An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-91


Filed: 16 January 2007

                                    Wake County
        v.                            Nos. 02 CRS 108496
                                        02 CRS 108497
JOHN CHRISTOPHER SANDERS                        02 CRS 108498                                    

    Appeal by defendant from judgments entered 3 March 2005 by Judge Kenneth C. Titus in Wake County Superior Court. Heard in the Court of Appeals 11 October 2006.

    Attorney General Roy Cooper, by Assistant Attorney General David L. Elliot, for the State.

    Haral E. Carlin for defendant-appellant.

    CALABRIA, Judge.

    John Christopher Sanders (“defendant”) appeals from judgments entered upon a jury verdict finding him guilty of statutory rape and indecent liberties with a child (“indecent liberties”). We find no error.
    The State presented the following evidence: In November of 2002, Tikara Bynum (“Tikara”), the victim, a seventh grader at West Cary Middle School, lived with her aunt, Phyllis Bynum (“Ms. Bynum”). On 14 November 2002, at approximately 4:00 p.m., Tikara was walking to a relative's house, when she saw defendant standing inside the front door of her friend Tisha's apartment. Tikara originally met defendant at a friend's house and knew defendant by his nickname “J-Rock.” Defendant called Tikara's name and told herto “come here right quick.” He indicated that Tikara's friend Tisha was inside the apartment where defendant was standing and that Tisha wanted Tikara to come inside. When Tikara entered the apartment, defendant closed and locked the door behind her. Tikara did not see Tisha in the living room and asked defendant if Tisha was at home. Defendant responded that Tisha was not at home. Defendant grabbed Tikara by her arm, pulled her upstairs into Tisha's bedroom, threw her on the bed, and closed the door. As Tikara was lying on the bed, defendant held her arms down and leaned over her. When Tikara screamed, the defendant released her arms and said, “No, I can't do this.” Tikara got up and ran from the bedroom, but defendant ran after her, grabbed her by the arm, and pulled her into another bedroom. He threw Tikara onto the bed and removed her clothes. As defendant removed Tikara's clothes, he told her that if she told anyone he would kill her. After removing Tikara's clothes, defendant removed his clothes and proceeded to have sex with Tikara, despite her screams for help and pleads for him to stop. Defendant finally stopped when someone knocked on the front door. Defendant told Tikara to get up and put on her clothes. Again, defendant threatened Tikara by saying that he would kill her and that his brothers would do something worse to her if she told anyone.
    Tikara left Tisha's house and went to Ms. Bynum's house where she called her friend Tiffany. During their conversation, Tikara told Tiffany that defendant had raped her. Tiffany told her mother what happened to Tikara. Afterwards, Tiffany and her mother wentto Ms. Bynum's house and told Ms. Bynum what Tiffany said the defendant did to her. After Ms. Bynum called the police, Tikara was taken to the WakeMed Children's Emergency Room where a sexual assault kit was obtained and she received a pelvic examination. On 18 November 2002, defendant was arrested and charged with indecent liberties with a minor, statutory rape, and communicating threats.
     On 26 March 2004, defendant pled guilty to statutory rape and communicating threats. In exchange for defendant's guilty plea, the State dismissed the indecent liberties charge. Wake County Superior Court Judge Stafford G. Bullock (“Judge Bullock”) sentenced defendant to a minimum term of 204 months to a maximum term of 254 months in the North Carolina Department of Correction. Judge Bullock found as mitigating factors that defendant had accepted responsibility for his criminal conduct and that defendant had a support system in the community.
    Defendant made a motion to strike the plea agreement on 2 April 2004. Judge Bullock granted defendant's motion, set aside the judgment, and the case was set for trial. On 26 August 2004, a jury found defendant guilty of communicating threats, but was unable to reach a unanimous decision as to the charges of statutory rape and indecent liberties. For those two charges, a mistrial was declared and the case was reset for trial. On 4 March 2005, a jury returned a verdict finding defendant guilty of statutory rape and indecent liberties. Wake County Superior Court Judge Kenneth C. Titus (“Judge Titus”) determined defendant's prior record level was a Level IV and sentenced defendant to a minimum term of 384 monthsto a maximum term of 461 months in the North Carolina Department of Correction. Defendant was sentenced in the presumptive range since no findings were made as to mitigating or aggravating circumstances. Defendant appeals.
    We begin by noting defendant failed to give notice of appeal of the indecent liberties conviction. Rule 4(b) of the North Carolina Rules of Appellate Procedure states the requirements for giving notice of appeal in criminal cases: “The notice of appeal . . . shall designate the judgment or order from which appeal is taken . . . .” N.C. R. App. P. 4(b)(2005). Although defendant did not include the indecent liberties conviction in his notice of appeal, we will treat defendant's appeal as a petition for writ of certiorari and grant that petition. See N.C. R. App. P. 21 (2005); State v. Jarman, 140 N.C. App. 198, 201, 535 S.E.2d 875, 878 (2000).
    Defendant assigns error and contends the trial judge invaded the province of the jury by informing the prospective jurors that the victim was fourteen-years-old at the time of the alleged incident. This especially troubled defendant because the age of the victim is an essential element of both the statutory rape and the indecent liberties charges and defendant believes he was prejudiced by the judge's statement. We disagree.
    Section 15A-1222 of the North Carolina General Statutes provides: “The judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.” N.C. Gen. Stat. § 15A-1222 (2005). Todetermine whether a judge's comments are impermissible statements of opinion, we utilize a totality of the circumstances test. State v. Anthony, 354 N.C. 372, 402, 555 S.E.2d 557, 578 (2001). Additionally, “a defendant claiming that he was deprived of a fair trial by the judge's remarks has the burden of showing prejudice in order to receive a new trial.” State v. Henderson, 155 N.C. App. 719, 722, 574 S.E.2d 700, 703 (2003) (internal citations omitted). “Whether the accused was deprived of a fair trial by the challenged remarks must be determined by what is said and its probable effect upon the jury in light of all attendant circumstances.” State v. Burke, 342 N.C. 113, 122-23, 463 S.E.2d 212, 218 (1995).
    In the case before us, Judge Titus informed the prospective jurors of the case and included the following statement:
        The defendant has been charged in Case Number 02 CRS 108496 with the offense of indecent liberties with a minor, and in 02 CRS 108497 with the offense of statutory rape. The offense is alleged to have occurred on or about November the 14th of 2002. The alleged victim in the case is Tikara Bynum, who is seated in front of you, who is -- who was at the time the age of 14. The defendant has tendered a plea of not guilty.

