{ "id": 4155448, "name": "STATE OF NORTH CAROLINA v. HENRY ARTHUR LITTLE", "name_abbreviation": "State v. Little", "decision_date": "2008-01-15", "docket_number": "No. COA07-128", "first_page": "152", "last_page": "157", "citations": [ { "type": "official", "cite": "188 N.C. App. 152" } ], "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": "651 S.E.2d 900", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639531 ], "year": 2007, "pin_cites": [ { "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0900-01" ] }, { "cite": "627 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635304 ], "weight": 6, "year": 2006, "pin_cites": [ { "page": "298-99" }, { "page": "298" }, { "page": "299-300" }, { "page": "299" }, { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0287-01" ] }, { "cite": "626 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635166 ], "weight": 6, "year": 2006, "pin_cites": [ { "page": "302, 304-05" }, { "page": "440" }, { "page": "305" }, { "page": "440-41" }, { "page": "305" }, { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0301-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-32.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "186 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8158886 ], "year": 2007, "pin_cites": [ { "page": "595", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0587-01" ] }, { "cite": "176 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301391 ], "year": 2006, "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0575-01" ] }, { "cite": "175 N.C. App. 434", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352360 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "436, 438, 440" }, { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0434-01" ] } ], "analysis": { "cardinality": 688, "char_count": 13437, "ocr_confidence": 0.752, "pagerank": { "raw": 8.685371297493977e-08, "percentile": 0.4927476466774704 }, "sha256": "ed12bbc956ce5f08d1548126e2f74828f623d16d5e13b0d59ca12cf55297b702", "simhash": "1:3d716233512a0a17", "word_count": 2208 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and TYSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. HENRY ARTHUR LITTLE" ], "opinions": [ { "text": "ELMORE, Judge.\nHenry Arthur Little (defendant) was convicted by a jury of first-degree rape and assault by strangulation on 21 September 2006. Defendant now appeals.\nThe victim, Lorry Paggioli, lived in Beaufort County in June of 2005. She did not have a job or a home, and stayed with friends. She also abused alcohol and crack cocaine. Paggioli stayed with defendant for several weeks prior to 14 June 2005, and the two had consensual sex. On the night of 13 June 2005 and into the morning of 14 June 2005, Paggioli was drinking beer and smoking crack in the trailer of a friend, Mary Hardy. Hardy\u2019s boyfriend asked Paggioli to leave, and she went to defendant\u2019s trailer in a neighboring trailer park. They drank wine and smoked crack together. Paggioli then returned to Hardy\u2019s trailer and Hardy\u2019s boyfriend again told her to leave. Paggioli returned to defendant\u2019s trailer, and the two drank more wine and smoked more crack together.\nPaggioli testified that defendant told her that he wanted to have sex with her, and when she declined, he told her \u201che wanted some anyway, he was going to get it anyway.\u201d She then testified that defendant pushed her down onto his sofa bed, and she fought him, attempting to kick him in the groin and hitting him with a wine bottle. Defendant then took the wine bottle from Paggioli and struck her on the side of the head with it, cutting her. By this point, defendant was in his underwear straddling Paggioli. She yelled for help, and then defendant choked her. She testified, \u201cHe had his thumbs \u2014 I don\u2019t know what this is called right here, but he had his thumbs \u2014 he was just choking me. I couldn\u2019t \u2014 I couldn\u2019t breath, and I passed out.\u201d After she regained consciousness, she said that she felt that he was overwhelming her. She testified that he penetrated her with his penis and that he did not use a condom. Defendant had a \u201cgold-colored knife\u201d in his hand at some point during the attack. She testified that she was \u201c[a]fraid of being killed,\u201d and \u201cat that time, I figured my only way of getting out of there alive was to pretend that I enjoyed it.\u201d She explained, \u201cI couldn\u2019t fight him anymore. I knew he was stronger than me.\u201d When defendant finished, he gave her a basin of water and a washcloth and told Paggioli to wash up and leave. She washed her head and face and left, but forgot her purse.\nWilliam Ragland, a Deputy Sheriff with the Beaufort County Sheriff\u2019s Office, responded to a 911 call that Paggioli asked a neighbor to make. Paggioli told Deputy Ragland that defendant had hit her and raped her. Deputy Ragland retrieved Paggioli\u2019s purse from defendant\u2019s trailer. Defendant told Deputy Ragland that Paggioli was already bleeding when she showed up at his trailer and denied having sex with her.\nPaggioli was taken to a hospital and a nurse collected a rape kit. Amanda Fox, a special agent with the Forensic Biology Unit of the State Bureau of Investigation (SBI) Crime Lab testified that the DNA from Paggioli\u2019s rape kit was consistent with defendant\u2019s DNA. A computational biologist testified that it was 35 trillion times more likely that the DNA matched defendant than any other person.