An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 19 December 2006
STATE OF NORTH CAROLINA
v. Caldwell County
No. 02 CRS 7842
BOBBY JOE HODGES
Appeal by Defendant from judgments entered 30 June 2005 by
Judge Beverly T. Beal in Caldwell County Superior Court. Heard in
the Court of Appeals 14 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Jane Rankin Thompson, for the State.
Daniel F. Read for Defendant-Appellant.
Bobby Joe Hodges (Defendant) appeals from judgments entered
upon his conviction by a jury of first-degree rape and taking
indecent liberties with a child. In support of his appeal, he
brings forward eight assignments of error. For the reasons stated
herein, we hold that Defendant received a fair trial, free of
error, and thus, we uphold his conviction.
At trial during the 28 June 2005 criminal session of Catawba
County Superior Court, the State's evidence tended to show that on
23 September 2002, the victim, G.H., who was eight years old at the
time, was at her paternal grandparents' house sitting around just
watching TV and stuff. That afternoon, G.H. went to a shed on hergrandparents' property. Defendant, G.H.'s grandfather, who was
sixty-two, was working in the shed. G.H. sat on a small table.
Defendant told G.H. that he would not let her off the table until
she pulled down her pants and panties. G.H. said no, but
Defendant held her down. After G.H. complied with his command,
Defendant placed his finger, and then, his penis in her vagina.
G.H. testified that these acts hurt her, but she did not say
anything to Defendant. Defendant continued his actions until
G.H.'s cousin, Felecia, walked into the shed. Defendant
immediately zipped up his pants while G.H. put her clothes back on
and ran to the house to her grandmother. G.H. told her
grandmother, Shirley, what had happened. Shirley took G.H. to the
bathroom and checked her private areas to make sure that G.H. was
not bleeding. G.H. testified that Shirley told her not to tell
anyone else what had happened and
to tell others that she had
inserted a tampon, even though G.H. had not yet started her period.
Felecia testified that she did not see Defendant zipping up
his pants as she entered the shed when she got home from school
that afternoon. However, she acknowledged that she saw G.H. on the
table with her pants and panties down. Upon seeing G.H. on the
table, Felecia went back to the house and told Shirley what she
saw. Felecia, who was almost sixteen at the time, is also
Defendant's and Shirley's granddaughter. She was living with hergrandparents then, and Defendant was in the process of helping her
to pick out a car for herself.
Shirley Hodges testified that G.H. told her she had her pants
down because she had to pee. Shirley denied that G.H. told her
Defendant had sexually assaulted her in any manner. Nevertheless,
Shirley admitted that she checked G.H.'s private areas for blood
because she said she had to go to the bathroom[,] and the child
was up there. I was concerned enough to want to know  [w]hat was
On 25 September 2002,
Jill Duffy, a school social
worker, that she had walked in on Defendant and G.H. while G.H. had
her pants and panties down, and that she saw Defendant zipping up
his pants. Felecia reported further
that she had overheard G.H.
telling Shirley that Defendant put his pee-pee in her. Felecia
said that Shirley told her and G.H. not to tell anyone about what
happened, and that they would get help for Defendant.
April Sisk and Karen Noblitt
were investigators at the
Caldwell County Department of Social Services at the time of the
incident. Ms. Sisk testified that Felecia told her and Ms. Noblitt
that she had walked in on Defendant and G.H., and that Defendant
had quickly zipped up his pants. Felecia also told Ms. Sisk that
immediately after the incident, she informed Shirley about it, who
seemed shocked at first, and then acted like it was no bigdeal. Ms. Sisk testified further
that she observed Felecia, G.H.
and Sandra Mask, Felecia's aunt, at the Sheriff's Department later
that afternoon. Felecia urged G.H. to tell Ms. Sisk what had
happened. G.H., who was sitting on Felecia's lap, then told Ms.
Sisk: 'He took it out and put it in me.' Ms. Sisk testified that
Sandra, Felecia and G.H. were crying and hugging each other.
Ms. Noblitt testified that when she and Ms. Sisk first
interviewed G.H. at her elementary school, she appeared very
nervous and very uncomfortable. During questioning, G.H.'s face
turned very red and she did not make direct eye contact with
the investigators. On 25 September 2002, Ms. Noblitt also
interviewed Shirley, who reported that Felecia had told her she
saw G.H. in the shed with her pants and panties down, and Defendant
zipping up his zipper. Shirley told Ms. Noblitt that she had
confronted Defendant, and he said G.H. came in front of him with
her panties down and asked him to do something to her.
