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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
In the Matter of:
D.W. Mecklenburg County
No. 03 J 1105
Appeal by defendant from judgment entered 9 March 2004 by
Judge Elizabeth D. Miller in Mecklenburg County District Court.
Heard in the Court of Appeals 6 June 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gail E. Dawson, for the State.
Anthony M. Brannon for defendant-appellant.
MARTIN, Chief Judge.
Defendant juvenile, D.W., was adjudicated responsible for
first-degree attempted rape and indecent liberties between
children. A sentence of nine months probation was imposed. For
the reasons that follow, we find no error in the trial court's
The State presented evidence at trial tending to show the
following: In June 2004, eight-year-old A.M. lived with her mother,
step-father, fourteen-year-old step-brother (D.W.), three-year-old
brother, and six-week-old brother. A.M. testified that on 23 June
2004 she was in the living room sitting on the couch with her baby
brother. At the time, her mother was in her bedroom with the
three-year-old. D.W. was in his room, then came out, went into thekitchen, and went to the mailbox. When D.W. came back into the
house he took the baby from A.M. and put the baby in his crib.
D.W. then told A.M. to come here and pulled her into his room.
A.M. testified that D.W. pulled down her pants and touched her
private with his private. A.M.'s mother entered D.W.'s room
and saw D.W. run into the closet. At that time his pants were down
around his legs. A.M. was shown a drawing of a boy without
clothing and a girl without clothing and was able to identify their
body parts. A.M. indicated on the drawings that D.W. touched her
vagina with his penis.
The testimony of A.M.'s mother and Officer Adrian Hucks of the
Charlotte-Mecklenburg Police Department indicated that A.M. told
each of them the same sequence of facts. A.M.'s mother testified
that when she entered the room, she saw A.M. in D.W.'s bed with the
covers up to her neck. She removed the covers from A.M. and found
that the child was not wearing any bottoms. She waited for D.W.'s
father to return home from work, then she and D.W.'s father talked
to D.W. about the incident. D.W. maintained that he did not do
anything. A.M.'s mother called the police, and Officer Hucks
arrived and took a statement from A.M. Later, A.M. complained that
she felt a burning sensation when she urinated, so her mother took
her to the hospital.
At the close of the State's evidence, defendant juvenile moved
to dismiss the charges based on the insufficiency of the evidence
and a failure to show the ages of A.M. and D.W. A review of the
evidence showed that evidence of A.M.'s age had been presented, butthere had been no evidence of D.W.'s age. The State was permitted,
over defendant juvenile's objection, to reopen the evidence and
present evidence that D.W. was fourteen years of age at the time of
Defendant juvenile presented testimony on his own behalf. His
testimony during direct examination was not recorded and is
therefore not included in the transcript. However, his testimony
on cross-examination is in the transcript before us. D.W.
testified on cross-examination that on the morning of 23 June 2004
he watched a movie. After the movie he went to the bathroom. A.M.
was in his room when he returned. D.W. testified that he was on
the floor when his step-mother came into the room. When he heard
her coming, D.W. ran into the closet. He testified that he was not
pulling his pants up while he ran to the closet. D.W. did not
leave the closet until A.M. and his step-mother left the room.
The trial court adjudicated defendant juvenile responsible for
attempted first-degree rape and indecent liberties between minors.
The trial court imposed a sentence of nine months probation.
Defendant juvenile appeals.
The record on appeal contains six separate assignments of
error. Defendant brings forward three of the assignments of error
in two separate arguments. The remaining assignments of error are
deemed abandoned. N.C. R. App. P. 28(a) (2004). Defendant asserts
that (1) he is entitled to a new trial because although hetestified at trial, the trial court inadvertently failed to record
his testimony, and (2) the trial court erred in denying his motion
to dismiss at the end of all of the evidence when the evidence was
insufficient to support an adjudication that defendant committed
attempted first-degree statutory rape and indecent liberties
between children. We will first address the trial court's denial
of defendant's motion to dismiss.
I. Motion to Dismiss
In reviewing a motion to dismiss on the grounds of sufficiency
of the evidence, the issue is whether substantial evidence exists
as to each essential element of the offense charged and of the
defendant being the perpetrator of that offense. State v. Glover,
156 N.C. App. 139, 142, 575 S.E.2d 835, 837 (2003). Substantial
evidence is relevant evidence that a reasonable mind might accept
as adequate to support a conclusion. State v. Vick, 341 N.C. 569,
583-84, 461 S.E.2d 655, 663 (1995). A motion to dismiss should be
denied if there is substantial evidence, whether direct,
circumstantial, or both, that the defendant committed the offense
charged. State v. Thaggard, ___ N.C. App. ___, ___, 608 S.E.2d
774, 786 (2005). The trial court must consider the evidence 'in
the light most favorable to the State,' and the State is entitled
to every reasonable inference to be drawn from it. State v.
