STATE OF NORTH CAROLINA
v
.
Beaufort County
Nos. 01 CRS 53106
MARKEL DEVON BRAXTON and 01 CRS 53107
ELLIS TYRONE FOREMAN
Attorney General Roy Cooper, by Assistant Attorney General
Barbara A. Shaw, for the State (Foreman appeal).
Attorney General Roy Cooper, by Assistant Attorney General
Philip A. Lehman, for the State (Braxton appeal).
Nora Henry Hargrove for Devon Braxton defendant appellant.
Margaret Ciardella for Ellis Tyrone Foreman defendant
appellant.
McCULLOUGH, Judge.
Defendants Ellis Tyrone Foreman and Markel Devon Braxton
(collectively “defendants” and individually “defendant Foreman” and
“codefendant Braxton”) were tried during the 21 October 2002
Session of Beaufort County Criminal Court on indictments of first
degree burglary and attempted first degree sexual offense. The
State's evidence tended to show the following: The victim in this
case, Ms. Kenya Smaw (the “victim”), and defendant Foreman, were at
one time boyfriend and girlfriend. Their relationship had lastedapproximately three years. The victim ended her relationship with
defendant Foreman a few days prior to the incident from which these
criminal charges arose. After the break-up the victim had allowed
defendant Foreman to use her key to go and get items he left at her
house. As for codefendant Braxton, he and the victim had grown up
together and were long-time friends.
On the evening of 1 October 2001, the victim had company over
to her duplex. Defendants and a man by the name of Tony Sinclair
were among the company. By 11:30 p.m., all the company had left.
Staying with the victim on that night was her three-year-old
daughter, and two other children ages six and five years old. They
had been put to bed by the time the company left, and after
checking on them the victim went to bed.
The victim testified that she woke up later that night because
she could not breath. She felt a blanket around her head and her
hands were tied. She could not move her feet or legs, and saw
codefendant Braxton holding them down. She saw defendant Foreman
when he attempted to cover her head with the blanket. Defendant
Foreman then sat on top of her across her chest. Struggling, the
victim began to bite and tried to get up. Defendant Foreman beat
her as she struggled and made noise. At some point, the victim's
noise woke up the six-year-old child who then came into the
victim's bedroom. Codefendant Braxton took the six-year-old child
back to where she had been sleeping, and returned to watch
defendant Foreman. Defendant Foreman took a comb, and using the
teeth, raked it across the victim's vagina, while codefendantBraxton held her hands against her chest. Foreman tried to insert
the comb into her vagina, but was unable to due to the victim's
struggle. Foreman continued beating her, calling her a whore and
a bitch. When the victim asked codefendant Braxton for help, he
did nothing to stop defendant Foreman or cut her loose, saying that
it would be over soon. The victim testified that she had told
codefendant Braxton's mother that in some strange way codefendant
Braxton was attempting to comfort her. Defendant Foreman next
turned the mattress over and stomped on the victim. He then went in
her drawer, took out $25.00 dollars and some cigarettes, and then
defendants left the duplex. The victim called the six-year-old
child and asked her to go to the neighbors for help, and to cut the
shoestrings off her wrists.
Patrol Corporal Christopher Latta with the Washington Police
Department was the first to arrive at the duplex, dispatched on 2
October 2001 at 2:38 a.m. When he went in the victim's bedroom he
saw the mattress turned over, shoestrings, and a belt at the end of
the bed. He saw that the living room window was open and that the
blinds were torn out and were outside on the ground.
Detective Stephen Waters with the Washington Police Department
was called to the scene by Officer Latta to collect evidence. In
the living room, he found that the screen was set in the window but
not aligned in the frame, and the blinds from the window were
outside on the ground; and in the victim's bedroom, he found
several shoestrings, a shirt tied in a knot, and a belt. He
interviewed the victim and took her statement. Staff nurse at the emergency room, Anita Woolard, observed and
assisted the victim on the early morning of 2 October 2001. Nurse
Woolard observed marks on her right wrist and raised welt marks on
her left buttock. There were two minute superficial lacerations to
her labia minora, the inner fold that leads to her vaginal area.
One of these lacerations was one to two millimeters in length, and
the other approximately four millimeters in length.
