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. . . .
. . . .
[signed]
2-25-02
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).
I
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.
II
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.
III
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