{ "id": 8521794, "name": "STATE OF NORTH CAROLINA v. JIMMIE ELIJAH HINSON", "name_abbreviation": "State v. Hinson", "decision_date": "1991-03-05", "docket_number": "No. 9025SC31", "first_page": "29", "last_page": "38", "citations": [ { "type": "official", "cite": "102 N.C. App. 29" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "31 ALR4th 120", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "351 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "318 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737137 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/318/0674-01" ] }, { "cite": "303 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "806-07" } ], "opinion_index": 0 }, { "cite": "308 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710863 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0736-01" ] }, { "cite": "337 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "516" } ], "opinion_index": 0 }, { "cite": "315 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714446 ], "year": 1985, "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0273-01" ] }, { "cite": "364 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "119" } ], "opinion_index": 0 }, { "cite": "321 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569213 ], "year": 1988, "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0574-01" ] }, { "cite": "364 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "129" } ], "opinion_index": 0 }, { "cite": "321 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567611 ], "year": 1988, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0528-01" ] }, { "cite": "324 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "324 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "840" }, { "page": "840" } ], "opinion_index": 0 }, { "cite": "312 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4752702 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "763-64" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0760-01" ] }, { "cite": "349 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "573" } ], "opinion_index": 0 }, { "cite": "318 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732391 ], "year": 1986, "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0457-01" ] }, { "cite": "340 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "77-78", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "316 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696516 ], "year": 1986, "pin_cites": [ { "page": "156-57", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0152-01" ] }, { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "837", "parenthetical": "defendant touched my \"project\" with his \"worm\" and victim pointed to her vaginal area" } ], "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "year": 1985, "pin_cites": [ { "page": "79-80", "parenthetical": "defendant touched my \"project\" with his \"worm\" and victim pointed to her vaginal area" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "355 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "475", "parenthetical": "defendant touched my \"private parts\"" } ], "opinion_index": 0 }, { "cite": "319 N.C. 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738889 ], "year": 1987, "pin_cites": [ { "page": "431", "parenthetical": "defendant touched my \"private parts\"" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0429-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "defendant used to touch me with his \"weewee\" and stuck it into my \"peepee\"" } ], "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "year": 1990, "pin_cites": [ { "parenthetical": "defendant used to touch me with his \"weewee\" and stuck it into my \"peepee\"" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "380 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482464, 2483151, 2488368, 2482970, 2485181 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0544-02", "/nc/324/0544-01", "/nc/324/0544-05", "/nc/324/0544-03", "/nc/324/0544-04" ] }, { "cite": "377 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "81" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527901 ], "year": 1989, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0126-01" ] }, { "cite": "281 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "\"defendant 'touched me with his tongue . . . between my legs' \"" } ], "opinion_index": 0 }, { "cite": "303 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575112 ], "year": 1981, "pin_cites": [ { "page": "667", "parenthetical": "\"defendant 'touched me with his tongue . . . between my legs' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0666-01" ] }, { "cite": "349 S.E.2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "566" }, { "page": "565" }, { "parenthetical": "defendant stuck his finger in my \"coodie cat\"" } ], "opinion_index": 0 }, { "cite": "318 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4734159 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "501-02" }, { "page": "501" }, { "page": "499", "parenthetical": "defendant stuck his finger in my \"coodie cat\"" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0498-01" ] } ], "analysis": { "cardinality": 865, "char_count": 20410, "ocr_confidence": 0.743, "pagerank": { "raw": 2.256970715388303e-07, "percentile": 0.7822129784400558 }, "sha256": "e87238fc541000a8c27d2d2ae1e89a197ba7a178fe0e6ee1992fe73149334751", "simhash": "1:1b2f78267672457c", "word_count": 3299 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JIMMIE ELIJAH HINSON" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendant initially assigns as error the trial court\u2019s failure to dismiss the charges against him. Defendant argues that the evidence was insufficient to convict him of first degree sexual offense on the grounds that he performed fellatio on the victim. We disagree.