Link to original WordPerfect file
Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ERNEST LEE JUNIOR PETTIS
Filed: 18 September 2007
1. Rape; Sexual Offenses_sexual battery_not a lesser included offense of rape
The offense of sexual battery under N.C.G.S. § 14-27.5A(a)(2) is not a lesser included
offense of second-degree rape under N.C.G.S. § 14-27.3(a)(2). Sexual battery has a purpose
element that requires the act to be completed for sexual arousal, gratification, or abuse, which is
not an element of second-degree rape.
2. Rape; Assault_assault on a female--not a lesser included offense of statutory rape
The trial court did not err by denying defendant's requested instruction on the offense of
assault on a female as a lesser included offense of statutory rape. The crime of assault on a
female requires proof of an assault, whereas statutory rape does not. Assault on a female requires
proof that defendant is male, which is not required by statutory rape.
3. Appeal and Error_preservation of issues-- no objection at trial_no assignment of
error in brief
Defendant did not preserve for appeal the question of whether the trial court erred by
admitting testimony about a DNA examination and report by a nontestifying SBI agent.
Defendant not only did not object to the jury receiving the report during deliberations, he
consented, and further, did not assign error in his brief.
4. Constitutional Law_Confrontation Clause--testimony about DNA analysis_opinion
based on tests by others
Defendant's Confrontation Clause rights were not violated when one SBI agent testified
about a DNA analysis performed by another agent. It is well established that there is no violation
when an expert bases an opinion on tests performed by others and defendant has the opportunity
to cross-examine the testifying the expert about the basis of his or her opinion. Although the
agent was not formally tendered as an expert witness, he can still testify as an expert.
5. Evidence_statutory rape_defendant's age_booking statement-other testimony
Any error was harmless where the defendant's pre-Miranda warning booking statement
about his age was admitted in a statutory rape prosecution. There was other testimony about
defendant's age from his mother.
6. Criminal Law_instructions_unanimity_no error
The trial court's instructions on unanimity in a statutory rape prosecution were not
Appeal by defendant from judgment entered 28 February 2006 by
Judge Nathaniel J. Poovey in Cleveland County Superior Court.
Heard in the Court of Appeals 20 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for
Defendant appeals a judgment entered after a jury verdict of
guilty of two counts of statutory rape, one count of second-degree
rape and one count of taking indecent liberties with a child. We
determine there was no prejudicial error.
Ernest Lee Junior Pettis (defendant) was indicted for two
counts of statutory rape, one count of second-degree rape, and one
count of taking indecent liberties with a child. The State
presented evidence at trial which tended to show the following:
A.W. was born on 1 June 1990. In December 2003, she was
living at the Above and Beyond group home in Kings Mountain. Above
and Beyond is a Level III facility that provides twenty-four-hour
In December 2003, A.W. ran away from the group home and
encountered defendant. Defendant told her to follow him, which she
did. They went into the woods. After they had been talking in the
woods for awhile, a man named Flinto picked up A.W. and defendant
and took them to his house. At Flinto's house, A.W. had sex with
Flinto because defendant told her that in order to stay at Flinto's
house, A.W. had to have sex with Flinto.
From Flinto's house, A.W. and defendant went to Nancy
Gladden's house, where they stayed for a couple of days. A.W. tolddefendant she was in the custody of DSS. She also told him she was
fifteen or sixteen. A.W. testified that defendant told her he had
a child her age. She also testified that defendant told her he was
twenty-something. A.W. and defendant had sex at Ms. Gladdens'
house. A.W. estimated that she and defendant had sex there four to
ten times. Defendant did not wear a condom. The police located
A.W. at Ms. Gladden's home. Defendant, who hid in the basement,
had told A.W. not to mention anything about him.
When the police returned A.W. to the group home, A.W. said she
had been raped. A.W. testified at trial that she had sex with
defendant because she wanted to, and defendant did not force her to
have sex with him.
A.W. was taken to the Kings Mountain Hospital's emergency room
for a rape kit exam. Nurse Audrey Baker examined A.W. A.W. told
Nurse Baker she had run away from the group home and met a person
she did not know. A.W. said she was taken to one place in Bessemer
City and raped and then taken to another place in Kings Mountain
and raped repeatedly over several days. Nurse Baker observed that
A.W. had a brownish-yellowish bruise on her left breast. A.W.'s
genital, vaginal, and rectal exam results were normal.
Hope Dorsey worked at the group home the night A.W. ran away.
Ms. Dorsey testified that when she last saw A.W., A.W. was wearing
gray jogging pants, a jacket, and shoes. A.W. was wearing a
different outfit when the police brought her back to the group
home. Kings Mountain police officers went to Nancy Gladden's house.
