State v. Mueller

• Decision Date: 17 July 2007
• Docket Number: No. COA05-1524.,COA05-1524.
• Citation: 647 S.E.2d 440
• Parties: STATE of North Carolina v. Raymond Lee MUELLER.
• Court: North Carolina Court of Appeals

647 S.E.2d 440

STATE of North Carolina v. Raymond Lee MUELLER.

No. COA05-1524.

Court of Appeals of North Carolina.

July 17, 2007.

Appeal by defendant from judgments entered 3 May 2005 by Judge Ronald K. Payne in Hoke County Superior Court. Heard in the Court of Appeals 16 August 2006.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Margaret A. Force, for the State.

Parish & Cooke, by James R. Parish, Fayetteville, for defendant-appellant.

JACKSON, Judge.

On 6 October 2003, Raymond Lee Mueller ("defendant") was indicted for thirty-three felonies and three misdemeanors, on charges of first-degree statutory rape, first-degree statutory sexual offense, statutory rape of a person who is 13, 14, or 15 years old, statutory sexual offense against a person who is 13, 14, or 15 years old, second-degree forcible sexual offense, attempted second-degree rape, incest between near relatives, attempted incest, taking indecent liberties with a child, felony child abuse, disseminating obscene material, and assault on a female by a male at least 18 years of age. All of the offenses were alleged to have involved defendant's biological daughter, K.M., and his stepdaughter, J.M., and were alleged to have occurred on various dates from July 2000 until August 2002.

On 3 May 2005, a jury found defendant guilty on all charges. Following the announcement of the jury's verdict, defendant made a motion for judgment notwithstanding the verdict as to all charges. The trial court granted defendant's motion for one count of disseminating obscene material (03 CRS 2301), and denied the motion as to the remaining thirty-five convictions. Defendant was then sentenced to eight consecutive sentences of imprisonment, with the terms being four consecutive sentences of 240 to 297 months, followed by two terms of 288 to 355 months, followed by two terms of 100 to 129 months. Defendant appeals from his convictions.

In the record on appeal, defendant lists fifty-four separate assignments of error. However, defendant presents argument as to only twenty-six of them in his brief; therefore, the remaining assignments of error for which no argument has been presented are deemed abandoned. See N.C. R.App. P. 28(b)(6) (2006).

We begin by addressing defendant's contention that each indictment for the following charges fails to list the specific underlying sexual act which constitutes the offense:

03 CRS 2284-2287 — First Degree Statutory Sexual Offense (J.M.)

03 CRS 2289-2292 — Statutory Sexual Offense of a Person Who Is 13, 14, or 15 Years of Age (J.M.)

03 CRS 2302-2306 — Taking Indecent Liberties with a Child (K.M.)

03 CRS 2309-2310 — Statutory Sexual Offense of a Person Who Is 13, 14, or 15 Years of Age (K.M.)

03 CRS 2314-2315 — Second-degree Forcible Sexual Offense (K.M.);

03 CRS 2317-2319 — Assault on a Female by a Male At Least 18 Years of Age (K.M.).

Although the indictments themselves did not list specific underlying sexual acts, both the trial court's instructions for each offense and the verdict sheets submitted to the jury, instructed the jury on the specific sexual acts that were to serve as the underlying act for each of the charged offenses. In all cases, the specific act stated in the trial court's instructions coincided with the specific act listed on each of the verdict sheets.¹

Our statutes permit, and our appellate courts have upheld, the use of short form indictments in charging a defendant with a sexual offense and taking indecent liberties with a child. See N.C. Gen.Stat. § 15-144.2 (2005); State v. Wallace, 351 N.C. 481, 503-08, 528 S.E.2d 326, 340-43 (2000); State v. Effler, 309 N.C. 742, 745-47, 309 S.E.2d 203, 205-06 (1983). When a short form indictment properly alleges the essential elements of the offense, it need not "allege every matter required to be proved on the trial." N.C. Gen.Stat. § 15-144.2(a) (2005). As our Courts previously have held, indictments charging indecent liberties with a child or a sexual offense are sufficient and valid even when they do not contain a specific allegation regarding which specific sexual act was committed. See State v. Youngs, 141 N.C.App. 220, 229-31, 540 S.E.2d 794, 800-01 (2000); see also State v. Kennedy, 320 N.C. 20, 23-25, 357 S.E.2d 359, 361-63 (1987); Effler, 309 N.C. at 745-47, 309 S.E.2d at 205-06; State v. Edwards, 305 N.C. 378, 380, 289 S.E.2d 360, 361-62 (1982). Thus, we hold defendant's indictments were sufficient to charge him with all of the above referenced offenses.

