State v. Moore

• Decision Date: 04 June 1991
• Docket Number: No. 9028SC431,9028SC431
• Citation: 404 S.E.2d 695,103 N.C.App. 87
• Parties: STATE of North Carolina v. James MOORE, Jr.
• Court: North Carolina Court of Appeals

Page 695

404 S.E.2d 695

103 N.C.App. 87

STATE of North Carolina v. James MOORE, Jr.

No. 9028SC431.

Court of Appeals of North Carolina.

June 4, 1991.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Mary Jill Ledford, Raleigh, for the State.

Whalen, Hay, Pitts, Hugenschmidt, Master, Devereux & Belser, P.A. by David G. Belser, Ashville, for defendant-appellant.

EAGLES, Judge.

I.

Defendant first assigns as error the trial court's admission into evidence of a statement possessed by the State containing defendant's admission that he had sexually abused another child, when the State had not revealed the statement in response to a discovery request by defendant. Defendant argues that "the introduction into evidence of damaging statements made by defendant to Department of Social Services (D.S.S.) personnel was improper in light of the fact that such statements were not made available to defendant prior to trial as required by law." Defendant contends that he was "incapable of mounting an appropriate defense as required by due process of law." Defendant also contends that the trial court's refusal to grant his motion for discovery sanctions was also improper because G.S. 15A-903(d) requires disclosure of the documents and the trial court's legal analysis on this issue was improper. Defendant argues that the trial court's "failure to impose any discovery sanction amounted to an abuse of discretion." Defendant argues that the trial court's refusal to grant his discovery sanctions request amounted to reversible error. We disagree.

Upon motion of a defendant, a trial court must order the prosecutor to permit a defendant to inspect and copy any relevant written or recorded statements in the State's control that were made by a defendant. N.C.G.S. § 15A-903(a)(1) (1983). Further, N.C.G.S. § 15A-903(a)(2) provides that upon motion, the trial court must order the prosecutor to divulge any oral statements made by the defendant that are relevant to the case. When a party fails to comply with the order, the trial court may grant a continuance or a recess, prohibit the violating party from introducing the non-disclosed evidence, or enter any other appropriate order. N.C.G.S. § 15A-910 (1983). Because the trial court is not required to impose any sanctions for abuse of discovery orders, what sanctions to impose, if any, is within the trial court's discretion, State v. Alston, 307 N.C. 321, 298 S.E.2d 631 (1983), including whether to admit or exclude evidence not disclosed in accordance with a discovery order. State v. Braxton, 294 N.C. 446, 242 S.E.2d 769 (1978).

State v. Weeks, 322 N.C. 152, 171, 367 S.E.2d 895, 906 (1988). We note that here defendant did not seek imposition of sanctions generally but limited his request to exclusion of the evidence and mistrial. The trial court refused to impose either of those sanctions and no others were requested. "A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Gladden, 315 N.C. 398, 412, 340 S.E.2d 673, 682, cert. denied, 479 U.S. 871, 107 S.Ct. 241, 93 L.Ed.2d 166 (1986).

We note that G.S. 15A-903(a)(2) requires the disclosure of "any oral statement relevant to the subject matter of the case made by the defendant, regardless of to whom the statement was made, within the possession, custody, or control of the State[.]" Without addressing whether G.S. 15A-903(a)(2)'s requirement for disclosure would operate to permit the court to exclude the evidence, we hold that the trial court did not abuse its discretion in admitting the statement after cross-examination. Here, during a bench conference the prosecutor admitted that she was aware of the statement but believed that she could not successfully offer the statement into evidence in her case in chief since she had not provided the statement pursuant to defendant's request. In its ruling, the trial court stated that the statement was not directly relevant to the instant case since it involved another child and the mother of the child. The trial court noted that the State had not initially attempted to introduce the statement. However, the court pointed out that defendant had "opened the door" to the matter and relying on the business record exception to the hearsay rule, had questioned the witness about DSS files on the Moore family which contained defendant's statement that he had abused another child. Because defendant had "opened the door," the trial court then allowed the State on redirect examination to ask further questions about the prior allegation of abuse with another victim. On this record, we hold that the trial court did not abuse its discretion in admitting the evidence since defendant had in fact "opened the door."

II.

