Appeal by defendant from judgments entered 11 January 2006 by
Judge B. Craig Ellis in Hoke County Superior Court. Heard in the
Court of Appeals 14 December 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Jane Rankin Thompson, for the State.
Sue Genrich Berry for defendant-appellant.
Defendant Martin Lewis Black appeals from his convictions for
first degree rape and indecent liberties with a child. When the
victim ("Olivia") was 12 years old, she gave birth to "Andrew."
(See footnote 1)
DNA testing established that there was a 99.98% chance that
defendant was Andrew's father. On appeal, defendant primarily
challenges the admission of various exhibits on the grounds of
hearsay, arguing that in the absence of this evidence the State
failed to prove his age and that sexual intercourse occurred. We
disagree. The pregnancy provided ample evidence of intercourse,
and the State properly proved that defendant was 23 at the probabletime that Andrew was conceived. We also find unpersuasive
defendant's contention that the trial court erred by providing the
jury with definitions of "lewd" and "lascivious" taken from Black's
At trial, the State's evidence tended to show the following
facts. In August 2003, Olivia's maternal aunt called the Hoke
County Department of Social Services ("DSS") and reported that her
12-year-old niece Olivia had just given birth to a child. Olivia's
birth date is 7 December 1990, while her son Andrew's birth date is
18 August 2003. Evidence at trial indicated that Olivia is
learning disabled, with one test suggesting an I.Q. of 67. DSS
placed Olivia and Andrew into the aunt's custody pending an
Detective David Stewart of the Hoke County Sheriff's
Department began the investigation and spoke with the aunt.
Following Detective Stewart's deployment to Iraq, Detective Michael
Hallman of the Hoke County Sheriff's Department took over the
investigation. As a result of his review of Detective Stewart's
case file, Detective Hallman interviewed the aunt and obtained a
search warrant for defendant's DNA. Afterward, based on
conversations with Detective Hallman, the aunt took Olivia and
Andrew for DNA testing. LabCorp compared the DNA samples provided
by Olivia, Andrew, and defendant and determined that there was a
99.98% chance that defendant was Andrew's father. An investigator
with the District Attorney's Office obtained defendant's birthcertificate, which revealed that he had a birth date of 16 December
In April 2005, defendant was indicted on charges of first
degree rape and taking indecent liberties with a child. The case
was tried before a jury during the 9 January 2006 criminal session
of Hoke County Superior Court. The jury returned verdicts of
guilty as to both charges, and the trial court imposed a
presumptive range sentence of 336 to 413 months for the first
degree rape conviction and a consecutive presumptive range sentence
of 21 to 26 months for the indecent liberties conviction.
Defendant timely appealed to this Court.
Defendant first argues that the trial court committed plain
error by admitting defendant's birth certificate "as well as other
hearsay evidence" of defendant's birth date. In his assignments of
error, however, defendant only specifically assigns error to the
admission of his birth certificate. Our review is, therefore,
limited to consideration of the admission of that exhibit. N.C.R.
App. P. 10(a) (providing that "the scope of review on appeal is
confined to a consideration of those assignments of error set out
in the record on appeal in accordance with this Rule 10").
(See footnote 2)
Since defendant's trial counsel did not object to the birth
certificate, we must review the admission of the exhibit for plain
error. "'The plain error rule applies only in truly exceptional
cases. Before deciding that an error by the trial court amounts to
plain error, the appellate court must be convinced that absent the
error the jury probably would have reached a different verdict. In
other words, the appellate court must determine that the error in
question tilted the scales and caused the jury to reach its verdict
convicting the defendant.'" State v. Duke
, 360 N.C. 110, 138-39,
623 S.E.2d 11, 29-30 (2005) (internal quotation marks and citation
omitted) (quoting State v. Walker
, 316 N.C. 33, 39, 340 S.E.2d 80,
83 (1986)), cert. denied
, __ U.S. __, 166 L. Ed. 2d 96, 127 S. Ct.
In this case, the State was required to prove with respect to
the first degree rape charge that defendant was "at least 12 years
old and is at least four years older than the victim[.]" N.C. Gen.
