An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-859


Filed: 3 August 2004


v .                         Wake County
                            Nos. 01 CRS 027435
JERRY LEE BUCKMAN                 01 CRS 027437
                             01 CRS 027438
                             01 CRS 027439
                             01 CRS 033262
                             01 CRS 033263    

    Appeal by defendant from judgment entered 10 April 2002 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 21 April 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Buren R. Shields, III, for the State.

    Duncan B. McCormick, attorney for defendant.


    Jerry Lee Buckman (“defendant”) appeals his convictions of first-degree burglary, first-degree kidnapping, first-degree sexual offense, and four counts of first-degree rape. For the reasons stated herein, we hold that the trial court did not err.
    The State's evidence presented at trial tends to show that the accusing witness (hereinafter referred to by the pseudonym “Paige”) first encountered defendant one evening in February 2001, when defendant rang the doorbell to Paige's second-floor apartment and asked to use her telephone. Paige allowed defendant to use her portable telephone, and defendant conducted his telephoneconversation while standing on Paige's front porch. Upon completing his conversation, defendant returned the telephone to her and left her apartment.
    Approximately two weeks later, Paige was returning home from work in the evening and as she walked up the stairs to her apartment she noticed defendant standing on her front porch. Paige asked defendant if she could help him, and defendant asked to use her telephone. Paige declined defendant's request to use the telephone. Defendant walked down the stairs and Paige entered her apartment.
    After 1:00 a.m. on 9 March 2001, Paige was asleep when she heard the sound of the sliding doors in her apartment rattling. She awoke to see a person standing in the door of her bedroom. Paige became frightened and asked the person to please leave. The person left the room and returned holding a knife. The person took a few steps into the room and, in a male voice, demanded that Paige give him all of her money. Paige observed that the man was wearing a ski mask with openings at the eyes and mouth. Paige reached for her wallet, and at the same time yelled to her upstairs neighbor for help. The man grabbed her, threatened her with the knife, and forced her to engage in sexual intercourse four times in various positions. The man then forced Paige to lay face down on the kitchen floor as he left the apartment. After the man left, Paige locked the open door and window in the apartment and began knocking on the common wall between her apartment and her neighbor's apartment. Paige's neighbor, Sean Barker (“Barker”), came to herapartment and found Paige dressed only in her pajama top. Paige explained to Barker about the rape, and together they went to Barker's apartment to call the police.
    In the course of the subsequent police investigation, defendant was arrested and charged with first-degree burglary, first-degree kidnapping, first-degree sex offense, and four counts of first-degree rape.
    The evidence that defendant presented at trial tends to show the following: On the first evening that defendant went to Paige's apartment to use the telephone, defendant and Paige engaged in a conversation and exchanged telephone numbers. Paige showed defendant her car and told defendant that whenever he saw her car in front of the apartment, he would know that she was at home. The following Friday, defendant was walking to a nightclub when he saw Paige's car parked in front of the apartment. He knocked on Paige's front door, and she invited him into the apartment. Paige offered defendant a beer, which he accepted. Paige and defendant talked for approximately an hour and a half before defendant left the apartment.
    On the following Monday or Tuesday, defendant stopped by Paige's apartment again. Paige invited defendant in, and offered him a beer. Paige asked defendant if she could touch his hair because she had never touched dreadlocked hair. Defendant permitted Paige to touch his hair. They began kissing and fondling each other and then they engaged in sexual intercourse on the couch. Later that evening, defendant and Paige engaged in aconversation about witchcraft, and then defendant left the apartment.
    On Thursday of the same week, defendant was walking by Paige's apartment when he saw her coming out of her apartment. Defendant approached Paige and asked her to take him to the store where she had previously purchased witchcraft materials. With Paige driving, defendant and Paige went to the store and shopped there for fifteen or twenty minutes. Paige then drove defendant back to her apartment, dropped him off on the corner, and drove away.
    On Friday, defendant returned to Paige's apartment. They drove to the witchcraft store where they made some purchases. They then drove back to Paige's apartment and defendant went home. Defendant returned to Paige's apartment that evening, and they engaged in sexual intercourse on the couch.
    Several months later, defendant visited Paige in February 2001 to discuss witchcraft. The two conversed for thirty or forty-five minutes before defendant left. On 9 March 2001, defendant went to Paige's apartment at 11:30 p.m. They engaged in sexual intercoruse on Paige's bed. Later that evening, defendant told Paige that he was engaged and that his fiancée was pregnant. Paige became upset and began using racial slurs against defendant. Defendant left the apartment. On Monday, defendant's neighbor showed him a flyer warning residents that a rape had occurred in the neighborhood. The flyer provided a description of the alleged assailant that matched defendant's description. Defendant was questioned by the police several times in connection with the rape investigation. Hewas subsequently arrested and charged with first-degree burglary, first-degree kidnapping, first-degree sex offense, and four counts of first-degree rape.     Defendant was tried before a jury, which found him guilty of all charges. It is from these convictions that defendant now appeals.

