1. Constitutional Law--right to speedy trial--delay not attributable to State--
generalized assertions of diminished memory
The trial court did not err by failing to dismiss the charge of second-degree sexual offense
as a result of an alleged violation of defendant's right to a speedy trial based on a twenty-month
delay, because: (1) the trial court noted the numerous changes in defendant's attorneys and found
additional delay was due to a backlog in testing at the SBI not attributable to the District
Attorney's Office; (2) the trial court's uncontested finding of fact concerning the trial of cases
with dates of offenses preceding that of defendant is an appropriate method of determining the
order in which to dispose of cases; and (3) although defendant gave generalized assertions that
there was some diminished memory that impaired his defense, the victim was able to testify and be
cross-examined about the incident and the medical witnesses produced written records from
which they testified.
2. Witnesses--motion to sequester--parental and supporting figure
The trial court did not abuse its discretion in a second-degree sexual offense case by
denying defendant's motion to sequester all of the State's witnesses, because: (1) the trial court
allowed defendant's motion with respect to all witnesses except for the victim's mother who was
permitted to remain with the victim in court; and (2) whether the victim had technically reached
the age of majority does not obscure the trial court's reasoning that she was in need of a parental
and supporting figure when the victim was sixteen years old at the time she was sexually and
physically assaulted by her father.
3. Evidence--victim's previous sexual activity-_credibility--Rape Shield Statute
The trial court did not abuse its discretion in a second-degree sexual offense case by
denying defendant's request to inquire into the victim's previous sexual activity for the purpose of
attacking her credibility as a witness, because the Rape Shield Statute limits the scope of cross-
examination by declaring such examination to be irrelevant to any issue in the prosecution except
in four narrow situations inapplicable to the instant case.
4. Evidence--letter from defendant to victim while incarcerated--sexual assault
The trial court did not err in a second-degree sexual offense case by admitting into
evidence a letter from defendant to the victim following the sexual assault while defendant was
incarcerated, because: (1) defendant failed to preserve the evidentiary issue of the prejudicial
effect and probative value of the letter for appellate review by failing to object on this ground at
the time the evidence was introduced at trial; (2) defendant is not entitled to plain error review
based on his failure to allege plain error in his assignments of error or in his brief; and (3) the
probative value of the letter was not substantially outweighed by unfair prejudice when the letter
could be read as an apology for precisely the events for which defendant was put on trial, and the
meaning and intent of the letter were for the jury to determine.
5. Criminal Law--prosecutor's argument--defendant admitted offenses--motion for
mistrial
The trial court did not err in a second-degree sexual offense case by denying defendant's
motion for a mistrial following the State's opening statement informing the jury that defendant
admitted these offenses, because: (1) where a trial court sustains an objection but defendant fails
to move to strike that which was objectionable and fails to request a curative instruction, the trial
court has taken sufficient action by sustaining defendant's objection and was not required either to
strike the testimony or to give a curative jury instruction; and (2) the statement by the prosecutor
accurately forecasted the evidence adduced at trial.
6. Discovery_-statement--take crime to grave
The trial court did not err in a second-degree sexual offense case by allowing the victim to
testify that defendant told the victim after the sexual assault that she needed to take this to the
grave with her even though defendant contends the statement had not been disclosed, because: (1)
a synopsis of a defendant's oral statements in response to discovery requests complies with the
substance requirement under N.C.G.S. § 15A-903(a)(2); (2) the State's report to defendant
contained the statement that defendant father told the victim not to tell anyone; and (3) both the
testimony received at trial and the statement contained in the report given to defendant convey
that defendant was telling his daughter not to tell anyone of the sexual assault.
7. Evidence--testimony--victim's demeanor--speculation
The trial court did not err in a second-degree sexual offense case by allowing the victim's
brother to testify that his sister looked like she did not want to talk to the police following the
sexual assault but she did so anyway, because assuming arguendo that the trial court erred,
defendant failed to show how this testimony affected the outcome of the trial or that a different
result would have resulted absent the error.
8. Sexual Offenses--second-degree--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of second-
degree sexual offense at the close of all the evidence, because: (1) defendant does not specifically
attack any of the elements of second-degree sexual offense but merely argues that there were
inconsistencies and a lack of physical evidence to bolster the victim's testimony; (2) no case law
stands for the proposition that there must be some physical evidence to support court testimony in
order for that testimony to be sufficient to withstand a motion to dismiss; and (3) defendant had
ample opportunity to cross-examine the victim with respect to any inconsistencies, and
inconsistencies are expressly left for the jury.
