An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 June 2006
STATE OF NORTH CAROLINA
Nos. 03 CRS 213651-55
RAMONE CHRISTOPHER LANEY
Appeal by defendant from judgment entered 11 March 2005 by
Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard
in the Court of Appeals 11 May 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Derrick C. Mertz, for the State.
Reita Pendry for defendant appellant.
Ramone Christopher Laney (defendant) appeals from conviction
and judgment for second-degree rape, assault on a female, second-
degree sexual offense, false imprisonment and communicating
threats. We hold that he received a fair trial, free from
The State presented evidence which tended to show that on 21
March 2003, defendant came to the house of the victim, Dimetra
Turner at approximately 4:00 a.m. Defendant and Turner had an on-
and-off relationship spanning ten years, and had been together for
six months prior to 21 March 2003. An argument ensued regarding herfidelity, and defendant became angry. He went to the kitchen and
returned with a metal broomstick.
Defendant began striking Turner with the broomstick, his
hands, and his fists. Turner attempted to fight back. Defendant
pulled her to the floor and dragged her from the bedroom to the
living room by her hair. He placed a knee on her throat and started
choking her. After choking her, defendant resumed striking and
kicking Turner as she lay on the floor. At some point, defendant
knocked out one of her teeth. He then took Turner to the bathroom
and tended to her bleeding, before leading her into the bedroom and
ordering her to lay down.
Defendant got on top of Turner and removed her sweat pants.
When Turner reacted to this, defendant raised his hand as if to
indicate he would strike her again. Turner did not resist any
further. Defendant stated that they would have sex. He inserted
his penis into her vagina, and then withdrew. Defendant then forced
the victim's head down and demanded oral sex. Thereafter, he began
to have intercourse with her again. Defendant also attempted anal
intercourse with Turner, but as he tried to penetrate her anus with
his penis, she clenched her buttocks together to prevent full
penetration, and pushed it out. Defendant then forced Turner to
perform oral sex again, as well as intercourse.
Turner's sister and father arrived during the ordeal. Turner
then attempted to flee, but found her door locked. The key which
normally rested in the deadbolt had been removed. The key was not
found during an investigation of the scene. Turner opened a windowand jumped through it, landing on the porch. She called to her
sister to call the police.
Charlotte Mecklenburg Police Officer Robert Morrell testified
that he had interviewed Turner at the scene, where she stated she
had been raped numerous times by defendant. Morrell also testified
that he had observed Turner with numerous bruises, as well as
braids, hair beads, and a bloody tooth in the living room.
Turner submitted a rape kit, which was analyzed for DNA
evidence by Kelly Smith. Smith testified that she found semen on
both anal and vaginal swabs, and found the DNA to be consistent
with defendant's DNA profile.
Defendant did not testify at his trial, but did present two
witnesses who testified that Turner had made several prior
inconsistent statements to them, saying she had not been raped that
At the close of the State's case and at the end of all the
evidence, defendant moved to dismiss the indictments. Both motions
Defendant was convicted of second-degree rape, assault on a
female, second-degree sexual assault, false imprisonment, and
communicating threats. The trial court sentenced defendant to 133
to 169 months of imprisonment. Defendant now appeals.
In his first argument on appeal, defendant contends that the
trial court erred in denying his motion to dismiss the charges of
second-degree rape, second-degree sex offense, and falseimprisonment for insufficient evidence. We disagree.
In deciding a motion to dismiss for insufficient evidence, a
trial court must determine whether there is substantial evidence of
each required element of the offense charged, and that the
defendant is the perpetrator of such offense. State v. Roddey, 110
N.C. App. 810, 812, 431 S.E.2d 245, 247 (1993). 'Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.' State v. Frogge, 351
N.C. 576, 584, 528 S.E.2d 893, 899 (2000), cert. denied, 531 U.S.
994, 148 L. Ed. 2d 459 (2000) (quoting State v. Smith, 300 N.C. 71,
78-79, 265 S.E.2d 164, 169 (1980)).
When ruling on a motion to dismiss for insufficient evidence,
a trial court must take the evidence in the light most favorable to
the State and afford every reasonable inference from the evidence
to the State. State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518
The elements required for a conviction of second-degree rape
relevant to this case are: (1) engaging in vaginal intercourse (2)
with another person by force and against the will of the other
person. N.C. Gen. Stat. § 14-27.3(a)(1) (2005); see also State v.
