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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1518

NORTH CAROLINA COURT OF APPEALS

Filed: 18 September 2007

STATE OF NORTH CAROLINA,

v .                         Edgecombe County
                            No. 05 CRS 53063
JERMEL HARDY,
        Defendant.

    Appeal by defendant from judgment dated 25 July 2006 by Judge W. Russell Duke, Jr. in Edgecombe County Superior Court. Heard in the Court of Appeals 21 August 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Elizabeth L. Oxley, for the State.

    Crumpler, Freedman, Parker, & Witt, by Vincent F. Rabil, for defendant-appellant.

    BRYANT, Judge.

    Jermel Hardy (defendant) appeals from a judgment dated 25 July 2006 and entered consistent with a jury verdict finding him guilty of sexual activity by a custodian as defined in N.C. Gen. Stat. § 14-27.7(a) (2005). For the reasons stated herein, we find defendant received a fair trial, free from error.

Facts and Procedural History

    On 6 March 2006, the Edgecombe County Grand Jury returned an indictment charging defendant with “Sex Offense Institution” in violation of N.C. Gen. Stat. § 14-27.7(a). Defendant was tried before a jury on 25 July 2006 before the Honorable W. Russell Duke, Jr. At trial the evidence tended to show that Officer BradyAbrams, of the Edgecombe County Sheriff's Office, began an investigation into a possible “forcible rape” involving defendant. Officer Abrams spoke with Jimmy Horton, the Superintendent of the Fountain Correctional Center in Rocky Mount, North Carolina. Horton informed Officer Abrams that Telisa Chapman (the victim), an inmate, claimed defendant forced her to have sex against her will.
    During the course of the investigation, Officer Abrams began to suspect that the incident was consensual and did not involve rape. Officer Abrams interviewed defendant several times and defendant gave a voluntary statement, admitting defendant had engaged in vaginal intercourse with the victim. Both defendant and the victim testified at trial and admitted they had sex.
    The jury subsequently returned its verdict finding defendant “[g]uilty of engaging in vaginal intercourse with Telisa Chapman, a person [over] whom his employer had assumed custody.” The trial court entered its judgment, consistent with the jury verdict, sentencing defendant in the presumptive range to twenty-nine to forty-four months imprisonment with the North Carolina Department of Correction. Defendant appeals.
_________________________

    Defendant raises the issues of whether the trial court erred by: (I) allowing a law enforcement officer to testify about the victim's statements regarding defendant; (II) allowing testimony as to defendant's state of mind upon hearing the accusations against him; (III) allowing the admission of testimony concerning polygraph tests; (IV) not dismissing the charge of vaginal intercourse by acustodian for insufficiency of the evidence to prove each and every element of the offense; (V) failing to dismiss the charges against defendant “for insufficient evidence to prove corpus delecti of vaginal intercourse with an inmate aliunde defendant's unsworn statement”; (VI) failing to dismiss the charges because the indictment charging defendant was deficient and did not confer jurisdiction on the trial court; (VII) allowing a witness to give speculative testimony; and (VIII) sentencing defendant at the highest end of the presumptive range without finding or weighing mitigating factors.
I

    Defendant first argues the trial court committed error by allowing a law enforcement officer to testify about various statements made by the victim and defendant. Because defendant failed to object to this testimony at trial, we review for plain error. State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135 (2004). “Under the plain error standard of review, defendant has the burden of showing: '(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.'” Id. (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)).
    Defendant first contends the trial court committed plain error in allowing Officer Abrams to repeatedly testify as to the fact that the incident at hand was initially investigated as the potential “forcible rape” of the victim by defendant. The victiminitially accused defendant of forcibly raping her, which Officer Abrams discovered over the course of the investigation to be untrue. Defendant argues the admission of the victim's initial false accusation was inadmissible hearsay and violated defendant's right to confront the witnesses against him, causing undue prejudice. We disagree.
    Hearsay is “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). However, “[o]ut-of-court statements that are offered for purposes other than to prove the truth of the matter asserted are not considered hearsay. Specifically, statements are not hearsay if they are made to explain the subsequent conduct of the person to whom the statement was directed.” State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (2002) (internal citations omitted). Officer Abrams' testimony regarding the victim's false statements came about during the description of his investigation of the incident from which the offense at issue arose and explains Officer Abrams' subsequent conduct. Thus, this testimony was not hearsay, and we overrule this assignment of error.
    Defendant's right to confrontation is protected by the Sixth Amendment to the United States Constitution and the Declaration of Rights of the North Carolina State Constitution. U.S. Const. amend. VI; N.C. Const. art. I, § 23. The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions the accused shall enjoy the right . . . to be confronted with thewitnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” U.S. Const. amend. VI. The constitutional protections provided under the Sixth Amendment are made applicable to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 13 L. Ed. 2d 923, 926 (1965).
    However, “[the Confrontation] Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Crawford v. Washington, 541 U.S. 36, 59-60 n.9, 158 L. Ed. 2d 177, 197-98 n.9 (2004) . Thus, Officer Abrams' testimony regarding the victim's false statements did not violate Crawford or defendant's Sixth Amendment right to confrontation, inasmuch as the victim testified and was subject to cross- examination at trial. This assignment of error is overruled.
    Defendant also contends the trial court erred in allowing Officer Abrams to testify regarding statements made to him by defendant, including defendant's confession. However, defendant fails to present this issue in his assignments of error before this Court. “In 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 . . . .” N.C. R. App. P. 10(b)(1). Additionally, “the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal . . . .” N.C. R. App. P. 10(a). Therefore, thisargument is not properly before this Court. Jones, 358 N.C. at 341, 595 S.E.2d at 132.
II