\nOn a motion to dismiss, the trial court must determine from all the evidence, taken in the light most favorable to the State, whether there is substantial evidence that the crime charged has been committed and that the accused is the one who did it. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In judging the sufficiency of the State\u2019s evidence, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom.\nState v. Watkins, 318 N.C. 498, 501-02, 349 S.E.2d 564, 566 (1986). (Citations omitted.)\nG.S. 14-27.4 provides that \u201c[a] person is guilty of a sexual offense in the first degree if the person engages in a sexual act: (1) 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[.]\u201d \u201cA sexual act is defined as \u2018cunnilingus, fellatio, analingus, or anal intercourse . . . [or] the penetration, however slight, by an object into the genital or anal opening of another body . . . [except for] accepted medical purposes.\u2019 \u201d 318 N.C. at 501, 349 S.E.2d at 565. (Citations omitted.)\nHere, the jury convicted defendant of first degree sexual offense based upon testimony that defendant performed oral sex on the victim. The victim\u2019s testimony with all reasonable inferences drawn in favor of the State is sufficient to support the finding that defendant committed first degree sexual offense on the victim. The victim testified during direct that defendant sucked him on his \u201cmiddle part\u201d or \u201cmiddle section\u201d which he indicated was his crotch area. We note that during cross-examination, the victim stated that he did not know what a penis was. However, there was other testimony by the victim which was sufficient for the jury to conclude that the victim meant penis when he referred to \u201cmiddle part\u201d or \u201cmiddle section.\u201d The victim testified that defendant \u201cstuck his middle section in [his] butt.\u201d The victim demonstrated that by \u201cbutt\u201d he meant his buttocks area.\nConvictions have been upheld in cases where proof included testimony of a child victim even though the victim did not use the precise terms set out in G.S. 14-27.4. See State v. Ludlum, 303 N.C. 666, 667, 281 S.E.2d 159 (1981) (\u201cdefendant \u2018touched me with his tongue . . . between my legs\u2019 \u201d); State v. Watkins, 318 N.C. 498, 499, 349 S.E.2d 564 (1986) (defendant stuck his finger in my \u201ccoodie cat\u201d); State v. Britt, 93 N.C. App. 126, 129, 377 S.E.2d 79, 81, appeal dismissed, disc. rev. denied, and cert. denied, 324 N.C. 544, 380 S.E.2d 772 (1989), overruled on other grounds, State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990) (defendant used to touch me with his \u201cweewee\u201d and stuck it into my \u201cpeepee\u201d); State v. Griffin, 319 N.C. 429, 431, 355 S.E.2d 474, 475 (1987) (defendant touched my \u201cprivate parts\u201d); State v. Smith, 315 N.C. 76, 79-80, 337 S.E.2d 833, 837 (1985) (defendant touched my \u201cproject\u201d with his \u201cworm\u201d and victim pointed to her vaginal area).\nHere, the victim\u2019s testimony was further corroborated by his mother who testified that her son told her that defendant had \u201csucked his thing a bunch of times\u201d and had \u201cdone it to him in the butt.\u201d Sergeant Brewer, an investigating officer, testified that the victim told him that defendant \u201chad performed oral sex on him.\u201d We find the evidence here sufficient to withstand the motion to dismiss and this assignment of error is overruled.\nDefendant next assigns as error the trial court\u2019s introduction of evidence under the guise of corroboration. Defendant argues that the statements made by the victim to Sergeant Brewer were inadmissible hearsay. Defendant argues that Sergeant Brewer\u2019s testimony not only \u201cextended] the testimony of the prosecuting witness, it interpreted it for the jury.\u201d Defendant contends that since this testimony was offered to show that defendant touched the victim\u2019s sex organ, the Rules of Evidence and the Confrontation Clauses of both state and federal Constitutions were violated and defendant was manifestly prejudiced. We disagree.\nCorroboration is \u201cthe process of persuading the trier of the facts that a witness is credible.\u201d We have defined \u201ccorroborate\u201d as \u201cto strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence.