Appeal by defendant from judgment entered 26 January 2005 by
Judge Edwin G. Wilson, Jr. in Superior Court, Randolph County.
Heard in the Court of Appeals 22 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Jane Rankin Thompson, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for
Brett Charles Browning (defendant) was convicted of (1)
statutory rape in violation of N.C. Gen. Stat. § 14-27.7A(a) and(2) taking indecent liberties with a child in violation of N.C.
Gen. Stat. § 14-202.1. Defendant was acquitted of a charge of
crime against nature. The trial court sentenced defendant to a
term of 144 months to 182 months in prison. Defendant appeals.
At trial, A.R. testified that she was fourteen years old when
she met defendant at his place of employment in the fall of 2002.
She testified that when she met defendant, she told him she was
fourteen years old. A.R. and defendant began a friendship and
regularly "hung out" at defendant's house three to four times a
A.R. testified she called defendant on Friday, 5 March 2004,
when she was fifteen years old, and that defendant picked her up at
her house. A.R. and defendant drove to an ABC store and defendant
purchased liquor. A.R. and defendant ate at a McDonald's
restaurant and, afterwards, went to defendant's house.
A.R. testified that at defendant's house, she played video
games and began to watch a movie with defendant. She drank two
shots of liquor and ate pizza with defendant. After a while, A.R.
lay down on a couch and fell asleep. When she woke up, defendant
was kissing her on her face, neck and arms. A.R. told defendant to
take her home, but defendant said he would not take her home "until
[it was] over." A.R. testified that defendant then nudged her into
a bedroom and engaged in oral and vaginal sex with her.
A.R. testified that on the following Monday, 8 March 2004, she
got into an argument at school with three other students and was
sent to see the guidance counselor, Linda Thrift (Ms. Thrift). A.R. told Ms. Thrift that she had been raped on the previous Friday
by defendant, a man in his thirties.
Ms. Thrift testified she was a guidance counselor and in 2004,
had worked at the school A.R. attended. Ms. Thrift testified she
met with A.R. on Monday, 8 March 2004. The State introduced into
evidence Ms. Thrift's written statement regarding her conversation
with A.R. The trial court admitted the statement and advised the
jury that the statement was admitted for the purpose of
corroboration only. Ms. Thrift read from her written statement
that A.R. "told me she was raped the previous Friday night by a man
who was in his thirties."
Ms. Thrift further testified that she reported the rape to the
Department of Social Services and to the school's resource officer.
In response to the State's question regarding what Ms. Thrift told
the school resource officer, Ms. Thrift testified as follows:
A. I didn't have to go into much. I -- In a
case like this, I'm not going to go into
details because that's not something I have to
know about. All I have to know, have a
suspicion that something happened and it was
not right. And I --
Q. Okay. Well, let me ask you then, are you
Q. Why didn't you ask for more details about
A. Because I didn't need to know that. The
-- That's -- I don't do the investigation.
All I have to have is a suspicion that
something happened, and [A.R.'s] behavior and
the way [A.R.] was acting and just knowing
[A.R.], I believed what [A.R.] was saying.
[DEFENSE COUNSEL]: Object, Your Honor,
please. Move to strike.
THE COURT: Overruled.
Defendant testified on his own behalf at trial. Defendant
testified that A.R. told him she was sixteen years old when he
first met her. Defendant further testified that when he met A.R.,
she asked him if she could drive his car. Defendant asked A.R. if
she had a driver's license and A.R. showed defendant a New York
driver's license with her picture on it. Defendant testified that
he saw A.R. purchase cigarettes on several occasions. Defendant
said he was led to believe that A.R. was a senior in high school in
2004. Defendant admitted that he engaged in oral and vaginal sex
with A.R. on 5 March 2004, and that he was forty-two years old at
On cross-examination of defendant, the State engaged in the
following inquiry regarding an incident unrelated to the charges
for which defendant was on trial:
Q. Yes, sir. . . . You remember Detective
A. Yes, sir.
Q. Okay. And Detective Thompson asked you on
three separate occasions if you knew anything
about the thefts of electronic equipment from
[defendant's place of employment]?
