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
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
vaginal intercourse with an inmate aliunde
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
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
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.
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
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.
, 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
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.
, 352 N.C. at 187, 531 S.E.2d at 445 (citations and internal
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.
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.
Defendant next argues the trial court erred by repeatedly
allowing the admission of testimony concerning polygraph tests. We
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
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)
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
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.
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
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
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
, 301 N.C. at 514, 272 S.E.2d at 127. This
assignment of error is overruled.
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.
, 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.
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.
, 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.
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.
Judge HUNTER concurs.
Judge WYNN concurs in the result only.
Report per Rule 30(e).
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