Judge Horton, Chief Judge Eagles and judge Walker concur.
The opinion of the court was delivered by: Horton, Judge.
Appeal by defendant from judgment entered 22 November 1996 by Judge Abraham P. Jones in Wake County Superior Court. Heard in the Court of Appeals 12 May 1998.
The State's evidence tended to show that during the early morning hours of 17 February 1996, the victim, who was 12 years old at the time, was baby-sitting at Dawn Gill's apartment in Raleigh. Gill, who was the victim's godmother and defendant's sister, was working the late shift at a grocery store. After putting Gill's children to bed, the victim went to sleep in Gill's bedroom. A short time later, the victim heard a knock at the door. Defendant then entered the apartment with another man and a woman. Defendant asked the victim to stay in the children's bedroom while he and his friends were there. After defendant and his friends left the apartment, the victim went back into Gill's bedroom to sleep.
Approximately 15 minutes later, defendant returned to the apartment. Defendant went into the kitchen for a few minutes, and then went into Gill's bedroom where the victim had been sleeping. He watched television for a few minutes and then pulled the victim close to him, "feeling on [her] and stuff[.]" Defendant pulled the victim on top of him and asked, "[H]ow does it feel . . . does it feel good[?]" Defendant felt the victim's chest, and then pinned her down and started to remove her boxer shorts. He put his fingers in her vagina, and then put his mouth on her vagina and began licking her body. The victim did not scream for help because she was afraid defendant would hurt her. She asked defendant to leave, and he thereafter zipped up his pants, fastened his belt and left the bedroom. He offered the victim money and told her to keep the incident between the two of them. When defendant left the apartment, the victim called her mother, who came to the apartment and called the police.
The victim was later taken to a hospital, where she was examined by Paula Bost, a registered nurse, and Dr. Karen Albriton, who gathered evidence for a sexual assault kit. Dr. Albriton testified that after conducting a complete physical examination of the victim, she observed the victim had superficial abrasions above the vaginal opening and skin tears, one of which was bleeding slightly. Susan Barker, a forensic serologist, testified that her analysis of the vaginal swabs from the sexual assault kit indicated the presence of saliva.
Defendant was charged with one count of first degree burglary, one count of taking indecent liberties with a minor, and two counts of first degree sexual offense. The jury found defendant guilty of one count of taking indecent liberties with a minor and two counts of first degree sexual offense. The jury was unable to reach a verdict on the first degree burglary charge, and the court declared a mistrial as to that charge. The State then filed a voluntary dismissal of that charge. The trial court, after consolidating the convictions for judgment, sentenced defendant to a minimum of 269 months' and a maximum of 333 months' imprisonment.
On appeal, defendant first contends the trial court abused its discretion by denying his motion for a mistrial on the ground that members of the jury observed him in handcuffs and in the custody of the Sheriff. Specifically, defendant claims the jurors saw him in handcuffs while he was being transported from the jail to the courtroom by the Sheriff's deputies on the morning of the second day of trial.
In the instant case, after defendant moved for a mistrial, the trial court questioned, out of the jury's presence, defendant's sister and Sergeant Wayne Williams of the Wake County Sheriff's Department. Sergeant Williams testified that, when he brought defendant from the jail to the courtroom on the day in question, defendant
was handcuffed in front. He had a shirt, some type of garment, over his cuffs, over his wrists. He also, I think he had a notebook or something in his hand, and I preceded him and walked through the lobby. We weren't in the lobby I would say no more than about 10 seconds at the most. He didn't have any leg irons or anything on. We just walked through.
In response to the trial court's inquiry of whether defendant's wrists were exposed so that anyone could see that he was handcuffed, Williams responded, "Not to my knowledge because that was one of the things that I noticed before we even started, that he had a garment over his wrists where he was cuffed in front, and to my knowledge the cuffs were not exposed."
After calling the jurors back into the courtroom, the trial court addressed the jurors as follows:
I need to know from all of you individually whether there is anything that's occurred since this trial began, either you've seen, heard or that's been done, that would cause you to be prejudiced against the defendant, if there's anything at all. If there's anything at all that you can think of, please raise your hand. All right. Thank you.
Let the record reflect that no one raised -- no juror raced [sic] their hand in response ...