Opinion
No. COA09-861.
Filed April 6, 2010.
Wayne County No. 08 CRS 50720.
Appeal by defendant from judgments entered 13 November 2008 by Judge Thomas D. Haigwood in Wayne County Superior Court. Heard in the Court of Appeals 9 December 2009.
Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State. William D. Spence for the defendant-appellant.
When the evidence presented is viewed in the light most favorable to the State, the trial court did not err in submitting any of the offenses to the jury.
I. Factual and Procedural Background
On 24 December 2008, Deputy Joseph Kennedy (Deputy Kennedy) of the Duplin County Sheriff's Office was dispatched to a residence after a child disclosed to her mother that she had been sexually assaulted. The six-year-old child, G.G., stated that William Allen Fritz (defendant) had touched her sexually on several prior occasions. Defendant was forty-four years old and the fiancée of G.G.'s grandmother. The grandmother died on 1 December 2008, and had lived in Wayne County with defendant for seven months prior to her death. G.G. often visited and spent the night with them.
The initials "G.G." are used throughout this opinion to protect the juvenile's privacy.
On the night of 24 December 2008, G.G. was visiting with family at her great-grandmother's residence. When Deputy Kennedy arrived, G.G. told him defendant had purple and red toys that vibrated, and defendant made her watch adult movies and look at adult magazines. She told Deputy Kennedy, "he put his hands down her pants and then licked her private area." She stated defendant made her touch his penis, and defendant "laid her on top of him and told her that: It is never going to fit in there." She further told Deputy Kennedy that these acts had occurred on several occasions.
On 9 January 2008, Detective Tammy Odom (Detective Odom) of the Wayne County Sheriff's Office interviewed G.G. G.G. stated that her grandmother was asleep when defendant made her watch one of the adult movies. G.G. told Detective Odom "that whenever grandma had died he watched all the movies and licked her down there and did all this stuff." G.G. also told her that defendant had touched her private area with a vibrator "to try to make it wet." G.G. stated the vibrators were kept in a dresser in defendant's bedroom. She told Detective Odom that the adult movies were in the living room, behind a radio that was sitting on the floor in front of the TV stand. On 14 January 2008, defendant was served with a search warrant, and officers seized two vibrators, which were located in the dresser and matched G.G.'s description. Some pornographic DVDs were also seized.
Defendant was indicted on four counts of first degree statutory sex offense, and four counts of taking indecent liberties with a child. Defendant was tried before a jury at the 1 November 2008 Criminal Session of Wayne County Superior Court. Defendant testified in his own defense and denied that he ever touched G.G. inappropriately.
On 13 November 2008, the jury found defendant guilty on all charges. Defendant was sentenced from the presumptive range to an active term of 230 to 285 months for first degree sex offense with a child (Count 1, cunnilingus); a consecutive term of 230 to 285 months for first degree sex offense with a child (Count 2, digital penetration); a consecutive term of 230 to 285 months for first degree sex offense with a child (Count 4, purple vibrator); a concurrent term of 15 to 18 months for indecent liberties with a child (Count 3, touching vaginal area with a hand); a concurrent term of 15 to 18 months for indecent liberties with a child (Count 5, purple vibrator); a concurrent term of 230 to 285 months for first degree sex offense with a child (Count 6, light colored vibrator); a consecutive term of 15 to 18 months for indecent liberties with a child (Count 7, light colored vibrator); and a consecutive term of 15 to 18 months for indecent liberties with a child (Count 8, masturbating).
Defendant appeals.
II. Motion to Dismiss
Defendant brings forward eight arguments on appeal, all of which are based on the trial court's denial of his motion to dismiss at the conclusion of all the evidence.
A. Standard of Review
The denial of a motion to dismiss for insufficient evidence is a question of law, which this Court reviews de novo. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007) (citations omitted). The question for this Court upon review is "'whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.'" State v. Blizzard, 169 N.C. App. 285, 289, 610 S.E.2d 245, 249 (2005) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). Evidence is substantial if it is relevant, not seeming or imaginary, and a reasonable mind might accept it as adequate to support a conclusion. State v. Thaggard, 168 N.C. App. 263, 281, 608 S.E.2d 774, 786 (2005) (citations omitted). The trial court must view the evidence in the light most favorable to the State and give the State every reasonable inference. Id. (citation omitted). "Contradictions and discrepancies must be resolved in favor of the State, and the defendant's evidence, unless favorable to the State, is not to be taken into consideration." State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984) (citations omitted). Because defendant presented evidence at trial, he waived his right to appeal the denial of his motion to dismiss at the close of the State's evidence. Only the motion to dismiss at the close of all the evidence is before this Court. Id. at 159-60, 322 S.E.2d at 387 (citations omitted).
