An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

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NO. COA04-296

NORTH CAROLINA COURT OF APPEALS

Filed: 5 April 2005

STATE OF NORTH CAROLINA

v .                             Cleveland County
                                Nos. 01 CRS 52015
ROBERT LEE HUMPHRIES, JR.,                01 CRS 52016
            Defendant

    Appeal by defendant from judgment filed 16 July 2003 by Judge James W. Morgan in Cleveland County Superior Court. Heard in the Court of Appeals 17 February 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Susan R. Lundberg, for the State.

    Allen W. Boyer for defendant.

    BRYANT, Judge.

    Robert Lee Humphries, Jr. (defendant) appeals a judgment filed 16 July 2003, entered consistent with a jury verdict finding defendant guilty of attempted first-degree rape and indecent liberties with a child.
    On 11 June 2001, defendant was indicted for one count of first-degree rape (rape of a female child under the age of 13) and one count of indecent liberties with a child. These matters came for jury trial at the 25 and 26 June 2002 criminal sessions of Cleveland County Superior Court with the Honorable James W. Morgan presiding.
    On 26 June 2002, defendant was found guilty of attempted first-degree rape and indecent liberties with a child. Based onhis prior record level, defendant was sentenced to a term of 189- 236 months for the attempted first-degree rape conviction, and 21- 26 months for his conviction of indecent liberties with a child.
    Defendant gave timely notice of appeal.

