State v. Ewell, No. COA06-1494 (N.C. App. 11/6/2007)

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Unpublished Opinion

STATE OF NORTH CAROLINA v. JAMES EARL EWELL, Defendant.

No. COA06-1494

Court of Appeals of North Carolina.

Filed November 6, 2007

This case not for publication

Martin County Nos. 03 CRS 1673; 03 CRS 1674; 03 CRS 1675; 03 CRS 1676.

Appeal by defendant from judgments entered 25 May 2006 by Judge Thomas D. Haigwood in Martin County Superior Court. Heard in the Court of Appeals 6 June 2007.

Attorney General Roy Cooper, by Assistant Attorney General Q. Shanté Martin, for the State.

Glenn Gerding for defendant-appellant.

GEER, Judge.

Defendant James Earl Ewell appeals from his convictions for attempted first degree sex offense of a child under 13 years of age, attempted statutory sex offense of a 13-year-old child, and two counts of indecent liberties with a child. In arguing on appeal that the trial court erred in denying his motion to dismiss, defendant relies primarily on his contention that the child lacked credibility. Since questions of credibility are for the jury, and the record contains sufficient evidence to prove the other elements of the crimes charged, we hold the trial court properly denied the motion to dismiss. Further, in light of defendant's extensive criminal record that became admissible when he testified, we find unpersuasive defendant's contention that the court committed plain error in allowing the State (1) to question defendant about convictions more than 10 years old and (2) to attempt to elicit facts underlying certain convictions. Finally, we disagree with defendant's contention that the trial court, in this second trial following a remand by this Court, imposed a sentence that exceeded the sentence imposed at the first trial. Accordingly, we hold that defendant received a trial free of prejudicial error.

Facts

The State's evidence at trial tended to show the following facts. At the time of the incidents at issue, defendant was living with his girlfriend and her daughter, "Tanya."¹ Tanya ranged in age from 11 to 13 during the time frame of the alleged offenses.

The first incident recalled by Tanya occurred on approximately 27 January 2001, when Tanya was 11 years old. Tanya's mother went to work early that day. According to Tanya, defendant intercepted her on her way to the bathroom and told her to use the bathroom in her mother's room. Before she reached the bathroom, defendant told her to lie down on the bed in her mother's room. When Tanya did not comply, he placed her on the bed, removed her pajamas and underwear, and began to have sexual intercourse with her. Tanya cried and asked him to stop, but defendant told her to stop moving and ejaculated on her stomach. Tanya testified defendant had sex with her more than 13 times between January 2001 and October 2002. She could not remember other specific dates, but did recall the circumstances surrounding some of the incidents.

Tanya testified defendant also tried to have oral sex with her on multiple occasions after the January 2001 incident. According to Tanya, defendant "would put his penis in any [sic] face" and "kept pushing my head, pulling my head back, and he would push it forward." During these incidents, Tanya noticed defendant had "moles" on his penis. Tanya's mother confirmed that defendant in fact had warts on his penis and testified further that the wart on the tip of his penis was only visible when the penis was erect. The State offered medical evidence that defendant had venereal warts removed on 7 April 2003, and defendant admitted he had the warts for five years.

On 9 September 2002, Tanya was diagnosed with Trichomonas, a sexually transmitted disease. Following that diagnosis, she admitted to her mother she had been sexually involved with defendant. Tanya's mother had also suffered from Trichomonas in 2000 or 2001 and believed defendant had transmitted it to her. Dr. Kathleen Previll, a pediatrician who examined Tanya on 5 February 2003, testified that Trichomonas is highly consistent with sexual intercourse and that there is only a slight possibility of its being transmitted through other types of contact.

Tanya's mother took Tanya to the Sheriff's Department on 15 November 2002 to report the allegations against defendant. On 2 December 2002, however, Tanya recanted. She later testified that her mother asked her to recant and promised she would not allow defendant to live with them again. Seven days later, on 9 December 2002, Tanya again changed her statement, stating that her first statement was true and her recantation was false.

