Appeal by defendant from a judgment entered 19 November 2004
by Judge E. Penn Dameron, Jr. in Macon County Superior Court.
Heard in the Court of Appeals 16 October 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Celia Grasty Lata, for the State.
Mark Montgomery for defendant-appellant.
BRYANT, Judge.
A jury found Thomas Joseph Cragher (defendant) guilty as
charged of first degree sex offense with a child. From a judgment
entered 19 November 2004 imposing an active term of imprisonment of
a minimum of 288 months and a maximum of 355 months, defendant
appeals.
Facts
The State presented evidence tending to show that the
prosecuting witness, a female child six years old at the time of
trial, visited defendant's home on 18 April 2003, her birthday.
The child testified that while they were alone in the living room
defendant touched her “privates.” Defendant “stuck his finger
under [her] panties” and pushed twice. Defendant hurt her andcaused her to cry. The child's mother soon came and took her away.
The child told her brother and mother about the incident. Her
mother took her to the hospital later that day. She saw a doctor
and told the doctor she had been hurt. She also talked to a law
enforcement officer about what happened.
The child's mother testified she came to defendant's house to
get her child. She observed that her child's pants were
unbuttoned. She asked her child why they were unbuttoned. The
child started to cry and said nothing had happened. Later that day
the child told her that defendant touched her and put his finger in
her “private.” She took the child to the Angel Medical Center,
where she met a law enforcement officer who talked to the child.
A physician also examined the child.
Don Willis, juvenile investigator with the Macon County
Sheriff's Department, testified he met the child and her mother at
the Angel Medical Center on 18 April 2003. The child told him that
defendant had touched her vagina and “put his fingers inside her.”
Dr. Jennifer Brown, a pediatrician, testified she examined the
child on 18 April 2003. The child told Dr. Brown that defendant
had touched her in her vaginal area. The child demonstrated to her
where defendant touched her by running her finger along her vagina.
She examined the child and observed that her vaginal area was very
red and tender. She noted a “notch” going partly through the
hymen. Dr. Brown further testified that the redness and tenderness
indicated recent injury or trauma to the vagina and that the notch
indicated a “penetrating injury.” Defendant's wife testified on defendant's behalf that the
child came into her house on 18 April 2003 and asked to eat some
fruit that was in a package she had received from her sister. She
left the child sitting on a barstool at a bar separating the
kitchen and living room while she went into her bedroom to change
clothes. When she returned approximately three minutes later, the
child was standing on the barstool. She removed the child from the
barstool and seated her on the couch between herself and defendant.
The child's mother came into the house, visibly upset with her
daughter for being there. The child was upset because her mother
was upset with her. The child never said anything about defendant
touching her.
Defendant's two sons and their friend testified that at the
time the child came into the house they were in a bedroom about
twenty feet from the living room and that they never heard anything
in the living room.
Defendant testified that he picked up a package shipped by his
sister-in-law that contained a number of food items, including
fruit. The child came into the house and his wife gave the child
some of the fruit. He sat on a couch in the living room watching
television. His wife and the child subsequently sat on the couch
with him. The child's mother arrived and got her child. As the
child was leaving, she told her mother, “Tom was messing with me.”
Defendant denied touching the child except on her cheek. Defendant
testified the nearest he came to the child was within two to three
feet when she sat on the couch with him and his wife.
_________________________
Defendant presents two issues on appeal: (I) whether the
trial court erred in denying defendant's motion to dismiss, and
(II) whether the trial court erred as a matter of law in referring
to the complainant as a “victim” in its instructions to the jury.
I
Defendant first contends the court erred by denying his motion
to dismiss for insufficient evidence.
A motion to dismiss requires
the court to determine whether there is substantial evidence to
establish each element of the offense charged and to identify the
defendant as the perpetrator.
State v. Earnhardt, 307 N.C. 62,
65-66, 296 S.E.2d 649, 651 (1982).
In deciding a motion to
dismiss,
the court must consider the evidence in the light most
favorable to the State, giving it the benefit of every reasonable
inference that may be drawn from the evidence.
State v. Brown,
310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). “The trial court's
function is to determine whether the evidence will permit a
reasonable inference that the defendant is guilty of the crimes
charged.”
State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61
(1991).
“If there is substantial evidence -- whether direct,
circumstantial or both -- to support a finding that the offense
charged has been committed and that the defendant committed it, the
case is for the jury and the motion to dismiss should be denied.”
State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
The definition of first degree sexual offense as applicable to
the indictment in this case is “engag[ing] in a sexual act . . .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(a)(1) (2005);
State
v. Manley, 95 N.C. App. 213, 214, 381 S.E.2d 900, 900 (1989). A
“sexual act” is defined in N.C. Gen. Stat. § 14-27.1(4) as
“penetration, however slight, by any object into the genital or
anal opening of another person's body.”
State v. Jennings, 333
N.C. 579, 642, 430 S.E.2d 188, 222,
cert. denied, 510 U.S. 1028,
126 L. Ed. 2d 602 (1993). Defendant argues the evidence
is
insufficient to establish that he penetrated the child's vagina
with some object.
The child testified that defendant stuck his finger under her
panties, touched her “private” and pushed twice, hurting her and
causing her to cry. The pediatrician, Dr. Brown, who examined the
child later that day testified that the child touched her vagina as
she showed where defendant touched her. Dr. Brown also testified
that the child's genital opening was very red and tender to the
touch, and that there was a “notch,” or “interruption,” in her
hymen. Dr. Brown testified that the redness and tenderness
indicated recent injury to the vagina and that the notch is
“consistent with penetrating injury.”
We conclude that the foregoing evidence is substantial
evidence to support a finding that defendant engaged in a sexual
act with the child. We overrule this assignment of error.
II
By his remaining assignment of error, defendant contends thecourt “erred as a matter of law in instructing the jury that the
complainant in this case was a 'victim.
'” Defendant did not object
to the court's instructions to the jury. Thus, in order to obtain
appellate review of this issue, he must show that he is excepted
from the requirement of making an objection at trial by some
exception or rule of law.
State v. Walker, 316 N.C. 33, 39, 340
S.E.2d 80, 83 (1986). Defendant has failed to make this showing.
The case defendant cites,
State v. Perry, 231 N.C. 467, 57 S.E.2d
774 (1950), predates the Rules of Appellate Procedure and does not
hold that appellate review is mandated in the absence of an
objection. Appellate review is nevertheless available “where the
judicial action questioned is specifically and distinctly contended
to amount to plain error.” N.C. R. App. P. 10(c)(4). Defendant
makes no such specific contention, however.
This assignment of
error is therefore not properly before this Court.
The assignments of error listed in the record on appeal but
not brought forward and argued in defendant's brief are deemed
abandoned. N.C. R. App. P. 28(b)(6);
State v. Smith, 152 N.C. App.
514, 519, 568 S.E.2d 289, 293,
appeal dismissed and disc. rev.
denied,
356 N.C. 623, 575 S.E.2d 757 (2002).
No error.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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