STATE of North Carolina
v.
Charles Junior DAVY.
No. 894SC1349.
Court of Appeals of North Carolina.
November 6, 1990.*636 Attorney General Lacy H. Thornburg by Asst. Atty. Gen. Marilyn R. Mudge, Raleigh, for State.
Gaylor, Edwards, Vatcher & Bell by Walter W. Vatcher, Jacksonville, for defendant-appellant.
LEWIS, Judge.
Defendant argues that the trial court's refusal to grant his motion to dismiss at the end of the presentation of all the evidence constituted reversible error. In order to overcome a motion to dismiss, the State must introduce more than a scintilla *637 of evidence of each essential element of the offense and that the defendant was the perpetrator of the offense. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). The evidence must be considered in the light most favorable to the State in determining its sufficiency, and the State is entitled to each and every reasonable inference to be drawn therefrom. Id. State v. Jackson, 309 N.C. 26, 40, 305 S.E.2d 703, 714 (1983). The weight and credibility of the evidence presented are matters for the jury to determine and are not considered on a motion to dismiss or for nonsuit. State v. McNeil, 280 N.C. 159, 162, 185 S.E.2d 156, 157 (1971).
Defendant argues that there is insufficient evidence of the defendant's identity as being the perpetrator of the crime to allow the jury to deliberate. We disagree. The victim testified that she glimpsed her attacker as he pulled the afghan over her head and she was able to tell that he was a large, strong dark-complected black man. Within seconds after the incident, she observed a truck which she later positively identified as the vehicle that drove away from her home down Maplehurst Road. Tire impressions identical to the tread on defendant's truck were found on the ground outside the trailer window. The State also produced evidence that tended to show that the defendant knew that the victim was married and that her husband was away on military duty. Hairs and fibers consistent to those found on the victim were found on the defendant. These facts present sufficient evidence to go to the jury as to the defendant's identity as the perpetrator. The defendant has pointed out in his brief a number of inconsistencies in the State's evidence, however, these discrepancies were for the jury to weigh and consider. This assignment of error is overruled.
Defendant next argues that the trial court committed reversible error when it denied his motion to suppress the hair and fiber evidence recovered from his pants. Defendant argues that this evidence should have been suppressed because he did not voluntarily give his consent to the search and seizure of the hairs and fibers on his pants. The test for determining the validity of a consent search is whether, under the totality of the circumstances, the consent was induced by duress or coercion or was voluntary. State v. Powell, 297 N.C. 419, 426, 255 S.E.2d 154, 158 (1979); Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862-63 (1973). When a defendant seeks to suppress evidence on grounds his consent to search was involuntary, the trial court must conduct a voir dire to determine whether consent was, in fact, given without compulsion. State v. Washington, 86 N.C.App. 235, 238-39, 357 S.E.2d 419, 422, disc. rev. denied, 322 N.C. 485, 370 S.E.2d 235 (1988). These findings are conclusive on appeal if supported by competent evidence. Id.
In the present case, defendant argues that because he previously had requested to speak to a lawyer, his consent to the rolling of his trousers with a lint brush was coerced and his consent was not freely and voluntarily given. We disagree. Defendant admits that he had been told that he was free to leave the sheriff's office before he was asked by the detectives about rolling his pants. He agreed to allow the detectives to roll his pants, stepping over to the detective's desk to allow the officer to perform the task. We find that the trial court's findings are supported by competent evidence and must be upheld. This assignment of error is overruled.
Defendant next argues that the court erred in sustaining the State's objection to the following question asked by defense counsel during the voir dire:
If you come to the conclusion that the prosecution had not proven that the accused was guilty beyond a reasonable doubt and you found a majority of the jurors believed the Defendant was guilty, would you change your mind or your verdict only because you were in the minority?
After the jury was impanelled, defense counsel asked that the above question and the court's ruling sustaining the State's objection to the ruling be noted on the *638 record. However, the entire jury voir dire was not transcribed or made a part of the record. On this record it is impossible to tell whether the trial court erred in sustaining this objection. See, State v. Parks, 324 N.C. 420, 423, 378 S.E.2d 785, 787 (1989). (When determining propriety of jury voir dire questions, courts must review entire record of jury voir dire, rather than isolated questions). Furthermore, such matters are within the sound discretion of the trial judge. State v. Banks, 295 N.C. 399, 245 S.E.2d 743 (1978). Based on the record before us, we find neither abuse nor prejudice in the court's ruling. This assignment is overruled.
Defendant also argues that the trial court committed reversible error when it allowed the introduction of hair and fiber evidence removed from the defendant's pants with a lint brush. Specifically, he maintains that he could have picked up the incriminating hair and fibers by riding in the same police car in which the victim had ridden earlier in the day. Defendant argues, "although a break in the chain of custody does not exist after the fibers were taken from the Defendant's trousers, the break exists in that the trousers were contaminated prior to the taking of the fiber and hair specimens." We hold that the trial court did not commit reversible error in admitting this testimony. There was no break in the chain of custody after the sample was taken from the defendant's pants. The argument that he may have picked up the fibers somewhere else goes to the weight of such evidence, not to its admissibility. See DeVooght v. State, 722 P.2d 705 (Okla.1986) (admitting fiber evidence while acknowledging the possibility that it could have been conveyed by a secondary source upheld).