Defendants' evidence tended to show the following: Defendant
Foreman was the boyfriend of the victim, and he often spent the
night at her duplex. At times he had a key to her duplex and on a
regular basis would go into her duplex to hang out. On 2 October
2001, he did not believe he and the victim were broken up.
He and codefendant Braxton were best friends and had gone to
the victim's duplex on the night in question. They had been hanging
out, drinking, and smoking marijuana with some of their friends and
then left for the evening. They returned to the duplex to get
something more to drink. Defendant Foreman opened the door with
his key and went in the bedroom. He saw the victim there, lying
asleep with Tony Sinclair. Defendant Foreman cursed and turned on
the light. Codefendant Braxton heard this, ran back to the bedroom,
and laughed at his friend. To this, defendant Foreman testified
that he lost his temper and started beating the victim and calling
her names. He then tied her with shoestrings and held her down
with a sheet. Using a comb that was on the bed, he hit the victim's
head, hands, arms, back, and ankles. She called out for help to
codefendant Braxton who said, “I ain't got nothing to do with it.” At one point during the beating, codefendant Braxton went into the
bedroom across the hall to quiet the crying children. Defendant
Foreman said he had given her $15-$20 earlier that day, and he went
in her drawer to take it back. He testified he then took $2.00
that were lying on the floor. They then left.
Both defendants testified as to their criminal records.
Defendant Foreman was found guilty of non-felonious breaking
or entering and attempted first degree sex offense. He received
consecutive terms of imprisonment of 120 days and 251 to 311
months. Codefendant Braxton was found guilty of non-felonious
breaking or entering and attempted second degree sex offense. He
received consecutive terms of imprisonment of 120 days and 117 to
150 months.
On appeal defendants raise the following common issues: (I)
the trial court prejudicially erred in abrogating its role of
fairness and impartiality, by aiding the prosecution both inside
and outside the presence of the jury; and (II) defendants were
deprived their statutory right to discovery and constitutional
right to due process, when the State failed to disclose the
victim's medical report and the trial court allowed the testimony
of the examining nurse. Additionally, defendant Foreman raises
the following issues as to his charges: (I) the trial court
prejudicially erred in failing to instruct on simple assault as a
lesser included offense of first degree sexual offense; (II) the
trial court prejudicially erred in admitting the testimony of
Patrol Corporal Latta as his testimony was hearsay evidence; and(III) the trial court erred in denying defendant Foreman's motion
to dismiss as the State lacked substantial evidence to sustain his
conviction on both charges. Additionally, codefendant Braxton
raises the following issues as to his charges: (I) the trial court
prejudicially erred in finding that the six-year-old child was
competent to testify without allowing cross-examination as to
whether she had been coached; and (II) there was insufficient
evidence that codefendant Braxton shared a common purpose with
defendant Foreman to commit attempted second degree sexual offense
based on the doctrine of “acting in concert.”
We now turn to these issues.
[THE STATE'S REDIRECT]: [Victim], when
you went to bed that evening, was your house
secured?
A: Yes, ma'am.
[THE STATE]: Your doors and windows
closed.
A: Yes.
[THE STATE]: After the incident you were
cut loose by [the six-year-old child].
Were you able to see anything unusual
about the condition of any of the entrances
into your home?
A: Yes.
[THE STATE]: What were you able to see
and in what room?
A: In my living room to the window on the
outside - in the living room, the window was
up, and my blind was lying outside on the
ground.
[THE STATE]: Was that the condition it
was in when you went to bed?
A: No, ma'am.
[THE COURT]: Ask her what condition was
it in when she went to bed.
[THE STATE]: What condition was it in when
you went to bed?
A: It was hanging low_-it was hanging up,
and I had lowered my blinds.
(Emphasis added.) The victim went on to testify that the blinds
were attached when she went to bed, and that the window was closed
but not locked.
Rule 614(b) of the North Carolina Rules of Evidence states
that, “[t]he court may interrogate witnesses, whether called by
itself or by a party.” N.C. Gen. Stat. § 8C-1 (2003), Rule 614.
However, “the judge may not express during any stage of the trial,
any opinion in the presence of the jury on any question of fact to
be decided by the jury.” N.C. Gen. Stat. § 15A-1222 (2003). In
order to insure justice for the parties, the trial court may ask
clarifying questions of a witness to alleviate confusion. State v.
