STATE OF NORTH CAROLINA
Nos. 02 CRS 56601 & 56602
RODNEY SANTONIO HOPPER, JR.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth J. Weese, for the State.
Michael E. Casterline for Defendant.
Rodney Santonio Hopper, Jr. (Defendant) was convicted of
attempted second degree sexual offense and of taking indecent
liberties with a child. The trial court sentenced Defendant to a
minimum of 103 months and a maximum of 133 months in prison on the
attempted second degree sexual offense charge, and a minimum of 21
months and a maximum of 26 months in prison on the indecent
liberties with a child charge. Defendant appeals.
Defendant filed a request for voluntary discovery and motion for discovery on 30 December 2002, in which Defendant requested "any relevant written or recorded statements made by . . . Defendant, or copies thereof[.]" Defendant also "specifically request[ed] that, in addition to any transcribed statements byDefendant, a copy of Defendant's tape recorded statement be produced [and] that counsel for Defendant be allowed to listen to the same and copy the same." The State responded on 4 April 2003 by providing Defendant with twenty pages of discovery, and a certificate acknowledging the State's continuing duty of disclosure. The materials provided by the State did not include a copy of a videotaped statement given to the police by Defendant, or a transcript of that statement.
The morning Defendant's trial was scheduled to begin, Defendant filed a motion requesting the trial court to: (1) sanction the State for failing to comply with Defendant's discovery request; (2) suppress any and all statements made by Defendant to the police; (3) conduct a hearing and order the State to provide Defendant all materials requested; and (4) continue the trial to allow Defendant time to review the materials. Prior to the start of jury selection, the trial court heard Defendant's motion. Defense counsel contended that he was unaware of the existence of the videotaped statement given by Defendant until ten days before trial, and knowledge of the videotaped statement would have altered his trial preparation, and Defendant's decision about whether to accept a plea offered by the State.
Elizabeth Lari (Lari), the assistant district attorney trying the case, stated that she sent a facsimile to defense counsel on 24 May 2004, after the case was transferred to her. The facsimile noted the April 2003 discovery provided by the prior assistant district attorney, and included the following statement: "Pleasecome by my office and make sure you have everything you need for this case which is set for trial in August, as I recall." Lari stated that she received no response from defense counsel until Friday, 30 July 2004, when defense counsel came to her office and reviewed the State's file. Defense counsel marked which documents he wanted for his file, and Lari provided the requested copies on Monday, 2 August 2004. Defense counsel requested a copy of the videotaped statement on 6 August 2004, at which time Lari referred defense counsel to the Shelby Police Department. Defendant's trial was scheduled to begin on 9 August 2004. The parties also disputed whether Defendant had received a copy of the report of the investigating officer. Defense counsel denied receiving the report in the documents provided by the State in April 2003, while the State maintained the report was included in the documents given to Defendant in April 2003.
After hearing arguments from both parties and reviewing the videotaped statement, the trial court concluded that the State did respond to Defendant's request for discovery. The trial court also concluded that Defendant had failed to carry his burden that the discovery provided was not timely or sufficient. Accordingly, the trial court denied Defendant's motion and the case proceeded to trial.
T.I., fifteen years old at the time of the incident, testified for the State that she was living in a small group home in Shelby on 15 August 2002. T.I. testified that Lisa Harper (Harper), an adult who worked at the group home, took T.I. and three other minorfemale residents of the home shopping for school supplies on 15 August 2002. After buying the school supplies, Harper drove the girls through a nearby neighborhood. Harper dropped the girls off on Logan Street, where several young men were standing, because T.I. said she knew one of the men. All four girls got out of Harper's car and walked to the porch of a house. Defendant got into Harper's car, and the two drove away, leaving the four girls on the porch of the house.
