An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1212
                       NORTH CAROLINA COURT OF APPEALS

                                   Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                       Johnston County
                                               Nos. 11 CRS 4362-63, 54753-54,
                                                    55107-111
MICHAEL RANDOLPH FINCH



      Appeal by Defendant from judgments entered 28 March 2013 by

Judge Gale Adams in Superior Court, Johnston County.                     Heard in

the Court of Appeals 17 March 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Margaret A. Force, for the State.

      Kevin P. Bradley for Defendant.


      McGEE, Judge.


      Michael Randolph Finch (“Defendant”) was convicted on 28

March 2013 of seven counts of rape of a child and two counts of

sexual     offense   with    a   child.      The    investigation     into    these

charges began after Defendant’s wife found photographic images

of   Defendant    engaged     in    sexually   suggestive      conduct    with    an

eleven-year-old        female       relative       (the   child).          Further
                                             -2-
investigation         uncovered        additional       photographs      and     videos

depicting Defendant engaged in sexual acts with the child.                          The

child testified at trial concerning multiple sexual acts that

Defendant either performed on her, or that Defendant made her

perform on him, and about eight occasions when Defendant placed

his penis in her vagina.               On four of those occasions, Defendant

handcuffed the child to a couch.                   In at least one of the videos,

Defendant’s          wife        identified        Defendant    forcing        vaginal

intercourse on the child.              Captain Jeff Caldwell of the Johnston

County Sheriff’s Office testified that, after Defendant had been

arrested       and   had    waived     his   rights    under   Miranda,    Defendant

“admitted       to   having       sexual     intercourse    with   [the    child     in

Johnston       County]      on   two   occasions.       [Defendant]     admitted     to

using a vibrator on [the child] on one occasion and to receiving

oral sex from [the child] on one occasion [also in Johnston

County].”        Defendant admitted to multiple other sex acts with

the child outside Johnston County.

     Defendant was indicted on seven counts of rape of a child,

and two counts of engaging in a sexual offense with a child.

Defendant was found guilty of all charges on 28 March 2013, and

the jury made special findings for all nine charges.                              These

special     findings        included       “egregious     aggravating     factor[s]”

that,     in    “[t]he       nature     of    the     offense[s]   and     the     harm
                                           -3-
inflicted[,]”        were    “of    such      brutality,    duration,    severity,

degree, or scope beyond that normally committed in such crimes

or considered in basic aggravation of such crimes.”                      Defendant

was sentenced to four consecutive active sentences of 300 to 369

months.     Defendant appeals.

       In Defendant’s sole argument, he contends the trial court

            erred in entering judgments on seven counts
            of rape of a child and two counts of sexual
            offense against a child when the [trial
            court] instructed the jury with reference to
            only a single count of rape of a child and a
            single count of sexual offense against a
            child.

We disagree.

       The trial court gave a single instruction, including the

elements the jury had to find in order to convict Defendant of

rape   of   a   child,      and    another     single   instruction     for    sexual

offense against a child.             The jury was then given nine separate

verdict sheets, seven pertaining to the seven rape charges and

two    pertaining     to    the    two   sex     offense   charges.     The     seven

verdict sheets pertaining to the rape charges are identical to

each other except for the file numbers, which are the same as

the file numbers for each corresponding indictment.                           The two

verdict     sheets     pertaining        to    the   sex   offense    charges     are

identical to each other except for the file numbers, which are

the same as the file numbers for each corresponding indictment.
                                           -4-
    This     Court      encountered    the       identical     issue    in    State    v.

Barr, __ N.C. App. __, 721 S.E.2d 395 (2012).                           In Barr, the

defendant    was       charged     with,     inter     alia,     three       counts    of

accessing    a    government       computer.1        The     trial   court     in     Barr

instructed       the   jury   on    accessing      a       government    computer      as

follows:

            The   defendant   has   been                   charged   with
            fraudulently    accessing                  a       government
            computer.