Dr. Andrea Kunkle, G.H.'s regular physician at the time of the
performed a child medical examination on G.H. on 30
September 2002. At the outset of the examination, Dr. Kunkle asked
G.H. whether she knew why she was at the doctor's office, and G.H.
replied '[b]ecause of what pawpaw did' to her. She then told Dr.
Kunkle that she went into the shed to help Defendant, sat up on a
table, and Defendant would not let her down until she took herpants and panties off. G.H. further told Dr. Kunkle that Defendant
put both his finger and his penis inside of her.
Upon examining G.H.'s vaginal area, Dr. Kunkle saw a little
area where the hymen [opening for the vagina] kind of fell away on
either side of a little mound. In the same area, on either side,
she saw a cleft, or break in the tissue. Dr. Kunkle testified
that the presence of a little mound can mean that something
happened in that area[,] and the presence of a cleft can mean
there was some sort of trauma. In addition, Dr. Kunkle found
lesions that looked like herpes in the labia minora of the hymen.
Dr. Kunkle then touched the lesion inside G.H., asked her if
Defendant went that far inside her, and G.H. said he went at least
Dr. Kunkle performed a herpes culture and a bacterial culture
in an attempt to define the lesions, but both tests came back
negative. Based on her experience, however, and the fact that the
lesions had already progressed to the ulcerative stage, Dr. Kunkle
continued to believe the lesions represented herpes. She explained
that three out of ten herpetic lesions will test negative in the
ulcerative stage versus the blister stage, which comes earlier. In
addition, when Dr. Kunkle reexamined G.H. a week later, the lesions
had only slightly improved, but had not healed, consistent with
herpes [which] doesn't heal very quickly[.] Without objection, Dr. Kunkle opined that G.H.'s injuries were
consistent with sexual assault and that based on the physical
examination findings, G.H. had sustained some sexual abuse.
Defendant also offered evidence, which tended to show the
following: On 23 September 2002, Defendant was working in his
garage workshop when G.H. came into the building to ride an
exercise bike. Defendant testified it was a hot day and all of the
doors and windows of the building were open. He said he was
looking for an address book and a telephone book for his wife,
Shirley, when G.H. came in. He eventually located the books and as
he was retrieving them out of a box, Felecia walked in, at which
time he heard G.H.'s feet hit the floor, and the two of them ran
out of the building. He said he never saw G.H. with her pants down
and claimed to Shirley that he did not do anything to G.H. He
further testified that he has trouble achieving an erection and the
use of Viagra did not help him.
Sandra Stewart, a family friend, testified that, in the summer
of 2003, G.H. told her Defendant did not rape her. Ms. Stewart
further testified that before G.H. made such a revelation to her,
she told G.H. she did not like her and nobody liked her due to
G.H.'s allegations against Defendant. Ms. Stewart said everybody
in the family was mad at G.H. because of her allegation.
Defendant also presented the testimony of several relatives whosaid G.H. told them that Defendant did not rape her, and who
conceded that the family was mad or angry at G.H.
After the defense rested, the State offered rebuttal testimony
from Danny Barlowe, a detective with the Sheriff's Department at
the time of the incident
. Detective Barlowe was present during
portions of Defendant's interview with Detective Jim Bryant.
During the interview, Defendant told Detective Bryant that G.H. was
in the shed on a table with her pants and panties down, although he
denied do[ing] anything to her.
Ms. Noblitt and Ms. Sisk were also called to rebut Defendant's
evidence. Ms. Noblitt was present while Mr. Barlowe interviewed
Shirley Hodges. She testified that Shirley stated Defendant told
her that G.H. had appeared with her pants down. According to
Shirley, Defendant also told her that G.H. asked [Defendant] to do
something to her.
Ms. Sisk interviewed Defendant, who reported that G.H. was
sitting on the table with her pants down when she asked Defendant
to give her a hug. Defendant reported that he did not know why
G.H. had her pants down, but continued to work and thought nothing
At the close of the State's evidence and at the close of all
the evidence, Defendant moved to dismiss both charges for
insufficiency of the evidence. The motions were denied. Afterdeliberations, the jury returned verdicts of guilty
rape and taking indecent liberties with a child. Defendant was
then sentenced to 193 to 241 months in prison for the rape
conviction and thirteen to sixteen months for the indecent
liberties conviction, to run concurrently. Defendant appeals.
