Opinion
No. COA15–627.
01-05-2016
STATE of North Carolina v. Rigoberto Castellano AGUILAR.
Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for the State. Rudolf, Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for the State.
Rudolf, Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant.
Opinion
Appeal by defendant from judgment entered 8 October 2014 by Judge Phyllis M. Gorham in Duplin County Superior Court. Heard in the Court of Appeals 28 December 2015.
BRYANT, Judge.
Where the trial court's exclusion of evidence did not contravene defendant's constitutional right to present a defense, we find no prejudicial error.
Defendant, Rigoberto Castellano Aguilar, born on 28 April 1966, twice engaged in sexual intercourse with the prosecuting witness in the spring of 2011, just after she turned fifteen years old. The second time defendant did not wear a condom. The prosecuting witness subsequently gave birth to a daughter on 1 February 2012.
On or about 8 June 2012, the prosecuting witness and her caretaker went to the Duplin County Department of Social Services seeking financial assistance for her family. The prosecuting witness identified defendant as the father of the child. During an interview with a child protective services employee, defendant admitted that he had sexual relations with a girl who lived near him. DNA testing disclosed the probability of defendant's fathering the child as 99.999 percent.
Defendant was charged with one count of first degree rape (child who was fifteen years old), two counts of taking indecent liberties with a child, and one count of sexual battery. The State proceeded to trial only on the one count of first degree rape.
Prior to trial the State filed a motion in limine to require defendant, before introducing evidence concerning prior or subsequent sexual behavior of the prosecuting witness, to advise the court of his intention so the court might conduct an in camera hearing pursuant to Rule 412 of the North Carolina Rules of Evidence to determine the relevance and admissibility of the evidence.
This matter came on for trial at the 22 September 2014 Criminal Session of the Superior Court for Duplin County, the Honorable Phyllis M. Gorham, presiding. At the beginning of trial, the prosecutor clarified that the State sought to prohibit defendant from making any reference to the prosecuting witness having another child. The court allowed the motion and directed defendant not to ask any questions relating to whether the prosecuting witness had any children prior to this incident. Defendant objected to the court's ruling at that time, and the court noted the objection for the record.
During his presentation of evidence, defendant testified that during the first incident, the prosecuting witness stated she needed money to buy diapers. The prosecutor objected and moved to strike defendant's statement. The court sustained the objection and allowed the motion to strike. Defendant went on to testify that the prosecuting witness stated she needed money and she would have sex with him. Defendant also testified that the prosecuting witness seduced him into engaging in sexual intercourse with her. Later, during cross-examination, defendant testified that he “didn't know she was a little girl because she already had a son.” The court allowed the prosecutor's motion to strike that testimony.
Defendant was convicted by a jury and found guilty of statutory rape of a child fifteen years old. Judge Gorham imposed a sentence in the presumptive range of 192 months to 240 months. Defendant appeals.
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On appeal, defendant contends that the court erred by excluding evidence that the prosecuting witness had a second child because it was relevant and admissible to show his basis for believing the prosecuting witness was at least sixteen years old. He argues the exclusion of this evidence contravened his constitutional right to present a defense. Assuming, arguendo, that defendant preserved his right to raise this issue on appeal, we disagree and conclude the court did not commit prejudicial error.
Evidence is relevant and admissible if it has the “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen.Stat. § 8C–1, Rule 401 (2013). Evidence of sexual behavior of a complainant is considered irrelevant to any issue in a prosecution for rape or other sexual offense case unless it is evidence of: (1) sexual behavior between the complainant and the defendant; (2) specific instances of sexual behavior offered for the purpose of showing that the act charged was not committed by the defendant; (3) a pattern of sexual behavior so distinctive and consistent with the defendant's version of the alleged encounter as to tend to prove the complainant consented or led the defendant to reasonably believe that the complainant consented; or (4) sexual behavior offered as the basis of expert testimony indicating the complainant fantasized or invented the act or acts charged. N.C. Gen.Stat. § 8C–1, Rule 412(b) (2013). Evidence that defendant knew the prosecuting witness had a child, without more, does not fit within any of the foregoing exceptions to Rule 412.
Moreover, even if the evidence was not offered to show the prosecuting witness had engaged in sexual activity but to show that defendant believed the victim was sixteen years old or older, we conclude the evidence had no tendency to prove an issue of consequence to the action. A defendant is guilty of statutory rape if he “engages in vaginal intercourse ... with another person who is 13, 14, or 15 years old and the defendant is at least six years older....” N.C. Gen.Stat. § 14–27.7A(a) (2013).
Defendant was born on 28 April 1966, making him at least forty-five years old (thirty years older than the prosecuting witness) at the time the incidents took place in 2011. Statutory rape is a strict liability offense. State v. Sines, 158 N.C.App. 79, 84, 579 S.E.2d 895, 899, cert. denied, 357 N.C. 468, 587 S.E.2d 69 (2003). Mistake of fact concerning a complainant's age is not a defense to statutory rape. State v. Browning, 177 N.C.App. 487, 492, 629 S.E.2d 299, 303 (2006).
Accordingly, we conclude defendant received a fair trial, free of prejudicial error.
NO ERROR.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).