A. I don't remember.
Q. And do you -- You've never seen him
A. I said I'd seen him before, yes, but I
don't recollect him asking me on three
Q. Okay. Well, how many times did he ask you
if you [knew] anything about the thefts from
[defendant's place of employment]?
A. He did ask me about that, yes.
Q. And that was the theft of electronic
equipment of the store that you were the
manager, is that right?
A. Not electronic equipment, it was a single
Q. Oh, it was just one thing. He just asked
you about one thing?
A. Yes, sir.
Q. And you lied to him?
A. Yes, sir.
Q. And then you later admitted to him that
you lied to him?
A. I don't remember ever saying I lied to
him. I admitted a full confession.
Q. You admitted stealing the items from
[defendant's place of employment]?
Q. Okay. No further questions. Thank you,
Based upon evidence showing that defendant believed A.R. was
over the age of fifteen when he engaged in sexual relations with
her, defendant requested a jury instruction regarding the defense
of a reasonable mistake of fact as to A.R.'s age. The requested
instruction stated as follows:
The [d]efendant contends that he was acting
under the reasonable belief that the
complaining witness was greater than 15 years
of age. If you find from the evidence that
the [d]efendant acted under a reasonable
belief that the complaining witness in thiscase was greater than fifteen (15) years of
age at the time the [d]efendant and the
witness engaged in vaginal intercourse, it
would be your duty to find the [d]efendant not
guilty. If the facts were as the defendant
honestly believed them to be, the defendant's
conduct would not be criminal.
The trial court denied defendant's request and did not give
defendant's requested instruction.
 Defendant first argues the trial court erred by denying
his requested jury instruction on reasonable mistake of fact as to
A.R.'s age. Defendant relies upon the United States Supreme
Court's decision in Lawrence v. Texas
, 539 U.S. 558, 156 L. Ed. 2d
508 (2003). Defendant specifically argues in his brief that
"does not prevent the criminalization of sexual
conduct with minors, . . . Lawrence
supports a mistake of age claim
because a defendant's reasonable belief that his partner fell
outside the age restriction would entitle him to constitutional
protection." Defendant further explains that this "result attends
because [a defendant] would not have the requisite mens rea
criminal intent necessary to justify punishment."
A trial court must give a jury instruction requested by a
defendant, at least in substance, if that instruction is proper and
supported by the evidence. State v. Craig
, 167 N.C. App. 793, 795,
606 S.E.2d 387, 388 (2005). However, "'[t]he proffered instruction
must . . . contain a correct legal request and be pertinent to the
evidence and the issues of the case.'" Id
. (quoting State v.
, 28 N.C. App. 509, 513, 221 S.E.2d 898, 901, disc. reviewdenied
, 289 N.C. 619, 223 S.E.2d 395 (1976)). A trial court, in
its discretion, may refuse to give a legally erroneous instruction.
, 167 N.C. App. at 795, 606 S.E.2d at 388.
In the present case, defendant's requested instruction was not
supported by the law of our State. N.C. Gen. Stat. § 14-27.7A(a)
(2005) directs as follows:
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
Statutory rape, under N.C.G.S. § 14-27.7A is a strict liability
crime. State v. Sines
, 158 N.C. App. 79, 84, 579 S.E.2d 895, 899,
, 357 N.C. 468, 587 S.E.2d 69 (2003). "Criminal mens
is not an element of statutory rape." State v. Ainsworth
N.C. App. 136, 145, 426 S.E.2d 410, 416 (1993) (citing State v.
, 312 N.C. 441, 445, 323 S.E.2d 339, 342 (1984)). In State v.
, 133 N.C. App. 573, 516 S.E.2d 195 (1999), aff'd
, 351 N.C.
611, 528 S.E.2d 321 (2000), our Court held that mistake of fact is
no defense to statutory rape. Id
. at 579, 516 S.E.2d at 199.
