Heller Cleveland by HC120912211554

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									No. COA04-1551                 JUDICIAL DISTRICT TWENTY-
NINE

              NORTH CAROLINA COURT OF APPEALS

               *******************************
STATE OF NORTH CAROLINA        )
                               ) From Buncombe County
          V.                   )    01-CRS-52648
                               )    02-CRS-7051-7057
CLEVELAND WESLEY HELLER        )    04-CRS-2120, 2122


           *************************************

                 DEFENDANT-APPELLANT’S BRIEF


          **************************************
                            INDEX

TABLE OF CASES AND AUTHORITIES………………………………...............ii

QUESTIONS PRESENTED………………………………..........................1

JURISDICTIONAL STATEMENT……………............................1

STATEMENT OF THE CASE.………...……...........................2

STATEMENT OF FACTS………………………………...........................2

ARGUMENTS:

I.    THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT
      ALLOWING DEFENDANT’S COUNSEL TO QUESTION THE
      PROSECUTING WITNESS ABOUT PRIOR ALLEGATIONS OF
      RAPE MADE BY HER AGAINST ANOTHER MAN IN KENTUCKY
      IN 1997 WHERE THE ALLEGATIONS WERE SIMILAR TO
      THOSE ON TRIAL, AND EVIDENCE OF THEM WAS PROBABTIVE
      OF THE ISSUE OF CONSENT AS RELATED TO THE
      CHARGES OF RAPE, KIDNAPPING AND ROBBERY……………………………..14

II.   THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
      DENYING DEFENDANT’S MOTIONS TO DISMISS THE CHARGE
      OF POSSESSION OF COCAINE AT THE CLOSE OF THE
      STATE‘S EVIDENCE, AND AT THE CLOSE OF ALL EVIDENCE,
      AND IN DENYING DEFENDANT’S MOTION TO SET ASIDE THE
      VERDICT OF GUILTY OF POSSESSION OF COCAINE BECAUSE,
      LOOKING AT THE EVIDENCE IN THE BEST LIGHT TO THE
      STATE, THE EVIDENCE DID NOT SUPPORT THE ALLEGATIONS
      THAT THE DEFENDANT POSSESSED COCAINE………………………………....18

CONCLUSION………………………………............................... …….23

CERTIFICATE OF SERVICE……………………………….......................24
                            -ii-

               TABLE OF CASES AND AUTHORITIES

State v. Brown, 310 N.C. 563, 313 S.E.2d 585
(1984)……………….20

State v. Earnhardt, 307 N.C. 62, 296 S.E.2d
649(1982)………..20

State v. Harris, ___N.C. App.__, __S.E.2d__(2004-
437)………..18

State v. Morgan, 108 N.C. App. 673, 425 S.E.2d
1(1993)……..21

State v. Powell, 299 N.C. 95, 261 S.E.2d
114(1980)………………..20

State v. Pratt, 306 N.C. 673, 295 S.E.2d
462(1982)………………..20

State v. Setzer, ___N.C. App.___, ___S.E.2d___
(2004)………..20

State v. Shoffner, 62 N.C. App. 245, 302 S.E.2d

830(1983)…16

State v. T.D.R., 347 N.C. 489, 495 S.E.2d

700(1998)……………..21

White v. White, 312 N.C. 770, 324 S.E.2d

829(1985)………………..21

N.C.G.S. 8C, Rule

403.…………………………….........................15
N.C.G.S. § 15A-1441.……………………………............................1

N.C.G.S. § 15A-1442(4)(d)…………………………….......................1

N.C.G.S.§ 15A-1442(6) ……………………………….........................1

N.C.G.S.§ 15A-1443.…………………………….............................1

N.C.G.S.§15A-1443(a)……………………………...........................16

N.C.G.S. §15A-1444(a)……………………………...........................1




No. COA04-1551                 JUDICIAL DISTRICT TWENTY-
NINE

              NORTH CAROLINA COURT OF APPEALS

               *******************************
STATE OF NORTH CAROLINA        )
                               ) From Buncombe County
          V.                   )    01-CRS-52648
                               )    02-CRS-7051-7057
CLEVELAND WESLEY HELLER        )    04-CRS-2120, 2122


