State v. Ruffin

NO. COA13-744

NORTH CAROLINA COURT OF APPEALS

Filed: 4 March 2014

STATE OF NORTH CAROLINA

v. Washington County
No. 12 CRS 50089
LOCREAIG DONNELL RUFFIN

Appeal by defendant from judgment entered 29 January 2013

by Judge Benjamin G. Alford in Washington County Superior Court.

Heard in the Court of Appeals 8 January 2014.

Attorney General Roy Cooper, by Special Deputy Attorney
General Jennie Wilhelm Hauser, for the State.

McCotter Ashton, P.A., by Rudolph A. Ashton, III, and Kirby
H. Smith, III, for defendant-appellant.

STEELMAN, Judge.

Where defense counsel informed the trial court that

defendant had decided to reject a plea offer and proceed to

trial on a charge of first-degree rape, the trial court’s

failure to inform defendant of the increased maximum sentence

for second-degree rape under N.C. Gen. Stat. § 15A-1340.17(f)

was not error. The trial court did not err in allowing the

prosecutor to cross-examine defendant about prior out of state
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criminal convictions or in denying defendant’s motion to dismiss

the charge of second-degree rape for insufficient evidence.

I. Factual and Procedural Background

In January of 2012, J.B., who lived in Plymouth, North

Carolina, met defendant through a telephone dating service.

After talking to defendant on the phone for several weeks, she

invited him to visit in person on the weekend of 8 January 2012.

On 6 January 2012, a friend of J.B.’s picked up defendant in

Greenville and brought him to Plymouth. When J.B. finished work,

she and defendant purchased beer and food and went to a motel,

where they talked, ate, drank beer, and had consensual sex. That

night, defendant talked about his father, who he felt had

mistreated him. The next day, J.B. went to work in the morning

and afterwards she and defendant went to her trailer with more

beer. J.B. slept about two hours, cooked food for defendant, and

they had consensual sex.

Defendant continued drinking during the day and during the

evening he became increasingly agitated about issues that he had

with his father, and threatened to harm J.B. or himself.

Defendant retrieved a machete from J.B.’s closet, pushed her

onto the bed, punched J.B., choked her, held the machete to her

neck, and forced her to have sex with him. After the forcible

intercourse, defendant made her take a shower with him, after
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which they dressed and both took some sedative-laced pain pills.

J.B. and defendant dozed briefly, but when defendant awoke he

was still very agitated and “proceeded to scream and holler.”

J.B. ran into a bathroom and called 911, at which point

defendant ran out of the trailer.

When Deputies Ricks and Spencer of the Washington County

Sheriff’s Department arrived at J.B.’s trailer, Deputy Ricks

noted that J.B. was “crying hysterically and shaking.” The

deputies took a statement from J.B., obtained a photo of

defendant, photographed J.B.’s bruises, and took her to the

hospital.

Defendant was arrested a few hours later, and at around

10:00 a.m. on 8 January 2012, Deputy Spencer met with defendant

at the Washington County jail. Defendant waived his Miranda

rights, and gave Spencer a statement about the events of the

previous 36 hours. His account of the time he had spent with

J.B. was similar to J.B.’s statement; specifically, he admitted

to Spencer that he had forced J.B. to have sex on Saturday. He

told Spencer that J.B. had threatened him with the machete, and

that in response “he got angry and went and got the machete and

put it up to her neck and threatened to cut her head off and

then forced her to have sex with him[.]” J.B. had stated that

defendant had raped her once; however, defendant told Spencer
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that he forced himself on her twice. After Spencer reduced

defendant’s statement to writing, defendant read and initialed

it.

Defendant was indicted on 23 July 2012 in an indictment

whose language described second-degree rape, but whose caption

and cited statute identified the charged offense as first-degree

rape. Prior to trial, the trial court ruled that the indictment

charged defendant with second-degree rape.