"[I]t is clear the manifest intent of the legislature was for §
14-27.7A to protect children in the three full years following age
twelve." State v. Roberts
, 166 N.C. App. 649, 652, 603 S.E.2d 373,
375 (2004), disc. review denied
, 359 N.C. 325, 611 S.E.2d 843
Moreover, we do not agree with defendant's contention that
has "altered the legal landscape" regarding theavailability of a mistake of fact defense to statutory rape. In
, the United States Supreme Court declared unconstitutional
a Texas law banning homosexual sodomy and recognized that private,
consensual sexual activity between adults is constitutionally
protected conduct under the due process clause of the Fourteenth
, 539 U.S. at 578-79, 156 L. Ed. 2d at 525-26.
However, the Supreme Court
specifically limited its holding as
The present case does not involve minors. It
does not involve persons who might be injured
or coerced or who are situated in
relationships where consent might not easily
be refused. It does not involve public
conduct or prostitution. It does not involve
whether the government must give formal
recognition to any relationship that
homosexual persons seek to enter. The case
does involve two adults who, with full and
mutual consent from each other, engaged in
sexual practices common to a homosexual
. at 578, 156 L. Ed. 2d at 525.
Our Court has consistently refused to apply Lawrence
prosecutions for sexual crimes involving minors
. In State v.
, 172 N.C. App. 772, 616 S.E.2d 576 (2005), our Court
stated that in light of the Lawrence
Court's express exclusion of
minors from its holding, "state regulation of sexual conduct
involving minors . . . falls outside the boundaries of the liberty
interest protecting personal relations and is therefore
constitutionally permissible." Id
. at 777, 616 S.E.2d at 580.
Therefore, out Court concluded that our State's regulation of
sexual conduct involving minors remains constitutional afterLawrence
. at 777, 616 S.E.2d at 580.
In State v. Oakley
, 167 N.C. App. 318, 605 S.E.2d 215 (2004),
disc. review denied
, 359 N.C. 285, 610 S.E.2d 386 (2005), the
defendant was convicted of two counts of sexual activity by a
substitute parent. Id
. at 319, 605 S.E.2d at 217. At trial, the
State introduced, over the defendant's objection, fifteen
photographs of men taken from the defendant's home. Id
. at 320,
605 S.E.2d at 217. The defendant argued that, in light of
, the photographs which showed the defendant to be
homosexual were grossly prejudicial. Id
. at 321, 605 S.E.2d at
218. Our Court rejected this argument, holding that "Lawrence's
recognition of autonomy and personal choice within consensual adult
relationships does not offer constitutional protection to evidence
presented in a charge of criminally prohibited activity with
minors, as in the case sub judice
. at 322, 605 S.E.2d at 218.
In State v. Clark
, 161 N.C. App. 316, 588 S.E.2d 66 (2003),
disc. review denied
, 358 N.C. 157, 593 S.E.2d 81 (2004), the
defendant was convicted of statutory rape. Id
. at 317, 588 S.E.2d
at 66. Relying upon Lawrence
, the defendant argued that N.C.G.S.
§ 14-27.7A(a) violates equal protection because it exempts married
. at 320-21, 588 S.E.2d at 68. Our Court rejected the
defendant's argument on the basis of the Lawrence
exclusion of prosecutions involving minors. Id
. at 321, 588 S.E.2d
, and Clark
did not involve the
propriety of a mistake of fact defense to statutory rape afterLawrence
, we find these cases, in conjunction with Lawrence
, to be
controlling. Moreover, defendant has not cited, nor has our
research revealed, any case in which a State court has recognized
a mistake of fact defense to statutory rape on the basis of
. Only seven states recognize some version of a mistake of
fact defense to statutory rape, all of which did so before Lawrence
was decided. See State v. Ballinger
, 93 S.W.3d 881 (Tenn. Crim.
App. 2001); Lechner v. State
, 715 N.E.2d 1285 (Ind. App. 1999)
Perez v. State
, 803 P.2d 249 (N.M. 1990); State v. Dodd
, 765 P.2d
1337 (Wash. Ct. App. 1989); State v. Jalo
, 696 P.2d 14 (Or. Ct.
App. 1985); State v. Guest
, 583 P.2d 836 (Alaska 1978); People v.
