An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-633


Filed: 4 May 2004


     v .                              Forsyth County
                                     No. 02 CRS 60408

    Appeal by defendant from judgment entered 14 February 2003 by Judge Andy Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 4 February 2004.

    Attorney General Roy Cooper, by Assistant Attorney General, Jeffrey R. Edwards, for the State.

    James M. Bell for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Michael Christopher Talbert was tried before a jury after being charged with one count of second-degree rape and one count of second-degree sexual offense. The State's evidence tended to show the following: On 20 July 2002, Cara Christensen, Raquel James, and the victim made plans to go to a Winston-Salem dance club. The victim had been drinking all day and smoked some marijuana before meeting her friends at Christensen's house around 9:30 p.m. The three friends, along with Robert James, and Gerald Simmons smoked more marijuana and had several more alcoholic drinks before leaving for the club around 11:00 p.m. Defendant was also present, but did not drink any alcoholic beverages. The victim had met defendant previously, rebuffed his advances, and told him thatshe was not interested in him. Although the victim had intended to drive to the club, she was persuaded to leave the car at a nearby gas station because she had been drinking.
    While at the club, the victim danced suggestively with several men, including defendant. When the club closed around 2:00 a.m., the victim and Raquel James went to Christensen's house, while Christensen went to visit a friend at a hospital. James invited defendant over to eat spaghetti and have more drinks. The three ate, the victim had more drinks, and the victim and defendant played cards until James retired to bed.
    When Christensen returned home at 4:30 a.m., defendant answered the door. Christensen walked in and saw the victim lying face down on the futon with her underwear on the floor. Christensen smelled the odor of sex and accused defendant of disrespecting her house. Defendant laughed. Once defendant left, Christensen tried to wake the victim up by shaking her shoulders and calling out her name, but the victim would not wake up.
    After the victim awoke around noon, Christensen asked her if she knew what happened the night before. When Christensen asked the victim if she gave defendant permission, the victim asked, “Permission for what?” Christensen told the victim she thought defendant had taken advantage of her the night before. The victim was upset and responded, “No, I didn't know that. . . .I can't believe this.” In a phone conversation later that day, the victim told Christensen that she did not consent to the sexual activity with defendant and did not know it had happened.     The victim left Christensen's house. About an hour later, the victim obtained defendant's phone number and called him immediately. When she asked defendant what happened the night before, defendant replied: “I'm sorry. I'm sorry. I'm sorry.” The victim then asked defendant why he was apologizing, and he told her: “We had sex.” The victim asked if she consented to the sex, and he said: “No.” When the victim then concluded that she had been raped, defendant replied: “I wouldn't say that. But, I'm sorry. I'm sorry.” Defendant also admitted that he removed the victim's pants and underwear while she was passed out.
    The next day, the victim went to Forsyth Medical Center for a sexual assault examination. Forensic nurse, Courtney Tucker, found at least fourteen tears to the victim's cervix and a bruise on her outer right thigh. Nurse Tucker indicated that she did not believe that the sex was consensual because there were no signs that her body had gone through any of the human sexual response actions. Nurse Tucker also believed that the injuries were consistent with blunt force trauma and with the victim's assertion that she was asleep or passed out at the time of digital penetration and intercourse. Based on these observations, Nurse Tucker contacted the Winston-Salem Police Department.     
    Officer Matthew Mulgrew of the Winston-Salem Police Department responded to the call from Nurse Tucker. Officer Mulgrew took a statement from the victim and said that she seemed upset and shaken up by the whole incident. Officer Mulgrew further determined thatthe case should be referred to the detective division to complete an investigation.
    Detective Carla Yandell interviewed defendant on 4 September 2002. Defendant told the detective that the victim was acting crazy that night. He stated that he made love to the victim for fifteen to twenty minutes while she continued to lay face down on the futon. Defendant further explained that he had vaginal intercourse from a rear position and heard the victim make mumbling sounds. He also told Detective Yandell that the victim never moved her hands, touched him, or attempted to undress.
    Defendant testified in his own defense. He stated that the victim was grinding against him as she danced at the club. Defendant also indicated that the victim was “playing footsie” under the table and making sexual jokes with him while they played cards. Defendant testified that he thought the victim wanted to have sex with him because she was flirting with him and motioned him into the den. When defendant got on the futon with the victim, he put his finger inside the victim's vagina. Defendant testified that the victim made soft, moaning sounds. At that point, defendant put on a condom, removed the victim's pants and underwear, and had sex with her. On cross-examination, defendant acknowledged that he did not know whether he told anyone, other than his lawyer, that the victim motioned him into the den.
    The jury found defendant guilty of one count of second-degree rape and one count of second-degree sexual offense. Defendant was sentenced to a term of 51-71 months in prison.     Defendant appealed. On appeal, defendant argues that the trial court erred by: (I) incorrectly conducting the jury voir dire proceeding, (II) limiting the cross-examination of the victim, (III) restricting some testimony about the victim's dancing, (IV) giving an erroneous jury instruction, and (V) denying defendant's motion to dismiss for insufficiency of the evidence. We disagree and conclude that defendant received a fair trial free from reversible error.

