Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 June 2007
STATE OF NORTH CAROLINA
03 CRS 19610
PAUL ADAM MOSES
03 CRS 63971
04 CRS 28531-32
Appeal by Defendant from judgments entered 20 October 2005 and
15 and 16 February 2006 by Judge Julius A. Rousseau, Jr., in
Forsyth County Superior Court. Heard in the Court of Appeals 12
Attorney General Roy Cooper, by Assistant Attorney General
David Gordon, for the State.
Parish & Cooke, by James R. Parish, for Defendant.
Paul Adam Moses (Defendant) appeals from judgments entered
upon convictions of first-degree rape, first-degree sexual offense,
statutory rape, statutory sexual offense, felony incest, and taking
indecent liberties with a child. The victim was one of his
(See footnote 1)
On appeal, Defendant brings forward four
assignments of error. For the reasons stated herein, we find no
error in Defendant's trial.
I. EVIDENTIARY BACKGROUND
The State's evidence tended to show that
in September or
October 2001, when Cathy was twelve years old, Defendant began to
touch and squeeze her breasts over her clothing. This would occur
mostly anywhere in the house. At the time, Cathy and her younger
sister were being home-schooled by their mother.
(See footnote 2)
touch Cathy when her mother and sister were in their sun room
studying. Later in 2001, Defendant, who was unemployed, progressed
to touching Cathy's breasts under her clothing and started putting
his fingers in Cathy's vagina. Most times this behavior occurred
in the afternoons, when the girls got home from school. Usually,
Cathy's sister was in the living room watching TV. Defendant would
call Cathy into his bedroom, telling her he had to talk to her or
asking her to bring him a drink. Cathy testified that [s]ometimes
every day but at least maybe three times a week[,] Defendant would
call her into his bedroom, close the door to the room, place his
fingers inside her vagina and move them around[,] and then order
her out of the room. Cathy's sister, who was two years younger
than Cathy, testified that she often saw Cathy leave her parents'
bedroom crying. Cathy would tell her sister that she was crying
because Defendant was being his normal self, that he was just
being mean again, yelling about stuff. Cathy's sister stated that
Cathy would be in Defendant's bedroom anywhere from five minutes to
an hour. Cathy testified that she never told her sister what was
really happening in Defendant's bedroom. Cathy testified further that
when she was about thirteen[,]
Defendant would make [her] come into his room and he would . . .
tell [her] to take off [her] clothes[.] If Cathy refused,
Defendant removed her clothes forcefully. Cathy tried to fight
him off, but he would be on top of her so she could not move.
Cathy testified that her father had intercourse with her more than
by placing his penis inside her vagina. Asked how it
felt to her, Cathy replied that [i]t felt weird and that, after
the act, she would be wet. When these acts occurred, Cathy's
mother was at work and her sister was either finishing her homework
or watching TV in the living room.
Cathy testified that she did not yell out for her sister to
help her because she was scared [her] dad would hurt [her
sister][,] too. She said she did not report the abuse to her
mother because she did not want to be the reason her parents
divorced or for her father to have to move out of the house. She
recognized that her parents already had marital problems.
Cathy's mother testified that in November 2001, following a
head injury, Defendant began to have seizures. Defendant also had
extreme mood swings and developed an anger problem. Defendant's
health problems prevented him from being able to hold a job, so
Cathy's mother became the family's wage earner, and the girls were
enrolled in a private school. Cathy's mother generally left for
her job at 7:30 in the morning and arrived home in the evenings
between 6:00 and 6:30. Defendant was home with the girls in the
afternoons when they got home from school around 3:30.
On 12 February 2003, both Cathy and her sister stayed home
from school because they were sick with colds and a fever. Their
mother gave them cough syrup prescribed by their doctor and Tylenol
before she left for work. Around 11:00 a.m., she called Defendant
to remind him to give the girls their medicine. He told her he
had, and she told him she would call again in another four hours to
remind him to give them their next dose. Before she could do so,
about 3:00 p.m., Cathy called her and told her that Defendant had
given her a blue pill that made her feel funny. Defendant told
Cathy it was her cold medicine. Cathy's mother instructed Cathy to
find out if Defendant had given her sister anything. Cathy's
sister was really hard to wake up, but was finally able to tell
Cathy that Defendant had given her a blue pill and a white pill.
The sister then fell back to sleep. Cathy's mother told Cathy to
try to find the pills.