Quick, 329 N.C. 1, 21-22, 405 S.E.2d 179, 192 (1991). Such
questions are only prejudicial error if “by their tenor, frequency,
or persistence, the trial judge expresses an opinion.” State v.
Rinck, 303 N.C. 551, 562, 280 S.E.2d 912, 921 (1981).
Additionally, the answer to the court's questions may provide
useful testimony for the State without being prejudicial. State v.
Smarr, 146 N.C. App. 44, 52-53, 551 S.E.2d 881, 886-87 (2001),
disc. review denied, 355 N.C. 291, 561 S.E.2d 500 (2002). In fact,
“[a] judge may ask questions . . . that elicit testimony which
proves an element of the State's case so long as he does not
comment on the strength of the evidence or the credibility of the
witness." State v. Lowe, 60 N.C. App. 549, 552, 299 S.E.2d 466, 468
(1983).
In Smarr, we found the trial court did not commit prejudicial
error in eliciting testimony showing that the defendant in thatcase possessed the intent to commit armed robbery, where the record
was unclear as to whether the State had offered evidence of this
element on their own. We held that the court's questions,
attempting to clarify the time period of events in that case which
also showed intent, was not error. Smarr, 146 N.C. App. at 52-53,
551 S.E.2d at 886-87.
In the case at bar, the trial court initiated further redirect
testimony by the victim to determine more clearly how she believed
defendants entered the duplex. There is no suggestion in the
court's first question as to any weight that the victim's response
might bring her credibility. Furthermore, we do not believe that
merely because the second question asked by the court was through
the State's attorney, that the court inferred any weight to the
victim's response or her credibility. Defendants cite no case for
this per se proposition of prejudice. There most be a more
affirmative display by the trial court to infer prejudice. See
Rinck, 303 N.C. at 62-63, 280 S.E.2d at 921. Regardless, as to the
second question asked by the court through the State, the response
by the victim simply repeated the information first elicited in the
redirect testimony, that the victim went to bed with her windows
closed. Therefore, defendants' assignment of error on this point is
overruled.
In a related point, defendants argue that the trial court
committed error during a jury charge conference with the prosecutor
and two defense attorneys. In determining the charge for non-
felonious breaking or entering, the trial court stated: COURT: I further propose as part of that
instruction to instruct the jury or enfold in
[sic] within that instruction the doctrine of
acting in concert. If that's the State's
theory.
Defendant claims this violated defendants' state and federal
constitutional rights by providing the State with a theory of
criminal liability and thus abandoning the court's impartial role.
N.C. Gen. Stat. § 15A-1231(b) (2003) requires trial courts,
outside the presence of the jury, to conduct a conference to
determine jury instructions. The conference should include:
[T]he judge must inform the parties of the
offenses, lesser included offenses, and
affirmative defenses on which he will charge
the jury and must inform them of what, if any,
parts of tendered instructions will be given.
A party is also entitled to be informed, upon
request, whether the judge intends to include
other particular instructions in his charge to
the jury.
N.C. Gen. Stat. § 15A-1231(b). We believe the above statement by
the trial court to the State's attorney was in conformance with
this statutory mandate. The transcript shows that the trial judge
was merely clarifying what he believed the State's theory to be,
based upon evidence the State had just put on for the charge of
non-felonious breaking and entering against defendants. Therefore,
defendants' assignment of error on this point is overruled.
II. Testimony of Examining Nurse/Medical Report
Defendants next contend the trial court erred in allowing the
State's questioning of Nurse Woolard. We do not agree.
Codefendant Braxton made voluntary discovery requests to the
State. In response, the State informed him that he could obtaindocuments from Detective Waters. Two days before the trial,
codefendant Braxton's counsel went to Detective Waters to review
discovery materials and was advised that, because no rape kit had
been prepared, there was no medical report. On the day of trial,
approximately 30 minutes before proceedings were to begin,
Detective Waters informed defense counsel of the existence of a
medical report. As a result, the trial court gave defendants 40
minutes to review the report and discuss it with Nurse Woolard.