Although Judge Titus included a statement in the overview of the case that Tikara was fourteen-years-old at the time of the incident, other evidence was presented during trial regarding Tikara's age. Tikara herself testified that she was fourteen- years_old at the time of the incident. Tikara also testified that the incident occurred on 14 November 2002, more than two years prior to the trial, and that she was sixteen-years-old at the time of the trial. Further, there was no evidence offered to contradictTikara's testimony regarding her age at the time of the incident or at the time of the trial. On the contrary, testimony regarding the name of the school Tikara attended and her grade in school at the time of the incident supported her testimony regarding her age. Given the totality of the circumstances, we believe the probable effect of Judge Titus' statement, especially because the statement was made prior to selecting the jury members, did not deprive defendant of a fair trial and therefore did not prejudice defendant. Defendant has not met his burden of showing prejudice and this assignment of error is overruled.
    Defendant next contends Judge Titus erred by penalizing him for withdrawing his guilty plea and exercising his right to trial. Defendant argues the comments made by Judge Titus during sentencing indicated that he considered the fact that defendant exercised his constitutional right to trial. We disagree.
    “A sentence within the statutory limit will be presumed regular and valid.” State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). “Where the record, however, reveals the trial court considered an improper matter in determining the severity of the sentence, the presumption of regularity is overcome.” State v. Peterson, 154 N.C. App. 515, 517, 571 S.E.2d 883, 885 (2002). “Where it can reasonably be inferred from the language of the trial judge that the sentence was imposed at least in part because defendant . . . insisted on a trial by jury, defendant's constitutional right to trial by jury has been abridged, and a new sentencing hearing must result.” State v. Cannon, 326 N.C. 37, 39,387 S.E.2d 450, 451 (1990). “When the validity of a judgment is challenged, the burden is on the defendant to show error amounting to a denial of some substantial right.” State v. Bright, 301 N.C. 243, 261, 271 S.E.2d 368, 379-80 (1980).
    Judge Titus made the following statements during sentencing:
        THE COURT: _- and yet you insisted on a trial in which I think the jury had little difficulty with the evidence in the case determining that there was sexual intercourse. . . . So what you were banking on was the jury not following the Court's instructions and not following the law. That is a huge roll of the dice. Huge. And it didn't turn out in your favor to do that. What I have to consider in the sentence is you put her through it again. Again. So to enter a sentence in the mitigated range would be a slap in her face and I'm not doing that.