Ms. Gladden consented to a search of the house. Captain Derek
Johnson found a pair of gray jogging pants in the washing machine.There was no water in the washing machine, and the pants were not
wet. Ms. Dorsey recognized the pants as being the pair A.W. was
wearing when Ms. Dorsey last saw her before A.W. ran away. The
gray pants were sent to the SBI lab for testing. Special Agent Jed
Taub, who was received without objection as an expert in forensic
serology, forensic DNA analysis, and forensic biology, testified
that he found spermatozoa and semen and epithelial cells on the
crotch of the pants. This was consistent with being vaginal
drainage of a mixture of vaginal fluid and spermatozoa and semen.
The predominant DNA profile obtained from the cutting from the
crotch of the pants matched defendant's DNA profile.
A.W. identified defendant from a photo array, and
subsequently, defendant was arrested. As part of the booking
process, defendant told the arresting officer that his date of
birth was 1 February 1969 and he was thirty-four years old.
William Boyd, who was born on 21 January 1959, testified that
he goes by the name Flinto. Mr. Boyd said he had never seen A.W.
prior to court, and he denied having sex with her. Mr. Boyd
testified that defendant might have brought a young lady over to
the house. He said defendant and the girl were at his house for
a few hours and were hugging. He said he then drove them to Monroe
The jury found defendant guilty of two counts of statutory
rape, one count of second-degree rape, and one count of taking
indecent liberties with a child. Defendant appeals.
 Defendant contends the trial court erred in denying his
requested instruction on the offense of sexual battery because
sexual battery is a lesser included offense of second-degree rape.
The North Carolina Supreme Court has defined what a lesser
included offense is as follows:
accorded the crimes
determine whether one offense is a lesser
included offense of another crime. In other
words, all of the essential elements of the
lesser crime must also be essential elements
included in the greater crime. If the lesser
crime has an essential element which is not
completely covered by the greater crime, it is
not a lesser included offense.
State v. Weaver
, 306 N.C. 629, 635, 295 S.E.2d 375, 378-79 (1982)
(citation omitted), overruled in part on other grounds by State v.
, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993).
We determine the offense of sexual battery under N.C. Gen.
Stat. § 14-27.5A(a)(2) (2005), is not a lesser included offense of
second-degree rape under N.C. Gen. Stat. § 14-27.3(a)(2) (2005).
Second-degree rape under N.C. Gen. Stat. § 14-27.3(a)(2) provides:
(a) A person is guilty of rape in the
second degree if the person engages in vaginal
intercourse with another person:
. . . .
(2) Who is mentally disabled, mentally
incapacitated, or physically helpless, and the
person performing the act knows or should
reasonably know the other person is mentally
disabled, mentally incapacitated, or
Id. The sexual battery statute provides, in pertinent part:
(a) A person is guilty of sexual battery
if the person, for the purpose of sexual
arousal, sexual gratification, or sexualabuse, engages in sexual contact with another
. . . .
(2) Who is mentally disabled, mentally
incapacitated, or physically helpless,
and the person performing the act knows
or should reasonably know that the other
person is mentally disabled, mentally
incapacitated, or physically helpless.
N.C. Gen. Stat. § 14-27.5A(a)(2) (2005). Therefore, the offense of
sexual battery under N.C. Gen. Stat. § 14-27.5A(a)(2) has a purpose
element, requiring the act be completed for the purpose of sexual
arousal, sexual gratification, or sexual abuse that is not an
element of second-degree rape under N.C. Gen. Stat. § 14-
27.3(a)(2). Accordingly, sexual battery under N.C. Gen. Stat.
§ 14-27.5A(a)(2) is not a lesser included offense of second-degree
rape under N.C. Gen. Stat. § 14-27.3(a)(2) and we disagree with
 Defendant contends the trial court erred in denying his
requested instruction on the offense of assault on a female because
assault on a female is a lesser included offense of statutory rape.
As explained above, [i]f the lesser crime has an essential
element which is not completely covered by the greater crime, it is
not a lesser included offense. Weaver, 306 N.C. at 635, 295
S.E.2d at 379. The crime of assault on a female under N.C. Gen.
Stat. § 14-33(c)(2) (2005) has essential elements that are not
covered by the crime of statutory rape under N.C. Gen. Stat. § 14-
27.7A(a) (2005). First, the crime of assault on a female requiresproof of an assault, N.C. Gen. Stat. § 14-33(c)(2), whereas
statutory rape does not require proof of an assault. N.C. Gen.
Stat. § 14-27.7A(a). Second, the crime of assault on a female
requires proof that the defendant is a male, N.C. Gen. Stat. § 14-
33(c)(2), which the crime of statutory rape does not require. N.C.
Gen. Stat. § 14-27.7A(a). Accordingly, we disagree with defendant.
 Defendant contends the trial court erred by admitting the
testimony of an SBI agent regarding the DNA examination and report
of a non-testifying SBI agent in violation of defendant's
constitutional right to confrontation and the rules of evidence.
