                                  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
                                      -2-
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
                                               -3-
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
                                          -4-
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
                                                -5-
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.
                                      -6-
                                 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,
                                        -10-
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.