9. Sentencing--aggravating factor not submitted to jury--Blakely error
The trial court erred in a second-degree sexual offense case by sentencing defendant in the
aggravating range without submitting to the jury the aggravating factor found by the trial court
that defendant took advantage of a position of trust or confidence to commit the offense, and the
case is remanded for resentencing.
CALABRIA, Judge.
Tony Wayne Dorton (“defendant”) appeals a judgment entered on
a jury verdict of guilty of second-degree sexual offense.
Defendant received a sentence in the aggravated range with a
minimum term of 92 months and a maximum term of 120 months in the
North Carolina Department of Correction. We find no error
regarding defendant's trial but remand for resentencing.
The State presented evidence that defendant and Pamela Dorton
had two children during the course of their marriage. The eldest
child (the “victim”), was sixteen years of age on 30 March 2002.
Since school was out of session, the victim and her brother were at
home on that date with their father, defendant, who was unemployed.
Near midday, the victim checked the computer in her parents' room
to see if she had received any e-mail. Defendant was dressed for
an appointment with the Employment Security Commission but
undressed and returned to bed while the victim was on the computer.
After the victim finished on the computer, defendant asked the
victim to lay down with him “to help him go back to sleep.”
Although reluctant, the victim complied. Defendant turned to the
victim, began rubbing her on her side, and repeatedly asked her to
engage in oral sex with him in increasingly demanding tones.
Defendant then pinned the victim down and began to digitallypenetrate her. The victim began crying and attempted to stop him.
This angered defendant, and he started hitting her. In her
distress, the victim urinated on herself. As a result, defendant
let the victim go to the restroom.
While the victim was in the restroom, defendant entered and
again attempted to force the victim to engage in sexual activity
with him. When the victim told defendant that he “would have to
kill her first,” defendant forced the victim back into the bedroom
and removed her clothes, resumed hitting her, and attempted to
engage in both oral and vaginal sex with the victim; however,
defendant's attempts were hampered due to the fact that he suffered
from erectile dysfunction. The victim testified that throughout
the event, defendant responded to her attempts to thwart his
advances by hitting her with his hands and a shoe and choking her.
After defendant finished, he returned to the bathroom, and the
victim retrieved her clothes and dressed. Defendant subsequently
left for his appointment. The victim called her mother, who
instructed the victim to call the police. The victim complied, and
the police obtained a statement from her and took her to the
hospital, where a rape kit was performed.
Defendant was arrested and indicted for second-degree rape and
second-degree sexual offense. On 17 June 2002, defendant moved for
a speedy trial. On 27 October 2003, defendant moved to dismiss the
pending charges for denial of a speedy trial. In denying
defendant's motion, the trial court noted that between 18 September
2002 and May of 2003, defendant had changed attorneys three times,the SBI lab tests were delayed due to a backlog in testing not
attributable to the District Attorney's office, and, between March
of 2003 and the following September session of Superior Court, the
cases tried by the District Attorney's office predated defendant's
case. The jury returned a verdict of guilty for second-degree
sexual offense and a verdict of not guilty for second-degree rape.
Defendant was sentenced as noted supra and appeals.
I. Right to Speedy Trial
[1] In his first assignment of error, defendant asserts the
trial court erred in failing to dismiss the charges as a result of
the violation of his right to a speedy trial. The right to a
speedy trial is guaranteed both by the Sixth Amendment to the
United States Constitution, applicable to the states via the
Fourteenth Amendment, and Article I, Section 18 of the North
Carolina Constitution, and our analysis of each is the same. State
v. Hammonds, 141 N.C. App. 152, 157-58, 541 S.E.2d 166, 171-72
(2000). Analysis of whether a defendant's right to a speedy trial
has been violated is based on a case-by-case balancing of the
following four factors: “(1) the length of the delay; (2) the
reason for the delay; (3) defendant's assertion of his right to a
speedy trial; and (4) prejudice to defendant resulting from the
delay.” Id., 141 N.C. App. at 158, 541 S.E.2d at 172. Since the
length of delay in the instant case was twenty months, it is
presumptively prejudicial and triggers examination of the other
three factors. See State v. Webster, 337 N.C. 674, 679, 447 S.E.2d
349, 351 (1994) (noting that a sixteen-month delay “is clearlyenough to cause concern and to trigger examination of the other
factors”). In doing so, however, we are mindful that “the length
of delay is viewed as a triggering mechanism for the speedy trial
issue,” and, therefore, “'its significance in the balance is not
great.'” Hammonds, 141 N.C. App. at 159, 541 S.E.2d at 172 (quoting
State v. Hill, 287 N.C. 207, 211, 214 S.E.2d 67, 71 (1975)).
