Volume 102 — North Carolina Court of Appeals Reports

1. Rape and Allied Offenses 5 (NCI3d) — sexual offense — fellatio on minor child — sufficiency of evidence The State's evidence was sufficient to support defendant's conviction of first degree sexual offense on the ground that he performed fellatio on the seven-year-old victim where the victim testified that defendant sucked on his "middle part" or "middle section" which he indicated was his crotch area; the victim testified that defendant "stuck his middle section in my butt" and demonstrated that he meant his buttocks area; the victim's mother testified that her son told her that defendant had "sucked his thing a bunch of times" and had "done it to him in the butt"; and an investigating officer testified that the victim told him that defendant "had performed oral sex on him." Am Jur 2d, Sodomy 45. 2. Criminal Law 89.5 (NCI3d) — testimony admissible for corroboration An officer's testimony that a child victim told him that defendant "had performed oral sex on him" was properly admitted to corroborate testimony by the victim that defendant sucked on his "middle part" or "middle section," which he indicated was his crotch area, and testimony by the victim's mother that the victim said defendant sucked his "thing." Am Jur 2d, Infants 17.5; Sodomy 70, 71.<page_number>Page 30</page_number> <block_quote> Modern status of rule regarding necessity for corroboration of victim's testimony in prosecution for sexual offense. 31 ALR4th 120.</block_quote> 3. Criminal Law 34, 34.7 (NCI3d) — cross-examination of defendant — catalogue of condoms — sexual devices and books A defendant charged with first degree sexual offense against a minor child was properly cross-examined about a catalogue of condoms found in his home to show proof of intent, preparation, plan, knowledge and absence of mistake. However, the trial court erred in permitting defendant to be cross-examined about photographs depicting him in women's clothing, a dildo, lubricants, vibrators, and books entitled Sexual Intercourse and The Sex Book which were found in his home, but objection to this evidence was waived by defendant's failure to object to evidence of similar import, and admission of this evidence was not plain error. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404. Am Jur 2d, Witnesses 467, 468, 492, 497. 4. Constitutional Law 374 (NCI4th); Rape and Allied Offenses 7 (NCI3d) — first degree sexual offense — life sentence not cruel and unusual punishment A sentence of life imprisonment imposed upon defendant for first degree sexual offense against a child did not constitute cruel and unusual punishment. Am Jur 2d, Criminal Law 625-627; Sodomy 97, 98.

1. Conspiracy 5.1 (NCI3d) — hearsay — statements of coconspirator — admissible The trial court did not err in a narcotics prosecution by admitting certain out-of-court statements of a coconspirator where the State's evidence tended to demonstrate that defendant was parked on the side of a dirt road in a rural area at approximately 11:00 p.m.; there were no houses or buildings within .1 to .2 miles of this location; the coconspirator, Taylor, pulled in and parked behind defendant's car accompanied by two undercover officers; Taylor left his car and spoke with defendant; defendant gestured in a hitchhiking motion toward the side of the road between the two cars; Taylor then climbed the ditch embankment in the general area defendant had indicated and retrieved a large bag containing fifteen pounds of marijuana; and defendant fled when undercover officers attempted to arrest him. The evidence is sufficient to establish a prima facie conspiracy between the witness and defendant. Am Jur 2d, Conspiracy 46, 48. 2. Conspiracy 36 (NCI4th); Narcotics 4.3 (NCI3d) — narcotics — conspiracy and constructive possession — evidence sufficient The trial court did not err by denying defendant's motion to dismiss for insufficient evidence charges of conspiracies to sell and deliver marijuana, and possession with intent to sell or deliver marijuana. The prima facie evidence of conspiracy, coupled with the coconspirator's statements, constituted substantial evidence of the two conspiracy charges, and there was sufficient evidence of constructive possession to go to the jury in that defendant was parked alone on the side of an isolated rural dirt road after 11:00 p.m.; he conversed with an individual engaged in a drug transaction; pointed in a direction in which fifteen pounds of marijuana were located; and fled when police officers attempted to arrest him. Am Jur 2d, Conspiracy 40, 46, 48.<page_number>Page 542</page_number> 3. Narcotics 3.1 (NCI3d) — marijuana — chain of custody — exhibits admissible The trial court did not abuse its discretion in a narcotics prosecution by admitting two bags of marijuana where two officers identified the bags by their appearance and the attached evidence tags; each of the bags had a slit which had been sealed with a piece of tape containing an SBI chemist's initials and case numbers; small holes had been poked in the bags' sides, but otherwise the bags and their contents were unchanged; the chemical analysis was not introduced due to the unavailability of the chemist; and three officers testified that, in their opinion, the substance seized during the arrest was marijuana. A weak link in a chain of custody relates only to the weight to be given the evidence and not to its admissibility, and it has been recognized that a police officer's experience and training may be competent to qualify him as an expert in identifying marijuana. Am Jur 2d, Evidence 774, 826.