State v. Hardy , 104 N.C. App. 226 ( 1991 )

409 S.E.2d 96 (1991) 104 N.C. App. 226

STATE of North Carolina
v.
Charles Edward HARDY.

No. 903SC1184.

Court of Appeals of North Carolina.

October 15, 1991.

Attorney General Lacy H. Thornburg, by Asst. Atty. Gen., Teresa L. White, Raleigh, for the State.

Robin L. Fornes, Greenville, for defendant-appellant.

EAGLES, Judge.

I

The defendant first argues that the trial court erred by denying defendant's motion to dismiss the charges because of insufficient evidence. We disagree.

It is well settled that upon a motion to dismiss in a criminal action, all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. Any contradictions or discrepancies in the evidence are for resolution by the jury.

State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citing State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977)).

A

Defendant argues that the State failed to show that the alleged sexual intercourse was by force and against the victim's will. This argument is controlled by State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987). In Etheridge, the Supreme Court addressed the proof necessary to support a conviction for second-degree sexual offense. Specifically, the court addressed the requirements of the phrase "[b]y force and against the will of the other person." The language construed is identical to the phrase found in the definition of second-degree rape. Id. at 44, 352 S.E.2d at 680; G.S. § 14-27.3. The Court stated:

The phrase "by force and against the will of the other person" means the same as it did at common law when it was used to describe an element of rape. State v. Locklear, 304 N.C. 534, 284 S.E.2d 500 (1981). The requisite force may be established either by actual, physical force or by constructive force in the form of fear, fright, or coercion. State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975). Constructive force is demonstrated by proof of threats or other actions by the defendant which compel the victim's submission to sexual acts. See State v. Burns, 287 N.C. 102, 214 S.E.2d 56, cert. denied, 423 U.S. 933 [96 S. Ct. 288], 46 L. Ed. 2d 264 (1975) (threat of serious bodily injury sufficient to constitute constructive force). Threats need not be explicit so long as the totality of circumstances allows a reasonable inference that such compulsion was the unspoken purpose of the threat. State v. Barnette, 304 N.C. 447, 284 S.E.2d 298 (1981).

Etheridge at 45, 352 S.E.2d at 680. The Etheridge Court then applied the constructive force doctrine to the defendant's acts. In Etheridge, the defendant, the minor child's father, had made illicit sexual advances toward his son beginning when the son was eight years old. Id. at 47, 352 S.E.2d at 681. The abuse occurred while the child lived as an unemancipated minor in the defendant's household, subject to the defendant's parental authority and discipline. Id. at 47-48, 352 S.E.2d at 681. In the incident charged the defendant instructed his son "[d]o it anyway" when his son initially refused to disrobe. Id. at 48, 352 S.E.2d at 681. Finding constructive force to be present the Court stated:

It is nonetheless reasonable to conclude that these words carried a great deal more menace than is apparent on the surface,.... The child's knowledge of his [parent's] power may alone induce fear sufficient to overcome his will to resist, and the child may acquiesce rather than risk his [parent's] wrath. As one commentator observes, force can be understood in some contexts as the power one need not use. Estrich, Rape, 95 Yale L.J. 1087, 1115 (1986).

In such cases the parent wields authority as another assailant might wield a weapon. The authority itself intimidates; the implicit threat to exercise it coerces. Coercion, as stated above, is a form of constructive force.

Etheridge at 48, 352 S.E.2d at 681-682.

Here, constructive force can be reasonably inferred from the circumstances surrounding the parent-child relationship. The defendant, the victim's step-father, began abusing the victim when she was only fifteen years old. Each episode of abuse occurred while the victim lived with the defendant as an unemancipated minor in the defendant's trailer and subject to his parental authority. In each incident the defendant was either silent or at most said "Shh" while climbing on top of his step-daughter and engaging in sexual intercourse with her. She never gave her consent and the defendant never asked for it. When considered with the totality of the circumstances of this case, it is reasonable to conclude that by removing her underwear and physically climbing in on top of the victim, either silently or with a "Shh," the defendant's actions "carried a great deal more menace than is apparent on the surface...." Etheridge at 48, 352 S.E.2d at 681. "[W]e hold that the state presented sufficient evidence from which a jury could reasonably infer that the defendant used his position of power to force his [step-daughter] to participat[e] in sexual [intercourse]." Id.

B

Defendant next argues that two of the second degree rape charges (90 CRS 1786 and 90 CRS 1787) should have been dismissed "because of a lack of speci[f]icity and proof as to when the charges occurred." This argument is without merit.

In State v. Wood, 311 N.C. 739, 319 S.E.2d 247 (1984), the defendant was convicted of first degree rape and two counts of taking indecent liberties with a minor. Id. at 740, 319 S.E.2d at 247. On appeal the defendant argued that the evidence was insufficient to convict him of rape because the State failed to prove the specific date of the rape as alleged in the indictment. Id. at 742, 319 S.E.2d at 249. The victim had testified that the offense occurred on a weekend sometime prior to Memorial Day and that she was still in school. Id. The court rejected the defendant's argument:

We have stated repeatedly that in the interest of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child's uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of evidence. State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983); State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962). See: State v. Sills, 311 N.C. 370, 317 S.E.2d 379 (1984). Nonsuit may not be allowed on the ground that the State's evidence fails to fix any definite time for the offense where there is sufficient evidence that defendant committed each essential act of the offense. Id.