After this time, defendants motioned to exclude both the medical
report, and Nurse Woolard's testimony contending they had not had
adequate time to prepare. They contended at trial that had they
known about the medical report, they would have “take[n] these
records to a physician and g[otten] a second opinion as to the
implications of them and what they purport[ed] to have found.” In
response to their motions, the court allowed the admission of the
testimony of Nurse Woolard, and denied the admission of the medical
report. The trial court ruled that Nurse Woolard could testify
“about what she saw, what she heard, [and] what the victim said to
her” when the victim came to the hospital for treatment after the
attack.
N.C. Gen. Stat. § 15A-910 (2003) governs the regulation of
discovery in criminal cases and empowers the court to apply
sanctions for non-compliance. Two measures of sanctions a court may
employ are to “[g]rant a continuance or recess” or to “[p]rohibit
the party from introducing evidence not disclosed.” N.C. Gen.
Stat. § 15A-910. While the trial court has the authority to imposediscovery violation sanctions, it is not required to do so. State
v. Hodge, 118 N.C. App. 655, 657, 456 S.E.2d 855, 856 (1995).
Therefore, whether sanctions are imposed is within the sound
discretion of the trial court and will not be reversed absent an
abuse of discretion. Id. at 657, 456 S.E.2d at 857. “An abuse of
discretion occurs when the trial court's ruling 'is so arbitrary
that it could not have been the result of a reasoned decision.'”
Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101,
109, 493 S.E.2d 797, 802 (1997), disc. review denied, 347 N.C. 670,
500 S.E.2d 84 (1998) (quoting White v. White, 312 N.C. 770, 777,
324 S.E.2d 829, 833 (1985)).
In the case at bar, all that is at issue is the testimony of
Nurse Woolard. The court did not allow the medical report into
evidence. Based on our view of the record and transcript,
defendants did not take other reasonable and/or normal steps in
their research of this case that would have lead them to Nurse
Woolard just as easily as the medical report may have. The
transcript reflects the court's surprise that it was not until the
first day of trial, when defendants were given the medical report,
that they were on notice that the victim ever went to the hospital.
The court stated:
THE COURT: I guess I'm _ was there a
preliminary hearing done in this case.
[DEFENDANT FOREMAN'S ATTORNEY]: I'm
looking at my notes now, Your Honor.
THE COURT: That's what _ I'm getting at.
Have y'all talked to this _ have y'all
interviewed the victim? Have y'all interviewed
these officers?
Furthermore, had the medical report been turned over when it was
requested, two days before trial, it is questionable whether
defendants would have had time to interview the nurse and have the
medical report reviewed for another opinion. Nurse Woolard's
testimony was limited to stating the injuries she had witnessed on
the morning that she examined the victim. This included: the victim
was sobbing hysterically, had red marks on her right wrist, welt
marks on her left buttock and cheek bottom, and superficial
lacerations in her vaginal area. She gave no opinion as to the
cause of these injuries.
We cannot say the trial court abused its discretion in
allowing Nurse Woolard to testify. Upon a close review of Nurse
Woolard's testimony, it is difficult to fathom what, but for the
State's oversight in discovery, defendants could have put on as
evidence to rebut her first-hand knowledge of the night in
question. They were given 40 minutes to look over the medical
report and confer with her before their cross-examination. In
their cross-examination, it was established that she could not tell
how the injuries were caused. Therefore, in light of the
circumstances of this case, we overrule this assignment of error.
In Wortham, our Supreme Court held that assault on a female is
not a lesser included offense of attempted second degree rape. The
Court stated that the legal meaning of the “overt act” element of
attempted rape is different than the legal meaning of “assault” in
the charge of assault on a female. Therefore, assault on a female
was not a lesser included offense of attempted second degree rape.
Wortham, 318 N.C. at 671-72, 351 S.E.2d at 296. Simple assault
possesses the element of “assault,” and attempted first degree
sexual offense possesses the element of the “overt act,” which puts
Wortham on point with the case at bar. Therefore, the trial court
did not err in failing to instruct the jury on simple assault,
because it is not a lesser included offense of attempted first
degree sexual offense.
II. Prior Consistent Statement
Defendant Foreman next contends, on the grounds that it was
hearsay evidence, that the trial court committed prejudicial errorin admitting the testimony of Officer Latta relating the victim's
statement to him.
