STATE OF NORTH CAROLINA
v. Henderson County
No. 03 CRS 1128, 51673
CHARLES CLIFTON BLACK
Attorney General Roy Cooper, by Assistant Attorney General
Sonya M. Calloway, for the State.
William D. Auman for defendant-appellant.
MARTIN, Chief Judge.
Defendant was found guilty of statutory sexual offense and
attempted first degree rape. He was sentenced to concurrent terms
of imprisonment for a minimum of 346 months and a maximum of 425
months for the former offense and to a minimum of 282 months and a
maximum of 348 months for the latter offense.
The State presented evidence tending to show that on the
evening of 9 March 2003, defendant stayed overnight at the home of
his co-worker. At approximately 4:45 a.m. on 10 March 2003,
defendant entered the bedroom of the co-worker's fifteen-year-old
daughter. Defendant held a knife to the girl's throat and
threatened to cut her if she “made a sound above a whisper.”
Holding the knife in his hand, defendant performed cunnilingus onthe girl. Defendant also penetrated the victim's vagina with his
finger and attempted to penetrate her vagina with his penis. The
girl wedged her feet and legs to the opposite side of her bed,
jumped off the bed, ran out of the bedroom, and screamed for help.
The victim's father got out of bed and brought the girl into his
bedroom to find out why she was screaming. Meanwhile, defendant
put on his clothes and left the residence. The girl told her
father that defendant came into her bedroom, put a knife to her
neck, and “went down on her.”
Defendant testified that he accidentally went into the girl's
bedroom and fell on her bed while trying to find the bathroom. He
admitted that he kissed her and touched her breasts, but he denied
commission of cunnilingus or attempted penile penetration of the
girl's vagina.
_________________________
Defendant brings forward four assignments of error. For the
following reasons, we reject each of them.
First, defendant contends the court committed plain error by
not empaneling a new jury after some jurors may have seen that
defendant was incarcerated pending trial. The record does not
reflect whether the jurors saw defendant in prison garb, handcuffs
or shackles. The record does reflect, however, that the court
instructed the jurors that “the fact whether somebody's made bail
or not should not affect you in any way in this trial.” He also
inquired of the jurors whether any of them could not follow that
directive. Receiving no response, the court inquired ofdefendant's counsel whether he had anything to say or add. Counsel
declined, stating, “I appreciate it, thank you.”
The failure to object to shackling, restraint or the wearing
of prison garb waives any error and precludes appellate review.
State v. Tolley, 290 N.C. 349, 371-72, 226 S.E.2d 353, 370 (1976).
Plain error review in the absence of an objection is available only
for errors in jury instructions and the admission of evidence.
State v. Wolfe, 157 N.C. App. 22, 33, 577 S.E.2d 655, 663, appeal
dismissed and disc. review denied, 357 N.C. 255, 583 S.E.2d 289
(2003). Finally, a court's remedial actions in cautioning the jury
to disregard the defendant's appearance or restraints in rendering
a verdict and polling the jury to determine whether the jurors
could comply with the instruction effectively cures any error.
State v. Johnson, 341 N.C. 104, 115, 459 S.E.2d 246, 252 (1995).
Defendant next contends the court erred by failing to permit
cross-examination of the victim as to whether the Department of
Social Services had investigated her father's residence during the
two years she had lived there with her father. The court sustained
the prosecutor's objection before the witness could answer.
Defendant did not make an offer of proof for the record and it is
not apparent from the record what her response would have been.
“It is well established in this jurisdiction that when the court
sustains an objection to questions and the record fails to show
what the answers would have been, it cannot be determined that the
ruling, even if error, was prejudicial.” State v. Black, 308 N.C.
736, 744, 303 S.E.2d 804, 808-09 (1983). It may not be speculatedthat the answer would have been favorable to the defendant. Id.
Defendant also contends the trial court erred by allowing the
victim's father to testify on cross-examination that defendant had
been incarcerated for killing someone. “A defendant is not
prejudiced by the granting of relief which he has sought or by
error resulting from his own conduct.” N.C. Gen. Stat. § 15A-
1443(c) (2003). Defendant invited the error by asking the witness
whether he knew anything about defendant's background. Defendant
neither objected nor moved to strike the witness' answer.
Furthermore, defendant testified regarding his prior criminal
record, including a conviction of voluntary manslaughter.
Defendant waived any objection he may have had.
Finally, defendant contends the trial court erred by denying
his motion to dismiss the charges. In deciding a motion to
dismiss, the court must consider the evidence in the light most
favorable to the State, giving it the benefit of every reasonable
inference that may be drawn from the evidence. State v. Brown,
310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Contradictions and
discrepancies in the evidence are to be disregarded and left for
resolution by a jury. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d
114, 117 (1980) The trial court determines whether there is
substantial evidence to establish each element of the offense
charged and to identify the defendant as the perpetrator. State v.
Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "The
trial court's function is to determine whether the evidence will
permit a reasonable inference that the defendant is guilty of thecrimes charged." State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57,
61 (1991).
A defendant is guilty of commission of statutory sexual
offense under N.C. Gen. Stat. § 14-27.7A when he “engages in
vaginal intercourse or a sexual act with another person who is 13,
14, or 15 years old and the defendant is at least six years older
than the person . . . .” N.C. Gen. Stat. § 14-27.7A(a) (2003);
State v. Howard, 158 N.C. App. 226, 230, 580 S.E.2d 725, 729,
appeal dismissed and disc. review denied, 357 N.C. 465, 586 S.E.2d
460 (2003). A sexual act includes cunnilingus, fellatio,
analingus, anal intercourse, or the penetration by any object of
the genital or anal opening of a person's body. N.C. Gen. Stat. §
14-27.1(4) (2003). Consent is not a defense to statutory sexual
offense. State v. Anthony, 351 N.C. 611, 618, 528 S.E.2d 321, 325
(2000). To prove a defendant guilty of an attempted crime, the
State must show: "(1) the intent to commit the substantive offense,
and (2) an overt act done for that purpose which goes beyond mere
preparation, but (3) falls short of the completed offense." State
v. Miller, 344 N.C. 658, 667, 477 S.E.2d 915, 921 (1996).
Here, the victim, age fifteen at the time, testified that
defendant, who acknowledged his age as 45, engaged in cunnilingus
with her. Defendant told her he would not stop until she “was
satisfied.” Defendant also penetrated her vagina with his finger
and pulled out his penis from his boxer shorts. As the victim lay
on the bed with her hand “between [her] crotch,” defendant got on
top of her. The victim could feel defendant's genitals, and basedupon feeling his genitals, she could tell that “he was not fully
aroused, but you could tell that he was getting there ...[h]e was
not completely soft, he was sort of hard.” At that point the
victim wedged her feet and legs to the opposite side of the bed and
escaped.
Based upon the foregoing evidence, a jury could reasonably
find defendant guilty of the offenses of statutory sexual offense
and attempted statutory rape.
We hold defendant received a fair trial, free of prejudicial
error.
No error.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
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