\nPhotographs of Paggioli taken on 14 June 2005 and 16 June 2005 showed evidence of marks, abrasions, and bruises on Paggioli\u2019s neck. She testified that the marks were the result of being choked by defendant.\nDefendant first argues that Special Agent Fox\u2019s testimony constituted inadmissible hearsay and violated the Confrontation Clause. We disagree.\nFox had been a forensic DNA analyst for four and a half years at the time she testified. She was accepted by the court, without objection by defendant, as an expert in forensic biology. She testified in place of her supervisor, Chris Parker, who was out of state and unable to testify. Parker analyzed the DNA from Paggioli\u2019s rape kit, but Fox testified in his place as to the findings. She stated that she also performed \u201ca technical review,\u201d meaning that she \u201clooked at all the technical aspects of the case, [and] reviewed them, to determine whether or not they were correct.\u201d She confirmed that she could review Parker\u2019s work, check the technical aspects of it, and verify his findings without conducting a new analysis of the sample. Defendant objected to Fox\u2019s testimony and, after voir dire, the judge overruled the objection, saying \u201cthe objections raised apply more to the weight and credence and credibility that might be given to the testimony\u201d than its admissibility.\nDefendant relies on our opinion in State v. Cao, in which we held that a police officer reading into evidence a laboratory report identifying a substance as cocaine might have violated the defendant\u2019s Sixth Amendment right because the lab technician who prepared the report was not available for cross-examination. 175 N.C. App. 434, 436, 438, 440, 626 S.E.2d 301, 302, 304-05 (2006). Defendant argues that Fox\u2019s testimony is analogous to the police officer\u2019s in Cao because Fox did not conduct the DNA analysis herself and instead sought to introduce analysis performed by Parker, who was not available to testify. In Cao, we stated\nthat laboratory reports or notes of a laboratory technician prepared for use in a criminal prosecution are nontestimonial business records only when the testing is mechanical, as with the Breathalyzer test, and the information contained in the documents are objective facts not involving opinions or conclusions drawn by the analyst. While cross-examination may not be necessary for blood alcohol concentrations, the same cannot be said for fiber or DNA analysis or ballistics comparisons, for example.\nId. at 440, 626 S.E.2d at 305. There was insufficient documentation of the lab procedures in Cao for this Court to determine whether the procedure was mechanical or not, and we ultimately held that even if the officer\u2019s testimony violated the defendant\u2019s Sixth Amendment right, admitting the testimony was harmless error. Id. at 440-41, 626 S.E.2d at 305.\nWe distinguish the case at hand from Cao. On cross-examination, Fox stated that DNA analysts use an instrument to get their data, but then the analysts review each area of data, and use their training and experience to determine whether they agree- with the data generated by the instrument. The instrument that generates the data is a capillary electrophoresis system, which separates DNA based on size and charge. A computer program captures the images of the DNA and assigns a numerical value for particular areas. The computer generates a printout \u201csimilar to an EKG.\u201d She \u00e1lso stated on cross-examination that \u201c[t]he only thing that [DNA analysts] enter into the system is the item number,\u201d which is used to track the samples. It appears that Parker conducted the electrophoresis and analyzed the results. However, Fox then conducted her own analysis of the electrophoresis results and reached the same conclusion that Parker did. Fox completed the subjective portion of the analysis and defendant had an opportunity, of which he availed himself, to cross-examine Fox about her analysis.\nThe facts in this case are similar to those in our opinion in State v. Shelly, in which an SBI senior chemist, Agent McClelland, offered expert testimony about gunshot residue. 176 N.C. App. 575, 589, 627 S.E.2d 287 at 298-99 (2006). Another agent had conducted the tests on the residue, but that agent retired before trial and was therefore unavailable to testify. Id., 627 S.E.2d at 298. We noted that it is \u201cwell-settled law that an expert may base an opinion on tests performed by others in the field . . . .\u201d Id. at 591, 627 S.E.2d at 299-300. Agent McClelland testified that he had \u201cpersonally examined the printout from the equipment used by [the other agent] to conduct the testing,\u201d before comparing his findings with the other agent\u2019s and then signing off on the report. Id. at 590, 627 S.E.2d at 299. This Court held that Agent McClelland\u2019s testimony did not violate the defendant\u2019s Sixth Amendment right to confrontation. Id. at 591, 627 S.E.2d at 300.