State v. Finch

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1212
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Johnston County
Nos. 11 CRS 4362-63, 54753-54,
55107-111
MICHAEL RANDOLPH FINCH
Appeal by Defendant from judgments entered 28 March 2013 by
Judge Gale Adams in Superior Court, Johnston County. Heard in
the Court of Appeals 17 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Margaret A. Force, for the State.
Kevin P. Bradley for Defendant.
McGEE, Judge.
Michael Randolph Finch (“Defendant”) was convicted on 28
March 2013 of seven counts of rape of a child and two counts of
sexual offense with a child. The investigation into these
charges began after Defendant’s wife found photographic images
of Defendant engaged in sexually suggestive conduct with an
eleven-year-old female relative (the child). Further
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investigation uncovered additional photographs and videos
depicting Defendant engaged in sexual acts with the child. The
child testified at trial concerning multiple sexual acts that
Defendant either performed on her, or that Defendant made her
perform on him, and about eight occasions when Defendant placed
his penis in her vagina. On four of those occasions, Defendant
handcuffed the child to a couch. In at least one of the videos,
Defendant’s wife identified Defendant forcing vaginal
intercourse on the child. Captain Jeff Caldwell of the Johnston
County Sheriff’s Office testified that, after Defendant had been
arrested and had waived his rights under Miranda, Defendant
“admitted to having sexual intercourse with [the child in
Johnston County] on two occasions. [Defendant] admitted to
using a vibrator on [the child] on one occasion and to receiving
oral sex from [the child] on one occasion [also in Johnston
County].” Defendant admitted to multiple other sex acts with
the child outside Johnston County.
Defendant was indicted on seven counts of rape of a child,
and two counts of engaging in a sexual offense with a child.
Defendant was found guilty of all charges on 28 March 2013, and
the jury made special findings for all nine charges. These
special findings included “egregious aggravating factor[s]”
that, in “[t]he nature of the offense[s] and the harm
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inflicted[,]” were “of such brutality, duration, severity,
degree, or scope beyond that normally committed in such crimes
or considered in basic aggravation of such crimes.” Defendant
was sentenced to four consecutive active sentences of 300 to 369
months. Defendant appeals.
In Defendant’s sole argument, he contends the trial court
erred in entering judgments on seven counts
of rape of a child and two counts of sexual
offense against a child when the [trial
court] instructed the jury with reference to
only a single count of rape of a child and a
single count of sexual offense against a
child.
We disagree.
The trial court gave a single instruction, including the
elements the jury had to find in order to convict Defendant of
rape of a child, and another single instruction for sexual
offense against a child. The jury was then given nine separate
verdict sheets, seven pertaining to the seven rape charges and
two pertaining to the two sex offense charges. The seven
verdict sheets pertaining to the rape charges are identical to
each other except for the file numbers, which are the same as
the file numbers for each corresponding indictment. The two
verdict sheets pertaining to the sex offense charges are
identical to each other except for the file numbers, which are
the same as the file numbers for each corresponding indictment.
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This Court encountered the identical issue in State v.
Barr, __ N.C. App. __, 721 S.E.2d 395 (2012). In Barr, the
defendant was charged with, inter alia, three counts of
accessing a government computer.1 The trial court in Barr
instructed the jury on accessing a government computer as
follows:
The defendant has been charged with
fraudulently accessing a government
computer.
For you to find the defendant guilty of this
offense, the State must prove four things
beyond a reasonable doubt.
First, that the defendant accessed or caused
to be accessed directly or indirectly a
computer.
And, second, that the access was to a
computer, computer program, computer system,
computer network or any part thereof that is
owned, operated, or used by any state or
local government entity. The North Carolina
Division of Motor Vehicles is a State
government entity.
And third, that this access was made for the
purpose of obtaining services by means of a
false pretense or representation by
representing that the North Carolina
dealership was an out of state dealer.
And fourth, that the defendant acted
willfully. The word "willfully" means
something more than an intention to commit
the offense. It implies committing -- it
implies committing the offense, not only
1
We take judicial notice of the record in Barr, and include
portions of that record below.
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designedly in violation of the law, but also
with a bad purpose.
If you find from the evidence beyond a
reasonable doubt that on or about the
alleged date, the defendant accessed a
computer and that this access was to a
computer, computer program, computer system,
computer network, or any part thereof that
was owned, operated, or used by any state or
local government entity and that this access
was for the purpose of obtaining services by
means of a false pretense or representation,
and that this defendant acted willfully, it
would be your duty to return a verdict of
guilty. If you do not so find or have a
reasonable doubt as to one or more of these
things, it would be your duty to return a
verdict of not guilty.
The trial court then submitted three separate verdict
sheets to the jury relating to the three charges of accessing a
government computer. The three verdict sheets were identical in
every way except for different file numbers, which were
associated with the underlying indictments. This Court held:
In this case, we note that Defendant does
not argue that the trial court failed to
explain to the jury every essential element
of the crimes charged, but rather, Defendant
takes issue with the fact that the trial
court gave “a generic instruction to the
jury for the categories of the charges.”
This Court has held that similar jury
instructions, categorizing multiple
identical charges in one instruction, did
not constitute plain error. The trial court
in this case provided the jury with a copy
of the instructions and separate verdict
sheets clearly identifying the separate
charges. However, the dispositive point on
this issue is that Defendant has failed to
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explain in her brief how any alleged error
by the trial court in categorizing the jury
instructions prejudiced her trial. Because
Defendant bears the burden of showing that
an error arose to the level of plain error,
. . . and because Defendant failed to meet
this burden, we conclude the trial court did
not commit plain error in its jury
instructions on the elements of the offenses
in this case.
Barr, __ N.C. App. at __, 721 S.E.2d at 406 (citations omitted).
In the present case, Defendant not only fails to argue how
any plain error might have prejudiced him, he argues that plain
error analysis does not apply in this situation. In accord with
Barr, we hold that, because the alleged error is an
instructional error, and Defendant failed to object to the
alleged error at trial, plain error analysis would apply.
However, Defendant does not specifically allege plain error in
his brief, N.C.R. App. P. 10(a)(4), and has “failed to explain
in [his] brief how any alleged error by the trial court in
categorizing the jury instructions prejudiced [him] at trial.”
Barr, __ N.C. App. at __, 721 S.E.2d at 406. Defendant has
abandoned this argument. State v. Gamez, __ N.C. App. __, __,
745 S.E.2d 876, 878, disc. review denied, __ N.C. __, 749 S.E.2d
848 (2013). Because Defendant’s sole argument is deemed
abandoned, we dismiss his appeal.
Dismissed.
Chief Judge MARTIN and Judge CALABRIA concur.
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Report per Rule 30(e).