Opinion
No. COA12–1186.
2013-05-21
STATE of North Carolina v. Wade Leon SHAW.
Attorney General Roy Cooper, by Assistant Attorney General Elizabeth J. Weese, for the State. Franklin E. Wells, Jr., for Defendant-appellant.
Appeal by defendant from judgments entered 2 February 2012 by Judge Robert F. Johnson in Forsyth County Superior Court. Heard in the Court of Appeals 27 February 2013. Attorney General Roy Cooper, by Assistant Attorney General Elizabeth J. Weese, for the State. Franklin E. Wells, Jr., for Defendant-appellant.
ERVIN, Judge.
Defendant Wade Leon Shaw appeals from judgments entered based upon his convictions for second degree burglary, first degree kidnapping, assault by strangulation, first degree rape, and first degree sexual offense and of having attained habitual felon status. On appeal, Defendant argues that the trial court committed prejudicial error by “permitting a witness to refer to a prior arrest of the defendant in describing a fingerprint card from an earlier offense” and denying his motion to dismiss the charges that had been lodged against him on the grounds that the record evidence was insufficient to support a conviction. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that those judgments should remain undisturbed.
I. Background
A. Substantive Facts
On 1 January 2011, Cresaunda Rippy lived in Winston–Salem with her two-year-old daughter. As of that date, Ms. Rippy had been socially acquainted with Defendant for about a year and had had consensual sex with him “once or twice.” When Defendant came to her home uninvited at around eight or nine on the evening in question, Ms. Rippy had not seen Defendant for over a month and had been attempting to avoid having contact with him because he had become controlling in his dealings with her. Even so, Ms. Rippy allowed Defendant to enter her apartment given his statement that he was there to apologize and to wish her a happy new year. Defendant stayed at Ms. Rippy's residence for about an hour, during which time he and Ms. Rippy consumed some liquor and crack cocaine that Defendant had brought. However, the two of them did not engage in any sexual activity during Defendant's visit.
After Defendant left, Ms. Rippy cleaned up her apartment. At approximately 10:00 or 11:00 p.m., Ms. Rippy went out to run an errand and left her daughter with LaTricia Kelly, a neighbor with whom she was friendly. Upon leaving her apartment, Ms. Rippy locked the front door and left a hall light on.
At the time that she returned from running her errand about forty-five minutes later, Ms. Rippy went to her own apartment before retrieving her daughter from Ms. Kelly's apartment. After unlocking the door and walking down the hall to her bedroom, Ms. Rippy was surprised to note that her bedroom light was not working. A few seconds later someone grabbed her. Despite the fact that Ms. Rippy could not see her assailant, she identified her attacker as a male based upon his size and strength. Ms. Rippy denied that the liquor and crack cocaine that she had consumed earlier caused her to be impaired at the time of the assault.
Ms. Rippy tried to resist her assailant. However, he dragged her back into her bedroom, put a knife to her throat, and began choking her, causing Ms. Rippy to lose consciousness several times. The individual who was attacking her threw Ms. Rippy face-down onto her bed, tied her hands behind her back, covered her face, and raped her, after which he went into her bathroom. After her recollection had been refreshed through the use of a statement that she had given to law enforcement officers, Ms. Rippy remembered that she had been raped vaginally the first time and anally at a later time.
After her assailant went into her bathroom, Ms. Rippy formed the opinion that he was someone she knew given his apparent familiarity with the bathroom. Ms. Rippy worked her hands free of the restraints and tried to climb out her bedroom window. As she attempted to make her escape, the man returned to the bedroom, leading to a resumption of their struggle. As the man and Ms. Rippy fought, her assailant said “[t]he police are outside.” At that point, Ms. Rippy recognized the voice as that of Defendant. In the course of this second struggle, Defendant choked Ms. Rippy, tied her arms, gagged her mouth, and penetrated her again. During one of the rapes, Ms. Rippy felt a beaded necklace around her assailant's neck and recalled that Defendant always wore a necklace made of similarly sized beads.
After sexually assaulting Ms. Rippy a second time, Defendant left Ms. Rippy's apartment. Once she was sure that Defendant was gone, Ms. Rippy went to Ms. Kelly's apartment for the purpose of seeking help. At the time that Ms. Rippy arrived at Ms. Kelly's apartment, she appeared upset and told Ms. Kelly she had been raped by someone she knew. Ms. Kelly used a knife to cut the bindings with which Ms. Rippy had been tied and called 911.
Officer Jordan Payne of the Winston–Salem Police Department came to Ms. Kelly's apartment in response to the 911 call. At the time of Officer Payne's arrival, Ms. Rippy was sitting on the floor sobbing and in pain. Ms. Rippy told Officer Payne that “Wade” had raped her. After emergency medical service personnel took Ms. Rippy to a hospital, Officer Payne examined her apartment. On the following day, Officer Payne interviewed Ms. Rippy at her home, at which point she provided an account of the assault that was generally consistent with her trial testimony.