    Defendant next argues the trial court erred in overruling his objections to Officer Abrams' testimony that defendant did not “appear surprised” when confronted with the accusations of forcible rape. Defendant contends this testimony was unfairly prejudicial, speculative, and impermissible lay opinion pursuant to Rules 401, 402, 403 and 701 of the North Carolina Rules of Evidence. We disagree.
    Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2005). Generally, “[a]ll relevant evidence is admissible[.]” N.C. Gen. Stat. § 8C-1, Rule 402 (2005). Relevant evidence is generally admissible except where “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2005). “Whether to exclude relevant but prejudicial evidence under Rule 403 is a matter left to the sound discretion of the trial court.” State v. Braxton, 352 N.C. 158, 186, 531 S.E.2d 428, 444 (2000) (citation and quotations omitted), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). Further, lay witness opinion testimony is “limited tothose opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2005). Our Supreme Court has held that:
        a witness may state the instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time. Such statements are usually referred to as shorthand statements of facts.

Braxton, 352 N.C. at 187, 531 S.E.2d at 445 (citations and internal quotations omitted).
    Officer Abrams' testimony that defendant did not “appear surprised” when confronted with the accusations of forcible rape is based upon his observation of defendant during questioning and can be considered a shorthand statement of fact. Id. (holding an officer's testimony that the defendant looked guilty was a shorthand statement of fact made based upon the officer's observations of the defendant). This testimony is relevant to the fact at issue of whether or not defendant engaged in vaginal intercourse with the victim and is not unduly prejudicial given defendant's admission to the sexual act in question. Thus, the trial court did not err in admitting this testimony, and this assignment of error is overruled.
III
    Defendant next argues the trial court erred by repeatedly allowing the admission of testimony concerning polygraph tests. We disagree.
    “The results of polygraph testing have been held inadmissible in North Carolina . . . . However, the mere mention of polygraph testing does not necessitate appellate relief.” State v. Mitchell, 328 N.C. 705, 711, 403 S.E.2d 287, 291 (1991) (internal citations omitted). In the instant case, while there were numerous references to polygraph tests, there were no attempts to introduce any evidence regarding the results of any polygraph test because no such tests were ever given to either defendant or the victim. Given defendant's admission to the offense at issue, the references to polygraph tests cannot be said to have prejudiced defendant so as to necessitate relief on appeal. These assignments of error are overruled.
IV

    Defendant also argues the trial court erred by failing to dismiss the charge of vaginal intercourse by custodian for insufficiency of the evidence to prove each and every element of the offense. Defendant contends the State failed to present substantive evidence of penetration of the victim's vagina by defendant's penis. We disagree.
    To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense and that the defendant is the perpetrator. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantialevidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). “The denial of a motion to dismiss for insufficient evidence is a question of law, which this Court reviews de novo.” State v. Bagley, __ N.C. App. __, __, 644 S.E.2d 615, 621 (2007) (citations omitted).
    Here, defendant was indicted under N.C. Gen. Stat. § 14- 27.7(a), which states in pertinent part that:
        . . . if a person having custody of a victim of any age or a person who is an agent or employee of any person, or institution, whether such institution is private, charitable, or governmental, having custody of a victim of any age engages in vaginal intercourse or a sexual act with such victim, the defendant is guilty of a Class E felony. Consent is not a defense to a charge under this section.

N.C. Gen. Stat. § 14-27.7(a) (2005). Vaginal intercourse is completed upon proof of penetration, however slight. N.C. Gen. Stat. § 14-27.10 (2005).
    At trial the State presented defendant's statement made to Officer Abrams, wherein defendant confessed that he engaged in vaginal intercourse with the victim. Further, both the victim and defendant testified at trial that they had consensual sex. This evidence is more than sufficient to meet the State's burden regarding the necessary element of penetration. State v. Ashford, 301 N.C. 512, 514, 272 S.E.2d 126, 127 (1980) (holding that the terms 'intercourse' and 'sex' are “sufficient as shorthandstatements of fact on the issue of penetration”) These assignments of error are overruled.
V

