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    "judges": [
      "Chief Judge MARTIN and Judge TYSON concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. ERNEST LEE JUNIOR PETTIS"
    ],
    "opinions": [
      {
        "text": "McCullough, Judge.\nDefendant appeals a judgment entered after a jury verdict of guilty of two counts of statutory rape, one count of second-degree rape and one count of taking indecent liberties with a child. We determine there was no prejudicial error.\nFACTS\nErnest Lee Junior Pettis (\u201cdefendant\u201d) was indicted' for two counts of statutory rape, one count of second-degree rape, and one count of taking indecent liberties with a child. The State presented evidence at trial which tended to show the following:\nA.W. was born on 1 June 1990. In December 2003, she was living at the Above and Beyond group home in Kings Mountain. Above and Beyond is a Level III facility that provides twenty-four-hour supervision.\nIn December 2003, A.W. ran away from the group home and encountered defendant. Defendant told her to follow him, which she did. They went into the woods. After they had been talking in the woods for awhile, a man named Flinto picked up A.W. and defendant and took them to his house. At Flinto\u2019s house, A.W. had sex with Flinto because defendant told her that in order to stay at Flinto\u2019s house, A.W. had to have sex with Flinto.\nFrom Flinto\u2019s house, A.W. and defendant went to Nancy Gladden\u2019s house, where they stayed for a couple of days. A.W. told defendant she was in the custody of DSS. She also told him she was fifteen or sixteen. A. W. testified that defendant told her he had a child her age. She also testified that defendant told her he was \u201ctwenty-something.\u201d A.W. and defendant had sex at Ms. Gladdens\u2019 house. A.W. estimated that she and defendant had sex there four to ten times. Defendant did not wear a condom. The police located A.W. at Ms. Gladden\u2019s home. Defendant, who hid in the basement, had told A.W. not to mention anything about him.\nWhen the police returned A.W. to the group home, A.W. said she had been raped. A.W. testified at trial that she had sex with defendant because she wanted to, and defendant did not force her to have sex with him.\nA.W. was taken to the Kings Mountain Hospital\u2019s emergency room for a rape kit exam. Nurse Audrey Baker examined A.W. A.W. told Nurse Baker she had run away from the group home and met a person she did not know. A.W. said she was taken to one place in Bessemer City and raped and then taken to another place in Kings Mountain and raped repeatedly over several days. Nurse Baker observed that A.W. had a brownish-yellowish bruise on her left breast. A.W.\u2019s genital, vaginal, and rectal exam results were normal.\nHope Dorsey worked at the group home the night A.W. ran away. Ms. Dorsey testified that when she last saw A.W., A.W. was wearing gray jogging pants, a jacket, and shoes. A. W. was wearing a different outfit when the police brought her back to the group home. Kings Mountain police officers went to Nancy Gladden\u2019s house. Ms. Gladden consented to a search of the house. Captain Derek Johnson found a pair of gray jogging pants in the washing machine. There was no water in the washing machine, and the pants were not wet. Ms. Dorsey recognized the pants as being the pair A. W. was wearing when Ms. Dorsey last saw her before A.W. ran away. The gray pants were sent to the SBI lab for testing. Special Agent Jed Taub, who was received without objection as an expert in forensic serology, forensic DNA analysis, and forensic biology, testified that he found spermatozoa and semen and epithelial cells on the crotch of the pants. This was consistent with being vaginal drainage, of a mixture of vaginal fluid and spermatozoa and semen. The predominant DNA profile obtained from the cutting from the crotch of the pants matched defendant\u2019s DNA profile.\nA.W. identified defendant from a photo array, and subsequently, defendant was arrested. As part of the booking process, defendant told the arresting officer that his date of birth was 1 February 1969 and he was thirty-four years old.\nWilliam Boyd, who was bom on 21 January 1959, testified that he goes by the name Flinto. Mr. Boyd said he had never seen A.W. prior to court, and he denied having sex with her. Mr. Boyd testified that defendant \u201cmight have brought a young lady over to the house.\u201d He said defendant and the girl were at his house for a few hours and were hugging. He said he then drove them to Monroe Avenue.\nThe jury found defendant guilty of two counts of statutory rape, one count of second-degree rape, and one count of taking indecent liberties with a child. Defendant appeals.\nHHI\nDefendant contends the trial court erred in denying his requested instruction on the offense of sexual battery because sexual battery is a lesser included offense of second-degree rape. We disagree.\nThe North Carolina Supreme Court has defined what a lesser included offense is as follows: -\n[T]he definitions accorded the crimes determine whether one offense is a lesser included offense of another crime. In other words, all of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense.\nState v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 378-79 (1982) (citation omitted), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993).