An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1593


Filed: 4 October 2005


v .                         Halifax County
                            No. 03 CRS 57650-51

    Appeal by Defendant from judgment entered 10 August 2004 by Judge Judson D. Deramus, Jr. in Superior Court, Halifax County. Heard in the Court of Appeals 23 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State.

    Thomas E. Fulghum, for defendant-appellant.

    WYNN, Judge.

    In this case, to establish the crime of attempted first-degree rape under section 14-27.2(a) of the North Carolina General Statutes the State had to prove, inter alia, that Defendant was at least four years older than the twelve-year old victim that he allegedly specifically intended to rape. Defendant contends that there was insufficient evidence to show that he was at least sixteen years old. Because the circumstantial evidence was sufficient to allow the jury to conclude that this thirty-seven year old Defendant was at least sixteen years old at the time of the alleged offense, we find no error in his conviction on the charge of attempted first-degree rape. We further find no error in the remaining issues presented by Defendant.     The State presented evidence at trial that tended to show that: On 4 November 2003, a twelve-year-old female (“the Female Child”) slept in bed with her sister and brother while their mother was across the street at her cousin's house.
    Around 9:00 p.m. to 10:00 p.m., the Female Child woke up when she felt someone grabbing her and trying to take her shirt off; saw a man, whom she later identified as Defendant Bernard Wayne Jarrell, standing naked over her; and screamed, causing the man to walk out of the room. The covers had been taken off of her while she slept. The Female Child turned on a light, woke up her brother, and told him that someone was in the house.
    Defendant came back to the bedroom and asked for his clothes. The Female Child grabbed a stick that was by her door and Defendant ran out. Thereafter, the Female Child and her brother went into the kitchen and she got a knife. From the kitchen, they could see Defendant sitting in the living room, naked, on the couch. Defendant started walking toward the Female Child “playing with his penis[.]” When the Female Child lifted up the knife and her brother lifted the stick, Defendant ran out of the house.
    The children waited about two minutes, then the Female Child went across the street to get her mother and told her brother to call the police. As she and her mother were going into their yard, the Female Child saw Defendant “coming out of our path walking towards the street.” The Mother took the knife, told the Female Child to go into the house, call the police, and take her brother and sister to a neighbor's house. The Mother confronted Defendant,who was still naked, about going into her house and called him “Gap.” Defendant began running and the Mother chased him until police arrived.
    The Mother had previously seen Defendant on several occasions and knew him as “Gap.” The Mother rented her house from Defendant's aunt. Defendant helped move a couch into her house, and had knocked on the door at night several times asking to use the phone, but the Mother would not let him in. On 2 November 2003, the Mother saw Defendant “walking up and down the street with a beer in his hand with his shirt off.”
    The Mother returned to her house with the police. Police found Defendant's clothes in the Female Child's bedroom, on the floor, by the edge of the bed. The Mother's bedroom window was open. The window was shut when she left the house, but the lock was broken.
    Following the State's presentation of evidence, Defendant presented no evidence. Defendant was found guilty of attempted first-degree rape and first-degree burglary. Defendant was sentenced in the presumptive range to a term of seventy-five months to ninety-nine months imprisonment for the burglary charge and 180 months to 225 months imprisonment for the attempted rape charge. Defendant appeals.
    On appeal, Defendant argues that the trial court erred by (1) denying his motions to dismiss the charges of attempted first- degree rape and first-degree burglary and (2) stating thatDefendant would be sentenced in the presumptive range prior to Defendant being given the opportunity to present evidence regarding sentencing.