Facts
    The State presented the following evidence at trial: In the summer of 1998, the victim T.S., lived with her parents in Kings Mountain, North Carolina. T.S. was twelve years old and was out of school for the summer. Defendant and his girlfriend, Rachel, lived next door to T.S. and her parents. T.S.'s mother and defendant worked at the same mill and T.S.'s mother rode with defendant to and from work when they worked the same shift. T.S. saw defendant about every other day when defendant would drive T.S. to the grocery store to buy an over-the-counter drug for T.S.'s mother.
    One day in the summer of 1998 while defendant drove T.S. to the store he pulled a picture of a young girl out of his wallet and showed the picture to T.S. Defendant said to T.S., “See this girl?” . . . “Well, see, girls need to be having sex, and this is one of the girls that I'm having sex with now.” During her testimony, T.S. identified a photograph of a young girl marked as State's Exhibit 1 as the photograph that defendant pulled out of his wallet and showed her the day that he sexually assaulted T.S.
    When defendant and T.S. returned from the store, T.S. took the pills to her mom. Shortly thereafter, T.S. returned to defendant's house to see if she could borrow a music tape from defendant's girlfriend, Rachel. Rachel was in the shower, so T.S. sat down towait. While T.S. sat and waited for Rachel, defendant started asking T.S. questions. Defendant asked T.S. if she had a boyfriend, T.S. said “no.” Defendant asked T.S. if she had ever been with a guy sexually, and T.S. responded “no.” In reply, defendant asked T.S., “Well, don't you think it's about time?” Again, T.S. said “no.”
    In the past, defendant and T.S. had played a game where they would playfully punch each other. On this day, while T.S. waited for Rachel to get out of the shower, defendant and T.S. started playfully punching each other. After awhile, defendant told T.S. to stop, but T.S. continued to punch defendant. Defendant then said to T.S., “If you don't stop, I'm gonna grab your boobs.” T.S. responded, “No, you won't.” T.S. continued to punch defendant and defendant grabbed T.S.'s breasts.
    Thereafter, defendant pulled T.S. down underneath him. T.S. asked defendant what he was doing and then said “No, please stop.” Defendant did not stop. Defendant unbuttoned T.S.'s pants and slid them down, he slid her panties over to one side, defendant unzipped his pants exposing his penis and climbed on top of her. T.S. felt a surge of pain and burning in her abdomen area and her vagina, and believed defendant was raping her. Later when T.S. talked with a pediatric doctor, Dr. Christopher Michael Cerjan, T.S. stated that she was uncertain if defendant's penis actually penetrated her vagina but she reaffirmed the intense pain she had felt inside and outside of her vagina when defendant was on top of her.
    Defendant remained on top of T.S. for about ten minutes. Thisentire time, T.S. felt the pain and burning on the inside and the outside of her vagina. T.S. again told defendant to stop, that it hurt, but defendant continued to remain on top of T.S. When defendant finally got off of T.S. he told her not to tell anyone because he could get in real big trouble. T.S. immediately ran home but did not tell anyone about defendant raping her until about two years later.
    After this incident with defendant, T.S. would cry and state she did not want to go with defendant to the store to get her mother's pills. T.S. began having mental health problems consisting of uncontrollable rage, severe mood swings and deep depression. When she was fourteen, T.S. tried to commit suicide and was taken to the hospital. T.S. told her mother she tried to kill herself because defendant had raped her in the summer of 1998. For a school project, T.S. wrote about the rape as something that changed her life. She also wrote a suicide note. As a result of the school project and the suicide note, T.S. met with her school principal and the school guidance counselor. These incidents were then referred to the Cleveland County Department of Social Services (DSS) and to the Kings Mountain Police Department.
    In March 2001, Elizabeth Hutchins, an after hours social worker with DSS, interviewed defendant regarding a companion case to the case involving T.S. When Social Worker Hutchins told defendant the he had been named as a suspect in a rape case, defendant immediately brought up T.S.'s name. Defendant said he had played games with T.S. and wrestled with her, but denied doinganything sexually with her. Social Worker Hutchins had not named T.S. or identified her to defendant prior to defendant's comments.
    Rhonda Fortner, a child protective services investigator with DSS, and Lisa Proctor, a detective with the Kings Mountain Police Department, met with defendant on 6 April 2001, and informed him that he had been accused of sexually abusing a child. Investigator Fortner and Detective Proctor did not tell defendant who had made the allegations against him. Defendant stated that he knew T.S., but that he didn't do anything to T.S. but wrestle with her. Prior to defendant bringing her name up, T.S.'s name had not been mentioned.
    On 10 April 2001, defendant voluntarily drove himself to Kings Mountain Police Department and again met with Detective Proctor. During this interview, defendant acknowledged he knew T.S. and had lived near her but again denied the rape allegations. Defendant claimed that about six years before, T.S. had come over to his house, started punching on him and he was punching on her, and then she just pulled down her pants and panties and told defendant to “[d]o it to me.” Defendant claimed he said no and asked her to leave.
