STATE OF NORTH CAROLINA
v
.
Vance County
Nos. 04 CRS 52601-2
EDWARD STEWART HINES
Attorney General Roy Cooper by Assistant Attorney General Amy
C. Kunstling for the State.
Brian Michael Aus for defendant appellant.
McCULLOUGH, Judge.
Defendant was charged with statutory rape of a person who is
13, 14, or 15 years old, second-degree sexual offense and indecent
liberties with a child. The jury found defendant guilty on all
charges and the trial court imposed a consolidated sentence of 350
to 429 months' imprisonment for the statutory rape conviction, a
concurrent sentence of 107 to 138 months' imprisonment for second-
degree sex offense conviction, and 20 to 24 months' imprisonment
for the conviction on the charge of indecent liberties with a child
to run at the expiration of the aforementioned sentence.
At defendant's trial the evidence tended to show that Edward
Hines (“defendant”), a man in his forties, was M.C.'s mother's
boyfriend. M.C., who was 13 years old at the time, and her motherwere living with defendant in a hotel on 14 May 2004. M.C.
testified that on 14 May she and defendant were alone in the hotel
room where she fell asleep. When M.C. awoke, defendant came over to
her bed, took her clothes off, touched her breasts and placed his
penis inside of her vagina. M.C. did not tell her mother about the
incident with defendant because she was afraid that her mother
would not like her.
After the incident M.C.'s relatives found her mother's journal
containing statements which indicated that defendant had touched
M.C. inappropriately. Once they found the journal, they questioned
M.C. about whether defendant was touching her, to which she
admitted. M.C.'s relatives then called the police and subsequently
took the child to the hospital.
Rhonda Hopkins, a forensic nurse, interviewed M.C. and
performed a physical examination on 18 May 2004. During the
interview, M.C. indicated through the use of anatomical drawings
that defendant had touched her breasts, placed his penis inside her
vagina, touched her vagina with his hand, and tried to lick her
vagina. Nurse Hopkins testified that, upon physical examination of
M.C., she determined that M.C.'s hymenal tissue was extensively
torn and eroded and further opined that the cause was a penetrating
trauma consistent with a penis entering her vagina.
Defendant made a motion to dismiss the charges for failure to
present sufficient evidence at the close of the State's case which
was denied by the trial judge. Defendant then rested his casewithout the presentation of any evidence on his behalf. The jury
found defendant guilty on all charges. Defendant appeals.
We now turn to the substance of defendant's appeal. Defendant
argues on appeal that the trial court erred in admitting into
evidence the diary of M.C.'s mother where the statements were
hearsay and admitted in violation of defendant's constitutional
rights under the Confrontation Clause. However, because defendant
failed to make this constitutional argument at trial, we will not
consider it on appeal. State v. Lloyd, 354 N.C. 76, 86-87, 552
S.E.2d 596, 607 (2001)(“Constitutional issues not raised and passed
upon at trial will not be considered for the first time on
appeal.”). This assignment of error is overruled.
Further, defendant contends that the trial court committed
plain error in permitting the jury to hear the contents of the
mother's diary where such contents were hearsay. We disagree.
The plain error rule provides that the Court may review
alleged errors affecting substantial rights even though defendant
failed to object to the admission of the evidence at trial. State
v. Cummings, 346 N.C. 291, 313, 488 S.E.2d 550, 563 (1997), cert.
denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998), cert. denied, 350
N.C. 839, 539 S.E.2d 299 (1999). Our Supreme Court has chosen to
review such issues when the appellant has alleged plain error in
the assignments of error “and when the issue involves either errors
in the trial judge's instructions to the jury or rulings on the
admissibility of evidence.” Id. at 314, 488 S.E.2d at 563. The rule
must be applied cautiously, however, and only in exceptional caseswhere, “'after reviewing the entire record, it can be said the
claimed error is a “fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done[.]”'” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,
378 (1983) (citation and emphasis omitted). Thus, the appellate
court must study the whole record to determine if the error had
such an impact on the guilt determination, therefore constituting
plain error. Id. at 661, 300 S.E.2d at 378-79.
At trial, the juvenile, M.C., testified as to the actions of
defendant on 14 May 2004. She testified that, while she and
defendant were at the hotel where she and her mother were residing
with defendant at the time, defendant pulled off her clothes,
touched her breasts and inserted his penis into her vagina. M.C.
further testified that she told her relatives about the incident
only after they found her mother's diary and inquired about
defendant and his actions. Nurse Hopkins, an expert and forensic
nurse, corroborated M.C.'s testimony by showing anatomical charts
filled out by M.C. indicating defendant's actions and further
testified that M.C. exhibited injuries to her hymen consistent with
the trauma of a penis entering her vagina.