    As an initial matter, we note that defendant's brief contains arguments supporting only seven of the original fourteen assignments of error on appeal. The seven omitted assignments of error are deemed abandoned pursuant to N.C.R. App. P. 28(b)(5) (2004). We therefore limit our review to those assignments of error properly preserved by defendant for appeal.
    The issues presented on appeal are whether the trial court erred by (I) denying defendant's pre-trial motion to continue; (II) admitting testimony referring to a murder scene in a horror movie; (III) admitting testimony that a person does not “just have a sexual assault kit for no reason;” (IV) allowing the State to question defendant about his communications with his attorney in preparation for trial; and (V) failing to dismiss three of the four counts of first-degree rape.

    Defendant's first assignment of error asserts that the trial court erred by denying defendant's pre-trial motion to continue. We disagree.
    “[W]hen a motion to continue raises a constitutional issue, the trial court's action upon it involves a question of law whichis fully reviewable on appeal by examination of the particular circumstances revealed in the record.” State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755 (1997) citing State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). “[W]hen a motion for a continuance raises a constitutional issue and is denied, the denial is grounds for a new trial only when a defendant shows that the denial was erroneous and also that his case was prejudiced as a result of the error.” State v. Hill, 116 N.C. App. 573, 578, 449 S.E.2d 573, 576 (1994).
        Continuances should not be granted unless the reasons for the delay are fully established. A motion for a continuance should be supported by an affidavit showing sufficient grounds for the continuance. A postponement is proper if there is a belief that material evidence will come to light and such belief is reasonably grounded on known facts.

State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755-56 (1997) (citations omitted). “A motion for a continuance is ordinarily within the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion.” State v. Weimer, 300 N.C. 642, 647, 268 S.E.2d 216, 219 (1980).
    In the case sub judice, defendant's trial counsel, Keith O. Gregory (“Attorney Gregory”), was the third attorney assigned to represent defendant. Attorney Gregory was appointed on or about 30 January 2002. He received discovery materials from the assistant district attorney on 18 February 2002. Attorney Gregory filed a pre-trial Motion to Continue on 25 March 2002, which was heard by Judge Osmond Smith. The Motion to Continue was denied. AttorneyGregory renewed his Motion to Continue before Judge Stanback at the beginning of trial on 1 April 2002.
    Attorney Gregory made the following statement to the trial court in support of his motion to continue:
        [I] ask for a motion to continue based on the fact that I don't believe that the defense has had an adequate amount of time to prepare in this matter, particularly since there are five B-1 felonies that are involved in which if my client is convicted he can essentially spend the rest of his life in prison.

The trial court then engaged in the following colloquy with Attorney Gregory:
        THE COURT:    All right, do you - - do you need additional time? What do you need additional time for?

        MR. GREGORY:    Your Honor, just to go over the case with Mr. Buckman further as far as any investigation that need [sic] to be done, any further leads that we can track down in this particular matter.

        THE COURT:    But you've discussed the case with him [. . .]

        MR. GREGORY:    Oh yes, yes, I have.

        THE COURT:    [. . .] [n]umerous times and all right that motion will be denied.    