, 393 P.2d 673 (Cal. 1964); see also
, Colin Campbell,
Annotation, Mistake or Lack of Information as to Victim's Age as
Defense to Statutory Rape
, 46 A.L.R.5th 499 (1997).
Defendant also makes several policy arguments in support of
his contention that strict liability is inappropriate in the
context of statutory rape. Defendant argues that the mens rea
requirement is a fundamental principle of criminal jurisprudence
and that strict liability criminal offenses are only acceptable for
public welfare crimes involving little or no potential
incarceration. Defendant further argues that strict liability is
inappropriate because of the severe penalties and stigmatization
accompanying convictions for statutory rape. However, these
arguments, as well as defendant's argument that "North Carolina
should move to a more reasonable position with regard to statutory
rape[,]" are more appropriately addressed to the legislative branchof government, our General Assembly, which makes policy for our
State. See State v. Arnold
, 147 N.C. App. 670, 673, 557 S.E.2d
119, 121 (2001), aff'd per curiam
, 356 N.C. 291, 569 S.E.2d 648
(2002) (noting that while courts may analyze the constitutionality
of a statute, the General Assembly is the policy-making branch of
the State); see also, Clark
, 161 N.C. App. at 319, 588 S.E.2d at 67
(recognizing that although statutory rape "does carry a very severe
punishment for an offense not requiring proof of force or a lack of
consent, this is an issue for the legislature and not the courts").
For the reasons stated above, we overrule defendant's
assignments of error grouped under this argument.
 Defendant next argues the trial court committed reversible
error by allowing Ms. Thrift to testify that she believed A.R.'s
account of the rape. Defendant argues Ms. Thrift gave
impermissible expert testimony regarding A.R.'s credibility. We
review this issue de novo
. See State v. Bell
, 164 N.C. App. 83,
87-88, 594 S.E.2d 824, 826-27 (2004). We must also determine
whether any error should result in a new trial. See
Stat. § 15A-1443(a) (2005).
It is well settled that an expert witness may not testify "to
the effect that a prosecuting witness is believable, credible, or
telling the truth[.]" State v. Bailey
, 89 N.C. App. 212, 219, 365
S.E.2d 651, 655 (1988); see also, State v. Aguallo
, 318 N.C. 590,
350 S.E.2d 76 (1986). N.C. Gen. Stat. § 8C-1, Rule 608(a) (2005)
states that "[t]he credibility of a witness may be attacked orsupported by evidence in the form of reputation or opinion as
provided in Rule 405(a)[.]" Rule 405(a) states that "[e]xpert
testimony on character or a trait of character is not admissible as
circumstantial evidence of behavior." In Aguallo
, our Supreme
Court recognized that the phrase "as provided in Rule 405(a)" was
inserted into Rule 608(a) "to make clear that expert testimony on
the credibility of a witness is not admissible." Aguallo
, 318 N.C.
at 598, 350 S.E.2d at 81.
Defendant relies upon State v. Hannon
, 118 N.C. App. 448, 455
S.E.2d 494 (1995). In Hannon
, the defendant was convicted of
taking indecent liberties with a "fifteen-year-old trainable
mentally handicapped student at South Park High School." Id
448, 455 S.E.2d at 495. At trial, the State called an assistant
principal at the high school to testify as an expert. Id
. at 449,
455 S.E.2d at 495. Although the assistant principal had not been
tendered as an expert at the time of her testimony, the assistant
principal was later tendered and accepted as an expert in mental
retardation and the behavior of mentally retarded children. Id
450, 455 S.E.2d at 495-96. The State asked the assistant principal
to give her opinion as to the victim's truthfulness or
untruthfulness, and the assistant principal testified that the
victim was truthful. Id
. at 449, 455 S.E.2d at 495. The assistant
principal further testified that, based upon the victim's behavior,
she could tell when the victim was telling the truth and when the
victim was lying. Id
. at 449-50, 455 S.E.2d at 495.
