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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 print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. HARRY LEE FULLER
Filed: 19 October 2004
1. Rape_second-degree_eleven-year-old victim_testimony sufficient
There was no error in the denial of a motion to dismiss a second-degree rape prosecution
where the eleven-year-old victim testified that defendant had put his private inside her
private four to eight times.
2. Rape_first-degree statutory_evidence sufficient
There was no error in denying a motion to dismiss a first-degree statutory rape
prosecution where there was evidence that defendant was more than four years older than the
eleven-year-old victim and the child testified to penetration.
3. Appeal and Error_constitutional claim_not raised at trial
A claim of double jeopardy in a prosecution for first-degree statutory rape and second-
degree forcible rape was not considered on appeal because it was not raised at trial.
4. Sexual Offenses_with child_evidence sufficient
The denial of a motion to dismiss a prosecution for first-degree sexual offense with a
child was not error where the child testified that defendant forced fellatio.
5. Indecent Liberties_child's testimony_sufficient
The trial court did not err by denying a defendant's motion to dismiss an indecent
liberties prosecution where the child's testimony was sufficient for the jury to infer that
defendant acted to arouse or gratify sexual desire.
6. Confessions and Incriminating Statements_statements by defendant_no Miranda
warning_not yet arrested
Statements made by defendant to a deputy while receiving treatment for an unrelated
injury at a hospital were properly admitted in a prosecution for first-degree statutory rape and
other offenses. The deputy did not inform defendant of his Miranda rights, but did tell him that
he was not under arrest, was free to leave, and did not have to speak with him, and defendant
was not in fact arrested until days later. Defendant had not been indicted, an arrest warranted
had not issued, and Fellers v. United States, 540 U.S. ___ (2004) is not controlling.
7. Evidence_letters from jail_no reasonable expectation of privacy
Letters defendant wrote to his wife from jail were properly admitted in a prosecution for
first-degree statutory rape and other offenses The letters were not marked legal or addressed
to an attorney and were give to jail personnel to mail. There was no reasonable expectation of
8. Evidence_marital privilege_letters from jail
Letters sent by an incarcerated defendant to his wife that were seized by law enforcement
officers were admissible despite defendant's claim of marital privilege. A third person who
overhears a conversation between husband and wife may be examined as to that conversation,
and confidential letters from husband to wife are admissible against the husband when brought
into court by a third party.
9. Appeal and Error_-assignments of error--authority not presented_testimony not
specifically identified--review waived
Defendant waived appellate review of whether certain of his statements to a deputy
should have been admitted by not presenting authority to support his assignment of error and by
not specifically identifying those portions of testimony at issue. Moreover, defendant's
statements were corroborated by other evidence.
10. Witnesses_expert_sexual assault nurse examiner
The trial court did not abuse its discretion in a prosecution for statutory rape and other
offenses by allowing a nurse to testify as an expert sexual assault nurse examiner where she had
been employed by the hospital for nineteen years; had served as a nurse manager in the
emergency department for two years; had a bachelor of science in nursing and had received
special sexual assault nurse examiner training in 1999; that training involved forty hours in the
classroom and fifty-six hours of clinical practice; the witness was specifically trained to examine
the victim's demeanor and body language as well as to look for physical evidence and signs of
trauma; and the witness had been a certified sexual assault nurse examiner for three years at the
time of trial.
11. Evidence_sexual offenses_medical testimony_injuries consistent with assault
The trial court did not err in a prosecution for statutory rape and other offenses by
permitting a doctor and a nurse who were qualified as experts to testify about whether their
examinations and findings were consistent with a child who had suffered kissing on the breast
and vaginal penetration.
12. Sexual Offenses_first-degree statutory sexual offense_instruction on attempt
denied_ evidence not sufficient
The trial court did not err in a prosecution for first-degree statutory sexual offense by not
giving an instruction on the lesser-included offense of attempted first-degree sexual offense.