\u201d Prior consistent statements of a witness are admissible as corroborative evidence when the witness has not been impeached. However, the prior statement must in fact corroborate the witness\u2019 testimony. Slight variations between the corroborating statement and the witness\u2019 testimony will not render the statement inadmissible.\nState v. Riddle, 316 N.C. 152, 156-57, 340 S.E.2d 75, 77-78 (1986) (citations omitted). \u201cIn order to be corroborative and therefore properly admissible, the prior statement of the witness need not merely relate to specific facts brought out in the witness\u2019s testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony.\u201d State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 573 (1986).\nIn State v. Higginbottom, 312 N.C. 760, 324 S.E.2d 834 (1985), the defendant there objected to the testimony of the child victim\u2019s mother on the grounds that the testimony went beyond the scope of corroboration. The victim testified about sexual acts which the defendant performed on her. The mother later testified that the victim told her that the acts were \u201cyucky.\u201d Id. at 768, 324 S.E.2d at 840. The defendant objected on the grounds that the victim did not describe the acts as being \u201cyucky\u201d during her testimony and therefore the mother\u2019s statement was not admissible as corroborative evidence. Our Supreme Court stated that while the mother\u2019s statement did not precisely track the victim\u2019s testimony, \u201cit tended to confirm and strengthen her testimony.\u201d Id. at 769, 324 S.E.2d at 840. The court further stated that \u201c[w]hether or not the statement was corroborative was a matter for the jury to decide, as the court correctly instructed.\u201d Id. The Higginbottom court further stated that even if the statement was not admissible, \u201c[t]he statement provided insignificant embellishment to other testimony which established ample evidence that defendant had committed the crime charged.\u201d Id. at 769, 324 S.E.2d 840-41.\nAfter careful review of the record, we note that defendant did not object to Sergeant Brewer\u2019s statement that defendant had performed oral sex on the victim. Defendant merely objected and moved to strike the statement that defendant had placed his penis in the victim\u2019s face and the victim walked away. At that time, the trial court instructed the jury that it was to consider the evidence only for corroborative purposes. Defendant\u2019s other objections related to statements made by the victim\u2019s brother. Defendant did not object to Sergeant Brewer\u2019s use of the words \u201coral sex.\u201d Defense counsel even used the term \u201coral sex\u201d while cross-examining Sergeant Brewer on how many times the victim said the \u201cinstant (sic) of oral sex\u201d occurred. While the witness\u2019s testimony did not precisely track the testimony of the victim, it did in fact confirm and strengthen the victim\u2019s testimony as well as other corroborative testimony from other witnesses. The victim testified that defendant \u201csucked me on my my [sic] middle section.\u201d The victim\u2019s mother further testified that the victim said defendant sucked his \u201cthing.\u201d Another investigating officer stated that the victim told him that defendant sucked his \u201cmid section.\u201d Since this is ample evidence that defendant committed the crime charged, this assignment of error must be overruled.\nDefendant next contends that the trial court erred in allowing the State to cross-examine defendant concerning the following items on cross-examination: photographs, a dildo, a catalogue of condoms, lubricant, and two books entitled Sexual Intercourse and The Sex Book. Defendant contends that the cross-examination placed before the jury inflammatory material that was irrelevant. Defendant argues that the cross-examination denied him his \u201cfundamental right to a fair trial,\u201d and that it was plain error for the trial court not to have intervened ex mero motu. We disagree.\n\u201c[E]vidence of \u2018other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.\u2019 \u201d State v. Rael, 321 N.C. 528, 534, 364 S.E.2d 125, 129 (1988). \u201cIt is equally clear, however, that evidence of other crimes or acts by a defendant is admissible so long as it is relevant to any fact or issue other than the character of the defendant.\u201d Id. \u201cUnder Rule 401, \u2018relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u2019 \u201d Id.\n\u201cWe have held in several recent cases that evidence of prior sex acts may have some relevance to the question of defendant\u2019s guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity. Such evidence is deemed admissible and not violative of the general rule prohibiting character evidence.\u201d State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). \u201cNevertheless, the ultimate test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. \u00a7 8C-1, Rule 403.\u201d Id.\nHere, the State argues that the evidence was offered as \u201cproof of intent, preparation, plan, knowledge and absence of mistake.