State v. Combs

• Citation: 739 S.E.2d 584
• Decision Date: 19 March 2013
• Docket Number: No. COA12–1008.,COA12–1008.
• Parties: STATE of North Carolina v. Ray Dean COMBS, Defendant.
• Court: Court of Appeal of North Carolina (US)

739 S.E.2d 584

STATE of North Carolina

v.Ray Dean COMBS, Defendant.

No. COA12–1008.

Court of Appeals of North Carolina.

March 19, 2013.

Appeal by defendant from judgments entered on or about 15 March 2012 by Judge Anderson Cromer in Superior Court, Ashe County. Heard in the Court of Appeals 14 February 2013.

Attorney General Roy A. Cooper, III by Assistant Attorney General David Gordon, for the State.

William D. Spence, for defendant-appellant.

STROUD, Judge.

Ray Dean Combs (“defendant”) appeals from judgments entered on or about 15 March 2012. He argues that the trial court erred in denying his motion to dismiss the child rape charges against him, and in providing written instructions to the jury when one juror was illiterate. Defendant further argues that the trial court committed plain error by instructing the jury on theories of culpability that the evidence did not support. We disagree.

I. Background

Sometime during 2008, defendant moved in with his girlfriend and his girlfriend's daughter Tiffany.¹ In May 2010, when Tiffany was eleven years old, she disclosed to her teacher that defendant had raped her. At the time of trial, Tiffany was thirteen years old, and defendant was fifty eight years old.

Defendant was indicted on ten counts of rape of a child and ten counts of first-degree sexual offense. Defendant pleaded not guilty and the case went to a jury trial. During jury selection, a jury member informed the court that he was unable to read and had difficulty writing. Defendant's attorney requested the trial court excuse the juror for cause, but the trial court denied this request.

At the close of the State's evidence, the trial court dismissed two of the two-count indictments of rape of a child and first-degree sexual offense because Tiffany only testified about the period of abuse beginning after the time specified in those indictments. The case went to a jury verdict on eight counts of rape of a child and eight counts of sexual offense with a child. The evidence presented at trial showed that over the course of the two years that defendant lived with Tiffany and her mother, defendant sexually abused Tiffany by engaging in vaginal intercourse, anal intercourse, fellatio, and digital penetration.

At the conclusion of the evidence presented, the trial court orally instructed the jury on the charges. The oral instructions for first-degree sexual offense included five acts that could constitute a sexual act. Upon request for clarification from the jury, the trial court gave written instructions of these charges. The jury found defendant guilty of all charges. The trial court consolidated the convictions into four judgments and sentenced him to four consecutive terms of 300–369 months confinement in the Division of Adult Correction. Defendant gave timely notice of appeal in open court.

II. Sufficiency of the Evidence

Defendant first argues that the trial court erred in denying his motion to dismiss the charges against him for rape of a child. Defendant contends that there was insufficient evidence presented at trial for a reasonable juror to find defendant guilty of these charges. For the following reasons, we disagree.

A defendant's motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant's being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.

State v. Teague, ––– N.C.App. ––––, ––––, 715 S.E.2d 919, 923 (2011) (citation and quotation marks omitted), disc. rev. denied,––– N.C. ––––, 720 S.E.2d 684 (2012).

Defendant was convicted of eight counts of rape of a child under N.C. Gen.Stat. § 14–27.2A. Under this statute, the State must prove that defendant “is at least 18 years of age and engage[d] in vaginal intercourse with a victim who is a child under the age of 13 years.” N.C. Gen.Stat. § 14–27.2A (2009).

Defendant only contends that there is insufficient evidence that he engaged in vaginal intercourse with Tiffany.² Vaginal intercourse is defined as “penetration, however slight, of the female sex organ by the male sex organ.” State v. Fletcher, 322 N.C. 415, 424, 368 S.E.2d 633, 638 (1988) (finding no error in a jury instruction with such wording). Generally, a jury may find a defendant guilty of an offense based solely on the testimony of one witness. State v. Vehaun, 34 N.C.App. 700, 704, 239 S.E.2d 705, 709 (1977) (citation omitted), disc. rev. denied,294 N.C. 445, 241 S.E.2d 846 (1978); see, e.g., State v. Quarg, 334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993) (“The uncorroborated testimony of the victim is sufficient to convict under N.C.G.S. § 14–202.1 [taking indecent liberties with children] if the testimony establishes all of the elements of the offense.” (citation omitted)).