Although defendant testified that he attempted vaginal intercourse (but failed due to a back
spasm), no evidence was presented that defendant attempted to engage in the sexual acts
required for first-degree sexual offense.
Appeal by defendant from judgments entered 22 August 2003 by
Judge Clarence E. Horton, Jr., in Stanly County Superior Court.
Heard in the Court of Appeals 15 September 2004.
Attorney General Roy Cooper, by Assistant Attorney General R.Kirk Randleman, for the State.
Carlton, Rhodes & Carlton, by Gary C. Rhodes, for defendant-
Harry Lee Fuller (defendant) appeals from judgments entered
after a jury found him to be guilty of second-degree forcible rape,
first-degree statutory rape, first-degree statutory sexual offense,
and three counts of indecent liberties with a minor. We find no
The State's evidence tended to show that on 30 June 2002,
eleven-year-old P.E. (the child) was visiting with B.F.,
defendant's daughter. Around 8:00 or 9:00 p.m., defendant, B.F.,
and the child were riding in defendant's car. Defendant asked B.F.
to take the steering wheel, and he turned towards the child in the
back seat and kissed her on the mouth. The child testified she
felt defendant's tongue in her mouth. B.F. corroborated this
portion of the child's testimony.
The three continued to ride around for about an hour and
stopped by Sonic Drive-In for a milkshake before returning to
defendant's home. After returning to defendant's residence, B.F.
and defendant sat on couches and watched television. The child
went to B.F.'s room and laid down.
About ten minutes later, defendant entered the bedroom, lifted
the child's shirt, removed her panties, and began kissing her
chest. While on top of her, defendant inserted his penis into hervagina four to eight times. Defendant also asked the child to
perform oral sex on him. After the child performed oral sex,
defendant inserted his finger into the child's vagina for not even
five minutes. Defendant also kissed the child on her private
with his mouth.
Defendant left the room and returned with a washcloth. He
used the washcloth to wipe something off the bed. The child
did not go to sleep that night and left around 6:00 or 7:00 a.m.
the next morning. She took the church bus to Sunday school and
told her friend, M.E., what had happened at defendant's house.
M.E. testified and corroborated the child's testimony.
When the child returned home after church, she told her mother
what had happened at defendant's house. The child's mother
immediately transported the child to the hospital, where she was
examined. Both Dr. Ann Alexander (Dr. Alexander), an Emergency
Room Physician, and Gina Smith (Nurse Smith), a sexual assault
nurse examiner, testified as expert witnesses that abrasions noted
on the child's genitalia were consistent with vaginal penetration
and that the redness noted on her breast was consistent with having
been kissed on the breast.
Stanly County Sheriff's Deputy James Inman (Deputy Inman)
responded to the hospital where the child was being examined. He
testified that he spoke with the child's mother regarding the
accusations and identified defendant as a suspect. Deputy Inman
did not question the child. Deputy Inman also became aware that
defendant was present at the hospital for unrelated treatment forpain from an injury he obtained while riding a horse. Deputy Inman
spoke with defendant, informed him that he was not under arrest,
and told him that if defendant wanted him to leave, no further
questions would be asked. Defendant told Deputy Inman that the
child had rubbed his back and neck in a suggestive way while in the
car. Upon returning home, he fell asleep on the sofa with his
daughter and sometime during the night, he went to the bedroom to
check on the child. While at the hospital, defendant agreed to
submit to a suspect kit for DNA testing.
Stanly County Sheriff's Detective Sergeant Clyde Coley
(Detective Coley) testified that he spoke with the child and her
mother at their residence on 1 July 2002. Detective Coley
testified to the child's accusations, which were consistent with
her testimony. On 2 July 2002, warrants were issued for defendant,
who was arrested and placed in Stanly County Jail. On 5 July 2002,
Stanly County Sheriff's Deputy Marcus Clack (Deputy Clack) was
transporting defendant to the change-out room in the Stanly
County Jail, where defendant was placed on suicide watch and given
a suicide robe.