Cathy and her grandfather looked for the
pills, but were not able to find them in the house.
Cathy testified that right after giving her the blue pill,
Defendant removed her clothes and had sex with her. When he
finished, he went outside, and she got up and called her mother.
Cathy did not report the sexual abuse to her mother, but told her
only about the pills Defendant gave her and her sister. Cathy's
mother left work immediately and came home to take her daughters to
The family's physician testified that when he saw the girls
that evening, he performed urine tests, which were positive for
codeine for Cathy and positive for codeine, morphine, and ametabolite of Valium for Cathy's sister. The cough syrup he had
prescribed for the girls' colds contained only codeine.
Later that night, Defendant attempted suicide and was
subsequently admitted to John Umstead Hospital in Butner, where he
remained until the middle of March. About a week before Defendant
was discharged, Cathy told her mother that Defendant had tried to
touch her[.] Cathy's mother called Defendant and asked him if
Cathy's allegation was true. Defendant denied the allegation and
asked to speak to Cathy. Her mother held the telephone between her
and Cathy so that she could hear the conversation. She testified
that Defendant asked Cathy, [W]hat have you said to her? Cathy
replied that she had told her mother everything. Defendant then
said, [D]id you tell her everything everything? Cathy gave the
phone back to her mother and refused to speak further with
Cathy's mother reported her conversation with Cathy to the
social worker at John Umstead Hospital and obtained a restraining
order against Defendant after he was released from the hospital.
Shortly thereafter, Angela Todd of the Department of Social
Services contacted Cathy's mother and began an investigation of the
abuse charges. This included having both girls evaluated by Dr.
Sarah Sinal, professor of pediatrics and community and family
medicine at Wake Forest School of Medicine and staff physician in
pediatrics at North Carolina Baptist Hospital. The examinations
were conducted on 14 April 2003. Cathy's sister's examination wasnormal[,] and she did not give a history of any abuse by
Cathy gave a history that Defendant first began touching her
in September or October 2001, that he started out touching her on
her breasts and vagina on top of her clothes, that he then began to
touch her under her clothes and to put his fingers in her vagina,
and that he put his penis in her vagina five to ten times. The
physical examination conducted by Dr. Sinal revealed that Cathy had
minimal hymenal tissue, an abnormal finding compatible with the
penile/vaginal intercourse reported by Cathy. Dr. Sinal further
found evidence of high grade, moderate to severe squamous
dysplasia, which is an early malignant change or a precancerous
finding in the cervix. According to Dr. Sinal, [f]ar and away the
leading, if not the only cause of cervical cancer, is human
papillomavirus, which . . . is most commonly passed in this age
child through intercourse. Dr. Sinal opined that Cathy's physical
examination findings were suggestive and compatible with a child
who had been penetrated vaginally with a penis. She testified
that the dysplasia she diagnosed is virtually unheard of in non-
sexually active girls.
In addition to receiving medical treatment for the dysplasia,
Cathy received counseling from licensed professional counselor
Shannon Warden. Ms. Warden specializes in counseling children, has
been trained in the treatment of sexually abused children and, in
her practice, has observed the characteristics of sexually abused
children. She performed her initial assessment of Cathy in July2003 and saw her at least seventeen times thereafter. Cathy
reported to Ms. Warden that Defendant had sexually abused her
multiple times[,] that she had tried to protect her sister, that
Defendant told her not to tell her mother and she did not tell her
mother, that Defendant told her each time would be the last time,
and that she tried to go to sleep immediately after the abuse so
that she could forget that it happened. Ms. Warden testified that
when she talked about the abuse, Cathy's demeanor would change
dramatically. In particular, she would hide behind the pillows
on Ms. Warden's couch and would discuss the abuse in a distant,
detached way . . . consistent with what sexual abuse victims do.
Cathy also exhibited fearfulness and avoidance behaviors, had
difficulty sleeping and had nightmares, experienced low self-
esteem, was depressed, and displayed withdrawal symptoms. Ms.
Warden testified that these behaviors are characteristic of a child
who has been sexually abused and that, in her opinion, Cathy had
been sexually abused and was being genuine with her report.
