An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-992


Filed: 5 July 2006


v .                         Wayne County             
                            04 CRS 54785

    Appeal by defendant from judgments entered 2 December 2004 by Judge Kenneth F. Crow in the Superior Court in Wayne County. Heard in the Court of Appeals 15 March 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Q. Shanté Martin, for the State.

    Miles & Montgomery, by Mark Montgomery, for defendant- appellant.

    HUDSON, Judge.

    At the 29 November 2004 criminal session of the superior court in Wayne County, a jury acquitted defendant Christopher John McAdams of two counts of first-degree rape, but found him guilty of one count of first-degree sexual offense and two counts of taking indecent liberties with a child. The court sentenced defendant to an active term of 288 to 355 months for the first-degree statutory sexual offense and 19 to 23 months for the taking indecent liberties with a child convictions. Defendant appeals, and we find no error.
    The evidence tended to show the following. In 2003, defendant lived with the family of then-nine-year-old A.R., the victim. Inor around June 2003, A.R. and her step-sister accompanied defendant to his parents' house to retrieve a radio. While there, A.R.'s step-sister testified that defendant pushed A.R. down on his bed and had sex with her. A.R. and her step-sister both testified that on another occasion, defendant touched A.R.'s “private parts” in the living room of her home. A.R. also testified that defendant touched her private parts and had sex with her in the kitchen of her home on another occasion. Dexter Ellis, a family friend, looked into the kitchen and saw defendant perform oral sex on A.R., with defendant kneeling in front of A.R. as she sat in a chair. Ellis confronted defendant, leading to a fight, after which defendant was kicked out of the house by A.R.'s parents. A pediatrician testified that she examined A.R., but found no evidence of sexual assault or intercourse.
    Defendant first argues as error that the court engaged in improper judicial questioning of A.R. We do not agree.
    Defendant did not object to the trial court's questioning of A.R. While defendant erroneously cites “plain error” in the title of his first argument, he cites appropriate case law supporting the preservation of this issue for our review even in the absence of an objection. See State v. Perry, 231 N.C. 467, 57 S.E.2d 774 (1950). N.C. Gen. Stat. § 8C-1, Rule 614(c) states that
        No objections are necessary with respect to the calling of a witness by the court or to questions propounded to a witness by the court but it shall be deemed that proper objection has been made and overruled

N.C. Gen. Stat. § 8C-1, Rule 614(c) (2003). Further,        In fulfilling the duties of a trial judge to supervise and control the course of a trial so as to insure justice to all parties, the judge may question a witness in order to clarify confusing or contradictory testimony. State v. Blackstock, 314 N.C. 232, 333 S.E. 2d 245; State v. Greene, 285 N.C. 482, 206 S.E. 2d 229 (1974). We have also held that asking leading questions of a youthful witness is proper, particularly when, as here, the inquiry is directed to matters of a sexual nature. State v. Cobb, 295 N.C. 1, 8, 243 S.E. 2d 759, 763 (1978).

State v. Ramey, 318 N.C. 457, 464, 349 S.E.2d 566, 571 (1986). Here, the trial court questioned the ten-year-old victim in order to clarify confusing testimony. We overrule this assignment of error.
    Defendant next argues that the court erred in denying his motion to dismiss count 5, first-degree sexual offense. We disagree.
    Defendant assigns error to the trial court's denial of his motion to dismiss all seven counts of the indictment, but in his brief argues only count 5, the first-degree sexual offense charge. Thus, defendant has abandoned the other assignments of error related to his motion to dismiss. N.C. R. App. P. 28(b)(6).
        In considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence. State v. Hairston, 137 N.C. App. 352, 528 S.E.2d 29 (2000). The standard of review for a motion to dismiss based on insufficiency of the evidence is the substantial evidence test. State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d 597, 602 (1993), disc. review denied, 336 N.C. 612, 447 S.E.2d 407 (1994). Substantial evidence is defined as the amount of “relevant evidence as a reasonable mindmight accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). If there is substantial evidence of each element of the charged offense and of the defendant being the perpetrator of the offense, the case is for the jury and the motion to dismiss should therefore be denied. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).

State v. Diaz, 155 N.C. App. 307, 318-19, 575 S.E.2d 523, 531 (2002), cert. denied, 357 N.C. 464, 586 S.E.2d 271 (2003). N.C. Gen. Stat. § 14-27.4(a) provides that:
        (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. Gen. Stat. § 14-27.4 (2005). N.C. Gen. Stat. § 14-27.1 defines a “sexual act” as:
        (4) “Sexual act” means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body: provided, that it shall be an affirmative defense that the penetration was for accepted medical purposes.

N.C. Gen. Stat. § 14-27.1 (2005). The State presented evidence that defendant was twenty-eight years old and A.R. nine years old at the time of the incident. Dexter Ellis testified that he saw defendant kneeling in front of A.R. with his tongue between her legs in her vaginal area. A jury could accept this evidence as adequate to support he conclusion that defendant engaged in cunnilingus with A.R. Thus, in the light most favorable to theState, the evidence was sufficient, and the trial court did not err in denying defendant's motion to dismiss.
    Defendant also argues that the court erred in denying defendant's motion to have the jury instructed on count six that it must unanimously determine that he performed cunnilingus on A.R. We disagree.
    Defendant contends that the State implied in its bill of particulars that cunnilingus was the supporting act in count 6, taking indecent liberties with a child. However, our review of the bill of particulars reveals no such implication about the supporting act in count 6, which charges indecent liberties. The first-degree sex offense is count 5, not count 6. As to count 5, the bill of particulars states: “The sex offense alleged is cunnilingus.” The bill does not specify what act it alleges to support count 6, indecent liberties. Thus, the court did not err in denying defendant's motion to have the jury instructed on count 6 that it must unanimously determine that he performed cunnilingus on A.R. Even if the bill of particulars stated that cunnilingus was the supporting act in count 6, the Supreme Court has recently held that “a jury verdict may be unanimous when a defendant is tried on [multiple] counts of statutory rape and . . . indecent liberties with a minor, when the short-form indictments for each alleged crime are identically worded and lack specific details distinguishing one particular incident of a crime from another.” State v. Lawrence, __ N.C. __, __, __ S.E.2d __, __ (2006). This assignment of error is without merit.     Defendant also argues that the trial court committed plain error in not requiring the jury to be unanimous as to the actus reus for each count of taking indecent liberties with a child. We do not agree.
    Defendant's assignment of error claims the court committed plain error, but fails to argue in support of this assertion. Anempty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule.” State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). While plain error analysis is not appropriate here, this issue is properly before this Court. “Where, however, the error violates defendant's right to a trial by a jury of twelve, defendant's failure to object is not fatal to his right to raise the question on appeal.” State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985); State v. Gary Lawrence, 165 N.C. App. 548, 556, 599 S.E.2d 87, 94 (2004), reversed in part, State v. Lawrence, __ N.C. __, 627 S.E.2d 615 (2006). However, the cases defendant relies upon in his argument have recently been reversed. See State v. Gary Lawrence, supra; State v. Markeith Lawrence, 170 N.C. App. 200, 612 S.E.2d 678, (2005), reversed, __ N.C. __, 627 S.E.2d 609 (2006). “[A] defendant may be unanimously convicted of indecent liberties even if: (1) the jurors considered a higher number of incidents of immoral or indecent behavior than the number of counts charged, and (2) the indictments lacked specific details toidentify the specific incidents.” Markeith Lawrence, __ __, 627 S.E.2d at 613. This assignment of error is without merit.
    No error.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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