In the change-out room, defendant began to cry and stated he
had smoked marijuana and taken Percocet during the day and in the
evening when the incident occurred. Defendant also stated the
child had approached him while he was on the couch. Defendant
stated he was partially out of it and began to interact with the
child. Defendant could not remember whether penetration occurred
and stated he was confused of whom he was touching. Once herealized it was the child, he pushed her away and said something
to the effect that she'd better get out of here or leave before
they both got in trouble. After making these statements,
defendant requested to speak with Detective Coley.
Deputy Clack telephoned Detective Coley and informed him that
defendant wanted to speak to him. Detective Coley told Deputy
Clack that defendant had appointed counsel and defendant would need
to provide written notification that he wanted to speak with
Detective Coley. Deputy Clack called again a short time later and
informed Detective Coley that defendant had prepared and signed a
written statement, which stated, I, Harry Fuller, waive right to
legal counsel and can talk to Detective Coley.
Detective Coley went to the jail, informed defendant he had an
attorney appointed, and that he was making a request to discuss
these matters without the presence of his attorney. Defendant
responded that he still wanted to talk with Detective Coley, signed
a statement acknowledging the waiver of his rights, and stated he
had some things he wanted to get off his chest. Detective Coley
noted these comments on a piece of paper where he later wrote
defendant's statement and also noted the comments on the bottom
portion of the Miranda rights form. After advising defendant he
was represented by counsel and understood that he was waiving that
right, Detective Coley read defendant his Miranda rights and
recorded his statement.
Defendant testified at trial. He stated, I was up against
the steering wheel trying to look at my daughter to speak to her. And it was as dump [sic] a thing to do, I see now. At the time I
thought, well, I just _ she repeated, but she did not _ she reacted
to it . . . [by] purs[ing] her lips and kissed. He testified he
was asleep on the couch and awoke to find the child setting [sic]
on the corner of the couch barely perched and she was playing with
my penis . . . . He pushed her to the floor and told her to get
out of here . . . if my wife would have walked in on it, would have
looked bad on both of us. He passed right back out due to the
amount of Percocet in his system and slept until around 8:00 a.m.
the next morning.
The jury found defendant to be guilty of all charges. The
trial court entered judgment sentencing defendant to a minimum of
336 months to 413 months for the crimes of first-degree sex offense
with a child, second-degree rape, first-degree rape of a child, and
three counts of taking indecent liberties with a child. Defendant
The issues on appeal are whether the trial court erred by:
(1) denying defendant's motions to dismiss; (2) allowing into
evidence statements made by defendant while he was at Stanly County
Hospital; (3) allowing the State to introduce and cross-examine
defendant regarding intercepted letters he wrote to his wife while
in jail; (4) allowing the State to offer evidence of defendant's
spontaneous statement to detention officers while in custody and
represented by counsel; (5) allowing Nurse Smith to be qualified as
an expert and permitting her testimony of whether her examinationwas consistent with someone who had been sexually assaulted; (6)
allowing Dr. Alexander to testify to whether her findings were
consistent with someone who had been sexually assaulted; (7)
allowing the child to testify that nothing like this had ever
happened to [her] before; and (8) denying defendant's request for
jury instructions on the lesser-included offense of attempt.
III. Motions to Dismiss
Defendant contends the trial court erred in denying his
motions to dismiss made at the close of the State's evidence and
again at the close of all evidence. Defendant offered evidence
following presentation of the State's case, which precludes our
review of the motion to dismiss made at the close of the State's
evidence. N.C.R. App. P. 3(b)(3) (2004). Our review is limited to
a consideration of whether the trial court properly denied
defendant's motion to dismiss made at the close of all evidence.
A motion to dismiss for insufficiency of the evidence is
properly denied if substantial evidence exists to show: (1) each
essential element of the offense charged; and (2) that defendant is
the perpetrator of such offense. State v. Powell, 299 N.C. 95, 98,
261 S.E.2d 114, 117 (1980). The trial court's function is to test
whether a reasonable inference of the defendant's guilt of the
crime charged may be drawn from the evidence. Id. at 99, 261
S.E.2d at 117 (citations omitted). The evidence is to be
considered in the light most favorable to the State. Id.