Earlier in the trial, the victim testified that defendant
Foreman “took part of the comb that you comb your hair with and
tried to insert it into [her] vagina.” Later, after the jury had
been instructed that the purpose of his testimony was to
corroborate the victim's earlier testimony with a prior consistent
statement, Officer Latta testified that the victim's statement to
him was that defendant “Foreman began penetrating [the victim's]
vagina with a red Afro Comb which he brought with him.” Defendant
Foreman focuses on the distinction between “tried to insert” and
“penetrated” as being inconsistent and not corroborative.
North Carolina law is clear that prior consistent statements
made by a witness testifying at trial, that would otherwise be
inadmissible hearsay when testified to by a later witness, may be
admitted for the limited purpose of corroborating the prior
testimony and bolstering the prior witness's credibility. State v.
Riddle, 316 N.C. 152, 157, 340 S.E.2d 75, 78 (1986). When offered
for this purpose, the evidence of a prior consistent statement must
in fact corroborate a witness's later testimony. However, there is
no requirement that the rendition of a prior consistent statement
be identical to the witness's later testimony. State v. Swindler,
129 N.C. App. 1, 4-5, 497 S.E.2d 318, 320-21, aff'd per curiam, 349
N.C. 347, 507 S.E.2d 284 (1998), cert. denied, 352 N.C. 598, 545
S.E.2d 220 (2000). “[S]light variances in the corroborativetestimony do not render it inadmissible.” State v. Covington, 290
N.C. 313, 337, 226 S.E.2d 629, 646 (1976).
In the case at bar, we find “penetrated” and “tried to
insert” of such slight variation as to not constitute error on the
basis of corroboration. On the facts of this case, a reasonable
jury could determine that in penetrating the vagina with a comb,
defendant was trying to fully insert the comb. Thus, Officer
Latta's statement did in fact corroborate that of the victim's.
III. Sufficiency of the Evidence
Defendant Foreman last argues that there was insufficient
evidence to support the jury's determination of guilt on attempted
first degree sexual offense and non-felonious breaking or entering.
We do not agree.
In ruling on a motion to dismiss, the trial court must
consider the evidence in the light most favorable to the State and
give the State every reasonable inference to be drawn therefrom.
See State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998).
The State must present substantial evidence of each element of the
offense charged. See id. “[T]he trial court should consider all
evidence actually admitted, whether competent or not, that is
favorable to the State.” State v. Jones, 342 N.C. 523, 540, 467
S.E.2d 12, 23 (1996). “If there is substantial evidence -- whether
direct, circumstantial, or both -- to support a finding that the
offense charged has been committed and that the defendant committed
it, the case is for the jury and the motion to dismiss should be
denied[,]” State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377,383 (1988); however, if the evidence “is sufficient only to raise
a suspicion or conjecture as to either the commission of the
offense or the identity of the defendant as the perpetrator, the
motion to dismiss must be allowed.” State v. Malloy, 309 N.C. 176,
179, 305 S.E.2d 718, 720 (1983).
A. First Degree Sexual Offense
The trial judge submitted the charge of first-degree sexual
offense on the theory that defendant Foreman was aided and abetted
by codefendant Braxton. The elements of first degree sexual
offense, as shown in this case, are that:
§ 14-27.4. First-degree sexual offense.
(a) A person is guilty of a sexual
offense in the first degree if the person
engages in a sexual act:
* * * *
(2) With another person by force and against
the will of the other person, and:
* * * *
c. The person commits the offense aided
and abetted by one or more other
persons.
N.C. Gen. Stat. § 14-27.4. Defendant Foreman contends there was
insufficient evidence of the element of the sexual act for the
charge of first degree sexual offense.
(See footnote 2)
The identity of defendant Foreman as the principal perpetrator
in this case is uncontested. Furthermore, there is substantial
evidence of defendant Foreman's use of force and against the willof the victim and that he was aided and abetted in his use of
force. The issue then becomes whether there is sufficient evidence
of a sexual act. We find that the testimony of the victim, as
corroborated by Officer Latta, relating to the details of the use
of the comb on her vagina, and the testimony of Nurse Woolard
relating the small lacerations on the victim's vagina which are
consistent with the victim's account, to be substantial evidence of
a sexual act. See, e.g., State v. Rogers, 322 N.C. 102, 105, 366
S.E.2d 474, 475 (1988) (where defendant put his finger between her
legs and in her “pee pee” and “private spot”); State v. Griffin,
319 N.C. 429, 435, 355 S.E.2d 474, 475 (1987) (nine-year-old victim
testified defendant touched her on her “private parts”); State v.