, our Court found it was error to admit the assistantprincipal's testimony, whether the testimony was viewed as an
opinion that the victim told the truth on that particular occasion,
or whether the testimony was viewed as an expert opinion regarding
the victim's credibility. Id
. at 450, 455 S.E.2d at 496. Our
Court further stated: "In this case there was no evidence of sexual
intercourse other than the [victim's] testimony. Therefore, [the
victim's] credibility was of critical importance." Id
. at 451, 455
S.E.2d at 496. Thus, our Court found that the assistant
principal's testimony regarding the victim's credibility amounted
to plain error. Id
Unlike in Hannon
, Ms. Thrift was not tendered as an expert.
Although it is true that a witness can testify as an expert without
having been tendered as an expert, see State v. Greime
, 97 N.C.
App. 409, 413, 388 S.E.2d 594, 596 (1990), we do not find this
occurred in the present case. Ms. Thrift was not questioned
regarding her education and experience, nor was she asked for her
opinion regarding A.R.'s credibility. Ms. Thrift testified that
she believed A.R.'s account of the rape in the context of her role
as a guidance counselor who suspected that a child had been abused.
N.C. Gen. Stat. § 7B-301 (2005) (requiring any person or
institution who suspects that a juvenile has been abused or
neglected to report the case to the director of the department of
social services in the county where the juvenile resides or can be
found). Moreover, Ms. Thrift's statement regarding her
conversation with A.R. was admitted only for the purpose of
corroboration and Ms. Thrift testified primarily as a corroborationwitness.
Even assuming, arguendo
, the trial court erred by allowing Ms.
Thrift's testimony, defendant has not shown he was prejudiced by
the testimony. Relying upon State v. McMillan
, 55 N.C. App. 25,
284 S.E.2d 526 (1981), defendant argues that Ms. Thrift's testimony
was prejudicial in the present case because the jury had acquitted
defendant on a charge of crime against nature. See Id
. at 33, 284
S.E.2d at 531 (finding that the jury's acquittal on one charge
"takes on added significance" when determining whether error on
another charge was prejudicial). However, in the present case,
defendant admitted that he engaged in sexual intercourse with A.R.
As we previously stated, statutory rape is a strict liability
crime, the elements of which are sexual intercourse between a
person who is thirteen, fourteen, or fifteen years old and a person
who is at least six years older. See
N.C.G.S. § 14-27.7A(a).
Because defendant admitted he engaged in sexual intercourse with
A.R., any error in admitting Ms. Thrift's testimony was not
prejudicial. We overrule this assignment of error.
 Defendant argues the trial court committed reversible
error by allowing the State to impeach defendant regarding
defendant's false statements about an offense which had been the
subject of a deferred prosecution. We review this issue de novo
, 164 N.C. App. at 87-88, 594 S.E.2d at 826-27. We also
determine whether any error should result in a new trial. See
N.C.G.S. § 15A-1443(a). N.C. Gen. Stat. § 8C-1, Rule 608(b) (2005) states as follows:
Specific instances of the conduct of a
witness, for the purpose of attacking or
supporting his credibility, other than
conviction of crime as provided in Rule 609,
may not be proved by extrinsic evidence. They
may, however, in the discretion of the court,
if probative of truthfulness or
untruthfulness, be inquired into on
cross-examination of the witness (1)
concerning his character for truthfulness or
untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness
of another witness as to which character the
witness being cross-examined has testified.
Rule 609(a) provides that a witness' credibility may be attacked by
evidence showing the witness has been convicted of certain crimes.
N.C. Gen. Stat. § 8C-1, Rule 609(a) (2005). However, Rule 609(c)
directs that "[e]vidence of a conviction is not admissible under
this rule if the conviction has been pardoned." N.C. Gen. Stat. §
8C-1, Rule 609(c) (2005). N.C. Gen. Stat. § 15A-146(a) (2005)
states that when a person is charged with a crime, and the charge
is later dismissed, the person may apply to a trial court for an
order of expungement. N.C.G.S. § 15A-146(a) further states as
No person as to whom such an order has been
entered shall be held thereafter under any
provision of any law to be guilty of perjury,
or to be guilty of otherwise giving a false
statement or response to any inquiry made for
any purpose, by reason of his failure to
recite or acknowledge any expunged entries
concerning apprehension or trial.
