Opinion
No. COA02-1462
Filed 4 November 2003 This case not for publication
Appeal by defendant from judgments entered 9 April 2002 by Judge Richard Doughton in Avery County Superior Court. Heard in the Court of Appeals 15 September 2003.
Attorney General Roy Cooper, by Special Deputy Attorney General Buren R. Shields III, for the State.
C. Gary Triggs, P.A., by C. Gary Triggs, for defendant appellant.
Avery County Nos. 01 CRS 50348-52.
Defendant Brian Keith Clark was tried before a jury at the 1 April 2002 Criminal Session of Avery County Superior Court after being charged with first-degree rape, two counts of first-degree sexual offense, first-degree burglary, and first-degree kidnapping. The State's evidence tended to show the following: after being romantically involved and at one point living together, Brian Clark ("defendant") and Judith Johnson ("Ms. Johnson") broke off their relationship sometime before June 2001. Defendant still came to visit Ms. Johnson at work and would sometimes show up unannounced at her house to do various chores for her. Around the second week of June, Ms. Johnson told defendant not to come around anymore because he could not separate friendship from love.
Between 8:30 and 9:00 a.m. on 21 July 2001, a Saturday, defendant knocked on Ms. Johnson's door. He said he was returning a compact disc. Ms. Johnson did not let him in, told him the CD was a gift and to keep it. Defendant then left. Ms. Johnson normally worked mornings, but had switched her shift at work that day, and did not go into work until around 2:00 p.m. Ms. Johnson had two children which defendant knew stayed with their father on weekends.
Ms. Johnson returned home from work around 10:10 p.m. on 21 July 2001. She ate, smoked marijuana, and went to sleep around 11:00 p.m. She was wearing only underwear. She awoke sometime later, and realized she was being hit in the face repeatedly by someone. The room was dark and she could not see her attacker. The attacker put a garment over her head. She then heard the sound of duct tape being unrolled and used to secure the garment around her neck. She touched the top of her attacker's head, feeling what she believed was thinning hair, almost bald. The attacker then secured her hands behind her with duct tape. He began to hit her in the stomach and taped her feet together. He than wrapped the duct tape around her mouth and face. On the side of the bed, the attacker sodomized her until he ejaculated.
Ms. Johnson then heard him light a cigarette, inhaling and exhaling deeply as he smoked. The sound of the attacker smoking was the first indicator to her that he was defendant. She testified that defendant also smoked inhaling and exhaling deeply after their many previous sexual encounters.
The attacker then put her in the bathtub, began filling it with water, and left her alone. Believing that he may be trying to drown her, Ms. Johnson pulled out the stopper to the tub. She believed she heard him remove the sheets from her bed and wash them. The attacker then returned, turned on the overhead shower, and began to clean out her anus. After bathing her, he pulled her out of the tub and untaped her legs. He then dressed her in a pair of panties, a pair of pants, and put shoes on her. After re-taping her legs together, the attacker than took Ms. Johnson out of the bedroom and into what she believed was the front hall area. He had to help her move because of her bound legs. Here, the intruder undid her pants, pulled them down and began rubbing the insides of her legs, then hitting her four times on her anus.
The attacker then got Ms. Johnson's keys from her bedroom room shelf, where defendant knew she habitually kept them, and walked out the back door and started her blue Mustang. The passenger side door of the Mustang had been broken for months and could only be opened from the inside. Defendant knew of this problem with the door. The attacker, after opening the driver's side door, placed the keys in the ignition. Ms. Johnson than heard him open the passenger side door from the inside. The attacker then walked her to the car, and placed her in the passenger side, closing the door after she was seated. He then briefly returned to the house, emerging with what Ms. Johnson heard to be plastic bags. He returned to the car and they pulled out of Ms. Johnson's driveway.