Katina Ragland, M.C.'s aunt, testified at trial that she was
called home from work by her husband's sister one day on the
premise that an emergency had occurred. When she arrived at home
she learned a relative found the diary of M.C.'s mother and that in
the diary the mother stated “that [M.C.] had told her that
[defendant] had been touching her.” Upon cross-examination ofKatina Ragland, defense counsel elicited the following statements
from the diary of M.C.'s mother: “'I seen what you did to my baby
Sunday night[]'”; “if I caught you, you don't mess with my
daughter, you can forget about me[.]”; and “my baby said that you
touched her.”
Here the evidence against defendant is overwhelming. The
record is replete with evidence regarding defendant's sexual
touching of M.C., and it cannot be said that reference to excerpts
from the diary of the mother were so prejudicial as to deprive
defendant of a fair trial. Moreover, even if the evidence is
prejudicial, defendant may not complain of evidence elicited by him
on cross-examination. State v. Fletcher and State v. St. Arnold,
279 N.C. 85, 96, 181 S.E.2d 405, 413 (1971); State v. Burton, 256
N.C. 464, 464-65, 124 S.E.2d 108, 109 (1962). This assignment of
error is overruled.
Additionally, defendant argues that the trial court erred in
denying defendant's motion to dismiss the charge of second-degree
sexual offense where there was insufficient evidence to submit the
charge to the jury. We disagree.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434
(1997). “'Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.'”
Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C.
557, 564, 411 S.E.2d 592, 595 (1992)). “A person is guilty of a sexual offense in the second degree
if the person engages in a sexual act with another person: (1) [b]y
force and against the will of the other person[.]” N.C. Gen. Stat.
§ 14-27.5(a)(1)(2005). The term sexual act, as defined by statute,
means “cunnilingus, fellatio, analingus, or anal intercourse[.]”
N.C. Gen. Stat. § 14-27.1(4) (2005).
The testimony in the instant case tended to show that
defendant “tried to go below with his tongue and I wouldn't let
him[,]” “[h]e tried to lick my vagina[,]” and “he has attempted
oral sex on [me.]” Defendant contends that such evidence was not
sufficient to support a charge on second-degree sexual offense but
rather only supported a charge of attempted second-degree sexual
offense, and therefore, his conviction on the charge should be
reversed.
Taking the evidence in the light most favorable to the State,
the evidence is insufficient to support a conviction of second-
degree sexual offense. However, the evidence is sufficient to
support a conviction of the lesser-included offense of attempted
second-degree sexual offense. See N.C. Gen. Stat. § 15-170 (2005)
(“Upon the trial of any indictment the prisoner may be convicted of
the crime charged therein or of a less degree of the same crime, or
of an attempt to commit the crime so charged, or of an attempt to
commit a less degree of the same crime.”) “When a jury finds the
facts necessary to constitute one offense, it also inescapably
finds the facts necessary to constitute all lesser-included
offenses of that offense.” State v. Squires, 357 N.C. 529, 536, 591S.E.2d 837, 842 (2003), cert. denied, 541 U.S. 1088, 159 L. Ed. 2d
252 (2004). Since the evidence at trial was sufficient to prove an
attempted second-degree sexual offense, the charge for second-
degree sexual offense will not be vacated, but rather remanded for
judgment as upon a verdict of guilty of attempted second-degree
sexual offense. State v. Vance, 328 N.C. 613, 623, 403 S.E.2d 495,
502 (1991).
Lastly, defendant contends that the judgment and commitment
for statutory rape contains a clerical error requiring remand and
further requests this Court to review sealed records reviewed by
the trial court for evidence which may be favorable and material to
defendant. We find no merit in these contentions.
Defendant argues that a clerical error exists in the judgment
and commitment for statutory rape where the offense description is
listed as “STAT RAPE/SEX OFFN DEF > =6YR[.]” However, this
description is merely a recitation of the title placed on the
statute N.C. Gen. Stat. § 14-27.7A and therefore does not warrant
a clerical error nor further discussion by this Court.
Further, defendant requests the Court to review certain sealed
records reviewed by the court for information favorable and
material to him. However, it appears from the record, briefs and
exhibits before us that defendant failed to include or request the
inclusion of such sealed records on appeal for our review. We
cannot review documents which were not made part of the record on
appeal and are not before us.
Accordingly, we find no prejudicial error. Affirmed in part and remanded in part for judgment in
accordance with this opinion.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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