An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1295


Filed: 2 August 2005


     v .                             Iredell County
                                    Nos. 03 CRS 50852-53

    Appeal by defendant from judgments entered 14 April 2004 by Judge Kimberly S. Taylor in Iredell County Superior Court. Heard in the Court of Appeals 19 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.

    Haral E. Carlin for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals from his conviction of statutory rape of a fourteen-year-old child by a person at least six years older. We find no error by the trial court.
    On 2 September 2003, the Iredell County grand jury indicted defendant for one count of statutory rape and one count of indecent liberties with a child. Immediately preceding his trial on the statutory rape charge, defendant pled guilty to the charge of taking indecent liberties with a child. The trial court deferred sentencing on the indecent liberties conviction until after the jury returned its verdict on the statutory rape charge. The State presented evidence at defendant's trial tending to show the following: the prosecuting witness (“the witness”) testified shewas born 4 July 1988. She first met defendant when she was ten years old when her mother married defendant's son. She considered defendant a member of the family and called him “Dad.” In December of 2002, when the witness was fourteen years old, she spent the night at defendant's home. The following morning, the witness was alone in the residence with defendant. The witness told defendant she had a stomachache, and he gave her some cough syrup. Later, the witness was sitting on the couch when defendant approached her and asked if her stomach still hurt. Defendant sat beside her and “rubbed [her] stomach, and then he started rubbing . . . in other places.” The witness testified defendant lifted up her shirt and brassiere, touched her breasts and upper thighs, and told her that he “like[d] [her] a lot.” The witness was “stunned” and “kind of scared.” Defendant put his mouth to her breasts and touched her vagina. He removed his pants and underwear, and removed the clothing from the witness. According to the witness, defendant then “slid[] down on the front of the couch and tried to like put his penis inside my vagina.” She testified that defendant “laid on top of me and was like going back and forth” and “was actually forcing [his penis] to go in me.” The witness told defendant, “it's not going to go in[,]” at which point defendant “cackled and then went to the kitchen and got some paper towels and got one and told [her] to wipe off because he had . . . his fluids on [her] vagina.” The witness went to the bathroom, wiped defendant's semen off her vagina with the paper towel, and then placed the paper towel in “a plastic gift wrap bag.” The witness explained she keptthe paper towel “for evidence” because that was what “the girls on Lifetime [channel] do.”
    Detective Sergeant Cheryl Hilderbrand testified that she sent the paper towel to the State Bureau of Investigation (“SBI”) for testing. The SBI laboratory identified the substance on the paper towel as spermatozoa which matched the DNA profile obtained from a blood sample taken from defendant. Detective Hilderbrand also interviewed defendant, who admitted to the incident with the witness. Defendant told Detective Hilderbrand he was a diabetic and had “trouble having intercourse” in that he “couldn't get an erection.” Defendant stated he “tried to penetrate [the witness], but it didn't go in. I could only get the head of my penis on the inside of [her] vagina because I couldn't get erect.”
     Defendant presented no evidence. At the conclusion of the evidence, the trial court denied defendant's motion to dismiss the charge against him. The jury found defendant guilty of statutory rape of a child who was fourteen years old by a person at least six years older. The trial court sentenced defendant to a minimum term of 240 months' imprisonment and a maximum term of 297 months' imprisonment for the statutory rape conviction. The trial court also sentenced defendant to a sixteen- to twenty-month sentence for the indecent liberties conviction. Defendant appeals.
    Defendant argues the trial court erred by (1) denying his motion to dismiss the charge of statutory rape; (2) failing to submit a lesser included offense to the jury; (3) allowing evidenceof acts to which defendant pled guilty; and (4) allowing evidence of alleged prior bad acts by defendant. We find no error by the trial court.
    By his first assignment of error, defendant argues the trial court erred by denying his motion to dismiss the charge of statutory rape because there was no evidence of vaginal penetration. We disagree.
    In ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference that may be drawn from the evidence. State v. McNicholas, 322 N.C. 548, 556-57, 369 S.E.2d 569, 574 (1988). “There must, however, be substantial evidence of each essential element of the offense charged, together with evidence that defendant was the perpetrator of the offense.” Id.
    N.C. Gen. Stat. § 14-27.7A (2003) provides that 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.” Here, the indictment against defendant charged that he “willfully and feloniously did engage in vaginal intercourse with [the witness], a person of the age of 14 years.” According to our Supreme Court,
        [v]aginal intercourse is penetration, however slight, of the female sex organ by the male sex organ. The actual emission of semen isnot necessary. It is not necessary that the vagina be entered or that the hymen be ruptured. The entering of the vulva or labia is sufficient.

