State v Oaks, (04-1087) 07/05/2005

Appeal by defendant from judgment dated 25 July 2003 by Judge C. Preston Cornelius in McDowell County Superior Court. Heard in the Court of Appeals 6 June 2005.

Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

Moser, Schmidly & Roose, by Richard G. Roose, for defendant.

BRYANT, Judge.

    James Howard Oaks (defendant) appeals his judgment dated 25 July 2003, entered consistent with a jury verdict finding him guilty of two counts of first-degree sex offense.
    On or about 15 February 2003, defendant was indicted for two counts of first-degree sex offense, one count each against victims B.A.L. and H.N.L., respectively. These matters came for jury trial at the 2 June 2003 criminal session of McDowell County Superior Court with the Honorable E. Penn Dameron presiding. The jury found defendant guilty as charged on 13 June 2003, and sentencing was continued until 21 July 2003. At the sentencing hearing, with the Honorable C. Preston Cornelius presiding, the trial court stated inopen court there would be two separate judgments, of 288 - 355 months imprisonment each, to run consecutively. Thereafter, two judgments, signed by the trial court, were entered as follows: In case number 03 CRS 50568, defendant received 288 - 355 months imprisonment, and in case number 03 CRS 50567, defendant received 288 - 355 months imprisonment. Neither judgment indicated the sentences imposed would run consecutively.
    On 17 September 2003, the trial court entered an amended judgment in case number 03 CRS 50568, which was certified by the McDowell County Deputy Clerk of Superior Court. The amended judgment allowed for the sentence in the case number 03 CRS 50568 to begin at the expiration of the sentence imposed in the case number 03 CRS 50567.
    Defendant gave timely notice of appeal.

    The State's evidence tended to show: Defendant's probation officer arranged for defendant to temporarily stay at the home of S.B. and D.L. for the weekend of 14 February 2003.   (See footnote 1) S.B.'s four children also resided in the home. S.B.'s oldest two daughters, four-year-old B.A.L. and five-year-old H.N.L. shared a bedroom, and S.B.'s twins shared another bedroom. When S.B. arrived home from work that Friday afternoon, defendant was sitting on the couch in the living room watching television. Defendant slept on the couch that night. Saturday night, S.B. and D.L. entertained guests. Theadults stayed up until 4:00 a.m., except for defendant, who stayed up all night.
    Sunday evening, the children went to bed around 8:30 p.m. and the adults went to bed around 10:00 p.m. Defendant again slept on the couch in the living room. H.N.L. and B.A.L. slept in the same bed in their room. H.N.L. testified that during the night defendant came into her room while she slept and that defendant “stuck his hands down our pants.” H.N.L. further testified defendant “stuck his finger up her front butt,” meaning vagina, and defendant peed “white pee pee” on the floor. When the district attorney asked H.N.L. what defendant did to B.A.L., she stated, defendant stuck his “hands under her pants.”
    The next morning, H.N.L. approached S.B. and said, “Mommy, Mommy[,] Jimmy came in my room.” Defendant stopped her by stating, “I came in there to tell you about Santa Claus.” S.B. walked into her bathroom and the two girls followed. S.B. asked her daughters what defendant had done and H.N.L. said, “Jimmy came in my room and stuck his hands down my pants and on my butt and kissed me on my lips.” S.B. asked B.A.L. what happened and she said, “he stuck his hands down my pants too.” On cross-examination, S.B. testified H.N.L. told her defendant “stuck his finger up inside her butt.”
    Detective Randy Wood of the McDowell County Sheriff's Department transported defendant to the Sheriff's Department. After waiving his Miranda rights, defendant made a statement about the weekend, which did not mention entering H.N.L. and B.A.L.'sroom. Defendant subsequently made the following two statements.
        I, James Oaks, did what they say, they said [S.B.] said I did to [H.N.L.]. But I'm very, very, very, very sorry for what I did to [H.N.L.]. I will never do that to any other kids. I touched their p[***]y with my hand. I was really, really, really, f[***]ed up badly. I am very, very, very, very sorry. It will never happen again. I insert my finger into [H.N.L.'s] p[***]y.

        I, James Oaks, went into [B.A.L.'s] bedroom and insert my finger into her p[***]y. I was really, really, really, really f[***]ed up, really, really bad. But I was drinking Jack D. and Mad Dog 20/20, and Jim Beam, and OJ-VR. I did not know what I was doing to her, but I insert my finger into her p[***]y. But I am very, very, very, very, very, sorry, sorry sorry, for what I did to [B.A.L.].