A. Reason for Delay
In examining the second factor, a “defendant has the burden of
showing that the delay was caused by the neglect or wilfulness of
the prosecution[,] [which may be rebutted with] evidence fully
explaining the reasons for the delay.” State v. Spivey, 357 N.C.
114, 119, 579 S.E.2d 251, 255 (2003). Prohibited are delays that
are purposeful or oppressive and could have been avoided by
reasonable effort, not “good-faith delays which are reasonably
necessary for the State to prepare and present its case.” State v.
Johnson, 275 N.C. 264, 273, 167 S.E.2d 274, 280 (1969) (citations
omitted).
In the instant case, the trial court noted the numerous
changes in defendant's attorneys between September of 2002 and May
of 2003. Moreover, the trial court found additional delay was “due
to a backlog in testing at the SBI” not “attributable to the
District Attorney's office.” Defendant contends “it is immaterial
whether the delay was caused by law enforcement or the District
Attorney because, in either case, such delay should be attributable
to the State.” However, our Supreme Court indicated in Spivey that
this expanded attribution to the State is improper by noting thatthe defendant's burden was to show prosecutorial neglect or
willfulness. Spivey, 357 N.C. at 119, 579 S.E.2d at 255. See also
id., 357 N.C. at 127, 579 S.E.2d at 260 (Brady, J., dissenting)
(focusing the analysis of the second factor on the “elected
District Attorney” and noting that “the district attorney's
indifference toward defendant is evidence of precisely the type of
neglect that reflects a violation of a defendant's right to a
speedy trial”). Finally, we note the trial court's uncontested
finding of fact (concerning the trial of cases with dates of
offenses preceding that of defendant) is an appropriate method of
determining the order in which to dispose of cases. See Spivey,
357 N.C. at 120, 579 S.E.2d at 255 (observing that the district
attorney had “dealt with cases in chronological order, beginning
with the oldest [and] [d]efendant's case was tried based on this
policy”). These reasons indicate defendant failed to show that the
State willfully or neglectfully delayed defendant's trial.
B. Assertion of Right to Speedy Trial
Defendant did assert his right to a speedy trial early in the
process; accordingly, this factor balances in favor of defendant's
assignment of error. However, we note that the “assertion of the
right, by itself, d[oes] not entitle [a defendant] to relief.”
Id., 357 N.C. at 121, 579 S.E.2d at 256.
C. Resulting Prejudice
Prejudice to defendant as a result of delay concerns the
following three objectives: “(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused;and (iii) to limit the possibility that the defense will be
impaired.” Barker v. Wingo, 407 U.S. 514, 532, 33 L. Ed. 2d 101,
118 (1972). The test for prejudice is “whether significant
evidence or testimony that would have been helpful to the defense
was lost due to delay[,]” see State v. Jones, 98 N.C. App. 342,
344, 391 S.E.2d 52, 54-55 (1990), as opposed to “claims of faded
memory and evidentiary difficulties inherent in any delay.” State
v. Goldman, 311 N.C. 338, 345, 317 S.E.2d 361, 365 (1984).
Defendant's assertions are precisely those diminished in Goldman in
that defendant only gives generalized assertions that there was
some “diminished memory” and, therefore, defendant's defense was
impaired. Moreover, while defendant cites to certain portions of
the testimony of medical witnesses and the victim concerning things
they could not remember, we note (1) the victim was able to testify
and be cross-examined as to the incident and (2) the medical
witnesses produced written records from which they testified.
Accordingly, this factor weighs against defendant. In balancing
the four factors together, we do not find defendant's
constitutional right to a speedy trial was impermissibly
transgressed. This assignment of error is overruled.
II. Failure to Sequester the Victim's Mother
[2] Defendant, in his second assignment of error, asserts the
trial court erred in denying his motion to sequester all of the
State's witnesses. The trial court allowed defendant's motion with
respect to all witnesses except for the victim's mother, who was
permitted to remain with her in court. Sequestration of witnesses“'rests within the sound discretion of the trial court, and the
court's denial of the motion will not be disturbed in the absence
of a showing that the ruling was so arbitrary that it could not
have been the result of a reasoned decision.'” State v. Hyde, 352
N.C. 37, 43, 530 S.E.2d 281, 286 (2000) (quoting State v. Call, 349
N.C. 382, 400, 508 S.E.2d 496, 507-08 (1998)).
