State v. Vehaun

239 S.E.2d 705 (1977) 34 N.C. App. 700

STATE of North Carolina
v.
Charles M. VEHAUN.

No. 7715SC614.

Court of Appeals of North Carolina.

December 21, 1977. Certiorari Denied March 7, 1978.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. Robert W. Newsom III, Raleigh, for the State.

Hunt & Abernathy, by George E. Hunt, Graham, for defendant-appellant.

Certiorari Denied by Supreme Court March 7, 1978.

BRITT, Judge.

By his first assignment of error, defendant contends that the trial court erred in denying his motion to dismiss on the grounds that G.S. 14-202.1 is unconstitutional under the State and Federal Constitutions. He argues first that the statute is unconstitutionally vague in violation of his due process rights, and second, that the statute as written denies him equal protection of the law. We find no merit in either of these contentions.

With respect to the due process argument presented by defendant, our research does not reveal a North Carolina case upholding the constitutionality of the language of G.S. 14-202.1. However, the language of G.S. 14-202.1 is similar to Section 22-3501(a) of the 1967 District of Columbia Code which was held constitutional in Moore v. United States, 306 A.2d 278 (1973).

G.S. 14-202.1 provides:

Taking indecent liberties with children.— (a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:

(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or

(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.

(b) Taking indecent liberties with children is a felony punishable by a fine, imprisonment for not more than 10 years, or both. (Emphasis supplied.)

Section 22-3501(a) of the 1967 D.C.Code provides:

(a) Any person who shall take, or attempt to take any immoral, improper, or indecent liberties with any child of either sex, under the age of sixteen years with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child, or who shall commit, or attempt to commit, any lewd or lascivious act upon or with the body, or any part or member thereof, of such child, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child shall be imprisoned in a penitentiary, not more than ten years. (Emphasis supplied.)

The defendant in the Moore case, like the defendant in the present case, argued that the use of language such as "immoral, improper, indecent liberties", and "lewd or lascivious act" is unconstitutionally vague. In rejecting this contention and upholding the language as constitutional, the court in Moore (page 281) set forth the following guidelines:

The appropriate test for whether a penal statute is sufficiently precise to withstand constitutional attack on the grounds of vagueness is whether the statute gives a "person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 2298-2299, 33 L. Ed. 2d 222 (1972). . . .

The court further stated that the language of the D.C. statute clearly referred to sexual conduct with a minor child and described with reasonable specificity the proscribed conduct. In a similar manner, the language in the North Carolina statute provided defendant in the present case with sufficient notice that his conduct was criminal.

Defendant's equal protection argument is also without merit for the reason that defendant lacks standing to challenge the statute since he cannot show how the alleged unconstitutional feature of the statute injures him.

State v. Trantham, 230 N.C. 641, 644, 55 S.E.2d 198, 200 (1949), laid down the following guidelines on the question of standing:

"Courts never anticipate a question of constitutional law before the necessity of deciding it arises." Virginia Carolina Chemical Co. v. Turner, 190 N.C. 471, 130 S.E. 154. They will not listen to an objection made to the constitutionality of an ordinance by a party whose rights it does not affect and who therefore has no interest in defeating it. St. George v. Hardie, 147 N.C. 88, 60 S.E. 920; Monamotor Oil Co. v. Johnson, 292 U.S. 86, 54 S. Ct. 575, 78 L. Ed. 1141; 11 A.J. 750.

It is not sufficient to show discrimination. It must appear that the alleged discriminatory provisions operate to the hurt of the defendant or adversely affect his rights or put him to a disadvantage. [Citations.]

When the class which includes the party complaining is in no manner prejudiced, it is immaterial whether a law discriminates against other classes or denies to other persons equal protection of the law. 11 A.J. 757. He who seeks to raise the question as to the validity of a discriminatory statute has no standing for that purpose unless he belongs to the class which is discriminated against. [Citations.]

Defendant argues that the provision of the statute requiring the perpetrator of the crime to be five years older than the victim who is under sixteen creates two arbitrary classifications: (1) a class of persons over sixteen who molest children but are less than five years older than their victims, and (2) a class of persons over sixteen who molest children and are five years older than their victims.

In order for a defendant to assert that he was denied equal protection, he must show that he is a member, or could possibly be a member, of the class against which the statute allegedly discriminates. In the present case, the victim is a nine-year-old boy and the defendant is a thirty-seven-year-old man. In order for the allegedly discriminatory classification to become operative, the victim would have to be at least eleven years old to create the possibility that the defendant could fall within the classifications involving the five-year age difference. As a result, under the applicable legal principles cited above, the defendant in this case is unable to show that he is a member of the class against which the statute allegedly discriminates. Therefore, he lacks standing to challenge the constitutionality of the statute on the grounds that it denies him equal protection.

In his second and third assignments of error, defendant argues that the court erred in failing to grant his motion for a directed verdict because the complainant's testimony was not sufficiently corroborated, and that the court erred by failing to instruct the jury that defendant could not be convicted unless the complainant's testimony was corroborated. We find no merit in either of these contentions.

"The general rule is that the testimony of a single witness will legally suffice as evidence upon which the jury may found a verdict." Stansbury's North Carolina Evidence (Brandis Rev. Ed.), § 21, p. 51. The only exceptions to this rule involve prosecutions for perjury, treason, seduction of a woman, and abduction of a married woman. Stansbury's North Carolina Evidence (Brandis Rev. Ed.) § 21. There is no requirement in North Carolina that the testimony of a complaining witness under G.S. 14-202.1 be corroborated before a defendant may be convicted.

Further, North Carolina case law involving the uncorroborated testimony of an incest victim indicates that if the court adopted a corroboration requirement similar to that used under Section 22-3501(a) of the 1967 District of Columbia Code, as the defendant urges, such a rule would be contrary to the trend of judicial decisions in North Carolina. In State v. Wood, 235 N.C. 636, 637, 70 S.E.2d 665, 666 (1952), the Supreme Court stated:

There is no statute providing that the testimony of the prosecutrix must be corroborated by the evidence of others in a prosecution for incest. In consequence, a conviction for incest may be had against a father upon the uncorroborated testimony of the daughter if such testimony suffices to establish all of the elements of the offense beyond a reasonable doubt. 42 C.J.S. Incest § 17. . . .

Similarly in the present case, there is no statutory requirement that the complainant's testimony be corroborated.

In the absence of such a statutory requirement, and in view of prior judicial decisions involving uncorroborated testimony of incest victims, we hold that the uncorroborated testimony of a victim under G.S. 14-202.1 would be sufficient to convict a defendant if such testimony suffices to establish all the elements of the offense.

In the present case, the testimony presented by the State was more than sufficient to survive defendant's motion for nonsuit.

For the reasons stated above, we conclude that defendant received a fair trial free from prejudicial error.

No error.

PARKER and VAUGHN, JJ., concur.