B. First Degree Sex Offense With a Child (Count 1, Cunnilingus)
In his first argument, defendant contends the trial court erred in denying his motion to dismiss the charge of first degree sex offense with a child (Count 1, cunnilingus) based on insufficiency of the evidence, arguing G.G.'s testimony failed to show that defendant stimulated any part of G.G.'s genitalia with his lips or tongue. We disagree.
A person is guilty of the felony of first degree sex offense if the person:
(1) engages in a sexual act with a victim who is a child under the age of 13 years, and
(2) the defendant is at least 12 years old and is at least four years older than the victim.
N.C. Gen. Stat. § 14-27.4(a)(1) (2009). Cunnilingus is a sexual act. N.C. Gen. Stat. § 14-27.1(4) (2009). Cunnilingus has been defined to mean "stimulation by the tongue or lips of any part of a woman's genitalia." State v. Ludlum, 303 N.C. 666, 672, 281 S.E.2d 159, 162 (1981) (emphasis added). Penetration is not required. Id. at 674, 281 S.E.2d at 163. Defendant argues G.G. did not specifically testify that his tongue touched any part of her genitalia; he does not dispute the evidence concerning age or identity.
In Ludlum, our Supreme Court held the evidence to be sufficient when the victim pointed to her vagina and testified that defendant touched her with his tongue between her legs. Id. at 674, 281 S.E.2d at 163. In State v. Weathers, our Supreme Court held the evidence to be sufficient when the victim testified that defendant "had his tongue — not in [her] vagina, but he was going around it." 322 N.C. 97, 100, 366 S.E.2d 471, 473 (1988). In State v. Stancil, this Court held the evidence to be sufficient when the victim testified that defendant licked her "privacy," and she identified her "privacy" as her vaginal area by use of an anatomical doll. 146 N.C. App. 234, 245, 552 S.E.2d 212, 218 (2001), aff'd as modified by, 355 N.C. 266, 559 S.E.2d 788 (2002).
In the instant case, G.G. testified that defendant "licked me on my private part." G.G. drew an arrow with a red pen on a diagram of a naked girl to point to what she called a girl's private part. This testimony, viewed in the light most favorable to the State, was sufficient to support submission of this offense to the jury. We hold the trial court did not err by denying defendant's motion to dismiss the charge of first degree sex offense with a child (Count 1, cunnilingus).
This argument is without merit.
C. First Degree Sex Offence With a Child (Count 2, Digital Penetration)
In his second argument, defendant contends the trial court erred in denying his motion to dismiss the charge of first degree sex offense with a child (Count 2, digital penetration) based on insufficiency of the evidence, arguing the evidence was insufficient to prove any penetration of G.G.'s genital opening by defendant's finger. We disagree.
The elements of first degree sex offense pursuant to N.C. Gen. Stat. § 14-27.4(a)(1) are set forth in Section B, supra. "Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body." N.C. Gen. Stat. § 14-27.1(4) (2009) (emphasis added). Our Supreme Court has held that digital penetration amounts to a "sexual act" for purposes of § 14-27.1(4). See State v. Lucas, 302 N.C. 342, 346, 275 S.E.2d 433, 436 (1981) (the words "any object" include parts of the human body). Defendant argues the evidence did not establish penetration because G.G. testified that defendant touched her "on" and not "in" her private part with his finger; he does not dispute the evidence concerning age or identity.
