{
  "id": 9186788,
  "name": "STATE OF NORTH CAROLINA v. RANDY ADAM HOWARD",
  "name_abbreviation": "State v. Howard",
  "decision_date": "2003-06-03",
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    "judges": [
      "Judges McCULLOUGH and TYSON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. RANDY ADAM HOWARD"
    ],
    "opinions": [
      {
        "text": "CALABRIA, Judge.\nRandy Adam Howard (\u201cdefendant\u201d) appeals from judgment entered in Davie County Superior Court upon a jury verdict finding him guilty of statutory rape.\nAccording to the State\u2019s evidence, Connie Collet (\u201cMs. Collet\u201d) invited defendant, aged twenty-eight, to stay at her home since she was friends with his mother. During his visit, he helped Ms. Collet with her handicapped daughters. Ms. Collet\u2019s younger daughter, Naomi Collet (\u201cthe victim\u201d), who was fifteen years of age and had been diagnosed with mild mental retardation, engaged in sexual intercourse with defendant in late November and December 1998.\nIn January of 1999, Detective John Stephens (\u201cDetective Stephens\u201d) of the Davie County Sheriff\u2019s Department investigated a report from Social Services concerning sexual activity between defendant and the victim. As a result of that investigation and fears concerning the loss of her children stemming from her knowledge of their sexual relationship, Ms. Collet agreed to allow defendant to marry the victim. On 13 January 1999, defendant and the victim were married in South Carolina. When the married couple returned later that same day, Ms. Collet went to defendant\u2019s residence, picked up the victim, and returned the victim to her residence. The victim subsequently returned to defendant\u2019s residence for one week before she expressed her desire to return to Ms. Collet\u2019s home.\nOn 1 February 1999, after an appointment with a nurse at the health department, the victim was found to be five weeks pregnant. After defendant and the victim proceeded with a divorce, Detective Stephens reinstated his investigation of defendant for statutory rape. On 13 March 2000, defendant was indicted for statutory rape in violation of N.C. Gen. Stat. \u00a7 14-27.7A.\nThis matter came to trial in Davie County Superior Court on 14 January 2002, the Honorable Jerry Cash Martin, presiding. Defendant moved to continue the case, asserting that, without additional time to prepare for trial, he would be denied effective assistance of counsel. The trial court denied defendant\u2019s motion. The trial court further denied defendant\u2019s motions to dismiss the charge at the close of the State\u2019s evidence and at the close of trial. After defendant\u2019s mother testified on his behalf concerning the nature of the relationship between defendant and the victim, the case went to the jury, which returned a verdict of guilty of statutory rape. The court entered judgment on the conviction, sentencing defendant to 202 to 252 months. Defendant appeals.\nDefendant asserts the trial court erred in (I) denying defendant\u2019s motion to continue the trial and (II) failing to dismiss the charge. Defendant also asserts (III) N.C. Gen. Stat. \u00a7 14-27.7A is unconstitutional. Finally, defendant asserts the trial court committed plain error by (IV) allowing testimony by a nurse not qualified as an expert and (V) allowing testimony concerning interactions between Detective Stephens and defendant.\nI. Motion to Continue\nDefendant asserts he was denied effective assistance of counsel when the trial court denied his motion to continue because preparation time for trial was inadequate.\nA motion for a continuance is ordinarily addressed to the sound discretion of the trial court, and the ruling will not be disturbed absent a showing of abuse of discretion. When a motion to continue raises a constitutional issue, however, the trial court\u2019s ruling thereon involves a question of law that is fully reviewable on appeal by examination of the particular circumstances presented in the record. Even when the motion raises a constitutional issue, denial of the motion is grounds for a new trial only upon a showing that \u201cthe denial was erroneous and also that [the defendant] was prejudiced as a result of the error.\u201d [State v.] Branch, 306 N.C. [101,] 104, 291 S.E.2d [653,] 656 [(1982)].\nState v. Blakeney, 352 N.C. 287, 301-02, 531 S.E.2d 799, 811 (2000) (citations omitted). Where the constitutional issue asserted concerns effective assistance of counsel, we review the question of law fully to determine whether defendant has shown \u201che did not have ample time to confer with counsel and to investigate, prepare and present his defense.\u201d State v. Harris, 290 N.C. 681, 687, 228 S.E.2d 437, 440 (1976).\nIn the present case, defendant\u2019s counsel requested a continuance based on a lack of communication and the unavailability of the defendant until \u201ca few days\u201d before trial. The facts of the present case, however, do not establish any constitutional violation. Defendant\u2019s trial counsel was appointed on 17 July 2000, approximately one and a half years prior to the date of trial. Defendant was available to communicate with counsel during the process of discovery and waiver of arraignment between July and November of 2000. There is no evidence defendant was unavailable until he fled the country in or around January 2001. Defendant was taken into custody in Australia and returned to the United States. Though defendant asserts his whereabouts were unknown to his counsel until October 2001, defendant has shown no evidence of attempting to contact his counsel, either personally or through his family, at any time until \u201ca few days\u201d before trial, when counsel for defendant was apprised of the possibility of a witness in Oklahoma. Additionally, defendant failed to show his incarceration rendered him inaccessible to counsel or incapable of establishing communication with him. Accordingly, defendant failed to establish he was deprived of any constitutional right by a lack of a reasonable opportunity to consult with his attorney in preparation for trial.