                             NO. COA14-133

                  NORTH CAROLINA COURT OF APPEALS

                      Filed: 4 November 2014


STATE OF NORTH CAROLINA

    v.                              Henderson County
                                    Nos. 11 CRS 55726-31
CHARLES STEVENS BLOW, JR.



    Appeal by defendant from judgments entered 31 July 2013 by

Judge Mark E. Powell in Henderson County Superior Court.   Heard

in the Court of Appeals 11 August 2014.


    Attorney General Roy Cooper, by Associate Attorney General
    Christina E. Simpson, for the State.

    Paul F. Herzog for defendant-appellant.


    HUNTER, Robert C., Judge.


    Charles Stevens Blow, Jr. (“defendant”) appeals from six

judgments entered 31 July 2013 after a jury convicted him on

three counts each of first degree rape and first degree sex

offense on a child.       On appeal, defendant contends that the

trial court erred by: (1) denying his motion to dismiss with

respect to one count of first degree rape and (2) denying his

motion to continue when defense counsel learned of a potential

defense witness on the eve of trial.
                                           -2-
       After   careful        review,    we    vacate   one   judgment   for   first

degree rape, but we find no error in the denial of defendant’s

motion to continue.

                                        Background

       Defendant is the biological father of M.B.1 and her sister,

C.B.    M.B. was born in 2001 and was eleven years old when this

case went to trial.            Defendant and Angela Blow (“Angela”), the

mother of M.B. and C.B., married in 2005.                        In August 2010,

Angela and defendant separated and Angela moved to Michigan with

M.B. and C.B.         While in Michigan, Angela suffered a breakdown

and    left    M.B.     and    C.B.     with   her   brother.      As    a   result,

psychological and medical evaluations were performed on M.B.,

C.B., Angela, and defendant in April 2011 in the process of

determining placement of custody for the children.                   During these

evaluations, M.B. denied the occurrence of any previous abuse

when   her     family    lived     in    North    Carolina.      Pursuant      to   an

agreement between Angela and defendant, M.B. and C.B. moved to

North Carolina to live with defendant and his new girlfriend in

June 2011.

       While visiting her mother in Michigan on 23 December 2011,

M.B. was being teased by other children in the family when she

1
  A pseudonym will be used to protect the privacy and identity of
the minor and her minor sibling.
                                     -3-
became upset and retreated to the bathroom.         When Angela went in

to check on her, M.B. revealed to Angela that “[s]ometimes dad

takes his boy parts and he touches my girl parts.”              M.B. then

said, “[defendant] told me that if I did not let him do it to

me, that now that [C.B.] was getting older he was going to do it

to her.”    M.B. told Angela, and later testified at trial, that

this abuse had been occurring since she was about six years old.

The next morning, Angela took M.B. to the local hospital for an

examination.

    At     the   hospital,   M.B.    was   questioned   by   Trooper   Ruth

Osborne (“Trooper Osborne”) of the Michigan State Police.              M.B.

told Trooper Osborne that defendant would put “his boy parts”

“on [M.B.’s] girl parts.”           When asked for clarification, M.B.

later stated to Trooper Osborne that defendant would put his

“boy parts” inside her.       M.B. stated during the interview that

defendant would touch her on her private parts with his hand,

his “boy part,” and his electric toothbrush.            A sexual assault

examination was performed on M.B. during this hospital visit,

however the prosecution was not able to present this evidence

because the swabs were accidentally thrown away before being

examined by the North Carolina State Bureau of Investigation.
                                       -4-
      The Michigan State Police contacted Detective Dottie Parker

(“Detective Parker”) of the Henderson County Sheriff’s Office,

and a North Carolina investigation began.                   Defendant consented

to   an   interview    with   Detective      Parker    on    28     December       2011.

During this interview, defendant admitted that he had rubbed his

penis on M.B.’s vagina, performed oral sex on M.B., and put a

vibrating     toothbrush      on    her   vagina.            However,        defendant

repeatedly    denied     ever      “penetrating”      M.B.        with    either     his

finger, toothbrush, or penis.

      Defendant was arrested following the interview.                          He was

indicted on 26 March 2012 on three counts of first degree rape,

alleged to have occurred between June 2011 and December 2011,

and three counts of first degree sex offense, alleged to have

occurred between June 2007 and June 2010.