In October or November 2002, Tanya reported to Warren Webster, a school counselor, that defendant had "mess[ed] with" her. She returned to Mr. Webster in January 2003 when she became upset because she thought defendant was moving back in with her mother. Tanya also reported defendant's activities to Nancy Bullock Conner, a social worker, and Suzanne Jolissaint from the Tedi Bear Clinic. Although the results of Tanya's physical examination with Dr. Previll were normal, Dr. Previll testified that normal findings were not inconsistent with allegations of abuse.

On 23 June 2003, defendant was indicted for first degree statutory rape; statutory rape of a person 13, 14, or 15; attempted first degree sex offense; attempted statutory sex offense; indecent liberties with a child under 13; and indecent liberties with a child who was 13. After the initial trial, in which defendant was convicted of each charge, defendant appealed, and a new trial was ordered as a result of the admission of improper expert testimony. See State v. Ewell, 168 N.C. App. 98, 606 S.E.2d 914, disc. review denied, 359 N.C. 412, 612 S.E.2d 326 (2005). At the second trial, defendant denied ever being sexually involved with Tanya. He testified Tanya could have known of his warts because she walked into the bathroom on occasion when he was urinating or saw him exiting the shower. Defendant also denied having Trichomonas. The jury found defendant guilty of attempted first degree sex offense, attempted statutory sex offense, and two counts of indecent liberties. The jury acquitted defendant of first degree statutory rape and statutory rape of a person 13 years of age. The trial court imposed four consecutive sentences: 25 to 30 months for each indecent liberties conviction and 225 to 279 months for each attempted sex offense conviction.

I

Defendant first argues that the trial court improperly denied his motion to dismiss for insufficiency of the evidence. When considering a motion to dismiss, the trial court must determine whether the State presented substantial evidence of each element of the crime and of the defendant's being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). The evidence must be viewed "in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995).

With respect to the charges of attempted first degree sex offense and attempted statutory sex offense, defendant argues that the State presented insufficient evidence of an overt act or a specific intent to commit the crime. The elements of attempted sex offense include: "(1) an intent to commit the crime, (2) an overt act done for that purpose, going beyond mere preparation, (3) but falling short of the completed offense." State v. Collins, 334 N.C. 54, 60, 431 S.E.2d 188, 192 (1993).

Defendant contends that, at most, the State presented evidence that he requested that Tanya perform fellatio on him and that a request is insufficient to constitute the required overt act. This Court rejected an identical argument in State v. Henderson, ___ N.C. App. ___, 642 S.E.2d 509 (2007). As described by the Court, the evidence in that case "tended to show that defendant removed his pants, walked into the room where his seven-or eight-year-old daughter was seated, stood in front of her, and asked her to put his penis in her mouth." Id. at ___, 642 S.E.2d at 513. This Court described as "legally incorrect" the defendant's argument that a mere request, in the absence of evidence of accompanying assaultive or violent behavior, was insufficient to constitute an attempt. Id. at ___, 642 S.E.2d at 514. While the Court acknowledged in Henderson that the defendant had previously threatened the child and physically abused her stepmother, it stressed that "violence is not a necessary component of an overt act, even in the context of attempted sexual offenses." Id.

In this case, Tanya testified that when she was between the ages of 11 and 13, defendant tried on multiple occasions to make her perform fellatio by standing in front of Tanya with his penisclose to her face and using his hands to move her face towards his penis. Based on Henderson, there can be no question that this evidence was sufficient to meet the requirement of an overt act necessary to support the charges of attempted first degree sex offense and attempted statutory sex offense.

Defendant also argues that the State failed to prove that he had the specific intent to have her perform fellatio. "An act must be done with specific intent to commit the underlying crime before a defendant may be convicted of an attempted crime." State v. Sines, 158 N.C. App. 79, 85, 579 S.E.2d 895, 899, cert. denied, 357 N.C. 468, 587 S.E.2d 69 (2003). We hold that evidence of defendant's erect penis placed in close proximity to the child's face and attempts to move the child's head toward the penis is ample evidence of a specific intent...