\u201d The State further asserts that this conclusion is evident in view of the fact that defendant showed the victim\u2019s brother condoms to be used \u201cwhenever [they] were going to make love.\u201d After careful review of the record, we find that the questions concerning the condoms were admissible to show \u201cproof of intent, preparation, plan, knowledge and absence of mistake.\u201d However, it was error for the trial court to allow questions concerning the other evidence; but, we note that defendant entered a general objection at the beginning of cross-examination and failed to renew his objection when evidence of similar import was admitted. \u201c \u2018It is well established that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.\u2019 \u201d State v. Bruce, 315 N.C. 273, 282, 337 S.E.2d 510, 516 (1985).\nDefendant argues that even if he did not properly object to the introduction of the evidence it was plain error for the trial court to allow its admission. We disagree.\nIn State v. Black, 308 N.C. 736, 303 S.E.2d 804 (1983), our State\u2019s Supreme Court stated that\n[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201c \u2018resulted in a miscarriage of justice or in the denial to appellant of a fair trial\u2019 \u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that defendant was guilty.\u201d\nId. at 740-41, 303 S.E.2d at 806-07.\nIn view of the overwhelming evidence of defendant\u2019s guilt, we find that the admission of the complained of evidence did not have a probable impact on the jury\u2019s guilty verdict. Accordingly, this assignment of error is overruled.\nFinally, defendant contends that the trial court erred in sentencing him to life imprisonment because it denied him of his state and federal constitutional right to be free from cruel or unusual punishment. We disagree.\nG.S. 14-27.4(b) provides that \u201c[a]ny person who commits an offense defined in this section is guilty of a Class B felony.\u201d \u201cClearly the legislature determined that whether or not accompanied by violence or force, acts of a sexual nature when performed upon a child are sufficiently serious to warrant the punishment mandated for Class B Felonies. Since it is the function of the legislature and not the judiciary to determine the extent of punishment to be imposed, we accord substantial deference to the wisdom of that body.\u201d 312 N.C. at 763-64, 324 S.E.2d at 837. \u201cThe imposition of a mandatory sentence of life imprisonment for first-degree sexual offense is not so disproportionate as to constitute a violation of the eighth amendment of the Constitution of the United States.\u201d Id. at 764, 324 S.E.2d at 837. In State v. Cook, 318 N.C. 674, 351 S.E.2d 290 (1987), defendant argued that the imposition of the mandatory life sentence for first degree sexual offense was unconstitutional. The Cook court declined to re-examine that question since it had previously determined that the mandatory life sentence for first degree sexual offense was constitutional in Higginbottom, supra.\nAfter careful review of this record, we hold that defendant has failed to prove that the mandatory sentence violates his constitutional right to be free from cruel and unusual punishment. This assignment of error is overruled.\nAccordingly, we find no error.\nNo error.\nJudges Johnson and Parker concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General William F. Briley, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JIMMIE ELIJAH HINSON\nNo. 9025SC31\n(Filed 5 March 1991)\n1. Rape and Allied Offenses \u00a7 5 (NCI3d) \u2014 sexual offense \u2014 fellatio on minor child \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to support defendant\u2019s conviction of first degree sexual offense on the ground that he performed fellatio on the seven-year-old victim where the victim testified that defendant sucked on his \u201cmiddle part\u201d or \u201cmiddle section\u201d which he indicated was his crotch area; the victim testified that defendant \u201cstuck his middle section in my butt\u201d and demonstrated that he meant his buttocks area; the victim\u2019s mother testified that her son told her that defendant had \u201csucked his thing a bunch of times\u201d and had \u201cdone it to him in the butt\u201d; and an investigating officer testified that the victim told him that defendant \u201chad performed oral sex on him.\u201d\nAm Jur 2d, Sodomy \u00a7 45.\n2. Criminal Law \u00a7 89.5 (NCI3d)\u2014 testimony admissible for corroboration\nAn officer\u2019s testimony that a child victim told him that defendant \u201chad performed oral sex on him\u201d was properly admitted to corroborate testimony by the victim that defendant sucked on his \u201cmiddle part\u201d or \u201cmiddle section,\u201d which he indicated was his crotch area, and testimony by the victim\u2019s mother that the victim said defendant sucked his \u201cthing.\u201d\nAm Jur 2d, Infants \u00a7 17.5; Sodomy \u00a7\u00a7 70, 71.\nModern status of rule regarding necessity for corroboration of victim\u2019s testimony in prosecution for sexual offense. 31 ALR4th 120.