Ms. Johnson testified she was at first able to follow where the attacker was taking her, but then lost her direction until he returned to what she believed was her home. The basis of her belief was how the attacker backed her car into the driveway, as she habitually does. Defendant had been with Ms. Johnson when she had backed her car in and parked in this particular fashion. The attacker left the car running, and went to the back door of Ms. Johnson's trailer. She could hear keys rattling, and the familiar sound of a metal dog tag which she had heard numerous times on defendant's key ring. Defendant at one time had a key to Ms. Johnson trailer, but had returned it. The attacker than went back into the house, and emerged again with what Ms. Johnson heard to be more plastic bags.
Ms. Johnson believed the attacker took a left out of her driveway. Her belief was based on a hump in the road that would only be encountered when taking a left. Ms. Johnson believed she was taken to Harper's Creek picnic area. She based this on the fact that her car had distinctly bottomed out when pulling in there before, and that night the car made a similar sound "like you're tearing the bottom out of it." The car stopped shortly thereafter. The attacker got out of the car, un-taped her legs, removed her, and then vaginally raped her on the side of the car. He then walked her 15 to 20 minutes down a long dirt road which she believed was near the Harper's Creek picnic area, but she stopped from exhaustion. She felt as though she "was being led to [her] death."
Ms. Johnson was then led through what she believed to be a forested area because she kept tripping over stumps. The attacker sat her in what she believed was a boat, based on the feel of the seat. At this point she started praying and singing "Jesus Loves Me." Speaking for the first time, the attacker told her to shut up and asked her if she wanted to live. He said that he had been watching her for months, and that he knew everything about her. He then began to talk to her about changes she needed to make in her life and that everything he had done to her that night was so she would turn her life over to God. Ms. Johnson recognized the voice as that of defendant. She agreed to everything the attacker said. She then heard the attacker handling what she believed were plastic bags. The attacker asked her if she could make a number of changes in her life and to swear on her children's lives that she would never tell anyone what he had done. Ms. Johnson agreed.
The attacker returned her to the car and requested she get in on the driver's side and slide over to the passenger's side. Ms. Johnson asked to instead lie in the backseat, which the attacker permitted. He returned to Ms. Johnson's home, backing the car in, and taking her in the house through the back door. He then put her on her bed, and as he un-taped her hands, he told her to remember all the things she had promised him. The attacker than told her to count to 150 before removing the garment on her head.
Ms. Johnson took the garment off and drove to Leah and Robbie Willis's house. In addition to being friends, Leah employed Ms. Johnson at the Mountain Crossing Mercantile. Leah and Robbie were awakened by a frantic knock at the back door around 4:15 a.m. on 22 July 2001. Robbie opened the door and Ms. Johnson fell into his arms. Robbie was an advanced first aid instructor and very concerned about her condition. He and Leah testified that Ms. Johnson appeared battered as if she had been in a car accident: there was blood all over her face; one of her eyes was swollen shut and was bleeding from both sides; her lip was badly cut; blood was bubbling from both sides of her mouth; and her stomach was purplish-white and hard. When they asked her who had done this, Ms. Johnson said that defendant had raped her. When Leah asked her if is she was sure it was defendant, she affirmed his identity. Robbie called the Sheriff's office and his parents, and Robbie's parents came over to take them all to Cannon Memorial Hospital.
Ms. Johnson was examined by Dr. Tomason, the emergency room physician. She told him she had been beaten, raped, and then bathed by defendant. Dr. Tomason took pictures of her injuries. In his professional opinion, the injuries around her anus were consistent with her having been sodomized and those around her ankle and wrists having been bound with duct tape. The bruising and injuries to her face were consistent with her having been struck in the face with a fist.
A standard rape kit was prepared on Ms. Johnson. All of her clothes, including the underwear she was wearing, were collected as evidence. Fluid, hair, and blood samples, including those taken from her anal and vaginal areas, were collected from Ms. Johnson and a blood sample from defendant. Detective Keith Laws interviewed Ms. Johnson in the emergency room around 7:20 a.m. During her interview with the detective, she stated that defendant had beaten and raped her. She stated she recognized his voice, and other things he had done throughout the night convinced her of his identity.