           *************************************

                 DEFENDANT-APPELLANT’S BRIEF


           **************************************

                     QUESTIONS PRESENTED

I.   DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY NOT
     ALLOWING DEFENDANT’S COUNSEL TO QUESTION THE
      PROSECUTING WITNESS ABOUT PRIOR ALLEGATIONS OF RAPE
      MADE BY HER AGAINST ANOTHER MAN IN KENTUCKY IN 1997
      WHERE THE ALLEGATIONS WERE SIMILAR TO THOSE ON TRIAL,
      AND EVIDENCE OF THEM WAS PROBABTIVE OF THE ISSUE OF
      CONSENT AS RELATED TO THE CHARGES OF RAPE, KIDNAPPING
      AND ROBBERY?

II.  DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY DENYING
     DEFENDANT’S MOTIONS TO DISMISS THE CHARGE OF
POSSESSION     OF COCAINE AT THE CLOSE OF THE STATE‘S
EVIDENCE, AND AT     THE CLOSE OF ALL EVIDENCE, AND IN
DENYING DEFENDANT’S       MOTION TO SET ASIDE THE VERDICT OF
GUILTY OF POSSESSION      OF COCAINE BECAUSE, LOOKING AT THE
EVIDENCE IN THE BEST      LIGHT TO THE STATE, THE EVIDENCE
DID NOT SUPPORT THE       ALLEGATIONS THAT THE DEFENDANT
POSSESSED COCAINE?

                   JURISDICTIONAL STATEMENT

      Jurisdiction in the North Carolina Court of Appeals

for this case is based upon G.S. § 15A-1441, G.S. § 15A-

1442(4)(d), G.S.§ 15A-1442(6), G.S.§ 15A-1443, and G.S.

§15A-1444(a).

                             -2-

                    STATEMENT OF THE CASE

      From a jury verdict and rulings of the trial court

rendered in the Superior Court Division of the General

Court Of Justice for Buncombe County, North Carolina during

the April 12, 2004 session of said court, the Honorable

Dennis J. Winner, presiding, Defendant Cleveland Wesley

Heller appeals convictions of two(2)counts of common law

robbery, one(1)count of false imprisonment, one(1)count of

attempted second degree rape, admissions of habitual felon
status, and the sentences imposed by the trial court.

Defendant Heller gave timely and adequate notice of appeal,

was found to be indigent at the time of his notice of

appeal, and the Appellate Defender was appointed to perfect

his appeal. Present counsel was appointed in the matter on

June 2, 2004. The record on appeal was filed with the North

Carolina Court Of Appeals on November 22, 2004, and

docketed on December 3, 2004. The printed record on appeal

was mailed on December 15, 2004. Appellant was granted a

thirty(30)day extension to file his brief on January 13,

2005.

                   STATEMENT OF THE FACTS

    On the evening of February 25, 2001, Susan Marie Clark

(Clark) visited a friend, Angie Connor, at Connor’s

apartment residence on Starnes Avenue in Asheville, North

Carolina. While visiting, the two friends smoked a small

                            -3-

amount of marijuana. No alcohol was consumed by either.

When Clark left the apartment, she was slightly impaired.

