Appeal by defendant from a judgment consistent with a guilty
jury verdict entered 17 October 2004 by Judge Benjamin G. Alford in
Carteret County Superior Court. Heard in the Court of Appeals 30
November 2005.
Attorney General Roy Cooper, by Assistant Attorney General
David Gordon, for the State.
Attorney Michelle FormyDuval Lynch for defendant.
BRYANT, Judge.
Colin Kit Mahoney (defendant) appeals from a judgment entered
17 October 2004 consistent with a jury verdict finding him guilty
of first-degree sex offense with a child and felonious restraint.
Defendant was sentenced to a minimum of 336 months and a maximum of
413 months imprisonment.
The evidence tended to show that in September 2003, defendant
lived with B.S.
(See footnote 1)
, age seven, and the child's mother. On 16
September 2003, the three drove to Maysville, North Carolina to
obtain crack cocaine and arrived home at midnight. The mother
bathed B.S. and put her to bed. Defendant went to the computerroom. During the night, B.S. awoke to find defendant lying in her
bed and she testified defendant hurt her. As B.S. began to cry,
the mother awoke to find defendant leaving the child's room,
wearing only his boxer shorts. B.S. complained to her mother that
she needed to use the bathroom. When B.S. urinated, she said
“Mommy, it hurts” and when she wiped herself there was blood on the
toilet paper. The mother then asked defendant what was going on,
and he eventually said “[w]ell, I guess I really f***ed up this
time.” The mother also discovered semen stains on her daughter's
pull-up and on the sheets beside her bed. The mother confiscated
her house key from defendant and drove B.S. to the hospital after
taking defendant to Maysville to retrieve his car.
Defendant, who was 34 years old at trial, took the stand in
his own behalf. Defendant denied ever touching B.S. in any way
sexually, or hitting or threatening the mother to force her to take
him to Maysville; defendant testified that he merely pestered her
until she turned the car around and took him to Maysville to get
his car. Defendant further testified and attempted to explain the
semen on B.S.'s bed sheet. He said he had been masturbating while
watching a pornographic website on the computer, that he heard B.S.
whimpering, covered himself with his boxers, and went into the
child's room to comfort her.
___________________________
On appeal, defendant raises the following issues: whether the
trial court erred (I) in denying his motion to dismiss for
insufficiency of the evidence; and (II) in abusing its discretionby allowing the State to impeach defendant with admission of
convictions more than ten years old.
I
“A motion to dismiss is properly denied when there is
substantial evidence of (1) each element of the offense charged and
(2) that the defendant is the perpetrator of the crime.”
State v.
Chapman, 154 N.C. App. 441, 444, 572 S.E.2d 243, 246 (2002),
disc.
rev. denied, 356 N.C. 682, 577 S.E.2d 898 (2003). “Substantial
evidence” has been defined as “evidence from which a rational
finder of fact could find the fact to be proved beyond a reasonable
doubt.”
State v. Davis, 130 N.C. App. 675, 678, 505 S.E.2d 138,
141 (1998) (citation omitted). In ruling on a motion to dismiss,
“the evidence is to be considered in the light most favorable to
the State; the State is entitled to every reasonable intendment and
every reasonable inference to be drawn therefrom; contradictions
and discrepancies are for the jury to resolve and do not warrant
dismissal.”
State v. Bumgarner, 147 N.C. App. 409, 412, 556 S.E.2d
324, 327-28 (2001) (citation omitted).
First-Degree Sex Offense
Defendant first contends the State lacks evidence of
penetration and therefore had insufficient evidence with which to
prove first-degree sex offense of a child pursuant to N.C. Gen.
Stat. § 14-27.4(a)(1). In the alternative, defendant contends the
trial court erred in denying his motion regarding the jury charge
for first-degree sex offense of a child. In particular, defendant
argues the trial court erred in failing to clarify for the jurythat “sexual act” does not include vaginal intercourse or that
“object” does not include the male penis. The trial judge denied
both of defense counsel's requests for jury instructions and
instead, delivered the pattern instruction. Defense counsel did
not object. Thus, defendant has waived any right to challenge the
jury instructions on appeal unless the trial judge committed “plain
error,” which defendant does not contend.
State v. Odom, 307 N.C.
655, 300 S.E.2d 375 (1983); N.C. R. App. P. 10(b)(2). Therefore we
do not otherwise address defendant's alternative argument.
N.C.G.S. § 14-27.4(a)(1) provides, in pertinent part:
(a) A person is guilty of a sexual offense in
the first degree if the person engages in a
sexual act:
(1) With a victim who is a child under the age
of 13 years and the defendant is at least 12
years old and is at least four years older
than the victim . . . .