    When reviewing a motion to dismiss, we view “the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004) (citing State v. Gladden, 315 N.C. 398, 430, 340 S.E.2d 673, 693, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986)), pet. for cert. pending (filed 22 April 2005). If we find that “substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to [have denied] the motion.” Id. (citing State v. Malloy, 309 N.C. 176, 178, 305 S.E.2d 718, 720 (1983)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citing State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980)).
    Under applicable North Carolina law, to convict a defendant of attempted first-degree rape, the State must prove, beyond a reasonable doubt, three essential elements: (1) that defendant had the specific intent to rape the victim, (2) that defendant committed an act that goes beyond mere preparation, but falls short of the actual commission of the rape, State v. Schultz, 88 N.C. App. 197, 200, 362 S.E.2d 853, 855 (1987), aff'd per curiam, 322 N.C. 467, 368 S.E.2d 386 (1988), and (3) the victim is a childunder the age of thirteen years and the defendant is at least twelve years old and is at least four years older than the victim. N.C. Gen. Stat. § 14-27.2(a) (2004).
    Defendant first argues that the State did not prove that he was more than sixteen-years-old at the time of the attempted first-degree rape. N.C. Gen. Stat. § 14-27.2(a). In In re Jones, 135 N.C. App. 400, 520 S.E.2d 787 (1999), this Court concluded that North Carolina law “does not allow a jury to determine the age of a criminal defendant beyond a reasonable doubt merely by observing him in the courtroom without having the benefit of other evidence, whether circumstantial or direct.” Id. at 405, 520 S.E.2d at 789.
    In State v. Ackerman, 144 N.C. App. 452, 461, 551 S.E.2d 139, 145, cert. denied, 354 N.C. 221, 554 S.E.2d 344 (2001), the defendant was charged with assault on a female and argued that the State failed to present evidence that he was over the age of eighteen, a required element of the offense. This Court held that “[t]he circumstantial evidence of defendant's regular patronage of a bar and consumption of alcohol is sufficient evidence from which a jury, in addition to observing defendant, could conclude defendant was over 18 years of age.” Id. at 462, 551 S.E.2d at 146.
    Here, the jury had ample opportunity to observe Defendant, who was thirty-seven-years-old on the date of the offense. Also, the State presented circumstantial evidence of Defendant's age. The Mother testified that she observed Defendant “walking up and down the street with a beer in his hand with his shirt off.” Additionally, the Female Child testified that she was in seventh grade and went to school with Defendant's daughter. The jury's observation of Defendant, along with the circumstantial evidence of Defendant's consumption of alcoholic beverages and daughter's age, was substantial evidence that Defendant was over the age of sixteen. Ackerman, 144 N.C. App. at 462, 551 S.E.2d at 146.
    Defendant also argues that the State failed to present sufficient evidence on the element of specific intent. “The element of intent as to the offense of attempted rape is established if the evidence shows that defendant, at any time during the incident, had an intent to gratify his passion upon the victim, notwithstanding any resistance on her part.” Schultz, 88 N.C. App. at 200, 362 S.E.2d at 855-56. “Sexual intent may be proved circumstantially by inference, based upon a defendant's actions, words, dress, or demeanor.” State v. Cooper, 138 N.C. App. 495, 498, 530 S.E.2d 73, 75, aff'd per curiam, 353 N.C. 260, 538 S.E.2d 912 (2000). An “overt act manifesting a sexual purpose or motivation on the part of the defendant is adequate evidence of an intent to commit rape.” State v. Dunston, 90 N.C. App. 622, 625, 369 S.E.2d 636, 638 (1988); see also State v. Oxendine, 150 N.C. App. 670, 674, 564 S.E.2d 561, 564 (2002), disc. review denied, 356 N.C. 689, 578 S.E.2d 325 (2003). Moreover, “evidence an attack is sexually motivated will support a reasonable inference of an intent to engage in vaginal intercourse with the victim even though other inferences are also possible.” Dunston, 90 N.C. App. at 625-26, 369 S.E.2d at 638. “The State need not show that thedefendant made an actual physical attempt to have intercourse or that he retained the intent to rape his victim throughout the incident.” Id. at 625, 369 S.E.2d at 638.