T.I. testified that Harper returned between ten and fifteen minutes later, and Defendant got out of Harper's car. The girls walked to the driver's side window of Harper's car, and Defendant walked to the porch. Defendant then yelled to T.I. to come back to the porch, and she did. One of the other girls, J.L., went with her. Defendant invited T.I. inside, and a woman inside the house began yelling at Defendant and T.I. Defendant suggested that he and T.I. walk down the street.
Defendant and T.I. walked "two houses down" to a two-story gray house, in sight of Harper's car. Defendant told T.I. to wait on the porch while he went inside to talk to his cousin. When Defendant returned to the porch, he grabbed T.I. by her arms and dragged her into the house and up a flight of stairs. Defendant pulled T.I. into a bedroom at the top of the stairs. T.I. testified that another man, later identified as Christopher Tate (Tate), entered the room a few seconds later and turned off the light. Someone unbuttoned and pulled down her pants and underwear, and then threw her on the bed. Defendant forced T.I. to open hermouth and put his penis in her mouth. At the same time, Tate inserted his penis into her anus. T.I. stated that Defendant "started to stick his penis in my vagina" but was interrupted when someone knocked on the bedroom door. Defendant and Tate ran out of the room and T.I. got dressed and left the house.
T.I. testified that when she left the house, Harper's car was outside. J.L. asked T.I. what was wrong, and T.I. told her she had been raped. Harper drove the girls back to the group home. The girls and Harper decided not to report the incident for fear that Harper would lose her job. After returning to the group home, Harper and the girls left again and returned to Logan Street to "fight" Defendant and Tate, but were unable to locate them. On the way back to the group home, Harper was involved in an automobile collision. The police officer who responded to the accident testified that he drove Harper and the girls back to the group home, but no one mentioned to him what had occurred on Logan Street.
The next morning, T.I.'s social worker brought T.I. to the hospital and T.I. spoke with officers from the Shelby Police Department. A nurse from the hospital testified that she performed a rape kit on T.I. The results of the rape kit did not reveal any physical trauma to T.I.'s body. T.I. took the officers to the two- story gray house after leaving the hospital.
Jerome Moses (Moses) testified that he resided on Logan Street. Moses said Defendant came to Moses' house on 15 August 2002 and asked if Defendant could use Moses' room. After Defendantasked two or three times, Moses agreed. Defendant told Moses he "had a friend he wanted to bring up." When Defendant returned a minute later, Moses said Defendant had a girl with him and that the two walked up the stairs together. Tate arrived and asked where Defendant was. Moses told Tate Defendant was upstairs and Tate went up the stairs. No more than fifteen or twenty minutes later, an individual came to Moses' door asking for a person Moses assumed to be T.I. Moses went upstairs, knocked on the door and said there was someone looking for the girl and she needed to come downstairs.
Detective Carl Duncan (Detective Duncan), with the Shelby Police Department, testified that he interviewed Defendant on 16 August 2002, and that the interview was recorded. Detective Marty Lee Thomas (Detective Thomas), also with the Shelby Police Department, testified that he and another investigator arrived at the emergency room on 16 August 2002 in response to a report of a sexual assault. Detective Thomas took a statement from T.I. After T.I. was released from the hospital, T.I. took Detective Thomas to Logan Street and pointed out the gray house. Detective Thomas testified that he took a statement from Defendant and that the statement was recorded. Over Defendant's objection, the videotape of Defendant was played for the jury.
At the close of the State's evidence, Defendant moved to dismiss each of the charges against him, which the trial court denied. Defendant did not present any evidence. Defendant renewed his motions to dismiss at the close of all the evidence.
At the charge conference, the State requested an instructionon the lesser included offense of attempted second degree sexual offense because of the "dispute in the evidence between [T.I.'s] statement and [Defendant's] statement about whether or not her lips ever touched his penis." Defendant objected to this instruction. The trial court overruled Defendant's objection and included the instruction on attempted second degree sexual offense.
The jury returned a verdict of guilty of attempted second degree sexual offense and guilty of taking indecent liberties with a child.
*** Converted from WordPerfect ***