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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-349


Filed: 20 November 2007


         v.                        Rutherford County
                                No. 04 CRS 2976-78

    Appeal by defendant from judgments entered 14 November 2006 by Judge Laura J. Bridges in Rutherford County Superior Court. Heard in the Court of Appeals 8 October 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.

    Thomas R. Sallenger, for defendant.

    ELMORE, Judge.

     Dewitt Williams (defendant) appeals from judgments entered on convictions by a jury of sexual activity by a substitute parent, taking indecent liberties, and first degree sexual offense.
    The State presented evidence tending to show that in January/February of 2004, defendant touched and licked the vagina of a female child. He also inserted his penis into the child's mouth. The child told her mother about the incidents on 15 March 2004, the child's ninth birthday. She and her mother moved out of defendant's residence shortly thereafter.
    Defendant did not present any evidence.
    Defendant brings forward four assignments of error. By the first three he contends that the court erred by denying his motionsto dismiss each charge. In deciding a motion to dismiss, t he trial court considers the evidence in the light most favorable to the State and determines whether there is substantial evidence of each essential element of the offense charged and of the defendant's perpetration of the offense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). “Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.” State v. Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002). If the evidence “is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed.” State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).
    Defendant first contends that the evidence is insufficient to prove all of the elements of the offense of sexual activity by a substitute parent. This Class E felony offense is committed “[i]f a defendant who has assumed the position of a parent in the home of a minor victim engages in vaginal intercourse or a sexual act with a victim who is a minor residing in the home . . . .” N.C. Gen. Stat. § 14-27.7(a) (2005). To convict a defendant of this offense, “the evidence of the relationship between the defendant and child-victim must provide support for the conclusion that the defendant functioned in a parental role. Such a parental role will generally include evidence of emotional trust, disciplinary authority, and supervisory responsibility.” State v. Bailey, 163 N.C. App. 84, 93, 592 S.E.2d 738, 744 (2004). Defendant arguesthat the evidence is insufficient to support a conclusion that defendant assumed a parental role.
    Our review of the record reveals ample evidence to support a conclusion that defendant assumed a parental role over the child. The child and her mother resided in defendant's home from November, 2002 until March, 2004. Defendant had a romantic relationship with the child's mother. Defendant performed a number of parental responsibilities, such as retrieving the child from school or after-school care. Defendant also scolded the child upon receiving a report of the child's misbehavior at school. On her own volition the child called defendant “Daddy,” and the child's mother also referred to defendant as “Daddy” to the child. The child's mother testified that the relationship between defendant and her child “most definitely” was “one of father and daughter.” She further testified that her daughter loved defendant and “worshipped the ground he walked on. Her own daddy doesn't have a whole lot to do with her, still doesn't have a lot to do with her. And he treated her as good as he'd treat any child, and she loved it.” Even after defendant and the child's mother dissolved their romantic relationship because of the incident giving rise to the charges, the child called defendant to take her to the hospital when she injured herself at school.
    Second, defendant contends that the evidence is insufficient to prove all of the elements of the offense of taking indecent liberties. The offense consists of five elements: (1) “the defendant was at least 16 years of age”; (2) “he was five yearsolder than his victim”; (3) an indecent liberty with the victim was willfully attempted or taken by the defendant; (4) the victim was under 16 years of age at the time of the alleged act or attempted act; and (5) “the action by the defendant was for the purpose of arousing or gratifying sexual desire.” State v. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580 (1987). Defendant argues that the evidence is insufficient to show that defendant committed an action for the purpose of arousing and gratifying sexual desire.
    Again, we find ample evidence in the record to support a conclusion that defendant committed the acts for the purpose of arousing or gratifying sexual desire. The girl testified that defendant, wearing only his underwear, removed her pants and underwear, kissed her vaginal area, inserted his penis in her mouth, and went “up and down with his guber [the child's euphemism for genitalia].” The child's mother also testified that defendant admitted to her that he experienced an erection when he touched the child and she touched him.
    Third, defendant contends that the evidence is insufficient to establish the offense of first degree sexual offense. He argues that the victim's testimony was not credible because of discrepancies between her trial testimony and statements she made to investigators, her subsequent inconsistent action of requesting defendant to come for her when she injured herself at school, and the child's subsequent resumption of a relationship with her natural father.
    Defendant's argument must fail because, in deciding a motionto dismiss, the court assumes that the State's evidence is true and leaves contradictions and discrepancies for the jury to resolve. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). “The trial court is not required to determine that the evidence excludes every reasonable hypothesis of innocence prior to denying the defendant's motion to dismiss.” Malloy, 309 N.C. at 178, 305 S.E.2d at 720. “[I]t is the province of the jury to weigh the credibility of the witnesses.” State v. Lewis, 172 N.C. App. 97, 107, 616 S.E.2d 1, 7 (2005) (citation omitted).
    Fourth and finally, defendant contends that the court erred by denying his motion for a mistrial after the court remarked during a bench conference that it did not approve of defendant's questioning of a witness regarding an unrelated civil lawsuit. He argues that the trial judge impermissibly inserted her own opinion into the trial and “poisoned the minds of the jurors against defendant.”
    “The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” N.C. Gen. Stat. § 15A-1061 (2005). “Whether a motion for mistrial should be granted is a matter which rests within the sound discretion of the trial judge . . . , and a mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law . . . .” State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627(1982) (citations omitted). “The decision of the trial judge is entitled to great deference since he is in a far better position than an appellate court to determine whether the degree of influence on the jury was irreparable.” State v. Williamson, 333 N.C. 128, 138, 423 S.E.2d 766, 772 (1992).
    Although the record at bar shows that the jury was present in the courtroom while the bench conference transpired, nothing indicates that the jury heard the judge's comment. In denying the motion, the judge stated that the jury could not hear what was being said at the bench during the bench conference. The judge noted that the microphone was turned off. We find no abuse of discretion.
     We hold that defendant received a fair trial, free of error.
    No error.
    Judges WYNN and BRYANT concur.
    Report per Rule 30(e).

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