Defendant's motion to dismiss presented at the close of evidence was denied by the trial court.

    Defendant first contends the trial court erred in denying his motion to dismiss the charge of first-degree sex offense as to B.A.L. He argues the State failed to present sufficient evidence beyond his confession to support submitting the charge to the jury.      The standard for ruling on a motion to dismiss “is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of theoffense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) .
    To convict a defendant of a first-degree sexual offense with a child of 13 years or less, the State need only prove: (1) the defendant engaged in a sexual act, (2) the victim was at the time of the act 13 years old or less, and (3) the defendant was at that time 4 or more years older than the victim. N.C.G.S. § 14-27.4 (2003). A “sexual act” is defined as cunnilingus, fellatio, analingus, or anal intercourse or the penetration, however slight, by any object into the genital or anal opening of another's body except for accepted medical purposes. N.C.G.S. § 14-27.1(4) (2003).
    Defendant argues that because there is no direct or forensic evidence tending to show there was any penetration of B.A.L.'s genital or anal opening, there is no evidence, independent of his alleged confession, to show B.A.L. was penetrated. However, innon-capital cases,
        when the State relies upon the defendant's confession to obtain a conviction, it is no longer necessary that there be independent proof tending to establish the corpus delicti of the crime charged if the accused's confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime.

State v. Parker, 315 N.C. 222, 236, 337 S.E.2d 487, 495 (1985).
    Considering the evidence in a light most favorable to the State, there is sufficient evidence that closely parallels defendant's confession and further establishes its trustworthiness. Defendant admitted he “went into [B.A.L.'s] bedroom and insert my finger into her p[***]y. . . . I did not know what I was doing to her, but I insert my finger into her p[***]y.” In his confession regarding H.N.L., defendant admitted he “touched their p[***]y with my hand.” H.N.L. testified defendant came in to her room during the night while she was asleep and defendant “stuck his hands down our pants.” When the district attorney asked H.N.L. what defendant did to B.A.L., she stated defendant “stuck his hands under her pants.” This independent evidence as testified to by H.N.L. closely parallels defendant's confession and is sufficient to further establish its trustworthiness.
    Given the totality of this and similar evidence presented at trial, we conclude there was evidence sufficient to establish his confession was trustworthy and that he committed the charged crime. As there was sufficient evidence to support defendant's conviction, this assignment of error is overruled.

    Defendant also contends the trial court was without jurisdiction to amend his judgment seven weeks after the conclusion of the term at which defendant was sentenced. At the sentencing hearing held on 25 July 2003, the trial court determined defendant to be a Level II and the offenses were B1 felonies. The trial court then stated:
        [the] Court will be sentencing in the presumptive range making no findings of any aggravating and mitigating factors. There will be two separate judgments, they will run consecutively.

            And the judgment of the Court is that this defendant will be in prison assigned to work under the supervision of the Department of Corrections for a minimum period of 288 months and a maximum period of 355 days _ or months.

Thereafter two judgments were signed on 25 July 2003 by the trial court. In case number 03 CRS 50568 defendant received 288 - 355 months imprisonment and in case number 03 CRS 50567 defendant received 288 - 355 months imprisonment. Neither judgment, however, had a check mark next to the box which would allow for the terms to run consecutively. On 17 September 2003, the trial court entered an amended judgment in case number 03 CRS 50568, which checked the box stating, “[t]he sentence imposed above shall begin at the expiration of the sentence imposed in the case referenced below: 03 CRS 50567.”
    Here, the trial court's statements at the sentencing hearing, during which defendant was present, explicitly indicate the intent to enter judgments and sentences consecutively. Accordingly, the record supports the State's contention that the judgments contained clerical errors. “'Clerical error' has been defined . . . as: 'An error resulting from a minor mistake or inadvertence, esp. [sic] in writing or copying something on the record, and not from judicial reasoning or determination.'” State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (citing Black's Law Dictionary 563 (7th ed. 1999)); see State v. Sellers, 155 N.C. App. 51, 59, 574 S.E.2d 101, 106-07 (2002) (stating a determination by the trial court in open court as reflected in the transcript is dispositive when there is a discrepancy between the court's announced determination and the written judgment form) . Under these circumstances, we find the amendment to the judgment in case number 03 CRS 50568 was nothing more than an effort to make the judgment reflect the true intent and meaning of the sentence rendered in open court. This assignment of error is overruled.
    No error.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

Footnote: 1