According to Clark‘S version of events, as she approached

her automobile, a white Honda Civic hatchback parked on

Starnes Avenue, she saw the Defendant, Heller, across the

street. According to Clark, Heller spoke to her and asked

for a cigarette. When told by Clark that she had none,
Heller asked for a ride. Clark refused, and at that moment

a car passed between her and Heller. Clark briefly lost

sight of Heller, but when the car had passed, she saw him

rushing toward her from across the street. According to

Clark, Heller pushed her into her car, then jumped in with

her. She began to scream, but Heller covered her mouth and

placed a sharp, cold object against her neck. Clark later

identified this as a crack pipe. According to Clark, Heller

told her to stop screaming or he would cut her. Clark quit

screaming. Heller then asked her to get into the passenger

seat, put on her seatbelt, lock the door, and put the key

into the ignition. Before the car was started, and within

five minutes of getting into Clark’s car, Heller handed

Clark the crack pipe that she said was placed by him

against her neck, and asked her to put it into her bra. She

took the pipe and, because she was not wearing a bra, stuck

it into the pocket of a shirt beneath her sweater. The car

was started, and

                            -4-

Heller drove the car with Clark in it through the streets

of Asheville for about two(2)hours. Heller told Clark that

he did not want to hurt her, just wanted a ride, and he

would let her go. He asked her what her name was, and she

told him “Sarah“.(Vol. I, T. pp. 17-23, 74-75, Vol. II, T.
p. 101)

    After driving around Asheville for about two(2)hours,

Heller drove the car out of the city to Interstate Forty(I-

40). While Heller drove, Clark rolled cigarettes for him

with tobacco out of cigarette butts, and newspaper. Heller

drove for about another hour on I-40 before he exited, and

drove on to a paved road that soon became a gravel road,

then a dirt road. There were only a few houses around.

Heller drove off of the road into a field, down a hill,

turned the car around, stopped, and turned off the engine.

Heller asked Clark if he could trust her because he wanted

to get out of the car and urinate. Clark said yes. Heller

stepped out, urinated, got back in, and pulled out a

cellophane wrapper with what Clark assumed was crack

cocaine in it. Heller asked Clark to give him the crack

pipe he had given her earlier, and she did. Heller then

smoked the substance from the cellophane wrapper in the

pipe. Clark, claiming she had never seen crack cocaine,

claimed to base her belief that what Heller had was cocaine

on pictures she had seen in college and on television.

Clark asked Heller

                            -5-

when she could go home, and when would he get out of her

car, and Heller said to relax. He leaned the driver’s seat
back, and said he was getting hot. He started taking off

layers of clothing, and told Clark to do the same. He told

her to take her sweater off, and she refused. He started

touching her leg and knee and she got nervous. Heller

insisted she get comfortable, so she reclined her seat

slightly and took off her sweater. She still had on a white

shirt. (Vol. I, T. pp. 23-26, 72, 78)

      According to Clark, Heller became more insistent and

forceful about her taking off her clothes, and touching

her. He tried to pull her pants off, and at this point,

Clark began hitting him. Heller began to hit her on the

head. He grabbed her hair. After being hit several times,

Clark quit struggling and Heller quit hitting her. She was

bleeding. She told Heller she would not have sex with him.

She was afraid he would hit her again, so she took off her

shirt and pants. Heller took off all of his clothes. (Vol.

I, T. pp. 26-27)

      Heller insisted that Clark touch his penis. Clark

refused. Heller demanded it. Clark relented, and touched

his penis briefly. Then she pulled away. After asking her

to get on top of him numerous times, Clark got on top of

Heller, and the two(2)engaged in vaginal intercourse. Clark

was

                             -6-
crying. She pretended to have an orgasm, and soon Heller

told her to get off of him. After dressing, Heller drove

the car back to I-40. (Vol. I, T. pp. 27-29)

    The two(2)rode east on I-40 to Statesville where they

exited. Heller told Clark she needed to get money out of

her bank account, so they went to an automatic teller

machine(ATM)but it was broken. They then found another ATM

in an empty shopping center. Clark got out of the car by

herself, walked to the ATM by herself, and withdrew one

hundred fifty(150)dollars. She put fifty(50)dollars under

her seat, and gave Heller the other one

hundred(100)dollars. The two(2)rode through the streets of

Statesville until they encountered a police car. Heller

pulled the car down a side street and parked. He told Clark

to drive, and she did. Shortly after, they saw

two(2)people, a man and a woman, whom Heller knew. The man

and woman joined Heller and Clark, and the man directed

them to a house outside of Statesville to buy crack

cocaine. Heller sent the man into the house three(3)times

to buy cocaine. After the third time, Heller told Clark to

leave, and she drove Heller, the woman, whose name was

“Belinda“, and herself to look for a place to smoke the

crack. After smoking crack in a shed behind a school(Vol.