\n3. Criminal Law \u00a7\u00a7 34, 34.7 |NCI3d)\u2014 cross-examination of defendant \u2014 catalogue of condoms \u2014 sexual devices and books\nA defendant charged with first degree sexual offense against a minor child was properly cross-examined about a catalogue of condoms found in his home to show proof of intent, preparation, plan, knowledge and absence of mistake. However, the trial court erred in permitting defendant to be cross-examined about photographs depicting him in women\u2019s clothing, a dildo, lubricants, vibrators, and books entitled Sexual Intercourse and The Sex Book which were found in his home, but objection to this evidence was waived by defendant\u2019s failure to object to evidence of similar import, and admission of this evidence was not plain error. N.C.G.S. \u00a7 8C-1, Rule 404.\nAm Jur 2d, Witnesses \u00a7\u00a7 467, 468, 492, 497.\n4. Constitutional Law \u00a7 374 (NCI4th); Rape and Allied Offenses \u00a7 7 (NCI3d)\u2014 first degree sexual offense \u2014 life sentence not cruel and unusual punishment\nA sentence of life imprisonment imposed upon defendant for first degree sexual offense against a child did not constitute cruel and unusual punishment.\nAm Jur 2d, Criminal Law \u00a7\u00a7 625-627; Sodomy \u00a7\u00a7 97, 98.\nAPPEAL by defendant from judgment entered 9 October 1989 by Judge James U. Downs in CATAWBA County Superior Court. Heard in the Court of Appeals 25 September 1990.\nOn 17 January 1989 defendant was indicted for one count of first degree sexual offense and one count of taking indecent liberties with a minor. During trial, the State presented evidence that the victim, a seven-year-old boy, visited defendant, a fifty-three-year-old man, at defendant\u2019s house four times during the summer of 1988. Defendant and the victim\u2019s mother had arranged for these visits.\nThe victim testified about each visit. He testified that nothing unusual happened during his first visit. The victim testified that during his second visit, defendant began \u201cdoing things to [him]\u201d and \u201ctalking dirty.\u201d He testified that defendant began \u201csucking on [his] middle part,\u201d which he indicated was his crotch area. The victim testified that he did not tell his mother because defendant told him not to. The victim further testified that during the third visit, the defendant also \u201csucked on [his] middle section\u201d and \u201cstuck his [defendant\u2019s] middle section in his [victim\u2019s] butt.\u201d The victim testified that nothing happened to him during his fourth visit.\nThe victim\u2019s brother, who was eleven in September 1988, testified that he also stayed with defendant during the victim\u2019s fourth visit. He testified that he, along with his brother, defendant and another male youth slept in defendant\u2019s bed during that visit. The victim\u2019s brother testified that during the course of the night defendant put his arm around him and threw his leg over him. The victim\u2019s brother testified that after this incident he slept somewhere else. The victim\u2019s brother further testified that defendant discussed sexual matters with him during his visit. He testified that defendant showed him some condoms and said that they \u201cwere for whenever we were gong [sic] to make love.\u201d The victim\u2019s brother further testified that he had to ask defendant to leave after he observed defendant watching him and the victim change clothes in a department store\u2019s dressing room. The victim\u2019s brother testified that defendant hugged him and sucked on his ear. He stated that defendant\u2019s actions made him feel uncomfortable. The victim\u2019s brother stated that he told his mother what had happened as soon as defendant left after taking them back home. The victim\u2019s mother then called the police. The victim\u2019s mother and the investigating officers testified for the purpose of corroborating the victim\u2019s testimony.\nDefendant offered the testimony of sev\u00e9ral witnesses who testified about his reputation and the alleged incidents. Defendant testified that he offered to let the children stay with him because their mother was having problems with her boyfriend. He admitted that they all slept in the same bed, but denied any sexual misconduct. Defendant testified that he never saw either of the boys nude. On cross-examination, the State questioned defendant about the following items which were found in his home: photographs depicting him in women\u2019s clothing; dildos; a catalogue of condoms; lubricants; vibrators; a book entitled Sexual Intercourse; and a book entitled The Sex Book.\nAt the end of the State\u2019s evidence, the trial court granted defendant\u2019s motion to dismiss the indecent liberties charge, but denied defendant\u2019s motion to dismiss the first degree sexual offense charge. The jury found defendant guilty of first degree sexual offense based upon fellatio. The trial court imposed the mandatory life sentence. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General William F. Briley, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant." }, "file_name": "0029-01", "first_page_order": 59, "last_page_order": 68 }