State v. Ruffin

NO. COA13-744
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Washington County
No. 12 CRS 50089
LOCREAIG DONNELL RUFFIN
Appeal by defendant from judgment entered 29 January 2013
by Judge Benjamin G. Alford in Washington County Superior Court.
Heard in the Court of Appeals 8 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jennie Wilhelm Hauser, for the State.
McCotter Ashton, P.A., by Rudolph A. Ashton, III, and Kirby
H. Smith, III, for defendant-appellant.
STEELMAN, Judge.
Where defense counsel informed the trial court that
defendant had decided to reject a plea offer and proceed to
trial on a charge of first-degree rape, the trial court’s
failure to inform defendant of the increased maximum sentence
for second-degree rape under N.C. Gen. Stat. § 15A-1340.17(f)
was not error. The trial court did not err in allowing the
prosecutor to cross-examine defendant about prior out of state
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criminal convictions or in denying defendant’s motion to dismiss
the charge of second-degree rape for insufficient evidence.
I. Factual and Procedural Background
In January of 2012, J.B., who lived in Plymouth, North
Carolina, met defendant through a telephone dating service.
After talking to defendant on the phone for several weeks, she
invited him to visit in person on the weekend of 8 January 2012.
On 6 January 2012, a friend of J.B.’s picked up defendant in
Greenville and brought him to Plymouth. When J.B. finished work,
she and defendant purchased beer and food and went to a motel,
where they talked, ate, drank beer, and had consensual sex. That
night, defendant talked about his father, who he felt had
mistreated him. The next day, J.B. went to work in the morning
and afterwards she and defendant went to her trailer with more
beer. J.B. slept about two hours, cooked food for defendant, and
they had consensual sex.
Defendant continued drinking during the day and during the
evening he became increasingly agitated about issues that he had
with his father, and threatened to harm J.B. or himself.
Defendant retrieved a machete from J.B.’s closet, pushed her
onto the bed, punched J.B., choked her, held the machete to her
neck, and forced her to have sex with him. After the forcible
intercourse, defendant made her take a shower with him, after
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which they dressed and both took some sedative-laced pain pills.
J.B. and defendant dozed briefly, but when defendant awoke he
was still very agitated and “proceeded to scream and holler.”
J.B. ran into a bathroom and called 911, at which point
defendant ran out of the trailer.
When Deputies Ricks and Spencer of the Washington County
Sheriff’s Department arrived at J.B.’s trailer, Deputy Ricks
noted that J.B. was “crying hysterically and shaking.” The
deputies took a statement from J.B., obtained a photo of
defendant, photographed J.B.’s bruises, and took her to the
hospital.
Defendant was arrested a few hours later, and at around
10:00 a.m. on 8 January 2012, Deputy Spencer met with defendant
at the Washington County jail. Defendant waived his Miranda
rights, and gave Spencer a statement about the events of the
previous 36 hours. His account of the time he had spent with
J.B. was similar to J.B.’s statement; specifically, he admitted
to Spencer that he had forced J.B. to have sex on Saturday. He
told Spencer that J.B. had threatened him with the machete, and
that in response “he got angry and went and got the machete and
put it up to her neck and threatened to cut her head off and
then forced her to have sex with him[.]” J.B. had stated that
defendant had raped her once; however, defendant told Spencer
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that he forced himself on her twice. After Spencer reduced
defendant’s statement to writing, defendant read and initialed
it.
Defendant was indicted on 23 July 2012 in an indictment
whose language described second-degree rape, but whose caption
and cited statute identified the charged offense as first-degree
rape. Prior to trial, the trial court ruled that the indictment
charged defendant with second-degree rape.
Defendant was tried before a jury on 28 and 29 January
2013. Defendant’s mother testified that defendant, who grew up
in Connecticut, suffered a head injury at age two, after which
“his brain didn’t develop like normal” and that he read at a
third or fourth grade level and had difficulty with long term
memory. Defendant’s mother also testified that after defendant
moved to North Carolina about three years earlier, he lived in
Greenville for two years, and had spent “one year in jail.”