In State v. Bellamy, this Court held that the standard of proving penetration in a sexual offense was the same as the standard of proving penetration in rape: evidence that defendant entered the vulva or labia is sufficient to prove the element of penetration. 172 N.C. App. 649, 658, 617 S.E.2d 81, 88 (2005), appeal dismissed and disc. review denied, 360 N.C. 290, 628 S.E.2d 384 (2006). In the instant case, G.G. testified that defendant "put his finger on my private part," and it felt "like something was coming through me." Our Supreme Court has stated that "females of tender years" do not always employ the correct language when describing their bodies. State v. Rogers, 322 N.C. 102, 105, 366 S.E.2d 474, 476 (1988). G.G.'s testimony was that it felt like something was coming through her when defendant put his finger on her private part. "Through" is defined as, "[i]n one side and out the opposite or another side of." The American Heritage College Dictionary 1413 (3rd. ed. 1997). On a motion to dismiss, the trial court must give the State every reasonable inference. Thaggard, 168 N.C. App. at 281, 608 S.E.2d at 786. This testimony, viewed in the light most favorable to the State, was sufficient to support submission of this offense to the jury. We hold the trial court did not err by denying defendant's motion to dismiss the charge of first degree sex offense with a child (Count 2, digital penetration).
This argument is without merit.
D. Taking Indecent Liberties With a Child (Count 3, Touching of Her Vaginal Area With a Hand)
In his third argument, defendant contends the trial court erred in denying his motion to dismiss the charge of taking indecent liberties with a child (Count 3, touching of her vaginal area with a hand) based on insufficiency of the evidence, arguing there was a fatal variance between the allegations in the indictment and the testimony at trial. In the alternative, defendant argues that the first degree sex offense in Count 2 and the indecent liberties charge in Count 3 arose from a single transaction, which cannot support two convictions. We disagree.
1. Variance With Indictment
In order to support a conviction under N.C. Gen. Stat. § 14-202.1 for taking indecent liberties with a child, the State must prove:
(1) the defendant was at least 16 years of age,
(2) he was five years older than his victim,
(3) he willfully took or attempted to take an indecent liberty with the victim,
(4) the victim was under 16 years of age at the time the alleged act or attempted act occurred, and
(5) the action by the defendant was for the purpose of arousing or gratifying sexual desire.
State v. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580 (1987) (citation omitted); see also N.C. Gen. Stat. § 14-202.1(a)(1) (2009). Defendant argues G.G. testified that defendant touched her with his finger, and this was not evidence that he touched her with his hand. He thus contends that there was a fatal variance between evidence presented at trial and allegations in the indictment. He does not challenge the evidence concerning age, identity, or that the purpose of the touching was to arouse or gratify sexual desire.
"The State's proof must conform to the specific allegations contained in the indictment. If the evidence fails to do so, it is insufficient to convict the defendant. Therefore, a challenge to a fatal variance between indictment and proof may be raised by a motion to dismiss for insufficient evidence." State v. Pulliam, 78 N.C. App. 129, 132, 336 S.E.2d 649, 651 (1985) (citations omitted). A variance occurs when the allegations in an indictment do not conform to the evidence actually established at trial. State v. Skinner, 162 N.C. App. 434, 445, 590 S.E.2d 876, 885 (2004) (citation and quotations omitted). "In order for a variance to warrant reversal, the variance must be material. A variance is not material, and is therefore not fatal, if it does not involve an essential element of the crime charged." Id. at 445-46, 590 S.E.2d at 885.
The indictment in the instant case alleged that defendant "did unlawfully, willfully and feloniously take and attempt to take immoral, improper and indecent liberties with [G.G.] . . . by touching her vaginal area with his hand." At trial, G.G. testified that defendant "put his finger on my private part."
"Finger" is defined as, "[o]ne of the five digits of the hand." The American Heritage College Dictionary 511 (3rd. ed. 1997). The variance between "finger" and "hand" does not involve an essential element of the charge of taking indecent liberties with a child (Count 3, touching of her vaginal area with a hand). The essential element is that defendant "willfully took or attempted to take an indecent liberty with the victim," as alleged in the indictment. G.G.'s testimony, viewed in the light most favorable to the State, was sufficient to support submission of this offense to the jury. We hold the trial court did not err by denying defendant's motion to dismiss the charge of taking indecent liberties with a child (Count 3, touching of her vaginal area with a hand).
2. Single Transaction
Defendant cites State v. Laney, 178 N.C. App. 337, 631 S.E.2d 522 (2006) in support of his argument that a single act could not support conviction of both first degree sex offense and indecent liberties. In Laney, defendant was convicted of two counts of indecent liberties with a minor. Id. at 339, 631 S.E.2d at 523. This Court vacated one of the convictions because defendant's actions, touching the victim's breasts and putting his hand inside the waistband of her pants, constituted "one transaction. . . . The sole act involved was touching — not two distinct sexual acts." Id. at 341, 631 S.E.2d at 524. This Court reasoned the acts charged both involved touching and were part of one transaction, and thus constituted one count of indecent liberties, not two. We find this case to be inapposite.