Defendant first argues that the trial court committed plain
error by allowing Dr. Kunkle to testify that G.H. had evidence of
herpetic lesions, even though the tests for herpes were negative
and there was no evidence that Defendant had herpes or could have
transmitted such disease to G.H. He further argues that it was
plain error for the trial court to allow Dr. Kunkle to testify that
G.H. was in fact sexually abused. We disagree.
Plain error in the trial of a criminal case is an error which
is so fundamental, it amounts to a miscarriage of justice or
probably caused the jury to reach a different verdict than it
otherwise would have reached but for the error. State v. Lawson,
159 N.C. App. 534, 583 S.E.2d 354 (2003).
Defendant contends that
because there was no evidence to connect the herpetic lesions to
Defendant or any evidence as to how the lesions could have been
caused, [t]he jury was thus prejudicially left to assume that the
herpetic lesions must have come from [Defendant]. Further,
because the existence of the lesions formed part of the basis forDr. Kunkle's opinion that G.H. had been sexually abused, Defendant
argues that the practical effect of this evidence was to vouch
for G.H.'s credibility.
In support of his position, Defendant cites State v. Stancil,
355 N.C. 266, 559 S.E.2d 788 (2002); State v. Hammett, ___ N.C.
App. ___, 625 S.E.2d 168 (2006)
; and State v. Ewell, 168 N.C. App.
98, 606 S.E.2d 914, disc. review denied, 359 N.C. 412, 612 S.E.2d
. Defendant's reliance on these cases is misplaced
because in each of them, this Court and our Supreme Court held that
absent physical findings supporting a diagnosis of sexual abuse,
testimony opining that sexual abuse in fact occurred is
inadmissible. By contrast, in the present case, Dr. Kunkle
testified in detail about the abnormal physical findings she made
of G.H.'s genitalia, including stretching in the area of G.H.'s
hymen, which Dr. Kunkle stated could have resulted from penetration
by a penis, and lesions consistent with herpes. Dr. Kunkle
described her findings to the jury with the aid of a drawing
illustrating the abnormalities, and she based her opinion that G.H.
had sustained injuries consistent with sexual assault and had
suffered sexual abuse solely on the physical findings.
In State v. Goforth, 170 N.C. App. 584, 589, 614 S.E.2d 313,
316, cert. denied, 359 N.C. 854, 619 S.E.2d 854 (2005) (citation
omitted), we held that '[a]n expert medical witness may render anopinion pursuant to Rule 702 that sexual abuse has in fact occurred
if the State establishes a proper foundation, i.e., physical
evidence consistent with sexual abuse[,]' and allowed the doctor's
testimony there that the children in question had been sexually
abused. In the present case, Dr. Kunkle's testimony was based on
uncontradicted physical findings consistent with sexual abuse, and
thus, was admissible pursuant to Rule 702 of the North Carolina
Rules of Evidence.
Defendant also argues, however, that since no evidence was
offered to connect the herpetic lesions to him, evidence of the
existence of those lesions could not be considered to support Dr.
Kunkle's diagnosis of sexual abuse. Defendant's argument has no
merit. First, Dr. Kunkle acknowledged that she had no information
that Defendant had herpes. Nevertheless, she found lesions on
G.H.'s genital area which,
based on their advanced stage of
development and Dr. Kunkle's experience and expertise, she
concluded were herpetic in nature. As a properly qualified medical
expert, Dr. Kunkle was competent to testify to the findings she
made on physical examination of G.H. See State v. Shepherd, 156
N.C. App. 69, 575 S.E.2d 776 (2003). The mere fact that she could
not say the lesions came from Defendant because she had no
information that he had herpes does not prevent her from describing
the physical examination findings she made. Second, and more importantly, Defendant's argument ignores the
uncontested fact of the additional trauma Dr. Kunkle noted to
G.H.'s hymenal tissue, that is, the stretching of the hymen, which
Dr. Kunkle opined could have resulted from penetration by a penis.
We hold that the doctor properly was permitted to describe all the
physical findings she made that supported a diagnosis of sexual
abuse. It was then the function of the jury, based on all the
other evidence, to determine if the sexual abuse diagnosed by Dr.
Kunkle was caused by Defendant.
Defendant's assignments of error
relating to the admission of Dr. Kunkle's opinion testimony have no
merit and are overruled.
By his next assignment of error, Defendant argues that the
trial court erred by allowing Ms. Duffy, the school social worker,
to testify to statements which Felecia allegedly made to her
describing G.H.'s comments about the incident. Defendant contends
such testimony was hearsay unsupported by a proper foundation.