Defendant testified that he was 36 years old, lived in
Greenville, North Carolina, and was unemployed but received
disability payments for “mental retardation.” He recalled
speaking with Spencer, but contended that he was “drunk” at the
time and did not remember his answers to her questions, or
remember telling Spencer that he had forced J.B. to have sex. He
testified that he could not read the statement that he had
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initialed. On cross-examination, defendant testified that he
could not recall what happened during the weekend of 8 January
2012, and that he did not “know of” or recall any criminal
convictions from Connecticut. Over objection, the prosecutor
asked defendant about 5 prior criminal convictions in
Connecticut. Defendant denied any recollection of those
convictions. When asked on redirect examination, defendant
testified that he remembered being arrested, but not what he was
charged with.
On 29 January 2013 the jury found defendant guilty of
second-degree rape. The trial court sentenced defendant to an
active sentence of 73 to 100 months. Subsequently, the
Department of Public Safety informed the trial court that the
maximum sentence of 100 months did not correspond to the minimum
sentence of 73 months, since defendant was convicted of a
reportable sex offense as defined in N.C. Gen. Stat. § 14-
208.6(4), and therefore was required to be sentenced under N.C.
Gen. Stat. § 15A-1340.17(f). On 11 March 2013, the trial court
amended its judgment and entered a maximum sentence of 148
months.
Defendant appeals.
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II. Analysis
A. Defense Counsel Places the Plea Arrangement Offered by the
State into the Record
In his first argument, defendant contends that the trial
court committed reversible error by misstating the maximum
sentence for second-degree rape. Defendant asserts that the
trial court’s failure to inform defendant of the maximum
sentence for a conviction of a reportable sex offense “deprived
the defendant of a full understanding of the ramifications of
turning down the State’s plea offer.” We disagree.
N.C. Gen. Stat. § 15A-1340.17(f) states that:
. . . [F]or offenders sentenced for a Class
B1 through E felony that is a reportable
conviction subject to the registration
requirement of Article 27A of Chapter 14 of
the General Statutes, the maximum term of
imprisonment shall be equal to the sum of
the minimum term of imprisonment and twenty
percent (20%) of the minimum term of
imprisonment, rounded to the next highest
month, plus 60 additional months.
N.C. Gen. Stat. § 14-208.6(4) defines “reportable offense”
to include a conviction for “a sexually violent offense, or an
attempt to commit any of those offenses[,]” and N.C. Gen. Stat.
§ 14-208.6(5) defines a “sexually violent offense” to include
second-degree rape. Thus, upon defendant’s conviction for
second-degree rape, his maximum sentence is subject to the
provisions of N.C. Gen. Stat. § 15A-1340.17(f).
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In this case, after the jury was impaneled, but before the
first witness was called to testify, defendant’s attorney asked
to “place on the record” that defendant was charged with first-
degree rape, a Class B1 felony, and that the State had offered
to allow him to plead guilty to a Class D felony. Defendant had
decided not to accept the plea offer and to proceed to trial.
Defense counsel did not identify the Class D felony to which
defendant could plead guilty1 or state the specific terms of the
plea offer. After defense counsel put defendant’s decision to
proceed to a jury trial on the record, the trial court ruled
that the indictment actually charged the offense of second-
degree rape, a Class C felony. The trial court then addressed
defendant:
THE COURT: The Court has reviewed the
indictment and finds that it does properly
allege second-degree rape which is a Class C
felony, and you’re reading from the second
level, and, Mr. Ruffin, if you got convicted
of this, then the Court could sentence you
to a minimum sentence of anywhere between 50
months in the mitigated range to a maximum
minimum sentence of 83 months. If you got 50
months, that would correspond to a maximum
of 72 months. If you got 83 months, then
that would correspond to a maximum of 112
months. Do you understand that?
DEFENDANT: Yes.
1
The only potential Class D felony that is apparent on the
record before us would be attempted second degree rape.