    On appeal, defendant argues that the trial court's ruling deprived defendant of his right to the assistance of counsel and his right to confront any additional witnesses that might have been found as a result of additional investigation. Specifically, defendant argues that “[i]f trial counsel had been able to locateone witness who had seen Mr. Buckman and [Paige] together prior to the date of the offense, the verdict may well have been different.”
    We hold that defendant failed to demonstrate sufficient grounds for a continuance. Defendant presented no affidavit in support of his motion to continue. The reason for the delay was not fully established; there were no known facts to support the argument that material evidence would result from additional investigation. The basis for defendant's argument was that he might have been able to locate a witness who could place defendant and Paige together prior to the alleged offense. However, the defendant presented no evidence that such a witness even exists. Accordingly, we conclude that the trial court did not abuse its discretion by denying defendant's motion to continue.
    Defendant next argues that the trial court erred by allowing witness testimony about a murder scene in a horror movie. Specifically, defendant objected on grounds of relevance to Paige's testimony that after she was raped, defendant took her into a bathroom and asked her if she had ever seen the movie Psycho. The trial court overruled defendant's objection. We find no error in the trial court's ruling.
    “'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2003). “[E]vidence is relevant if it has any logical tendency,however slight, to prove a fact in issue in the case.” State v. Hannah, 312 N.C. 286, 294, 322 S.E.2d 148, 154 (1984), citing 1 Brandis on North Carolina Evidence § 77 (1982). “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . .” N.C. Gen. Stat. § 8C-1, Rule 403 (2003). “[E]ven though a trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.” State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991) citing C. Wright & K. Graham, 22 Federal Practice and Procedure § 5166 (1978).
    In the case sub judice, Paige testified that defendant held her at knifepoint the entire time he was in her home. Paige's testimony was relevant because it tends to prove that defendant acted with force, which is an element of first-degree rape and first-degree sexual offense. See N.C. Gen. Stat. §§ 14-27.2 and 14-27.4 (2003). The term “force” as used in the statutes is not limited to physical force. “It may be actual or constructive. Fear, fright, or duress, may take the place of force.” State v. Johnson, 226 N.C. 671, 674, 40 S.E.2d 113, 114 (1946) (citations omitted). In the present case, Paige's testimony about the movie, Psycho, tends to prove that, based on her knowledge of the movie, she was afraid defendant might try to kill her with a knife in the bathroom. Accordingly, we conclude that the trial court did not err in allowing the testimony.
    Defendant next argues that the trial court erred by allowing witness testimony that a person does not “just have a sexual assault kit for no reason.” We conclude that defendant did not properly preserve this objection for appeal.
    “In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C. R. App. P. 10(b)(1) (2004). “[A] general objection, if overruled, is ordinarily not effective on appeal.” State v. Hamilton, 77 N.C. App. 506, 509, 335 S.E.2d 506, 508 (1985) citing N.C. Gen. Stat. § 8C, Rule 103. “Error may not be argued on appeal where the underlying objection fails to present the nature of the alleged error to the trial court.” State v. Catoe, 78 N.C. App. 167, 168, 336 S.E.2d 691, 692 (1985) citing N.C. Gen. Stat. § 8C-1, Rule 103.
    The trial transcript provides the testimony of Valerie Tart (“Tart”), the nurse who performed a sexual assault kit on Paige after the alleged rape, and defendant's objection thereto as follows:
        Q:    Was [Paige] volunteering any information about what had happened to her?

        A:    A little bit.

        Q:    What sorts of things did she volunteer to you?

        A:    Whenever I talked with her we talked about - - of course I knew she was in theroom for a sexual assault kit and of course you know, you don't just have a sexual assault kit for no reason so - -

        MR. GREGORY:    Objection, your Honor.

        THE COURT:    Well, overruled.

        A:    And I knew - - I'm sorry - -

        THE COURT:    That's all right.

        A:    So she just talked about why she was there. She, you know, had a bad experience that morning and she was ready to go ahead and have the doctor, because this was the last leg of the sexual assault kit for the doctor to come in and take the evidence only the doctor could perform at that time. And she was ready to be, you know, done with it because she was ready to go, just have this over with it and ready to get some rest. She looked like she was very tired.

