State v. Estes, No. 8930SC1260
| Docket Nº | No. 8930SC1260 |
| Citation | 99 N.C.App. 312, 393 S.E.2d 158 |
| Case Date | July 03, 1990 |
| Court | Court of Appeal of North Carolina (US) |
Page 158
v.
Thomas Andrew ESTES.
[99 N.C.App. 314] Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Elizabeth G. McCrodden and Associate Atty. Gen. Alexander M. Peters, Raleigh, for the State.
Whalen, Hay, Pitts, Hugenschmidt, Master, Devereux & Belser, P.A. by David G. Belser, Asheville, for defendant-appellant.
LEWIS, Judge.
Defendant first assigns as error the trial court's failure to dismiss the charge of first degree sexual offense as defined by G.S. 14-27.4. Pursuant to G.S. 14-27.1, the term "sexual act" is defined in pertinent part as follows:
"Sexual act" means cunnilingus, fellatio, ananlingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body....
Defendant argues that there was insufficient evidence of penetration and therefore the charge should have been dismissed. The defendant was accused of having anal intercourse and other sexual acts with a
Page 160
seven year old girl on numerous occasions in 1985 and again on several occasions in 1987. The prosecuting witness testified as follows regarding the 1985 incidents:Q: When you were alone that time what, if anything, did Tommy do?
A: In the room?
Q: Um-huh?
A: He just told me to pull my pants and panties down.
Q: Did you?
A: Um-huh.
Q: What happened after you did that?
A: He stuck his thing in me.
Q: When he was in you--what part of him did he stick in you?
A: Back and front.
Q: Both?
A: Yes.
[99 N.C.App. 315] Later, when the child was testifying about the 1987 incidents, she stated:
Q: Where was he when he told you to pull your pants down?
A: He was standing up.
Q: What did he do after you pulled them down?
A: He stuck his thing in me.
. . . . .
Q: What do you mean by his thing?
A: The thing he pees with.
. . . . .
Q: What part of you did he put it?
A: The back.
. . . . .
Q: By the back what do you mean?
A: Where I go number two.
Q: Did he go inside you?
. . . . .
A: Yes.
. . . . .
Q: After he put it in you what did he do?
A: Moved back and forth.
. . . . .
Q: And then after he did that what did he do?
A: He took it out and put it where I do number one.
Defendant argues that the State's testimony that the defendant "stuck his thing" in the "back and front" of the child is insufficient evidence of penetration of the anal opening to uphold his conviction for first degree sexual offense for the 1985 incidents. There was no physical evidence and the child did not demonstrate on anatomically correct dolls what happened to her.
[99 N.C.App. 316] In State v. Hicks, 319 N.C. 84, 352 S.E.2d 424 (1987), the Supreme Court found that the charge of first degree sexual offense should not have been submitted to a jury where the victim testified that the defendant "put his penis in the back of...
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In re J.D., No. COA 18-1036
...for a finding that penetration did occur. See State v. Sprouse , 217 N.C. App. 230, 237, 719 S.E.2d 234, 240 (2011) ; State v. Estes , 99 N.C. App. 312, 316, 393 S.E.2d 158, 160 (1990). However, in the instant case, the victim's statement is not ambiguous. Zane specifically states in his te......
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State v. Darr, COA21-493
...(2002). A victim's testimony of sexual intercourse is enough to uphold a trial court's denial of a motion to dismiss. State v. Estes, 99 N.C. App. 312, 316, 393 S.E.2d 158, 160 (1990) ; State v. Bruce, 315 N.C. 273, 281, 337 S.E.2d 510, 516 (1985) (stating a victim's testimony the defendant......
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State v. Combs, No. COA12–1008.
...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 ......
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State v. Moore, No. 9028SC431
...at 422. The Green court held this evidence sufficient to withstand defendant's motion to dismiss. [103 N.C.App. 94] In State v. Estes, 99 N.C.App. 312, 393 S.E.2d 158 (1990), defendant there argued Page 699 that the victim's testimony that defendant " 'stuck his thing' in the 'back and fron......
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In re J.D., No. COA 18-1036
...for a finding that penetration did occur. See State v. Sprouse , 217 N.C. App. 230, 237, 719 S.E.2d 234, 240 (2011) ; State v. Estes , 99 N.C. App. 312, 316, 393 S.E.2d 158, 160 (1990). However, in the instant case, the victim's statement is not ambiguous. Zane specifically states in his te......
-
State v. Combs, No. COA12–1008.
...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 ......
-
State v. Moore, No. 9028SC431
...at 422. The Green court held this evidence sufficient to withstand defendant's motion to dismiss. [103 N.C.App. 94] In State v. Estes, 99 N.C.App. 312, 393 S.E.2d 158 (1990), defendant there argued Page 699 that the victim's testimony that defendant " 'stuck his thing' in the 'back and fron......
-
State v. Darr, COA21-493
...(2002). A victim's testimony of sexual intercourse is enough to uphold a trial court's denial of a motion to dismiss. State v. Estes, 99 N.C.App. 312, 316, 393 S.E.2d 158, 160 (1990); State v. Bruce, 315 N.C. 273, 281, 337 S.E.2d 510, 516 (1985) (stating a victim's testimony the defendant p......