During the early morning hours of 2 January 2011, Heather Norman, a sexual assault nurse examiner at Forsyth Medical Center, examined Ms. Rippy. At that time, Ms. Rippy described the assault that had been made upon her in a manner that was essentially consistent with her trial testimony. While examining Ms. Rippy, Ms. Norman collected samples of various biological materials, which she gave to law enforcement officers for further testing, and noted tears and abrasions to Ms. Rippy's anal area.
Officer Phillip Seats of the Winston–Salem Police Department, a crime scene supervisor, collected evidence from Ms. Rippy's apartment, including light bulbs that appeared to have been loosened. Jennifer Bryant, a senior crime scene technician with the Winston–Salem Police Department in 2011 and an expert in forensic latent print examination, compared fingerprints discovered on the light bulbs to Defendant's fingerprints, which had been obtained in 1999 by Bonita Wray, who was then employed as a crime scene technician with the Winston–Salem Police Department, and in 1997 by Officer Seats. At the conclusion of her examination, Ms. Bryant determined that Defendant's fingerprints were present on the lightbulbs.
Zach Kallenbach, an expert in forensic DNA analysis, tested biological samples collected during the investigation of the assault on Ms. Rippy. After examining vaginal swabs taken from Ms. Rippy, Mr. Kallenbach testified that the DNA profile obtained from Defendant “cannot be excluded as a contributor to the DNA mixture from the sperm fraction of the vaginal swabs” and that “the chance of selecting an individual at random that would be expected to be included for the observed DNA mixture profile” was approximately “for the North Carolina black population, 1 in 14.5 million[.]” Based on his examination of anal swabs from Ms. Rippy, Mr. Kallenbach testified that the DNA profile obtained from Defendant “cannot be excluded as a contributor to this DNA mixture from the sperm fraction of the rectal swabs” and that “the estimates of combined probability of inclusion or the chance of randomly selecting someone that would be expected to be included in this mixture is approximately ... for the North Carolina black population, 1 in 5.45 million[.]” Finally, Mr. Kallenbach's examination of the vaginal and rectal swabs taken from Ms. Rippy established that “there was no DNA present that could not be attributed to either [Ms.] Rippy or [Defendant].”
At the time that Detective Larry Snider of the Winston–Salem Police Department arrested Defendant on 7 January 2011, Defendant was wearing a beaded necklace. During her trial testimony, Ms. Rippy identified the necklace seized from Defendant at the time of his arrest as the one that she had previously seen Defendant wear and testified that the necklace in question was the one that she had felt around Defendant's neck during his assault upon her.
B. Procedural History
On 7 January 2011, a warrant for arrest was issued charging Defendant with first degree rape and first degree sex offense. On 27 June 2011, the Guilford County grand jury returned bills of indictment charging Defendant with first degree rape, first degree sex offense, second degree burglary, first degree kidnapping, assault by strangulation, and having attained the status of an habitual felon. In addition, the grand jury alleged as aggravating factors that the offenses of first degree rape, first degree sex offense, and second degree burglary had been committed after premeditation and deliberation and by lying in wait.
The charges against Defendant came on for trial before the trial court and a jury at the 30 January 2012 criminal session of the Guilford County Superior Court. After the presentation of the evidence, the arguments of counsel, and the delivery of the trial court's instructions, the jury returned verdicts finding Defendant guilty as charged and finding the existence of the aggravating factors alleged in the indictments charging Defendant with first degree rape and first degree sex offense (but not second degree burglary). At the conclusion of the required separate proceeding, the jury also found that Defendant had attained habitual felon status. Based upon these determinations, the trial court entered judgments sentencing Defendant to a term of life imprisonment without the possibility of parole based on his conviction for first degree rape; to a consecutive term of 420 to 513 months imprisonment based on his conviction for first degree sex offense; and to a consecutive term of 138 to 175 months imprisonment based on his convictions for second degree burglary, assault by strangulation, and having attained the status of an habitual felon, all of which were consolidated for judgment. On the other hand, the trial court arrested judgment with respect to Defendant's first degree kidnapping conviction. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis
A. Testimony Concerning Fingerprint Card
In his first challenge to the trial court's judgments, Defendant argues that the trial court “erred by permitting a witness to refer to a prior arrest of the defendant in describing a fingerprint card from an earlier offense, effectively putting before the jury the fact that the defendant, who did not testify, had a criminal history .” More specifically, Defendant contends that the challenged testimony tended “to show that [he] had been arrested for other suspected criminal activity and to suggest that he had a tendency to be involved in criminal activity, suggesting that he possessed the sort of character one might expect to find in a burglar or rapist.” Defendant is not entitled to relief from the trial court's judgments based upon this argument.