State v. Fletcher, 322 N.C. 415, 424, 368 S.E.2d 633, 638 (1988); see also McNicholas, 322 N.C. at 556-57, 369 S.E.2d at 574.
    In the instant case, defendant admitted he “g[o]t the head of [his] penis on the inside of [the prosecuting witness's] vagina.” The witness testified defendant was “forcing his penis inside me.” Such testimony was sufficient on the issue of penetration to withstand defendant's motion to dismiss. See State v. Bruno, 108 N.C. App. 401, 415, 424 S.E.2d 440, 448 (1993) (rejecting the defendant's argument that no vaginal penetration occurred where the victim testified that the defendant attempted to have sex with her but could not, because in the defendant's words, she was “too tight,” and where a physician testified that a bruise around the right upper part of the lips of the victim's vaginal vault in the entrance to the vagina was consistent with vaginal penetration). This assignment is overruled.
    By his next assignment of error, defendant contends the trial court erred by failing to instruct the jury on the lesser included offense of attempted statutory rape of a child fourteen years old. Defendant, however, did not request such an instruction at trial, nor did he object to the jury instructions as given by the trial court. Because defendant did not object to the instructions at trial, he has waived this assignment of error on appeal. N.C. R. App. P. 10(b)(2) (2005) (“A party may not assign as error anyportion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict[.]”). Moreover, defendant has failed to argue the trial court committed plain error. See N.C. R. App. P. 10(c)(4) (2005) (requiring an appellant to “specifically and distinctly” contend that the trial court's action constituted plain error). Accordingly, defendant has waived his right to appellate review of this issue. State v. Truesdale, 340 N.C. 229, 233, 456 S.E.2d 299, 301 (1995). We dismiss this assignment of error.
    Defendant next contends the trial court committed plain error by allowing evidence concerning acts constituting indecent liberties, the charge to which defendant pled guilty. According to defendant, testimony that he “rubbed [the witness's] breasts, leg, sucked her nipples and touched her vagina” was irrelevant to the charge of statutory rape and therefore improperly admitted. Defendant argues the admission of such evidence was so prejudicial as to deny him a fair trial. We do not agree.
    Defendant did not object to the testimony at trial and is now limited to arguing plain error on appeal. “In meeting the heavy burden of plain error analysis, a defendant must convince this Court, with support from the record, that the claimed error is so fundamental, so basic, so prejudicial, or so lacking in its elements that absent the error the jury probably would have reached a different verdict.” State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000). Defendant cannot meet such a burden here. The State presented ample evidence from which the jury could findthat defendant engaged in vaginal intercourse with a fourteen-year-old child, thereby committing statutory rape. Defendant cannot show that the jury would have reached a different verdict absent the alleged error. We overrule this assignment of error.
    Finally, defendant contends the trial court erred by allowing evidence of similar sexual behavior by defendant with another young family member. Specifically, defendant objects to the following testimony by the prosecuting witness:
        [Defendant] was like, you're my friend, you wouldn't tell on me, and then he was like 'cause like [the young family member] did, like, you know, telling on me like [she] did.
        [THE STATE]: And what did he say about what [the young family member] did?
        [THE PROSECUTING WITNESS]: I was like so it was true, you did do what she said, and he was like I didn't get as far with her, and it was like, all I got to do was feel her breasts.

Although defendant originally objected to this evidence, he failed to renew such objection later at trial when substantially the same evidence was admitted. By failing to renew his objection, defendant waived his earlier objection to this evidence. “It is well established that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.” State v. Nobles, 350 N.C. 483, 501, 515 S.E.2d 885, 896 (1999). We overrule this assignment of error.
    In the judgment of the trial court, we find no error.
    No error.
    Judges TIMMONS-GOODSON and GEER concur.
    Report per Rule 30(e).

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