\nWe determine the offense of sexual battery under N.C. Gen. Stat. \u00a7 14-27.5A(a)(2) (2005), is not a lesser included offense of second-degree rape under N.C. Gen. Stat. \u00a7 14-27.3(a)(2) (2005). Second-degree rape under N.C. Gen. Stat. \u00a7 14-27.3(a)(2) provides:\n(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:\n(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless.\nId. The sexual battery statute provides, in pertinent part:\n(a) A person is guilty of sexual battery if the person, for the purpose of sexual arousal, sexual gratification, or sexual abuse, engages in sexual contact with another person:\n(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally disabled, mentally incapacitated, or physically helpless.\nN.C. Gen. Stat. \u00a7 14-27.5A(a)(2) (2005). Therefore, the offense of sexual battery under N.C. Gen. Stat. \u00a7 14-27.5A(a)(2) has a purpose element, requiring the act be completed for the purpose of sexual arousal, sexual gratification, or sexual abuse that is not an element of second-degree rape under N.C. Gen. Stat. \u00a7 14-27.3(a)(2). Accordingly, sexual battery under N.C. Gen. Stat. \u00a7 14-27.5A(a)(2) is not a lesser included offense of second-degree rape under N.C. Gen. Stat. \u00a7 14-27.3(a)(2) and we disagree with defendant.\nn.\nDefendant contends the trial court erred in denying his requested instruction on the offense of assault on a female because assault on a female is a lesser included offense of statutory rape. We disagree.\nAs explained above, \u201c[i]f the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense.\u201d Weaver, 306 N.C. at 635, 295 S.E.2d at 379. The crime of assault on a female under N.C. Gen. Stat. \u00a7 14-33(c)(2) (2005) has essential elements that are not covered by the crime of statutory rape under N.C. Gen. Stat. \u00a7 14-27.7A(a) (2005). First, the crime of assault on a female requires proof of an assault, N.C. Gen. Stat. \u00a7 14-33(c)(2), whereas statutory rape does not require proof of an assault. N.C. Gen. Stat. \u00a7 14-27.7A(a). Second, the crime of assault on a female requires proof that the defendant is a male, N.C. Gen. Stat. \u00a7 14-33(c)(2), which the crime of statutory rape does not require. N.C. Gen. Stat. \u00a7 14-27.7A(a). Accordingly, we disagree with defendant.\nIII.\nDefendant contends the trial court erred by admitting the testimony of an SBI agent regarding the DNA examination and report of a non-testifying SBI agent in violation of defendant\u2019s constitutional right to confrontation and the rules of evidence. We disagree.\nWith regard to the DNA report, defense counsel was afforded the opportunity to formally object to the jury receiving the report during deliberations. The trial court asked defendant\u2019s counsel whether he wished to be heard on the matter. Not only did defense counsel fail to object to the jury receiving this document, he consented. The following exchange occurred:\n[DEFENSE COUNSEL]: I don\u2019t know if they just want the specific DNA report o[r] if they want the other laboratory report. I would continue [sic] to the Court to send them both back.\nTHE COURT: Do ya\u2019ll have any objections to sending all the exhibits back?\n[PROSECUTOR]: No, Sir.\n[DEFENSE COUNSEL]: I don\u2019t have any objection. If [the prosecutor] and I could just go through those documents, just very quickly make sure that we think everything is in there that is a document.\nDefense counsel failed to object and his argument has not been preserved on appeal. N.C. R. App. P. 10(b)(1) (2007). Further, defense counsel did not assign error in his appellate brief to the jury receiving the DNA report during deliberations. N.C. R. App. P. 10(a). This assignment of error is dismissed.\nAt trial, SBI Agent David Freeman testified about a DNA analysis that was performed by Agent Jenny Elwell on a cutting taken from the gray pants recovered from Ms. Gladden\u2019s house. Agent Elwell did not testify at trial because she was in Seattle, Washington, attending a conference. Agent Freeman\u2019s opinion was based on Agent Elwell\u2019s report and notes. Defendant objected at trial to Agent Freeman\u2019s testimony citing Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). Defendant stated that the testimony violated his Sixth Amendment Confrontation Clause rights, as well as N.C. Gen. Stat. \u00a7 8C-1, Rules 702 and 703. The trial court overruled defendant\u2019s objection. On appeal, defendant contends that Agent Freeman\u2019s testimony violated his Confrontation Clause rights and was inadmissible hearsay.\nWe determine defendant\u2019s Confrontation Clause rights were not violated. \u201c[I]t is well established [that there is no violation of a defendant\u2019s right of confrontation under the rationale of Crawford when] an expert . . . basefs] an opinion on tests performed by others in the field and [defendant was given an opportunity to cross-examine [the testifying expert] on the basis of his opinion[.]\u201d State v. Delaney, 171 N.C. App. 141, 144, 613 S.E.2d 699, 701 (2005). Although the State did not formally tender Agent Freeman as an expert witness, he can still testify as an expert. See State v. White, 340 N.C. 264, 293-94, 457 S.E.2d 841, 858 (\u201cWhile the better practice may be to make a formal tender of a witness as an expert, such a tender is not required.\u201d), cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995). Accordingly, we disagree with defendant.\nIV.\nDefendant contends the trial court erred in overruling his objection to his statement about his age made during a custodial interrogation without the benefit of Miranda warnings, in violation of his constitutional right to be free from self-incrimination. We disagree.