STATE OF NORTH CAROLINA
Wake County
v. Nos. 02 CRS 108496
02 CRS 108497
JOHN CHRISTOPHER SANDERS 02 CRS 108498
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).
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