Defendant was tried before a jury on 28 and 29 January

2013. Defendant’s mother testified that defendant, who grew up

in Connecticut, suffered a head injury at age two, after which

“his brain didn’t develop like normal” and that he read at a

third or fourth grade level and had difficulty with long term

memory. Defendant’s mother also testified that after defendant

moved to North Carolina about three years earlier, he lived in

Greenville for two years, and had spent “one year in jail.”

Defendant testified that he was 36 years old, lived in

Greenville, North Carolina, and was unemployed but received

disability payments for “mental retardation.” He recalled

speaking with Spencer, but contended that he was “drunk” at the

time and did not remember his answers to her questions, or

remember telling Spencer that he had forced J.B. to have sex. He

testified that he could not read the statement that he had
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initialed. On cross-examination, defendant testified that he

could not recall what happened during the weekend of 8 January

2012, and that he did not “know of” or recall any criminal

convictions from Connecticut. Over objection, the prosecutor

asked defendant about 5 prior criminal convictions in

Connecticut. Defendant denied any recollection of those

convictions. When asked on redirect examination, defendant

testified that he remembered being arrested, but not what he was

charged with.

On 29 January 2013 the jury found defendant guilty of

second-degree rape. The trial court sentenced defendant to an

active sentence of 73 to 100 months. Subsequently, the

Department of Public Safety informed the trial court that the

maximum sentence of 100 months did not correspond to the minimum

sentence of 73 months, since defendant was convicted of a

reportable sex offense as defined in N.C. Gen. Stat. § 14-

208.6(4), and therefore was required to be sentenced under N.C.

Gen. Stat. § 15A-1340.17(f). On 11 March 2013, the trial court

amended its judgment and entered a maximum sentence of 148

months.

Defendant appeals.
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II. Analysis

A. Defense Counsel Places the Plea Arrangement Offered by the
State into the Record

In his first argument, defendant contends that the trial

court committed reversible error by misstating the maximum

sentence for second-degree rape. Defendant asserts that the

trial court’s failure to inform defendant of the maximum

sentence for a conviction of a reportable sex offense “deprived

the defendant of a full understanding of the ramifications of

turning down the State’s plea offer.” We disagree.

N.C. Gen. Stat. § 15A-1340.17(f) states that:

. . . [F]or offenders sentenced for a Class
B1 through E felony that is a reportable
conviction subject to the registration
requirement of Article 27A of Chapter 14 of
the General Statutes, the maximum term of
imprisonment shall be equal to the sum of
the minimum term of imprisonment and twenty
percent (20%) of the minimum term of
imprisonment, rounded to the next highest
month, plus 60 additional months.

N.C. Gen. Stat. § 14-208.6(4) defines “reportable offense”

to include a conviction for “a sexually violent offense, or an

attempt to commit any of those offenses[,]” and N.C. Gen. Stat.

§ 14-208.6(5) defines a “sexually violent offense” to include

second-degree rape. Thus, upon defendant’s conviction for

second-degree rape, his maximum sentence is subject to the

provisions of N.C. Gen. Stat. § 15A-1340.17(f).
 -7-
In this case, after the jury was impaneled, but before the

first witness was called to testify, defendant’s attorney asked

to “place on the record” that defendant was charged with first-

degree rape, a Class B1 felony, and that the State had offered

to allow him to plead guilty to a Class D felony. Defendant had

decided not to accept the plea offer and to proceed to trial.

Defense counsel did not identify the Class D felony to which

defendant could plead guilty1 or state the specific terms of the

plea offer. After defense counsel put defendant’s decision to

proceed to a jury trial on the record, the trial court ruled

that the indictment actually charged the offense of second-

degree rape, a Class C felony. The trial court then addressed

defendant:

THE COURT: The Court has reviewed the
indictment and finds that it does properly
allege second-degree rape which is a Class C
felony, and you’re reading from the second
level, and, Mr. Ruffin, if you got convicted
of this, then the Court could sentence you
to a minimum sentence of anywhere between 50
months in the mitigated range to a maximum
minimum sentence of 83 months. If you got 50
months, that would correspond to a maximum
of 72 months. If you got 83 months, then
that would correspond to a maximum of 112
months. Do you understand that?

DEFENDANT: Yes.

