STATE OF NORTH CAROLINA
v. Wake County
No. 00 CRS 19063
TERRENCE JAMAL HINTON
Attorney General Roy Cooper, by Special Deputy Attorney
General Melissa L. Trippe, for the State.
John T. Hall for defendant appellant.
WYNN, Judge.
Defendant, Terrence Jamal Hinton, contends by this appeal that
the trial court erred in (1) granting the State's motion in limine
barring inquiry into the administration of a polygraph test and (2)
denying Defendant's motion to dismiss the charge of second-degree
rape based on insufficiency of the evidence. After careful review,
we find no error.
The State presented evidence at trial tending to show the
following: On the evening of 20 February 2000, a female was at
home with her father, some friends and her children, when Defendant
arrived in an intoxicated condition. The female had known
Defendant for approximately ten years and considered him to be“like a brother.” Defendant asked the female to drive him home,
and she agreed. The female drove Defendant home in his truck and
let him into his house using his keys, accompanied Defendant into
the house to help him make a telephone call, realized that she did
not have a key to her house, and called home to make sure she would
not be locked out of her house.
After calling home, the female attempted to leave Defendant's
home, but Defendant forcefully closed the door. When the female
opened the door again, Defendant repeated his action. The female
then attempted to exit the house through the kitchen, and Defendant
grabbed her in a “bear hug,” threw her to the floor, reached into
her shorts and pulled them down. Defendant unzipped his pants,
removed his penis, pinned the female to the ground and attempted to
pull her underwear to the side. Defendant then picked up the
female and carried her to the couch in the living room, where he
forced her to have sexual intercourse with him.
Defendant testified at trial that he and the female engaged in
consensual sexual intercourse. Defendant contended that he and the
female had started kissing, and that she consented to sex if he
would perform oral sex on her. Defendant then performed oral sex
on her, went to the couch in the living room, and the two had
consensual sex. After the female left, Defendant testified that
her family and friends came to his home and assaulted him.
The jury found Defendant guilty of second-degree rape, and the
trial court sentenced him to a term of 100 to 129 months'
imprisonment. Defendant appealed. ____________________________________________________
We first consider whether the trial court erred by granting
the State's motion in limine prohibiting inquiry into the
administration of a stress or lie detector test that was
administered to Defendant. Defendant contends that the trial
court's ruling was too broad and that he should have been allowed
to elicit testimony from the test examiner regarding Defendant's
demeanor during administration of the test. As credibility was a
key issue in this case, Defendant argues the trial court's decision
unfairly tilted the playing field in the favor of the prosecution.
Although Defendant acknowledges that the nature, questions, and the
results of the test were not admissible, he contends that other
evidence of the circumstances surrounding the test should have been
admitted. Defendant's argument fails on two grounds.
First, it is well established that an exception to the
exclusion of evidence cannot be sustained where the record fails to
show what the witness's testimony would have been had he been
permitted to testify. State v. Golphin, 352 N.C. 364, 462, 533
S.E.2d 168, 231 (2000), certs. denied, 532 U.S. 931, 149 L. Ed. 2d
305 (2001). For a party to preserve for appellate review the
exclusion of evidence, the significance of the excluded evidence
must be made to appear in the record and a specific offer of proof
is required unless the significance of the evidence is obvious from
the record. Id. In the instant case, Defendant failed to make an
offer of proof, and the substance of the test examiner's testimony
is not apparent from the record. Thus, Defendant's assignment oferror has not been properly preserved for appellate review.
Second, even assuming arguendo that an offer of proof had been
made, polygraph evidence is not admissible at trial. State v.
Grier, 307 N.C. 628, 645, 300 S.E.2d 351, 361 (1983). This
exclusion applies to “all evidence concerning whether or not, in
the operator's opinion, the defendant was being deceptive.” State
v. Singletary, 75 N.C. App. 504, 506-07, 331 S.E.2d 166, 168, disc.
review denied, 314 N.C. 335, 333 S.E.2d 495 (1985). Thus, the
trial court properly excluded evidence regarding Defendant's
demeanor during the polygraph examination.
We next consider whether there was sufficient evidence to
sustain the conviction. Defendant contends that the female's
testimony was “inherently incredible, not worthy of belief and
rendered the guilty verdicts . . . unreliable.” Defendant contends
that there was motive for her to not tell the truth about her
consensual sexual encounter, stating that “[s]he wished to avoid
the wrath of her family and friends.”
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434
(1997). “'Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.'”
Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C.
557, 564, 411 S.E.2d 592, 595 (1992)).
In the instant case, Defendant was charged with second-degree
rape. To prove the elements of second-degree rape, the State mustshow that the defendant (1) engaged in vaginal intercourse with the
victim; (2) by force; and (3) against the victim's will. N.C. Gen.
Stat. § 14-27.3; State v. Scercy, 159 N.C. App. 344, 352, 583
S.E.2d 339, 344, disc. review denied, 357 N.C. 581, 589 S.E.2d 363
(2003). Here, the female testified that Defendant forced her to
have sexual intercourse with him, that she pleaded with him to
stop, and that she did not consent to having sex with him. Her
testimony alone was sufficient to support Defendant's conviction
for second-degree rape. Although Defendant argues that the
female's testimony was not credible, the jury was “free to believe
or disbelieve the witness's testimony as it saw fit.” State v.
Hinton, 95 N.C. App. 683, 691, 383 S.E.2d 704, 709 (1989), disc.
review denied, 326 N.C. 266, 389 S.E.2d 117 (1990); see also State
v. Newman and State v. Newman, 308 N.C. 231, 237, 302 S.E.2d 174,
179 (1983) (stating that “[i]t is well settled in this jurisdiction
that a conviction for rape may be based upon the unsupported
testimony of the prosecuting witness.”); State v. Shaw, 284 N.C.
366, 370-71, 200 S.E.2d 585, 588 (1973). Accordingly, we conclude
there was sufficient evidence to support the rape conviction and
the trial court did not err in denying Defendant's motion to
dismiss.
No error.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).
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