STATE OF NORTH CAROLINA
v. Rutherford County
No. 04 CRS 2976-78
DEWITT WILLIAMS
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).
*** Converted from WordPerfect ***