Finally, defendant argues that the trial court erred in aggravating his sentence based upon a finding that "the victim was particularly and especially vulnerable in that she was asleep; that two small children were present; that she was having her period and that her husband was away on military duties and that the defendant was specifically aware of this vulnerability and made a calculative decision to proceed with the commission of this offense." These findings are analogous to Aggravating Factor 10(d), G.S. § 15A-1340.4(a)(1)(j), allowing a court to aggravate the defendant's sentence because "[t]he victim was very young, or very old, or mentally or physically infirm." G.S. § 15A-1340.4(a)(1)(j). Vulnerability is the concern addressed by this aggravating factor. State v. Ahearn, 307 N.C. 584, 603, 300 S.E.2d 689, 701 (1983). The State has the burden of showing (1) that the victim was in fact vulnerable because of conditions at the time of the offense and (2) that she was targeted because of these conditions or that the defendant took advantage of them while committing the offense. State v. Drayton, 321 N.C. 512, 514, 364 S.E.2d 121, 122 (1988). We will address each of these factors in turn.
1. "The victim was particularly and especially vulnerable in that she was asleep."
In State v. Drayton, supra, our Supreme Court upheld a finding that the victim had a blood alcohol content of .29% at the time of his attack as a nonstatutory basis for aggravating the defendant's sentence. Holding that vulnerability was the gravamen of G.S. § 15A-1340.4(a)(1)(j), the court stated that the victim's high blood-alcohol level "supports a finding that a person's ability to flee, fend off an attack, or otherwise avoid being victimized is impaired." In Drayton, the victim was conscious and walking. Id. In the present case the victim was asleep. Reason and logic compel us to conclude that if being heavily intoxicated makes one vulnerable to physical attack, then being asleep would surely render a rape victim as vulnerable to attack as someone who was heavily intoxicated. We conclude that the trial court properly aggravated the defendant's sentence because the victim was asleep and was therefore "impeded from fleeing or fending off the attack." Drayton, supra, but see State v. Underwood, 84 N.C.App. 408, 352 S.E.2d 898 (1987).
*639 2. "Two small children were present."
We find that the trial court properly found as an aggravating factor the fact that the victim's two young children were present in the house at the time of the attack. Particularly compelling is the fact that the victim's fifteen month old baby was in the room with the defendant and the victim during the attack. The baby awakened and started to cry as the defendant began to rape her mother. Because the victim feared for the safety of her baby, she clearly was inhibited in her ability to resist attack and protect herself. Under these circumstances, she was rendered more vulnerable to an attack and the court properly aggravated the defendant's sentence. See State v. Eason, 67 N.C.App. 460, 313 S.E.2d 221, aff'd, 312 N.C. 320, 321 S.E.2d 881 (1984).
3. "That the victim was on her period."
The State relies on State v. Eason, supra, where this Court upheld aggravation of the defendant's sentence because the defendant proceeded with a burglary despite the victim's pleas that she was pregnant. The court observed that the victim's pregnancy rendered her less able to resist and that her concern for her unborn child enhanced the trauma she experienced because of the burglary. Id. at 464, 313 S.E.2d at 224. However, in Eason the prosecutrix was more than eight months pregnant at the time of the attack. Therefore, she clearly was more vulnerable because of her condition.
In the present case, the court aggravated the defendant's sentence because she was on her period. There is no evidence in the record that the fact that the victim was on her menstrual cycle at the time of her attack renders her "physically infirm" or more vulnerable and less able to protect herself from her attacker. Furthermore, there is no evidence that the defendant targeted her or took advantage of her because she was on her period. This finding was in error.
4. "Her husband was away on military duties and that the defendant was specifically aware of this vulnerability and made a calculative decision to proceed with the commission of this offense."
We find that the trial court properly aggravated the defendant's sentence based upon a finding that the defendant knew that the victim's husband was away on military duty and proceeded to target her because of this knowledge. See, State v. Drayton, supra. Hattie Kent testified that she told the defendant that the victim's husband was away on military duty on the evening of the rape. The trial court properly concluded that the victim was more vulnerable because her husband was away on deployment and that the defendant targeted her because of his actual knowledge of this fact.
CONCLUSION
The trial court properly aggravated the defendant's sentence based upon his findings that the victim was asleep; that there were two young children present; and that she was specifically targeted because her husband was away at the time of the attack. The trial court erred in concluding that the victim was more vulnerable because she was on her menstrual cycle at the time of the attack and therefore more vulnerable to her attacker. "When an aggravating factor is incorrect, the trial judge cannot properly balance the aggravating and mitigating factors, and therefore the case must be remanded for resentencing." State v. Taylor, 74 N.C.App. 326, 328, 328 S.E.2d 27, 29, disc. rev. denied, 314 N.C. 547, 335 S.E.2d 319 (1985).
The defendant has also appealed the denial of his motion for the return of his truck, exclusive of any storage lien. At the time of his arrest, the defendant's 1977 Ford truck was seized and stored at a privately-owned local storage facility in Jacksonville, North Carolina. There is a local county storage facility, but the defendant's truck was not stored there. The storage fees now amount to more than the value of the truck. Defendant acknowledges *640 that the truck was subject to impoundment as an item of evidence under G.S. § 15-11.1, and under the circumstances of this case, a lien for storage fees attached to the car by virtue of G.S. § 44A-2. However, defendant asks us
to create a judicial exception to N.C.G.S. sec. 44A-1 et seq. and hold that when property is seized by a law enforcement agency who thereafter directs the local storage facility to store and retain said property at their direction ... the lawful owner is entitled to immediate possession of said property and the law enforcement agency is thereafter held accountable for all storage liens.
We decline.
The judgment of conviction in the trial court is affirmed. We remand the cause for resentencing due to the fact that the trial judge erroneously found the aggravating factor that the victim was particularly and especially vulnerable because she was on her menstrual cycle.
No error in the trial.
Remanded for sentencing.
Judges WELLS and EAGLES concur.