Quinn, 166 N.C. App. 733, 739, 603 S.E.2d 886, 889 (2004) (quoting
State v. Bright, 301 N.C. 243, 257, 271 S.E.2d 368, 377 (1980)).
A. Attempted First-Degree Rape
Defendant contends that the trial court erred when it failed
to dismiss the allegation of attempted first-degree rape at the end
of all of the evidence. In order for defendant to be adjudicated
responsible for attempted first-degree rape of a child,
the State must show that the victim was twelve
years old or less, that the defendant was at
least twelve years old and at least four years
older than the victim, that the defendant had
the intent to engage in vaginal intercourse
with the victim, and that the defendant
committed an act that goes beyond mere
preparation but falls short of actual
commission of intercourse.
State v. Gregory, 78 N.C. App. 565, 571, 338 S.E.2d 110, 114
(1985), cert. denied, 498 U.S. 879, 112 L. Ed. 2d 171 (1990); see
N.C. Gen. Stat. . 14-27.2 (2003). Since Gregory, the statute was
amended to read that the victim must be thirteen years old or less.
N.C. Gen. Stat. . 14-27.2 (2003)(stating that a person is guilty of
first-degree rape for vaginal intercourse with a victim who is a
child under the age of 13 years and the defendant is at least 12
years old and is at least four years older than the victim). The
evidence tended to show that defendant was fourteen years old and
AM was eight years old at the time of the offense. Therefore,
defendant was six years older than the victim, and the age elements
of attempted first-degree rape of a child are satisfied.
The intent element of attempted first-degree rape is
established if the defendant, at any time during the attempt,
intended to gratify his passion upon the victim, notwithstanding
any resistance on the victim's part. State v. Moser, 74 N.C. App.
216, 220, 328 S.E.2d 315, 317 (1985). Because intent is anattitude or emotion of the mind and is seldom, if ever, susceptible
of proof by direct evidence, it must ordinarily be proven by
circumstantial evidence, i.e., by facts and circumstances which may
be inferred. Id.
Defendant argues that the State did not present the evidence
necessary to find an intent to engage in vaginal intercourse. We
disagree. The evidence as viewed in the light most favorable to
the State is as follows: defendant told A.M. to come into his room.
A.M. entered the room, and defendant pulled down A.M.'s pants.
Defendant then pulled down his own pants and touched A.M.'s vagina
with his penis. When he heard A.M.'s mother, defendant ran to his
closet while pulling up his pants. While A.M.'s mother was in the
room defendant hid in the closet. At that time, A.M. was under the
covers in defendant's bed wearing no pants or underwear. The age
of the defendant, the act of defendant touching his penis to A.M.'s
vagina, and defendant running to the closet and hiding from A.M.'s
mother permit a reasonable inference that defendant had the
requisite intent to gratify his passion through vaginal intercourse
Defendant also committed an act that goes beyond mere
preparation when he pulled down his pants and touched his penis to
A.M.'s vagina, thereby satisfying the final element of the offense.
Gregory, 78 N.C. App. at 571, 338 S.E.2d at 114 (1985). The trial
court properly denied defendant's motion to dismiss for
insufficiency of the evidence on the charge of attempted first-
degree rape of a child.
B. Indecent Liberties Between Minors
Defendant also asserts that the trial court erred by failing
to dismiss the allegation in the petition that D.W. committed
indecent liberties between children. Defendant contends that the
State did not present any evidence that defendant acted with the
purpose or intent of gratifying sexual desire. Under N.C. Gen.
Stat. § 14-202.2 (indecent liberties between children),
(a) A person who is under the age of 16 years
is guilty of taking indecent liberties with
children if the person either:
(1) Willfully takes or attempts to take any
immoral, improper, or indecent liberties
with any child of either sex who is at
least three years younger than the
defendant for the purpose of arousing or
gratifying sexual desire; or
(2) Willfully commits or attempts to commit
any lewd or lascivious act upon or with
the body or any part or member of the
body of any child of either sex who is at
least three years younger than the
defendant for the purpose of arousing or
gratifying sexual desire.