      The defense made a pretrial motion to continue on the eve

of   trial,   claiming    that     defense   counsel        had    learned     of   the

psychological evaluations completed on defendant, Angela, and

M.B. the day before trial was scheduled to begin.                          During the

motion hearing, the defense asserted that the relevance in these

evaluations lay in (1) the impeachment of M.B. through purported

prior     inconsistent     statements,       and      (2)    the         psychological

profiles of M.B. and defendant.           The motion was denied.
                                           -5-
    At trial, M.B. testified that during the time period when

she and C.B. lived with defendant and his girlfriend from June

to December 2011, defendant would oftentimes come into the small

bedroom    M.B.   shared      with   C.B.    and     would    touch    M.B.    on    her

“private parts” and chest.             M.B. stated that this happened “a

lot,” not just once or twice.                    M.B. testified that defendant

performed oral sex on her “a lot,” sometimes taking her into his

bedroom to perform these acts.               M.B. also stated that defendant

placed his fingers and electric toothbrush inside her vagina “a

couple times.”        M.B. further testified that defendant put his

penis in her vagina “a couple times.”                    M.B. did not remember

exactly how many times defendant put his penis inside her, but

she testified that it happened “more than one time.”                                M.B.

testified      that   she    did     not    tell     anyone    about    this    abuse

initially because she was afraid “[defendant] would hurt me.”

        Defendant presented no evidence, but moved to dismiss all

charges at the close of the State’s evidence and renewed the

motion before the case was submitted to the jury.                         Defendant

argued in part that one of the charges for first degree rape

should be dismissed because the only evidence presented by the

State     to   support      those    charges       was   M.B.’s   testimony         that

defendant inserted his penis into her vagina “a couple” times.
                                   -6-
Both motions were denied.        The jury convicted defendant of all

charges.     Defendant    was    sentenced     to   221    to    275    months

imprisonment for each of the three charges of first degree rape

and one count of first degree sex offense, all of which are to

be served concurrently.         He was also sentenced to 221 to 275

months imprisonment for the remaining two counts of first degree

sex offense, which are to be served consecutively.                    Thus, in

total, defendant was sentenced to 663 to 825 months of active

imprisonment.

                                Discussion

                         I. Motion to Dismiss

    Defendant first argues that the trial court erred when it

denied defendant’s motion to dismiss with respect to one count

of first degree rape.    We agree.

    “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).     To defeat a motion to dismiss, the State

must present “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.”

State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000)

(citations   omitted).    “Substantial       evidence     is   such    relevant
                                       -7-
evidence    as   a   reasonable      mind    might   accept   as   adequate     to

support a conclusion.”         State v. Denny, 361 N.C. 662, 664-665,

652   S.E.2d     212,    213      (2007)      (quotation      marks     omitted).

“Generally, a jury may find a defendant guilty of an offense

based solely on the testimony of one witness.” State v. Combs,

__ N.C. App. __, __, 739 S.E.2d 584, 586, disc. review denied,

__ N.C. __, 743 S.E.2d 220 (2013).

      In considering a motion to dismiss, the trial court must

look at the evidence in the light most favorable to the State,

and the State is entitled to every reasonable inference drawn

from that evidence.       Denny, 361 N.C. at 665, 652 S.E.2d at 213.

However,    if   the    evidence     is     “sufficient    only    to   raise    a

suspicion   or   conjecture     as    to    either   the   commission     of    the

offense or the identity of the defendant as the perpetrator, the

motion to dismiss must be allowed.”              State v. Malloy, 309 N.C.

176, 179, 305 S.E.2d 718, 720 (1983).

      “A person is guilty of rape in the first degree if the

person engages in vaginal intercourse . . . with a victim who is

a child under the age of 13 years and the defendant is at least

12 years old and is at least four years older than the victim.”

N.C. Gen. Stat. § 14-27.2(a)(1) (2013).               Our Supreme Court has

held that “intercourse” means “the slightest penetration of the
                                           -8-
sexual organ of the female by the sexual organ of the male.”

State v. Murry, 277 N.C. 197, 203, 176 S.E.2d 738, 742 (1970).

