Opinion
No. COA12–1477.
2013-05-7
STATE of North Carolina v. Willie SMITH, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. William D. Spence for Defendant.
Appeal by Defendant from judgments entered 18 July 2012 by Judge W. Osmond Smith, III in Superior Court, Person County. Heard in the Court of Appeals 23 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. William D. Spence for Defendant.
McGEE, Judge.
Willie Smith, Jr. (Defendant) was convicted of first-degree rape of a child, first-degree sexual offense of a child, and indecent liberties with a child. Defendant appeals.
I. Assistance of Counsel
Defendant argues he was denied effective assistance of counsel by his attorney's failure to object to leading questions and failure to move to dismiss the charges. “To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense.” State v. Taylor, 362 N.C. 514, 547, 669 S.E.2d 239, 266 (2008). “[T]o establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (alterations in original).
A. Questions on Direct Examination
We first address counsel's failure to object to the questions. “A leading question is one which suggests the desired response and often may be answered ‘yes' or ‘no.’ “ State v. Wiggins, 136 N.C.App. 735, 738, 526 S.E.2d 207, 210 (2000).
Defendant challenges the following questions the State asked the child:
Q. .... On the few days before Christmas 2010, did [Defendant], who you've identified here in court, place his penis in your buttocks?....
Q. .... And did he lick your breasts?....
Q. Did he place his penis in your vagina?....
Q. .... And did he do all of those things a few days before Christmas of 2010?
A “question is not always considered leading merely because it may be answered ‘yes' or ‘no.’ “ State v. White, 349 N.C. 535, 557, 508 S.E.2d 253, 267 (1998). “A question is not leading where it directs the witness toward a specific matter to be addressed without suggesting an answer.” Id. In the present case, the State did not suggest an answer, but directed the child toward a specific matter. That the questions could be answered “yes” or “no” does not show the questions were necessarily leading.
Even assuming arguendo that the questions were leading, the trial court did not abuse its discretion in allowing the questions. “Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.” N.C. Gen.Stat. § 8C–1, Rule 611(c) (2011). “It is within the sound discretion of the trial judge to allow leading questions on direct examination, and in cases involving children or an inquiry into delicate subjects such as sexual matters, the judge is accorded wide latitude to exercise that discretion.” State v. Chandler, 324 N.C. 172, 190, 376 S.E.2d 728, 739 (1989).
In the present case, the child was ten years old at the time of trial. She testified about sexual matters involving Defendant, who was her mother's boyfriend. Our Supreme Court has described sexual matters as “presumably difficult” for young children “to understand or communicate without assistance.” Chandler, 324 N.C. at 190, 376 S.E.2d at 739. The trial court did not abuse its discretion in allowing the questions. Defendant cannot show there is a reasonable probability the result of the proceeding would have been different had Defendant objected.
B. Sufficiency of the Evidence of First–Degree Rape of a Child
We next address counsel's failure to move to dismiss the charge of first-degree rape of a child. Defendant argues the child's testimony that Defendant placed his penis in her vagina does not constitute substantial evidence of the element of vaginal intercourse.
A person is guilty of rape in the first degree if the person engages in vaginal intercourse:
(1) With a victim who is a child under the age of 13 years[.]
N.C. Gen.Stat. § 14–27.2(a) (2011).
The State presented the following evidence:
[The State]. Did he place his penis in your vagina?
[Child]. Yes.
“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. Carter, 198 N.C.App. 297, 306, 679 S.E.2d 457, 462 (2009). In the present case, the child's testimony was sufficient to withstand a motion to dismiss as to this element. Defendant cannot show there is a reasonable probability the result of the proceeding would have been different had Defendant's counsel moved to dismiss this charge.
C. Sufficiency of the Evidence of First–Degree Sexual Offense of a Child
We next address counsel's failure to move to dismiss the charge of first-degree sexual offense of a child. Defendant argues the child's testimony that Defendant placed his mouth on her vagina does not constitute substantial evidence of cunnilingus because the State “technically fails to comply with” State v. Ludlum, 303 N.C. 666, 281 S.E.2d 159 (1981).
A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13 years[.]
N.C. Gen.Stat. § 14–27.4(a) (2011). “Sexual act” means, inter alia, cunnilingus. N.C. Gen.Stat. § 14–27.1(4) (2011). The State presented the following evidence:
[The State]. .... So, in addition to him putting his penis in your vagina and in your buttocks and licking your breasts, he also put his mouth on your vagina?