    On 11 April 2001, Detective Proctor met with T.S. to talk in detail about what happened the summer of 1998. Detective Proctor
testified that T.S. told her that on one of the days defendant had driven her to the store to get her mother's pills, defendant started asking her questions about sex and defendant told T.S. her first time should be with a real man. T.S. stated that defendantreached between his legs while he asked her these questions and told her he was “[a]djusting himself.”
    T.S. stated that during the drive to the store defendant pulled a photograph out of his wallet and showed her the picture of a very young girl with red hair. Defendant told T.S. this was the girl he had been having sex with, and she replied, “Ain't she a little young for you?” Defendant then replied, “Every girl's first time should be with a real man.” Defendant then asked her again if she had ever had sex before and T.S. said no, she was going to wait until she was married.
    T.S. told Detective Proctor that after she and defendant had returned from the store she went into defendant's house to get a music tape from defendant's girlfriend. Defendant's girlfriend was in the shower so T.S. decided to wait there until she got out of the shower. T.S. told Detective Proctor that defendant and she started a punching game and, then, defendant grabbed T.S.'s breasts. Thereafter, defendant grabbed T.S. by the arm and laid her down on the couch and raped her. Defendant Proctor testified T.S. told her that defendant held her hands over her head, then unzipped and pulled her pants down and her panties so that her private parts were revealed. T.S. then stated that defendant unzipped his pants and pulled his penis out and stuck it into her private part, and that it hurt real bad. T.S. told Detective Proctor that defendant could only get the tip of his penis in her, but that he kept trying and a clear whitish color gel came out of his penis and got on her panties. T.S. described defendant's penisas hard like a muscle. T.S. stated that defendant told her not to tell anyone about what had happened.
    On 30 April 2001, defendant again voluntarily met with Detective Proctor to talk further about the sexual assault allegations made by T.S. against him. During this interview, defendant acknowledged he had grabbed T.S.'s butt and he may have grabbed her boob. Detective Proctor asked defendant about his wallet. Defendant voluntarily pulled out his wallet. Defendant's wallet was black with an emblem on it, just as T.S. had described it. Defendant started taking things out of his wallet and telling Detective Proctor about the items.
    Defendant voluntarily showed Detective Proctor a number of photographs, including the photograph of the young girl with red hair. Defendant told Detective Proctor the first name of the girl in the photograph and told her it was a friend of his daughters. Detective Proctor asked defendant if she could have the photograph and whether defendant minded if she showed the photograph to T.S. Defendant said Detective Proctor could have the photograph and could show it to T.S. Defendant signed an evidence sheet regarding this photograph and gave it to Detective Proctor. This photograph had been previously marked as State's Exhibit 1 during T.S.'s testimony, and was admitted into evidence as State's Exhibit 1 during Detective Proctor's testimony, without objection from defendant.
    Defendant did not present any evidence at trial.
_________________________
    The issues on appeal are whether the trial court erred by: (I) admitting into evidence the photograph of a girl (State's Exhibit 1) and allowing the victim to testify as to this photograph and as to statements defendant made about having sex with the girl in the photograph; (II) allowing Detective Proctor to testify as to statements defendant made during his interview with Detective Proctor, pertaining to the girl in the photograph, and allowing Detective Proctor to testify regarding his prior conviction for rape of a child; (III) failing to provide a curative instruction after sustaining defendant's objection to T.S.'s mother's hearsay testimony; and (IV) denying his motion to dismiss the charges.
I
    Defendant first argues the trial court erred by admitting into evidence the photograph of a girl (State's Exhibit 1) and allowing the victim to testify as to this photograph and as to statements defendant made about having sex with the girl in the photograph. Defendant objected at trial to the admission of the photograph and statements based on relevancy. Defendant argues it was error for the Court to allow this evidence.
    Rule 401 of the North Carolina Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.G.S. §8C-1, Rule 401 (2003). All relevant evidence is generally admissible. N.C.G.S. § 8C-1, Rule 402 (2003). Further, “in criminal cases, Rule 401 should bebroadly construed so that all evidence which may shed any light on the alleged crime is admitted.” State v. Bruton, 344 N.C. 381, 386, 474 S.E.2d 336, 340 (1996). However, relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of its unfair prejudice.” N.C.G.S. 8C-1, Rule 403 (2003).