\nHere, as in Shelly, the testifying expert personally examined and analyzed data collected by another agent before offering her opinion on the application of those data to the case. Defendant had an opportunity to cross-examine the expert. Unlike the officer in Cao, Special Agent Fox was qualified as an expert in the area of her testimony and had also personally analyzed the data on which her conclusions were founded. In Cao, we noted that \u201cthe key focus of the Confrontation Clause is ensuring the availability of cross-examination,\u201d Cao, 175 N.C. App. at 439, 626 S.E.2d at 304, and here such cross-examination was available. Accordingly, we hold that defendant\u2019s first argument is without merit.\nDefendant next argues that the trial court erred by denying defendant\u2019s motion to dismiss the charges of first-degree rape and assault by strangulation. Defendant timely moved for dismissal at the close of the State\u2019s evidence, and again at the close of all evidence. \u201c[T]he trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Dexter, 186 N.C. App. 587, 595, 651 S.E.2d 900, - (2007) (citation and quotations omitted)\". When reviewing a denial of a motion to dismiss, \u201cwe consider the evidence in the light most favorable to the State, with all favorable inferences. We disregard defendant\u2019s evidence except to the extent it favors or clarifies the State\u2019s case.\u201d Id. at 595, 651 S.E.2d at - (citation and quotations omitted). Defendant argues that the State failed to produce substantial evidence of each essential element of the offenses.\nThe elements of first-degree rape are defined by N.C. Gen. Stat. \u00a7 14-27.2(a). The relevant elements are (1) that a \u201cperson engages in vaginal intercourse,\u201d (2) \u201c[w]ith another person by force and against the will of the other person,\u201d and (3) \u201c[e]mploys or displays a dangerous or deadly weapon,\u201d or \u201c[i]nflicts serious personal injury upon the victim . . . .\u201d N.C. Gen. Stat. \u00a7 14-27.2(a) (2005). Because we view the evidence in the light most favorable to the State, we accept Paggioli\u2019s account of the attack. Paggioli testified that defendant entered her vagina with his penis; that he forced himself upon her; that she fought him and made known to him that she did not want to engage in sexual intercourse with him; that defendant hit her with a bottle, brandished a knife, and choked her to unconsciousness with his hands; and that Paggioli suffered bruises and cuts as a result of defendant\u2019s actions. Paggioli\u2019s testimony was corroborated by expert testimony that defendant\u2019s DNA was present in Paggioli\u2019s vagina at the time the rape kit was collected. Accordingly, we hold that the trial court did not err by denying defendant\u2019s motion to dismiss because the State presented sufficient evidence of each essential element of first-degree rape.\nThe elements of assault by strangulation are defined by N.C. Gen. Stat. \u00a7 14-32.4(b): (1) an assault and (2) infliction of \u201cphysical injury by strangulation.\u201d N.C. Gen. Stat. \u00a7 14-32.4(b) (2005). \u201cStrangulation\u201d is not defined in the statute, but wrapping one\u2019s hands around another\u2019s throat and applying pressure until the person loses consciousness certainly falls well within the boundaries of the term. Paggioli testified that defendant attacked her and that she feared for her life, which is ample evidence of an assault. Paggioli testified that she received cuts and bruises on her neck as a result of being strangled. The cuts and bruises were confirmed by photographic evidence. Accordingly, we hold that the State presented sufficient evidence of each essential element of assault by strangulation and the trial court did not err by denying defendant\u2019s motion to dismiss.\nDefendant received a trial free from error.\nNo error.\nJudges McGEE and TYSON concur.\n. First-degree rape contains other elements when the victim is a child. N.C. Gen. Stat. \u00a7 14-27.2(a) (2005).", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.", "Thomas R. Sallenger for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HENRY ARTHUR LITTLE\nNo. COA07-128\n(Filed 15 January 2008)\n1. Evidence\u2014 expert DNA testimony \u2014 analysis based on data collection by another expert\nThe trial court properly allowed an SBI DNA expert to testify in a rape and assault trial where she personally analyzed the data collected by another agent before offering her opinion, and defendant had the opportunity to cross-examine her.\n2. Rape\u2014 sufficiency of evidence \u2014 victim\u2019s testimony and DNA evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss a charge of first-degree rape. Viewed in the light most favorable to the State, the victim\u2019s account of the attack, corroborated by DNA evidence, was sufficient.\n3. Assault\u2014 strangulation \u2014 sufficiency of evidence \u2014 victim\u2019s account and photographs\nThe trial court properly denied defendant\u2019s motion to dismiss a charge of assault by strangulation. The victim\u2019s testimony and confirming photographs of cuts and bruises were sufficient.\nAppeal by defendant from judgment entered 21 September 2006 by Judge Jerry C. Martin in Beaufort County Superior Court. Heard in the Court of Appeals 10 October 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.\nThomas R. Sallenger for defendant." }, "file_name": "0152-01", "first_page_order": 182, "last_page_order": 187 }