I. Voir Dire Proceeding
    Defendant claims that the trial court erred in the way it conducted the jury voir dire proceeding. To preserve an issue for appellate review, a party must have raised a timely objection in the trial court and stated the grounds for the objection. N.C.R. App. P. 10(b)(1) (2004). In his brief, defendant admits that he did not object to this procedure. Because he failed to object, defendant has lost the right to appeal this issue. Furthermore, defendant is not entitled to plain error review because plain error review has only been applied to jury instructions or evidentiary matters. State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999), motion denied, cert. denied, 353 N.C. 382, 547 S.E.2d 443 (2001). Therefore, this assignment of error is rejected.
II. Scope of Cross-Examination
    Defendant contends that the trial court erred by limiting the cross-examination of the victim. “A witness may be cross-examined on any matter relevant to any issue in the case, includingcredibility.” N.C. Gen. Stat. § 8C-1, Rule 611(b) (2003). “The trial court has broad discretion over the scope of cross-examination.” State v. Warren, 347 N.C. 309, 317, 492 S.E.2d 609, 613 (1997), cert. denied, 523 U.S. 1109, 140 L. Ed. 2d 818 (1998). Additionally, the trial court must exercise control over the mode of interrogation to “avoid needless consumption of time” and “protect witnesses from harassment or undue embarrassment.” N.C. Gen. Stat. § 8C-1, Rule 611(a) (2003). “The trial judge's rulings in controlling cross examination will not be disturbed unless it is shown that the verdict was improperly influenced.” State v. Hatcher, 136 N.C. App. 524, 526, 524 S.E.2d 815, 816 (2000).
    Defendant claims that if he had been allowed to continue questioning the victim, it is possible that the victim would eventually remember something that happened during the time the sex occurred. This argument is unconvincing because the victim repeatedly stated that she did not remember anything:
        Q. So what you're saying is that you don't remember anything but the time you were eating spaghetti until the time that you woke up the next morning?