    “Whether the use of photographic evidence is more probative than prejudicial . . . lies within the discretion of the trial court.” State v. Creech, 128 N.C. App. 592, 595-96, 495 S.E.2d 752, 754-55 (1998); see also State v. Flippen, 344 N.C. 689, 695- 96, 477 S.E.2d 158, 162 (1996); State v. Harden, 344 N.C. 542, 559, 476 S.E.2d 658, 666-67 (1996); State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988); State v. Sledge, 297 N.C. 227, 231-32, 254 S.E.2d 579, 582-83 (1979). An abuse of discretion by the trial court will be found only if the trial court's ruling is “manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision. Creech, 128 N.C. App. at 596, 495 S.E.2d at 755.
    In Creech, the defendant was found guilty of taking indecent liberties with two male children. The defendant argued the trial
court erred and unfairly prejudiced him when it allowed the State to introduce into evidence photographs of male models and men in bikini underwear or g-strings. The photographs were found to be relevant to the case and admissible because they corroborated the testimony of two of the State's witnesses. The Court found that the probative value of the photographs substantially outweighed any danger of unfair prejudice to the defendant's case.     In the instant case, the photograph shows, from the waist up, a fully-clothed minor female child. The victim testified that defendant showed her this picture on the day he raped her. She testified that as defendant showed her this picture, he stated, “Well, see, girls need,” you know, “to be having sex, and this is one of the girls that I'm having sex with now.” This photograph corroborates the testimony of the victim, regarding statements defendant made to her on the day he attempted to rape her. We conclude these statements made by defendant and this photograph are relevant evidence.
    Defendant has failed to demonstrate any unfair prejudice by admission of the photograph. Accordingly, this assignment of error is overruled.
II
    Defendant next argues that the trial court erred by allowing Detective Proctor to testify as to statements defendant made, during his interview with Detective Proctor, pertaining to the girl in the photograph. Defendant also argues the trial court erred by allowing Detective Proctor to testify regarding his prior conviction for rape of a child.
    “[Our Supreme Court] has held that a motion in limine is not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial. [Our Supreme Court has] also held that a pretrial motion to suppress, a type of motion in limine, is not sufficient to preserve for appeal the issue of admissibility ofevidence.” State v. Roache, 358 N.C. 243, 292, 595 S.E.2d 381, 413 (2004)   (See footnote 1)  .
    On 25 June 2002, prior to the trial commencing and outside the presence of the jury, defendant sought to suppress: (1) statements defendant made to Detective Proctor, during a voluntary interview on 30 April 2001, regarding the girl in a photograph; and (2) defendant's prior conviction of 4 October 1982 in Louisiana for the rape of a child. After a hearing on defendant's motion to suppress, and following the voir dire examination of Detective Proctor, the trial court denied defendant's motion to suppress as to Detective Proctor's testimony regarding statements defendant made during the 30 April 2001 interview. As to defendant's motion to suppress as it applied to his 4 October 1982 conviction, the trial court denied the motion at that time, but specifically stated “about the conviction . . . if it comes up, the Court may entertain an . . . objection to that evidence and may rule further at that time.”
    Later, during the trial, Detective Proctor was questioned by the State regarding statements defendant had made to T.S.,according to T.S.'s interview with Detective Proctor, regarding the photograph of the girl. Defendant did not object. When Detective Proctor was questioned by the State regarding statements defendant made to Detective Proctor, during the 30 April 2001 interview, pertaining to the photograph of the young girl, defendant did not object to any of the questions or to any of Detective Proctor's responses. When the State moved to have the photograph of the girl admitted into evidence as State's Exhibit 1 during Detective Proctor's testimony, defendant did not object. Defendant lost the benefit of his motion to suppress this evidence by failing to object at trial. State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984).
    As to defendant's allegation that Detective Proctor testified regarding defendant's prior conviction, the allegation is not supported by the transcript. The transcript establishes that Detective Proctor was not asked about defendant's prior conviction, nor did she otherwise testify concerning defendant's prior conviction.
    This assignment of error is overruled.
III
    Defendant next argues the trial court erred by failing to provide a curative instruction after sustaining defendant's objection to T.S.'s mother's hearsay testimony that a physician stated “it looked like [T.S.] had been raped.”
    Where the trial court sustains the defendant's objection and defendant fails to move to strike the objectionable testimony, thedefendant has waived the right to assert error arising from the objectionable testimony. State v. Barton, 335 N.C. 696, 710-11, 441 S.E.2d 295, 302 (1994). In addition, a trial court does not err by failing to give a curative jury instruction when one is not requested by the defense. State v. Williamson, 333 N.C. 128, 139, 423 S.E.2d 766, 772 (1992).