N.C.G.S. § 14-27.4(a)(1) (2005). A sexual act includes
cunnilingus, fellatio, analingus, or anal intercourse and “the
penetration, however slight, by any object into the genital or anal
opening of another person's body.”
State v. Bates, ____ N.C. App.
___, ___, 616 S.E.2d 280, 287 (2005).
Evidence pertinent to the charge of first-degree sex offense
of a child shows that: (1) B.S. was seven years old and defendant
was 34 years old at trial; (2) B.S. awoke early the morning of 17
September to find defendant, for the first time ever, lying beside
her; (3) B.S. felt pain caused by defendant while he was lying next
to her; (4) after B.S. felt pain, defendant hugged her and kissed
her on the cheek, and B.S. started crying; (5) the mother awokearound 6:00 a.m. on 17 September 2003, heard her daughter crying,
and found defendant coming out of her daughter's bedroom wearing
just his boxers; (6) B.S. was wearing her nightgown without her
pull-ups, and needed to use the bathroom; (7) B.S. urinated and
said, “Mommy it hurts,” and blood appeared on the tissue used by
B.S. to wipe herself; (8) the mother noticed two semen spots on her
daughter's sheets and her daughter's pull-up beside the bed; (9) a
Carteret County Department of Social Services social worker saw
B.S. at the hospital in Morehead City and testified B.S. indicated
defendant had hurt B.S. in her inner thigh area, this was also
shown in a picture where B.S. circled her thighs and her crotch
area to indicate the same; (10) a detective with the Carteret
County Sheriff's Office testified B.S. told him defendant had hurt
her, that she had never been hurt before, and in another picture
shared with the detective, B.S. circled her upper thighs and pubic
area indicating where she had been hurt; (11) the emergency room
nurse who was on duty 17 September 2003 testified that a rape kit
was done on B.S. that morning, that B.S. indicated defendant had
attempted to penetrate her vagina, and that the physical
examination of B.S. revealed an abrasion inside her genital
opening; (12) the emergency room physician who was on duty that
same day was qualified as an expert in emergency medicine and
testified that she conducted a physical examination of B.S. around
9:30 a.m. which revealed a linear cut or laceration in the inner
portion of the vagina and inside the genital opening, that the
injury appeared to be a fresh injury since there was no scabbing,that the injury was consistent with having been inflicted within
three or fours hours, that in her expert opinion, the injury to the
inner labia of B.S. was consistent with sexual abuse; (13) an agent
with the State Bureau of Investigation (SBI) was qualified as an
expert in forensic biology and testified that she performed tests
for the presence of semen on various State exhibits previously
identified and admitted into evidence, and that she found
spermatozoa on the panties and bed sheet, but not on the nightgown,
or the vaginal, oral, and anal swabs from the rape kit; and (14)
another agent with the SBI was qualified as an expert in forensic
DNA analysis and testified that based on his DNA analysis of the
pertinent DNA profiles, the sperm on the bed sheet could not have
originated from anyone except defendant, and defendant could not be
excluded from having contributed the sperm on the panties. There
was substantial evidence that defendant committed a first-degree
sex offense of a child to overcome defendant's motion to dismiss.
Felonious Restraint Charge
Defendant next contends the evidence was insufficient to show
defendant restrained B.S.'s mother, or moved or transported her
anywhere in violation of N.C. Gen. Stat. § 14-43.3. The record
shows defendant did not move for dismissal of the felonious
restraint charge at the close of the State's evidence or at the
close of all the evidence. Thus, defendant has waived his right to
challenge on appeal the sufficiency of the evidence to prove the
felonious restraint charge. N.C. R. App. P. 10 (b)(3). Even
considering this portion of defendant's assignment of errorpursuant to Rule 2 of the North Carolina Rules of Appellate
Procedure, defendant's contention is still without merit.
To obtain a conviction for felonious restraint, the State must
show defendant intentionally and unlawfully restrained a person,
without that person's consent, and that defendant moved the person
from the place of initial restraint by transporting him/her in a
motor vehicle or other conveyance. N.C.G.S. § 14-43.3 (2005);
State v. Wilson, 128 N.C. App. 688, 693, 497 S.E.2d 416, 420,
disc.
rev. improvidently allowed, 349 N.C. 289, 507 S.E.2d 38 (1998).
Evidence pertinent to the charge of felonious restraint shows
that after tending to her daughter in the bathroom, when the mother
asked defendant for his house key, he said, “Well, I guess I f***ed
up bad this time,” and punched a hole in her bedroom wall.