Id. at 742, 319 S.E.2d at 249.

State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988) is also instructive. In Swann, the defendant sexually assaulted an eleven year old child. Id. at 669, 370 S.E.2d at 535. The child was unable to remember the exact date of the assaults. However, he was able to identify a specific event around which the assaults occurred. The child testified that the incidents occurred shortly after his brother was born. Id. at 674, 370 S.E.2d at 538. The victim's mother testified that the first incident occurred three to four weeks after the victim's brother's birth and stated the date of that birth. Id. at 674-675, 370 S.E.2d at 538. The Court held that the testimony was sufficient to submit the charges to the jury. Id. at 675, 370 S.E.2d at 538.

Here, both indictments attacked by the defendant state the date of offense as "[b]etween" July 1989 and 22 October 1989. Lisa was unable to identify a specific date on which each of the offenses occurred. However, Lisa was able to relate the assaults to specific events in her life. Lisa testified, "[w]ell, nothing really started until we moved to the new trailer." She also testified that she moved into the new trailer "in the middle of July [or] early August." This testimony was sufficiently precise to submit the charges to the jury.

C

Defendant also assigns as error the trial court's denial of the defendant's motion to dismiss the charges of taking indecent liberties with a child. However, the defendant has failed to support his assignment with reason, argument or authority. Accordingly, this assignment of error has been abandoned. N.C.R.App.P. 28(c).

II

Defendant next argues the trial court committed reversible error by allowing into evidence out of court statements made by the victim. We find no reversible error here.

A

First, the defendant claims the letter that the victim gave to the pastor's wife of the Community Christian Church in Winterville was inadmissible hearsay and was not corroborative of the victim's prior testimony. Specifically, the defendant objects to that part of the letter which states, "my step-father forces my (sic) to have sexual intercourse with me [sic] but I don't want that...." This contention is without merit.

One of the most widely used and well-recognized methods of strengthening the credibility of a witness is by the admission of prior consistent statements. State v. Carter, 293 N.C. 532, 238 S.E.2d 493 (1977). If previous statements offered in corroboration are generally consistent with the witness's testimony, slight variations between them will not render the statements inadmissible. Such variations only affect the credibility of the evidence which is always for the jury. [Citations omitted.]

State v. Locklear, 320 N.C. 754, 761-762, 360 S.E.2d 682, 686 (1987).

Upon direct examination the victim testified as follows:

Q: What would happen when he would come in your room?

A: Well, he'll get—he'll get on me.

Q: Now, would you have any clothes on or would he have any clothes on?

A: I had my night clothes on.

Q: What would happen to your night clothes?

A: They still be on.

Q: And what would the defendant do?

A: Take off my underwear.

Q: Would he say anything to you?

A: No.

Q: And what would he do to you?

A: Get on top of me.

Q: What would happen then?

A: He put his penis inside me.

Q: Now, ... was this with your permission?

A: No.

Q: Something you wanted him to do?

A: No.

The letter corroborates the victim's testimony and was therefore properly admitted into evidence.

B

Defendant also argues that it was prejudicial error for the trial court to deny the defendant's motion to strike the testimony of the victim's aunt, Irene Harris. This contention is also without merit. Ms. Harris testified as follows:

Q: Did [the victim] ever express any fear of the defendant to you?

MR. McGLAUFLIN: Objection, Your Honor.

THE COURT: Overruled.

BY MRS. AYCOCK:

Q: You may answer.

A: Yes, she did.

Q: What did she say about it as far as the fear or as far as her fear of the defendant?

A: She said that she was scared that he would kill her.

MR. McGLAUFLIN: Objection, Your Honor, move to strike.

THE COURT: Overruled, motion denied.

BY MRS. AYCOCK:

Q: What else did she say about this?

A: And I asked her—

THE COURT: Well, she asked you what else she said about that.

Q: You may answer.

A: I asked her—

THE COURT: All right. Objection sustained.

BY MRS. AYCOCK:

Q: Ms. Harris, have you ever been a witness before?

A: No, I have not.

Q: Did you ask [the victim] why she was afraid of him?

A: Yes, I did.

Q: What did she tell you?

A: She said with him smoking reefer and with the films that she have seen at school—

THE COURT: Well, I am going to sustain the objection. If you are offering this to corroborate the witness, the witness has not testified to any of these things this lady has said, and I am going to sustain the defendant's objection. If you want to corroborate her, you have to corroborate what the girl said in the courtroom.

"``A party may not take exception to a ruling of the court in his favor....' " In re McCraw, 3 N.C.App. 390, 394, 165 S.E.2d 1, 4 (1969). Here, the defendant's objection was sustained. This assignment of error is overruled.

