State v. Browning

• Decision Date: 16 May 2006
• Docket Number: No. COA05-831.,COA05-831.
• Citation: 629 S.E.2d 299
• Parties: STATE of North Carolina v. Brett Charles BROWNING.
• Court: North Carolina Court of Appeals

629 S.E.2d 299

STATE of North Carolina v. Brett Charles BROWNING.

No. COA05-831.

Court of Appeals of North Carolina.

May 16, 2006.

Appeal by defendant from judgment entered 26 January 2005 by Judge Edwin G. Wilson, Jr. in Superior Court, Randolph County. Heard in the Court of Appeals 22 March 2006.

Attorney General Roy Cooper, by Assistant Attorney General Jane Rankin Thompson, for the State.

Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., Chapel Hill, for defendant-appellant.

McGEE, Judge.

Brett Charles Browning (defendant) was convicted of (1) statutory rape in violation of N.C. Gen.Stat. § 14-27.7A(a) and (2) taking indecent liberties with a child in violation of N.C. Gen.Stat. § 14-202.1. Defendant was acquitted of a charge of crime against nature. The trial court sentenced defendant to a term of 144 months to 182 months in prison. Defendant appeals.

At trial, A.R. testified that she was fourteen years old when she met defendant at his place of employment in the fall of 2002. She testified that when she met defendant, she told him she was fourteen years old. A.R. and defendant began a friendship and regularly "hung out" at defendant's house three to four times a month.

A.R. testified she called defendant on Friday, 5 March 2004, when she was fifteen years old, and that defendant picked her up at her house. A.R. and defendant drove to an ABC store and defendant purchased liquor. A.R. and defendant ate at a McDonald's restaurant and, afterwards, went to defendant's house.

A.R. testified that at defendant's house, she played video games and began to watch a movie with defendant. She drank two shots of liquor and ate pizza with defendant. After a while, A.R. lay down on a couch and fell asleep. When she woke up, defendant was kissing her on her face, neck and arms. A.R. told defendant to take her home, but defendant said he would not take her home "until [it was] over." A.R. testified that defendant then nudged her into a bedroom and engaged in oral and vaginal sex with her.

A.R. testified that on the following Monday, 8 March 2004, she got into an argument at school with three other students and was sent to see the guidance counselor, Linda Thrift (Ms. Thrift). A.R. told Ms. Thrift that she had been raped on the previous Friday by defendant, a man in his thirties.

Ms. Thrift testified she was a guidance counselor and in 2004, had worked at the school A.R. attended. Ms. Thrift testified she met with A.R. on Monday, 8 March 2004. The State introduced into evidence Ms. Thrift's written statement regarding her conversation with A.R. The trial court admitted the statement and advised the jury that the statement was admitted for the purpose of corroboration only. Ms. Thrift read from her written statement that A.R. "told me she was raped the previous Friday night by a man who was in his thirties."

Ms. Thrift further testified that she reported the rape to the Department of Social Services and to the school's resource officer. In response to the State's question regarding what Ms. Thrift told the school resource officer, Ms. Thrift testified as follows:

A. I didn't have to go into much. I — In a case like this, I'm not going to go into details because that's not something I have to know about. All I have to know, have a suspicion that something happened and it was not right. And I —

Q. Okay. Well, let me ask you then, are you law enforcement?

A. No.

Q. Why didn't you ask for more details about what happened?

A. Because I didn't need to know that. The — That's — I don't do the investigation. All I have to have is a suspicion that something happened, and [A.R.'s] behavior and the way [A.R.] was acting and just knowing [A.R.], I believed what [A.R.] was saying.

[DEFENSE COUNSEL]: Object, Your Honor, please. Move to strike.

THE COURT: Overruled.

Defendant testified on his own behalf at trial. Defendant testified that A.R. told him she was sixteen years old when he first met her. Defendant further testified that when he met A.R., she asked him if she could drive his car. Defendant asked A.R. if she had a driver's license and A.R. showed defendant a New York driver's license with her picture on it. Defendant testified that he saw A.R. purchase cigarettes on several occasions. Defendant said he was led to believe that A.R. was a senior in high school in 2004. Defendant admitted that he engaged in oral and vaginal sex with A.R. on 5 March 2004, and that he was forty-two years old at the time.

On cross-examination of defendant, the State engaged in the following inquiry regarding an incident unrelated to the charges for which defendant was on trial:

Q. Yes, sir. . . . You remember Detective Thompson?

A. Yes, sir.

Q. Okay. And Detective Thompson asked you on three separate occasions if you knew anything about the thefts of electronic equipment from [defendant's place of employment]?

