An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA 04-22

NORTH CAROLINA COURT OF APPEALS

Filed: 5 April 2005

STATE OF NORTH CAROLINA

v .                         Gaston County
                                    Nos. 02 CRS 19678, 54342, 61699, 61701-03,
AARON LEBLANC,                    
        Defendant.

    Appeal by defendant from judgments entered 9 December 2002 by Judge Jessie B. Caldwell, III, in Gaston County Superior Court. Heard in the Court of Appeals 30 November 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Richard L. Harrison, for the State.

    Eric A. Bach, for defendant-appellant.

    HUDSON, Judge.
    On 9 December 2002, a jury convicted defendant of assault with a deadly weapon inflicting serious injury, first-degree rape, first-degree sexual offense, common law robbery, second-degree kidnapping, and felony breaking and entering. The trial court entered judgment that day and sentenced defendant to consecutive terms of imprisonment. For the reasons set forth below, we find no error.
    The evidence tends to show that on the morning of 18 March 2002, Elisha Little used her cell phone to call her friend, Sybil Derry. At approximately 7:00 AM, while still on the phone with Ms. Derry, Little's doorbell rang. Defendant, Aaron Leblanc, appeared at the door and asked to use Little's bathroom. She allowed him inand after he used the bathroom, defendant asked Little for a cigarette. When she reached for the cigarettes, defendant rushed her. He put his hand over her mouth and told her she would die. Little was still on the phone with Ms. Derry and when she was able to pull defendant's hand away from her mouth, she screamed into her phone for Derry to call 911. Defendant then placed a knife to her throat, which she was able to knock from his hand. He retrieved the knife and began to struggle her.
    Defendant then ordered Little to kneel with her hands behind her back. He bound her arms with rope and unzipped his pants. After unzipping his pants, defendant touched Little's vaginal area with his fingers. She felt a slight penetration of defendant's finger. Defendant then inserted his penis into her vagina. He did not ejaculate in Little's vagina, but removed his penis and masturbated in front of Little until he ejaculated. Defendant untied Little and told her that she was bleeding. She saw in the mirror that she was bleeding substantially from the left side of her face. Defendant instructed Little to get a bag and put the clothes she had been wearing into it. She placed the clothes, as well as a towel she used to wipe the blood off of herself, into the white storage bag.
    The two struggled and Little escaped through her front door. Defendant ordered her to get back into the apartment, but Little got in her car and began driving to Ms. Derry's residence. While en route, Little called 911, who requested that she pull over to the side of the road. An ambulance arrived and transported her toCarolinas Medical Center.
    After leaving Little's apartment, defendant took the white bag containing Little's clothes and towel across the apartment complex and threw it over a fence into a grassy area. He went to his brother's apartment in the same complex, where he changed clothes and packed clothes and phone numbers into a backpack. He then headed to a neighbor's apartment, where he was apprehended.
    First, defendant argues that the trial court erred when it sentenced him to consecutive sentences on both first-degree rape and first-degree sexual offense. He contends that these two convictions arose out of the same act and that double jeopardy thus prohibits punishment for both offenses. We disagree.
    Defendant correctly asserts that Double Jeopardy bars multiple punishments for the same conduct. Whalen v. U.S., 445 U.S. 684, 63 L. Ed. 2d 715 (1980); State v. Freeland, 316 N.C. 13, 340 S.E.2d 35 (1986). However, a trial court may convict and sentence a defendant for multiple offenses arising out of the same action, as long as each offense contains at least one element not contained in the other offenses. State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987). The Court in Etheridge held that convictions of three separate offenses all arising out of the “same criminal transaction” did not violate double jeopardy. Id. at 50, 352 S.E.2d at 683. Defendant was convicted of statutory rape, incest, and taking indecent liberties with a child for each episode of intercourse with his daughter. Id. The Court explained:
        [W]here, as here, a single criminal transaction constitutes a violation of morethan one criminal statute, the test to determine if the elements of the offenses are the same is whether each statute requires proof of a fact which the others do not . . . . If neither crime constitutes a lesser included offense of the other, the convictions will fail to support a plea of double jeopardy.
Id. (internal citations omitted). Our Courts have applied this rule in several similar cases. See State v. Fletcher, 322 N.C. 415, 368 S.E.2d 633 (1988) (holding that it was not double jeopardy for defendant to be punished for convictions of rape, incest, and taking indecent liberties when all convictions were based on one incident); State v. McNichols, 322 N.C. 548, 369 S.E.2d 569 (1988) (holding that convictions for first-degree rape and indecent liberties arising from same act do not violate double jeopardy); State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467 (1989) (holding that double jeopardy not violated by convictions for first-degree rape and indecent liberties arising from same act); State v. Manley, 95 N.C. App. 213, 381 S.E.2d 900 (1989)(holding that convictions for first-degree sexual offense and indecent liberties arising from same act do not violate double jeopardy).
    Here, as in the cases discussed above, the crimes involved do not completely overlap. First-degree sexual offense and first- degree rape are independent of each other, with each offense containing an element the other does not. “A person is guilty of rape in the first-degree if the person engages in vaginal intercourse.” N.C. Gen. Stat. § 14-27.2 (2002) (emphasis added). By contrast, N.C. Gen. Stat. § 14-27.4 (2002), sexual offense in the first-degree, criminalizes the commission of a “sexual act”under certain circumstances. N.C. Gen. Stat. § 14-27.1 (4) (2002) defines “sexual act:”
        “Sexual act” means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body . . . .