C

Defendant also objects to the trial court allowing the investigating officer to read into evidence the victim's statement as corroborative evidence. This argument fails as well.

The statement, in pertinent part, reads as follows: "So about a week later he came into my bedroom and was taking off his clothes but I know [sic] idea what happen until I really woke up. So when I finally woke up he had his hand over my mouth." Assuming arguendo that this portion of the statement was not corroborative, the trial court gave a curative instruction to the jury which cured any error:

The Court wants to instruct you that when evidence has been received tending to show that at an earlier time a witness made a statement which may be consistent or may conflict with her testimony at this trial, you must not consider such earlier statement as evidence of the truth of what was said at that earlier time because it was not made under oath at this trial.

If you believe that such earlier statement was made and that it is consistent or does conflict with the testimony of [the victim] at this trial, then you may consider this together with all other facts and circumstances bearing upon the witness' truthfulness in deciding whether you will believe or disbelieve her testimony at this trial. You may not consider it for any other purpose.

This assignment is overruled.

III

By his next assignment of error, the defendant asks this Court to reconsider the admissibility of testimony on post traumatic stress syndrome. As the defendant concedes, this issue has been resolved. We are bound by State v. Strickland, 96 N.C.App. 642, 387 S.E.2d 62, disc. rev. denied, 326 N.C. 486, 392 S.E.2d 100 (1990) and State v. Hall, 98 N.C.App. 1, 390 S.E.2d 169, disc. rev. allowed, 327 N.C. 486, 397 S.E.2d 228 (1990). In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (one panel of the Court of Appeals is bound by a prior decision of another panel of the Court addressing the same issue, although in a different case, unless the prior decision has been overturned by a higher court).

IV

Defendant also argues that the trial court erred by not allowing the defendant to present evidence of the victim's school disciplinary records including suspension reports. "An error is not prejudicial unless a different result would have been reached at the trial if the error in question had not been committed. N.C.Gen.Stat. § 15A-1443." State v. Smith, 87 N.C.App. 217, 222, 360 S.E.2d 495, 498 (1987), disc. review denied, 321 N.C. 478, 364 S.E.2d 667 (1988). Assuming, arguendo, that the evidence was relevant, "the defendant here has not persuaded us that there exists any reasonable possibility that the outcome of the trial would have been any different had the testimony ... been allowed." Id. at 222, 360 S.E.2d at 498. This assignment of error is overruled.

V

Defendant next argues the trial court incorrectly instructed the jury on the offense of second degree rape. We disagree. The trial judge, in part, instructed the jury:

For you to find the defendant guilty of second-degree rape, the State must prove three things beyond a reasonable doubt.

* * * * * *

Second, that the defendant used or threatened to use force sufficient to overcome any resistance the victim might make. The force necessary to constitute rape need not be actual physical force. Fear or coercion may take the place of physical force. And when you come to consider the force sufficient to overcome any resistance the victim might make, you may consider that sexual activity between a parent and a minor child is not comparable to sexual activity between two adults. The youth and vulnerability of children coupled with the power inherent in a parent's position of authority creates a unique situation of dominance and control in which explicit threats and displays of force are not necessary to effect the abuser's purpose.

In his brief, "[t]he defendant readily admits that this is a correct statement of the law" as found in State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987). However, the defendant requested the following additional instruction:

However, the totality of the circumstances concerning the relationship between a parent and a child must be considered in determining whether the parent's position of authority was sufficient in and of itself to overcome any resistance made by the child to the sexual activity. Such circumstances would include the age of the child; when sexual activity between the parent and child first began; the nature and extent of discipline and punishment of the child by the parent prior to the sexual activity; the presence or the absence of other parental figures in the household, and any commands uttered toward the child by the parent at the time of the sexual activity which would tend to indicate punishment was imminent if the child did not engage in sexual activity with the parent.

Under the facts and circumstances of this case the instruction given by the trial court adequately presented the law in compliance with Etheridge. This assignment of error is overruled.

VI

Finally, the defendant claims the trial court committed reversible error in sentencing the defendant to the presumptive prison terms provided by the Fair Sentencing Act. G.S. § 15A-1444(al) provides:

A defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his sentence is supported by the evidence introduced at the trial and sentencing hearing only if the prison term of the sentence exceeds the presumptive term set by G.S. 15A-1340.4, and if the judge was required to make findings as to aggravating or mitigating factors pursuant to this Article. Otherwise, he is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.

Simply stated, "[t]he [Fair Sentencing] Act does not allow appeal of a presumptive sentence as of right." State v. Cain, 79 N.C.App. 35, 49, 338 S.E.2d 898, 907, disc. review denied, 316 N.C. 380, 342 S.E.2d 899 (1986). Here, the trial judge imposed the presumptive sentence for each of the convictions. Accordingly, this assignment of error is overruled.

No error.

JOHNSON and PARKER, JJ., concur.