Worsley, 336 N.C. 268, 443 S.E.2d 68 (1994). The elements required
for a conviction of second-degree sexual offense relevant to this
case are: (1) engaging in a sexual act (2) with another person by
force and against the will of the other person. N.C. Gen. Stat. §
14-27.5(a)1 (2005). A sexual act is defined as cunnilingus,
fellatio, analingus, or anal intercourse, but does not includevaginal intercourse. Sexual act also means the penetration, however
slight, by any object into the genital or anal opening of another
person's body[.] N.C. Gen. Stat. § 14-27.1(4) (2005). The jury was
instructed on the offenses of first-degree rape and first-degree
sexual offense, as well as the lesser included offenses of second-
degree rape and second-degree sexual offense (absent the employment
or display of a deadly weapon).
In the light most favorable to the State, the victim testified
that defendant penetrated her vaginally without her consent. The
victim also testified that defendant had beaten her and she had
numerous bruises and marks consistent with such a beating. She
further testified that immediately prior to the penetration,
defendant had raised his hand to reinforce the beating, at which
point the victim ceased resisting because she was hurt and afraid.
The victim further testified that defendant made her perform oral
sex, and attempted to penetrate her anally, but she resisted and
kept pushing it out. The State also presented medical evidence
of the presence of semen in both the vagina and anus of the victim,
and showed that the DNA of the semen was consistent with the DNA
profile of defendant. This testimony and the corroborative physical
evidence, when taken in the light most favorable to the State,
provide substantial evidence to sustain a conviction of each
charge. The testimony of the victim alone covers each of the
elements necessary to prove the offenses charged, and while
defendant may allege inconsistencies or discrepancies in her
testimony, such questions are a matter for the jury to resolve, anddo not warrant dismissal. State v. Jones, 337 N.C. 198, 204, 446
S.E.2d 32, 35 (1994).
The elements of false imprisonment which are relevant to this
case are as follows: (1) the intentional and unlawful (2)
restraining or detaining of a person (3) without that person's
consent. The jury was instructed on second-degree kidnapping, as
well as the lesser included offense of false imprisonment. See
State v. Bynum, 282 N.C. 552, 193 S.E.2d 725 (1973), cert. denied,
414 U.S. 869, 38 L. Ed. 2d 116 (1973) (stating that false
imprisonment is a lesser included offense of kidnapping). In the
instant case, the victim testified that she arose from her bed and
went to the door. It is clear from the victim's testimony that she
was attempting to escape through the door, but was unable to do so,
and had to jump through a window. The evidence is sufficient to
permit an inference that defendant had removed the key from its
customary place in the deadbolt, which would have prevented the
victim from escaping through the door. When taken in the light most
favorable to the State, and affording all reasonable inferences
from the evidence to the State, we hold that there was sufficient
evidence to send the charge of false imprisonment to the jury.
Thus, this assignment of error is overruled.
Defendant next alleges that the trial judge erred in
instructing the jury that it could base a conviction for first-
degree sex offense on a finding that defendant had anal sex with
the victim. The court instructed the jury as follows: The defendant has been charged with
first-degree sexual offense. For you to find
the defendant guilty of first-degree sexual
offense, the State must prove four things
beyond a reasonable doubt:
First, that the defendant engaged in a
sexual act with the victim. A sexual act means
fellatio, which is any touching by the lips or
tongue of one person and the male sex organ of
another; or anal intercourse, which is any
penetration, however slight, of the anus of
any person by the male sexual organ of
Defendant objects to the instruction that any penetration,
however slight, would be sufficient to sustain a charge of anal
intercourse, claiming that the State cited no precedent for this
instruction. Defendant further claimed that even if the instruction
is correct, that there was insufficient evidence of anal
intercourse to submit the matter to the jury.
The term "anal intercourse," as it is used in N.C. Gen. Stat.
§ 14-27.1(4), has been construed as requiring "penetration of the
anal opening of the victim by the penis of the male." State v.
DeLeonardo, 315 N.C. 762, 764, 340 S.E.2d 350, 353 (1986). Further,
N.C. Gen. Stat. § 14-27.1(4) defines "sexual act" to include the
penetration, however slight, by any object into the genital or anal
opening of another person's body[.] Moreover, the term any
object has been construed by this Court to embrace parts of the
human body as well as inanimate or foreign objects. State v.