"[T]he Laney Court emphasized the sole act alleged was touching, and not two distinct sexual acts. This language indicates that multiple sexual acts, even in a single encounter, may form the basis for multiple indictments for indecent liberties." State v. James, 182 N.C. App. 698, 705, 643 S.E.2d 34, 38 (2007) (citation and internal quotations omitted). This Court subsequently stated this same analysis would apply to charges of sexual offenses. State v. Gobal, 186 N.C. App. 308, 322 n. 7, 651 S.E.2d 279, 288 n. 7 (2007), aff'd per curiam, 362 N.C. 342, 661 S.E.2d 732 (2008).
In the instant case, defendant was charged with the crimes of first degree sex offense based on digital penetration and taking indecent liberties with a child based on touching her vaginal area with his hand or fingers. Our Supreme Court has held that a defendant may be convicted for the crimes of first degree sex offense and indecent liberties arising from the same act or transaction because the elements of the two offenses are different. State v. Swann, 322 N.C. 666, 677, 370 S.E.2d 533, 539 (1988) (quoting Blockburger v. U.S., 284 U.S. 299, 76 L. Ed. 306 (1932)). Further, because the elements of the two crimes are different, "no problem of double jeopardy arises." Id. at 678, 370 S.E.2d at 540 (citation omitted); see also State v. Manley, 95 N.C. App. 213, 217, 381 S.E.2d 900, 902, disc. review denied, 325 N.C. 712, 388 S.E.2d 467 (1989). The trial court did not err by allowing both charges to go to the jury for determination.
E. First Degree Sex Offense With a Child (Count 4, Purple Vibrator and Count 6, Light Colored Vibrator)
In his fourth argument, defendant contends the trial court erred in denying his motion to dismiss the charge of first degree sex offense with a child (Count 4, purple vibrator) based on insufficiency of the evidence, arguing that the evidence was insufficient to prove any penetration of G.G.'s genital opening by the purple vibrator. In his sixth argument, defendant makes the same contentions for the charge of first degree sex offense with a child (Count 6, light colored vibrator). We disagree. Because these two arguments are virtually identical, we address them together.
The basis of these two arguments is the same as the argument made by defendant in Section C, supra, except that they concern the purple and light-colored vibrators rather than defendant's finger (digital penetration). In his brief, defendant incorporates the same arguments and authorities set forth in his previous argument. G.G. testified that defendant had two toys that vibrated, one was purple and one was peach-colored. She stated defendant put the vibrators "on my private part." G.G. further testified that it hurt and "felt like something was coming through me." This is similar to the testimony she gave concerning how defendant had touched her with his finger (digital penetration). We hold that this testimony, viewed in the light most favorable to the State, was sufficient to support submission of each of these offenses to the jury. We hold the trial court did not err in denying defendant's motion to dismiss the charges of first degree sex offense with a child (Count 4, purple vibrator and Count 6, light colored vibrator).
This argument is without merit.
F. Taking Indecent Liberties With a Child (Count 5, Purple Vibrator and Count 7, Light Colored Vibrator)
In his fifth argument, defendant contends the trial court erred in denying his motion to dismiss the charge of taking indecent liberties with a child (Count 5, touching of her vaginal area with a purple vibrator) based on insufficiency of the evidence, contending that the evidence does not establish that defendant's actions were for the purpose of arousing or gratifying sexual desire. In the alternative, defendant argues that the first degree sex offense in Count 4 and the indecent liberties charge in Count 5 arose from a single transaction, which cannot support two convictions. In his seventh argument, defendant makes the same contentions regarding the charge of taking indecent liberties with a child (Count 7, light colored vibrator). In the alternative, defendant argues that the first degree sex offense in Count 6 and the indecent liberties charge in Count 7 arose from a single transaction, which cannot support two convictions. We disagree. Because these two arguments are virtually identical, we address them together.
1. Arousing or Gratifying Sexual Desire
The elements of indecent liberties pursuant to N.C. Gen. Stat. § 202.1(a) are set forth in Section D(1), supra. Defendant argues the evidence was insufficient to prove that his actions were for the purpose of arousing or gratifying sexual desire. He does not challenge the evidence concerning age, identity, or that he touched G.G.'s vaginal area with the purple and light-colored vibrators.