If 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. When theState's evidence is conflicting -- some
tending to incriminate and some to exculpate
the defendant -- it is sufficient to repel a
motion for judgment of nonsuit, and must be
submitted to the jury.
State v. Horner, 248 N.C. 342, 344-45, 103 S.E.2d 694, 696 (1958)
A. Second-Degree Rape
 Second[-]degree rape is vaginal intercourse by force and
against the will of the victim. State v. Morrison, 85 N.C. App.
511, 515, 355 S.E.2d 182, 185 (citing N.C. Gen. Stat. §
14-27.3(a)(1); State v. Barnette, 304 N.C. 447, 284 S.E.2d 298
(1981)), appeal dismissed and disc. rev. denied, 320 N.C. 796, 361
S.E.2d 84 (1987). The force required to constitute rape must be
actual or constructive force used to achieve the sexual
intercourse. Either is sufficient. Morrison, 85 N.C. App. at
515-16, 355 S.E.2d at 185 (citing State v. Alston, 310 N.C. 399,
312 S.E.2d 470 (1984)). The use of force may be established by
evidence that submission was induced by fear, duress or coercion.
State v. Midyette, 87 N.C. App. 199, 201, 360 S.E.2d 507, 508
(1987) (citing State v. Yancey, 291 N.C. 656, 231 S.E.2d 637
(1977)), aff'd, 322 N.C. 108, 366 S.E.2d 440 (1988).
The child testified that defendant had put his private inside
of [her] private between four to eight times. The child
testified she was scared and tried to push him off. This
testimony is sufficient evidence for the jury to decide whether
defendant forcibly engaged in vaginal intercourse with the child
against her will. This assignment of error is overruled.
B. First-Degree Statutory Rape
 To convict defendant of first-degree statutory rape, the
State had to prove that he engaged in vaginal intercourse with a
victim under the age of thirteen years, when he was at least twelve
years old and at least four years older than the victim. State v.
Degree, 322 N.C. 302, 308, 367 S.E.2d 679, 683 (1988) (citing N.C.
Gen. Stat. § 14-27.2(a)(1)).
Here, evidence was presented to show defendant was more than
four years older than the eleven-year-old child. The child
testified defendant put his private inside of [her] private
between four to eight times. Nurse Smith also testified that
during her examination of the child, the child informed Nurse Smith
that defendant had penetrated her vagina with his penis for four
to eight times. This is sufficient evidence for the jury to
determine whether defendant engaged in vaginal intercourse.
Degree, 322 N.C. at 308, 367 S.E.2d at 683. The trial court did
not err in denying defendant's motion to dismiss for insufficiency
of the evidence. This assignment of error is overruled.
 Defendant argues he cannot be prosecuted for both first-
degree statutory rape and second-degree forcible rape. Defendant's
double jeopardy issue and constitutional question was not raised at
the trial court during his motion to dismiss. Further, defendant
moved to dismiss based on insufficiency of the evidence and did
not raise the issue during the jury charge conference, move to set
aside the verdict or for a new trial, or request the court to
arrest judgment on either charge because of double jeopardy issues. Our appellate courts have long recognized that we will not
pass upon a constitutional question unless it affirmatively appears
that such question was raised and passed upon in the court below.
State v. Jones, 242 N.C. 563, 89 S.E.2d 129, 130 (1955). Since
this argument was not raised before the trial court, this
assignment of error is dismissed. See Anderson v. Assimos, 356
N.C. 415, 572 S.E.2d 101 (2002).