Again, we disagree.
Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. N.C. Gen. Stat. § 8C-1,
Rule 801(c) (2005). Hearsay evidence is inadmissible at trial
unless an exception to the hearsay rule applies. N.C. Gen. Stat.§ 8C-1, Rule 802 (2005). However, impeachment of a witness through
prior inconsistent statements is proper as long as the testimony is
for the purpose of impeachment only. State v. Stokes
, 357 N.C.
220, 581 S.E.2d 51
(2003) (holding that when a witness is
confronted with prior statements that are inconsistent with the
witness's testimony and the inconsistencies are material to the
issue at hand in the trial, the witness's testimony may be
contradicted by other testimony).
Here, the State called Felecia, who testified that she did not
see Defendant zipping up his pants as she entered the shed. She
also denied telling anyone that G.H. said Defendant 'stuck his
thing inside of [her].' The State then offered testimony from Ms.
Duffy that Felecia had told her she saw G.H. on the table in the
with her pants and panties down and Defendant zipping up his
pants. Ms. Duffy also testified that Felecia said she overheard
G.H. telling Shirley something about [Defendant] putting his pee-
pee in her. Defendant contends that this evidence was hearsay and
no foundation to support admission of a prior inconsistent
statement of Felecia was laid, making this evidence inadmissible.
In State v. Whitley
, 311 N.C. 656, 663, 319 S.E.2d 584, 589
(1984) (citation omitted
, our Supreme Court held that [w]hen the
witness's prior statement relates to material facts in the
witness's testimony, extrinsic evidence may be used to prove theprior inconsistent statement without calling the inconsistencies to
the attention of the witness. Material facts involve those matters
which are pertinent and material to the pending inquiry. It
cannot be seriously disputed that the statements in question here
relate to material facts in Felecia's testimony.
Therefore, it was
not error for the trial court to allow the testimony of Ms. Duffy.
In addition, the trial judge specifically instructed the jury as
Members of the jury, in regards to the
testimony you're hearing at this point, you
may consider this testimony for the purpose of
the value it may have in regard to impeaching
or corroborating the testimony of the prior
witness Felecia. You may not consider it for
any other purpose other than that.
This instruction appropriately limited the jury's consideration of
the challenged testimony to its sole purpose of impeaching
Felecia's testimony. See State v. Miller, 330 N.C. 56,
Accordingly, we likewise overrule this assignment of
Defendant next argues that the trial court erred by sustaining
the State's objections to certain testimony of Felecia when she was
recalled to the witness stand to testify on behalf of Defendant.
Specifically, Defendant challenges the trial court's determination
that the evidence being elicited by the defense was cumulative whendefense counsel asked Felecia whether Defendant was zipping up his
pants when she walked into the shed.
Decisions regarding the admission of evidence are addressed to
the sound discretion of the trial court and may be disturbed on
appeal only where an abuse of discretion is clearly shown. State
v. Fowler, 159 N.C. App. 504, 583 S.E.2d 637, disc. review denied,
357 N.C. 580, 589 S.E.2d 355 (2003). To prove an abuse of
discretion, Defendant must show that the trial court's decision was
so arbitrary that it could not have been the result of a reasoned
decision[.] State v. Nolen, 144 N.C. App. 172, 550 S.E.2d 783,
appeal dismissed and cert. denied, 354 N.C. 368, 557 S.E.2d 531
(2001). Defendant has failed to make such a showing here.
Defendant argues that the trial judge immediately cut defense
counsel off when he attempted to present Felecia as a defense
witness. He contends that even if Felecia had given substantially
the same testimony when the State called her, the trial judge's
decisions sustaining the State's objections to defense counsel's
direct examination of this witness showed the jury that he did not
have any patience for Felecia and that she was not to be believed.
This argument has no merit.
The trial court sustained the State's objections based on Rule
403 after defense counsel asked Felecia whether she saw Defendant
zipping up his pants and whether Defendant was doing anythingunusual when Felecia walked into the shed. Rule 403 provides that
[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. N.C. Gen. Stat. § 8C-1, Rule
403 (2005). Outside the presence of the jury, defense counsel
argued that he wanted to present evidence of what Defendant was
doing when Felecia went into the building. The trial judge pointed
out that defense counsel had examined [Felecia] previously. She
has testified that she did not see his pants unzipped, did not see
him adjust his shirt, and told the District Attorney that she did
not. . . . That is a summary of what previously had been testified
to by this witness. In view of the fact that the trial judge
correctly summarized the evidence previously elicited from Felecia,
the trial judge's decision to exclude the same evidence during
Defendant's case in chief is not manifestly unsupported by reason.