I., T. p. 31), they went to get a room at an Economy Inn in
Statesville. Clark got out of the car, and

                            -7-

walked half way from the car to the hotel lobby when

Heller, according to Clark, told her to come back, took the

car keys, and registered a room. (Vol. I, T. pp. 29-31) The

clerk on duty that night, Patricia Estes, later told

Officer Barone of Statesville that a white woman matching

Clark’s description, and a black man came into the hotel

together on February 25, 2001, and registered in Room 113

as Robert Allison. Estes said no one appeared to be under

duress when they came in. (Vol. II, T. pp. 225-227)

    Inside the room, Clark, who was bleeding from her

face, went into the bathroom, but had to keep the door

open. She did not shower, but only washed blood off of her

face. When she came out of the bathroom, Heller and Belinda

had taken off their clothes and were sitting on the bed

smoking crack. Heller wanted Clark to smoke, so he would

pass the pipe to her. Clark would pretend to smoke when the

pipe came to her. Heller was insistent. Belinda told him to

leave Clark alone, that if she wanted to smoke, she would.

When the crack was smoked up, Belinda said she would leave

if they could get no more. Clark did not want to be left

alone with Heller, felt safe with Belinda there and asked

her to stay. Clark told them they could get some more
crack. All three left the motel in Clark’s car, went to an

ATM machine, withdrew one hundred fifty(150)dollars, and

bought more crack, and some

                              -8-

marijuana. They returned to the motel room where clothing

was removed by all three, and they sat on the bed smoking

crack. Heller touched both women and kissed Belinda two or

three times. (Vol. I, T. pp. 32-34, Vol. II, T. pp. 152-

153)

       Clark soon became ill, and began running back and

forth from the bathroom to vomit. Daylight came, and they

left the motel. Clark convinced Belinda to stay with them

by agreeing to pay Belinda’s electric bill. All

three(3)rode back to Asheville. Once in town, more crack

was purchased; then Heller directed Clark to drive to a

house where he got out and went to a shed behind the house.

He called Clark into the shed and asked her what she was

going to do. She said she was going home, and would not

make a big deal out of it. She and Belinda then left. As

she was driving off, Clark saw Heller running after her and

waving. She drove on. She told Belinda what had happened,

and said she was going to the police. Belinda said she

could not go to the police because she had children at

home, and warrants on her. They decided to get a bus ticket
back to Statesville for Belinda. Clark did another ATM

withdrawal in Asheville, and gave Belinda the power bill

money and an additional sixty(60)dollars for a bus ticket.

They went to the bus station but the bus for Statesville

had left, so they went to Angie Connor’s apartment, and

told Angie and her boyfriend, Brandon, what

                            -9-

had happened. Brandon took Belinda to the bus station and

Angie Connor took Clark to the local police station where

they were directed to go to a local hospital. (Vol. I, T.

pp. 34-37)

    While at the hospital, Clark saw Heller. She pointed

him out to security and police. Her friend, Angie Connor,

who had driven her to the hospital, also saw Heller.

According to Brenda Gaddis, who was working as a security

officer at the hospital, Heller was seen in the parking lot

outside the hospital, and was seen through the window to

the triage room where Clark was being examined and treated.