Although defendant's appellate counsel argues that the objection was to the relevance of Tart's statement, defendant's trial counsel did not apprise the trial court of the basis of his objection. Therefore, there are no grounds upon which this Court can review the trial court's decision to allow the testimony into evidence. Accordingly, we decline to address this issue because it is not properly preserved for appeal.
    Defendant also argues that the trial court committed plain error by allowing the State to question defendant about his interactions with his attorney in preparation for trial. We disagree.
    “In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by ruleor law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C. App. R. 10(c)(4) (2004). Where a defendant fails to object to an error, the defendant bears the burden of proving that the error complained of constitutes plain error. See State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
        The plain error rule is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings.”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982).
    “[W]hen the relationship of attorney and client exists, all confidential communications made by the client to his attorney on the faith of such relationship are privileged and may not be disclosed.” State v. McIntosh, 336 N.C. 517, 523, 444 S.E.2d 438, 441 (1994), citing State v. Ballard, 333 N.C. 515, 428 S.E.2d 178 (1993), cert. denied, 510 U.S. 984 (1993).
        A privilege exists if (1) the relation of attorney and client existed at the time the communication was made, (2) the communication was made in confidence, (3) the communication relates to a matter about which the attorneyis being professionally consulted, (4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated and (5) the client has not waived the privilege.

McIntosh, 336 N.C. at 523-24, 444 S.E.2d at 442, quoting State v. Murvin, 304 N.C. 523, 531, 284 S.E.2d 289, 294 (1981).
    In the case sub judice, the district attorney cross-examined defendant as follows:
                Q:    Mr. Buckman, would it be - - also be fair to say that you have been actively involved in the defense of this case?

        A:    I don't understand what you're asking me.

        Q:    Would it be fair to say that at each stage of these proceedings you have known what was going on?

        A:    At each stage?

        Q:    Uh-huh.

        A:    Since?

        Q:    Since you were arrested.

        A:    The only thing that I knew as far as this trial was when the trial date and that - - just that she was going to testify against me.

        Q:    Okay. How about any tests that were performed in this case, did your lawyers keep you apprised of the results of any scientific tests that were performed in this case?

        A:    Scientific?

        Q:    Uh-huh.

        A:    I don't understand that.
        Q:    Okay. Did your lawyers at any point talk to you or let you know the results of the DNA test when it was done?

        A:    Yes. In fact Karl Knudsen, my first lawyer did.

        . . .

        Q:    Mr. Buckman, would it be fair to say that before I show you Defendant's Exhibit Number 4, you've seen that exhibit before, haven't you?

        A:    Yes, ma'am.

        . . .

        A:    This Defendant's Exhibit I didn't get until December - - December I think.

        Q:    So you remember exactly when you got that piece of paper in front of you; is that fair to say?

        A:    Not exactly. It came with a motion to discover which I had about three and I told my lawyer that I wanted every single thing so I didn't get this - - he had this before I did and I didn't get this until I think around December.

        Q:    So you told your lawyer that you wanted every single thing; is that your testimony?

        A:    Yes.

        Q:    That you wanted to be involved in your case; is that right?

        A:    Yes.

        Q:    And any time that the State gave your lawyer a piece of paper, you wanted to see it; is that true?

        A:    At first I - - I didn't because I didn't know anything about this - - about coming to trial and about being arrested or anything like that because [this] really was my first time actually.
        . . .

        Q:    . . . did there come a time where you said I want to see every piece of paper that you receive?

        A:    Yeah, yes, yes, ma'am.

        Q:    And you spent a lot of time looking at all those pieces of paper; is that true?

        A:    Well, not really.

        Q:    Not really?

        A:    Not really.

The assistant district attorney then asked defendant about his familiarity with specific documents entered into evidence.
    While we agree with defendant that the assistant district attorney's line of questioning exploited the pre-trial communication between defendant and his attorney, defendant has failed to demonstrate how this evidence resulted in plain error. Defendant argues that the testimony “tended to shed light on defense strategy and to reveal to the jury what Mr. Buckman and his attorney deemed important.” However, the defense strategy and the value that the defense placed on certain evidence would be made apparent to the jury as the defense presented its case. Accordingly, we find no plain error.
    Defendant last argues that the trial court erred by failing to dismiss three of the four counts of first-degree rape. We disagree.
    This Court has repeatedly held that “'[g]enerally rape is not a continuous offense, but each act of intercourse constitutes adistinct and separate offense.'” State v. Lancaster, 137 N.C. App. 37, 43, 527 S.E.2d 61, 66 (2000) quoting State v. Dudley, 319 N.C. 656, 659, 356 S.E.2d 361, 363 (1987); State v. Small, 31 N.C. App. 556, 559, 230 S.E.2d 425, 427 (1976), disc. review denied, 291 N.C. 715, 232 S.E.2d 207 (1977). “Each act of forcible vaginal penetration constitutes a separate rape.” Lancaster, 137 N.C. App at 43, 527 S.E.2d at 66, citing State v. Midyette, 87 N.C. App. 199, 202, 360 S.E.2d 507, 509 (1987). See also State v. Grimes, 96 N.C. App. 489, 386 S.E.2d 214 (1989).
    For our analysis of this issue, we find the cases of State v. Lancaster, State v. Grimes, and State v. Midyette, to be instructive.
    In Lancaster, the defendant was convicted of, inter alia, first-degree rape and attempted first-degree rape. This Court described the facts presented at trial as follows:
        Defendant pulled down the victim's pants and underpants and ordered her to spread her legs. Defendant then penetrated the victim from behind. The victim testified she felt defendant's penis inside her vagina and that he then became frustrated and agitated. Defendant then picked up the victim and threw her onto a shelf so that she was facing him. He then ripped the victim's shirt and bra off. Defendant ordered the victim to spread her legs and he forcibly penetrated her vagina with his penis a second time.