\nII. Motion to Dismiss\nDefendant asserts the trial court erred in denying his motion to dismiss because the evidence was insufficient to support the conviction of statutory rape. Defendant contends the State failed to establish that he engaged in the prohibited sexual activity and that he was at least six years older than the victim at the time of the alleged acts. \u201cA motion to dismiss on the ground of sufficiency of the evidence raises . . . the issue \u2018whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u2019 \u201d State v. Barden, 356 N.C. 316, 351, 572 S.E.2d 108, 131 (2002) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)). \u201cThe existence of substantial evidence is a question of law for the trial court, which must determine whether there is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d Id. (citing State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)). \u201cThe court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from that evidence.\u201d State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). Evidence maybe direct, circumstantial, or both. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).\nAbsent marriage, guilt under N.C. Gen. Stat. \u00a7 14-27.7A is established where the State proves a defendant \u201cengages in vaginal intercourse or a sexual act with another person who is 13, 14, or 15 years old and the defendant is at least six years older than the person.\u201d N.C. Gen. Stat. \u00a7 14-27.7A (2001). Defendant contends the State failed to prove vaginal intercourse between defendant and the victim and failed to prove defendant was more than six years older than the victim. We disagree.\nThe evidence produced at trial was sufficient to establish the statutory elements. The victim testified as follows:\nQ. Tell the ladies and gentlemen of the jury what type of sexual act occurred.\nA. Just sex.\nQ. Just sex. Sexual intercourse?\nA. Yes.\nThroughout the trial, each of the State\u2019s witnesses referred to the sexual activity between the victim and defendant as sex, intercourse, or sexual intercourse. Moreover, the victim became pregnant late in December, according to two sonograms performed by the health department. Considering the evidence in the light most favorable to the State and giving it the benefit of all inferences drawn therefrom, there was relevant evidence that a reasonable mind might accept as adequate to support the conclusion that defendant and the victim engaged in vaginal intercourse.\nRegarding proof of the age difference between defendant and the victim, the victim testified correctly that defendant\u2019s birth date was 10 July 1970 and her own birth date was 2 May 1983. Moreover, the State introduced the marriage certificate into evidence, which set forth the ages of defendant and the victim at twenty-eight years old and fifteen years old, respectively. We hold the State presented substantial evidence of the age difference between the victim and defendant. Accordingly, the statutory elements of N.C. Gen. Stat. \u00a7 14-27.7A were met, and this assignment of error is overruled.\nIII. Constitutionality of N.C. Gen. Stat. \u00a7 14-27.7A\nDefendant next asserts N.C. Gen. Stat. \u00a7 14-27.7A violates the guarantees against cruel and unusual punishment, equal protection under the law, and due process of law. Defendant first argues that the criminal sentence imposed is unconstitutionally disproportionate to the crime for which defendant was convicted. We note the sentence imposed is within the limits fixed by the structured sentencing laws found in N.C. Gen. Stat. \u00a7 15A-1340.17 (2001). Moreover, this Court has already considered the issue of disproportionate punishment under N.C. Gen. Stat. \u00a7 14-27.7A and found no constitutional infirmity. State v. Anthony, 133 N.C. App. 573, 516 S.E.2d 195 (1999).\nThe General Assembly established a statutory scheme to protect young females from older males. Section 14-27.7A defines two offenses in subsections (a) and (b), with a greater penalty corresponding to a greater age differential between the parties. Where the female is even younger, section 14-27.2 provides a penalty yet more severe than that found in section 14-27.7A. This statutory scheme, calibrating sentence severity to the gravity of the offense, reflects a rational legislative policy and is not disproportionate to the crime.\nId., 133 N.C. App. at 578, 516 S.E.2d at 198 (citation omitted).\nDefendant argues N.C. Gen. Stat. \u00a7 14-27.7A violates his equal protection rights by discriminating on the grounds of age and marital status. \u201cWhere a statute is challenged on the basis that it denies a person equal protection under the law, the level of judicial scrutiny depends on whether the alleged denial involves a fundamental right or a suspect class.