    Here, M.B. explicitly testified at trial that defendant put

his penis into her vagina.               She told Trooper Osborne that she

“didn’t know what he was doing,” but defendant said that it was

“just sex.”     M.B. testified that the first time defendant put

his penis into her vagina, it caused her pain because she “never

did it before.”         When asked how many times defendant put his

penis   into   her    vagina,       M.B.    said    “a   couple,”    and     that   it

happened “more than once,” but could not remember exactly how

many times it occurred.

    Defendant        and   the    State     are    in    agreement    that    M.B.’s

testimony supported two charges of first degree rape.                        Indeed,

M.B. testified that defendant inserted his penis into her vagina

“more   than   once,”      and   under     any    definition   of    the   term,    “a

couple” indicates more than one.                   However, defendant contends

that since M.B. testified that defendant inserted his penis into

her vagina “a couple” of times, without identifying more than

two acts of penetration, the State failed to present substantial

evidence of three counts of rape.                We agree.

    The    dissent         relies     on     Detective       Parker’s      testimony

regarding her post-interview report to reach the conclusion that
                                         -9-
the   State    presented       substantial     evidence   of   three    counts   of

rape.    In the report, Detective Parker indicated that defendant

admitted to having intercourse with M.B. three times.                   We do not

believe that Detective Parker’s conclusion regarding defendant’s

statements     amounts       to   substantial     evidence     supporting   three

charges of first degree rape.            Defendant openly conceded that he

committed sexual acts with M.B., such as rubbing his penis,

hands, and a vibrating toothbrush on her vagina and performing

oral sex on her.        Thus, when asked by Detective Parker if he had

“sex” with M.B. about three times when she lived with him in

North    Carolina,      he    answered    in   the   affirmative.        However,

defendant did not admit to penetrating M.B.’s vagina with his

penis.     Detective         Parker’s   testimony    revealed    that   defendant

seemed confused about what her definition of “sex” was:

              Q: Do you recall Mr. Blow ever telling you
              in his – from his mouth that “I’ve had sex
              with [M.B.] three times”?

              A: I would ask him how many times and he
              said “about once every three months.”

              . . .

              Q: Okay. And from your calculation from that
              to him in the video you indicate you believe
              that was about three times?

              A: Yes.

              Q: And you got him – when you said that he
                    -10-
agreed with you.

A: Yes.

Q: He said okay. And there was a point later
in the video, a little over an hour into
your interview with him . . . that Mr. Blow
indicated to you that – he says “you keep
saying that I put my penis in her,” but he
tells you that that didn’t happen, and you
explain to him, “well, that’s what sex is”?

A: Uh-huh.

Q: . . . It may be difficult, but I’m –
because I’m referring to a specific point
where near the end, before you go out the
second time, for about a 12- to 14- minute
period you and he are discussing what sex
is.

A: Uh-huh.

Q: Do you recall that point?

A: I do recall.

Q: Okay. And – and at that point he is
telling you again that he did not put his
penis inside of her, that [it] was on her?

A: Uh-huh.

Q: And that – and in fact, actually, I think
you made a point of it yesterday in your
direct that he kept saying “on” not “in”?

A: Yes.

Q: He said that a lot?

A: He did.
                               -11-
Thus, defendant’s admission to three instances of “sex” with

M.B. does not equate to an admission of vaginal intercourse. He

openly admitted to performing oral sex on M.B., among other

sexual acts, but vehemently denied penetrating her vagina with

his penis.

    Furthermore,   Detective   Parker   herself   conceded   on   cross

examination that defendant later clarified his statements and

denied penetrating M.B. with his penis.     Specifically, Detective

Parker testified as follows:

         Q: You indicate in your report that Mr. Blow
         admitted to actually having intercourse with
         [M.B.]; is that right?

         A: Yes.

         Q: Do you recall that Mr. Blow actually told
         you that if there had been changes to [M.B.]
         that   any  penetration   would  have   been
         accidental?

         A: I recall him saying that, yes.

         Q: Okay. And you recall him telling you
         throughout the interview that he had never
         put anything, I think his words were, “I
         never stuck anything in [M.B.]”?

         A: Yes.

         Q: He told you he never put his finger in
         [M.B.]?