In allowing the victim's mother to remain with the victim, the
trial court stated it thought “it would be appropriate to have her
mother” and later noted that because the victim was a minor, it was
“appropriate to have a parent present.” Defendant points out that
the victim was not a minor at the time of trial since she was
eighteen years old; therefore, the trial court's ruling was
arbitrary. We are not persuaded.
First, at the time the trial court ruled on defendant's
motion, defendant did nothing to bring to the trial court's
attention the fact that the victim had, in fact, reached her
majority. Independently, and more importantly, whether the victim
had technically reached her majority does not obscure the trial
court's reasoning. The evidence at trial tends to show the victim
was sixteen years old when she was sexually and physically
assaulted by her father and remained a teenager of eighteen years
at the time she was testifying against her father about the details
of that assault. The victim's need, under such circumstances, of
a parental and supporting figure cannot be gainsaid. Because the
trial court's ruling was the result of a reasoned decision, we
perceive no abuse of discretion in allowing the victim's mother toremain with the victim under these circumstances. This assignment
of error is overruled.
III. Rule 412
[3] By his next assignment of error, defendant contends the
trial court improperly denied him the right to inquire into the
victim's previous sexual activity for the purpose of attacking her
credibility as a witness. While a defendant clearly is entitled to
cross-examine an adverse witness, the scope of that cross-
examination lies within the “sound discretion of the trial court,
and its rulings thereon will not be disturbed absent a showing of
abuse of discretion.” State v. Herring, 322 N.C. 733, 743-44, 370
S.E.2d 363, 370 (1988). When cross-examination involves the sexual
behavior of the complainant, our Rape Shield Statute further limits
the scope of cross-examination by declaring such examination to be
“'irrelevant to any issue in the prosecution' except in four very
narrow situations.” Id. (quoting N.C. Gen. Stat. § 8C-1, Rule 412
(2003)).
In the instant case, defendant neither cites to nor argues the
substance of any of the four exceptions. Rather, defendant asserts
he “simply wanted to attack [the victim's] credibility as a witness
. . . .” Defendant's arguments fail to bring the sought testimony
within any of the four exceptions to the Rape Shield Statute and
appears to be directly in conflict with our Supreme Court's holding
in State v. Autry, 321 N.C. 392, 398, 364 S.E.2d 341, 345 (1988)
(noting that, because a “victim's virginity or lack thereof does
not fall within any of the four exceptions[,]” it is an area“prohibited from cross-examination by Rule 412[,]” and the rule
does not violate a defendant's right to confront an adverse
witness). This assignment of error is overruled.
IV. Letter
[4] Defendant's fourth assignment of error concerns the trial
court's admission into evidence of a letter from defendant to the
victim following the sexual assault while defendant was
incarcerated. The letter, addressed to “Soccer Babe,” indicated
defendant's desire that he and the victim “overcome our problems
between you and me” and “use this whole thing for something
positive.” The letter further contained an apology for
“everything” and for being such a “dumb father.” Prior to trial,
defendant objected to the letter on the grounds of authenticity and
whether the danger of unfair prejudice substantially outweighed the
letter's probative value. The trial court, after hearing arguments
as to probative value and prejudicial effect, denied defendant's
motion in limine and noted defendant's objection. Later, when the
State sought to admit the letter into evidence, defendant objected
solely on the ground that the letter had not been authenticated.
This objection was overruled by the trial court. On appeal,
defendant renews his challenge to the letter solely on the grounds
that the trial court erroneously balanced the prejudicial effect
and probative value of the letter.
Initially, we note the State asserts defendant waived his
right to appeal this issue by limiting his objection during trial
to authenticity. Effective 1 October 2003, N.C. Gen. Stat. § 8C-1,Rule 103(a)(2) (2003) was amended to add the following: “Once the
court makes a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not
renew an objection or offer of proof to preserve a claim of error
for appeal.” The effect this Court has given to the amendment,
however, is split.
On 5 April 2005, this Court considered whether an evidentiary
issue was preserved for appellate review when a party failed to
object at the time the evidence was introduced at trial but had
unsuccessfully objected in a previous motion in limine. State v.
Ayscue, 169 N.C. App. 548, 553, 610 S.E.2d 389, 394 (2005). In
considering the issue, this Court adhered to our Supreme Court's
precedent in State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303
(1999) despite citing and considering the amended N.C. Gen. Stat.