Defendant next assigns as error the trial court's refusal to dismiss based on the insufficiency of the evidence. Defendant argues that "the evidence presented by the State failed to prove the essential element of penetration of the victim's vagina by the defendant, and was therefore insufficient to prove the offense of First Degree Rape as defined [in] N.C.G.S. § 14-27.2." Defendant contends that "the evidence was simply too uncertain and insufficient for a jury to find the element of penetration beyond a reasonable doubt." We disagree.

For a charge of first degree rape to withstand a motion to dismiss for insufficient evidence, there must be evidence among other things, that defendant engaged in vaginal intercourse with the victim. G.S. 14-27.2. In ruling on a motion to dismiss for insufficient evidence the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference which can be drawn from that evidence. State v. Bell, 311 N.C. 131, 138, 316 S.E.2d 611, 615 (1984). There must be substantial evidence of each essential element of the offense charged, together with evidence that defendant was the perpetrator of the offense. State v. Gardner, 311 N.C. 489, 510-11, 319 S.E.2d 591, 605 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1232, 84 L.Ed.2d 369 (1985).

State v. Green, 95 N.C.App. 558, 562, 383 S.E.2d 419, 421 (1989). "Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. Further, '[t]he trial court is not required to determine that the evidence excludes every reasonable hypothesis of innocence prior to denying a defendant's motion to dismiss.' " State v. Bruce, 315 N.C. 273, 281, 337 S.E.2d 510, 516 (1985).

In Green, supra, the seven year old victim, answered affirmatively when asked if defendant, who was her biological father, had " 'put his private parts in [her] private parts.' " 95 N.C.App. at 559, 383 S.E.2d at 420. The victim also answered affirmatively when asked if defendant had " 'put his private parts in [her] mouth,' " id., and if defendant had " 'lick[ed her] private parts.' " Id. at 560, 383 S.E.2d at 420. In Green, the State presented corroborative evidence from the victim's mother, a police detective and the doctor who examined the victim and testified that the findings from the physical examination of the child were " 'compatible with penile penetration.' " Id. at 563, 383 S.E.2d at 422. The Green court held this evidence sufficient to withstand defendant's motion to dismiss.

In State v. Estes, 99 N.C.App. 312, 393 S.E.2d 158 (1990), defendant there argued that the victim's testimony that defendant " 'stuck his thing' in the 'back and front' of the child," id. at 315, 393 S.E.2d at 160, notwithstanding any physical evidence or demonstration by the victim on anatomically correct dolls of the alleged misconduct was insufficient evidence of penetration for first degree sexual offense. The Estes court noted that our Supreme Court in State v. Hicks, 319 N.C. 84, 352 S.E.2d 424 (1987) found the victim's testimony that defendant " 'put his penis in the back of me,' " id., 99 N.C.App. at 316, 393 S.E.2d at 160, insufficient to withstand a motion to dismiss. The Estes court, however, distinguished its case from Hicks because in Estes the victim further identified the "back of her" as " 'where I go number two.' " Id.

Here the victim testified that defendant "hurt [her] in the private parts." She then demonstrated how defendant hurt her using anatomically correct dolls. The victim identified the female doll as herself and the male doll as her father. The victim then placed the penis, which she identified as "peanut" against the vaginal area of the female doll, which she indicated was her "private parts." The victim also identified defendant's home as the location where defendant "put his private parts in [her] private parts." The victim also replied "no" when asked if "anybody else ever touched you in your private parts." Further, Detective Loeffler testified that the child demonstrated what defendant did to her with anatomically correct dolls by "[sticking] the penis of the male doll around the vaginal area of the female doll." Rosemary Provencher also testified that the victim "took the penis of the male doll and put it around the area, the vaginal area of the female doll" when demonstrating what defendant did to her. Finally, Dr. Gravatt testified that the victim's vaginal opening was significantly larger than that of a child four to five years of age, that there was no hymenal tissue, that there was "ragged scar tissue" in the process of healing and that the victim had a urinary tract infection which is typically seen in sexually abused children. Dr. Gravatt further testified that the victim's injuries were consistent with sexual abuse and that "there [was] no way that normal childhood play or accidents could [have] cause[d] the type of findings on this physical exam." We find the cases cited by defendant distinguishable and defendant's arguments unpersuasive. Accordingly, this assignment of error is overruled.

III.

Defendant...