            For you to find the defendant guilty of this
            offense, the State must prove four things
            beyond a reasonable doubt.

            First, that the defendant accessed or caused
            to be accessed directly or indirectly a
            computer.

            And, second, that the access was to a
            computer, computer program, computer system,
            computer network or any part thereof that is
            owned, operated, or used by any state or
            local government entity. The North Carolina
            Division of Motor Vehicles is a State
            government entity.

            And third, that this access was made for the
            purpose of obtaining services by means of a
            false   pretense    or    representation   by
            representing   that    the   North   Carolina
            dealership was an out of state dealer.

            And   fourth,  that  the  defendant   acted
            willfully.    The word "willfully" means
            something more than an intention to commit
            the offense.   It implies committing -- it
            implies committing the offense, not only
1
  We take judicial notice of the record in Barr, and include
portions of that record below.
                                     -5-
          designedly in violation of the law, but also
          with a bad purpose.

          If you find from the evidence beyond a
          reasonable doubt that on or about the
          alleged date, the defendant accessed a
          computer and that this access was to a
          computer, computer program, computer system,
          computer network, or any part thereof that
          was owned, operated, or used by any state or
          local government entity and that this access
          was for the purpose of obtaining services by
          means of a false pretense or representation,
          and that this defendant acted willfully, it
          would be your duty to return a verdict of
          guilty.   If you do not so find or have a
          reasonable doubt as to one or more of these
          things, it would be your duty to return a
          verdict of not guilty.

    The   trial   court      then   submitted   three   separate   verdict

sheets to the jury relating to the three charges of accessing a

government computer.      The three verdict sheets were identical in

every   way   except   for    different    file   numbers,   which   were

associated with the underlying indictments.         This Court held:

          In this case, we note that Defendant does
          not argue that the trial court failed to
          explain to the jury every essential element
          of the crimes charged, but rather, Defendant
          takes issue with the fact that the trial
          court gave “a generic instruction to the
          jury for the categories of the charges.”
          This Court has held that similar jury
          instructions,      categorizing     multiple
          identical charges in one instruction, did
          not constitute plain error. The trial court
          in this case provided the jury with a copy
          of the instructions and separate verdict
          sheets clearly identifying the separate
          charges.   However, the dispositive point on
          this issue is that Defendant has failed to
                                        -6-
               explain in her brief how any alleged error
               by the trial court in categorizing the jury
               instructions prejudiced her trial.   Because
               Defendant bears the burden of showing that
               an error arose to the level of plain error,
               . . . and because Defendant failed to meet
               this burden, we conclude the trial court did
               not   commit  plain   error   in  its   jury
               instructions on the elements of the offenses
               in this case.

Barr, __ N.C. App. at __, 721 S.E.2d at 406 (citations omitted).

      In the present case, Defendant not only fails to argue how

any plain error might have prejudiced him, he argues that plain

error analysis does not apply in this situation.                 In accord with

Barr,     we     hold     that,     because   the     alleged    error    is    an

instructional      error,     and    Defendant   failed    to    object   to   the

alleged    error    at     trial,    plain    error   analysis    would   apply.

However, Defendant does not specifically allege plain error in

his brief, N.C.R. App. P. 10(a)(4), and has “failed to explain

in [his] brief how any alleged error by the trial court in

categorizing the jury instructions prejudiced [him] at trial.”

Barr, __ N.C. App. at __, 721 S.E.2d at 406.                      Defendant has

abandoned this argument. State v. Gamez, __ N.C. App. __, __,

745 S.E.2d 876, 878, disc. review denied, __ N.C. __, 749 S.E.2d

848     (2013).         Because   Defendant’s    sole     argument   is   deemed

abandoned, we dismiss his appeal.

      Dismissed.

      Chief Judge MARTIN and Judge CALABRIA concur.
                         -7-
Report per Rule 30(e).