§ 8C-1, Rule 103(a)(2) (2003). Id. This Court held the defendant
had failed to preserve the evidentiary issue for appellate review
and was entitled, therefore, only to plain error review.
A little more than one month later, this Court, relying on the
amended N.C. Gen. Stat. § 8C-1, Rule 103(a)(2), held that a
defendant had not failed to preserve an issue for appellate review
where the trial court denied his motion to suppress and defendant
did not review his objection during trial at the time the evidence
was offered. State v. Rose, 170 N.C. App. 284, 288, 612 S.E.2d
336, 339, appeal dismissed by 359 N.C. 641, ___ S.E.2d ___ (2005).
(See footnote 1)
Our holdings in Rose and Ayscue cannot be reconciled. Accordingly,
we adhere to the initial holding of this Court in Ayscue for
reasons set forth by our Supreme Court in In re Appeal from Civil
Penalty Assessed for Violations of Sedimentation Pollution Control
Act, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (holding that
“[w]here a panel of the Court of Appeals has decided the same
issue, albeit in a different case, a subsequent panel of the same
court is bound by that precedent, unless it has been overturned by
a higher court”). Moreover, defendant is not entitled to plain
error review in the instant case due to his failure to allege plain
error in his assignments of error or in his brief to this Court.
Accord State v. Truesdale, 340 N.C. 229, 456 S.E.2d 299 (1995);
State v. Hamilton, 338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994).
Nevertheless, we note in passing that the trial court did not
err in admitting the letter. A trial court may discretionarily
exclude relevant evidence if, inter alia, “its probative value is
substantially outweighed by the danger of unfair prejudice[.]”
N.C. Gen. Stat. § 8C-1, Rule 403 (2003); State v. Anderson, 350
N.C. 152, 174-75, 513 S.E.2d 296, 310 (1999). Defendant argues
that referring to one's daughter as “soccer babe” can be innocuous
and the apologies and other language in the letter could refer to
other events than those to which the victim testified. However,
the letter can also be read as an apology for precisely the events
for which defendant was put on trial, and defendant's references tohis daughter as “soccer babe” (following the accusations for which
defendant was incarcerated) may permissibly be construed as
indicative of an inappropriate relationship or desire on
defendant's part towards her. The meaning and intent of the letter
were for the jury to determine.
V. Prosecutor's Opening Statement
[5] Defendant assigns as error the trial court's failure to
grant his motion for a mistrial following the State's opening
statement, in which the State informed the jury that defendant
“admitted to these offenses.” The trial court sustained
defendant's objection; however, defendant neither moved to strike
the statement nor asked for a curative instruction to the jury to
disregard the statement. Our Supreme Court has held that, where a
trial court sustains an objection but a defendant fails to move to
strike that which was objectionable and fails to request a curative
instruction, “[t]he trial court [has taken] sufficient action by
sustaining the defendant's objection and was not required either to
strike the testimony or to give a curative jury instruction.”
State v. Barton, 335 N.C. 696, 709-10, 441 S.E.2d 295, 302 (1994).
Moreover, the statement by the prosecutor accurately forecasted the
evidence adduced at trial in that Jerry Crater testified that
defendant confessed to him that he had physically abused his
daughter during an incidence when he “forced himself on her[.]”
This assignment of error is overruled.
VI. Undisclosed Statements [6] In his sixth assignment of error, defendant asserts the
trial court erred in allowing the victim to testify that defendant
told the victim after the sexual assault that she “need[ed] to take
this to the grave with [her].” Defendant objected on the grounds
that the statement had not been disclosed and moved to strike the
statement, which the trial court overruled. A trial court must,
upon motion of a defendant, order the prosecutor to “divulge . . .
the substance of any oral statement relevant to the subject matter
of the case made by the defendant . . . .” N.C. Gen. Stat. § 15A-
903(a)(2) (2003). “As used in the statute, 'substance' means:
'Essence; the material or essential part of a thing, as
distinguished from “form.” That which is essential.'” State v.
Bruce, 315 N.C. 273, 280, 337 S.E.2d 510, 515 (1985) (quoting
Black's Law Dictionary 1280 (rev. 5th ed. 1979)). Moreover, our
Supreme Court has held that “a synopsis of a defendant's oral
statements in response to discovery requests complies with the
'substance' requirement of N.C. Gen. Stat. § 15A-903(a)(2).” State
v. Johnson, 136 N.C. App. 683, 692, 525 S.E.2d 830, 836 (2000)
(citing State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988)).