With regard to the DNA report, defense counsel was afforded
the opportunity to formally object to the jury receiving the report
during deliberations. The trial court asked defendant's counsel
whether he wished to be heard on the matter. Not only did defense
counsel fail to object to the jury receiving this document, he
consented. The following exchange occurred:
[DEFENSE COUNSEL]: I don't know if they
just want the specific DNA report o[r] if they
want the other laboratory report. I would
continue [sic] to the Court to send them both
THE COURT: Do ya'll have any objections
to sending all the exhibits back?
[PROSECUTOR]: No, Sir.
. . . .
[DEFENSE COUNSEL]: I don't have any objection.
If [the prosecutor] and I could just go
through those documents, just very quickly
make sure that we think everything is in there
that is a document.
Defense counsel failed to object and his argument has not been
preserved on appeal. N.C. R. App. P. 10(b)(1) (2007). Further,
defense counsel did not assign error in his appellate brief to the
jury receiving the DNA report during deliberations. N.C. R. App.
P. 10(a). This assignment of error is dismissed.
 At trial, SBI Agent David Freeman testified about a DNA
analysis that was performed by Agent Jenny Elwell on a cutting
taken from the gray pants recovered from Ms. Gladden's house.
Agent Elwell did not testify at trial because she was in Seattle,
Washington, attending a conference. Agent Freeman's opinion was
based on Agent Elwell's report and notes. Defendant objected at
trial to Agent Freeman's testimony citing Crawford v. Washington,
541 U.S. 36, 158 L. Ed. 2d 177 (2004). Defendant stated that the
testimony violated his Sixth Amendment Confrontation Clause rights,
as well as N.C. Gen. Stat. § 8C-1, Rules 702 and 703. The trial
court overruled defendant's objection. On appeal, defendant
contends that Agent Freeman's testimony violated his Confrontation
Clause rights and was inadmissible hearsay.
We determine defendant's Confrontation Clause rights were not
violated. [I]t is well established [that there is no violation of
a defendant's right of confrontation under the rationale of
Crawford when] an expert . . . base[s] an opinion on tests
performed by others in the field and [d]efendant was given an
opportunity to cross-examine [the testifying expert] on the basis
of his opinion[.] State v. Delaney, 171 N.C. App. 141, 144, 613
S.E.2d 699, 701 (2005). Although the State did not formally tender
Agent Freeman as an expert witness, he can still testify as anexpert. See State v. White, 340 N.C. 264, 293-94, 457 S.E.2d 841,
858 (While the better practice may be to make a formal tender of
a witness as an expert, such a tender is not required.), cert.
denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995). Accordingly, we
disagree with defendant.
 Defendant contends the trial court erred in overruling his
objection to his statement about his age made during a custodial
interrogation without the benefit of Miranda warnings, in violation
of his constitutional right to be free from self-incrimination. We
At the time of defendant's arrest, Officer K.L. Putnam of the
Kings Mountain Police Department asked defendant questions,
including what defendant's date of birth was, as part of the
booking process. Defendant objected at trial to allowing Officer
Putnam to testify what defendant said his date of birth was,
arguing that the statement was obtained in violation of his Miranda
rights and should therefore be suppressed. The trial court
overruled this objection and denied the motion to suppress. On
appeal, defendant challenges this ruling.
After reviewing the record and transcript, we determine that
any error by the trial court was harmless beyond a reasonable
doubt. N.C. Gen. Stat. § 15A-1443(b) (2005). Defendant's mother
testified at trial that she gave birth to defendant on 1 February
1969. Therefore, even if Officer Putnam's testimony was completely
disregarded, there was other evidence of defendant's date of birth.
Accordingly, we disagree with defendant.
 Defendant contends the trial court's jury instructions
failed to ensure that the jury's verdicts were unanimous. We
In determining whether a defendant has been unanimously
convicted by a jury, our courts have looked at many factors
including: (1) whether defendant raised an objection at trial
regarding unanimity; (2) whether the jury was instructed on all
issues, including unanimity; (3) whether separate verdict sheets
were submitted to the jury for each charge; (4) the length of time
the jury deliberated and reached a decision on all counts submitted
to it; (5) whether the record reflected any confusion or questions
as to jurors' duty in the trial; and (6) whether, if polled, each
juror individually affirmed that he or she had found defendant
guilty in each individual case file number. See State v. Lawrence
360 N.C. 368, 376, 627 S.E.2d 609, 613 (2006).
Here, we determine there was no problem with the unanimity of
the jury's verdicts. The jury was instructed on all the issues,
including unanimity. The trial court states that the jury's
verdicts must be unanimous by stating, You may not return a
verdict until all 12 jurors agree unanimously. Separate verdict
sheets were submitted for each charge. In addition, two verdict
sheets were used for the two statutory rape charges and were
differentiated by the date of the alleged offense. Further, the
record does not reflect that the jury was confused. Accordingly,
we disagree with defendant.
No prejudicial error. Chief Judge MARTIN and Judge TYSON concur.
*** Converted from WordPerfect ***