    Defendant next argues the trial court erred by failing to dismiss the charges against defendant “for insufficient evidence to prove corpus delecti of vaginal intercourse with an inmate aliunde defendant's unsworn statement” to Officer Abrams. Defendant contends that his confession is the only evidence of vaginal intercourse and that there was a lack of corroborating evidence to support the submission of this case to the jury. Defendant's argument is misplaced.
    The corpus delicti rule “requires that there be corroborative evidence, independent of [defendant's] statements before [a] defendant may be found guilty of [a] crime.” State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 880 (1986). “The rule does not require that the evidence aliunde the confession prove any element of the crime. The corpus delicti rule only requires evidence aliunde the confession which, when considered with the confession, supports the confession and permits a reasonable inference that the crime occurred.” Id. at 532, 342 S.E.2d at 880 (citation omitted). Here, both the victim and defendant testified at trial that they had consensual sex. This testimony is direct substantive evidence of vaginal intercourse and supports defendant's confession. Ashford, 301 N.C. at 514, 272 S.E.2d at 127. This assignment of error is overruled.
VI
    Defendant also contends the trial court erred by failing to dismiss the charge against him because the trial court lacked jurisdiction to enter judgment where the caption of the indictment stated the offense charged was “sex offense institution” while the body of the indictment alleged defendant engaged in “vaginal intercourse” with the victim. We disagree.
    “The caption of an indictment, whether on the front or the back thereof, is not a part of it and the designation therein of the offense sought to be charged can neither enlarge nor diminish the offense charged in the body of the instrument.” State v. Bennett, 271 N.C. 423, 425, 156 S.E.2d 725, 726 (1967) (citations omitted). “An indictment is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense.” State v. Lowe, 295 N.C. 596, 603, 247 S.E.2d 878, 883 (1978).
    Here the body of the indictment states:
        The jurors for the State upon their oath present that on or about the date of offense shown and in the county and state named above, the defendant named above, unlawfully, willfully and feloniously did engage in vaginal intercourse with TELISA CHAPMAN at a time when that person was in the custody of Fountain Correctional Center for Women, an institution at which the defendant was then employed. This act was in violation of the above referenced statute.

This indictment charges defendant with the felony offense proscribed by N.C. Gen. Stat. § 14-27.7(a) and apprises defendant of the charge with sufficient certainty to enable him to preparehis defense and protect him from subsequent prosecution. This assignment of error is overruled.
VII

    Defendant next argues the trial court erred by allowing an expert witness to speculate about matters outside his field of expertise. At trial the prison psychologist, Dr. Dorsey Edmundson, testified that he conducted a mental status examination of the victim, and that, based on her description, her demeanor, and the medical report, it was apparent to him that she had engaged in sex with defendant. Defendant did not object to this line of questioning, and we review for plain error. Jones, 358 N.C. at 346, 595 S.E.2d at 135.
    In light of the overwhelming evidence presented at trial, including defendant's pre-trial confession and subsequent testimony at trial, as discussed in Issues IV and V, supra, defendant cannot meet his burden under plain error review and show that (i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial. State v. Brigman, 178 N.C. App. 78, 91-92, 632 S.E.2d 498, 507 (finding no plain error where the “evidence against the defendant is overwhelming”), appeal dismissed and disc. review denied, 360 N.C. 650, 636 S.E.2d 813 (2006). This assignment of error is overruled.
VIII
    Defendant lastly argues the trial court erred by sentencing the defendant in the highest end of the presumptive range without finding or weighing uncontested mitigating factors. We disagree.
    It is well established that
        trial courts retain considerable discretion during sentencing. The range of potential sentences for some combinations of offense class and prior record level is quite large. . . . Although sentences in the aggravated range require findings of aggravating factors and those in the mitigated range findings of mitigating factors, the trial court is free to choose a sentence from anywhere in the presumptive range without findings other than those in the jury's verdict. Even assuming evidence of aggravating or mitigating factors exists, the [North Carolina Structured Sentencing Act] leaves the decision to depart from the presumptive range in the discretion of the trial court. Moreover, . . . while the Act directs trial courts to consider evidence of aggravating or mitigating factors in every case, it further instructs the courts to make findings of the aggravating and mitigating factors only if, in their discretion, they depart from the presumptive range.

State v. Norris, 360 N.C. 507, 512, 630 S.E.2d 915, 918 (internal citations and quotations omitted), cert. denied, __ U.S. __, 166 L. Ed. 2d 535 (2006); see also State v. Chavis, 141 N.C. App. 553, 568, 540 S.E.2d 404, 415 (2000) (“[T]he trial court is required to take into account factors in aggravation and mitigation only when deviating from the presumptive range in sentencing.”). As the trial court sentenced defendant within the presumptive range, it was not necessary for the court to address mitigating factors. This assignment of error is overruled.
    No error.
    Judge HUNTER concurs.
    Judge WYNN concurs in the result only.
    Report per Rule 30(e).

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