137 N.C. App. at 40, 527 S.E.2d at 64. This Court concluded as follows:
        The victim testified that she was penetrated from behind by the defendant. Then, he forced her onto a shelf in the closet so that she was facing him, and he again forcibly penetrated her a second time. Thus, there was sufficientevidence of two separate acts of rape and the trial court did not err in denying defendant's motion to dismiss one of the rape charges.

137 N.C. App. at 43, 527 S.E.2d at 66.
    In Grimes, the defendant was convicted of, inter alia, two counts of first-degree rape. This Court described the facts presented at trial as follows:
        [The defendant] forced [the victim] to have sexual intercourse with him. A short time later, the [defendant] suggested they go into the bedroom. When [the victim] refused, the [defendant] beat her again and proceeded to drag her into the bedroom where he again forced her to have sexual intercourse.

96 N.C. App. at 491, 386 S.E.2d at 215. This Court provided the following conclusion: “The evidence in this case showed two distinct acts of intercourse, both accomplished by force and over the repeated resistance of the victim. This was sufficient to support separate charges and convictions.” 96 N.C. App. at 493, 386 S.E.2d at 217.
    In Midyette, the defendant was convicted of second-degree sexual offense and three counts of second-degree rape. This Court described the facts presented at trial as follows:
        [The defendant] forced [the victim] to lie down on the sofa and had sexual intercourse with her, penetrating her vagina with his penis. Defendant said that he was uncomfortable and pulled [the victim] up from the sofa and pushed her down the hall into her bedroom. He pushed her face down onto the bed and inserted his penis into her vagina from the rear. [The victim] complained that defendant was hurting her; he pushed her onto her back, got on top of her and forcibly penetrated her vagina with his penis a third time.
87 N.C. App. at 200, 360 S.E.2d at 507. This Court provided the following conclusion:
        . . . the evidence showed that defendant penetrated the victim's vagina with his penis on three distinct occasions and that on each occasion he accomplished the vaginal intercourse by the use of actual and constructive force against the will of the victim. The evidence as to each separate act of forcible intercourse was complete and sufficient to sustain a conviction of second degree rape without resort to the evidence necessary to prove either of the other rape charges. Therefore, under [State v. Dudley, 319 N.C. 656, 356 S.E.2d 361] each of the three acts of forcible vaginal intercourse with the victim was a separate rape and defendant was properly convicted and sentenced for all three offenses.

87 N.C. App. at 202, 360 S.E.2d at 508.
    In the case sub judice, the evidence tends to show that when defendant entered Paige's bedroom, he forced her to lay on her stomach at the foot of her bed and penetrated her vagina from the rear. A few minutes later, he demanded that Paige turn onto her back at the head of the bed, and he penetrated her again. Defendant then demanded that Paige lay on her stomach on the floor and he penetrated her again from the rear. Defendant forced Paige to perform fellatio on him, and attempted to penetrate her anally before demanding again that she lay on her stomach on the floor and he penetrated her from the rear. We conclude that, in accordance with Lancaster, Grimes, and Midyette, there was sufficient evidence of four separate acts of forcible intercourse to sustain a conviction of four counts of first-degree rape. Thus, we hold thatthe trial court did not err by denying defendant's motion to dismiss.
    Judges McGEE and TYSON concur.
    Report per Rule 30(e).

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