Heard in the Court of Appeals August 11, 2014
Attorney General Roy Cooper, by Associate Attorney General Christina E. Simpson, for the State.
Paul F. Herzog for defendant-appellant.
HUNTER, Robert C., Judge. Judge MCCULLOUGH concurs. Judge ERVIN concurs in part and dissents in part by separate opinion.
Appeal by defendant from judgments entered 31 July 2013 by Judge Mark E. Powell in Henderson County Superior Court,
Nos. 11 CRS 55726-31.
HUNTER, Robert C., Judge.
Charles Stevens Blow, Jr. (" defendant" ) appeals from six judgments entered 31 July 2013 after a jury convicted him on three counts each of first degree rape and first degree sex offense on a child. On appeal, defendant contends that the trial court erred by: (1) denying his motion to dismiss with respect to one count of first degree rape and (2) denying his motion to continue when defense counsel learned of a potential defense witness on the eve of trial.
After careful review, we vacate one judgment for first degree rape, but we find no error in the denial of defendant's motion to continue.
Defendant is the biological father of M.B. and her sister, C.B. M.B. was born in 2001
and was eleven years old when this case went to trial. Defendant and Angela Blow (" Angela" ), the mother of M.B. and C.B., married in 2005. In August 2010, Angela and defendant separated and Angela moved to Michigan with M.B. and C.B. While in Michigan, Angela suffered a breakdown and left M.B. and C.B. with her brother. As a result, psychological and medical evaluations were performed on M.B., C.B., Angela, and defendant in April 2011 in the process of determining placement of custody for the children. During these evaluations, M.B. denied the occurrence of any previous abuse when her family lived in North Carolina. Pursuant to an agreement between Angela and defendant, M.B. and C.B. moved to North Carolina to live with defendant and his new girlfriend in June 2011.
While visiting her mother in Michigan on 23 December 2011, M.B. was being teased by other children in the family when she became upset and retreated to the bathroom. When Angela went in to check on her, M.B. revealed to Angela that " [s]ometimes dad takes his boy parts and he touches my girl parts." M.B. then said, " [defendant] told me that if I did not let him do it to me, that now that [C.B.] was getting older he was going to do it to her." M.B. told Angela, and later testified at trial, that this abuse had been occurring since she was about six years old. The next morning, Angela took M.B. to the local hospital for an examination.
At the hospital, M.B. was questioned by Trooper Ruth Osborne (" Trooper Osborne" ) of the Michigan State Police. M.B. told Trooper Osborne that defendant would put " his boy parts" " on [M.B.'s] girl parts." When asked for clarification, M.B. later stated to Trooper Osborne that defendant would put his " boy parts" inside her. M.B. stated during the interview that defendant would touch her on her private parts with his hand, his " boy part," and his electric toothbrush. A sexual assault examination was performed on M.B. during this hospital visit, however the prosecution was not able to present this evidence because the swabs were accidentally thrown away before being examined by the North Carolina State Bureau of Investigation.
The Michigan State Police contacted Detective Dottie Parker (" Detective Parker" ) of the Henderson County Sheriff's Office, and a North Carolina investigation began. Defendant consented to an interview with Detective Parker on 28 December 2011. During this interview, defendant admitted that he had rubbed his penis on M.B.'s vagina, performed oral sex on M.B., and put a vibrating toothbrush on her vagina. However, defendant repeatedly denied ever " penetrating" M.B. with either his finger, toothbrush, or penis.
Defendant was arrested following the interview. He was indicted on 26 March 2012 on three counts of first degree rape, alleged to have occurred between June 2011 and December 2011, and three counts of first degree sex offense, alleged to have occurred between June 2007 and June 2010.
The defense made a pretrial motion to continue on the eve of trial, claiming that defense counsel had learned of the psychological evaluations completed on defendant, Angela, and M.B. the day before trial was scheduled to begin. During the motion hearing, the defense asserted that the relevance in these evaluations lay in (1) the impeachment of M.B. through purported prior inconsistent statements, and (2) the psychological profiles of M.B. and defendant. The motion was denied.
At trial, M.B. testified that during the time period when she and C.B. lived with defendant and his girlfriend from June to December 2011, defendant would oftentimes come into the small bedroom M.B. shared with C.B. and would touch M.B. on her " private parts" and chest. M.B. stated that this happened " a lot," not just once or twice. M.B. testified that defendant performed oral sex on her " a lot," sometimes taking her into his bedroom to perform these acts. M.B. also stated that defendant placed his fingers and electric toothbrush inside her vagina " a couple times." M.B. further testified that defendant put his penis in her vagina " a couple times." M.B. did not remember exactly how
many times defendant put his penis inside her, but she testified that it happened " more than one time." M.B. testified that she did not tell anyone about this abuse initially because she was afraid " [defendant] would hurt me."
Defendant presented no evidence, but moved to dismiss all charges at the close of the State's evidence and renewed the motion before the case was submitted to the jury. Defendant argued in part that one of the charges for first degree rape should be dismissed because the only evidence presented by the State to support those charges was M.B.'s testimony that defendant inserted his penis into her vagina " a couple" times. Both motions were denied. The jury convicted defendant of all charges. Defendant was sentenced to 221 to 275 months imprisonment for each of the three charges of first degree rape and one count of first degree sex offense, all of which are to be served concurrently. He was also sentenced to 221 to 275 months imprisonment for the remaining two counts of first degree sex offense, which are to be served consecutively. Thus, in total, defendant was sentenced to 663 to 825 months of active imprisonment.
I. Motion to Dismiss
Defendant first argues that the trial court erred when it denied defendant's motion to dismiss with respect to one count of first degree rape. We agree.
" This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). To defeat a motion to dismiss, the State must present " substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citations omitted). " Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Denny, 361 N.C. 662, 664-665, 652 S.E.2d 212, 213 (2007) (quotation marks omitted). " Generally, a jury may find a defendant guilty of an offense based solely on the testimony of one witness." State v. Combs,
__ N.C.App. __, __, 739 S.E.2d 584, 586, disc. review denied, 366 N.C. 596, 743 S.E.2d 220 (2013).
In considering a motion to dismiss, the trial court must look at the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference drawn from that evidence. Denny, 361 N.C. at 665, 652 S.E.2d at 213. However, if the evidence is " sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed." State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).
" A person is guilty of rape in the first degree if the person engages in vaginal intercourse . . . with a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim." N.C. Gen. Stat. § 14-27.2(a)(1) (2013). Our Supreme Court has held that " intercourse" means " the slightest penetration of the sexual organ of the female by the sexual ...