An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-591


Filed: 16 March 2004


    v .                             Dare County
                                Nos. 02 CRS 618-23

    Appeal by defendant from judgments dated 17 January 2003 by Judge J. Richard Parker in Dare County Superior Court. Heard in the Court of Appeals 5 February 2004.

    Attorney General Roy Cooper, by Assistant Attorney General M. Lynne Weaver, for the State.

    Terry W. Alford for defendant-appellant.

    BRYANT, Judge.

    Bruce Lee Kenneth Pratt (defendant) appeals judgments dated 17 January 2003 entered consistent with a jury verdict finding him guilty of one count of first-degree sexual offense and six counts of indecent liberties with a child.
    The State's evidence tended to show the following: Between 2 July 2001 and 1 August 2001, twenty-one-year-old defendant lived with his girlfriend J.D. and her five-year-old daughter C.D. On 24 January 2002, J.D. learned from C.D. that defendant had sexually assaulted C.D. several times while he was living with them. C.D. alleged defendant “put his mouth to [her] pee pee” three times, “put his hand right on [her] pee pee” three times, and “put his peepee to [her] mouth” once.   (See footnote 1)  At J.D.'s request, defendant left J.D.'s home on 27 January 2002, and he moved to the home of a new girlfriend in February 2002.
    On 25 February 2002, Deputy Sheriff Leary Sink arrested defendant and took him to a detention center, where defendant admitted to Deputy Sink that he had kissed and licked the child's vagina and also “rubbed” it with his hand. Defendant also wrote a confession, and at trial, acknowledged his handwriting on the confession but denied the signature was his. The confession stated:
            I Bruce Pratt admit to touching [C.D.] on her private areas with my hand's [sic], and tonuge [sic].

        I did this to get sexual relief[] . . . .

        This happend [sic] about 6 or 7 times. . . .

        . . . .
                                    7:18 p.m.
Subsequently, defendant was indicted for first-degree sexual offense and indecent liberties with a child.
    Defendant filed a motion to suppress his confession and statements to Deputy Sink. The trial court denied defendant's motion to suppress by order filed 17 January 2003. The trial court also denied defendant's motions to dismiss the charges presented at the close of the State's evidence and at the close of all the evidence.


    The issues are whether the trial court erred in: (I) denying defendant's motion to suppress; (II) denying defendant's motion to dismiss; and (III) failing to find any exculpatory evidence concerning the child in the sealed report prepared by the Dare County Department of Social Services (DSS).

    Defendant first argues the trial court erred in denying his motion to suppress because he was “unconscious of the meaning” of his post-arrest statements to law enforcement officers at the time he made them. Specifically, defendant argues his consumption of pain medicine rendered him incapable of giving a voluntary confession. We disagree.
    “[T]he defendant's constitutional rights have been violated if his conviction is based, in whole or in part, on an involuntary confession, regardless of its truth or falsity.” Miranda v. Arizona, 384 U.S. 436, 465, 16 L. Ed. 2d 694, 718 (1966).
        The fact that [the] defendant was [under the influence] at the time of his confession does not preclude the conclusion that [the] defendant's statements were freely and voluntarily given. An inculpatory statement is admissible unless the defendant is so [impaired] as to be unconscious of the meaning of his words.