    In the instant case, the State questioned T.S.'s mother, about medical treatment she sought for T.S. after the assault. In response, T.S.'s mother testified that “a medical doctor came in and checked T.S., and he said that it had looked like that she had been raped.” Defendant objected and the trial court immediately sustained the objection. Defendant did not move to strike this objectionable testimony.
    After another witness testified and the jury had been excused for the day, defendant acknowledged that he had not moved to strike this objectionable testimony and then asked if the trial court would ask the jury to disregard this testimony. The trial court stated that it was willing to instruct the jury to disregard this testimony when it returned in the morning but also cautioned defendant as to whether he was sure that he wanted the jury to be reminded of this objectionable testimony , and further told defendant that if he wanted the jury to be instructed to disregard the objectionable testimony he should remind the trial court of such the next morning. Neither the next morning nor at any other time during the remainder of the trial, did defendant ask the trial court to instruct the jury to disregard the objectionable testimonyor ask for any other curative instruction.
    The facts applied to the law establish that the trial court properly sustained defendant's objection to this hearsay evidence. Further, the trial court did not err by failing to give a curative instruction when defendant did not request one. This assignment of error is overruled.
IV
    Defendant lastly argues the trial court erred by denying his motion to dismiss all the charges.
    In his brief, defendant failed to present an argument pertaining to his conviction for the charge of indecent liberties with a child. Accordingly, defendant has abandoned this assignment of error as it applies to his conviction for the charge of indecent liberties with a child. N.C. R. App. P. 28(a).
    A motion to dismiss for insufficiency of the evidence is properly denied if viewing the evidence in the light most favorable to the State and giving the State every reasonable intendment arising therefrom, there is substantial evidence that the defendant committed the offense charged. State v. Jarrett, 137 N.C. App. 256, 262, 527 S.E.2d 693, 697 (2000). It is well settled that “if there is more than a scintilla of competent evidence to support the allegations in the warrant or indictment, it is the court's duty to submit the case to the jury.” State v. Horner, 248 N.C. 342, 344-45, 103 S.E.2d 694, 696 (1958); see also State v. Williams, 136 N.C. App. 218, 220, 523 S.E.2d 428, 430 (1999) (defining substantial evidence as being “more than a scintilla”).“Contradictions and discrepancies [in the evidence] are for the jury to resolve and do not warrant [dismissal].” State v. Pallas, 144 N.C. App. 277, 286, 548 S.E.2d 773, 780 (2001).
    Here, defendant was convicted of attempted first-degree rape. To obtain a conviction for first-degree rape of a child, the State must show that the defendant is at least 12 years old and at least four years older than the victim, and that he engaged in vaginal intercourse with the victim, who is less than 13 years old. N.C.G.S. § 14-27.2(a)(1) (2003). “The slightest penetration of the female sex organ by the male sex organ is sufficient to constitute vaginal intercourse within the meaning of the statute.” State v. McNicholas, 322 N.C. 548, 556, 369 S.E.2d 569, 574 (1988). To obtain a conviction for attempted first-degree rape, the State must also prove that the defendant committed an act that went beyond mere preparation but fell short of the actual commission of intercourse. State v. Griffin, 319 N.C. 429, 434, 355 S.E.2d 474, 477 (1987).
    Defendant's challenge to the trial court's denial of his motion to dismiss is based solely on his claim that there was insufficient evidence that the victim was under the age of thirteen years at the time of the attempted rape. Here, the victim testified that she was twelve years old the summer of 1998. The victim also testified that in June 1998, defendant raped her. The victim's mother also testified that the victim was twelve years old in the summer when the assault occurred. Defendant acknowledges this evidence, but argues that the trial court erred by notdismissing the case based on contradictory evidence presented that the victim told a social worker the victim was thirteen at the time of the rape.
    Our Court has clearly held that contradictions and discrepancies in evidence do not warrant dismissal of the case, but are for the jury to resolve. Pallas, 144 N.C. App. at 286, 548 S.E.2d at 780. Taking the evidence in the light most favorable to the State, the trial court properly denied defendant's motion to dismiss the first-degree rape charge.
    This assignment of error is overruled.
    No error.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).


Footnote: 1
     Recently, the General Assembly amended Rule 103(a) of the Rules of Evidence to provide: “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.” N.C.G.S. § 8C-1, Rule 103(a)(2) (2003). “This amendment, however, applies only to rulings made on or after 1 October 2003. 2003 N.C. Sess. Laws ch. 101. Since the pre-existing rule applies to this case, we must hold that defendant failed to fully preserve the issue . . . for appellate review.” State v. Pullen, 163 N.C. App. 696, 701, 594 S.E.2d 248, 251-52 (2004).

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