Watkins, 318 N.C. 498, 500, 349 S.E.2d 564, 565 (1986)
(seven-year-old victim testified defendant placed his finger in her
“coodie cat” and used dolls to indicate the vaginal area); State v.
Smith, 315 N.C. 76, 79, 337 S.E.2d 833, 837 (1985) (four-year-old
victim testified defendant touched her “project” with his “worm”
and pointed to her vaginal area).
B. Non-felonious Breaking or Entering
Misdemeanor breaking or entering requires proof of only the
wrongful breaking or entry into a building or dwelling. State v.
Freeman, 307 N.C. 445, 451, 298 S.E.2d 376, 380 (1983). It is not
necessary to prove both breaking and entering, only one or the
other. State v. Myrick, 306 N.C. 110, 114, 291 S.E.2d 577, 579
(1982). There is sufficient and undisputed evidence of the
defendant Foremans' entry. Additionally, we find there to besufficient evidence of breaking when the victim's testimony details
that the windows were closed when she went to sleep, that the
duplex was secure, and defendant Foreman did not have a key. Also,
the testimony of the two officers provided evidence that the blinds
had been tampered with and the windows had been opened.
All assignments of error as to defendant Foreman are
overruled, or deemed abandoned under Rules 28 of the North Carolina
Rules of Appellate Procedure.
In his last assignment of error, codefendant Braxton contends
that there was insufficient evidence to support a conviction of
attempted second degree sexual offense. We do not agree.
Applying the same standard of review of a trial court's denial
of a motion to dismiss, as set out previously in this opinion, we
turn to the elements of attempted second degree sexual offense. We
begin by noting that the State's theory in prosecuting defendant on
this charge was that he “acted in concert” with defendant Foreman.
We have already determined that the evidence before the jury was
sufficient to sustain a guilty verdict of defendant Foreman for the
charge of attempted first degree sexual offense, an offense
containing both elements of second degree sexual offense: (1) a
sexual act and (2) by force and against the will of the other
person. N.C. Gen. Stat. § 14-27.5. Therefore, we need only address
whether there is sufficient evidence that codefendant Braxton“acted in concert” with defendant Foreman to sustain codefendant
Braxton's conviction.
If the defendant is present with another and with a common
purpose does some act which forms a part of the offense charged,
then there is substantial evidence of “acting in concert” and a
judge must explain and apply the law. State v. Mitchell, 24 N.C.
App. 484, 486, 211 S.E.2d 645, 647 (1975). This is true “although
the other person does all the acts necessary to effect commission
of the crime.” State v. Abraham, 338 N.C. 315, 346, 451 S.E.2d
131, 147 (1994).
In the case at bar, there was evidence that codefendant
Braxton acted in concert based on the following: He and defendant
Foreman broke into the victim's duplex in the early morning hours
of 2 October 2001; he and defendant Foreman went to the victim's
room and tied her wrists together before she awoke; he held the
victim's legs while defendant Foreman assaulted her; he calmed the
children in the duplex so they would not interrupt the assault; he
held the victim's hands during the sexual act and tried to calm
her; and at no point did he attempt to stop the incident.
Codefendant Braxton made the commission of this crime possible,
helping to restrain the victim, and divert the children in the
duplex from witnessing or distracting defendant Foreman in the
commission of the crime. This is substantial evidence that
codefendant Braxton was both present and, with a common purpose,
assisted in the commission of the sexual offense of the victim.
Therefore, all assignments of error as to codefendant Braxton
are overruled, or deemed abandoned under Rule 28 of the North
Carolina Rules of Appellate Procedure.
After close review of the briefs, record, and transcript of
this case, we find that defendants received a fair trial and uphold
their convictions on all counts.
No error.
Judges HUDSON and LEVINSON concur.
Report per Rule 30(e).
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