State v. Parton, 303 N.C. 55, 69, 277 S.E.2d 410, 420 (1981), overruled on other grounds by State v. Freeman, 314 N.C. 432, 333 S.E.2d 743 (1985); see State v. McKoy, 323 N.C. 1, 22, 372 S.E.2d 12, 23 (1988), sentence vacated on other grounds, 494 U.S. 433, 108 L. Ed. 2d 369 (1990).    If supported by competent evidence, the trial court's findings of fact regarding the admissibility of a confession are conclusive and binding on appeal. State v. Mahaley, 332 N.C. 583, 592, 423 S.E.2d 58, 64 (1992). The trial court's conclusions of law, although fully reviewable on appeal, are binding if supported by the findings. Id. at 592-93, 423 S.E.2d at 64.
    Here, defendant only objects to finding of fact 22; therefore, all other findings are “'“presumed to be supported by competent evidence and are binding on appeal.”'” State v. Phillips, 151 N.C. App. 185, 190, 565 S.E.2d 697, 701 (2002) (reviewing the sole finding of fact objected to by the defendant on appeal from a motion to suppress) (citations omitted); see State v. Watkins, 337 N.C. 437, 438, 446 S.E.2d 67, 68 (1994) (findings of fact not excepted to on appeal from a motion to suppress are not reviewable).
    Finding of fact 22 states: “[A]lthough . . . defendant was in pain at the time he made the statement to Deputy Sink, he was in a mental condition to understand and appreciate the consequences of his action.” This finding is supported by competent evidence.
    Dr. Kimberly Keith, a physician at Health East Outer Banks Medical Center, testified that the amount of medication she administered to defendant on the morning he confessed, would not have any effects that would still be present at the time of the confession 16-19 hours later.   (See footnote 2)  She further testified the pills sheprescribed for defendant could make a person sleepy, but they would have to be taken in a much higher dosage than she prescribed to impair a person's mental condition.   (See footnote 3) 
Moreover, Deputy Sink testified defendant: was “completely coherent”; understood he was being arrested; was able to follow the instructions of the officer conducting the fingerprinting; had taken one Vicodin pill which made him sleepy but did not alleviate his rib pain; indicated he understood his Miranda rights and the charges against him and would answer Deputy Sink's questions without a lawyer; had not expressed any difficulty in understanding Deputy Sink's questions during the interview; wrote and correctly dated a statement; and had even asked Deputy Sink the spelling of certain words.
    Besides finding of fact 22, defendant also objects to conclusions of law 1, 4, 5, 6, and 7, which state:
            1)    . . . [N]one of . . . defendant's constitutional rights, either federal or state, [were] violated by his arrest, detention, interrogation or statement;

            . . . .

            4)    . . . [T]he statement made to Deputy Sheriff Leary Sink by . . . defendant on February 25, 2002 was made freely, voluntarily and understandingly;

            5)    . . . [D]efendant fully understood his constitutional right to remain silent and his constitutional right to counsel and all other rights;
            6)    . . . [D]efendant freely, knowingly, intelligently and voluntarily waived each of those rights and thereupon made the statement to the above-mentioned officer;

            7)    . . . [D]efendant was not unconscious of the meaning of his words due to his taking medication.

These conclusions of law are supported by the trial court's findings of fact.
    Despite his sleepiness, defendant's coherent expression and somber, rational mental state demonstrate he was conscious of the meaning of his words. See McKoy, 323 N.C. at 22-23, 372 S.E.2d at 23-24 (confession was voluntarily made by a defendant who stated he understood his rights, appeared somber during the interrogation, and spoke rationally and coherently, even though he may have experienced some lingering, mild intoxication at the time of the confession); Parton, 303 N.C. at 69-70, 277 S.E.2d at 421-22 (confession was voluntarily made by a defendant who stated he understood his rights and appeared coherent, even though he seemed to be under the influence of a controlled substance at the time). Defendant relies on State v. Moorman, 320 N.C. 387, 358 S.E.2d 502 (1987) for the proposition that defendant's use of a controlled substance negated his ability to tender a voluntary confession. Defendant's reliance on Moorman, however, is without merit.
    In Moorman, our Supreme Court concluded the defendant was denied the right to effective assistance of counsel where the defense attorney's repeated abuse of seven drugs during trial (including Vicodin and Demerol) caused the attorney's judgment and reasoning to be substantially impaired. The Moorman Court basedits conclusion on the findings that counsel demonstrated atypical mood swings during trial, did not appear to pay any attention to the State's case, and during closing arguments, stated defendant's testimony was unworthy of belief. Moorman is clearly distinguishable from our case, wherein defendant did not exhibit any symptoms of impairment. Accordingly, defendant's assignment of error is overruled.