Special Agent Chris Laws (Special Agent Laws) and Detective Laws were told that defendant had information about the investigation and wanted to speak with someone from the Sheriff's Department. They spoke with him at his residence at 5:23 p.m. on 22 July 2001. Defendant stated that he arrived at home on 21 July 2001 around 8:15 p.m. He told the detectives he went to Harpers' Creek around 9:00 p.m. or 9:30 p.m., talked with members of his family there, and returned home at 1:15 a.m., 22 July 2001. He went to bed and got up at 8:30 a.m. the next morning. Special Agent Laws later questioned defendant at the Avery County Sheriff's Department. One comment made by defendant to Special Agent Laws was that "he felt part of the problem was Judy never tried to get any religion in her life."
DNA testing on semen and sperm samples taken from the underwear that Ms. Johnson had on at the Emergency Room and from her rectal area confirmed that the DNA from both was that of defendant.
On cross examination and in their case-in-chief, defendant put on evidence that tended to show the following: In her previous marriage to Donald Ray Johnson ("Donnie"), Donnie beat her in the face with fists to the point of blackening her eyes. Donnie had a fascination with anal intercourse. Ms. Johnson discussed the beating and the anal intercourse fetish of her ex-husband with defendant. She and defendant agreed that anal intercourse was disgusting and unnatural. When Ms. Johnson was first being anally raped, she thought it was Donnie.
The night before 21 July 2001, Ms. Johnson had invited a male individual, also with the last name Clark, to her bedroom where they engaged in the use of methamphetamine, also known as crank. The morning of 21 July 2001, and that night when she returned home from work sometime after 10:00 p.m., she smoked marijuana by herself.
Defendant testified that he and Ms. Johnson had a good, loving relationship and that there had never been any physical or verbal abuse. Defendant testified that he offered to pay for her treatment to get off the methamphetamine.
About a month prior to the incident, defendant received a letter from Ms. Johnson stating that she still loved him and regretted their breakup. After the breakup, they still spoke to each other on the phone, and about a week before the incident, Ms. Johnson asked defendant to help with the underpinning of her trailer. Ms. Johnson had been calling defendant repeatedly. At another request of Ms. Johnson, on the Thursday before the incident, defendant and his brother fixed the master cylinder on her father's truck. They then had sex.
The following Saturday morning, 21 July 2001, defendant went over to Ms. Johnson's house at or around 10:30 a.m to return a compact disc. At that time, she left the door open and allowed him in and to follow her to her bed. There he told her that he was going to have to cut off contact with her, as he believed she was "doing crank again and that [he] had been led to believe that she . . . was getting the crank by questionable means and [he] told her that . . . in [his] opinion that [he] felt she had let [him] down."
On the night in question, defendant went to Harper's Creek, arriving there around 9:10 p.m. He saw family and friends, and then left around 11:45 p.m. and got home around 12:30 a.m. Defendant's bed is in his parent's bedroom, and is in very close proximity with his parent's bed. His mother testified this has always been the case, with the exception of his time in the Marines and the time he lived with Ms. Johnson. His mother also testified that she awoke at 12:45 a.m. on 22 July 2001, and saw defendant asleep in his bed. She testified further that there were no bloodstains on the clothes defendant allegedly wore the night in question, as she did all his laundry, nor did she notice any bruises or scrapes on his arms or hands.
Defendant got up between 7:30 and 8:00 a.m. on 22 July 2001. He received telephone calls asking if he had been shot and other rumors about him. He called the Avery County Sheriff's Department to inquire as to these rumors. Special Agent Laws and Detective Laws came out to the Clark's home to speak with defendant. They told him that something had happened at Ms. Johnson's house, but would not tell him what. He told them the only person he knew who was mad at Ms. Johnson was her ex-husband, Donnie. Defendant and his parents gave more information at the Sheriff's office. It was here that he clarified that he had sex with Ms. Johnson a day and a half before the incident, not a week and a half as Detective Laws had previously noted.
