An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 5 December 2006
STATE OF NORTH CAROLINA
WILLIAM D. BUHL 04CRS52422
Appeal by defendant from judgment entered 5 October 2005 by
Judge Ronald K. Payne in Transylvania County Superior Court. Heard
in the Court of Appeals 31 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Kimberly W. Duffley, for the State.
Glenn Gerding for defendant appellant.
Defendant appeals from a jury verdict of guilty of two counts
of statutory rape. We determine there was no error.
On 28 March 2005, William D. Buhl (defendant) was indicted
by a grand jury in Transylvania County for two counts of statutory
rape. The evidence presented at trial tended to show the following:
Defendant met Miss A., the alleged victim, over the Internet
in a chat room. After several conversations, defendant and Miss A.
began discussing sexual matters. According to defendant, Miss A.
suggested that they meet. Defendant lived in Knoxville, Tennessee,
and Miss A. lived in Brevard, North Carolina. Defendant met with Miss A. on several occasions in August and
September of 2004. In August 2004, defendant drove from Knoxville
to Brevard to see Miss A. Miss A. testified that there was no
physical contact on this trip. Defendant testified that after the
August meeting, he and Miss A. exchanged nude pictures of
themselves. On 3 September 2004, defendant traveled to Brevard
again. Defendant denied meeting with Miss A. on this trip, but
Miss A. testified that they had oral and vaginal intercourse. On
10 September 2004, defendant again traveled to Brevard. Defendant
testified that Miss A. told him she was a high school senior. Miss
A. testified that she told defendant she was 14 going on 15. Miss
A. testified that they had vaginal intercourse on 10 September
2004, but defendant denied that they had any kind of sexual
Sometime after 10 September 2004, defendant and Miss A.
discussed Miss A. moving to Tennessee. Miss A. traveled to
Knoxville with defendant. Once in Knoxville, Miss A. testified that
she had intercourse with defendant. Defendant testified that they
did not have any sexual contact. The day after Miss A. arrived in
Knoxville, Detective Gale Mackey of Brevard picked her up and took
her home. Sheriff's deputies returned to North Carolina with
defendant in custody on 14 October 2004.
Defendant was read his Miranda rights, and subsequently waived
them. Detective Mackey testified that defendant admitted knowing
Miss A. was 15 years old and that they had sexual intercourse atthe Imperial Motor Lodge on one occasion, which was 10 September
On 28 March 2005, defendant was indicted by a grand jury in
Transylvania County for two counts of statutory rape. On 4 October
2005, defendant filed a motion to continue on the basis that
defendant's counsel determined that 30 pages of discovery was
missing from the discovery documents provided by the State.
Defendant's motion was heard prior to the start of trial on 5
October 2005 and it was denied. On 4 October 2005, defendant filed
a motion to suppress defendant's statement made to investigators.
The trial court conducted a voir dire on the motion and denied the
motion to suppress. On 5 October 2005, the jury found defendant
guilty of two counts of statutory rape. Defendant received a
sentence of 240 to 297 months' imprisonment for each conviction.
At the outset, defendant included four assignments of error in
the record on appeal. Defendant briefed only two of the
assignments of error, and therefore the remaining assignments of
error are abandoned. N.C. R. App. P. 28(b)(6).
Defendant contends the trial court erred when it refused to
grant defendant a continuance to review discovery. We disagree.
Our review of a trial court's ruling on a motion for
continuance is well established: Ordinarily, a motion to continue is addressed
to the discretion of the trial court, and
absent a gross abuse of that discretion, the
trial court's ruling is not subject to review.
When a motion to continue raises a
constitutional issue, the trial court's ruling
is fully reviewable upon appeal. Even if the
motion raises a constitutional issue, a denial
of a motion to continue is grounds for a new
trial only when defendant shows both that the
denial was erroneous and that he suffered
prejudice as a result of the error.
State v. Jones, 172 N.C. App. 308, 311-12, 616 S.E.2d 15, 18 (2005)
(citations omitted). In order to establish a constitutional
violation, 'a defendant must show that he did not have ample time
to confer with counsel and to investigate, prepare and present his
defense.' State v. Williams, 355 N.C. 501, 540-41, 565 S.E.2d
609, 632 (2002) (citation omitted), cert. denied, 537 U.S. 1125,
154 L. Ed. 2d 808 (2003). 'To demonstrate that the time allowed
was inadequate, the defendant must show how his case would have
been better prepared had the continuance been granted or that he
was materially prejudiced by the denial of his motion.' Id.
In the instant case, we determine the trial court did not err
in denying defendant's motion for a continuance. Defendant's
attorney was appointed to represent defendant on 18 October 2004,
almost one year prior to trial. Defendant's counsel received
discovery documents from the State on 11 August 2005 which included
152 paginated pages. Defendant's counsel signed a statement that
said, if you find that your set of documents is missing any pages
listed, please let me know as soon as possible. Defendant'sattorney did not discover that he was missing 30 of the paginated
pages until the day before trial, 3 October 2005, almost two months
after receiving the discovery from the State. Therefore, we believe
defendant's attorney had ample opportunity to discover the missing
documents prior to trial, and we do not think defendant suffered
prejudice because of the trial court's decision.
Accordingly, we disagree with defendant's contention.
Defendant contends the trial court committed plain error when
it failed to sua sponte
reconsider defendant's motion to suppress.
Plain error is defined as 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) (citations omitted). To prevail on plain
error review, defendant must show the jury would have likely
reached a different result absent the alleged error. Id.
We conclude that defendant has not shown that a sua sponte
reconsideration of defendant's motion to suppress would likely have
resulted in a different verdict. First, no case law in defendant's
brief on appeal illustrates that a trial court is required to sua
revisit a motion to suppress when new information is
presented. Rather, the defendant has presented case law
illustrating that a trial court may revisit an issue and it may
conduct an evidentiary hearing sua sponte
. State v. Brewington
170 N.C. App. 264, 279-80, 612 S.E.2d 648, 658, disc. reviewdenied
, 360 N.C. 67, 621 S.E.2d 881 (2005); State v. McCall
N.C. App. 64, 68, 589 S.E.2d 896, 899 (2004). Further, defendant
states in his brief that [w]ithout [d]efendant's statement in
evidence this case was a swearing match. Miss A. testified that
she had intercourse with [d]efendant. Defendant testified that
they did not have intercourse. Therefore, it is not likely that
the jury would have reached a different result absent the alleged
error. Thus, defendant has not met his required burden, and we
disagree with his contention.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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