    Defendant next contends the trial court erred in denying his motion to dismiss the charges of first-degree sexual offense and indecent liberties with a child.
    A motion to dismiss is to be denied if the evidence and the reasonable inferences therefrom are sufficient to submit the issues to the jury. State v. Corbett, 339 N.C. 313, 334, 451 S.E.2d 252, 263 (1994). The motion is to be considered in the light most favorable to the State. Id. at 335, 451 S.E.2d at 263. “[C]ontradictions and inconsistencies do not warrant dismissal[, as] the trial court is not to be concerned with the weight of the evidence.” State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998).
    A person is guilty of first-degree sexual offense if he “engages in a sexual act . . . [w]ith . . . a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the [child].” N.C.G.S. § 14-27.4(a)(1) (2003). Cunnilingus is a sexual act. N.C.G.S. § 14-27.1(4) (2003); see State v. Ludlum, 303 N.C. 666, 672, 281 S.E.2d 159, 162(1981) (cunnilingus is the “stimulation by the tongue or lips of any part of a female's genitalia”).
    In the instant case, the State's evidence tended to show that at the time the incidents occurred, defendant was twenty-one years of age, and C.D. was five years old. C.D. testified defendant “put his mouth to [her] pee pee” three times. See id. at 667-74, 281 S.E.2d at 159-63 (testimony of a girl of four years old at the time of the offense that the defendant “touched me . . . with his tongue . . . between my legs” constituted sufficient evidence of cunnilingus to support a conviction for first-degree sexual offense); State v. Stancil, 146 N.C. App. 234, 245, 552 S.E.2d 212, 218 (2001) (testimony of a seven-year-old girl at the time of the offense stating the defendant licked her “privacy” constituted sufficient evidence of cunnilingus to support a conviction for first-degree sexual offense), aff'd as modified, 335 N.C. 266, 559 S.E.2d 788 (2002) (per curium). Furthermore, defendant not only stated to Deputy Sink he had kissed and licked the child's vagina but wrote a statement that he had “touch[ed the child] on her private areas with [his] . . . tonuge [sic]” to sexually relieve himself. See State v. McNeely, 314 N.C. 451, 458, 333 S.E.2d 738, 742 (1985) (evidence was sufficient on the charge of first-degree sexual offense in light of the child's testimony and the corroborating testimony of other witnesses).
    The evidence at trial was also sufficient to overcome a motion to dismiss the charges of indecent liberties with a child. See N.C.G.S. § 14-202.1(a)(1) (2003) (a person is guilty of takingindecent liberties with a child if he is “16 years of age or more and at least five years older than the child in question” and “[w]illfully 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”); see also State v. Banks, 322 N.C. 753, 767, 370 S.E.2d 398, 407 (1988) (the defendant's conduct was “'immoral, improper, or indecent'” within the meaning of section 14-202.1(a)(1) where he kissed the children and put his tongue into their mouths, ears, and noses) (citation omitted); State v. Jones, 89 N.C. App. 584, 598, 367 S.E.2d 139, 147 (1988) (evidence of the defendant's “rubb[ing a four-year-old child's] vagina with his finger” was sufficient to permit the jury to infer he took indecent liberties with the child for the purpose of arousing or gratifying his sexual desire), overruled on other grounds, State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000). Specifically, in the case sub judice, defendant's act of rubbing C.D.'s “pee pee” with his hand was sufficient evidence of indecent liberties to overcome a motion to dismiss. This assignment of error is thus overruled.

    Last, defendant argues the trial court erred in failing to find any exculpatory evidence in the sealed DSS report concerning the child.
            A defendant who is charged with sexual abuse of a minor has a constitutional right to have the records of the child abuse agency that is charged with investigating cases of suspected child abuse, as they pertain to the prosecuting witness, turned over to the trialcourt for an in camera review to determine whether the records contain information favorable to the accused and material to guilt or punishment. If the trial court conducts an in camera inspection but denies the defendant's request for the evidence, the evidence should be sealed and “placed in the record for appellate review.” On appeal, this Court is required to examine the sealed records to determine if they contain information that is “both favorable to the accused and material to [either his] guilt or punishment.” If the sealed records contain evidence which is both “favorable” and “material,” defendant is constitutionally entitled to disclosure of this evidence.

State v. McGill, 141 N.C. App. 98, 101-02, 539 S.E.2d 351, 355 (2000) (citations omitted). “'Favorable' evidence includes evidence which tends to exculpate the accused, as well as 'any evidence adversely affecting the credibility of the government's witnesses.'” Id. at 102, 539 S.E.2d at 355 (citations omitted). “'Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.'” Id. at 103, 539 S.E.2d at 356 (citations omitted).
    We have reviewed the sealed DSS records and found no favorable or material evidence relating to the charges at issue in this case.
    No error.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    The child defined “pee pee” as a person's “private[s].”
Footnote: 2
    At the medical center, Dr. Keith administered an injection of Demerol (75 milligrams) and Phenergan (25 milligrams) at 12:25 a.m. on 25 February 2002.
Footnote: 3
    Dr. Keith prescribed Vicodin pills, which contained Tylenol (500 milligrams) and Hydrocodone (5 milligrams). Defendant was instructed to take one to two pills every six hours for pain.

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