The jury found defendant guilty on all counts. The trial court sentenced him to the following terms of imprisonment: seventy-three months to ninety-seven months for second-degree rape; followed by seventy-three months to ninety-seven months for two second-degree sexual offense charges; followed by sixty-four months for first-degree burglary and second-degree kidnapping.
Before addressing the merits of this case, we note here that defendant alleges thirty-four assignments of error. These are framed within twenty-nine arguments, twenty-five of which make no citation to case law. All issues are argued in a thirty-two page brief. What defendant's brief amounts to is the single allegation that defendant did not receive a fair trial. For nearly every argument in his brief, defendant provides no factual support to assist us in our review. We find this to be an abuse of the appellate process and a strain on the judicial economy. In State v. Steen, 352 N.C. 227, 264, 536 S.E.2d 1, 23 (2000), cert. denied, 531 U.S. 1167, 148 L.Ed.2d 997 (2001), our Supreme Court determined that an assignment of error is abandoned when a defendant does not specifically assess the evidence or make an argument with cited authorities such that the error can be given any meaningful review. See also N.C.R. App. 28(a), (b)(5); State v. Williams, 355 N.C. 501, 584, 565 S.E.2d 609, 657 (2002), cert. denied, 537 U.S. 1125, 154 L.Ed.2d 808 (2003). One error of sufficient merit and magnitude is all that is required for reversal. But one is indeed required. The onus is on the appellant to argue the merit and magnitude of each assigned error, and no matter how many are assigned, this duty as to each is not lifted.
Upon our thorough review of the briefs, the transcript, and the record before us, we herein review all issues with potential merit in this case. This opinion is organized in a fashion similar to the State's brief, selecting common assignments of error and addressing them in broad issues to avoid redundancy. These issues are whether the trial court committed an abuse of discretion or reversible error as to the following: (I) the permitted and limited scope of Ms. Johnson's testimony as to the intruder's identity; (II) the permitted and limited scope of the testimony of the State's witnesses; (III) allowing into evidence State's exhibits 24, 62, and 78; (IV) the permitted and limited scope of defendant's witnesses; (V) denying defendant's motion to dismiss, motion for judgment notwithstanding the verdict, or motion for appropriate relief; and (VI) using the presumptive rather than the mitigated range to sentence defendant. For the reasons set forth herein, we are not persuaded by defendant's arguments that have been or could have been made pursuant to his multiple assignments of error, and conclude he received a trial free from reversible error.
Ms. Johnson's Testimony as to Identity
By his first four assignments of error, defendant contends the trial court committed prejudicial error in a number of rulings during Ms. Johnson's testimony. We do not agree.
A trial judge has broad discretion over the scope of testimony and cross-examination. His rulings in this regard will not be overturned on appeal unless shown to be an abuse of discretion. State v. Call, 349 N.C. 382, 411, 508 S.E.2d 496, 514 (1998). In order to prove that a particular ruling is an abuse of discretion, an appellant must show that it is "manifestly unsupported by reason," i.e., "so arbitrary that it could not have been the result of a reasoned decision." State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998) (citing White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 832 (1985)).
In her direct testimony, Ms. Johnson was permitted by the trial court to testify, over objection, as to the following: (1) after the initial rape, the attacker smoked a cigarette inhaling deeply, and this was the first indicator that the attacker was defendant; (2) she heard the attacker open the passenger side car door from the interior of the car, and defendant knew this was the only way to open that door; (3) the sound of the attacker's key chain was the same as defendant's (being metal dog tags on his key chain); (4) when the attacker began speaking to Ms. Johnson as to how she needed to change her life, she recognized his voice as that of defendant; and (5) Ms. Johnson identified defendant as her rapist immediately after the incident to Leah and Robbie, which their testimony corroborates.
While not clearly stated at trial, the grounds on which defendant alleges error is N.C. Gen. Stat. § 8C-1, Rule 403 (2001). Defendant alleges the admission of this relevant testimony was overly prejudicial. We disagree. Most evidence tends to prejudice the party against whom it is offered. Therefore, to be excluded, the probative value must not only be outweighed by the danger of unfair prejudice, it must be substantially outweighed. State v. Lyons, 340 N.C. 646, 459 S.E.2d 770 (1995). Defendant has not made a case for any substantial imbalance as to this relevant evidence.