Id. (emphasis added). Thus, rape requires vaginal penetration and sexual offense requires commission of a sexual act, other than vaginal penetration. Here, defendant's act of digital penetration constitutes a sexual act under the statute, which is separate from the act of vaginal intercourse that supported the rape conviction.
    Defendant asserts that the above cases do not govern here because none of them involved first-degree rape and first-degree sexual assault. We disagree. We conclude that this case is governed by the same rationale which has led our Courts to conclude that two sex crimes arising from the same act may both be punished. See McNichols, 322 N.C. 548, 369 S.E.2d 569; Fletcher, 322 N.C. 415, 368 S.E.2d 633; Etheridge, 319 N.C. 34, 352 S.E.2d 673;. Manley, 95 N.C. App. 213, 381 S.E.2d 900; Hewett, 93 N.C. App. 1, 376 S.E.2d 467.
    Defendant relies heavily on his argument that the digital penetration and the rape were part of the same act, that the digital penetration was part of a sequence of preparation for the rape and not a separate act. This Court addressed a similar argument by the defendant in State v. Midyette, 87 N.C. App. 199, 360 S.E.2d 507 (1987). In Midyette, the defendant began raping the victim in one position and then, when the victim complained ofpain, the defendant turned the victim from her back to her front and re-inserted his penis in her vagina. Id. at 205, 360 S.E.2d at 511. The defendant argued that this could only support one count of rape, as it was a continuous act, but the Court held that this constituted two acts of rape. Id. at 201-02, 360 S.E.2d at 508-09.
    Here, the testimony supports a conclusion that defendant committed two distinct acts. The defense argues that Ms. Little stated that the slight digital penetration was for the purpose of committing the rape, pointing to her description, on cross- examination, of the digital penetration as “slight manipulation with the fingers in the vaginal area to get inside of me.” However, on direct, Ms. Little testified that she felt a slight penetration by defendant's fingers in her vagina for “maybe five or six seconds,” while he still had his pants on, and that she then felt penetration by his penis. We conclude that the statements made by Ms. Little, while perhaps open to two different interpretations, are sufficient to support a jury determination that it was two separate acts.
    Defendant argues that Etheridge and the accompanying cases can be distinguished from his case because these other cases involved two separate acts to support the separate convictions, and that his case only involved one act. We disagree. Although the Etheridge Court did involve separate acts of disrobing the children and then having sex with them, the Court unambiguously characterized each count of indecent liberties as “coinciding with an episode of intercourse,” each resulting in a rape conviction. 319 N.C. at 49,352 S.E.2d at 682. Moreover, the Court in Fletcher held that it was not double jeopardy for the defendant to be punished for rape, incest, and taking indecent liberties with a minor when all the convictions were based on one incident or act. 322 N.C. 415, 368 S.E.2d 633. Similarly, contrary to defendant's characterization, the Hewett Court clearly stated that defendant's convictions were based on the same acts: “The children's testimony showed that defendant raped each of them on 29 March, and this same evidence, therefore, supported a finding that he had taken indecent liberties with them.” 93 N.C. App. at 12, 376 S.E.2d at 474.
    Defendant contends that because State v. Freeland, 316 N.C. 13, 340 S.E.2d 35 (1986), and State v. Prevette, 317 N.C. 148, 345 S.E.2d 159 (1986), barred prosecution for two crimes based on the same act, he cannot be convicted of two crimes for the same act. However, these cases can be distinguished. In Freeland, the court instructed the jury that in order to find defendant guilty of kidnapping, it must find he had sexually assaulted the victim. 316 N.C. at 21, 340 S.E.2d at 39. Thus, in Freeland, satisfaction of the sexual assault element of the first-degree kidnapping conviction relied solely on the rape and sexual offense for which defendant was separately convicted. Id. Similarly, in Prevette, the defendant's act of binding the victim's hands and feet to prevent her from removing a mouth gag, which resulted in her death by strangulation, was used to support both his murder and kidnapping convictions: “the jury impermissibly relied on the same evidence of restraint which was an inherent feature of the victim'smurder by suffocation to support the restraint element of kidnapping.” 317 N.C. at 158, 345 S.E.2d at 165 (emphasis added). The Court held that the defendant could not be punished separately, unless the legislature authorized cumulative punishment, which it had not. Id. Here, the defendant's digital penetration was not an “inherent feature” of the rape, and our legislature has authorized cumulative punishment for sex crimes, as discussed below.