C. First-Degree Sexual Offense with a Child
 To sustain a motion to dismiss an indictment for first-
degree sexual offense with a child, the evidence must show:
(1) the defendant engaged in a sexual act,
(2) the victim was at the time of the act
[thirteen] years old or less, and (3) the
defendant was at that time four or more years
older than the victim. G.S. 14-27.4. A
sexual act is defined as cunnilingus,
fellatio, analingus, or anal intercourse . . .
[or] the penetration, however slight, by any
object into the genital or anal opening of
another's body . . . [except for] accepted
State v. Ludlum, 303 N.C. 666, 667, 281 S.E.2d 159, 160 (1981)
(quoting N.C. Gen. Stat. § 14-27.1(4)). Here, the child testified
[defendant] made me suck his private with her mouth. Although
defendant denied this accusation, the child's testimony presents
more than a scintilla of competent evidence to allow the jury, as
fact finder, to determine whether defendant was guilty of engaging
in the sexual act of fellatio with the child. Horner, 248 N.C. at
344-45, 103 S.E.2d at 696. This assignment of error is overruled.
D. Indecent Liberties with a Child
 In order to obtain a conviction for taking indecentliberties with a minor, 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
State v. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580 (1987)
(citing State v. Hicks, 79 N.C. App. 599, 339 S.E.2d 806 (1986));
see also N.C. Gen. Stat. § 14-202.1 (2003). The fifth element,
that the action was for the purpose of arousing or gratifying
sexual desire, may be inferred from the evidence of the defendant's
actions. Rhodes, 321 N.C. at 105, 361 S.E.2d at 580. The
uncorroborated testimony of the victim is sufficient to convict
under N.C.G.S. § 14-202.1 if the testimony establishes all of the
elements of the offense. State v. Quarg, 334 N.C. 92, 100, 431
S.E.2d 1, 5 (1993) (citing State v. Vehaun, 34 N.C. App. 700, 705,
239 S.E.2d 705, 709 (1977), cert. denied, 294 N.C. 445, 241 S.E.2d
Defendant was charged with three counts of taking indecent
liberties with a minor. The evidence establishes the victim was an
eleven-year-old child at the time of the incident and defendant was
forty years old at the time of trial. The child testified that
defendant: (1) lifted her shirt and kissed her breasts; (2) kissed
her private area with his lips; and (3) penetrated her vagina
with his fingers. Following these acts, defendant obtained a
washcloth from the bathroom and wiped something off the bed. These actions are sufficient for the jury to infer that defendant's
actions were for the purpose of arousing or gratifying sexual
desire. Rhodes, 321 N.C. at 105, 361 S.E.2d at 580.
Sufficient evidence was presented to support the elements of
three charges of taking indecent liberties with a minor. The trial
court did not err in denying defendant's motion to dismiss. This
assignment of error is overruled.
IV. Statements at the Hospital
 Defendant contends the trial court erred in admitting into
evidence statements he made to Deputy Inman. We disagree.
In State v. Thomas, this Court considered the question of
whether the interrogation in the emergency room was a custodial
interrogation and that the defendant should have been apprised of
his fifth and sixth amendment rights as vouchsafed by Miranda v.
Arizona, 384 U.S. 436 (1966). 22 N.C. App. 206, 208, 206 S.E.2d
390, 392, appeal dismissed, 285 N.C. 763, 209 S.E.2d 287 (1974).
In Thomas, the trial court found defendant was free to go at his
pleasure; the officers had no intentions of arresting the
defendant for any crime; and the defendant was coherent in
thought and speech . . .[and] not noticeably sedated or under the
influence of any alcohol or narcotic drugs . . . . Id. at 210,
206 S.E.2d at 392. We held no custodial interrogation occurred
because the atmosphere and physical surroundings during the
questioning manifest a lack of restraint or compulsion. Id. at
211, 206 S.E.2d at 393.
Deputy Inman failed to provide defendant with his Mirandarights prior to speaking with him at the hospital. However, on
voir dire, Deputy Inman testified that he informed defendant he was
not under arrest, was free to leave, and did not have to speak with
him. Defendant was not arrested until several days later. The
trial court found defendant was not in custody or under arrest at
the hospital to require a Miranda warning.