    In this case, Defendant's actions constitute sufficient evidence of Defendant's “intent to gratify his passion upon the victim[.]” Schultz, 88 N.C. App. at 200, 362 S.E.2d at 855. Specifically, Defendant came into the home through a window, went into the Female Child's room while she was sleeping, undressed at the foot of her bed, removed the covers from the Female Child while she was sleeping, attempted to take off her shirt, and walked toward her while “playing with his penis[.]” These “overt act[s] manifest[] a sexual purpose or motivation on the part of the defendant. . ..” Dunston, 90 N.C. App. at 625, 369 S.E.2d at 638; see, e.g., State v. Owen, 159 N.C. App. 204, 207, 582 S.E.2d 689, 691 (2003) (holding that “defendant's repeated insistence that the victim remove her clothes and come toward him and his attempt to stab her with his knife” was sufficient evidence of intent for the charge of attempted first-degree forcible rape); State v. Powell, 74 N.C. App. 584, 586, 328 S.E.2d 613, 614 (1985) (holding that there was ample evidence from which a rational trier of fact could infer the intent to commit rape when the defendant entered the victim's bedroom, proceeded to the head of the bed, undressed, and commenced fondling his private parts and breathing heavily).
    Accordingly, we uphold the trial court's denial of Defendant's motion to dismiss the attempted first-degree rape charge.     Defendant also contends that the trial court erred by denying his motion to dismiss the charge of first-degree burglary which requires proof of the following elements: “(1) the breaking (2) and entering (3) in the nighttime (4) with the intent to commit a felony (5) into a dwelling house or a room used as a sleeping apartment in any house or sleeping apartment (6) which is actually occupied at the time of the offense.” State v. Davis, 282 N.C. 107, 116, 191 S.E.2d 664, 670 (1972) (citing State v. Accor, 277 N.C. 65, 175 S.E.2d 583 (1970)); see N.C. Gen. Stat. § 14-51 (2004). Defendant argues that the State failed to present sufficient evidence of the intent to commit a felony because there was insufficient evidence of the crime of attempted first-degree rape. Since we conclude there was sufficient evidence for the charge of attempted first-degree rape, we hold that there is sufficient evidence of intent to commit a felony, i.e., rape. We, therefore, uphold the trial court's denial of Defendant's motion to dismiss the charge of first-degree burglary.
    Next, Defendant argues that the trial court erred by stating that he would be sentenced in the presumptive range prior to Defendant being given the opportunity to present evidence regarding sentencing. However, Defendant failed to object to the sentence at trial or to the trial court's statement regarding the presumptive range. N.C. R. App. P. 10(b).
    Finally, Defendant asserts his counsel failed to provide meaningful assistance by failing to develop evidence related to his competence to form the necessary intent for the crimes charged.     The United States Supreme Court outlined a two-part test in Strickland v. Washington to determine if an ineffective assistance of counsel claim has merit. 466 U.S. 668, 80 L. Ed. 2d 674, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984). Our Supreme Court adopted the test in State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). First, the defendant must establish that his counsel's performance was deficient in that it fell below an “objective standard of reasonableness.” Id. at 561-62, 324 S.E.2d at 248. Second, the defendant must show that a reasonable probability exists that but for the error, the result of defendant's trial would have been different. Id. at 563, 324 S.E.2d at 248.
    “A defendant's IEAC claim may be brought on direct review 'when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.'” State v. Blizzard, __ N.C. App. __, __, 610 S.E.2d 245, 255 (2005) (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524, motion denied, 354 N.C. 576, 558 S.E.2d 861 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002)).
    Here, the record is insufficient for this Court to consider Defendant's claim. From our review of the transcripts and record, we cannot determine whether defense counsel's actions or inaction Defendant cites to resulted from trial tactics, strategy, lack of preparation, or unfamiliarity with the legal issues. Further, Defendant acknowledges in his brief that “the issue cannot be resolved without development of, and reference to information thatis outside the Record on Appeal.” We, therefore, dismiss this assignment of error without prejudice for Defendant to file a motion for appropriate relief in superior court. See Blizzard, __ N.C. App. at __, 610 S.E.2d at 255; State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) (“The accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than direct appeal.”).
    No error in part; Dismissed without prejudice in part.
    Judges CALABRIA and LEVINSON concur.
    Report per Rule 30(e).    

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