\u201d State v. McCleary, 65 N.C. App. 174, 185, 308 S.E.2d 883, 891 (1983). With respect to defendant\u2019s argument that the statute impermissibly delineates between classes of individuals based on their age, age is not a suspect class; therefore,\nthe test is whether the difference in treatment made by the law has a reasonable basis in relation to the purpose and subject matter of the legislation. A statute is only void as denying equal protection when similarly situated persons are subject to different restrictions or are given different privileges under the same conditions.\nId., 65 N.C. App. at 186, 308 S.E.2d at 891-92.\nThe question is whether the State has a reasonable basis to punish more severely individuals who prey sexually on children aged 13, 14, or 15 as the age differential between the accused and the victim increases. Our Supreme Court, in considering N.C. Gen. Stat. \u00a7 14-27.7A, stated that its structure reflects \u201ca legitimate legislative decision that sexual intercourse or sexual acts with children deserve more severe punishment if the victim is younger or based on a greater difference in age between the victim and the older defendant.\u201d State v. Anthony, 351 N.C. 611, 617, 528 S.E.2d 321, 324 (2000). Accordingly, defendant\u2019s argument is without merit.\nWith regards to marital status, defendant argues N.C. Gen. Stat. \u00a7 14-27.7A creates an arbitrary distinction between married and unmarried persons. We disagree. The United States Supreme Court has indicated that sexual relations between married individuals is entitled, through the right of privacy, to heightened protection from governmental intrusion. Griswold v. Connecticut, 381 U.S. 479, 485-86, 14 L. Ed. 2d 510, 516 (1965) (noting the idea of allowing the \u201cpolice to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives [to be] repulsive to the notions of privacy surrounding the marriage relationship\u201d). In excepting married individuals from criminal liability under N.C. Gen. Stat. \u00a7 14-27.7A, our Legislature chose to respect this right of privacy by acknowledging that marriage closes the bedroom door. Moreover, it would be incongruous for our statutory scheme to allow an individual 14-16 years of age to marry another under certain circumstances without reference to the age difference between them, yet criminalize the consummation of that marriage under N.C. Gen. Stat. \u00a7 14-27.7A. Because the decision to distinguish sexual acts between married individuals from sexual acts between unmarried individuals is rational and not arbitrary, defendant\u2019s argument must fail.\nDefendant argues N.C. Gen. Stat. \u00a7 14-27.7A violates his due process rights because potential or actual offenders have insufficient notice of the severity of the sanctions incurred for the offense. In actuality, the terms of N.C. Gen. Stat. \u00a7 14-27.7A clearly set out that the offense is classified as a class B1 felony as well as the elements which constitute the offense. Accordingly, defendant\u2019s argument is more correctly one of ignorance of the law. This Court has previously considered this defense: \u201cit is axiomatic that \u2018ignorance or mistake of law will not excuse an act in violation of the criminal laws.\u2019 Therefore, defendant\u2019s claim is legally without basis (as well as being utterly preposterous) because ignorance of the law is not a valid defense.\u201d State v. Rogers, 68 N.C. App. 358, 385, 315 S.E.2d 492, 510-11 (quoting 21 Am. Jur. 2d, Criminal Law \u00a7 142, p. 278 (1981)). Accordingly, this assignment of error is overruled.\nIV. Testimony of LuAnn Angel\u00ed\nDuring the presentation of the State\u2019s evidence, the trial court allowed LuAnn Angel\u00ed (\u201cNurse Angel\u00ed\u201d), a registered nurse, to testify concerning when the victim conceived the child. Because defendant failed to object to this testimony at trial, defendant asserts the trial court committed plain error because Nurse Angel\u00ed was unqualified to give such testimony because she lacked the requisite expertise and because she was never qualified as an expert.\nPlain error is \u201c 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done ... grave error which amounts to [or results in] a denial of a fundamental right... a miscarriage of justice or .. . the denial to appellant of a fair trial[.]\u2019 \u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)) (emphasis in original). \u201cThe plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to \u2018plain error,\u2019 the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.\u201d State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Defendant asserts a different result would have been reached absent Nurse Angell\u2019s testimony.\nThe record reveals Nurse Angel\u00ed testified that (1) a pregnancy test was administered and came out positive, (2) the date of conception, using information obtained from the victim and two sonograms, was in late December, and (3) the date of birth was 1 September 1999. That the victim became pregnant is undisputed and clear from the record. The testimony concerning the date of conception, if anything, favored defendant. A birth date of 1 September would, ordinarily, indicate a conception date of early December; the testimony of Nurse Angel\u00ed indicated the date of conception to be in late December, closer to when defendant and the victim were married and, therefore, beyond the criminal consequences of N.C. Gen. Stat. \u00a7 14-27.7A. Regardless, it is well-known that a typical pregnancy has a duration of nine months. Finally, the date of birth is uncontroverted. Accordingly, even absent Nurse Angell\u2019s testimony, nothing in the record supports the contention that a different result would have been reached. This assignment of error is overruled.