We have previously held that substantially similar testimony
at two different times during a trial constitutes cumulative
evidence and may be properly excluded. See State v. Burge, 100
N.C. App. 671,
397 S.E.2d 760 (1990), disc. review denied, 328 N.C.
400 S.E.2d 456 (1991)
; see also State v. Barton, 335 N.C. 696,
441 S.E.2d 295 (1994)
. Accordingly, we hold that it was not errorfor the trial judge to exclude this testimony. See N.C. Gen. Stat.
§ 8C-1, Rule 403 (2005). This assignment of error is overruled.
In his fifth assignment of error, Defendant argues that the
trial court erred by allowing the State to present rebuttal
evidence which Defendant characterizes as repetitive and
cumulative. After the defense
, the State called three
witnesses to contradict evidence presented by the defense. The
trial court overruled defense counsel's objections
to the testimony
of these witnesses because the evidence was properly presented for
impeachment purposes. See, e.g., State v. Westbrooks, 345 N.C. 43,
60, 478 S.E.2d 483, 493 (1996) (Discrediting a witness by proving,
through other evidence, that the facts were otherwise than [s]he
testified, is an obvious and customary process that needs little
comment). Moreover, control of rebuttal evidence is within the
discretion of the trial court. N.C. Gen. Stat. § 15A-1226 (2005).
Defendant has failed to prove, and we fail to perceive, that the
trial judge abused his discretion in allowing the rebuttal
witnesses. This assignment of error has no merit.
Defendant next assigns error to the trial court's denial of
his motions to dismiss, arguing that the evidence was insufficient
to submit either charge against him to the jury. We disagree. It is well settled that upon a motion to dismiss, the trial
court must determine whether there is substantial evidence, taken
in the light most favorable to the State, of each essential element
of the offense charged, or of a lesser offense included therein,
and of the defendant being the perpetrator of the offense. State
v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980).
Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. State v.
Smith, 300 N.C. 71,78-79, 265 S.E.2d 164, 169 (1980). The evidence
is considered in the light most favorable to the State, and the
State is entitled to every reasonable inference arising from it.
Powell, 299 N.C. at 99, 261 S.E.2d at 117. The trial court is
concerned only with the sufficiency of the evidence to go to the
jury, and not the weight to be accorded the evidence. State v.
Thaggard, 168 N.C. App. 263, 281, 608 S.E.2d 774, 786 (2005).
of the North Carolina General Statutes
establishes the following elements necessary to support a charge of
A person is guilty of rape in the first degree
if the person engages in vaginal intercourse:
(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. § 14-27.2(a)(1) (2002).
In the present case, theState presented substantial evidence through (1) the testimony of
G.H., eight years old at the time, that Defendant, sixty-two years
old at the time, engaged in intercourse by placing his penis in her
vagina; (2) the testimony of Dr. Kunkle, who was told by G.H. that
Defendant had placed his finger and penis inside her, causing pain;
(3) the testimony of Felecia, who saw G.H. inside the shed with her
pants and panties down; (4) the findings of Dr. Kunkle regarding
G.H.'s physical examination, which included injuries consistent
with stretching of the hymen by a penis; and (5) Dr. Kunkle's
opinion testimony based on those injuries, that G.H. had been
This evidence plainly satisfies the elements of section
necessary to support submission of the first-degree
rape charge to the jury
The elements necessary to support the charge of taking
indecent liberties with a child are found in section 14-202.1, as
(a) A person is guilty of taking indecent
liberties with children if, being 16 years of
age or more and at least five years older than
the child in question, he either:
(1) Willfully takes or attempts to take
any immoral, improper, or indecent
liberties with any child of either
sex under the age of 16 years for
the purpose of arousing or
gratifying sexual desire; or
(2) Willfully commits or attempts tocommit any lewd or lascivious act
upon or with the body or any part or
member of the body of any child of
either sex under the age of 16
N.C. Gen. Stat. § 14-202.1 (2002). Here, the State's evidence
established through the testimony of G.H. and Dr. Kunkle that
Defendant touched G.H.'s genital area with his hand and placed at
least one finger inside G.H.'s vagina. This was sufficient for the
trial court to properly deny Defendant's motion to dismiss the
charge of taking indecent liberties with a child. We hold that the
trial court did not err in denying Defendant's motions to dismiss
as to both charges.