Our Supreme Court has allowed voice recognition to be a means for a victim's identification of her assailant. State v. Coleman, 270 N.C. 357, 361, 154 S.E.2d 485, 490 (1967). As in Coleman, the issue often arises when there is an in-court identification and the voice was first heard during the offense in question. In the case sub judice, the voice recognition and identification by Ms. Johnson was made at the time the offense occurred, based on a two-year relationship and familiarity with defendant. While her head may have been covered by one or more garments at the time of the recognition, this goes to the weight of the voice identification and not its admissibility. As a general rule, the weight of voice recognition is a question of fact for the jury. State v. Hicks, 233 N.C. 511, 518, 64 S.E.2d 871, 876, cert. denied, 342 U.S. 831, 96 L.Ed.2d 629 (1951). Based on her voice recognition of defendant and the other evidence corroborating her identification — the opening of the car door, the sound of the key chain, and her identification of defendant to Leah — we conclude that this evidence was relevant and probative to support the State's theory of guilt.
Evidence that prejudices a defendant by tending to show his guilt does not by that fact alone make the prejudice undue. Our reading of the briefs, transcript, and record reveals no substantial magnitude of prejudice that would make the trial court's admission of otherwise relevant and highly probative evidence an abuse of discretion.
Testimony of State's Witnesses
Upon review of the trial court's rulings made during the direct and cross-examinations of the State's witnesses, other than Ms. Johnson (see above), we find no prejudicial error and overrule all assignments of error alleged. While we do so in short form, we will address the only issue for which, though only briefly, we took pause.
Agent Elwell, a forensic serologist, testified that in the normal course of her duties, she tested State's exhibit 22. This exhibit was a pair of Ms. Johnson's panties removed from the emergency room on the night in question and placed in a rape kit. On the panties she confirmed the presence of semen, and sent a cut of the semen-soiled portion of the panties for DNA testing. Defendant contends that this was "prejudicial error" because there was no proof that defendant's DNA on the panties had been deposited the night of the rape. Because Agent Elwell's testimony in no way traced the defendant's semen to that found on the panties, we assume defendant objected to the admission of exhibit 22 into evidence, not merely Ms. Elwell's testimony.
We respect the prejudicial effect the semen stain of exhibit 22 may have had on defendant had it been the only evidence of defendant's semen and DNA from that night. Possibly this DNA deposit may have been from a previous sexual encounter with defendant, one alleged to have taken place just a day and a half earlier, and the panties merely remained on the floor unwashed. However, the testimony of Special Agent Freeman concerning the matching DNA of defendant's blood sample and the rectal swabs taken from Ms. Johnson on 22 July 2001 provide another DNA link to defendant's presence that night, relieving any potential prejudice by the admission of exhibit 22.
Therefore, defendant fails to show an abuse of discretion in this instance because he cannot establish "prejudice" and show but for the admission of exhibit 22, there is a "reasonable possibility" the jury would have returned a different verdict. N.C. Gen. Stat. § 15A-1443(a) (2001). We believe that due to Special Agent Freeman's expert testimony, which was properly admitted, there is no reasonable possibility the jury would have returned a different verdict had exhibit 22 been suppressed.
Testimony of Defendant's Witnesses
Upon review of the trial court's rulings made during the direct and cross-examinations of defendant's witnesses, we find no prejudicial error and overrule all assignments of error alleged.
State's Exhibits 24, 62, and 78
In its case-in-chief, the State subpoenaed the medical records regarding the 22 July 2001 treatment of Ms. Johnson. The statements therein were offered under the exception to the hearsay rule, N.C. Gen. Stat. § 8C-1, Rule 803(4), concerning statements made for medical diagnosis or treatment. Notwithstanding defendant's own ability to subpoena these files, he objected on the grounds that these records used at trial contained three pages not in the State's file. Defendant argues that the State has violated the following rule of discovery by not fully disclosing all documents in its possession after volunteering to do so.
