Appeal by defendant from judgments entered 24 September 2003
by Judge Ronald K. Payne in Rutherford County Superior Court.
Heard in the Court of Appeals 16 February 2005.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Karen A. Blum, Special Deputy Attorney General Lars F.Nance, and Certified Legal Intern Kerry Lynn Adams, for the
State.
William D. Auman for defendant-appellant.
HUNTER, Judge.
Kenny Edwards Buff, Jr. (“defendant”) appeals from judgments
dated 24 September 2003 entered consistent with jury verdicts
finding him guilty of second degree rape and attempted second
degree sex offense. After careful consideration of defendant's
arguments, we find no error.
The evidence tends to show that on 11 January 2003, L.W.,
thirteen years old at that time, went to the home of defendant's
grandmother with her fourteen-year-old cousin, K.S. After a few
hours, L.W., K.S., and defendant went to Andrew Bradley's
(“Bradley”) home and joined a group of teenagers already there. A
home video camera operated by Bradley was used to tape L.W.,
defendant, and others present at Bradley's home for part of the
evening.
Various types of liquor were present, and L.W. drank four
shots of liquor poured for her by defendant and Bradley. L.W.
testified that she became increasingly dizzy and laid down on a
mattress in a corner of Bradley's bedroom after drinking the shots.
L.W. further stated that she blacked out for portions of the
remainder of the night.
After the videotaping ended, L.W., defendant, and Bradley
remained in Bradley's bedroom together, along with Daniel Toms
(“Toms”) and Grady Alan Waters (“Waters”), while others watched
videos in another room. L.W. testified that she blacked out while
lying on the mattress in the corner of the room, and that when she
came to, defendant had removed her pants and was on top of her. Hethen began having sexual intercourse with her. L.W. testified
Bradley put his hand over her mouth to keep her from crying out
during the incident, and when defendant was finished, Bradley had
sex with her. L.W. stated she again lost consciousness and did not
wake up until the following morning. Toms and Waters also
testified that defendant engaged in sexual intercourse with L.W.
Defendant was charged with second degree rape and attempted
second degree sex offense and was found guilty by a jury of both
charges. Defendant was sentenced to 100 to 129 months for the
crime of second degree rape, and a concurrent sentence of 82 to 108
months for the crime of attempted second degree sex offense.
Defendant appeals.
I.
[1] Defendant first contends the trial court erred in
permitting the showing of video images as they were not properly
authenticated and as the evidence was more prejudicial than
probative. We disagree.
“Videotape recordings may be admitted into evidence where they
are relevant and have been properly authenticated.”
State v.
Billings, 104 N.C. App. 362, 371, 409 S.E.2d 707, 712 (1991);
see
N.C. Gen. Stat. § 8-97 (2003). “The video tape should be
admissible under the rules and for the purposes, then, of any other
photographic evidence.”
State v. Johnson, 18 N.C. App. 606, 608,
197 S.E.2d 592, 594 (1973). “Such evidence may be admitted to
illustrate the testimony of a witness or as substantive evidence.”
Billings, 104 N.C. App. at 371, 409 S.E.2d at 712. The proper
foundation for a videotape may be shown by:
“(1) testimony that the motion picture or
videotape fairly and accurately illustrates
the events filmed (illustrative purposes); (2)'proper testimony concerning the checking and
operation of the video camera and the chain of
evidence concerning the videotape . . .'; (3)
testimony that 'the photographs introduced at
trial were the same as those [the witness] had
inspected immediately after processing,'
(substantive purposes); or (4) 'testimony that
the videotape had not been edited, and that
the picture fairly and accurately recorded the
actual appearance of the area
“photographed.”'”
State v. Smith, 152 N.C. App. 29, 38, 566 S.E.2d 793, 800 (2002)
(citations omitted).
Here, the trial court conducted a
voir dire concerning the
admission of the tape. K.S. and Toms testified that for the
portions of the tape for which they were present, the video
accurately depicted the events they personally witnessed and the
camera appeared to be in good working order. Waters testified he
was present for all of the video, though not for all other events
occurring that evening, the video accurately depicted the events he
personally witnessed, and the camera appeared to be in good working
order. Officer Will Sisk (“Officer Sisk”) testified that he
confiscated the videotape from the home of Bradley pursuant to a
search warrant, and that the tape had not been changed or altered
since it was seized. We therefore find the portions of the
videotape showing the events of the night of 11 January 2003 were
properly authenticated and admitted for illustrative purposes.
Defendant further contends that even if properly
authenticated, the tape was improperly admitted as it was
inflammatory. Defendant alleges that the tape contained depictions
of events other than the night of 11 January 2003 which were
offered at trial only to excite prejudice and inflame the jury.
Here, trial counsel for both defendant and the State have
stipulated that only the portions of the tape showing the events of
the party on 11 January 2003 were shown to the jury, not the tapein its entirety. Thus, as the portions of the tape defendant
contends were inflammatory were not shown at trial, defendant's
contentions regarding a violation of Rule 403 are without merit.
II.
[2] Defendant next contends the trial court erred in
permitting hearsay testimony to be admitted. Defendant argues that
the statement read to the jury by SBI Agent Steve Modlin (“Agent
Modlin”), and admitted for corroborative purposes of Toms'
testimony, included statements attributable to other parties, and
therefore improperly admitted hearsay. We find this issue was not
properly preserved for our review.
“'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.'”
State v. Frye, 341 N.C. 470, 495,
461 S.E.2d 664, 676-77 (1995) (quoting N.C.R. App. P. 10(b)(1)).
Here, defendant made a general objection as to the statement.