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THE COURT: Okay. Anything the State wants to
say about that?
PROSECUTOR: No, Your Honor.
THE COURT: Okay. [defense counsel], anything
further?
DEFENSE COUNSEL: No, Your Honor.
THE COURT: Okay. And, Mr. Ruffin, at this
time is it your desire to proceed on with
the trial of this case knowing that the
indictment charges second-degree rape, a
Class C felony?
DEFENDANT: Yes.
On appeal, defendant argues that “the trial court’s
improper statement of the maximum punishment deprived the
defendant of an informed decision as to whether or not he should
accept the State’s plea offer[.]” As set out above, after the
trial court ruled that defendant was charged with a Class C
offense, and not a Class B1 felony, the court informed defendant
that if convicted he might receive a minimum sentence of 50 to
83 months, corresponding to a maximum sentence of 72 to 112
months. The trial court did not inform defendant that, if he
were convicted of second-degree rape, his maximum sentence would
be determined under N.C. Gen. Stat. § 15A-1340.17(f), which
would result in a longer maximum sentence than under the felony
sentencing grid set out in N.C. Gen. Stat. § 15A-1340.17(c).
However, based upon the facts of this case, we hold that this
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omission did not deprive defendant of an informed decision or
entitle him to appellate relief.
Assuming that (1) defendant were convicted of either first-
degree rape, second-degree rape, or attempted second-degree
rape; (2) defendant was a prior record level II offender, which
was the record level used by defense counsel and the trial court
in their colloquy with defendant, and; (3) rounding the length
of each sentence to the nearest month, the range of sentences to
which defendant was exposed was:
Offense Class Minimum Corresponding Increased
Sentence Range Maximum Sentence Maximum
(Months) from Sentencing Sentence
Grid
B1 221 278 325
276 344 391
C 67 93 140
83 112 160
D 59 83 131
73 100 148
Defense counsel represented to the trial court that
defendant had elected to be tried for a Class B1 offense, for
which he faced a minimum sentence of 221 months, or 18 years,
and that he had rejected an opportunity to plead guilty to a
Class D offense, for which the minimum sentence was 59 months,
or approximately 5 years. Given that defendant had decided to
risk a sentence of at least 18 years rather than plead guilty,
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there is no basis to infer that he might have changed his mind
based on the difference between the maximum presumptive sentence
for a Class C offense as derived from the sentencing grid – 112
months, or about 9 years – and the increased maximum sentence
for a Class C offense, which is 159 months, or about 13 years.
We conclude that on the facts of this case, the trial court’s
omission of the increased maximum sentence under N.C. Gen. Stat.
§ 15A-1340.17(f) does not entitle defendant to relief.
In arguing for a different result, defendant urges us to
apply N.C. Gen. Stat. § 15A-1022(a) to the facts of this case.
This statute provides that a superior court judge may not accept
a defendant’s guilty plea “without first addressing him
personally” and informing him of his right to remain silent,
ascertaining that he understands the charge against him, his
right to plead not guilty, and the range of possible sentences
he might receive, and “[i]nforming him that by his plea he
waives his right to trial by jury and his right to be confronted
by the witnesses against him[.]” N.C. Gen. Stat. § 15A-
1022(a)(4).
“Because a guilty plea waives certain fundamental
constitutional rights such as the right to a trial by jury, our
legislature has enacted laws to ensure guilty pleas are informed
and voluntary.” State v. Agnew, 361 N.C. 333, 335, 643 S.E.2d
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581, 583 (2007) (citing State v. Sinclair, 301 N.C. 193, 197,
270 S.E.2d 418, 421 (1980)). However, a defendant who elects to
proceed to trial is exercising, rather than waiving, his
constitutional rights. A trial court is not required to make an
inquiry into a defendant’s decision not to plead guilty.
Further, in this case defense counsel represented to the trial
court that defendant had already made the decision to proceed to
trial on a charge of first-degree rape. Counsel did not request
the trial court’s assistance in persuading defendant to change
his mind, or indicate doubts as to defendant’s competence to
make this decision, but simply stated that he wanted to put
defendant’s decision “on the record.” We conclude that N.C. Gen.
