
focus on lack of penetration, a necessary element in both first and
second degree rape and sex offense. Defendant argues that when
defense counsel implicitly concedes guilt to a lesser-included
offense, the court should look beyond the words to the practical
effect of such an argument and find ineffective assistance of
counsel per se
. Defendant further argues that the failure of
defendant to move for a mistrial does not cure per se
assistance of counsel.
The Supreme Court of North Carolina has held that per se
ineffective assistance of counsel has been established in every
criminal case in which the defendant's counsel admits the
defendant's guilt to the jury without the defendant's consent.
(See footnote 1)
State v. Harbison
, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08
(1985), cert. denied
, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986).
During closing arguments in State v. Harbison
, defense counselstated, without defendant's consent, that 'I don't feel that
William should be found innocent. I think he should do some time
to think about what he has done. I think you should find him
guilty of manslaughter and not first degree.' Id.
at 178, 337
S.E.2d at 506. Consequently, the Court found ineffective
assistance of counsel per se
and remanded the case for a new trial.
at 180-81, 337 S.E.2d at 507.
The Supreme Court of North Carolina recently applied the
rule in State v. Matthews
, 358 N.C. 102, 591 S.E.2d 535
(2004). In Matthews
, the Court found per se
of counsel where defense counsel conceded defendant's guilt to
second degree murder, a lesser-included offense, without
defendant's permission. See id.
at 109, 591 S.E.2d at 540. In
closing arguments to the jury, defense counsel in Matthews
'I'm telling you in this case you ought not to find him not guilty
because he is guilty of something.' 'When you look at the
evidence . . . you're going to find that he's guilty of second-
degree murder.' Id.
at 106, 591 S.E.2d at 539. The Supreme Court
ordered a new trial. Id.
at 109, 591 S.E.2d at 540-41.
However, our Supreme Court has found no Harbison
where defense counsel did not expressly admit the defendant's
guilt. See, e.g., State v. Gainey,
355 N.C. 73, 93, 558 S.E.2d
463, 476 (2002) (finding no Harbison
violation where defense
counsel did not admit guilt of murder, but rather stated that 'if
he's guilty of anything, he's guilty of accessory after the
fact'); State v. Hinson
, 341 N.C. 66, 78, 459 S.E.2d 261, 268
(1995) (finding no Harbison
violation where defense counsel did notconcede that defendant himself committed any crime); State v.
, 318 N.C. 512, 532-33, 350 S.E.2d 334, 346 (1986) (finding
violation where defense counsel conceded malice but did
not clearly admit guilt, and told the jury it could find defendant
In State v. Greene
, 332 N.C. 565, 422 S.E.2d 730 (1992), the
Supreme Court of North Carolina held that an argument by counsel
that defendant is innocent of all charges, but if found guilty of
any charge it should be of a lesser crime because the evidence
comes closer to proving the lesser crime than any of the greater
crimes charged, is not an admission of defendant's guilt to the
lesser charge and, therefore, the rule of Harbison
does not apply.
, 332 N.C. at 572, 422 S.E.2d at 733-34. In State v.
, 334 N.C. 356, 432 S.E.2d 125 (1993), the Supreme Court
reiterated its holding in Greene
, finding that defense counsel's
statement that if the evidence tended to establish the commission
of any crime then it would be a lesser-included offense was not the
equivalent of admitting the defendant was guilty of any crime.
, 334 N.C. at 361, 432 S.E.2d at 128.
The case at bar is factually distinguishable from Harbison
and is analogous to the line of cases finding no per se
ineffective assistance of counsel. Unlike in Harbison
, counsel in the case at bar never actually admitted the
guilt of defendant to any charge, nor did counsel claim that
defendant should be found guilty of some offense. As a result, no
violation occurred. Instead, this case falls within the
line of cases where the Harbison
rule does not apply and no per se
ineffective assistance of counsel is found. Like in Greene
, defense counsel in this case advocated for defendant's
innocence by arguing that there was no penetration of the victim.
Specifically, counsel told jury members that they must weigh the
evidence and make a decision, but in both of those cases, first
degree rape, second degree rape, there's got to be penetration.
Counsel attempted to cast doubt on the existence of penetration,
arguing that defendant ejaculated on himself. Finally, defense
counsel argued there's reasonable doubt here because there are
factors that need to be considered in either of the rape charges as
to whether or not penetration actually occurred.
defense counsel argued that defendant should not
be charged with first degree rape or first degree sex offense
because there was no serious injury to the victim. Specifically,
defense counsel stated that the judge is going to instruct you
that the difference between first degree rape and second degree
rape is the serious injury and if there is reasonable doubt, if
you're not fully satisfied and entirely convinced of the serious
physical injury, then you're to consider second degree rape.
Defense counsel then attempted to cast doubt on the seriousness of
Harris' injuries and told the jury that, after considering the
doubt as to penetration, then when you're considering the others,
the difference between first degree rape and second degree rape is
whether or not there was serious physical injury. Ladies and
gentlemen, there's contradicting evidence to that.
Finally, we note that in the case at bar, the trial court
asked defendant numerous times whether he consented to defensecounsel admitting guilt to any offense, including lesser offenses.
In response, defendant stated that he did not authorize counsel to
admit guilt to any offense. The trial court then asked defendant
whether he desired to move for a mistrial. After consulting with
defense counsel, defendant stated that he did not desire a
mistrial. Since we have concluded no Harbison
in this case, we do not reach the issue of whether defendant waived
violation by declining to accept the trial court's
offer of a mistrial.
For the foregoing reasons, we find no
of counsel per se
. Accordingly, this assignment of error is
 In his next assignment of error, defendant argues that the
North Carolina short-form indictments for first degree rape and
first degree sex offense violate both the United States and North
Carolina Constitutions. We disagree.
Defendant contends that the North Carolina short-form
indictments for first degree rape and first degree sex offense
violate the Fifth, Sixth and Fourteenth Amendments of the United
States Constitution and Article I, §§ 19, 22 and 23 of the North
Carolina Constitution because such indictments fail to include the
first degree rape and sex offense element of serious personal
injury. Defendant urges this Court to reexamine prior holdings
and declare these short-form indictments unconstitutional in light
of the United States Supreme Court decisions of Apprendi v. NewJersey
, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) and Jones v. United
526 U.S. 227, 143 L. Ed. 2d 311 (1999).
Defendant was indicted for first degree rape and first degree
sex offense under short-form indictments provided by N.C. Gen.
Stat. §§ 15-144.1 and 15-144.2 (2001). North Carolina courts have
consistently held, post-Jones
, that short-form indictments for
first degree rape and first degree sex offense comport with the
requirements of both the United States and North Carolina
Constitutions. See State v. Shepherd
, 156 N.C. App. 69, 72, 575
S.E.2d 776, 778 (2003); State v. Harris,
140 N.C. App. 208, 215-16,
535 S.E.2d 614, 619 (2000). Similarly, the Supreme Court of North
Carolina has also reaffirmed the constitutionality of short-form
indictments charging sex offenses post-Apprendi
. See State v.
, 166 N.C. App. 733, ____ S.E.2d ____ (2004) (discussing State
, 357 N.C. 257, 270, 582 S.E.2d 593, 602, cert. denied
U.S. 985, 156 L. Ed. 2d 702 (2003)).
In light of North Carolina case law consistently upholding the
constitutionality of the short-form indictments for first degree
rape and first degree sex offense post-Jones
conclude that the North Carolina short-form indictments for first
degree rape and sex offense are constitutional. Accordingly,
defendant's assignment of error is overruled.
Judges TIMMONS-GOODSON and McCULLOUGH concur.