We believe these statements do not rise to the level that our Courts have held to be impermissible.
    Defendant argues the statements made by Judge Titus in the case sub judice are similar to the statements made by the trial judge in Peterson. In Peterson, the trial judge specifically stated his intent when he sentenced the defendant by his words “you will never walk in this society again as a free man because your crimes were deplorable and you're going to get that type of sentence.” 154 N.C. App. at 516, 571 S.E.2d at 884. In Peterson, this Court, considered the statement made by the trial judge, as well as other statements made during the sentencing hearing, and concluded that the defendant's sentence was imposed in part because he exercised his right to a jury trial. Id. at 518, 571 S.E.2d at 885.     However, Peterson is distinguishable from the case before us. Here, Judge Titus' comments did not indicate that defendant's sentence was imposed because he exercised his right to trial. Rather, defendant was sentenced in the presumptive range and not the mitigated range because the mitigating factor that was previously found when defendant was sentenced pursuant to the plea agreement no longer existed. No other mitigating factors were present that would warrant defendant receiving a mitigated sentence. Further, defendant's prior record level changed between the withdrawn guilty plea and the subsequent trial. “[W]e cannot, under the facts of this case, say that defendant was prejudiced or that defendant was more severely punished because he exercised his constitutional right to trial by jury.” State v. Gantt, 161 N.C. App. 265, 272, 588 S.E.2d 893, 898 (2003) (internal quotations omitted). Therefore, defendant has not met his burden of showing that his sentence was imposed because he exercised his right to trial and this assignment of error is overruled.
     Defendant next argues the trial court erred in denying his motion to dismiss for insufficient evidence the charges of statutory rape and indecent liberties . Defendant claims the only evidence presented at trial regarding his age at the time of the incident, an essential element of both charges, was inadmissible hearsay . We disagree.
    The only evidence the State presented regarding defendant's age was the testimony of Deputy Brian Hanson (“Deputy Hanson”) , the arresting officer . Deputy Hanson testified that, upon arrestingdefendant, he obtained defendant's North Carolina identification card (“ID card”) and, included along with other information on the card, obtained the defendant's date of birth. Defendant argues that because no evidence was presented as to the ID card's origins or authenticity, Deputy Hanson's testimony reporting the information contained on the card was hearsay.
    Hearsay is defined as “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). “A 'statement' may be a written or oral assertion . . . .” State v. Sibley, 140 N.C. App. 584, 587, 537 S.E.2d 835, 838 (2000). “Hearsay is not admissible except as provided by statute or by these rules.” N.C. Gen. Stat. . 8c-1, Rule 802 (2005). One such exception covers admissions by a party opponent. “A statement is admissible as an exception to the hearsay rule if it is offered against a party and it is (A) his own statement, in either his individual or a representative capacity . . . .” N.C. Gen. Stat. . 8c-1, Rule 801(d) (2005).
    In State v. Clark, this Court held that a police officer's testimony as to defendant's oral statement of his date of birth is admissible under the admission of a party opponent exception to hearsay. Clark, 161 N.C. App. 316, 320, 588 S.E.2d 66, 68 (2003) (defendant orally divulged his date of birth to the officer during an interview).   (See footnote 1)  Defendant argues that the case sub judice isdistinct from this case because defendant's information came from an ID card and not directly from the defendant, which presumably means not in his own voice or handwriting. This is a distinction without merit.
    To obtain a North Carolina identification card, an individual must provide proof of address, age, identity, and social security number. See NCDOT Division of Motor Vehicles Driver's Handbook, Chapter 1. In essence, therefore, the ID card is essentially a formalization of the individual's own assertion of his identity, including his date of birth. Defendant himself provided all the information to create the ID card, and defendant himself gave the card to Deputy Hanson. To conclude that Deputy Hanson's testimony as to the date stated on defendant's ID card is inadmissible hearsay is tantamount to concluding that, had the defendant in Clark written his date of birth on a piece of paper and handed it to the officer instead of orally conveying the information, the officer's testimony as to that information would be inadmissible hearsay, as defendant argues. Such distinction is not logical.
    Because the information regarding defendant's date of birth obtained from his ID card was defendant's own statement and was offered at trial against him, the statement was an admission of a party opponent and an exception to the hearsay rule. Thus, we hold that Deputy Hanson's testimony as to defendant's age was properly admitted. As such, the State did not fail to prove all of theelements of the crimes of statutory rape and indecent liberties, and we affirm the trial court's denial of the motion to dismiss.
    In conclusion, defendant was not prejudiced by Judge Titus' statement to the prospective jurors regarding the victim's age; Judge Titus' comments during the sentencing hearing did not indicate that defendant's sentence was imposed because he exercised his right to trial by jury; the evidence of defendant's age was not inadmissible hearsay but was an admission by a party opponent; the State presented sufficient evidence for each element of the crimes charged. For the foregoing reasons, we find no error.
    No error.
    Judges HUNTER and HUDSON concur.
    The judges participated in this decision and submitted it for filing prior to 1 January 2007.
    Report per Rule 30(e).

Footnote: 1
     In State v. Banks, 322 N.C. 753, 370 S.E.2d 398 (1988), the Court held admissible similar testimony (the defendant orally divulged his birth date to the officer during booking), but considered only whether the testimony was in violation of Miranda, not whether it constituted hearsay.

*** Converted from WordPerfect ***