An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-417

NORTH CAROLINA COURT OF APPEALS

Filed: 7 March 2006

STATE OF NORTH CAROLINA

v .                         Carteret County
                            Nos. 03 CRS 055145
COLIN KIT MAHONEY                    03 CRS 055314

    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.

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    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
    Initials used throughout to protect the identity of the juvenile.

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