Here, there was substantial testimony to establish that defendant engaged in vaginal intercourse with Tiffany. Tiffany testified at trial that defendant put his “manhood inside her middle hole.” She testified that this insertion had occurred more than five times and pointed to defendant in court as the person who had hurt her.

Defendant argues this testimony is vague and ambiguous. A witness does not have to “use any particular form of words to indicate that penetration occurred.” State v. Kitchengs, 183 N.C.App. 369, 375, 645 S.E.2d 166, 171,disc. rev. denied,361 N.C. 572, 651 S.E.2d 370 (2007). Nevertheless, where the only evidence of penetration is uncorroborated, ambiguous testimony, our Supreme Court has held that there is insufficient evidence to withstand a motion to dismiss. State v. Hicks, 319 N.C. 84, 90, 352 S.E.2d 424, 427 (1987). In State v. Hicks, our Supreme Court held that the witness' “ambiguous testimony” that the defendant had “ ‘put his penis in the back of [her]’ ” was insufficient to support a jury finding of anal penetration without “corroborative evidence (such as physiological or demonstrative evidence).” Id.

In State v. Estes, although the prosecuting witness used ambiguous terms, we distinguished Hicks because she clarified her use of ambiguous terms by other testimony. State v. Estes, 99 N.C.App. 312, 315–16, 393 S.E.2d 158, 160 (1990). In Estes, the witness testified that “the defendant put his penis in the ‘back’ and then explained that she meant ‘where I go number two.’ ” Id. at 316, 393 S.E.2d at 160. We held that the “testimony, taken as a totality, is sufficient evidence that the defendant penetrated the anal opening.” Id.

The present case is more analogous to Estes. While Tiffany did use potentially ambiguous terms such as “middle hole” and “bottom hole,” her testimony was far from ambiguous. Like the witness in Estes, she explained these ambiguous terms. Tiffany distinguished between a middle hole “where babies come from,” a bottom hole where things come out of that go in the toilet, and a third hole from which she urinates. She also described defendant's manhood as “down at the bottom but on the front” and not a part a woman has. Tiffany's testimony made clear what parts she was referring to during her descriptions of sexual abuse, unlike Hicks. Given her explanation of these body parts, her statement that defendant put his “manhood inside her middle hole” clearly describes vaginal penetration by the male sex organ.

Defendant further argues that Tiffany's testimony is overly contradictory, though he fails to highlight any specific contradiction in the record. It is well established that “contradictions and discrepancies are for the jury to resolve and do not warrant dismissal.” State v. Hill, 365 N.C. 273, 275, 715 S.E.2d 841, 843 (2011) (citation and quotation marks omitted). Thus, this argument is unavailing.

In fact, there was a great deal of other evidence to support Tiffany's testimony. The State introduced a drawing that she made in her diary after an incident of vaginal intercourse. The drawing showed Tiffany and defendant on her bed with “his manhood going inside of [her].” Cf. State v. Mueller, 184 N.C.App. 553, 568–69, 647 S.E.2d 440, 451–52 (finding evidence sufficient to support a conviction for second-degree forcible sexual offense based on the minor child's testimony and her diary entries describing the defendant choking and threatening her), disc. rev. denied,362 N.C. 91, 657 S.E.2d 24 (2007). Her testimony is further supported by sperm found on her bed that matched the defendant's DNA.

A medical expert also testified that she found signs of vaginal penetration during an examination of Tiffany. Tiffany disclosed to a detective that defendant had raped her on 24 May 2010. A general family practitioner, admitted as an expert, testified that she saw Tiffany on 25 May and observed redness around her vaginal opening consistent with vaginal penetration. Another medical expert, who examined Tiffany on 1 June, testified that Tiffany showed signs of chronic penetration over at least a six-month period because she had a thickened, rolled hymen and a notch in the posterior of her hymen indicating a tear.

Taken in the light most favorable to the State, Tiffany's testimony, supported by her contemporaneous diary drawing, defendant's sperm in an area of abuse, and the medical testimony provide substantial evidence of all elements of the offense of rape of a child and to identify defendant as the abuser. Therefore, we hold that the trial court did not err in denying defendant's motion to dismiss the charge of rape of a child.

III. Written Jury Instructions

Defendant next argues that the trial court erred in failing to give additional jury instructions in open court and failed to make them a part of the record as required...