State v. McMillian, 101 N.C. App. 425 (1991)

Jan. 15, 1991 · North Carolina Court of Appeals · No. 9012SC340

101 N.C. App. 425

STATE OF NORTH CAROLINA v. JOHN A. McMILLIAN

No. 9012SC340

(Filed 15 January 1991)

Appeal and Error § 362 (NCI4th)— indecent liberties — failure to include judgment in record —appeal dismissed

An appeal from a conviction for taking indecent liberties with a minor was dismissed where defendant failed to include the judgment as a part of the record on appeal and also failed to include such judgment in his appellate entries in giving his notice of appeal.

Am Jur 2d, Appeal and Error §§ 401, 402.

APPEAL by defendant from judgment entered 4 December 1989 in CUMBERLAND County Superior Court by Judge D. B. Herring, Jr. Heard in the Court of Appeals 24 October 1990.

On 28 November 1989 defendant was tried in Cumberland County Superior Court, Criminal Session, for first degree rape, first degree sexual offense and taking indecent liberties with his girlfriend’s nine-year-old granddaughter. Defendant pleaded not guilty to all charges.

The evidence tended to show that defendant lived for the past 11 years with the victim’s grandmother, Barbara Johnson. The victim had lived with defendant and Barbara Johnson from birth until 1987. Through interviews and trial testimony, the victim reported and described the various occasions defendant performed sexual intercourse and “messed” with her since she was five or six years old. The victim described a particular occasion at the drive-in movies where defendant unzipped his pants and told her to suck his penis while the two were inside defendant’s car. Defendant told her to take one leg out of her pants and panties and she complied. By touching the victim’s back, defendant pushed her head down but she kept her mouth closed. On this occasion her nose started to bleed.

The jury convicted defendant on two counts of first degree rape, one count of attempted first degree sexual offense and one count of taking indecent liberties with a minor. Defendant appeals.

Attorney General Lacy H. Thornburg, by Associate Attorney General Valerie B. Spalding, for the State.

James R. Parish for defendant-appellant.

WELLS, Judge.

I. Rape and Attempted First-Degree Sex Offense Convictions

Defendant was convicted of two counts of first degree rape and one count of attempted first degree sex offense. In his appeal, defendant has abandoned his challenge to the sufficiency of the evidence to support these convictions.

Under a separate assignment of error, defendant has challenged the testimony of one of the State’s witnesses. We find defendant’s argument to be entirely without merit and overrule that assignment of error.

II. Indecent Liberties Conviction

The North Carolina Rules of Appellate Procedure, Rule 4(b) states the requirements for giving proper notice of appeal in criminal cases:

Content of Notice of Appeal. The notice of appeal required to be filed and served by subdivision (a)(2) of this rule shall . . . designate the judgment or order from which appeal is taken. . . .

Appellate review is solely upon the record on appeal and the record in criminal actions must include a copy of the verdict and the judgment. North Carolina Rules of Appellate Procedure, Rule 9(a)(3)g. Defendant gave proper notice of appeal from the judgments entered in 88CRS20907-first degree rape, 88CRS20909-attempted first degree sexual offense, and 88CRS20910-first degree rape.

Consistent with an indictment, the jury returned a verdict of guilty for the offense of taking indecent liberties with children in violation of N.C. Gen. Stat. § 14-202.1(a)(l). Defendant attempts to argue in his brief that this judgment was in error. However, defendant failed to include such judgment for this offense as part of the record on appeal. In giving his notice of appeal, defendant also failed to include such judgment in his appellate entries. Because defendant has not perfected his appeal as to his conviction of taking indecent liberties, this Court is without jurisdiction to hear this appeal. State v. Gilliam, 33 N.C. App. 490, 235 S.E.2d 421 (1977).

As to the convictions for rape and attempted sex offense,

No error.

As to the purported appeal from the conviction of indecent liberties,

Appeal dismissed.

Judges COZORT and LEWIS concur.