The State also offered evidence from the law enforcement
officers who investigated Cathy's allegations, to whom Cathy gave
a history consistent with her report to Dr. Sinal and Ms. Warden
and with her testimony at trial. Both detectives also interviewed
Defendant. To one officer, Defendant denied sexually abusing Cathy
and claimed that he would kill anyone who hurt his children. He
also reported an inability to sustain an erection due to the
medication he took for his seizures. To the other detective,Defendant reported that his seizures caused memory lapses and he
had no memories of the allegations.
Defendant offered no evidence. His motion to dismiss the
charges was denied, and the jury found him guilty on all charges.
He received consecutive prison sentences of 250 to 309 months for
the first-degree rape, first-degree sexual offense, and statutory
rape charges; a consecutive sentence of nineteen to twenty-three
months for the incest charge; and concurrent sentences of 250 to
309 months for statutory sexual offense involving a thirteen-year-
old child, and nineteen to twenty-three months for taking indecent
liberties with a child. From judgment imposed upon his conviction
on these charges, Defendant appeals. Finding no error in his
trial, we uphold Defendant's conviction.
II. EXPERT OPINION EVIDENCE
By his first assignment of error, Defendant argues that the
admission in evidence of certain opinion testimony of Cathy's
counselor, Ms. Warden, constitutes plain error requiring a new
trial. Specifically, Defendant challenges Ms. Warden's testimony
that, in her opinion, Cathy had been sexually abused and was being
genuine with her report. Ms. Warden expressed this opinion in
response to the question whether she had observed any
characteristics of Cathy that were consistent with a child who had
been sexually abused. Following her response, the prosecutor asked
her to describe the characteristics she had observed, and Ms.
Warden did so in detail. Defendant did not object at trial to any
of the prosecutor's questions or Ms. Warden's answers. On appeal, Defendant contends that the challenged testimony
constitutes inadmissible expert opinion on Cathy's credibility and
that, consequently, even though Defendant did not object to the
testimony at the time, the expert's opinion unfairly tipped the
scales in favor of the State and against the defendant[,] thereby
creating plain error in Defendant's trial. Plain error is an error
so fundamental that it amounts to a miscarriage of justice or a
denial of a fundamental right, or had a probable impact on the
jury's verdict. See State v. Odom, 307 N.C. 655, 300 S.E.2d 375
(1983) (adopting the plain error rule as articulated in United
States v. McCaskill, 676 F.2d 995 (4th Cir. 1982), cert. denied,
459 U.S. 1018, 74 L. Ed. 2d 513 (1982)); see also State v. Lawson,
159 N.C. App. 534, 583 S.E.2d 354 (2003). It is axiomatic that the
plain error rule must always be applied cautiously and only in the
exceptional case where, after reviewing the entire record, the
appellate court is convinced that, absent the alleged error, the
jury probably would have reached a different result. See, e.g.,
State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991).
It is equally well settled in this State that expert
testimony as to the credibility of a witness is not admissible[,]
State v. Wise, 326 N.C. 421, 426, 390 S.E.2d 142, 145 (citation
omitted), cert. denied, 498 U.S. 853, 112 L. Ed. 2d 113 (1990), and
that, absent physical evidence to support a diagnosis of sexual
abuse, it is error to admit expert testimony that sexual abuse has
in fact occurred because such testimony is an impermissible
opinion regarding the victim's credibility. State v. Stancil, 355N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (citations omitted).
However, an expert witness may testify, upon a proper foundation,
as to the profiles of sexually abused children and whether a
particular complainant has symptoms or characteristics consistent
therewith. Id. at 267, 559 S.E.2d at 789.
Here, Ms. Warden's testimony that (1) she has had training
with children that entails sexual abuse[,] (2) she has been
trained on the profiles and characteristics of sexually abused
children, and (3) she has observed those characteristics in her
counseling work with children, established the proper foundation
for her to express her opinion whether Cathy exhibited symptoms or
characteristics consistent with the profiles of sexually abused
children. Accordingly, the prosecutor's question to Ms. Warden as
to whether, based on her counseling sessions with Cathy, she had
form[ed] an opinion as to whether or not you observed any
characteristics of a child who had been sexually abused was
proper. We agree with Defendant, however, that Ms. Warden's
answer, that Cathy had been sexually abused and was being genuine
with her report[,] was not responsive to the question and
constitutes an inadmissible expert opinion on Cathy's credibility.
