STATE OF NORTH CAROLINA
v
.
Wayne County
04 CRS 54785
CHRISTOPHER JOHN MCADAMS,
Defendant.
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. An
“empty 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, __ N.C.at __,
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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