Defendant's brief concedes, Obviously, it cannot be contended
that Defendant was in 'custody' at the hospital. Defendant cites
no authority to support his assertion that his statements made at
the hospital were erroneously admitted other than our United States
Supreme Court's recent holding in Fellers v. United States, 540
U.S. 519, 157 L. Ed. 2d 1016 (2004). In Fellers, law enforcement
officers went to the defendant's home to discuss his involvement in
methamphetamine distribution. 540 U.S. at 521, 157 L. Ed. 2d at
1021. At the time of the discussions, the officers possessed a
warrant and a grand jury had indicted the defendant. Id.
Here, Deputy Inman had identified defendant as a suspect.
However, defendant had not been indicted by a grand jury, and no
warrant for arrest had been issued. Fellers is not controlling
precedent for this portion of defendant's argument. Defendant was
told he was not under arrest, was free to leave, and did not have
to speak with the officers. Defendant also concedes the
conversation was not a custodial interrogation. Defendant's
argument is without merit. This assignment of error is overruled.
V. Letters from Jail
 Defendant argues the trial court erred in admitting intoevidence derogatory statements about the child contained in letters
he wrote to his wife while in jail, which were seized by law
enforcement officers. We disagree.
In State v. Wiley, our Supreme Court reviewed the issue of the
constitutional right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures. 355 N.C. 592, 602, 565 S.E.2d 22, 32 (2002) (citing
U.S. Const. amend. IV; see also N.C. Const. art. I, §§ 18, 19, 23),
cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003).
Specifically in Wiley, the Court considered whether defendant [a
prisoner] had an expectation of privacy in a letter, handed to jail
personnel, contained in an unsealed envelope not marked with the
words 'legal' and not addressed to an attorney. 355 N.C. at 603,
565 S.E.2d at 32. The Court held, defendant did not hold a
subjective expectation of privacy in the unsealed envelope he
delivered to [the deputy], and even if he did, this expectation was
not objectively reasonable. Id.
We find Wiley to be controlling and dispositive on this issue.
The letters seized by jail personnel were not marked legal, were
given to jail personnel to be mailed with the outgoing mail, and
were not addressed to an attorney.
 Defendant also argues the letters should not have been
admitted because they contained marital communications. In State
v. Wallace, our Supreme Court held the marital privilege is
personal to the parties; a third person who happened to overhear a
confidential conversation between husband and wife may be examinedas to such conversation. A letter, also, written confidentially by
husband to wife is admissible against the husband, when brought
into court by a third party. 162 N.C. 623, 630, 78 S.E. 1, 12
(1913) (quoting Whar. Cr. Ev., sec. 398). The trial court did not
err by admitting into evidence defendant's letters addressed to,
but not delivered to his wife, written while he was incarcerated in
the Stanly County Jail. This assignment of error is overruled.
VI. Spontaneous Statements to Law Enforcement Officers
 Defendant contends the trial court erred in admitting his
statements to Deputy Clack after defendant visited with the jail
nurse. We disagree.
Defendant argues that his statements were not knowingly or
understandably made. Defendant failed to present any authority in
support of this assignment of error and has waived appellate
review. N.C.R. App. P. 10 (2004). Further, his brief fails to
specifically identify those portions of testimony that were
Were we to find the trial court erred in allowing Deputy Clack
to testify regarding defendant's statements, defendant's own
testimony corroborated his statements to Deputy Clack.
Additionally, defendant has not assigned error to the admission of
his signed statement taken by Detective Coley, which were recorded
after he received Miranda warnings and waived his right to counsel.
This statement also corroborates the statements defendant made to
Deputy Clack. This assignment of error is overruled.
VII. Expert Testimony
Defendant contends the trial court erred in allowing Nurse
Smith, the examining nurse, to be qualified as an expert witness
and also erred by allowing her testimony that her examination of
the child presented conditions consistent with vaginal penetration.