On the other hand, we do not agree with Defendant that the
admission of this testimony created plain error warranting a new
trial. The evidence supporting Cathy's allegations was
overwhelming and included her reports to her mother, Dr. Sinal, and
the social workers and law enforcement officers who investigated
her allegations. Cathy's allegations were consistent not only inreporting the fact of her father's abuse, but also in the details
that abuse took. Additionally, and significantly, Dr. Sinal
described the abnormal physical findings she noted upon examination
of Cathy, findings which were uncontroverted and which conclusively
established penile penetration of Cathy's vagina resulting in the
development of a condition virtually unheard of in the absence of
sexual intercourse in girls Cathy's age. Further, Ms. Warden
described the behaviors and characteristics she observed during at
least seventeen counseling sessions with Cathy which, in her
properly admitted opinion, were consistent with the profiles of
sexually abused children. Given this evidence and based upon a
thorough review of the entire record in this case, we are not
convinced that, absent the admission of Ms. Warden's impermissible
opinion testimony on Cathy's credibility, the jury probably would
have reached a different verdict. Admission of the testimony,
consequently, does not constitute plain error. This assignment of
error is overruled.
III. REASONABLE DOUBT INSTRUCTION
Defendant next argues that the trial court committed plain
error in its instruction to the jury on reasonable doubt.
Specifically, Defendant contends that the court's instruction was
disjointed and confusing [and] unintelligible . . . and thereby
lowered the State's burden of proof resulting in a denial of
[Defendant's] due process rights under the United States and North
Carolina constitutions. Because defense counsel failed to object
to the jury instructions at trial, on appeal we consider thisassignment of error under the previously described plain error
standard, requiring Defendant to convince us that error in the jury
charge caused the jury to reach a different result than it would
have reached but for the alleged error. We are unpersuaded.
Here, the trial judge charged the jury on reasonable doubt as
[T]he defendant has entered a plea of not
guilty. The fact that he has been so charged
is no evidence of his guilt. When a defendant
pleads not guilty, he is not required to prove
his innocence. He is presumed to be innocent.
The State of North Carolina must prove to you
that the defendant is guilty beyond a
Now a reasonable doubt is not a vain or
imaginary or fanciful doubt but it's a sane
and rational doubt. It's a doubt based on
common sense. When it's said that you, the
jury, must be satisfied of the defendant's
guilt beyond a reasonable doubt, it is meant
that you must be fully satisfied or entirely
satisfied or satisfied to an evidentiary
certainty of the charge.
If, after considering the evidence and
comparing and weighing the evidence or lack of
evidence, the minds of the jury are left in
such a condition that you cannot say that you
can say you are satisfied to a moral certainty
-- to an evidentiary certainty -- excuse me,
in the defendant's guilt -- if you are not so
satisfied, then you have a reasonable doubt.
If you are so satisfied of the guilt beyond a
reasonable doubt, then you would return a
verdict of guilty.
Absent a specific request, the trial court is not required to
define reasonable doubt, but if the trial court undertakes to do
so, the definition must be substantially correct. State v.
Miller, 344 N.C. 658, 671, 477 S.E.2d 915, 923 (1996) (citations
omitted). [N]o particular formation of words is necessary to
properly define reasonable doubt, but rather, the instructions, intheir totality, must not indicate that the State's burden is lower
than 'beyond a reasonable doubt.' State v. Taylor, 340 N.C. 52,
59, 455 S.E.2d 859, 862-63 (1995) (citing Victor v. Nebraska, 511
U.S. 1, 127 L. Ed. 2d 583 (1994)). [T]he proper standard of
review for challenges to the constitutionality of reasonable doubt
instructions . . . 'is not whether the instruction could have
been applied in [an] unconstitutional manner, but whether there is
a reasonable likelihood that the jury did so apply it.' State v.
Bryant , 337 N.C. 298, 305, 446 S.E.2d 71, 75 (1994) (quoting
Victor, 511 U.S. at 6, 127 L. Ed. 2d at 591); see also State v.
Smith, 360 N.C. 341, 347, 626 S.E.2d 258, 261 (2006) (In reviewing
a jury instruction which may be subject to erroneous
interpretation, this Court has stated that we inquire whether there
is a reasonable likelihood that the jury has applied the challenged
instruction in a way that violates the Constitution.) (quotations
and citations omitted)
. The burden is on the defendant to show
more than a 'possibility' that the jury applied the instruction in
an unconstitutional manner[.] State v. Jennings, 333 N.C. 579,
621, 430 S.E.2d 188, 209 (citing Boyde v. California, 494 U.S. 370,
108 L. Ed. 2d 316 (1990)), cert. denied, 510 U.S. 1028, 126 L. Ed.
2d 602 (1993).