In Rhodes, our Supreme Court held that whether defendant's actions were for the purpose of arousing or gratifying sexual desire, "may be inferred from the evidence of the defendant's actions." 321 N.C. at 105, 361 S.E.2d at 580. This Court has held that "defendant's purpose, being a mental attitude, is seldom provable by direct evidence and must ordinarily be proven by inference." State v. Rogers, 109 N.C. App. 491, 505, 428 S.E.2d 220, 228 (citation and internal quotations omitted), disc. review denied, 334 N.C. 625, 435 S.E.2d 348 (1993), cert. denied, 511 U.S. 1008, 128 L. Ed. 2d 54 (1994). In Rogers, the evidence established that while the victim and defendant were alone in a bathroom, defendant touched the victim's chest and vaginal area. Id., 428 S.E.2d at 228-29. This Court held, "[s]uch evidence is sufficient to permit the jury to infer that defendant's purpose in doing so was to arouse himself or to gratify his sexual desire." Id. at 505-06, 428 S.E.2d at 229.
In the instant case, G.G. testified that when she was alone with defendant, he "touched me on my private part" with a purple vibrator and a light-colored vibrator. She further stated it hurt, and "felt like something was coming through me." This testimony, viewed in the light most favorable to the State, was sufficient to permit the jury to infer that defendant's purpose in putting the vibrators on G.G.'s vaginal area was to arouse himself or to gratify his sexual desire. We hold the trial court did not err by denying defendant's motion to dismiss the charges of taking indecent liberties with a child (Count 5, purple vibrator and Count 7, light colored vibrator).
This argument is without merit.
2. Single Transaction
Defendant contends that the crimes of first degree sex offense based on penetration of the vaginal area with a purple vibrator in Count 4 and taking indecent liberties with a child based on touching the vaginal area with a purple vibrator in Count 5 necessarily arose out of a single transaction, which cannot support two convictions. He further contends that the crimes of first degree sex offense based on penetration of the vaginal area with a light-colored vibrator in Count 6 and taking indecent liberties with a child based on touching the vaginal area with a light-colored vibrator in Count 7 necessarily arose out of a single transaction, which cannot support two convictions.
The basis of these two arguments is the same as the argument made by defendant in Section D(2), supra. Defendant may be convicted for the crimes of first degree sex offense and indecent liberties arising from the same act or transaction. Swann, 322 N.C. at 677, 370 S.E.2d at 539. The trial court did not err by allowing both charges to go to the jury for determination.
This argument is without merit.
G. Taking Indecent Liberties With a Child (Count 8, Masturbation)
In his eighth argument, defendant contends the trial court erred in denying his motion to dismiss the charge of taking indecent liberties with a child (Count 8, masturbating in her presence) based on insufficiency of the evidence, arguing the evidence fails to establish that defendant masturbated in G.G.'s presence. We disagree.
The elements of indecent liberties pursuant to N.C. Gen. Stat. § 202.1(a) are set forth in Section D(1), supra. Defendant argues there was insufficient evidence that he masturbated in G.G.'s presence; he does not challenge the sufficiency of the evidence regarding age, identity, or that the purpose of his actions was to arouse or gratify sexual desire.
In State v. Owens, this Court held that masturbation by an adult in the presence of a child may constitute an indecent liberty with the child. 135 N.C. App. 456, 462, 520 S.E.2d 590, 594 (1999) (citing State v. Turman, 52 N.C. App. 376, 278 S.E.2d 574 (1981)). In the instant case, G.G. testified that defendant touched his private part in her presence. She testified, "he took his private parts out and some nasty stuff came out of him." G.G. further identified in a photograph what she called a man's "private part." On a motion to dismiss, the trial court must give the State every reasonable inference. Thaggard, 168 N.C. App. at 281, 608 S.E.2d at 786. This testimony, viewed in the light most favorable to the State, was sufficient to support submission of this offense to the jury. We hold the trial court did not err by denying defendant's motion to dismiss the charge of taking indecent liberties with a child (Count 8, masturbation).
This argument is without merit.
Defendant has failed to argue the remaining assignments of error in his brief, and they are deemed abandoned pursuant to Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure.
No error.
Judges McGEE and STEPHENS concur.
Report per Rule 30(e).