in the Court of Appeals 8 August 2016.
by defendant from judgments entered on or about 4 May 2015 by
Judge Hugh B. Lewis in Superior Court, Catawba County. No. 12
CRS 7763-64, 13 CRS 4688
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Jennifer T. Herrod, for the State.
Michael Spivey for defendant-appellant.
Linzie Lee Swink appeals his convictions for rape of a child
and indecent liberties with children. On appeal, defendant
argues that the trial court lacked authority to try him
without a jury, in violation of the North Carolina
Constitution and N.C. Gen. Stat. § 15A-1201, and that
the trial court erred when it failed to adequately determine
whether defendant made a knowing and voluntary waiver of his
right to a jury trial. We disagree and affirm the actions of
the trial court.
was indicted on or about 3 December 2012 for two counts of
rape of a child (12 CRS 7763 and 12 CRS 7764), on or about 3
September 2013 for one count of taking indecent liberties
with children (13 CRS 4688), and on or about 2 March 2015 for
superseding indictments of rape of a child (12 CRS 55705) and
sexual offense with a child (15 CRS 50932). Defendant filed a
motion for a bill of particulars, which the State answered on
25 February 2015. The State's answer laid out details of
the date and time of each offense. On 2 March 2015, the trial
court heard defendant's request for a bench trial. The
court inquired into defendant's waiver, calling him to
the stand and engaging in the following colloquy with
THE COURT: Sir, are you able to hear and understand me?
MR. SWINK: Yes, sir.
THE COURT: And are you under the influence of any alcoholic
beverages, drugs, narcotics or pills at this time?
MR. SWINK: No, sir.
THE COURT: And how old are you?
MR. SWINK: 40.
THE COURT: And at what grade level can you read and write?
MR. SWINK: Probably 11th grade right now, 11th.
THE COURT: Do you suffer from any mental handicap or physical
handicap that would prevent you from understanding what's