By his seventh assignment of error, Defendant argues that the
trial court erred by including in its jury instructions the pattern
instruction on false and contradictory statements made by
. We find no merit in this argument.
The choice of jury instructions is a matter within the trial
court's discretion and will not be overturned absent a showing of
abuse of discretion. State v. Nicholson, 355 N.C. 1, 66, 558
S.E.2d 109, 152, cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71
(2002) (citations omitted)
. Here, the trial judge instructed the
jury from North Carolina Pattern Jury Instruction 105.21 as
follows: Members of the jury, the State contends and
the defense denies that the defendant made
false, contradictory, or conflicting
statements. If you find that the defendant
made such statements, they may be considered
by you as a circumstance tending to reflect
the mental process of a person possessed of a
guilty conscience seeking to divert suspicion
or to exculpate himself, and you should
consider that evidence along with all of the
other believable evidence in this case.
However, if you find that the defendant made
such statements, they do not create a
presumption of guilt, and such evidence
standing alone is not sufficient to establish
Our Supreme Court has noted that this instruction is proper not
only where the defendant's own statements contradict each other,
but also where the defendant's statements flatly contradict other
relevant evidence. State v. Walker, 332 N.C. 520, 538, 422 S.E.2d
716, 726 (1992), cert. denied, 508 U.S. 919, 124 L. Ed. 2d 271
(1993). The probative force of such evidence is that it tends to
show consciousness of guilt. State v. Myers, 309 N.C. 78, 86, 305
S.E.2d 506, 511 (1983). Here, the instruction was proper because
Defendant's testimony that he never saw G.H. with her pants down on
23 September 2002 conflicts with statements from Shirley Hodges
that Defendant told her G.H. suddenly appeared in front of him with
her pants down. It further conflicted with testimony from other
witnesses that Defendant told them G.H. had her pants and panties
down because she needed to use the bathroom and that she had herpanties down and asked him to give her a hug. We agree with the
State that these contradictory statements go to the heart of what
happened in the outbuilding on the day that G.H. alleged Defendant
raped her. The contradictions between Defendant's testimony and
the prior statements he made to his wife, law enforcement personnel
and social workers were probative not only on the issue of
Defendant's credibility, but also because they tended to show
consciousness of guilt, thus warranting the challenged instruction.
See, e.g., State v. Scercy, 159 N.C. App. 344, 583 S.E.2d 339,
disc. review denied, 357 N.C. 581, 589 S.E.2d 363 (2003). For
this reason, Defendant has failed to show that the trial court
abused its discretion in giving this instruction. Accordingly,
this assignment of error is overruled.
Lastly, Defendant argues that the trial court erred in trying
and sentencing him on two separate criminal counts when the
evidence tended to show at most only one act. This assignment of
error likewise has no merit.
Defendant was tried, found guilty and sentenced on charges of
first-degree rape and taking indecent liberties with a child. It
is settled that the charge of taking indecent liberties is not a
lesser-included offense of first-degree rape. State v. Swann, 322
N.C. 666, 678, 370 S.E.2d 533, 540 (1988). The elements of the twooffenses are not the same because first-degree rape requires
vaginal intercourse and taking indecent liberties does not. In
addition, committing an act for the purpose of arousing or
gratifying sexual desire is not an element of first-degree rape as
it is in taking indecent liberties. Further, in State v. Fletcher,
322 N.C. 415, 368 S.E.2d 633 (1988), our Supreme Court determined
it was not double jeopardy to punish the defendant for
convictions of rape, incest and taking indecent liberties with a
minor when all of the convictions were based on one incident.
In the present case, the evidence was sufficient for the jury
to determine that Defendant committed separate and distinct
criminal acts when he (1) touched G.H.'s genital area with his hand
and placed at least one finger inside G.H., thereby taking indecent
liberties; and (2) placed his penis inside her vagina, thus
committing first-degree rape. Therefore, Defendant was not placed
in double jeopardy by being convicted of both crimes. See also
State v. Rhodes, 321 N.C. 102, 106-07, 361 S.E.2d 578, 581 (1987)
(A person is not subject to double jeopardy by
being prosecuted for two separate crimes based on the same
transaction provided each offense for which he is tried requires
proof of a fact which the other offense does not). We thus
overrule this assignment of error.
For the foregoing reasons, we hold that Defendant received afair trial, free of any error.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
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