In North Carolina, discovery in criminal cases is governed by statute. Particularly, "[u]pon motion of a defendant, the court must order the prosecutor to provide a copy of or to permit the defendant to inspect and copy or photograph results . . . within the possession, custody, or control of the State[.]" N.C. Gen. Stat. § 15A-903(e) (2001) (emphasis added). However, the State can provide voluntary discovery, a means designed to encourage disclosure of items which ultimately a State may be ordered to disclose. When providing voluntary disclosure, they assume the duty to fully disclose all of those items which could be obtained by court order. See State v. Jones, 296 N.C. 75, 79-80, 248 S.E.2d 858, 860-61 (1978).
In the case, sub judice, the State provided voluntary discovery. Thus, they are covered by the same duties as if an order had been issued pursuant to N.C. Gen. Stat. § 15A-903(e) for disclosure of reports of examinations and tests. See id. However, we find nothing in our case law or in the statutory language that requires the State to grant discovery to its entire file, including physical examinations that defendant could have retrieved on his own. Where the physical exam was undergone for medical treatment and not for investigatory purposes solely conducted by the State, the records are equally discoverable. The medical records of Ms. Johnson were in the custody of the treating hospital, not the State (which merely had a copy of them). Therefore, it was the responsibility of the defense to get a complete copy, and not rely solely on the State.
Assuming arguendo the State should have turned over a full copy of the medical records of 22 July 2001, the evidence is not necessarily made inadmissible by this violation. If any party fails
to comply with [the discovery statutes] or with an order issued pursuant to [them], the court in addition to exercising its contempt powers may
(1) Order the party to permit the discovery or inspection, or
(2) Grant a continuance or recess, or
(3) Prohibit the party from introducing evidence not disclosed, or
. . . .
(4) Enter other appropriate orders.
N.C. Gen. Stat. § 15A-910 (2001). As our Supreme Court has held, the exclusion of evidence for the reason that the party offering it has failed to comply with the discovery statutes granting the right of discovery, or with an order issued pursuant thereto, rests in the discretion of the trial court. See State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977). Thus, the assignment of error as to exhibit 24 and the testimony introducing the exhibit is overruled.
Defendant argues there was prejudicial error in admitting exhibit 62, an air-dried extraction of DNA taken from Ms. Johnson's panties. Expert testimony of this DNA matched that of a blood sample taken from defendant. Defendant objected to its admission, alleging in his brief, though not at trial, that it was overly prejudicial pursuant to N.C. Gen. Stat. § 8C-1, Rule 403. While the grounds for objection were not before the trial court, nor do we believe they could have been easily assumed under the circumstances, we hold simply that this evidence was highly probative as to identifying defendant as the perpetrator, and its only prejudice to defendant was its tendency to support the State's case. Therefore, we overrule this assignment of error.
Defendant also assigns as error State's exhibit 78, a business record showing Ms. Johnson's purchase of a master cylinder on 27 June 2001. Tim Pittman, an Advanced Auto parts specialist and witness for the State laid the foundation for the exhibit's admission. The trial court first sustained defendant's objection as to its foundation as a business record, but after the State introduced further evidence that the document was generated in the normal course of business at the time of the transaction, the court allowed it into evidence. Defendant again objected. Defendant's brief offers no argument as to why the foundation is lacking for this exhibit as a business record exception to the hearsay rule, N.C. Gen. Stat. § 8C-1, Rule 803(6), and we can see no deficiency in the transcript. This assignment of error is overruled.
Defendant has failed to show any error by the trial court in the admission of exhibits 24, 62, and 78. Furthermore, he has offered no explanation, and nor can we sua sponte find any, of any overly prejudicial effect their admission might have on a jury. Therefore, we overrule these assignments of error.