In the instant case, the State's report to defendant contained
the following statement: “Father . . . [t]old her not to tell
anyone.” Both the testimony received at trial and the statement
contained in the report given to defendant convey that defendant
was telling his daughter not to tell anyone of the sexual assault.
While the form was not identical, they expressed the same substance
and, as such, the trial court correctly determined there was noviolation of N.C. Gen. Stat. § 15A-903(a)(2). This assignment of
error is overruled.
VII. Testimony of the Victim's State of Mind
[7] Defendant asserts, in his seventh assignment of error,
that the trial court erred in allowing the victim's brother to
testify as follows in response to how his sister looked while
talking to the police following the sexual assault: “She was - She
looked like she was not wanting to . . . talk about it, really, but
she, I guess, told them anyway.” Defendant contends this testimony
was “clearly speculative in that the witness could not possibly
read [the victim's] mind as to what she wanted on this occasion.”
Defendant's objection was overruled. Assuming, without deciding,
defendant's contention has merit, defendant has failed to show that
the testimony by the victim's brother that she was reluctant to
talk to the police had any effect on the outcome of the trial, much
less that there was a “reasonable possibility that, had the error
in question not been committed, a different result would have been
reached at the trial . . . .” N.C. Gen. Stat. § 15A-1443(a)
(2003). This assignment of error is overruled.
VIII. Motion to Dismiss
[8] Defendant assigns as error the trial court's denial of his
motion to dismiss at the close of all the evidence. Specifically,
defendant contends “the lack of physical evidence as well as [the
victim's] widely varying details of the alleged sexual assault
should have resulted in a dismissal of the charges at the
conclusion of the trial.” We disagree. In ruling on a motion to dismiss, the trial court considers
“the evidence in the light most favorable to the State and gives
the State the benefit of every reasonable inference to be drawn
therefrom.” State v. Penland, 343 N.C. 634, 648, 472 S.E.2d 734,
741 (1996). “Contradictions and discrepancies are for the jury to
resolve.” Id. “In deciding whether the trial court's denial of
defendant's motion to dismiss violated defendant's due process
rights, this Court must determine whether 'any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.'” Id. (quoting Jackson v. Virginia, 443 U.S.
307, 319, 61 L. Ed. 2d 560, 573 (1979)). Defendant does not
specifically attack any of the elements of second-degree sexual
offense in the instant case but merely argues that there were
inconsistencies and a lack of physical evidence to bolster the
victim's testimony. Defendant's arguments are unavailing.
First, we have found, and defendant has cited, no case law
that stands for the proposition that there must be some physical
evidence to support court testimony in order for that testimony to
be sufficient to withstand a motion to dismiss. Second, defendant
had ample opportunity to cross-examine the victim with respect to
any inconsistencies he perceived existed between the accounts given
at trial and those given to medical and police personnel. Third,
inconsistencies are expressly left for the jury under well-
established precedent. State v. Rhodes, 290 N.C. 16, 31, 224
S.E.2d 631, 640 (1976). This assignment of error is overruled.
IX. Motion for Appropriate Relief [9] Finally, defendant has submitted a motion for appropriate
relief, asserting he was sentenced in the aggravated range in
violation of the recent holding by the United States Supreme Court
in Blakely v. Washington, 542 U.S. ___, 159 L. Ed. 2d 403 (2004),
which was filed during the time defendant's appeal was pending.
The trial court, not the jury, made findings in aggravation not
admitted by defendant based on a preponderance of the evidence.
Specifically, the trial court found in aggravation that defendant
took advantage of a position of trust or confidence to commit the
offense. Recently, our Supreme Court considered the applicability
of Blakely under North Carolina law and held that “those portions
of N.C.G.S. § 15A-1340.16 which require trial judges to consider
evidence of aggravating factors not found by a jury or admitted by
the defendant and which permit imposition of an aggravated sentence
upon judicial findings of such aggravating factors by a
preponderance of the evidence are unconstitutional.” State v.
Allen, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (2005). Our Supreme
Court further held “that Blakely errors arising under North
Carolina's Structured Sentencing Act are structural and, therefore,
reversible per se.” Id., ___ N.C. at ___, ___ S.E.2d at ___. We
hold accordingly and remand for resentencing.
No error in part, remanded for resentencing.
Judges HUNTER and JACKSON concur.
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