         A: Yes.

         Q: He told you that he had never put the
                                  -12-
          toothbrush in [M.B.]; is that right?

          A: Yes.

          Q: He told you that he never put his penis
          in [M.B.]?

          A: Yes.

          Q: And he told you that, would it be fair to
          say, about ten times?

          A: Sure.

    Given the context of Detective Parker’s testimony, we do

not believe that       her assertion in her report that defendant

admitted to having sex with M.B. three times was a reasonable

account of defendant’s statements.       This may explain the State’s

passing mention of this argument in its brief on appeal.2         Even

giving   the   State     every   reasonable   inference,   defendant’s

admission to multiple acts of sexual abuse, but adamant denial

of penetrating M.B.’s vagina with his penis, does not amount to

evidence that a “reasonable mind might accept as adequate to

support” the conclusion that defendant inserted his penis into




2
  Specifically, the entirety of the State’s argument on this
issue is the following: “The State also submitted evidence of
Defendant’s extrajudicial admission to an interviewing office
[sic] to having had sex with the child about once every three
months over the nine month period she resided in his house since
her move in April 2010.    Or, as he acceded, according to his
previous estimation, ‘about three times.’”
                                      -13-
M.B.’s vagina on three separate occasions.               Denny, 361 N.C. at

664-665, 652 S.E.2d at 213.

      The State therefore relies on the definition of “a couple”

to argue that it presented substantial evidence of three counts

of   first   degree     rape.   As    the    State   notes,    Merriam-Webster

Dictionary provides several definitions for the term “couple,”

one of which being “an indefinite small number” that may be used

interchangeably with the term “few.”                 Additionally, defendant

points us towards other sources indicating that “a couple” can

also be defined as “two individuals of the same sort considered

together”; “two similar things”; “two of the same species or

kind, near in place or considered together”; and “a pair.”3

      However, we need not determine whether “a couple” means

“two” or “more than two” of something to rule on this matter.

Instead, we agree with defendant’s contention that the ambiguous

nature of the term “a couple” causes M.B.’s testimony to raise

no   more    than   a   suspicion    or    conjecture   that   more   than   two

instances of rape occurred.               If we agree with the State that



3
   Although not a controlling source of authority on this
distinction, we find the following anecdote indicative of the
common usage of the term “a couple.”     When a father asked his
four-year-old daughter if he could take “a couple” of french
fries from her plate, the daughter said yes.        But when the
father took four french fries, the little girl took back two of
them and stated emphatically, “A couple means two!”
                                      -14-
testimony    of     “a   couple”    instances     of   conduct   amounts    to

substantial evidence supporting “an indefinite small number” of

charges, we open the door to speculation as to how many charges

can fit within those bounds.          Using this logic, the State could

potentially charge a defendant with four or five crimes just as

it   could   with   three,    based   only   on   an   allegation   that   the

criminal conduct happened “a couple” of times. We believe that

this is the type of “speculation” and “conjecture,” State v.

Brown, 162 N.C. App. 333, 338, 590 S.E.2d 433, 437 (2004), that

cannot defeat a motion to dismiss. See State v. McDowell, 217

N.C. App. 634, 636, 720 S.E.2d 423, 424 (2011) (“A motion to

dismiss should be granted . . . when the facts and circumstances

warranted by the evidence do no more than raise a suspicion of

guilt or conjecture since there would still remain a reasonable

doubt as to defendant’s guilt.”).

      Accordingly,       although   “the   unsupported   testimony   of    the

prosecutrix in a prosecution for rape has been held in many

cases sufficient to require submission of the case to the jury,”

State v. Carter, 198 N.C. App. 297, 306, 679 S.E.2d 457, 462

(2009), M.B.’s ambiguous characterization of the number of times

defendant inserted his penis into her vagina as “a couple” was
                                                -15-
insufficient        to       charge    defendant          with     three      counts    of    first

degree rape.

                                   II. Motion to Continue

      Defendant          next      contends       that      the     trial       court   erred     in

denying     defendant’s            motion       to    continue,          as   defense      counsel

learned of a potential defense witness on the eve of trial.                                        We

disagree.