Stat. § 15A-1022 is not applicable to this case and that
defendant is not entitled to relief on this basis.2
B. Cross-examination of Defendant
In his next argument, defendant contends that the trial
court erred by “allowing the district attorney to cross-examine
2
Defendant also argues that the trial court erred by not
advising defendant of “the highest level in the aggravated
range[.]” However, N.C. Gen. Stat. § 15A-1340.16(a6) provides
that the “State must provide a defendant with written notice of
its intent to prove the existence of one or more aggravating
factors under subsection (d) of this section . . . at least 30
days before trial[.]” The record is devoid of any indication
that the State provided defendant with the requisite pretrial
notice of intent to prove the existence of any aggravating
factors, or that the State expressed such an intention during
the trial. We hold, based on the record before us, that the
issue of aggravating factors was not pertinent to this trial.
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the defendant about alleged prior convictions after the
defendant initially indicated that he did not recall any” and
that the court erred in allowing the prosecutor “over objection,
[to] read from a list of charges on an unverified DCI printout.”
We disagree.
As a general rule, the “scope of cross-examination lies
within the discretion of the trial judge, and the questions must
be asked in good faith.” State v. Forte, 360 N.C. 427, 442-443,
629 S.E.2d 137, 147 (2006) (citing State v. Williams, 279 N.C.
663, 675, 185 S.E.2d 174, 181 (1971)). N.C. Gen. Stat. § 8C-1,
Rule 609(a) provides that “[f]or the purpose of attacking the
credibility of a witness, evidence that the witness has been
convicted of a felony, or of a Class A1, Class 1, or Class 2
misdemeanor, shall be admitted if elicited from the witness . .
. during cross-examination[.]” In addition, “evidence which
would otherwise be inadmissible may be permissible on cross-
examination ‘to correct inaccuracies or misleading omissions in
the defendant's testimony or to dispel favorable inferences
arising therefrom.’” State v. Braxton, 352 N.C. 158, 193, 531
S.E.2d 428, 448 (2000) (quoting State v. Lynch, 334 N.C. 402,
412, 432 S.E.2d 349, 354 (1993)). However, “a cross-examiner can
elicit only ‘the name of the crime and the time, place, and
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punishment for impeachment purposes under Rule 609(a)[.]’” Id.(quoting Lynch, 334 N.C. at 410, 432 S.E.2d at 353).
In this case, defendant was asked on cross-examination if
he had been convicted of criminal offenses while he lived in
Connecticut. He responded: “Not that I know of, that’s a long
time.” The prosecutor then questioned defendant about specific
criminal convictions, based on a document described at trial as
“a DCI printout showing the convictions.”3 The prosecutor did not
attempt to elicit details about the facts of the offenses, or
pursue the matter further when defendant denied remembering his
alleged prior convictions. On appeal, defendant does not dispute
that the document relied upon by the prosecutor provided a good
faith basis for his questions, and does not argue that the trial
court abused its discretion in allowing this cross-examination
or that the prosecutor exceeded the permissible scope of cross-
examination. We conclude that there was no error in allowing the
prosecutor to cross-examine defendant about prior convictions.
Defendant appears to argue on appeal that the district
attorney was barred from questioning him about his criminal
record unless (1) his questions would also have been admissible
under N.C. Gen. Stat. § 8C-1, Rule 404(b), and (2) the
prosecutor was in possession of a verified copy of the
3
This document has not been included in the record of this case.
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Connecticut judgments meeting the requirements for determining a
defendant’s prior record level for purposes of Structured
Sentencing under N.C. Gen. Stat. § 15A-1340.14. Defendant cites
no authority for either proposition, and we reject these
arguments.
