Heard in the Court of Appeals 8 January 2014.
Appeal by defendant from judgment entered 29
January 2013 by Judge Benjamin G. Alford in Washington County Superior Court.
Attorney General Roy Cooper, by Special Deputy Attorney General Jennie Wilhelm Hauser, for the State.
McCotter Ashton, P.A., New Bern, by Rudolph A. Ashton, III, and Kirby H. Smith, III, for defendant-appellant.
Where defense counsel informed the trial court tat defendant had decided to reject a plea offer and proceed to trial on a charge of first-degree rape, the trial court's failure to inform defendant of the increased maximum sentence for second-degree rape under N.C. Gen.Stat. § 15A-1340.17(f) was not error. The trial court did not err in allowing the prosecutor to cross-examine defendant about prior out of state criminal convictions or in denying defendant's motion to dismiss the charge of second-degree rape for insufficient evidence.
I. Factual and Procedural Background
In January of 2012, J.B., who lived in Plymouth, North Carolina, met defendant through a telephone dating service. After talking to defendant on the phone for several weeks, she invited him to visit in person on the weekend of 8 January 2012. On 6 January 2012, a friend of J.B.'s picked up defendant in Greenville and brought him to Plymouth. When J.B. finished work, she and defendant purchased beer and food and went to a motel, where they talked, ate, drank beer, and had consensual sex. That night, defendant talked about his father, who he felt had mistreated him. The next day, J.B. went to work in the morning and afterwards she and defendant went to her trailer with more beer. J.B. slept about two hours, cooked food for defendant, and they had consensual sex.
Defendant continued drinking during the day and during the evening he became increasingly agitated about issues that he had with his father, and threatened to harm J.B. or himself. Defendant retrieved a machete from J.B.'s closet, pushed her onto the bed, punched J.B., choked her, held the machete to her neck, and forced her to have sex with him. After the forcible intercourse, defendant made her take a shower with him, after which they dressed and both took some sedative-laced pain pills. J.B. and defendant dozed briefly, but when defendant awoke he was still very agitated and " proceeded to scream and holler." J.B. ran into a bathroom and called 911, at which point defendant ran out of the trailer.
When Deputies Ricks and Spencer of the Washington County Sheriff's Department arrived at J.B.'s trailer, Deputy Ricks noted that J.B. was " crying hysterically and shaking." The deputies took a statement from J.B., obtained a photo of defendant, photographed J.B.'s bruises, and took her to the hospital.
Defendant was arrested a few hours later, and at around 10:00 a.m. on 8 January 2012, Deputy Spencer met with defendant at the Washington County jail. Defendant waived his Miranda rights, and gave Spencer a statement about the events of the previous 36 hours. His account of the time he had spent with J.B. was similar to J.B.'s statement; specifically, he admitted to Spencer that he had forced J.B. to have sex on Saturday. He told Spencer that J.B. had threatened him with the machete, and that in response " he got angry and went and got the machete and put it up to her neck and threatened to cut her head off and then forced her to have sex with him[.]" J.B. had stated that defendant had raped her once; however, defendant told
Spencer that he forced himself on her twice. After Spencer reduced defendant's statement to writing, defendant read and initialed it.
Defendant was indicted on 23 July 2012 in an indictment whose language described second-degree rape, but whose caption and cited statute identified the charged offense as first-degree rape. Prior to trial, the trial court ruled that the indictment charged defendant with second-degree rape.
Defendant was tried before a jury on 28 and 29 January 2013. Defendant's mother testified that defendant, who grew up in Connecticut, suffered a head injury at age two, after which " his brain didn't develop like normal" and that he read at a third or fourth grade level and had difficulty with long term memory. Defendant's mother also testified that after defendant moved to North Carolina about three years earlier, he lived in Greenville for two years, and had spent " one year in jail."
Defendant testified that he was 36 years old, lived in Greenville, North Carolina, and was unemployed but received disability payments for " mental retardation." He recalled speaking with Spencer, but contended that he was " drunk" at the time and did not remember his answers to her questions, or remember telling Spencer that he had forced J.B. to have sex. He testified that he could not read the statement that he had initialed. On cross-examination, defendant testified that he could not recall what happened during the weekend of 8 January 2012, and that he did not " know of" or recall any criminal convictions from Connecticut. Over objection, the prosecutor asked defendant about 5 prior criminal convictions in Connecticut. Defendant denied any recollection of those convictions. When asked on redirect examination, defendant testified that he remembered being arrested, but not what he was charged with.
On 29 January 2013 the jury found defendant guilty of second-degree rape. The trial court sentenced defendant to an active sentence of 73 to 100 months. Subsequently, the Department of Public Safety informed the trial court that the maximum sentence of 100 months did not correspond to the minimum sentence of 73 months, since defendant was convicted of a reportable sex offense as defined in N.C. Gen.Stat. § 14-208.6(4), and therefore was required to be sentenced under N.C. Gen.Stat. § 15A-1340.17(f). On 11 March 2013, the trial court amended its judgment and entered a maximum sentence of 148 months.