      Ordinarily,            the      ruling         on   a       motion      to    continue       is

“addressed to the discretion of the trial court,” and it is not

subject to review absent “a gross abuse of that discretion.”

State v. Taylor, 354 N.C. 28, 33, 550 S.E.2d 141, 146 (2001).

However,       “when     a    motion       to    continue         raises      a    constitutional

issue, the trial court’s ruling is fully reviewable on appeal.”

Id.      Even if a constitutional issue is raised, denial of a

motion    to    continue        is     grounds        for     a    new   trial      only     if   the

defendant       can      show      that    the       ruling       was    both      erroneous      and

prejudicial.           State v. Garner, 322 N.C. 591, 594, 369 S.E.2d

593, 596 (1988).

      “It      is     implicit        in    the       constitutional              [guarantee]      of

assistance of counsel . . . that an accused and his counsel

shall have a reasonable time to investigate, prepare and present

his defense.”          State v. McFadden, 292 N.C. 609, 616, 234 S.E.2d
                                       -16-
742, 747 (1977).    “However, no set length of time is guaranteed

and whether defendant is denied due process must be determined

under the circumstances of each case.”                Id.     Here, defendant

argues that he was denied this right because his defense counsel

learned of the psychological reports conducted on defendant and

M.D. on the eve of trial and did not have adequate time to

subpoena the psychologist to testify.                At the hearing on the

motion to continue, defense counsel conceded that defendant had

knowledge of these proceedings due to his participation in the

psychological    evaluations         and   that   defense    counsel   had   two

months to confer with defendant in order to prepare their case

before trial.    Based on these circumstances, McFadden, 292 N.C.

at 616, 234 S.E.2d at 747, we conclude that the two-month period

during   which   defense        counsel     could    have    learned   of    the

psychological reports had there been diligent communication with

his   client   amounted    to    a     “reasonable    time   to   investigate,

prepare and present his defense.” McFadden, 292 N.C. at 616, 234

S.E.2d at 747.     Thus, we find no error in the trial court’s

denial of defendant’s motion to continue.

      Additionally, even if the denial of the motion to continue

was erroneous, defendant has failed to demonstrate prejudice.

See Garner, 322 N.C. at 594, 369 S.E.2d at 596. During the
                                       -17-
cross-examination      of     M.B.,    defense        counsel    was     allowed     to

introduce relevant parts of the psychologist’s written report.

Specifically,     defense     counsel    had     M.B.    read     to    the   jury   a

portion of her psychological evaluation which stated, “[M.B.]

denies being physically or sexually abused. She denies being

afraid of either parent or any other relatives.”                       After reading

this part of the report, M.B. testified that she had very little

recollection of the psychological examination and did not have

any recollection of denying sexual abuse by defendant.                          Thus,

because    defendant    was    still     able     to    use     the    psychological

reports at trial to impeach M.B.’s testimony, the denial of the

motion to continue did not prevent defendant from “present[ing]

his defense,”     Carter, 184 N.C. App. at 712, 646 S.E.2d at 851,

and he has failed to demonstrate the prejudice required to be

granted a new trial.

    Accordingly, we find no error in the trial court’s denial

of defendant’s motion to continue.

                                    Conclusion

    For     the   foregoing         reasons,     we    vacate     the     underlying

judgment   entered     for    the    third     count    of    first    degree   rape,

number 11 CRS 55728.           We find no error in the trial court’s

denial of defendant’s motion to continue.                    Because the sentences
                                 -18-
entered on the three judgments for first degree rape are to be

served concurrently, this decision does not alter defendant’s

sentence, and we need not remand the matter to the trial court.



    JUDGMENT IN NUMBER 11 CRS 55729 VACATED.

    NO ERROR AS TO REMAINING JUDGMENTS.

    Judge MCCULLOUGH concurs.

    Judge ERVIN concurs     in    part   and   dissents   in   part   by
    separate opinion.
                                      NO. COA14-133
                         NORTH CAROLINA COURT OF APPEALS
                               Filed:    4 November 2014
STATE OF NORTH CAROLINA

                                                Henderson County
    v.
                                                Nos. 11 CRS 55726-31

CHARLES STEVENS BLOW, JR.



    ERVIN, Judge, concurring in part and dissenting in part.