Moreover, even assuming, arguendo, that the trial court
erred by allowing the cross-examination, defendant has failed to
show prejudice. Under N.C. Gen. Stat. § 15A-1443(a), a
“defendant is prejudiced by errors relating to rights arising
other than under the Constitution of the United States when
there is a reasonable possibility that, had the error in
question not been committed, a different result would have been
reached at the trial out of which the appeal arises. The burden
of showing such prejudice under this subsection is upon the
defendant.” Defendant does not argue that the trial would have
had a different result had the cross-examination not been
permitted, and our own review does not suggest that the cross-
examination had an effect on the jury’s verdict. Moreover, we
note that defendant’s mother testified that defendant had spent
“a year in jail” and that on redirect examination defendant
testified that he remembered his arrests, just not the names of
the charged offenses. Given that defendant elicited additional
evidence of his criminal history, and given the substantial
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evidence presented by the State, we cannot hold that defendant
was prejudiced by this cross-examination.
C. Sufficiency of the Evidence
In his last argument, defendant contends that the trial
court erred by denying his motion to dismiss for insufficiency
of the evidence. We disagree.
1. Standard of Review
“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007) (citation omitted). “‘Upon defendant’s
motion for dismissal, the question for the Court is whether
there is substantial evidence (1) of each essential element of
the offense charged, or of a lesser offense included therein,
and (2) of defendant’s being the perpetrator of such offense. If
so, the motion is properly denied.’” State v. Fritsch, 351 N.C.
373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes,
334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (internal quotation
omitted)).
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164,
169 (1980) (citation omitted). “In making its determination, the
trial court must consider all evidence admitted, whether
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competent or incompetent, in the light most favorable to the
State, giving the State the benefit of every reasonable
inference and resolving any contradictions in its favor.” State
v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
“Contradictions and discrepancies do not warrant dismissal of
the case; rather, they are for the jury to resolve. Defendant’s
evidence, unless favorable to the State, is not to be taken into
consideration.” State v. Franklin, 327 N.C. 162, 172, 393 S.E.2d
781, 787 (1990) (citations omitted). In this case, since
defendant presented evidence, we only review the sufficiency of
the evidence as of the close of all of the evidence. See State
v. Britt, 87 N.C. App. 152, 154, 360 S.E.2d 291, 292 (1987).
2. Analysis
N.C. Gen. Stat. § 14-27.3(a) states that “[a] person is
guilty of rape in the second-degree if the person engages in
vaginal intercourse with another person: (1) By force and
against the will of the other person[.]” Therefore, the
“elements of second-degree rape are that the defendant (1)
engage in vaginal intercourse with the victim; (2) by force; and
(3) against the victim’s will. N.C. Gen. Stat. § 14-27.3.” State
v. Scercy, 159 N.C. App. 344, 352, 583 S.E.2d 339, 344, disc.
review denied, 357 N.C. 581, 589 S.E.2d 363 (2003).
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At trial, J.B. testified that defendant brandished a
machete and beat her in order to force her to have vaginal
intercourse against her will. Her testimony was corroborated by
photos of her bruises and by her statements to the investigating
officers. Moreover, Deputy Spencer testified that defendant made
a statement in which he admitted threatening J.B. with a machete
in order to force her to have sex. This evidence was sufficient
to merit the submission of the charge of second-degree rape to
the jury.
On appeal, defendant does not dispute the existence of the
evidence discussed above. Rather, he directs our attention to
other evidence, such as the parties’ consumption of alcohol, and
the fact that J.B. acknowledged engaging in several prior
instances of consensual sex with defendant, that tended to
weaken the State’s case. However, “[c]ontradictions and
discrepancies do not warrant dismissal of the case but are for
the jury to resolve.” State v. Johnson, 203 N.C. App. 718, 724,
693 S.E.2d 145, 148 (2010) (citing State v. Benson, 331 N.C.
537, 544, 417 S.E.2d 756, 761 (1992). The trial court did not
err in denying defendant’s motion for dismissal.
For the reasons discussed above, we conclude that defendant
had a fair trial, free of reversible error.
NO ERROR.
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Judges STEPHENS and DAVIS concur.