State v. Elliott, No. COA07-626 (N.C. App. 9/2/2008)
| Decision Date | 02 September 2008 |
| Docket Number | No. COA07-626,COA07-626 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. SANTIAGO BONEE ELLIOTT, Defendant. |
William D. Spence for defendant-appellant.
Defendant Santiago Bonee Elliott appeals his convictions for statutory rape of a 13-year-old girl and taking indecent liberties with a child. Defendant argues primarily that the trial court should have granted his motion to dismiss the charges for insufficient evidence. We hold that the evidence, including the prosecuting witness' testimony that she had "sex" with defendant, was sufficient to support both of defendant's convictions. Defendant also contends that the trial court erred under Rule 404(b) of the Rules of Evidence in admitting evidence that he had previously engaged in sexual intercourse with another girl who was 14 years old. Because the circumstances of both incidents were sufficiently similar and took place only eight months apart, we hold the testimony was properly admitted as evidence of a common plan or scheme.
The State's evidence tended to show the following facts. On 17 June 2005, Officer Benjamin Himan and Investigator J.J. Cartwright of the Durham Police Department were parked at an intersection watching for possible drug deals. Shortly after midnight, the officers stopped a Honda Civic driven by defendant because the license plate light was broken. Defendant was the driver; "Susan" was in the front passenger seat.1 Officer Himan noticed that defendant's pants zipper was down, and his belt was unbuckled. As defendant was retrieving his license and registration from the glove compartment, Officer Himan saw several cut-up plastic bags. Suspicious that defendant might have hidden drugs down his pants, Officer Himan asked defendant if he had any drugs or guns in his possession. When defendant responded "no," Officer Cartwright directed defendant to get out of the car, and, after defendant consented to being searched, Cartwright found eight bags of "leafy vegetable matter" in defendant's pockets.
At this point, Officer Himan asked Susan to exit the car and sit nearby on the sidewalk to be interviewed. When Himan asked Susan what defendant had been doing, she responded: "we just got finished." Himan went back to defendant's vehicle and began searching the backseat; he found what appeared to be fresh wetstains on the backseat of the car and an earring matching the one Susan was wearing. Himan returned and asked Susan if she had been referring to sex when she said they had "just finished." She responded, "no." When asked what she had been doing in the backseat and why her earring was back there, Susan replied, "I don't know," began to cry, and then admitted she had had sex with defendant at his cousin's place. She continued to deny having sex with defendant in the backseat of his car. Although she was 13 years old, she told the officers that she was 15.
Defendant, who was 32 years old, was indicted for statutory rape of a person 13 years old and for taking indecent liberties with a child. At defendant's 12 September 2006 trial, Susan testified that she had lied to the police on 17 June 2005 and that she had, in fact, had sex with defendant that night in the backseat of his car. Rachel Wynn, an expert in forensic serology and biology, testified that she recovered sperm from Susan's "external vagina" during her sexual assault examination. The sperm was analyzed, and Kristin Meyer, an expert in DNA analysis, testified that "it is scientifically unreasonable to believe that the DNA profile obtained from the sperm fraction of the external vaginal swabs came from anybody other than the suspect . . . ." Defendant presented no evidence.
The jury found defendant guilty of both statutory rape and taking indecent liberties with a child. The trial court consolidated the offenses and sentenced defendant to a presumptive-range sentence of 288 to 355 months imprisonment. Defendant timely appealed to this Court.
Defendant's primary argument on appeal is that the trial court erred by denying his motions to dismiss the statutory rape and indecent liberties charges. A defendant's motion to dismiss should be denied if there is substantial evidence: (1) of each essential element of the offense charged, and (2) of defendant's being the perpetrator of the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion. Id. at 597, 573 S.E.2d at 869. On review of a denial of a motion to dismiss, this Court views the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Id. at 596, 573 S.E.2d at 869. Contradictions and discrepancies do not warrant dismissal of the case, but rather are for the jury to resolve. Id.
A. Statutory Rape
Defendant was indicted for statutory rape under N.C. Gen. Stat. § 14-27.7A(a) (2007), which states in pertinent part that the defendant is guilty of the offense "if the defendant engages in vaginal intercourse . . . 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." For purposes of this statute, vaginal intercourse "is proven if there is the slightest penetration of the sexual organ of the female by the sexual organ of the male." State v. Robinson, 310 N.C. 530, 533-34, 313 S.E.2d 571, 574 (1984).
Defendant contends that there was insufficient evidence of vaginal intercourse. During Susan's direct examination, however, she gave the following testimony:
Q And when — in fact, did you have sex with [defendant] that night?
A Yes.
Q And where did you have sex with him?
Although defendant argues that the prosecutor's first question was ambiguous, and, therefore, Susan's first answer was necessarily ambiguous, any ambiguity in the prosecutor's question regarding whether sexual intercourse occurred was clarified by her second question regarding where the sexual intercourse occurred.
Defendant also argues that Susan's testimony that she did "have sex" with defendant is, without more, insufficient evidence of penetration. This testimony is not, however, the only testimony pertinent to the issue of vaginal penetration. Susan also testified that she "lied and said no" when the officers asked whether she "was having sex" with defendant. Officer Himan corroborated Susan's testimony, testifying that when he asked her, in the car, whether defendant had shoved anything down his pants, she said, He also noted that Susan told him that "this was the first time she hadn't used protection when having sex." Officer S. Montgomery, who interviewed Susan more fully, testified that Susan said she and defendant had"climbed into the backseat, and she pulled her pants off, and he pulled his pants down." Susan also told the officer that 2
The evidence in this case is materially indistinguishable from that found sufficient on the issue of penetration in State v. Kitchengs, 183 N.C. App. 369, 375, 645 S.E.2d 166, 171, disc. review denied, 361 N.C. 572, 651 S.E.2d 370 (2007). In Kitchengs, the Court noted that the transcript contained the following pertinent evidence:
During her testimony, T.M. stated: (1) that Defendant helped T.M. pull her pants and underwear down; (2) that she was "laying down[;]" and (3) that Defendant "took his thing out." T.M. also answered "[y]es" to the State's inquiry as to whether T.M. and Defendant then had sex. Further, T.M. stated that the incident took about five minutes. T.M.'s testimony was corroborated by the testimony of Mann. Mann testified she asked T.M. whether T.M. had sex with Defendant and T.M. stated that she did. Mann also testified that T.M. claimed to have contracted a sexually transmitted disease from Defendant. Also, during Deputy Carr's testimony on rebuttal, he testified that Defendant denied "rap[ing]" T.M.
Id. The Court then held: Id. at 376, 645 S.E.2d at 171-72.
Defendant acknowledges Kitchengs, but urges us to "re-examine the holding in Kitchengs, overrule Kitchengs on this issue, and hold that the State failed to prove penetration in this appeal." We are not, however, permitted to do so. Only the Supreme Court may revisit Kitchengs. See In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (). Kitchengs establishes that the evidence in this case was sufficient to prove penetration.
Alternatively, defendant argues that because Susan's testimony was impeached by her prior statements to the police in which she denied having sex with defendant, her testimony cannot be sufficient to defeat a motion to dismiss. Relying predominately on State v. Wilson, 293 N.C. 47, 235 S.E.2d 219 (1977), and State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967)...
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