Gaddis and a police officer, Dawn Dowdle, approached Heller

outside of the hospital near the entrance and told him he

could not go in. Heller sat down on a bench. A utility

worker passed by, and Heller asked to borrow his knife to

cut a tag off of his sweater, which he did when the man

loaned him the knife; but he also cut his wrist with the
knife. Heller was taken into the hospital for treatment,

and Detective Scott Lunsford of the Asheville Police

Department interviewed Heller while Officer Dowdle

interviewed Clark. (Vol. I, T. p. 37, Vol. II, T. pp. 184-

185, 247-250, Vol. III, T. pp. 284-286)

    Heller was at the hospital because he had sought

admittance to a drug rehabilitation center shortly after

                            -10-

returning to Asheville, and had been turned away, and told

to go the Emergency Room at the hospital. He had gone there

by cab which the people at the rehab center helped him get.

Officer Dowdle told Heller that she would have to detain

him because he was a suspect in a kidnapping and rape case.

Heller told Dowdle that he had not raped any one, and that

the black girl who was there could tell them about it.

(Vol. III, T. pp. 297-298, 301-302)

    At the hospital, Clark was questioned by police, and a

rape kit was collected. She had stitches put into the cut

on her eyebrow. She had cuts on her cheeks, two(2)black

eyes, swelling around both eyes, and bruises on her wrists,

chest, and shoulders. (Vol. I, T. pp. 38-39) Afterwards,

Clark received two and a half(2½)years of mental health

therapy. (Vol. I, T. p. 40) Clark’s car was searched by

Asheville Police on February 26, 2001. Marijuana, a broken
crack pipe and a pair of women’s panties were located.

(Vol. II, T. pp. 252-267)

    Heller was read his Miranda rights and questioned at

the hospital on February 26, 2001 by Officer Scott

Lunsford. Heller also signed a form acknowledging he had

been informed of his rights at the Asheville Police

Department about forty-five(45)minutes later on the same

day. (Vol. III, T. pp. 340-341) According to Heller, in his

hospital interview

                            -11-

with Officer Lunsford, he had had sexual contact with

Clark, whom he referred to as “Sarah“, the white girl; but

had not been able to attain an erection because of the

crack cocaine he had smoked. Heller said that “Sarah” had

approached him when he met her, “looking to party and buy

drugs from him.” Heller stated that her face had abrasions

and cuts on it when he met her, and that he had not hit

anyone. He said that Starnes Avenue was where he had met

her; where the “hookers hang out.” He stated that she had

driven by him twice, they had talked, she wanted drugs. He

sold her what he had, and they drove out of town to smoke

it. When the crack was gone, “Sarah“ wanted more, and

Heller said that he could find some in Statesville where he

knew people. They went to Statesville, and “Sarah“ made
several ATM withdrawals. He stated that he had stayed in

the car while “Sarah“ made the withdrawals, and that she

could have left any time she wanted. He denied kidnapping

her, hitting her, or forcing her to do anything. He stated

that in Statesville they met two people he knew, one being

Belinda Bailey; and found more crack. Later, Heller went to

the “Conway“ Motel in Statesville with “Sarah“ and Belinda,

and checked in at a reduced rate under the name of Robert

Allison. The three smoked crack and marijuana for several

hours. “Sarah” got sick. They later decided to go back to

Asheville, and

                            -12-

“Sarah” wanted Belinda to go back with her. “Sarah” offered

to pay Belinda’s electric bill because she wanted to help

her. On the way back to Asheville, they stopped a few times

for gas and drinks. “Sarah” could have left whenever she

wanted but did not. After they returned to Asheville, they

rode around, bought more crack, smoked some more crack,

went to Heller’s cousin’s house, and that is where they

parted. Belinda left with “Sarah”.   (Vol. I, T. p. 35, Vol.

III, T. pp. 343-349)

    After “Sarah” and Belinda left, Heller became

depressed. He had a desire to hurt himself, and sought

mental health treatment at “Thom’s Rehab”, where the staff
sent him to the hospital in a cab. After he arrived, he

borrowed a construction worker’s knife, and while cutting

strings off of his jacket, accidentally cut himself. Heller

wanted to go back to substantiate his story. He said that

Belinda Bailey and the people at the motel could back him

up. Instead, Officer Lunsford took him to the Asheville

Police Department and questioned him more. (Vol. III, T.

pp. 349-350) He signed a Miranda rights form. (Vol. III, T.

p. 350) Heller denied kidnapping any one. He said the sex

between him and “Sarah” was consensual, but he was not able

to have sex because of the cocaine. Heller again stated

that the people in Statesville could substantiate his

story.

