in the Supreme Court on 22 March 2017.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, __ N.C.App. __,
781 S.E.2d 851 (2016), vacating in part defendant's
convictions after appeal from a judgment entered on 8 August
2014 by Judge Paul C. Ridgeway in Superior Court, Wake
County, and remanding for resentencing.
H. Stein, Attorney General, by Anne M. Middleton, Special
Deputy Attorney General, for the State-appellant.
Jennifer Harjo, Public Defender, New Hanover County, by
Brendan O'Donnell, Assistant Public Defender, for
issue presented for our consideration in this case is whether
the record contains sufficient evidence to support
defendant's conviction for attempted first-degree rape of
a child in violation of N.C. G.S. §
14-27.2A(a). In vacating defendant's attempted rape
conviction, the Court of Appeals held that "[t]he State
failed to present substantial evidence of all elements
of" that offense. State v. Baker, __ N.C.App.
__, __, 781 S.E.2d 851, 856 (2016). After examining the
record in light of the applicable legal standard, we conclude
that the evidence adequately supported the jury's
determination that defendant had committed the offense of
attempted first-degree rape of a child in violation of N.C.
G.S. § 14-27.2A(a) and reverse the Court of Appeals'
decision with respect to this issue.
to the State, defendant committed two specific sexual
assaults against Amanda between the dates of 1 April 2008 and
21 October 2009, one of which allegedly occurred in
Amanda's bedroom and the other of which allegedly
occurred on a couch in the family residence. At the time of
these incidents, defendant, who had been born in 1981, was
the boyfriend of Amanda's mother and lived in the family
home with Amanda, her mother, and Amanda's two brothers,
the younger of whom was defendant's son.
claimed that, during the summer of 2009, defendant entered
her bedroom, in which she was lying on the bed; removed his
own shorts and Amanda's shorts and underwear; and began
touching her vagina. Although Amanda was "kicking and
screaming" as he did so, defendant "put his penis
in [her] vagina." Defendant's assaultive conduct
ended when Amanda's mother, who had been sleeping
downstairs, entered the bedroom and discovered defendant, who
was unclothed, with Amanda, whose shorts and underwear were
around her knees. After making this discovery, Amanda's
mother told Amanda to keep her door locked.
mother described the bedroom incident in somewhat different
terms. While sleeping on a downstairs couch during the summer
of 2009, Amanda's mother heard what she believed to be
her youngest child falling out of bed, as he had a habit of
doing. After checking on the child and his brother, who were
both asleep, Amanda's mother opened the door to
Amanda's bedroom, in which she found defendant, who was
asleep and clad in nothing other than his underwear, lying
partially on Amanda's bed. Amanda's mother could not
determine whether Amanda was clothed because she was lying
face down on the bed beneath a blanket. According to
Amanda's mother, defendant had a history of "blood
sugar" problems and would, on occasion, get up in the
night, act in an angry or disoriented manner, and pass out.
Amanda's mother thought that defendant's presence in
Amanda's room on the occasion in question resulted from
just such a "low blood sugar" episode. Although
Amanda told her mother that defendant had hurt her, she
understood Amanda's statement to be focused upon the fact
that defendant had collapsed on top of her, and she told
Amanda to lock her bedroom door to prevent the recurrence of
such an injury. Defendant, on the other hand, told
Amanda's mother that he had no memory of what had caused
him to be in Amanda's bedroom or what had happened there.
autumn of 2009, Amanda arrived home from school to find
defendant in an intoxicated condition. As Amanda sat down on
the couch to do her homework, defendant began touching
Amanda's chest. Although defendant attempted to have
Amanda lie down on the couch, she was able to move away from
him after he appeared to have fallen asleep. When defendant
sat up, Amanda grabbed a phone, fled to her bedroom, entered
the closet, and telephoned her mother with a request that her
mother have someone come get her. Amanda was subsequently
picked up by her grandparents.
mother, on the other hand, remembered that Amanda had called
her at work in the autumn of 2009 and told her that
defendant's conduct was frightening her. Although Amanda
did not specify what defendant had done to frighten her,
Amanda's mother honored her daughter's request that
she be picked up.
claimed that, prior to the bedroom incident, defendant had
committed repeated sexual assaults against her. According to
Amanda, defendant had touched her, put his penis in her
vagina, and "grabbed [her] from [her] arms and told
[her] not to tell anybody." Although Amanda could not
recall how old she was when these earlier incidents occurred,
she knew that she "was little."
initially disclosed that she had been sexually abused during
a conversation with some school friends during the fall of
2009. Even though a school counselor reported Amanda's
allegations to Wake County Child Protective Services, Amanda
told both Danielle Doyle, an investigator with Wake County
Child Protective Services, and Detective Peggy Marchant of
the Cary Police Department that no sexual abuse had occurred.
After receiving a new report that defendant had abused
Amanda, Ms. Doyle and Detective Marchant spoke with Amanda
again. Although she was initially hesitant to discuss sexual
abuse-related issues during this interview, Amanda admitted
that she was having nightmares, that she had not been
sleeping well, and that her level of nightmares, including
flashbacks about being touched, had been increasing as the
date upon which defendant was scheduled for release from
prison (in which he was serving a sentence based upon an
unrelated conviction) neared. When Amanda disclosed incidents
involving attempted penile-vaginal contact and the fondling
of her breasts and genital area, Ms. Doyle terminated the
interview and made an appointment for Amanda to be evaluated
by SafeChild Advocacy Center.
November 2011, Sara Kirk, a child abuse evaluation specialist
at the Center, interviewed Amanda. During that interview,
Amanda stated that, a couple of years earlier, defendant had
touched her in an inappropriate manner and attempted to put
his penis in her vagina. In describing the bedroom incident,
Amanda replied, "I don't think it did, " when
asked if defendant's penis had entered her private part.
Amanda did not claim that defendant's penis had
penetrated her vagina at the time of the bedroom incident
until a 14 July 2013 meeting with investigating officers and
representatives of the District Attorney's office.
Warner, a nurse practitioner at the Center, found "no
signs of acute, meaning recent, or healed trauma to
[Amanda's] vaginal area." However, Ms. Warner also
stated that such results were not uncommon even if vaginal
penetration had occurred.
Bolick, a licensed clinical social worker, conducted
counseling sessions with Amanda from 8 May 2012 through 11
June 2013. In light of Amanda's reluctance to discuss
sexual abuse-related issues and her tearful affect when the
subject of sexual abuse was mentioned, Ms. Bolick diagnosed
Amanda as suffering from post-traumatic stress disorder. On
the other hand, Ms. Bolick admitted that she had not observed