An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1255


Filed: 19 July 2005


         v.                        Forsyth County
                                Nos. 02 CRS 60410
GARY MICHAEL PRINCE, JR.,                03 CRS 00105

    Appeal by defendant from judgment dated 18 December 2003 by Judge Lindsay R. Davis, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 13 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State.

    J. Clark Fischer for defendant-appellant.

    BRYANT, Judge.

    Gary Michael Prince, Jr. (defendant) appeals his judgment dated 18 December 2003, entered consistent with jury verdicts finding him guilty of four counts of statutory sex offense.    
     On 7 October 2002, defendant was indicted for statutory sex offense with a thirteen-year-old girl. Defendant was subsequently indicted on three more counts of statutory sex offense with the same girl . These matters came for jury trial at the 1 August 2003 criminal session of Forsyth County Superior Court with the Honorable Lindsay R. Davis, Jr., presiding. The jury found defendant guilty as charged on 27 August 2003. By judgment dated 18 December 2003, defendant was sentenced to 269 - 333 monthsimprisonment. Defendant appeals.

    The evidence presented at trial tended to show the following: The victim, L.B.   (See footnote 1)  , testified she was born on 12 March 1989, and she lived in Building D of the Tree Tops apartments in Winston-Salem, North Carolina. In May 2002, L.B. was outside her apartment when defendant, approached her. Defendant asked her if she was “playing hooky” and if she had a boyfriend. Defendant then asked her to go with him to Building C in the apartment complex, and she went with him. When they got to Building C, defendant started fondling her and asked her to give him “head.” She refused and left.
    Sometime in August 2002, L.B. saw defendant again. L.B. and a friend approached defendant, and he told them to follow him. L.B. and defendant went to Building D in Tree Tops, where he asked her to “suck his penis.” L.B. refused and went back home.
    L.B. saw defendant a few days later in the Vineyard, an apartment complex across from Tree Tops. L.B. was in Tree Tops, and she called defendant over. Defendant came over and once again asked L.B. to “suck his penis.” This time L.B. agreed. L.B. testified that she sat “on the stairwell and he was like above me, and so he took his penis out of his zipper and his boxer, and I put it in my mouth.” L.B. stated that she sucked on it for five minutes, but had to leave because she knew her brother was coming home from school. When she stopped, defendant took his penis outand started ejaculating on the walls. L.B. then went home.
    L.B. testified she performed oral sex on defendant on several other occasions. One time, defendant took her to an abandoned apartment in Building G at Tree Tops. L.B. stated she sucked on defendant's penis for ten minutes, and that he ejaculated on the carpet. Then, on 22 August 2002, L.B. skipped school again and defendant came to her home. She and defendant went into the bathroom attached to her mom's bedroom, and she performed oral sex on him. L.B. testified that defendant ejaculated in the toilet. L.B. testified she performed oral sex on defendant a second time that day, and when she finished, defendant left the house and ejaculated on the sidewalk.
    The next day, on 23 August 2002, defendant was supposed to meet L.B. in Tree Tops, but defendant did not show up. L.B. went looking for defendant, and found him in the Vineyard. The two talked, and defendant told L.B. he was twenty-eight, and that he had a girlfriend. L.B. told defendant she was thirteen. The two then went back to L.B.'s home, went back to her mom's bedroom, and he asked her to perform oral sex. L.B. agreed and started performing oral sex on defendant. The two were interrupted by a noise at the front door. L.B. looked down the hallway, and saw her mother come through the door. Her mom asked L.B. why she was not at school. Then, her mother saw defendant leaving the bedroom. She asked him what his name was, how old he was, and if he knew how old L.B. was. L.B.'s mother called the police and tried to prevent defendant from leaving, but was unsuccessful.      Defendant was convicted of four counts of statutory sex offense. The convictions were consolidated for judgment and defendant was sentenced to a term of 269 - 333 months imprisonment. Defendant appeals.
     Defendant's sole argument on appeal is the trial court erred in denying his motion to dismiss as there did not exist sufficient evidence to sustain the charge and subsequent conviction. Specifically, defendant contends that L.B.'s testimony was not credible, and there was no physical evidence to support her claims.
     In a ruling on a motion to dismiss, “the trial court must determine whether there is substantial evidence of each element of the offense charged.” State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citation omitted). When reviewing the evidence, the trial court must consider all evidence in the light most favorable to the prosecution, granting the State “the benefit of every reasonable inference.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). “If the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence.” State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979).      Here, defendant was convicted of committing a statutory offense pursuant to N.C. Gen. Stat. § 14-27.7A(a):
        A defendant is guilty of a Class B1 felony if the defendant engages in vaginal intercourse or a sexual act with another person who is 13, 14, or 15 years old and the defendant is at least six years older than the person, except when the defendant is lawfully married to the person.

N.C.G.S. § 14-27.7A(a) (2003). In addition, fellatio is defined as a sexual act pursuant N.C. Gen. Stat. § 14-27.1(4).
    L.B. testified she performed oral sex on defendant on at least four different occasions. She further testified she was thirteen at the time, and defendant told her he was twenty-eight. Defendant contends L.B. was an unreliable witness and her testimony unbelievable. However, upon a motion to dismiss, “[t]he trial court must . . . resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.” State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 256 (2002) (citations omitted). Furthermore, “'[t]he general rule is that the testimony of a single witness will legally suffice as evidence upon which the jury may found a verdict.'” State v. Vehaun, 34 N.C. App. 700, 704, 239 S.E.2d 705, 709 (1977) (citation omitted); see also State v. Newman, 308 N.C. 231, 237, 302 S.E.2d 174, 179 (1983) (stating a conviction for sexual assault may be based upon the unsupported testimony of the prosecuting witness) . Thus, L.B.'s testimony was sufficient to establish that defendant engaged in a sexual act with her in violation of N.C.G.S.§ 14-27.7A(a). Accordingly, this assignment of error is overruled.
    No error.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

Footnote: 1
     Initials have been used throughout to protect the identity of the juvenile.

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