Stat. § 14-27.2(a)(1) (2005). As for the indecent liberties
charge, defendant was required to be 16 years of age or older and
at least five years older than the victim. N.C. Gen. Stat. § 14-
As defendant acknowledges in his brief, numerous exhibits were
submitted to the jury without objection that set out defendant's
date of birth. Because defendant has failed to properly preserve
for appellate review the admission of those exhibits, they were
properly before the jury, and any admission of the birth
certificate was necessarily harmless. In any event, the trial court properly admitted defendant's
birth certificate. Our Supreme Court has previously held that a
properly authenticated birth certificate is, in a first degree rape
case, "competent evidence of the facts recorded, viz
, the date of
defendant's birth." State v. Joyner
, 295 N.C. 55, 62, 243 S.E.2d
367, 372 (1978). See also
N.C.R. Evid. 803(8) (providing that
certain public records and reports are not excluded by the hearsay
rule). Further, under the North Carolina Rules of Evidence,
documents that, as here, bear an official seal are self-
authenticating and do not need further authentication by a
custodian of those records. N.C.R. Evid. 902(1).
Defendant argues, however, that "[n]o witness linked that
certificate of birth to the Defendant on trial." To the contrary,
an investigator with the District Attorney's Office testified
without objection that he obtained the place of birth of defendant,
went to the register of deeds' office in the county of defendant's
place of birth, and obtained a certified copy of defendant's birth
certificate from that office. The investigator then identified,
without objection, Exhibit 9: "This is also a copy of a certificate
of birth from Scotland County. It's a certified copy of the
defendant, Martin Lewis Black." This testimony _ unchallenged by
defendant _ is sufficient to support the admission of Exhibit 9,
the birth certificate.
Defendant also argues that his trial counsel committed
ineffective assistance of counsel by failing to object to Exhibit
9 and the other evidence of his birth date. In arguing ineffectiveassistance of counsel, a defendant must show not only that his
counsel made errors, but that the deficient performance prejudiced
his defense. Strickland v. Washington
, 466 U.S. 668, 687, 80 L.
Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). To establish the
required prejudice, a defendant must show there is "'a reasonable
probability that, but for counsel's errors, there would have been
a different result in the proceedings.'" State v. Wade
, 155 N.C.
App. 1, 18, 573 S.E.2d 643, 655 (2002) (quoting State v. Braswell
312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985)), appeal dismissed
and disc. review denied
, 357 N.C. 169, 581 S.E.2d 444 (2003).
Defendant has never disputed that his date of birth is 16
December 1979, as stated on Exhibit 9. Indeed, the judgment filed
in this case identifies that date as defendant's birth date. The
record contains no indication that had defendant's counsel
objected, the State would have been unable to prove defendant's
date of birth.
(See footnote 3)
In short, defendant cannot establish that there is
a reasonable probability that he would have been acquitted, or the
charges dismissed, but for his trial counsel's failure to object.
, 312 N.C. at 563, 324 S.E.2d at 249 (holding that
where there is no reasonable probability that, in the absence of
the alleged error, a different result would have occurred, theappellate court is not required to determine whether the
performance of counsel was actually deficient). These assignments
of error are, therefore, overruled.
Defendant next argues that the trial court committed plain
error in admitting Detective Hallman's affidavit in support of his
application for a search warrant. Detective Hallman's affidavit,
to which defendant's trial counsel did not object, reads in
[T]hat in or about November 2002, [Olivia's]
mother in return for crack cocaine rented out
her daughter [Olivia], approximately 11 years
of age, for sex. Investigation has revealed
that the victim did engage in sexual
intercourse with [defendant], approximately 22
years of age. As a result of the sexual
intercourse the victim became pregnant and
approximately eight (8) months and one (1)
week later, . . ., the victim had [Andrew].
As the State acknowledges, "[g]enerally, the allegations in an
affidavit for a search warrant and the contents of the warrant
itself are inadmissible at trial because of their hearsay nature."
State v. Wilson
, 322 N.C. 117, 137, 367 S.E.2d 589, 601 (1988).