1
The only potential Class D felony that is apparent on the
record before us would be attempted second degree rape.
 -8-
THE COURT: Okay. Anything the State wants to
say about that?

PROSECUTOR: No, Your Honor.

THE COURT: Okay. [defense counsel], anything
further?

DEFENSE COUNSEL: No, Your Honor.

THE COURT: Okay. And, Mr. Ruffin, at this
time is it your desire to proceed on with
the trial of this case knowing that the
indictment charges second-degree rape, a
Class C felony?

DEFENDANT: Yes.

On appeal, defendant argues that “the trial court’s

improper statement of the maximum punishment deprived the

defendant of an informed decision as to whether or not he should

accept the State’s plea offer[.]” As set out above, after the

trial court ruled that defendant was charged with a Class C

offense, and not a Class B1 felony, the court informed defendant

that if convicted he might receive a minimum sentence of 50 to

83 months, corresponding to a maximum sentence of 72 to 112

months. The trial court did not inform defendant that, if he

were convicted of second-degree rape, his maximum sentence would

be determined under N.C. Gen. Stat. § 15A-1340.17(f), which

would result in a longer maximum sentence than under the felony

sentencing grid set out in N.C. Gen. Stat. § 15A-1340.17(c).

However, based upon the facts of this case, we hold that this
 -9-
omission did not deprive defendant of an informed decision or

entitle him to appellate relief.

Assuming that (1) defendant were convicted of either first-

degree rape, second-degree rape, or attempted second-degree

rape; (2) defendant was a prior record level II offender, which

was the record level used by defense counsel and the trial court

in their colloquy with defendant, and; (3) rounding the length

of each sentence to the nearest month, the range of sentences to

which defendant was exposed was:

Offense Class Minimum Corresponding Increased
Sentence Range Maximum Sentence Maximum
(Months) from Sentencing Sentence
Grid
B1 221 278 325
276 344 391
C 67 93 140
83 112 160
D 59 83 131
73 100 148

Defense counsel represented to the trial court that

defendant had elected to be tried for a Class B1 offense, for

which he faced a minimum sentence of 221 months, or 18 years,

and that he had rejected an opportunity to plead guilty to a

Class D offense, for which the minimum sentence was 59 months,

or approximately 5 years. Given that defendant had decided to

risk a sentence of at least 18 years rather than plead guilty,
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there is no basis to infer that he might have changed his mind

based on the difference between the maximum presumptive sentence

for a Class C offense as derived from the sentencing grid – 112

months, or about 9 years – and the increased maximum sentence

for a Class C offense, which is 159 months, or about 13 years.

We conclude that on the facts of this case, the trial court’s

omission of the increased maximum sentence under N.C. Gen. Stat.

§ 15A-1340.17(f) does not entitle defendant to relief.

In arguing for a different result, defendant urges us to

apply N.C. Gen. Stat. § 15A-1022(a) to the facts of this case.

This statute provides that a superior court judge may not accept

a defendant’s guilty plea “without first addressing him

personally” and informing him of his right to remain silent,

ascertaining that he understands the charge against him, his

right to plead not guilty, and the range of possible sentences

he might receive, and “[i]nforming him that by his plea he

waives his right to trial by jury and his right to be confronted

by the witnesses against him[.]” N.C. Gen. Stat. § 15A-

1022(a)(4).

“Because a guilty plea waives certain fundamental

constitutional rights such as the right to a trial by jury, our

legislature has enacted laws to ensure guilty pleas are informed

and voluntary.” State v. Agnew, 361 N.C. 333, 335, 643 S.E.2d
 -11-
581, 583 (2007) (citing State v. Sinclair, 301 N.C. 193, 197,

270 S.E.2d 418, 421 (1980)). However, a defendant who elects to

proceed to trial is exercising, rather than waiving, his

constitutional rights. A trial court is not required to make an

inquiry into a defendant’s decision not to plead guilty.