A. I don't remember.

Q. And do you — You've never seen him before?

A. I said I'd seen him before, yes, but I don't recollect him asking me on three separate occasions.

Q. Okay. Well, how many times did he ask you if you [knew] anything about the thefts from [defendant's place of employment]?

A. He did ask me about that, yes.

Q. And that was the theft of electronic equipment of the store that you were the manager, is that right?

A. Not electronic equipment, it was a single camera.

Q. Oh, it was just one thing. He just asked you about one thing?

A. Yes, sir.

Q. And you lied to him?

A. Yes, sir.

Q. And then you later admitted to him that you lied to him?

A. I don't remember ever saying I lied to him. I admitted a full confession.

Q. You admitted stealing the items from [defendant's place of employment]?

A. Yes.

Q. Okay. No further questions. Thank you, sir.

Based upon evidence showing that defendant believed A.R. was over the age of fifteen when he engaged in sexual relations with her, defendant requested a jury instruction regarding the defense of a reasonable mistake of fact as to A.R.'s age. The requested instruction stated as follows:

The [d]efendant contends that he was acting under the reasonable belief that the complaining witness was greater than 15 years of age. If you find from the evidence that the [d]efendant acted under a reasonable belief that the complaining witness in this case was greater than fifteen (15) years of age at the time the [d]efendant and the witness engaged in vaginal intercourse, it would be your duty to find the [d]efendant not guilty. If the facts were as the defendant honestly believed them to be, the defendant's conduct would not be criminal.

The trial court denied defendant's request and did not give defendant's requested instruction.

I.

Defendant first argues the trial court erred by denying his requested jury instruction on reasonable mistake of fact as to A.R.'s age. Defendant relies upon the United States Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Defendant specifically argues in his brief that although Lawrence "does not prevent the criminalization of sexual conduct with minors, . . . Lawrence supports a mistake of age claim because a defendant's reasonable belief that his partner fell outside the age restriction would entitle him to constitutional protection." Defendant further explains that this "result attends because [a defendant] would not have the requisite mens rea or criminal intent necessary to justify punishment."

A trial court must give a jury instruction requested by a defendant, at least in substance, if that instruction is proper and supported by the evidence. State v. Craig, 167 N.C.App. 793, 795, 606 S.E.2d 387, 388 (2005). However, "`[t]he proffered instruction must . . . contain a correct legal request and be pertinent to the evidence and the issues of the case.'" Id. (quoting State v. Scales, 28 N.C.App. 509, 513, 221 S.E.2d 898, 901, disc. review denied, 289 N.C. 619, 223 S.E.2d 395 (1976)). A trial court, in its discretion, may refuse to give a legally erroneous instruction. Craig, 167 N.C.App. at 795, 606 S.E.2d at 388.

In the present case, defendant's requested instruction was not supported by the law of our State. N.C. Gen.Stat. § 14-27.7A(a) (2005) directs as follows:

A defendant is guilty of a Class B1 felony if the defendant engages in vaginal intercourse or a sexual act with another person who is 13, 14, or 15 years old and the defendant is at least six years older than the person, except when the defendant is lawfully married to the person.

Statutory rape, under N.C.G.S. § 14-27.7A is a strict liability crime. State v. Sines, 158 N.C.App. 79, 84, 579 S.E.2d 895, 899, cert. denied, 357 N.C. 468, 587 S.E.2d 69 (2003). "Criminal mens rea is not an element of statutory rape." State v. Ainsworth, 109 N.C.App. 136, 145, 426 S.E.2d 410, 416 (1993) (citing State v. Rose, 312 N.C. 441, 445, 323 S.E.2d 339, 342 (1984)). In State v. Anthony, 133 N.C.App. 573, 516 S.E.2d 195 (1999), aff'd, 351 N.C. 611, 528 S.E.2d 321 (2000), our Court held that mistake of fact is no defense to statutory rape. Id. at 579, 516 S.E.2d 195, 516 S.E.2d at 199. "[I]t is clear the manifest intent of the legislature was for § 14-27.7A to protect children in the three full years following age twelve." State v. Roberts, 166 N.C.App. 649, 652, 603 S.E.2d 373, 375 (2004), disc. review denied, 359 N.C. 325, 611 S.E.2d 843 (2005).

Moreover, we do not agree with defendant's contention that Lawrence has "altered the legal landscape" regarding the availability of a mistake of fact defense to statutory rape. In Lawrence, the United States Supreme Court declared unconstitutional a Texas law banning homosexual sodomy and recognized that private, consensual sexual activity between adults is constitutionally protected conduct under the due process clause of the Fourteenth Amendment. Lawrence, 539 U.S. at 578-79, 123 S.Ct. at 2484-85, 156 L.Ed.2d at 525-26. However, the Supreme Court specifically limited its...