See also State v. Weathers
, 339 N.C. 441, 449, 451 S.E.2d 266, 271
(1994) ("[I]t is error to allow a search warrant and supporting
affidavit to be admitted into evidence over defendant's
objections."). The State contends, however, that any error did not
constitute plain error. We agree.
Defendant contends that he was prejudiced because the
affidavit's reference to defendant's "sexual intercourse" with
Olivia was the only evidence of vaginal penetration. To thecontrary, "evidence . . . disclosing a subsequent pregnancy is
admissible as tending to prove penetration, an essential element of
the crime of forcible rape." State v. Stanton
, 319 N.C. 180, 185,
353 S.E.2d 385, 388 (1987). Defendant argues, however, that "[i]n
this age of medical advancement, vaginal intercourse is no longer
the only way in which a female can become pregnant." We note that
under "plain error" review, we must be convinced that absent the
error, the jury probably would have acquitted defendant. Duke
N.C. at 138-39, 623 S.E.2d at 29-30. We do not believe that, in
the absence of the affidavit, it is probable that the jury would
have concluded that the State failed to meet its burden of proof
because a 12-year-old girl
theoretically could have become pregnant
by defendant through some medical means other than sexual
Defendant also argues that the affidavit's suggestion that
Olivia was "rented out" for sex by her mother in exchange for crack
was "extraordinarily prejudicial." Although no one can deny the
extraordinarily troubling nature of this statement, the evidence
presented at trial was undisputed for each element of the offenses
of first degree rape and indecent liberties with a child. As a
result, even if the information about the mother's conduct had been
omitted, we cannot conclude that there is any reasonable
probability that the jury would have failed to convict defendant.
As with the birth certificate, defendant also argues on appeal
that he received ineffective assistance of counsel because of his
counsel's failure to seek exclusion of the affidavit. We note thatdefendant's counsel specifically referenced the statement in the
affidavit regarding the mother's conduct and, therefore, may have
had a strategic reason for failing to object, such as a desire to
shift the focus of the jury from defendant to Olivia's mother.
Nevertheless, because of the undisputed evidence of pregnancy,
defendant's fatherhood, and the ages of the individuals, defendant
cannot show prejudice. Braswell
, 312 N.C. at 563, 324 S.E.2d at
Defendant next contends that the trial court erred by
providing the jury with Black's Law Dictionary
"lewd" and "lascivious" during its instructions for the charge of
taking indecent liberties with a child. See
N.C. Gen. Stat. §
14-202.1(a)(2) (indecent liberties involves willful commission or
attempt to commit "any lewd or lascivious act" upon a child).
Defendant does not contest the accuracy of the trial court's
definitions, but argues that "the number of possible [alternative]
definitions is great" and, therefore, the trial court erred by
altering the pattern jury instructions. The terms are not defined
by the applicable statute.
A jury charge will be held sufficient if it presents the law
of the case in such manner as to leave no reasonable cause to
believe the jury was misled or misinformed. State v. Blizzard
N.C. App. 285, 296-97, 610 S.E.2d 245, 253 (2005). If a trial
court undertakes to define a term not otherwise defined in a
statute, it must do so in substantial accord with definitionsapproved by our appellate courts. State v. Every
, 157 N.C. App.
200, 214, 578 S.E.2d 642, 652 (2003).
Using Black's Law Dictionary
, the trial court defined "lewd"
as "obscene, lustful, indecent, lascivious or lecherous" and
"lascivious" as "tending to invite lust, lewd, indecent, obscene,
sexual impurity, tending to deprave the morals with respect to
sexual relations." These definitions are substantially consistent
with those previously employed by our appellate courts. See, e.g.
State v. Manley
, 95 N.C. App. 213, 217, 381 S.E.2d 900, 902, disc.
, 325 N.C. 712, 388 S.E.2d 467 (1989); State v.
, 87 N.C. App. 399, 402, 361 S.E.2d 105, 108 (1987), disc.
, 321 N.C. 479, 364 S.E.2d 670 (1988). Accordingly,
as defendant makes no argument suggesting that the jury was misled
or otherwise misinformed, we overrule this assignment of error.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).