    Although I concur in the Court’s determination that the

trial    court    did    not    err     by   denying    Defendant’s      continuance

motion, I am unable to join the portion of the Court’s opinion

that concludes that the trial court erred by denying Defendant’s

motion to dismiss one of the three first degree rape charges

that had been lodged against him.               After carefully reviewing the

record    in   light     of    the    applicable       law,   I    am   compelled   to

conclude, contrary to the result reached by my colleagues, that

the State presented substantial evidence that was sufficient, if

believed, to support the jury’s decision to convict Defendant of

three counts of first degree rape.                     As a result, although I

concur in the remainder of the Court’s opinion, I respectfully

dissent    from     my     colleagues’        decision        to   vacate    one    of

Defendant’s first degree rape convictions for insufficiency of

the evidence.
                                           -2-
      In   the    course    of     concluding    that    the     State      failed   to

present sufficient evidence to support the jury’s decision to

convict Defendant of three counts of rape, the Court focuses on

the   testimony     of   the     alleged    victim,     M.B.,    who     stated    that

Defendant put his penis into her vagina “a couple times.”                            In

the course of clarifying this portion of her testimony, M.B.

further stated that, although Defendant penetrated her vagina

with his penis on more than one occasion, she could not remember

exactly    how    many     times    Defendant     engaged       in   this    unlawful

conduct.       Although I agree with my colleagues that this portion

of M.B.’s testimony, viewed in isolation, does not suffice to

support    a    determination       that    Defendant    raped       M.B.    on   three

different occasions, the record also contains the testimony of

Detective      Dottie    Parker     of     the   Henderson      County      Sheriff’s

Office, who testified that, in the course of discussing M.B.’s

allegations with her, Defendant admitted having “had sex” with

M.B. about once every three months over a seven month period and

that he had engaged in this conduct “about three times.”                          Given

that, “when considering a motion to dismiss, the evidence must

be viewed in the light most favorable to the State, giving the

State the benefit of ‘every reasonable inference to be drawn

therefrom,’” State v. Denny, 361 N.C. 662, 665, 652 S.E.2d 212,
                                 -3-
213 (2007) (quoting State v. Lowery, 309 N.C. 763, 766, 309

S.E.2d 232, 236 (1983)), I believe that Defendant’s admission

that he had “had sex” with M.B. “about three times,” when taken

in the light most favorable to the State, sufficiently supports

the trial court’s decision to allow the jury to consider the

issue of Defendant’s guilt of three counts of first degree rape

and dissent from my colleagues’ decision to the contrary.

    In rejecting the analysis set out in this concurring and

dissenting   opinion,   the   Court    relies    upon    two    essential

arguments.     First,   my    colleagues    appear      to    argue   that

Defendant’s statement that he had “had sex” with M.B. did not

constitute an admission that Defendant had vaginally penetrated

her with his penis on those occasions.          However, when read in

context, I believe that Defendant’s statements, as recounted by

Detective    Parker,    are    reasonably       susceptible      to    the

interpretation, which is consistent with ordinary parlance, that

Defendant used the term “having sex” as a shorthand reference to

engaging in vaginal intercourse.       Secondly, my colleagues argue

that various statements that Defendant made during the remainder

of his conversation with Detective Parker establish that he did

not acknowledge having vaginal intercourse with M.B. more than

twice.   Although Defendant made a number of different statements
                                          -4-
during his conversation with Detective Parker, I believe that

the     extent,   if     any,        to   which    his      subsequent    comments

contradicted,     rather      than    explained,    his     admission    to   having

“had sex” with M.B. on three different occasions was a question

for the jury rather than a matter to be resolved by the trial

court    in   addressing   Defendant’s          dismissal    motion.     State    v.

Wagoner, 249 N.C. 637, 639, 107 S.E.2d 83, 85 (1959) (stating

that “[t]he contradictory statements made by the defendant to

the investigating officer do not cancel out the testimony given

in the trial”).         As a result, given that I am unable to agree

with my colleagues that the record fails to contain sufficient

evidence to support all three of Defendant’s rape convictions

and   would    uphold   the     denial    of    Defendant’s    dismissal      motion

relating to Defendant’s third rape conviction, I concur in the

Court’s decision in part and dissent from that decision in part.
