An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1107


Filed: 6 April 2004


         v.                        Henderson County
                                No. 03 CRS 1128, 51673

    Appeal by defendant from judgments entered 24 April 2003 by Judge Dennis J. Winner in Henderson County Superior Court. Heard in the Court of Appeals 22 March 2004.

    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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