Initially, defendant would not allow the mother out of her bedroom,
but did so when she asked him to let her check on her daughter.
The mother told defendant, “I'm going to take [B.S.] to the
hospital,” to which he replied, “No, you're going to take me to
Maysville to get my car.” The mother said “No, to Morehead City to
the hospital. If you want to ride to Morehead City, you're more
than welcome but I'm going to Morehead City.” Defendant sat in the
passenger seat of the mother's car and told her to pull over at a
gas station. After sitting in the parking lot for five minutes,
the mother said to defendant, “Well, do something. Either get out
or I'm going to start going back to Morehead City to take my
daughter to the hospital.” Defendant did not get out, so the
mother started back toward Morehead City. Defendant punched themother on the right side of her face while she was driving. The
mother testified she immediately stopped the car and said to
defendant, “I can't believe you just hit me,” to which defendant
replied, “Well, you're going to take me to Maysville because I can
make your face look like nobody will ever recognize you. I didn't
hit you hard. I hit you soft.” After that, the mother turned the
car around and started toward Maysville. On the way there,
defendant grabbed at the wheel and the mother had to stop the car
and start again. Defendant punched the windshield, punched the
passenger door, and the mother. The mother dropped off defendant
in Maysville and then sought medical attention for B.S. The
mother's testimony was corroborated by B.S., by a deputy and a
detective with the Carteret County Sheriff's Office. In the case
sub judice, considering the evidence in the light most favorable to
the State, there was substantial evidence “defendant intentionally
and unlawfully restrained” the mother against her consent and moved
her “from the place of initial restraint by transporting her[ ] in
a motor vehicle.”
N.C.G.S. § 14-43.3 (2005). This assignment of
error is overruled.
II
Defendant argues the trial court abused its discretion by
allowing the State to impeach defendant with admission of
convictions older than ten years old. Defendant contends the trial
court erred in allowing evidence of his prior convictions that were
more than 10 years old without making appropriate findings and
without sufficient advance written notice provided by the State. N.C. Gen. Stat. § 8C-1, Rule 609 provides, in pertinent part:
(a) For the purpose of attacking the
credibility of a witness, evidence that the
witness has been convicted of a felony . . .
shall be admitted if elicited from the witness
or established by public record during
cross-examination or thereafter.
(b) Evidence of a conviction under this rule
is not admissible if a period of more than 10
years has elapsed since the date of the
conviction or of the release of the witness
from the confinement imposed for that
conviction, whichever is the later date,
unless the court determines, in the interests
of justice, that the probative value of the
conviction supported by specific facts and
circumstances substantially outweighs its
prejudicial effect. However, evidence of a
conviction more than 10 years old as
calculated herein is not admissible unless the
proponent gives to the adverse party
sufficient advance written notice of intent to
use such evidence to provide the adverse party
with a fair opportunity to contest the use of
such evidence.
N.C.G.S. § 8C-1, Rule 609 (2005). On cross-examination, the
prosecutor questioned defendant on convictions occurring in 1995,
1996 and 1997 as well as convictions occurring in 2002 and 2003 and
not convictions occurring more than ten years ago, as defendant
contends. The sentencing worksheet and the transcript indicate the
convictions offered at trial were all less than 10 years old. On
direct examination, in response to defense counsel's question as to
whether defendant had previously been in trouble with the law
defendant stated:
A. Most recently obtained property by false
pretense, two counts. I've had a prior
assault. That was back quite some years.
I've had drug paraphernalia possession,
done probation, been placed on intensive
probation. DWI. I have one pending that Ireceived August 20th. And failure to
appear ten years ago.
Q. Anything else that you remember?
A. Not offhand.
“Where one party introduces evidence as to a particular fact
or transaction, the other party is entitled to introduce evidence
in explanation or rebuttal thereof, even though such latter
evidence could be incompetent or irrelevant had it been introduced
initially.”
State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439,
441 (1981) (citation omitted) .
Finally, the introduction of evidence of defendant's prior
convictions more than 10 years old is not forbidden by statute;
therefore it is incumbent upon defendant to timely object in order
to present the question of admissibility for review on appeal.
Defendant's failure to object at trial constitutes a waiver of the
right to raise the issue on appeal.
State v. Ragland, 80 N.C. App.
496, 342 S.E.2d 532 (1986). This assignment of error is overruled.
No error.
Judges TYSON and CALABRIA concur.
Report per Rule 30(e).
Footnote: 1