Defendant's objection was overruled by the trial court, who then
gave a limiting instruction that the statement was to be considered
solely for corroborative purposes. Defendant made no additional
objection to the alleged hearsay within the statement offered by
Agent Modlin. As defendant objected to the evidence on only one
ground, he therefore failed to preserve the additional grounds
presented on appeal.
See State v. Williams, 355 N.C. 501, 565, 565
S.E.2d 609, 646 (2002). Further, defendant does not allege plain
error in his assignment. Our Supreme Court has recently held that
when a defendant fails to “'specifically and distinctly' allege
plain error as required by North Carolina Rule of Appellate
Procedure 10(c)(4), defendant is not entitled to plain error reviewof this issue.”
State v. Dennison, 359 N.C. 312, 312-13, 608
S.E.2d 756, 757 (2005). We therefore are precluded from review of
this issue.
III.
[3] Defendant finally contends that the trial court erred in
denying his motion to dismiss all charges for insufficient
evidence. We disagree.
The standard of review for a “motion to
dismiss based on insufficiency of the evidence
is the substantial evidence test.” “The
substantial evidence test requires a
determination that there is substantial
evidence (1) of each essential element of the
offense charged, and (2) that the defendant is
the perpetrator of the offense.”
State v. Locklear, 159 N.C. App. 588, 591, 583 S.E.2d 726, 729
(2003) (citations omitted).
In ruling on a motion to dismiss the trial
court is to consider the evidence in the light
most favorable to the State. In so doing, the
State is entitled to every reasonable
intendment and every reasonable inference to
be drawn from the evidence; contradictions and
discrepancies do not warrant dismissal of the
case -- they are for the jury to resolve.
State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652-53 (1982)
(citations omitted). “The court is to consider all of the evidence
actually admitted, whether competent or incompetent, which is
favorable to the State.”
Id. at 67, 296 S.E.2d at 653.
Here, defendant was charged with the crime of second degree
rape. A person is guilty of second degree rape if
“the person engages in vaginal intercourse
with another person: (1) By force and against
the will of the other person; or (2) Who is
mentally defective, mentally incapacitated, or
physically helpless, and the person performing
the act knows or should reasonably know the
other person is mentally defective, mentally
incapacitated, or physically helpless.”
State v. Strickland, 153 N.C. App. 581, 594, 570 S.E.2d 898, 907
(2002) (quoting N.C. Gen. Stat. § 14-27.3). Taken in the light
most favorable to the State, the testimony of L.W. established that
defendant engaged in sexual intercourse with her, as she stated
that defendant “put his penis inside my vagina.” Toms also
testified that he observed defendant engaging in sexual intercourse
with L.W. Further, sufficient evidence was offered as to L.W.'s
physical helplessness. L.W. testified as to the large quantity of
alcohol she had consumed and her lack of experience with
intoxicating beverages, and as to her subsequent illness, resulting
in repeated loss of consciousness. K.S. also testified that L.W.
appeared to be sleeping or passed out when she checked on her
throughout the course of the party. L.W. further testified that
she awoke to find defendant removing her pants, but continued
blacking out during the act, that she said “[o]w” as the
intercourse was causing her pain, that defendant directed Bradley
to put his hand over her mouth to keep her quiet and that she bit
Bradley's hand when he did so before passing out again. L.W.
stated that she never consented to any type of sexual conduct with
defendant or Bradley. Although defendant challenges L.W.'s
credibility, such a question is properly for the jury to resolve.
See Earnhardt, 307 N.C. at 67, 296 S.E.2d at 653. We, therefore,
find sufficient evidence as to all elements of second degree rape
was presented to survive a motion to dismiss.
[4] “The elements of second-degree sexual offense are: (1) a
person engages in a sexual act; (2) with another person; and (3)
the act is by force and against the person's will.”
State v.
Tucker, 154 N.C. App. 653, 655, 573 S.E.2d 197, 199 (2002);
see
N.C. Gen. Stat. § 14-27.5(a) (2003). A sexual act, for the
purposes of § 14-27.5 means “the penetration, however slight, byany object into the genital or anal opening of another person's
body[,]” but does not include sexual intercourse. N.C. Gen. Stat.
§ 14-27.1(4) (2003). In order to convict a defendant of attempted
second degree sexual offense, the State must show that (1) the
defendant had the specific intent to commit a sexual act against
the victim; and (2) that the defendant committed overt acts showing
intent to commit the sexual act, going beyond mere preparation but
falling short of the completed offense of second degree sexual
offense.
See State v. Mangum, 158 N.C. App. 187, 192, 580 S.E.2d
750, 754 (2003) (discussing the elements of attempted rape).
Here, Waters testified that he observed defendant “[go] down
her pants” while fondling L.W.'s breast. He then observed
defendant remove L.W.'s pants and touch her “private,” which was
clarified to mean between her legs, but did not observe him insert
anything inside her private. As noted previously, L.W. testified
that she never consented to any type of sexual conduct with
defendant, and sufficient evidence as to L.W.'s physical
helplessness was offered. Therefore, when taken in the light most
favorable to the State, the evidence presented showed defendant
committed several overt acts, including touching L.W.'s breast and
vaginal area, demonstrating intent to commit a sexual act against
L.W.'s will and without her consent. The evidence, therefore, was
sufficient to reach the jury as to the charge of attempted second
degree sexual offense.
As we find the video evidence to be properly authenticated and
admitted, and sufficient evidence presented as to both charges to
survive a motion to dismiss, we find no error.
No error.
Judges CALABRIA and JACKSON concur.
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