NO. COA04-1255
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