Defendant specifically argues that
the prohibition on the use of [a] conviction
for which a witness has been pardoned, see
N.C. R. Evid. 609(c), in tandem with the
prohibition in the expungement statute fromusing information about a person that has been
removed from the record, see
N.C. Gen. Stat. §
15A-146, means the prosecutor should not have
been able to cross-examine [defendant].
However, in the present case, the State properly cross-examined
defendant concerning prior false statements to police. As our
Court held in State v. Springer
, 83 N.C. App. 657, 351 S.E.2d 120
(1986), disc. review denied,
319 N.C. 226, 353 S.E.2d 410 (1987),
a false swearing to a magistrate is a specific instance of conduct
showing untruthfulness. Id
. at 660, 351 S.E.2d at 122. Likewise,
in the present case, defendant's false statements to police
regarding the theft of a camera showed defendant's untruthfulness.
The State did not ask defendant about a conviction which had been
expunged. The State limited its inquiry to defendant's false
Defendant also relies upon State v. Seay
, 59 N.C. App. 667,
298 S.E.2d 53 (1982), disc. review denied
, 307 N.C. 701, 301 S.E.2d
394 (1983) and State v. Cook
, 165 N.C. App. 630, 599 S.E.2d 67
(2004). In Seay
, the defendant was impeached by evidence of a
crime for which he had been pardoned. Seay
59 N.C. App. at 670,
298 S.E.2d at 55. North Carolina had not yet adopted Rule 609(c),
which now prohibits such impeachment. Our Court noted that the
Federal Rules of Evidence would not allow such cross-examination
but found no reversible error. Id
. In the present case, defendant
was not impeached by evidence of a conviction which had been
expunged. Defendant was properly impeached regarding false
statements he had made to police.
, the defendant was convicted of embezzlement. Cook
,165 N.C. App. at 632, 599 S.E.2d at 69. The trial court allowed
the State to present extrinsic evidence during its case in chief
that the defendant had previously embezzled money on another
. at 635, 599 S.E.2d at 71. However, the defendant
had completed the requirements of a deferred prosecution in regard
to that incident and the charge had been dropped. Id
defendant argued that the admission of the evidence violated Rule
. at 634, 599 S.E.2d at 70.
Our Court held that the trial court erred by admitting the
evidence because the sole purpose of introducing the evidence was
to attack the defendant's credibility. Id
. at 636-38, 599 S.E.2d
at 72-73. We also held that, by allowing the State to introduce
extrinsic evidence regarding the prior, unrelated incident of
embezzlement, "the trial court allowed the State to circumvent the
strict limitations of Rules 608 and 609." Id
. at 637, 599 S.E.2d
at 72. Our Court recognized that Rule 608(b) does not allow the
State to prove specific instances of conduct related to
untruthfulness by extrinsic evidence. Id
. at 636-37, 599 S.E.2d at
72. Under Rule 609, the State may not offer evidence of details
underlying a conviction. Id
. at 637, 599 S.E.2d at 72. Our Court
did not hold that the evidence was inadmissible because the
defendant had completed a deferred prosecution with respect to the
In the present case, the State did not offer extrinsic
evidence of defendant's false statements. The State, pursuant to
Rule 608(b), inquired into defendant's false statements on cross-examination of defendant. See
N.C.G.S. § 8C-1, Rule 608(b)
(stating that specific instances of conduct of a witness, if
probative of untruthfulness, may "be inquired into on cross-
examination of the witness"). As discussed above, the State in the
present case complied with the requirements of Rule 608(b).
Even assuming, arguendo
, the trial court erred by allowing the
State to cross-examine defendant regarding defendant's false
statements, any error was harmless. As we stated in the previous
section of this opinion, defendant admitted that he engaged in
sexual intercourse with A.R. We overrule this assignment of error.
Defendant does not set forth arguments pertaining to his
remaining assignments of error. We deem those assignments of error
abandoned pursuant to N.C.R. App. P. 28(b)(6).
Judges McCULLOUGH and GEER concur.
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