        A.    I don't.

        Q.    Do you still not recall anything?

        A.    No.

        Q. Do you recall Raquel James issuing some instructions as to where people were supposed to sleep?

        A.    No.
        Q.    You don't remember that?

        A.    No.

        Q. Do you recall Raquel James leaving the room and going back to the back bedroom?

        A.    No.

        Q. Do you recall getting up from the kitchen table and walking over to the den?

        A.    No.

        Q. Do you recall motioning to Mike [defendant]?

        A.    Excuse me?

        Q. Do you recall motioning to Mike [defendant] to follow you into the den?

        A.    No.

        Q. Do you recall lying down on the futon on your stomach?

        A. No. I said I don't recall anything after we left the table.

        Q. I just want to see if you possibly recall some of these specific things.

        A. If I don't recall, I don't recall.

        Q. So do you recall Mike [defendant] coming into the room, following you into the den?

        A. I said I don't recall.

At that point, the prosecutor objected because the witness stated that she did not remember, and the questioning had become repetitive. The court agreed and sustained the objection.
    We conclude that the trial court properly intervened to limit the scope of cross-examination. The victim clearly stated that she had no recollection of events that occurred after a certain point. Therefore, the trial court's decision was appropriate because it prevented needless consumption of time and harassment of the witness. This assignment of error is meritless.
III. Testimony About the Victim's Dancing
    In his third argument, defendant contends that the trial court erred by not allowing Robert James to testify that he told someone else that the victim was dancing “as if she was having sex.” Under N.C. Gen. Stat. § 8C-1, Rule 403 (2003), relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]” “Whether or not to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial judge.” State v. Maney, 151 N.C. App. 486, 490, 565 S.E.2d 743, 746 (2002), appeal dismissed, 356 N.C. 688, 578 S.E.2d 324 (2003). “This Court will not intervene where the trial court has properly weighed both the probative and prejudicial value of the evidence and made its ruling accordingly.” Id.
Here, the trial court conducted the proper balancing and determined testimony that a rape victim had been dancing “as if she was having sex” was unduly prejudicial to the State. We believe that the trial court acted within its discretion in making this ruling. Additionally, defendant's argument leaves out an important point: Robert James was allowed to offer a vivid description of what transpired on the dance floor. James recounted that the victim was grinding, placing her buttocks against men's crotches, and grabbing defendant's penis. We conclude that the trial court acted appropriately in excluding evidence that would undulyprejudice the State, while permitting defendant to present testimony which supported his claim that the victim was a consenting, willing participant in sexual intercourse. Since the trial court conducted the Rule 403 balancing test properly, this assignment of error is rejected.
IV. Jury Instruction

    Defendant argues that the trial court erred in giving an instruction that described the term “physically helpless” to the jury. Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure describes how to preserve instructional errors for appeal:
        A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury, and, on the request of any party, out of the presence of the jury.

N.C.R. App. P. 10(b)(2) (2004) (emphasis added). A defendant fails to preserve an issue on appeal pursuant to Rule 10(b)(2) where the objection to the instruction at trial differs from the objection on appeal. State v. Francis, 341 N.C. 156, 160, 459 S.E.2d 269, 271 (1995). The purpose of the rule is to encourage parties to notify the court of potential errors before the jury deliberates. Id. This allows the court to cure the problem and eliminate the need for a new trial. Id.    In this case, defendant's attorney objected to the instruction which defined physical helplessness when the attorneys met with the judge to forecast what was going to be addressed at the charge conference. The judge noted the objection and told defendant's attorney that he did not need to make the objection again during the charge conference. Therefore, we disagree with the State's contention that the objection was never raised.
    However, it is important to note that defendant's objection was based on the notion that the court should not deviate from the pattern jury instructions. At trial, defendant's attorney never claimed that the instruction was patently defective, and he even admitted that “[The proposed instruction] states the law.” Defendant appears to be raising a different argument on appeal. Now, he suggests that the instruction is patently defective because it overlooks “the situation where the woman may give full and voluntary consent immediately[,] prior to[,] or even at an early stage of intercourse and subsequently falls asleep.” Since defendant's objection at trial (that the trial court should use the pattern jury instructions only) differs from the theory presented on appeal (that the instruction was patently defective), we conclude that defendant did not preserve this error for appellate review pursuant to Rule 10(b)(2). Furthermore, because defendant failed to assert plain error in this assignment of error, we decline to conduct a plain error review. State v. Truesdale, 340 N.C. 229, 232-33, 456 S.E.2d 299, 301 (1995). This assignment of error is overruled.
V. Motion to Dismiss
    In his last argument, defendant contends that the trial court erred in refusing to grant his motion to dismiss. In ruling on a motion to dismiss, the trial judge must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The court must find that there is substantial evidence of each element of the crime charged and of defendant's perpetration of such crime. Id. “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id.
    Defendant contends that based on the evidence presented, a rational trier of fact could not find that the victim did not consent to sex with defendant or that the victim was physically helpless at the time of the sex acts. However, the victim testified that she did not consent to sex with defendant. She also revealed that defendant told her that she passed out and that he had sex with her while she was passed out. We conclude that there was substantial evidence tending to show that the victim did not consent and that she was physically helpless when the intercourse took place. Thus, the trial court properly allowed the jury to decide whether it was convinced of defendant's guilt beyond a reasonable doubt. This assignment of error is dismissed.
    After a careful review of the record, the transcript, and the arguments presented, we believe that defendant received a fair trial free from reversible error.    No error.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).

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