N.C. Gen. Stat. § 14-202.2 (2003). As we have noted, defendant was
fourteen years old and A.M. was eight years old at the time of the
offense, creating more than the required three-year age difference
To prove that defendant had the purpose of arousing or
gratifying a sexual desire, id., there must be some showing of
intent, maturity, experience, or purpose in acting. In re T.C.S,
148 N.C. App. 297, 302-03, 558 S.E.2d 251, 254 (2002). The act
alone does not infer the gratification of sexual desires when the
offense is between children. Id. The facts in this case aresimilar to the facts of In re T.C.S., where the evidence presented
by the State was sufficient to deny a motion to dismiss because the
defendant was seen leaving a secretive wooded area hand-in-hand
with the victim, who appeared disheveled. Id. Defendant in this
case was seen in his room running to the closet while pulling up
his pants, and the victim was found in defendant's bed unclothed
from the waist down. The evidence presented by the State was
sufficient to show defendant had the requisite intent and
purpose in acting to gratify a sexual desire. Id. The trial
court properly denied defendant's motion to dismiss for
insufficiency of the evidence on the charge of indecent liberties
between children. Defendant's argument with respect to both of the
offenses is overruled.
II. Sufficiency of the Transcript
Defendant also alleges that he is entitled to a new trial
because the trial court inadvertently failed to record his
testimony on direct examination at trial. If a transcript is
altogether inaccurate and no adequate record of what transpired at
trial can be reconstructed, the court must remand for a new trial.
In re Rholetter, 162 N.C. App. 653, 664, 592 S.E.2d 237, 244
(2004). A new trial is appropriate if the incomplete nature of the
transcript prevents the appellate court from conducting a
meaningful appellate review. In re Hartsock, 158 N.C. App. 287,
293, 580 S.E.2d 395, 399 (2003).
In the present case, we are able to conduct a meaningful
review of defendant's appeal for two reasons. First, defendant'sonly other argument on appeal is the trial court's denial of his
motion to dismiss. As we have held above, the State presented
substantial evidence of every element of each offense. Regardless
of what defendant might have testified to on direct examination, we
are still required, upon a motion to dismiss, to consider the
evidence in the light most favorable to the State; [and] the State
is entitled to every reasonable intendment and every reasonable
inference to be drawn therefrom. State v. Powell, 299 N.C. 95,
99, 261 S.E.2d 114, 117 (1980). Any contradictions or
discrepancies the defendant might have raised in his direct
examination are for the [fact-finder] to resolve and do not
warrant dismissal. Id. Therefore, because the record before us
clearly shows that the evidence presented by the State was
sufficient to deny defendant's motion to dismiss, we are able to
conduct meaningful review of defendant's sole argument on appeal.
See In re Rholetter, 162 N.C. App. 653, 664-665, 592 S.E.2d 237,
244 (2004) (stating that where none of the . . . findings of fact
and conclusions of law in which respondent assigns error are
supported solely on [the missing] testimony, respondent failed to
prove that the transcript was altogether inaccurate and
Second, though the direct examination of defendant was not on
record in the transcript, the cross-examination of defendant by the
State is included in the transcript. So long as the missing parts
of the transcript can be reconstructed from the record, and the
transcript is adequate to allow the defendant to raise appellateissues, a new trial should not be granted. State v. Hammonds, 141
N.C. App. 152, 167-68, 541 S.E.2d 166, 177-78 (2000), aff'd per
curiam, 354 N.C. 353, 554 S.E.2d 645 (2001), cert. denied, 536 U.S.
907, 153 L. Ed. 2d 184 (2002). Defendant's testimony during cross-
examination provides a partial reconstruction of his account of
what took place. He testified that after watching a movie he went
to the bathroom. A.M. was in his room when he returned. He was
sitting on the floor when his step-mother came into the room, and
when he heard her coming, he ran into the closet. He testified
that he was not pulling his pants up while he ran to the closet.
Defendant's attorney also summarized his testimony during her
argument in support of her motion to dismiss. Her argument further
reconstructs defendant's account of the sequence of events:
[W]hat his evidence has indicated is the
question is why did he run in the closet? . .
. He knew he was in trouble because he had
left the house without his stepmother's
permission. His [father has] indicated that
that would indeed get him into trouble. And
so when he (inaudible) the house, there's also
(inaudible) not just even between the two of
them which is contradictory to what [AM's
mother] testified to when she was on the
stand. . . . The child ran into the closet to
avoid her, that the young lady was on his bed,
that he did not know her state of apparel
because she had the covers over her . . . .
That I don't know why and my client does not
know why she would have her clothes off or
down or however because [he] was not in the
room when she came in the room. He went to
the bathroom, and then when he came to the
room, she was under the covers in the bedroom.
So he doesn't know exactly what was going on
in regards to that.
The import of defendant's testimony is in the record before us
through his cross-examination and his attorney's argument. Becausewe are able to reconstruct the missing testimony, and because we
can rule upon defendant's only other argument based on the
sufficiency of the State's evidence, the record before us is
adequate. This argument is overruled.
In the judgment of the trial court, we find
Judges WYNN and TIMMONS-GOODSON concur.
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