On appeal, defendant contends the trial court erred in failing to dismiss fourteen of the thirty-six charges against him because there was insufficient evidence presented by the State to support convictions on these fourteen charges. The State contends defendant failed to preserve his right to appeal on the sufficiency of the evidence as to the majority of these fourteen convictions. The State argues that, at trial, defendant preserved his right to appeal the sufficiency of the evidence as to only five of his convictions, not all of the fourteen convictions he now argues on appeal.

Rule 10(b)(3) of our Rules of Appellate Procedure provides:

A defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial. If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.

A defendant may make a motion to dismiss the action or judgment as in case of nonsuit at the conclusion of all the evidence, irrespective of whether he made an earlier such motion. If the motion at the close of all the evidence is denied, the defendant may urge as ground for appeal the denial of his motion made at the conclusion of all the evidence. However, if a defendant fails to move to dismiss the action or for judgment as in case of nonsuit at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged.

N.C. R.App. P. 10(b)(3) (2006).

In the instant case, defendant made a motion to dismiss at the close of the State's evidence. Defense counsel stated "We move to dismiss at the close of the State's evidence." Following this motion, defense counsel proceeded to present specific arguments as to five of defendant's charges, including: 03 CRS 2306, taking indecent liberties with K.M.; 03 CRS 2311, attempted statutory rape of K.M.; 03 CRS 2312, disseminating obscene material to K.M.; 03 CRS 2316, attempted second-degree rape of K.M.; and 03 CRS 2301, disseminating obscene material to J.M. The trial court denied defendant's motions, and defendant proceeded with presenting evidence.

Following the close of defendant's case in chief, defense counsel renewed his motion to dismiss, which the trial court denied. After the jury returned guilty verdicts on all charges, defendant made a final motion to dismiss all charges, including the specific five charges previously argued in his motion to dismiss. The trial court denied defendant's motion as to all charges, except 03 CRS 2301 for which it allowed defendant's motion, thereby dismissing this charge.

Based upon defendant's motions made at trial, we hold he did preserve his right to appeal all of the convictions before us based upon an insufficiency of the evidence to support each conviction.

In his first argument on appeal, defendant contends the trial court erred in failing to dismiss the charge of taking indecent liberties with a child, K.M. (03 CRS 2306). The jury found defendant guilty of taking indecent liberties with a child, with the child being K.M., and the indecent act being his asking K.M. to place his penis in her mouth. Defendant specifically contends there was insufficient evidence presented at trial that he asked or attempted to put his penis in K.M.'s mouth.

On appeal, the standard of review for the denial of a motion to dismiss is to determine whether the evidence, when taken in the light most favorable to the State, would permit a reasonable juror to find defendant guilty of each essential element of the offense beyond a reasonable doubt. State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673, 681 (1987). "The [S]tate is entitled to all reasonable inferences that may be drawn from the evidence. Contradictions in the evidence are resolved favorably to the [S]tate." State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986). In order to survive a defendant's motion to dismiss, the State must present substantial evidence of each essential element of the offense charged, and of the defendant's identity as the perpetrator. State v. Barden, 356 N.C. 316, 351, 572 S.E.2d 108, 131 (2002), cert. denied, 538 U.S. 1040, 123 S.Ct. 2087, 155 L.Ed.2d 1074 (2003). Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion." Id. When the evidence "is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed." State v. Baker, 338 N.C. 526, 558, 451 S.E.2d 574, 593 (1994) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).

In order for defendant to be convicted of taking indecent liberties with a child, the State must prove beyond a reasonable doubt that defendant is a person who "being 16 years of age or more and at least five years older than the child in question, ... [w]illfully commit[ted] or attempt[ed] to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years." N.C. Gen.Stat....