Opinion
No. COA03-756
Filed April 20, 2004 This case not for publication
Appeal by defendant from judgment entered 14 February 2002 by Judge David Q. LaBarre in Superior Court, Wake County. Heard in the Court of Appeals 22 March 2004.
Attorney General Roy Cooper, by Special Deputy Attorney General Melissa L. Trippe, for the State.
John T. Hall for defendant appellant.
Wake County, No. 00 CRS 19063.
Defendant, Terrence Jamal Hinton, contends by this appeal that the trial court erred in (1) granting the State's motion in limine barring inquiry into the administration of a polygraph test and (2) denying Defendant's motion to dismiss the charge of second-degree rape based on insufficiency of the evidence. After careful review, we find no error.
The State presented evidence at trial tending to show the following: On the evening of 20 February 2000, a female was at home with her father, some friends and her children, when Defendant arrived in an intoxicated condition. The female had known Defendant for approximately ten years and considered him to be "like a brother." Defendant asked the female to drive him home, and she agreed. The female drove Defendant home in his truck and let him into his house using his keys, accompanied Defendant into the house to help him make a telephone call, realized that she did not have a key to her house, and called home to make sure she would not be locked out of her house.
After calling home, the female attempted to leave Defendant's home, but Defendant forcefully closed the door. When the female opened the door again, Defendant repeated his action. The female then attempted to exit the house through the kitchen, and Defendant grabbed her in a "bear hug," threw her to the floor, reached into her shorts and pulled them down. Defendant unzipped his pants, removed his penis, pinned the female to the ground and attempted to pull her underwear to the side. Defendant then picked up the female and carried her to the couch in the living room, where he forced her to have sexual intercourse with him.
Defendant testified at trial that he and the female engaged in consensual sexual intercourse. Defendant contended that he and the female had started kissing, and that she consented to sex if he would perform oral sex on her. Defendant then performed oral sex on her, went to the couch in the living room, and the two had consensual sex. After the female left, Defendant testified that her family and friends came to his home and assaulted him.
The jury found Defendant guilty of second-degree rape, and the trial court sentenced him to a term of 100 to 129 months' imprisonment. Defendant appealed.
We first consider whether the trial court erred by granting the State's motion in limine prohibiting inquiry into the administration of a stress or lie detector test that was administered to Defendant. Defendant contends that the trial court's ruling was too broad and that he should have been allowed to elicit testimony from the test examiner regarding Defendant's demeanor during administration of the test. As credibility was a key issue in this case, Defendant argues the trial court's decision unfairly tilted the playing field in the favor of the prosecution. Although Defendant acknowledges that the nature, questions, and the results of the test were not admissible, he contends that other evidence of the circumstances surrounding the test should have been admitted. Defendant's argument fails on two grounds.
First, it is well established that an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness's testimony would have been had he been permitted to testify. State v. Golphin, 352 N.C. 364, 462, 533 S.E.2d 168, 231 (2000), certs. denied, 532 U.S. 931, 149 L.Ed.2d 305 (2001). For a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record. Id. In the instant case, Defendant failed to make an offer of proof, and the substance of the test examiner's testimony is not apparent from the record. Thus, Defendant's assignment of error has not been properly preserved for appellate review.
Second, even assuming arguendo that an offer of proof had been made, polygraph evidence is not admissible at trial. State v. Grier, 307 N.C. 628, 645, 300 S.E.2d 351, 361 (1983). This exclusion applies to "all evidence concerning whether or not, in the operator's opinion, the defendant was being deceptive." State v. Singletary, 75 N.C. App. 504, 506-07, 331 S.E.2d 166, 168, disc. review denied, 314 N.C. 335, 333 S.E.2d 495 (1985). Thus, the trial court properly excluded evidence regarding Defendant's demeanor during the polygraph examination.
We next consider whether there was sufficient evidence to sustain the conviction. Defendant contends that the female's testimony was "inherently incredible, not worthy of belief and rendered the guilty verdicts . . . unreliable." Defendant contends that there was motive for her to not tell the truth about her consensual sexual encounter, stating that "[s]he wished to avoid the wrath of her family and friends."
To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). "`Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'" Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)).
In the instant case, Defendant was charged with second-degree rape. To prove the elements of second-degree rape, the State must show that the defendant (1) engaged in vaginal intercourse with the victim; (2) by force; and (3) against the victim's will. N.C. Gen. Stat. § 14-27.3; State v. Scercy, 159 N.C. App. 344, 352, 583 S.E.2d 339, 344, disc. review denied, 357 N.C. 581, 589 S.E.2d 363 (2003). Here, the female testified that Defendant forced her to have sexual intercourse with him, that she pleaded with him to stop, and that she did not consent to having sex with him. Her testimony alone was sufficient to support Defendant's conviction for second-degree rape. Although Defendant argues that the female's testimony was not credible, the jury was "free to believe or disbelieve the witness's testimony as it saw fit." State v. Hinton, 95 N.C. App. 683, 691, 383 S.E.2d 704, 709 (1989), disc. review denied, 326 N.C. 266, 389 S.E.2d 117 (1990); see also State v. Newman and State v. Newman, 308 N.C. 231, 237, 302 S.E.2d 174, 179 (1983) (stating that "[i]t is well settled in this jurisdiction that a conviction for rape may be based upon the unsupported testimony of the prosecuting witness."); State v. Shaw, 284 N.C. 366, 370-71, 200 S.E.2d 585, 588 (1973). Accordingly, we conclude there was sufficient evidence to support the rape conviction and the trial court did not err in denying Defendant's motion to dismiss.
No error.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).