\nAt the time of defendant\u2019s arrest, Officer K.L. Putnam of the Kings Mountain Police Department asked defendant questions, including what defendant\u2019s date of birth was, as part of the booking process. Defendant objected at trial to allowing Officer Putnam to testify what defendant said his date of birth was, arguing that the statement was obtained in violation of his Miranda rights and should therefore be suppressed. The trial court overruled this objection and denied the motion to suppress. On appeal, defendant challenges this ruling.\nAfter reviewing the record and transcript, we determine that any error by the trial court was harmless beyond a reasonable doubt. N.C. Gen. Stat. \u00a7 15A-1443(b) (2005). Defendant\u2019s mother testified at trial that she gave birth to defendant on 1 February 1969. Therefore, even if Officer Putnam\u2019s testimony was completely disregarded, there was other evidence of defendant\u2019s date of birth. Accordingly, we disagree with defendant.\nV.\nDefendant contends the trial court\u2019s jury instructions failed to ensure that the jury\u2019s verdicts were unanimous. We disagree.\nIn determining whether a defendant has been unanimously convicted by a jury, our courts have looked at many factors including: (1) whether defendant raised an objection at trial regarding unanimity; (2) whether the jury was instructed on all issues, including unanimity; (3) whether separate verdict sheets were submitted to the jury for each charge; (4) the length of time the jury deliberated and reached a decision on all counts submitted to it; (5) whether the record reflected any confusion or questions as to jurors\u2019 duty in the trial; and (6) whether, if polled, each juror individually affirmed that he or she had found defendant guilty in each individual case file number. See State v. Lawrence, 360 N.C. 368, 376, 627 S.E.2d 609, 613 (2006).\nHere, we determine there was no problem with the unanimity of the jury\u2019s verdicts. The jury was instructed on all the issues, including unanimity. The trial court states that the jury\u2019s verdicts must be unanimous by stating, \u201cYou may not return a verdict until all 12 jurors agree unanimously.\u201d Separate verdict sheets were submitted for each charge. In addition, two verdict sheets were used for the two statutory rape charges and were differentiated by the date of the alleged offense. Further, the record does not reflect that the jury was confused. Accordingly, we disagree with defendant:\nNo prejudicial error.\nChief Judge MARTIN and Judge TYSON concur.",
        "type": "majority",
        "author": "McCullough, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.",
      "Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ERNEST LEE JUNIOR PETTIS\nNo. COA06-1380\n(Filed 18 September 2007)\n1. Rape; Sexual Offenses\u2014 sexual battery \u2014 not a lesser included offense of rape\nThe offense of sexual battery under N.C.G.S. \u00a7 14-27.5A(a)(2) is not a lesser included offense of second-degree rape under N.C.G.S. \u00a7 14-27.3(a)(2). Sexual battery has a purpose element that requires the act to be completed for sexual arousal, gratification, or abuse, which is not an element of second-degree rape.\n2. Rape; Assault\u2014 assault on a female \u2014 not a lesser included offense of statutory rape\nThe trial court did not err by denying defendant\u2019s requested instruction on the offense of assault on a female as a lesser included offense of statutory rape. The crime of assault on a female requires proof of an assault, whereas statutory rape does not. Assault on a female requires proof that defendant is male, which is not required for statutory rape.\n3. Appeal and Error\u2014 preservation of issues \u2014 no objection at trial \u2014 no assignment of error in brief\nDefendant did not preserve for appeal the question of whether the trial court erred by admitting testimony about a DNA examination and report by a nontestifying SBI agent. Defendant not only did not object to the jury receiving the report during deliberations, he consented, and further, did not assign error in his brief.\n4. Constitutional Law\u2014 Confrontation Clause \u2014 testimony about DNA analysis \u2014 opinion based on tests by others\nDefendant\u2019s Confrontation Clause rights were not violated when one SBI agent testified about a DNA analysis performed by another agent. It is well established that there is no violation when an expert bases an opinion on tests performed by others and defendant has the opportunity to cross-examine the testifying expert about the basis of his or her opinion. Although the agent was not formally tendered as an expert witness, he can still testify as an expert.\n5. Evidence\u2014 statutory rape \u2014 defendant\u2019s age \u2014 booking statement \u2014 other testimony\nAny error was harmless where the defendant\u2019s pre-Miranda warning booking statement about his age was admitted in a statutory rape prosecution. There was other testimony about defendant\u2019s age from his mother.\n6. Constitutional Law\u2014 instructions \u2014 unanimity\u2014no error\nThe trial court\u2019s instructions on unanimity in a statutory rape prosecution were not erroneous.\nAppeal by defendant from judgment entered 28 February 2006 by Judge Nathaniel J. Poovey in Cleveland County Superior Court. Heard in the Court of Appeals 20 August 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.\nRudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant appellant."
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