Opinion
No. COA09-1165
Filed 15 June 2010 This case not for publication
Appeal by Defendant from judgment entered 23 February 2009 by Judge Anderson D. Cromer in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 June 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State. Larry C. Economos for Defendant.
Mecklenburg County Nos. 07 CRS 66769 08 CRS 16473.
I. Procedural History and Evidence
Defendant was indicted on charges of second-degree rape, felonious incest, and having achieved the status of habitual felon. At trial, the State's evidence tended to show the following: On 9 September 2006, Defendant's daughter D.H., then 20 years old, was visiting Defendant at his girlfriend Judy's house. D.H. had had an argument with her boyfriend, Ian, and was going to stay the night at Judy's house. D.H. testified that she arrived at the house around 11:00 p.m. and borrowed a t-shirt from Judy to sleep in. D.H. stated that she and Defendant sat on a couch in the living room while watching television and talking after Judy went to bed.
The victim's initials will be used to protect her anonymity.
At some point, D.H. moved to another couch in the room and lay down with a pillow and blanket. She was wearing a bra, the t-shirt, and underwear, and she had the blanket covering her. Defendant came over, sat at her feet, and rubbed her feet. D.H. fell asleep. She awoke to find Defendant on top of her. Her underwear was pushed to the side, and Defendant's penis was in her vagina. She asked, "What are you doing[?]" and tried to move away and push him off of her. Defendant covered her mouth with his hand and said, "Shh." Defendant kept his penis in her vagina for "a couple more minutes and then he pulled out and ejaculated" on her leg. Defendant got a towel to wipe himself, her leg, and her vaginal area.
D.H. testified that she then went to the bathroom and cried. Defendant went to bed. The next day, D.H. saw Defendant, but they did not talk about what happened the previous night. Defendant and Judy talked with D.H. about her employment. D.H. was then working at Cracker Barrel, but she had previously been a dancer at a club. Defendant remarked that he would love to see her in Playboy magazine and to see her dancing. Defendant and Judy took D.H. to a club nearby where she gained employment as a dancer. She worked there that night, a Saturday, and returned home to Judy's house. She also went to the same club on Sunday night, and went home with a man who she had sex with that night. She returned to Judy's house very early in the morning on Monday.
About mid-day on Monday, D.H. told her boyfriend Ian that Defendant had raped her. Ian took D.H. to her grandmother's house where she told her grandmother what happened. Ian, D.H., and her grandparents went over to Judy's house to confront Defendant. He denied that anything happened. D.H. retrieved her underwear that she was wearing the night of the alleged incident, along with a towel and her other clothes. A phone call was made to D.H.'s mother, who convinced D.H. to go to the hospital. At the hospital, a rape kit examination was conducted. As part of the examination, a vaginal swab was taken. D.H. also turned over the underwear she brought with her.
Police officer Melissa Sutta interviewed D.H. at the hospital. According to the officer, D.H. was visibly upset throughout the interview. She described how her father raped her and what clothing she was wearing at the time. She also told the officer about inappropriate comments Defendant made to her, including, "I hope I didn't f — — with your head[,]" that he was no longer sexually attracted to his girlfriend, and that he wanted to see D.H. in Playboy. Later, other police officers went to Judy's house and collected the gray t-shirt which D.H. alleged she had been wearing the night of the incident.
Sheree Enfinger, a DNA analyst with the Charlotte Mecklenburg Police Department, testified that semen was found on the crotch area of D.H.'s underwear, on the vaginal swab taken during the rape kit examination, and on two places on the lower back of the gray t-shirt collected by the police. Although the vaginal swab showed DNA profiles for two people, including a male, Defendant was excluded as a DNA match for the unknown male's DNA. The semen stains on D.H.'s underwear and the t-shirt matched Defendant's DNA.
Defendant did not present any evidence. At the close of the State's evidence and again at the close of all the evidence, Defendant moved to dismiss the charges for insufficient evidence. The trial court denied the motions. After deliberations, the jury returned a verdict of not guilty of second-degree rape and a verdict of guilty of felonious incest. Defendant pleaded guilty to having achieved habitual felon status. The trial court sentenced Defendant as an habitual felon to a term of 120 to 153 months imprisonment. From the judgment entered, Defendant appeals.
II. Discussion
By his sole argument on appeal, Defendant contends that the trial court erred in denying his motion to dismiss the charge of incest for insufficient evidence. Specifically, Defendant contends that the State presented insufficient evidence of sexual intercourse. We disagree.
In order to survive a motion to dismiss the charge of incest, the State must have presented sufficient evidence that Defendant (1) had sexual intercourse (2) with his child and (3) that he knew she was his child. N.C. Gen. Stat. § 14-178 (2008); State v. Harvell, 45 N.C. App. 243, 248, 262 S.E.2d 850, 853 (1980). When a trial court is faced with a motion to dismiss for insufficient evidence, the court must determine whether the State has presented substantial evidence (1) of each essential element of the offense charged or a lesser included offense and (2) of defendant's identity as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Jarrett, 137 N.C. App. 256, 262, 527 S.E.2d 693, 697 (2000) (citation and quotation marks omitted). Upon appellate review, we view the evidence in the light most favorable to the State, with all reasonable inferences to be drawn therefrom. State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002). Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal of the case. Id. Further, the credibility of witnesses and the weight to be afforded their testimony is determined by the jury, unless the testimony is "inherently incredible and in conflict with the physical conditions established by the State's own evidence." State v. Wilson, 293 N.C. 47, 51, 235 S.E.2d 219, 221 (1977).
Taking the evidence in the light most favorable to the State, we find that sufficient evidence was presented that Defendant had sexual intercourse with the victim by inserting his penis into her vagina. The victim, D.H., testified that when she woke up, Defendant's penis was inside her vagina, and that even though she tried to move away, he remained inside her until finally pulling out and ejaculating. Further, evidence was presented that Defendant's semen was found on two different spots on the t-shirt D.H. was wearing during the incident, as well as on the crotch of her underwear. Taken together, this evidence is substantial evidence that Defendant had sexual intercourse with D.H.
While D.H. testified that she had sexual intercourse with another man after the incident with Defendant and initially did not tell the police about it, this testimony explains the presence of an unknown male's semen on the vaginal swab but does not make D.H.'s testimony regarding intercourse with Defendant "inherently incredible" or impossible such that the case should not have been sent to the jury. It was within the jury's province to weigh the credibility and truthfulness of the victim. Therefore, the trial court did not err in denying Defendant's motion to dismiss, and this assignment of error is overruled. See State v. Wood, 235 N.C. 636, 637, 70 S.E.2d 665, 666 (1952) ("[A] conviction for incest may be had against a father upon the uncorroborated testimony of the daughter if such testimony suffices to establish all of the elements of the offense beyond a reasonable doubt.").
NO ERROR.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).