\nV. Testimony of Detective Stephens\nFinally, defendant asserts the trial court committed plain error by allowing Detective Stephens to testify regarding defendant\u2019s refusal to cooperate with interviews and appointments with officers. Defendant argues this testimony allowed the State to elicit harmful implications from defendant\u2019s refusal of opportunities for consensual interviews in violation of his right to remain silent. U.S. Const, amend. V; N.C. Const. art. I, \u00a7 23. In fact, while Detective Stephens did indicate defendant did not attend an appointed in-person interview, his testimony made clear defendant initiated phone calls to Detective Stephens on two separate occasions. The remainder of Detective Stephens\u2019 testimony merely explained the method of communication between defendant and himself as well as the information conveyed by defendant to Detective Stephens in the conversations initiated by defendant before he was taken into custody.\nAssuming arguendo the right to remain silent is applicable in this context, it is clear from the record that defendant, by initiating the phone calls to Detective Stephens about which he testified, never invoked this right. Moreover, under plain error review, \u201cthe appellate court must be convinced that absent the error the jury probably would have reached a different verdict[]\u201d in order for defendant to prevail. Walker, 316 N.C. at 39, 340 S.E.2d at 83. We find no error, much less plain error, in the trial court allowing the testimony of Detective Stephens.\nThe trial of defendant was free of reversible error.\nNo error.\nJudges McCULLOUGH and TYSON concur.\n. See N.C. Gen. Stat. \u00a7 51-2.1 (2001).",
        "type": "majority",
        "author": "CALABRIA, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General Karen E. Long, for the State.",
      "Osborn & Tyndall, P.L.L.G., by Amos Granger Tyndall, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. RANDY ADAM HOWARD\nNo. COA02-703\n(Filed 3 June 2003)\n1. Constitutional Law\u2014 effective assistance of counsel\u2014 opportunity to prepare \u2014 defendant fleeing prosecution\nThe denial of a continuance did not deny defendant the effective assistance of counsel where his attorney claimed inadequate opportunity to prepare, but defense counsel was appointed about one and a half years before trial and there was no evidence that defendant was unavailable until he fled the country. Defendant showed no evidence of attempting to contact counsel until a few days before trial and did not show that his incarceration rendered him inaccessible to counsel.\n2. Rape\u2014 statutory \u2014 evidence of sex\nThere was sufficient evidence of sex in a statutory rape prosecution, and the court correctly denied defendant\u2019s motion to dismiss, where the witnesses consistently referred to the activity between the victim and defendant as sex, intercourse, or sexual intercourse. Plus, the victim got pregnant.\n3. Rape\u2014 statutory \u2014 age difference between victim and defendant\nThere was sufficient evidence of the age difference between the victim and defendant in a statutory rape prosecution for the court to deny defendant\u2019s motion to dismiss.\n4. Rape\u2014 statutory \u2014 constitutional\nThe statutory rape statute, N.C.G.S. \u00a7 14-27.7A, does not violate equal protection because the State has a reasonable basis for punishing more severely individuals who prey sexually on children aged 13, 14, or 15 as the age differential increases. The decision to distinguish sexual acts between married individuals from acts between unmarried individuals is rational and not arbitrary because marriage closes the bedroom door to governmental intrusion and because it would be incongruous to allow individuals 14-16 to marry but not consummate the marriage. The terms of the offense are clearly set out, and the argument that due process is violated by lack of notice is more correctly the invalid defense of ignorance of the law.\n5. Evidence\u2014 statutory rape \u2014 nurse\u2019s testimony about time of conception\nThere was no plain error in a statutory rape prosecution in a nurse\u2019s testimony about when the victim conceived a child. The testimony of the nurse favored defendant in that it indicated that the date of conception was closer to when defendant and the victim were married than the birth date would have indicated.\n6. Constitutional Law\u2014 right to remain silent \u2014 not invoked\u2014 contacts with detective\nDefendant did not invoke his right to remain silent in a statutory rape prosecution where a detective testified that defendant did not attend an in-person interview but initiated telephone calls to the detective. There was no error, plain or otherwise, in allowing the detective\u2019s testimony.\nAppeal by defendant from judgment entered 16 January 2002 by Judge Jerry Cash Martin in Davie County Superior Court. Heard in the Court of Appeals 12 March 2003.\nAttorney General Roy Cooper, by Special Deputy Attorney General Karen E. Long, for the State.\nOsborn & Tyndall, P.L.L.G., by Amos Granger Tyndall, for defendant-appellant."
  },
  "file_name": "0226-01",
  "first_page_order": 256,
  "last_page_order": 265
}