Denial of Motion to Dismiss, Motion For Judgment Notwithstanding the Verdict, and Motion for a New Trial
Defendant argues that the trial court erred by denying its motion to dismiss, motion for judgment notwithstanding the verdict, and motion for a new trial. Defendant argues that at the close of all evidence, there was an insufficient amount of evidence for a reasonable jury to convict. We disagree.
At the close of all evidence and upon a motion made to dismiss, a trial court must ask:
[W]hether, upon consideration of all the evidence in the light most favorable to the State, there is substantial evidence that the crime charged in the bill of indictment was committed and that defendant was the perpetrator. Substantial evidence is that amount of "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995).
State v. Armstrong, 345 N.C. 161, 164-65, 478 S.E.2d 194, 196 (1996). "If there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied." State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988). In order to overcome a motion to dismiss, the evidence does not have to rule out every hypothesis of innocence. See State v. Golphin, 352 N.C. 364, 458, 533 S.E.2d 168, 229 (2000), cert. denied, 532 U.S. 931, 149 L.Ed.2d 305 (2001). This same standard of review applies to a motion to set aside the jury verdict. N.C. Gen. Stat. § 15A-1227 (2001); State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002).
When viewing all the evidence in the light most favorable to the State, we conclude that the trial court did not err in denying defendant's motion to dismiss or motion to set aside the jury verdict. The evidence at trial tended to show that sometime on the night of 21 July 2001 or early in the morning of 22 July 2001, Ms. Johnson had been beaten, bound with duct tape, sodomized, and raped; DNA testing was conducted on semen and sperm samples taken from the underwear of Ms. Johnson on the 22 July 2001 and from her rectal area which matched that from the blood samples taken from defendant; Ms. Johnson testified that she recognized a number of characteristics of the assailant circumstantially suggesting defendant; and Ms. Johnson identified the voice of the assailant as that of defendant. While there was more evidence before the court to meet the sufficiency standard, we believe this was enough to survive dismissal and to support a verdict.
Defendant timely moved for appropriate relief pursuant to N.C. Gen. Stat. § 15A-1414(b) (2001). As a post trial motion, the disposition of a motion for appropriate relief is subject to the sentencing judge's discretion and will not be overturned absent a showing of abuse of discretion. State v. Arnette, 85 N.C. App. 492, 355 S.E.2d 498 (1987).
Defendant alleges in his brief that he is entitled to a new trial due to numerous prejudicial errors committed by the trial court. Because we have found no prejudicial errors committed by the trial court worthy of reversal, as set out in this opinion, and because we have held the evidence properly admitted by the trial court is sufficient to survive dismissal and sustain a verdict, we see no theory on which defendant can argue abuse of discretion by the trial court in denying a motion for appropriate relief.
We therefore overrule the assignments of error denying defendant's motions to dismiss, for judgment notwithstanding the verdict, and for appropriate relief.
Sentencing of Defendant
The decision to depart from the presumptive sentencing range of punishment lies within the sound "discretion of the court." N.C. Gen. Stat. § 15A-1340.16 (2001). A trial court must find a factor in mitigation if it is supported by uncontroverted, substantial and inherently credible evidence; but upon a failure to produce such evidence, the trial judge may reject the proposed factors. State v. Bare, 77 N.C. App. 516, 335 S.E.2d 748 (1985), cert. denied, 315 N.C. 392, 338 S.E.2d 881 (1986).
We believe the trial court properly applied the presumptive sentencing range given the nature and circumstances of the crimes. We do not find adequate support in the transcript, record, or arguments in defendant's brief to meet the substantial burden of establishing a mitigating factor, or that the trial court abused its discretion by not finding one. Therefore, this assignment of error is overruled.
Upon review of the briefs, transcript, and record, we have examined and disposed of all of defendant's assignments of error. While our discussion is limited to those issues which we deem of the greatest import, as to all assignments of error we hold defendant received a trial free from any abuse of discretion or prejudicial error.
No error.
Chief Judge EAGLES and Judge STEELMAN concur.
Report per Rule 30(e).