In this case, Defendant argues that the trial court's
reasonable doubt charge was confusing and unintelligible.
Specifically, Defendant contends that the last sentence of the
second paragraph could be interpreted by the jury as giving
disparate standards of proof and that the jury could construe thephrase satisf[ied] to an evidentiary certainty as a lesser
standard of proof than reasonable doubt. Defendant also argues
that the third paragraph cannot be said to convey a clear thought
nor a correct concept of reasonable doubt to the jury. Taken as
a whole, however, we conclude that the trial judge correctly and
unambiguously defined reasonable doubt for the jury.
We agree with the State that it appears the trial judge
briefly lost his train of thought during the charge. After using
the phrase moral certainty, the trial judge immediately corrected
it to evidentiary certainty. Following the United States Supreme
Court's decision in Victor, supra, our Supreme Court reexamined the
use of the phrase moral certainty in defining reasonable doubt
and held that instructions employing this language are not
automatically constitutionally infirm so long as the jury is
instructed to base its decision on the evidence in the case.
Bryant, supra; Taylor, supra. In Bryant and Taylor, the juries
were instructed that they were to consider, compare, and weigh all
the evidence to determine whether reasonable doubt of the
defendants' guilt existed. Likewise, here, the jury was instructed
that [i]f, after considering the evidence and comparing and
weighing the evidence or lack of evidence, . . . you cannot say
that you . . . are satisfied . . . to an evidentiary
certainty . . . in the defendant's guilt -- if you are not so
satisfied, then you have a reasonable doubt. Reading the court's
charge as a whole, we conclude that the instruction in no way
lowered the State's burden of proof to less than beyond areasonable doubt. Accordingly, we are not convinced that alleged
error in the jury instructions caused the jury to reach a different
verdict on any of the charges against Defendant than it would
otherwise have reached. This assignment of error is overruled.
IV. SUFFICIENCY OF THE EVIDENCE
By his final assignments of error, Defendant argues that the
evidence on the charges of first-degree sexual offense and first-
degree rape was insufficient and that, therefore, the trial court
erred in failing to dismiss these charges. In particular,
Defendant takes issue with the State's evidence regarding his
daughter's age when these acts occurred, arguing that, at most, the
evidence raised a strong suspicion that Cathy was under the age
of thirteen when Defendant first committed a sexual offense against
and engaged in intercourse with her. We find Defendant's
contention wholly without merit and conclude that the trial court
properly denied Defendant's motion to dismiss these charges.
As a threshold matter, we must determine if Defendant has
preserved these assignments of error for our review. Pursuant to
Rule 10(b)(1) of our Rules of Appellate Procedure,
[i]n order to preserve a question for
appellate review, a party must have presented
to the trial court a timely request, objection
or motion, stating the specific grounds for
the ruling the party desired the court to make
if the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion. Any
such question which was properly preserved for
review by action of counsel taken during the
course of proceedings in the trial tribunal by
objection noted or which by rule or law was
deemed preserved or taken without any suchaction, may be made the basis of an assignment
of error in the record on appeal.
N.C. R. App. P. 10(b)(1). Our Supreme Court has long held that
where a theory argued on appeal was not raised before the trial
court, the law does not permit parties to swap horses between
courts in order to get a better mount in the appellate courts.
State v. Holliman
, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685
(2002) (citations and quotations omitted); see also State v.
, 323 N.C. 318, 372 S.E.2d 517 (1988). When a party changes
theories between the trial court and an appellate court, an
assignment of error is not properly preserved and is considered
In addressing the sufficiency of the evidence on the charges
against Defendant, Defendant's attorney engaged in the following
exchange with the trial court:
Mr. Crump: Your Honor . . . there has been
evidence from the witness stand to get those
charges to the jury. I can't stand here in
good conscience and argue to you the State
hasn't put forth evidence as to the incest
charge and the first degree sex offense
charge, the first degree rape charge.
Although, Your Honor, I would argue to
you on the first degree rape charge that she
was [not] forced; however, I do realize there
is case law which says that when a parent is
involved, that could be force in and of
The Court: Against her will.