[Child]. Yes.
In Ludlum, our Supreme Court did not “choose to quibble” over the word “ ‘stimulation’ contained in the definitions of cunnilingus[.]” Ludlum, 303 N.C. at 674, 281 S.E.2d at 163. “Whatever ‘stimulation’ is required is accomplished for purposes of Article 7A prosecutions when there has been the slightest touching by the lips or tongue of another to any part of the woman's genitalia.” Id. The testimony showed a touching by Defendant's mouth to the child's vagina. The evidence was sufficient to show “the slightest touching by the lips or tongue” of Defendant to the child's genitalia and was therefore sufficient to withstand a motion to dismiss as to this element. Id. Defendant cannot show there is a reasonable probability the result of the proceeding would have been different had Defendant moved to dismiss this charge. Because of our holding, we do not reach Defendant's argument regarding other sexual acts.
D. Sufficiency of the Evidence of Indecent Liberties
We next address counsel's failure to move to dismiss the charge of indecent liberties with a child. Defendant incorporates his previous argument regarding first-degree rape of a child and argues again that the child's testimony does not constitute substantial evidence. As discussed, the testimony was sufficient to withstand a motion to dismiss. Defendant cannot show there is a reasonable probability the result of the proceeding would have been different had Defendant moved to dismiss this charge.
Because Defendant cannot establish prejudice as to his counsel's failures to object or to move to dismiss, Defendant has not shown he received ineffective assistance of counsel.
II. Eighth Amendment
Defendant argues that his sentence constitutes cruel and unusual punishment. Defendant acknowledges he failed to object to his sentence. Defendant requests that this Court review his sentence for plain error. However, “plain error analysis applies only to instructions to the jury and evidentiary matters.” State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000).
Alternatively, Defendant asks this Court to invoke N.C.R.App. P. 2. “To prevent manifest injustice to a party,” this Court may “suspend or vary the requirements” of the rules of appellate procedure. N.C.R.App. P. 2. In our discretion, we elect to invoke N.C.R.App. P. 2 to review Defendant's sentence.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. “Only in exceedingly rare noncapital cases will sentences imposed be so grossly disproportionate as to be considered cruel or unusual.” State v. Green, 348 N.C. 588, 609, 502 S.E.2d 819, 832 (1998).
Defendant cites Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), in which the United States Supreme Court held that a juvenile's sentence of life in prison without the possibility of parole violates the Eighth Amendment. Graham is easily distinguished from the present case because the defendant in Graham was a juvenile. In the present case, Defendant was forty-one years old at the time of the offense.
Defendant further contends that the imposition of two consecutive terms of life without parole “is excessive and grossly disproportionate to the severity of the crime[.]” “The imposition of consecutive life sentences, standing alone, does not constitute cruel or unusual punishment. A defendant may be convicted of and sentenced for each specific criminal act which he commits.” State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983) (citation omitted) (upholding consecutive sentences for, inter alia, first-degree rape and first-degree sex offense).
Defendant was convicted of two Class B1 felonies—first-degree rape of a child and first-degree sexual offense of a child. Based on aggravating factors that Defendant does not challenge on appeal, the trial court sentenced Defendant within the aggravated range, as permitted by statute. SeeN.C. Gen.Stat. §§ 14–27.2, 14–27.4, 15A–1340.17 (2011). As in Ysaguire, we place great weight on the gravity of these offenses. Notwithstanding Defendant's unsupported assertion that “the [child] suffered no lasting physical injury,” Defendant's acts constitute serious crimes. Furthermore, the imposition of consecutive sentences for rape and other offenses does not represent an unusual punishment in this State. Ysaguire, 309 N.C. at 787, 309 S.E.2d at 441. Defendant's sentence does not constitute cruel or unusual punishment.
III. Questions on Direct Examination
Defendant argues the trial court committed plain error in allowing the State to lead the child on direct examination. Our analysis in Section I.A shows that the trial court did not abuse its discretion in allowing the questions.
IV. Sufficiency of the Evidence
Defendant argues the trial court erred in failing to dismiss ex mero motu the charges of first-degree rape of a child, first-degree sexual offense of a child, and indecent liberties with a child. Our analysis in Sections I.B, I.C, and I.D shows that the trial court did not err in failing to dismiss the charges ex mero motu.
No error. Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).