Defendant also argues the trial court erred in allowing Dr.
Alexander to testify regarding whether the child's demeanor and
injuries were consistent with someone who had been sexually
 Defendant argues Nurse Smith was not qualified to testify
as an expert. In Howerton v. Arai Helmet, Ltd., our Supreme Court
reiterated North Carolina's three-step inquiry for evaluating the
admissibility of expert testimony, set forth in State v. Goode,
341 N.C. 513, 527-29, 461 S.E.2d 631, 639-41 (1995): (1) Is the
expert's proffered method of proof sufficiently reliable as an area
for expert testimony? (2) Is the witness testifying at trial
qualified as an expert in that area of testimony? (3) Is the
expert's testimony relevant? 358 N.C. 440, 458, 597 S.E.2d 674,
686 (2004) (internal citations omitted).
It is well-established that trial courts must
decide preliminary questions concerning the
qualifications of experts to testify or the
admissibility of expert testimony. N.C.G.S. §
8C-1, Rule 104(a) (2003). When making such
determinations, trial courts are not bound by
the rules of evidence. Id. In this capacity,
trial courts are afforded wide latitude of
discretion when making a determination about
the admissibility of expert testimony. State
v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370,
376 (1984). Given such latitude, it follows
that a trial court's ruling on the
qualifications of an expert or theadmissibility of an expert's opinion will not
be reversed on appeal absent a showing of
abuse of discretion.
Id. (citations omitted).
Defendant does not challenge the first and third steps of
Goode, but argues Nurse Smith was not qualified to testify as an
expert. The essential question in determining the admissibility
of opinion evidence is whether the witness, through study and
experience, has acquired such skill that he is better qualified
than the jury to form an opinion as to the subject matter to which
his testimony applies. State v. Phifer, 290 N.C. 203, 213, 225
S.E.2d 786, 793 (1976) (citations omitted), cert. denied, 429 U.S.
1050, 50 L. Ed. 2d 766 (1967).
Nurse Smith testified she had been employed at Stanly Memorial
Hospital for nineteen years and had served as nurse manager in the
emergency department for the two years prior to her testimony. She
had a Bachelor of Science in nursing from the University of North
Carolina at Pembroke and had additionally received special sexual
assault nurse examiner training (SANE) in 1999. As part of the
SANE program, she spent forty hours in the classroom and completed
fifty-six hours of clinical practice with law enforcement, rape
crisis centers, and with victim assistance personnel. Nurse Smith
testified she was specifically trained to examine the victim's
demeanor, how they're responding, their body language, their
gestures and the things they say. And . . . also trained to look
for physical evidence and signs of trauma. At the time of trial,
Nurse Smith had been a certified sexual assault nurse examiner forthree years and had conducted several pelvic exams with sexual
assault evidence collection kits. Nurse Smith was tendered and
allowed to testify as an expert in that specialized area as a
sexual assault nurse examiner.
The trial court did not abuse its discretion in allowing Nurse
Smith to testify as an expert in the area of a sexual assault nurse
examiner. This assignment of error is overruled.
B. Consistent With Testimony
 Defendant asserts the trial court erred in allowing Nurse
Smith to testify that the excoriations on the child's labia
majora and that the redness of her breast were consistent with
vaginal penetration and consistent with the child's statements
that defendant had kissed her on her breast. Defendant also
contends the trial court erred in allowing Dr. Alexander to testify
that the child's injuries were consistent with . . . penetration
It is undisputed that expert testimony is properly admissible
when such testimony can assist the jury to draw certain inferences
from facts because the expert is better qualified. State v.
Bullard, 312 N.C. 129, 139, 322 S.E.2d 370, 376 (1984) (citing
Cogdill v. Highway Commission, 279 N.C. 313, 182 S.E.2d 373
(1971)). Our Supreme Court clearly recognizes that an expert
witness may testify, upon a proper foundation, as to the profiles
of sexually abused children and whether a particular complainant
has symptoms or characteristics consistent therewith. State v.
Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002). The factthat this evidence may support the credibility of the victim does
not alone render it inadmissible. Most testimony, expert or
otherwise, tends to support the credibility of some witness.
State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 367 (1987).
Furthermore, expert opinion on an ultimate issue is admissible.
Id. at 31, 357 S.E.2d at 366 (citing N.C.R. Evid. 704).
Defendant does not assign error to the trial court's
qualification of Dr. Alexander as an expert. We previously held
the trial court did not abuse its discretion in qualifying Nurse
Smith as an expert. Based on their qualifications, Nurse Smith and
Dr. Alexander were permitted to testify regarding whether their
examinations and findings were consistent with a child who had
suffered vaginal penetration and kissing on the breast. This
assignment of error is overruled.
VIII. Jury Instructions
 Defendant argues the trial court erred by failing to
instruct the jury on the lesser-included offense of attempted
first-degree sexual offense. We disagree.
[A] defendant is entitled to have a lesser-included offense
submitted to the jury only when there is evidence to support it,
State v. Johnson, 317 N.C. 193, 205, 344 S.E.2d 775, 782 (1986),
and where 'the evidence would permit a jury rationally to find him
guilty of the lesser offense and acquit him of the greater.'
State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000)
(quoting Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d
844, 847 (1973)). If the State's evidence is sufficient to fullysatisfy its burden of proving each element of the greater offense,
and no evidence negates these elements other than the defendant's
denial that he committed the offense, the defendant is not entitled
to an instruction on a lesser offense. Leazer, 353 N.C. at 237,
539 S.E.2d at 925.
Here, defendant testified that while sleeping on the sofa, he
awoke because someone was fondling his penis. He moved toward the
person, but suffered a spasm in his spine that prevented him from
completing any sexual contact. Defendant requested jury
instructions on attempted first-degree rape, attempted first-degree
sexual offense, and attempted second-degree rape. The trial court
denied defendant's request for instructions on attempted first-
degree sexual assault. The transcript and verdict sheets show the
trial court instructed on and the jury considered the charges of
attempted second-degree rape and attempted first-degree statutory
The elements for first-degree sexual assault require the State
to establish the defendant engaged in a sexual act, such as
cunnilingus, fellatio, analingus, or anal intercourse . . . [or]
the penetration, however slight, by any object into the genital or
anal opening of another's body . . . [except for] accepted medical
purposes. N.C. Gen. Stat. § 14-27.1(4). Although defendant
testified he attempted vaginal intercourse with the person
fondling him on the couch, which sustains an instruction on
attempted second-degree rape and attempted first-degree statutory
rape, no evidence was presented that defendant attempted toengage in a sexual act. Defendant's testimony only asserts the
events described above, and he denies any of the other acts of
which he was convicted. Defendant fails to identify any testimony
or evidence to support an instruction on attempted first-degree
sexual offense. This assignment of error is overruled.
The trial court did not err in denying defendant's motion to
dismiss. Substantial evidence of each element was presented for
all offenses charged. The trial court did not err in admitting
defendant's statements to Deputy Inman made while not in custody
at the hospital, before defendant had been indicted or an arrest
warrant had been issued, and after defendant was told he was not
under arrest and free to leave. Defendant failed to present any
authority to support his argument that the trial court improperly
admitted his statements to Deputy Clack and has waived appellate
review of this assignment of error. The trial court did not err in
admitting the letters defendant wrote to his wife from jail that
were seized by jail personnel.
The trial court did not abuse its discretion in allowing Nurse
Smith to be qualified as a sexual assault nurse examiner expert or
in allowing her and Dr. Alexander to testify that their
examinations were consistent with a child who had engaged in sexual
activities. The trial court did not err by denying defendant's
requested jury instruction on attempted first-degree sexual
offense. We conclude defendant received a fair trial free from
errors he preserved, assigned, and argued. No Error.
Judges HUDSON and BRYANT concur.
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