    Defendant argues that scrutiny of the legislative intent reveals no intention to create double punishment for first-degree rape and first-degree sexual offense. In support of this argument, defendant cites State v. Johnson, 317 N.C. 417, 347 S.E.2d 7 (1986), and State v. Nations, 319 N.C. 318, 354 S.E.2d 510 (1987). Although defendant asserts that these cases concluded that there was no legislative intent to create double punishment for these sexual offenses, we find no support for this in our careful reading of these cases. Nations does not address defendant's point, but merely rejects the argument that N.C. Gen. Stat. § 14-27.4, “First- degree sexual offense” was repealed by N.C. Gen. Stat. § 14-27.7, “Intercourse and sexual offenses with certain victims.” 319 N.C. at 329, 354 S.E.2d at 516. Similarly, Johnson merely holds that the legislature did not intend to alter the penetration requirement of rape when it enacted N.C. Gen. Stat. § 14-27.2, “First-degree rape,” but meant to distinguish vaginal penetration by a penis (required for rape) from the sexual acts which constitute N.C. Gen. Stat. § 14-27.4, “First-degree sexual offense,” enacted at the same time. 317 N.C. at 435, 347 S.E.2d at 17-18. We conclude that thecases discussed above establish that our legislature did intend to allow punishment for both rape and other sexual offenses. See Etheridge, 322 N.C. 415, 368 S.E.2d 633; Fletcher, 322 N.C. 415, 368 S.E.2d 633; Hewett, 93 N.C. App. 1, 376 S.E.2d 467; Manley, 95 N.C. App. 213, 381 S.E.2d 900.
    Next, defendant argues that the trial court erred by failing to properly distinguish rape from first-degree sexual offense in its instructions. We disagree. Because defendant failed to object to the jury instructions at trial, he now argues that the trial court committed plain error. See N.C. R. App. P., Rule 10(c). This Court overturns the trial court for plain error only in extraordinary cases, where the error was so fundamental that it resulted in a miscarriage of justice or had a probable impact on the conviction by the jury. State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378-79 (1983). Under plain error review of jury instructions, we must “examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.” Id. The defendant must establish that “absent the erroneous instruction, a jury would not have found him guilty of the offense charged.” State v. Raynor, 128 N.C. App. 244, 247, 495 S.E.2d 176, 178 (1998).
    Defendant argues that the trial court should have explicitly instructed the jury that vaginal intercourse is excluded from the definition of “sexual act” referred to in N.C. Gen. Stat. § 14- 27.4, first-degree sexual offense. Defendant cites State v. Harris, 140 N.C. App. 208, 535 S.E.2d 614 (2000), in support ofthis argument. In Harris, this Court concluded that the trial court erred in failing to specifically instruct the jury that vaginal intercourse was excluded from the offenses of first and second degree statutory sexual offense. Id. at 214-15, 535 S.E.2d at 618-19. However, the Court ultimately held that the incomplete instruction did not rise to the level of plain error. Id. Here, the trial court specifically noted the requirement of vaginal penetration in his instruction on first-degree rape and then instructed the jury on first-degree sexual offense, stating that a sexual act means “any penetration, however slight, by an object, such as a finger, into the genital opening of a person's body.” (emphasis added). As the Court in Harris did, we conclude that although the instructions given here would have been clearer if the court explicitly stated that penetration by an object does not include a penis, any error was harmless. Especially given that the instruction regarding penetration by an object followed the instruction for rape, where penetration by defendant's penis was required, we cannot say that “absent the erroneous instruction, a jury would not have found [defendant] guilty of the offense charged.” Raynor, 128 N.C. App. at 247, 495 S.E.2d at 178.
    In his final assignment of error, defendant contends that there was insufficient evidence of flight to warrant the trial court's instruction on this issue. Again, we disagree. “A trial judge is not required to instruct a jury on defendant's flight unless there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crimecharged.” State v. Thompson, 328 N.C. 477, 489, 402 S.E.2d 386, 392 (1991) (internal citations and quotations omitted). Merely leaving the crime scene is insufficient evidence to warrant an instruction on flight--there must be evidence showing an attempt to avoid apprehension as well. Id. at 490, 402 S.E.2d at 393.
    Defendant argues that the State's evidence here failed to demonstrate that defendant either destroyed or concealed evidence or attempted to elude prosecution. However, evidence at trial showed that defendant collected Ms. Little's clothes and blood- soaked towel into a white garbage bag and then threw this bag over a fence on the perimeter of the apartment complex. Certainly, the jury could reasonably construe this act as one taken by defendant to avoid apprehension or conceal evidence. Likewise, evidence at trial showed that soon after leaving Ms. Little's apartment, defendant changed clothes and gathered a backpack with clothes and out-of-state phone numbers in it. These actions also provide sufficient evidence for the jury to determine that defendant intended to evade capture by the police. Accordingly, we overrule this assignment of error.
    No error.
    Judges WYNN and ELMORE concur.
    Report per Rule 30 (e).

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