At trial, Ms. Wray testified that she was employed as a crime scene technician with the Winston–Salem Police Department in August 1999 and that her duties at that time included recording information about and obtaining fingerprints from individuals who had been placed under arrest. After describing the interview and fingerprinting process that she had used in 1999, Ms. Wray identified a fingerprint card that she had created for Defendant. Although Ms. Wray made reference on at least five separate occasions to the fact that the procedures that she was describing took place incident to an arrest, Defendant never lodged an objection to any of this testimony. Similarly, Defendant failed to object when Ms. Wray identified a particular card as bearing Defendant's fingerprints or when the card in question was admitted into evidence. In addition, Officer Seats identified a “North Carolina State Fingerprint Card” that he had “obtained for [Defendant] on August 19 of 1997” without drawing any objection from Defendant. After Officer Seats began to describe the general process used to obtain fingerprint cards, Defendant objected to his reference to the fact that such cards were created in connection with the making of an arrest. According to Defendant, this “objection was strictly to the fact the officer referred to [Defendant] as an arrestee[.]” After Officer Seats explained the procedure for creating a fingerprint card without mentioning that Defendant was under arrest at the time, the fingerprint card was admitted into evidence without objection. As a result, Defendant did not object to any portion of Ms. Wray's testimony and only objected to Officer Seats' comment that, as a general proposition and without making reference to any particular charge that had been lodged against Defendant, fingerprint cards are created as part of the arrest process.
“It is well established that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.” State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979) (citations omitted). In this case, Defendant failed to object to Ms. Wray's testimony, which was evidence “of a similar character” to Officer Seats' statement to the effect that fingerprint cards are created during the course of the arrest process. Moreover, Defendant has failed to argue that the trial court committed plain error by allowing Officer Seats to allude to the circumstances under which fingerprint cards are created or admitting any of the evidence that he now seems to find objectionable. As a result, Defendant has failed to properly preserve his challenge to the admission of evidence tending to show that the cards utilized to establish Defendant's fingerprints were created during the course of the arrest process for appellate review or to take the actions necessary to preserve his right to seek review of the admission of unobjected-to evidence on plain error grounds. See, e.g., State v. Ray, 364 N.C. 272, 277–78, 697 S.E.2d 319, 322 (2010) (noting that the “defendant lost his remaining opportunity for appellate review when he failed to argue in the Court of Appeals that the trial court's admission of this testimony amounted to plain error”). Thus, we have no basis for reaching Defendant's challenge to the admission of the evidence in question on the merits under any standard of appellate review.
Moreover, even if this issue had been properly preserved and presented for our consideration, Defendant has failed to show that he is entitled to relief based on the admission of the challenged evidence. As an initial matter, Defendant asserts that “[t]he [S]tate cannot show that the improper reference to [his] criminal history was harmless,” a contention which assumes that the State bears the burden of establishing that Defendant is not entitled to appellate relief. “Under both the federal and state harmless error standards, the government bears the burden of showing that no prejudice resulted from the challenged federal constitutional error.” State v. Lawrence, 365 N.C. 506, 513, 723 S.E.2d 326, 331 (2012). However, “[p]rejudicial error in regard to rights arising other than under the Constitution of the United States is shown ‘when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial [.]’ N.C. [Gen.Stat.] § 15A–1443(a) [ (2012) ].” State v. Wiggins, 334 N.C. 18, 27, 431 S.E.2d 755, 760 (1993). As a result of the fact that Defendant has not advanced any challenge to the admission of the evidence in question arising under the federal or state constitutions either at trial or on appeal, he necessarily must assume the burden of demonstrating that the admission of the evidence in question prejudiced him. In addition, we conclude that, even if the challenged evidence was admitted in error, there is no “reasonable possibility” that the outcome at Defendant's trial would have been different given the strength of the State's case and the relatively oblique nature of the prejudice that Defendant claims to have sustained as the result of the admission of the challenged evidence. As a result, even if Defendant had properly preserved his challenge to the admission of Officer Seats' comment for appellate review or had contended that the admission of the evidence in question constituted plain error, we would find that Defendant was not entitled to relief from his convictions given the absence of any likelihood that the outcome at trial would have been different had the jury not heard the challenged evidence.
B. Sufficiency of the Evidence
Secondly, Defendant argues that the trial court “erred in denying [his] motion to dismiss because there was insufficient evidence from which a rational trier of fact could convict.” The gist of Defendant's challenge to the trial court's ruling is that Ms. Rippy was an unreliable witness and that the physical evidence did “little more than raise a conjecture that the attacker was [Defendant],” rendering the State's evidence insufficient to allow a rational fact finder to “conclude beyond a reasonable doubt that [Defendant] was the person who attacked Ms. Rippy[.]” Defendant's argument lacks merit.
