An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-138


Filed: 17 January 2006


         v.                            Randolph County
                                    Nos. 03 CRS 51659-61
DONALD RAY BURKS                            03 CRS 51663-64

    Appeal by defendant from judgment entered 13 October 2004 by Judge Timothy S. Kincaid in Randolph County Superior Court. Heard in the Court of Appeals 9 January 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Diane G. Miller, for the State.

    Richard B. Glazier for defendant appellant.

    McCULLOUGH, Judge.

    Defendant, Donald Ray Burks, was indicted upon three counts of first-degree statutory rape of a child who is 13, 14 or 15 and two counts of indecent liberties with a child occurring between January and March of 2003. He appeals from judgment imposing active terms of imprisonment entered upon his conviction by a jury of three counts of first-degree statutory rape and two counts of indecent liberties.
    The evidence at trial tended to show the following: In the summer of 2002, the victim lived in a trailer park with her parents and brother. She met defendant, who lived in the same trailer park, through her friend, B.T. Over the next few months, the victim and some of her friends, spent time at defendant's home after school. The victim, thirteen years old at the time, smoked cigarettes and marijuana with defendant. On the night of 10 January 2003, the victim “snuck out” of her house and went to defendant's home where her friends were listening to music and smoking marijuana. All of the victim's friends, except for Jake and Cheyenne who were spending the night, left defendant's home. Once Jake and Cheyenne fell asleep, defendant asked the victim to have sex with him. The victim told defendant no because she was a virgin and he was older, about twenty-seven years old. The victim then went to the bathroom and when she came out, defendant was blocking the door with his arm. Defendant moved the victim into his bedroom, took her pants off, got on top of her and put his penis in her “private part.” The victim testified that it hurt and she started to bleed. When the victim arrived home the next day, the police were there because she had been out all night. The victim did not tell the police what defendant did to her because she “kind of liked [defendant].” The victim testified that she told her friend B.T. that she had sex with defendant, but was afraid to tell her parents.
    On 28 February 2003, school was canceled due to an ice storm, so she, B.T. and two other friends went to defendant's home. Once the two friends left, defendant asked B.T. to leave. Defendant then asked the victim to have sex with him. The victim did not respond, but went with defendant into his bedroom. Defendant took off the victim's pants, got on top of her and put his penis in her vagina. After the victim put on her clothes, B.T. returned and the two girls went to a friend's house. At the friend's house, thevictim told B.T. that she and defendant “had sex again.”
    On 3 March 2003, the victim skipped school with B.T. The two girls went to defendant's home that afternoon. Defendant and the victim sat on the couch hugging and kissing. Defendant asked the victim and B.T. if they wanted to have a “threesome.” Both girls said “No.” Defendant attempted to take B.T.'s belt off, but B.T. pushed away defendant's hand. Defendant then told B.T. to stay in the living room and watch a movie as he and the victim were going to have sex. Defendant and the victim went to his bedroom and defendant again got on top of the victim and put his penis into her vagina.
    On 11 March 2003, the victim was called to her school guidance counselor's office and questioned by her counselor and law enforcement officers. During the interview, the victim admitted that she and defendant had sex. The victim gave the officers a written statement in which she indicated that she had engaged in sexual relations with defendant on 11 January 2003, 28 February 2003 and 3 March 2003.
    At trial, B.T. was called as a witness for the State and testified that she and the victim went to defendant's house in February of 2003, during which time the victim asked B.T. to leave for a few minutes. B.T. testified that the victim told her a few days later what had happened after she left defendant's home. The prosecutor asked, “What did [the victim] tell you?” Over defendant's general objection, B.T. testified, “[the victim] said that her and [defendant] had sex.” B.T. further testified that sheand the victim went to defendant's house on 3 March 2003. At that time, defendant asked the victim and B.T. if they wanted to have a
“threesome” and they said, “No.” Defendant tried to take B.T.'s belt off, but she pushed him away. Defendant then told B.T. to watch a movie or leave. B.T. decided to leave. The prosecutor asked B.T. what the victim told her happened after she left. B.T. testified, “[the victim] said they had sex.” On cross-examination, defense counsel asked B.T., “And those are the two occasions that you say that [the victim] told you that they'd had sex?” and B.T. answered, “Yes.”
    Dr. Kimberly Lynn Lykins treated the victim on 11 March 2003, During the examination, the victim told Dr. Lykins that she had engaged in unprotected sexual intercourse; that the person was twenty-seven years old and that the last time she engaged in sexual intercourse was 3 March 2003.
    The dispositive issue, raised by defendant's second assignment of error, is whether the trial court committed “plain and reversible error” by permitting B.T. to testify that “[the victim] told her about repeated sexual acts with defendant.” Defendant argues the testimony was admitted to prove the truth of the matter asserted, was not limited in anyway by the trial court as evidence of corroboration and did not fall within a hearsay exception. Defendant also argues that B.T.'s testimony was admitted in violation of the Confrontation Clause as dictated by the U.S. Supreme Court's recent ruling in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004).     A review of the transcript reveals, however, that defendant objected only once during the eight pages of B.T.'s testimony to which defendant cites. Specifically, defendant made a general objection when the prosecutor asked B.T. what the victim had told her after the February 2003 incident. Defendant did not ask for a limiting instruction on the extent to which the jury could consider the testimony nor did he ask to strike the testimony. As such, defendant has waived appellate review of this issue. See N.C.R. App. P. 10(b). Although defendant assigns plain error, he failed to argue plain error in his brief and has waived appellate review. See N.C.R. App. P. 10(c)(4) (2004) and State v. Frye, 341 N.C. 470, 496, 461 S.E.2d 664, 677 (1995) (defendant “waived appellate review of those arguments by failing specifically and distinctly to argue plain error.”), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526 (1996).
    Assuming arguendo that defendant properly preserved his objection, B.T.'s testimony did not constitute inadmissible hearsay. “Hearsay is a 'statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' 'However, out-of-court statements offered for purposes other than to prove the truth of the matter asserted are not considered hearsay.'” State v. Carroll, 356 N.C. 526, 542, 573 S.E.2d 899, 910 (2002) (citations omitted), cert. denied, 539 U.S. 949, 156 L. Ed. 2d 640 (2003) . Corroborative evidence tends “to strengthen, confirm, or make more certain the testimony of another witness.” State v.Adams, 331 N.C. 317, 328-29, 416 S.E.2d 380, 386 (1992).
    Here, B.T. testified that on two occasions, the victim told B.T. that she and defendant had sex. Such testimony was not entered for the truth of the matter asserted; but rather, served as corroboration of the victim's testimony that she told B.T. about having sex with defendant.
    Furthermore, contrary to defendant's assertion, Crawford is not applicable to the instant case. In Crawford, the Supreme Court held that the Confrontation Clause bars the admission of out-of-court testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him or her. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203. Here, both B.T. and the victim were available and were cross-examined by defendant.
    Finally, we conclude the admission of B.T.'s testimony was not prejudicial error as there was sufficient evidence upon which the jury could convict defendant of statutory rape and indecent liberties with a minor. The evidence reveals, even without B.T.'s testimony, that defendant had sexual intercourse with the victim on three occasions. Based on this uncontradicted and substantial evidence of all the elements of first-degree statutory rape and indecent liberties, there is no reasonable possibility that the jury in this case would have reached a different result. See N.C. Gen. Stat. § 15A-1443(a) (2003). Thus, even if B.T.'s testimony was inadmissible hearsay, the admission of B.T.'s testimony was at most harmless error.     No error.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

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