Lucas, 302 N.C. 342, 346, 275 S.E.2d 433, 436 (1981). As such, the
jury instructions given by the judge were correct to include anal
intercourse as falling within the term sexual act, as well as giving the appropriate threshold for determining what constitutes
Defendant's second argument, that there was insufficient
evidence to present to a jury on this subject, falls under the same
analysis as his earlier argument for dismissal. As we have held
above, there was sufficient evidence, both in the victim's
testimony and in the medical information submitted in the rape kit,
to submit the issues of rape and sexual offense to the jury. In
particular, we note the portion of the victim's testimony that she
kept pushing it out as defendant attempted to have anal
intercourse. To be pushed out, defendant's penis must have, at
some point and to some degree, been in the victim's anus. We hold
that there were sufficient grounds to include anal intercourse in
the instructions given to the jury, and overrule this assignment of
Defendant's third argument on appeal is that the trial court
erred in permitting a police witness to testify regarding
defendant's invocation of his constitutional right to remain
silent, and in denying a motion to strike the testimony.
Defendant, after a short discussion with a detective from the
Domestic Violence unit about the incident, stated that he was
finished. At trial the State proceeded along a line of questioning
regarding defendant's statement. The prosecutor asked, [w]hen he
stopped with the words, 'Well, I am finished,' is that consistent
with Right Number 5 [Miranda] on the form? Then the prosecutorasked if, had defendant not ended the interview, did [the
detective] still have questions [the detective] would have asked
him? Defendant objected on relevancy grounds, and the objection
was overruled. The detective answered yes, and defendant moved to
strike, and was overruled. There was no further direct examination,
and at no time during the trial after this point did the prosecutor
refer to the silence of defendant.
We note first that defendant did not make this argument at
trial, and we generally will not consider a theory on appeal that
differs from the theory argued at the trial court. See State v.
Benson, 323 N.C. 318, 321-22, 372 S.E.2d 517, 519 (1988); State v.
Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001). Even so,
defendant's argument lacks merit.
Defendant cites State v. Bishop for the proposition that it is
a violation of his constitutional rights for the State to introduce
evidence that he exercised his right to remain silent. This is a
misunderstanding of Bishop, which states that the exercise of
[defendant's] constitutionally protected rights to remain silent
and to request counsel during interrogation may not be introduced
as evidence against [defendant] by the State at trial. State v.
Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Simple
reference to an invocation of the right to remain silent is not a
constitutional violation when it is not used to subvert the
defense. Greer v. Miller, 483 U.S. 756, 97 L. Ed. 2d 618, reh'g
denied, 483 U.S. 1056, 97 L. Ed. 2d 819 (1987). In the instantcase, defendant's silence was not used to subvert the defense at
trial. This assignment of error is overruled.
In his final argument, defendant claims that the trial court
committed plain error in allowing the State to cross-examine two
witnesses with respect to questions challenging their credibility.
At trial defendant produced two witnesses on his behalf who
testified about statements related to them by the victim saying she
had been beaten, but not raped. Defendant's mother and aunt
testified these statements were made voluntarily by the victim, who
approached the witnesses and made these statements. The State
cross-examined the witnesses about their failure to speak to the
authorities regarding this information, and impeached their
credibility using their silence as a prior inconsistent statement.
Defendant raised no contemporary objections to this line of
Plain error is a
'fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done,' or 'where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,'
or the error has ''resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial'' or where the error is such as to
'seriously affect the fairness, integrity or
public reputation of judicial proceedings' or
where it can be fairly said 'the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.'
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983),
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed.
2d 513 (1982)).
We note that the line of questioning at issue was admissible
in the trial court as a prior inconsistent statement on the part of
the witnesses. "[A] prior statement is considered inconsistent if
it fails to mention a material circumstance presently testified to
which would have been natural to mention in the prior statement.
. . . [E]ven the failure to speak may be considered an inconsistent
statement and proper for impeachment." State v. Fair, 354 N.C. 131,
157, 557 S.E.2d 500, 519 (2001) (citations omitted), cert. denied
535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Under the facts of this
case, the failure to state such an important fact anytime prior to
trial amounted to a prior inconsistent statement. The prosecution
was well within the permissible bounds of cross-examination to
impeach these witnesses with their silence. Accordingly, we
overrule defendant's assignment of error.
For the reasons stated above, we find
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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