“The standard of review for a motion to dismiss is well known. A defendant's motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant's being the perpetrator of the charged offense. ‘Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.’ The Court ‘must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence.’ Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.” State v. Johnson, 203 N.C. App 718, ––––, 693 S.E.2d 145, 148 (2010) (citing State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002), quoting State v. Turnage, 362 N.C. 491, 493–94, 666 S.E.2d 753, 755 (2008) (internal citation omitted), and State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 926 (1996) (internal citation omitted), and citing State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)).
At trial, Defendant was convicted of first degree kidnapping, assault by strangulation, second degree burglary, first degree rape, and first degree sex offense. Defendant has not challenged the sufficiency of the evidence to establish that these offenses were, in fact, committed against Ms. Rippy. Instead, Defendant simply argues that the record did not contain sufficient evidence to permit a reasonable jury to conclude that he was the individual who committed these offenses against Ms. Rippy. Defendant's argument is inconsistent with well-established North Carolina law.
“The unsupported testimony of the prosecutrix in a prosecution for rape has been held in many cases sufficient to require submission of the case to the jury.” State v. Bailey, 36 N.C.App. 728, 730, 245 S.E.2d 97, 99 (1978) (citations omitted). “It is equally well-settled that the testimony of a single witness is adequate to withstand a motion to dismiss when that witness has testified to all the required elements of the crimes at issue.” State v. Whitman, 179 N.C.App. 657, 670, 635 S.E.2d 906, 914 (2006) (citing State v. Lester, 294 N.C. 220, 225–26, 240 S.E.2d 391, 396 (1978)); see also, e.g., State v. Shaw, 284 N.C. 366, 371, 200 S.E.2d 585, 588 (1973) (stating that, “[w]here the commission of the crime is admitted or established, the testimony of the prosecuting witness, or of one witness, identifying defendant as the perpetrator, carries the case to the jury regardless of the questionable character of the witnesses, since the credibility of witnesses is a matter for the jury.”) (internal quotation omitted). At trial, Ms. Rippy provided unequivocal testimony that Defendant had committed the offenses against her. Although Ms. Rippy's testimony, standing alone, would be sufficient to support the jury's verdict, the State presented substantial additional evidence tending to identify Defendant as the individual who assaulted Ms. Rippy, including corroborative testimony by Ms. Kelly, Ms. Norman, and Officer Jordan; fingerprint evidence; and evidence that the chances of a randomly selected North Carolina African–American individual having DNA that bore a comparable degree of similarity to that in the mixtures examined by Mr. Kallenbach would be greater than one in five million. As a result, the record contained more than sufficient evidence to permit a jury to find that Defendant was the perpetrator of the offenses that were committed against Ms. Rippy.
In attempting to persuade us to reach a different conclusion, Defendant directs our attention to evidence that might undercut Ms. Rippy's credibility, including the fact that she was an “admitted drug user” who was living in a substance abuse treatment facility at the time of trial. In addition, Defendant contends that some of Ms. Rippy's statements were untruthful or inconsistent with her trial testimony. However, “[q]uestions of credibility are to be determined by the jury,” State v. Jolly, 332 N.C. 351, 359, 420 S.E.2d 661, 666 (1992), and provide no basis for a determination that the evidence was insufficient to support a defendant's conviction. Finally, Defendant cites State v. Malloy, 309 N.C. 176, 178–80, 305 S.E.2d 718, 720–21 (1983) (holding that the record did not contain sufficient evidence to establish that the defendant owned or controlled allegedly stolen property), and State v. Jackson, 309 N.C. 26, 40–41, 305 S.E.2d 703, 714 (1983) (holding that the record did not contain sufficient evidence to establish that the defendant used a misrepresentation to confine, restrain or remove the victim), for the general proposition that a motion to dismiss should be granted if the evidence raises no more than a suspicion or conjecture of a defendant's guilt. However, Defendant fails to identify any aspect of either decision that has any direct bearing on the proper resolution of the sufficiency of the evidence issue in this case and we believe that the evidence contained in the present record raises considerably more than a suspicion of or conjecture about Defendant's guilt. As a result, we conclude that the State presented sufficient evidence to permit a reasonable jury to find that Defendant was the perpetrator of the offenses that were committed against Ms. Rippy, so that the trial court did not err by denying Defendant's motion for dismissal.
III. Conclusion
Thus, for the reasons set forth above, we conclude that none of Defendant's challenges to the trial court's judgments have merit. As a result, the trial court's judgments should, and hereby do, remain undisturbed.
NO ERROR. Judges BRYANT and ELMORE concur.
Report per Rule 30(e).