Mr. Crump: Yes, sir, Your Honor. At any
rate, I don't have an argument as to those
offenses to make to dismiss at the close of
the State's evidence.
The Court: Well, are you making a motion to
dismiss them? I mean, I've got to know how to
Mr. Crump: I am, Your Honor, but I suspect
you're going to deny it.
The Court: Denied.
Mr. Crump: Thank you, sir.
With this exchange, Defendant specifically argued to the trial
court that the charge of first-degree rape should have been
dismissed only because the State did not present substantial
evidence that Defendant forced
Cathy to have sex with him.
Defendant cannot now argue before this Court that the charge of
first-degree rape should have been dismissed because the State
failed to present substantial evidence that Cathy was under the age
of thirteen at the time of the offense. Defendant's argument on
appeal as to the charge of first-degree rape has been waived.
It is questionable whether Defendant preserved his right to
appeal the issue of the sufficiency of the evidence regarding
Cathy's age as it pertains to the charge of first-degree sexual
offense given defense counsel's acknowledgment of the sufficiency
of the evidence. Nonetheless, we hold that the trial court
properly denied the motion to dismiss.
In reviewing the denial of a motion to dismiss for
insufficient evidence, the question for this Court is whether there
is substantial evidence (1) of each essential element of the
offense charged and (2) of defendant's being the perpetrator of
such offense. State v. Scott
, 356 N.C. 591, 573 S.E.2d 866 (2002).
Substantial evidence is that amount of relevant evidence necessaryto persuade a rational juror to accept a conclusion. Id.
573 S.E.2d at 869 (citation omitted). This Court 'must view the
evidence in the light most favorable to the State, giving the State
the benefit of all reasonable inferences.' Id.
at 596, 573 S.E.2d
at 869 (quoting State v. Barnes
, 334 N.C. 67, 75, 430 S.E.2d 914,
918 (1993)). 'Contradictions and discrepancies do not warrant
dismissal of the case but are for the jury to resolve.' Id.
Under North Carolina law, a person is guilty of a first-degree
sexual offense if the person engages in a sexual act with a child
under the age of thirteen, the person being at least twelve years
old and at least four years older than the victim. N.C. Gen. Stat.
§ 14-27.4(a)(1) (2001). Sexual act is defined as cunnilingus,
fellatio, analingus, and anal intercourse, as well as any
penetration, however slight, by any object into the genital or anal
opening of the child's body. N.C. Gen. Stat. § 14-27.1(4) (2001);
see also State v. Fuller
, 166 N.C. App. 548, 603 S.E.2d 569 (2004).
the only element of the crime at issue on appeal is Cathy's age
at the time of the offense
, there must be substantial evidence,
given Cathy's date of birth, that Defendant committed a sexual
offense with Cathy before her thirteenth birthday in July 2002.
Reviewing the evidence in the light most favorable to the
State and resolving contradictions and discrepancies in the State's
favor, we conclude that the State presented substantial evidence
that Cathy was under the age of thirteen when Defendant began to
put his fingers in her vagina, constituting a first-degree sexual
offense. This evidence included Cathy's testimony that Defendantbegan to fondle her on top of her clothing in September or October
2001, when she was twelve years old. She testified that this
touching then progressed, a couple of weeks to a month or so later,
to touching her under her clothes on her breasts and her vagina,
and then putting his fingers in her vagina. This evidence was
sufficient to take the case to the jury for its determination of
whether Defendant was guilty of the charge.
We also note that the trial judge thoroughly charged the jury
that, in order to find Defendant guilty of first-degree sexual
offense, the State had to prove, and the jury had to find, that
Cathy was under the age of thirteen when the offense occurred.
This included charging the jury a second time, in response to a
question asked by one of the jurors, on the age distinctions raised
by the various charges (that Cathy [h]ad not reached her 13th
birthday on the charge of first-degree sexual offense, and that
she was thirteen, fourteen, or fifteen on the charges of indecent
liberties with a child, statutory sexual offense, and statutory
Defendant's assignment of error as to the charge of first-
degree rape has been waived. Because there was substantial
evidence to support submission of the first-degree sexual offense
charge to the jury, Defendant's assignment of error as to that
charge is overruled.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
We use the pseudonym Cathy throughout this opinion to
protect the identity of the minor child.
Defendant and Cathy's mother divorced in 2004, but were
married at all times relevant to the facts of this case.
*** Converted from WordPerfect ***