Further, in this case defense counsel represented to the trial

court that defendant had already made the decision to proceed to

trial on a charge of first-degree rape. Counsel did not request

the trial court’s assistance in persuading defendant to change

his mind, or indicate doubts as to defendant’s competence to

make this decision, but simply stated that he wanted to put

defendant’s decision “on the record.” We conclude that N.C. Gen.

Stat. § 15A-1022 is not applicable to this case and that

defendant is not entitled to relief on this basis.2

B. Cross-examination of Defendant

In his next argument, defendant contends that the trial

court erred by “allowing the district attorney to cross-examine
2
Defendant also argues that the trial court erred by not
advising defendant of “the highest level in the aggravated
range[.]” However, N.C. Gen. Stat. § 15A-1340.16(a6) provides
that the “State must provide a defendant with written notice of
its intent to prove the existence of one or more aggravating
factors under subsection (d) of this section . . . at least 30
days before trial[.]” The record is devoid of any indication
that the State provided defendant with the requisite pretrial
notice of intent to prove the existence of any aggravating
factors, or that the State expressed such an intention during
the trial. We hold, based on the record before us, that the
issue of aggravating factors was not pertinent to this trial.
 -12-
the defendant about alleged prior convictions after the

defendant initially indicated that he did not recall any” and

that the court erred in allowing the prosecutor “over objection,

[to] read from a list of charges on an unverified DCI printout.”

We disagree.

As a general rule, the “scope of cross-examination lies

within the discretion of the trial judge, and the questions must

be asked in good faith.” State v. Forte, 360 N.C. 427, 442-443,

629 S.E.2d 137, 147 (2006) (citing State v. Williams, 279 N.C.

663, 675, 185 S.E.2d 174, 181 (1971)). N.C. Gen. Stat. § 8C-1,

Rule 609(a) provides that “[f]or the purpose of attacking the

credibility of a witness, evidence that the witness has been

convicted of a felony, or of a Class A1, Class 1, or Class 2

misdemeanor, shall be admitted if elicited from the witness . .

. during cross-examination[.]” In addition, “evidence which

would otherwise be inadmissible may be permissible on cross-

examination ‘to correct inaccuracies or misleading omissions in

the defendant's testimony or to dispel favorable inferences

arising therefrom.’” State v. Braxton, 352 N.C. 158, 193, 531

S.E.2d 428, 448 (2000) (quoting State v. Lynch, 334 N.C. 402,

412, 432 S.E.2d 349, 354 (1993)). However, “a cross-examiner can

elicit only ‘the name of the crime and the time, place, and
 -13-
punishment for impeachment purposes under Rule 609(a)[.]’” Id.

(quoting Lynch, 334 N.C. at 410, 432 S.E.2d at 353).

In this case, defendant was asked on cross-examination if

he had been convicted of criminal offenses while he lived in

Connecticut. He responded: “Not that I know of, that’s a long

time.” The prosecutor then questioned defendant about specific

criminal convictions, based on a document described at trial as

“a DCI printout showing the convictions.”3 The prosecutor did not

attempt to elicit details about the facts of the offenses, or

pursue the matter further when defendant denied remembering his

alleged prior convictions. On appeal, defendant does not dispute

that the document relied upon by the prosecutor provided a good

faith basis for his questions, and does not argue that the trial

court abused its discretion in allowing this cross-examination

or that the prosecutor exceeded the permissible scope of cross-

examination. We conclude that there was no error in allowing the

prosecutor to cross-examine defendant about prior convictions.

Defendant appears to argue on appeal that the district

attorney was barred from questioning him about his criminal

record unless (1) his questions would also have been admissible

under N.C. Gen. Stat. § 8C-1, Rule 404(b), and (2) the

prosecutor was in possession of a verified copy of the

3
This document has not been included in the record of this case.
 -14-
Connecticut judgments meeting the requirements for determining a

defendant’s prior record level for purposes of Structured

Sentencing under N.C. Gen. Stat. § 15A-1340.14. Defendant cites

no authority for either proposition, and we reject these

arguments.

Moreover, even assuming, arguendo, that the trial court

erred by allowing the cross-examination, defendant has failed to

show prejudice. Under N.C. Gen. Stat. § 15A-1443(a), a

“defendant is prejudiced by errors relating to rights arising

other than under the Constitution of the United States when

there is a reasonable possibility that, had the error in

question not been committed, a different result would have been

reached at the trial out of which the appeal arises. The burden

of showing such prejudice under this subsection is upon the

defendant.” Defendant does not argue that the trial would have

had a different result had the cross-examination not been

permitted, and our own review does not suggest that the cross-

examination had an effect on the jury’s verdict. Moreover, we

note that defendant’s mother testified that defendant had spent

“a year in jail” and that on redirect examination defendant

testified that he remembered his arrests, just not the names of

the charged offenses. Given that defendant elicited additional

evidence of his criminal history, and given the substantial
 -15-
evidence presented by the State, we cannot hold that defendant

was prejudiced by this cross-examination.

C. Sufficiency of the Evidence

In his last argument, defendant contends that the trial

court erred by denying his motion to dismiss for insufficiency

of the evidence. We disagree.

1. Standard of Review

“This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007) (citation omitted). “‘Upon defendant’s

motion for dismissal, the question for the Court is whether

there is substantial evidence (1) of each essential element of

the offense charged, or of a lesser offense included therein,

and (2) of defendant’s being the perpetrator of such offense. If

so, the motion is properly denied.’” State v. Fritsch, 351 N.C.

373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes,

334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (internal quotation

omitted)).

“Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164,

169 (1980) (citation omitted). “In making its determination, the

trial court must consider all evidence admitted, whether
 -16-
competent or incompetent, in the light most favorable to the

State, giving the State the benefit of every reasonable

inference and resolving any contradictions in its favor.” State

v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).

“Contradictions and discrepancies do not warrant dismissal of

the case; rather, they are for the jury to resolve. Defendant’s

evidence, unless favorable to the State, is not to be taken into

consideration.” State v. Franklin, 327 N.C. 162, 172, 393 S.E.2d

781, 787 (1990) (citations omitted). In this case, since

defendant presented evidence, we only review the sufficiency of

the evidence as of the close of all of the evidence. See State

v. Britt, 87 N.C. App. 152, 154, 360 S.E.2d 291, 292 (1987).

2. Analysis

N.C. Gen. Stat. § 14-27.3(a) states that “[a] person is

guilty of rape in the second-degree if the person engages in

vaginal intercourse with another person: (1) By force and

against the will of the other person[.]” Therefore, the

“elements of second-degree rape are that the defendant (1)

engage in vaginal intercourse with the victim; (2) by force; and

(3) against the victim’s will. N.C. Gen. Stat. § 14-27.3.” State

v. Scercy, 159 N.C. App. 344, 352, 583 S.E.2d 339, 344, disc.

review denied, 357 N.C. 581, 589 S.E.2d 363 (2003).
 -17-
At trial, J.B. testified that defendant brandished a

machete and beat her in order to force her to have vaginal

intercourse against her will. Her testimony was corroborated by

photos of her bruises and by her statements to the investigating

officers. Moreover, Deputy Spencer testified that defendant made

a statement in which he admitted threatening J.B. with a machete

in order to force her to have sex. This evidence was sufficient

to merit the submission of the charge of second-degree rape to

the jury.

On appeal, defendant does not dispute the existence of the

evidence discussed above. Rather, he directs our attention to

other evidence, such as the parties’ consumption of alcohol, and

the fact that J.B. acknowledged engaging in several prior

instances of consensual sex with defendant, that tended to

weaken the State’s case. However, “[c]ontradictions and

discrepancies do not warrant dismissal of the case but are for

the jury to resolve.” State v. Johnson, 203 N.C. App. 718, 724,

693 S.E.2d 145, 148 (2010) (citing State v. Benson, 331 N.C.

537, 544, 417 S.E.2d 756, 761 (1992). The trial court did not

err in denying defendant’s motion for dismissal.

For the reasons discussed above, we conclude that defendant

had a fair trial, free of reversible error.

NO ERROR.
 -18-
Judges STEPHENS and DAVIS concur.