                             -13-

(Vol. III, T. pp. 350-351)

    During Heller’s interview at the police department,

Officer Dowdle entered the room, and advised that a warrant

for second degree rape was being issued. Heller again

denied assaulting “Sarah” or forcing her to do anything. He

repeated that her face was marked and bruised when he met

her. He then said he did not want to talk any more about

it, and the interview ended. Heller was handcuffed, served

with the warrant, and incarcerated. Lunsford found Heller

capable of communicating, and understanding. They had a
forty-five minute conversation at the hospital, and another

thirty to forty minutes in the police department interview

and on the way to the detention center. (Vol. III, T. pp.

351-354)

     On March 13, 2001, Clark took Detective Joseph Barone

of the Statesville Police Department to the field where the

alleged rape had occurred. It was located in Catawba

County, North Carolina. (Vol. II, T. pp. 218-221) On March

27, 2001, Officer Steve Lail of the Catawba County

Sheriff’s Department inspected the spot, which he later

identified as the dead end of Stagecoach Road just outside

of Claremont, North Carolina. He searched the area looking

for a used condom, and never found one. (Vol. III, T. pp.

270-273)




                            -14-

                          ARGUMENT

I.   THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT
     ALLOWING DEFENDANT’S COUNSEL TO QUESTION THE
     PROSECUTING WITNESS ABOUT PRIOR ALLEGATIONS OF RAPE
     MADE BY HER AGAINST ANOTHER MAN IN KENTUCKY IN 1997
     BECAUSE THE ALLEGATIONS WERE SIMILAR TO THOSE ON
TRIAL,    AND EVIDENCE OF THEM WAS PROBABTIVE OF THE ISSUE
OF   CONSENT AS RELATED TO THE CHARGES OF RAPE, KIDNAPPING
     AND ROBBERY.

     ASSIGNMENT OF ERROR NO. 3
    Volume I, Transcript, pages 56

    At trial, Heller’s attorney sought to question Clark

in front of the jury about a prior rape allegation she had

made in Kentucky in 1997. The trial court allowed a voir

dire examination of Clark. Clark admitted to Heller‘s trial

counsel that she had made a report of a rape in Richmond,

Kentucky in 1997. The report lead to a warrant being

issued, and the matter was dismissed by a judge in a

hearing without a jury. The incident occurred at a friend’s

house. The man accused in Kentucky was impaired by alcohol

and Clark was not impaired.(Vol. I, T. pp. 48-53)

    Upon questioning on voir dire by the prosecutor, Clark

explained that she and the man in the 1997 incident were

going to have sexual intercourse, but when the man said he

did not have condoms, Clark changed her mind, and the man

then raped her. The trial court in the present case would

not allow any of this to be brought out on cross

examination because the judge, in his discretion, felt the

probative

                            -15-

value was outweighed by the prejudicial effect. N.C.G.S.

8C, Rule 403. (Vol. I, T. pp. 53-56)

    Clark did not testify on direct examination that

Heller used a condom when they had sexual intercourse;     but
on cross and re-direct   examinations, she testified that he

did. (Vol. I, T. pp. 23-29, 66-67, Vol. II, T. pp. 104-107)

No condom or condom wrappers were ever located by police in

searching the Clark automobile or in searching the dead end

of Stage Coach Road in Claremont. (Vol. III, T. pp. 261,

270-273) Clark’s description of the rape is that she

mounted Heller, and was on top of him, holding his arms

down, while they engaged in sexual intercourse. (Vol. I, T.

pp. 27-28) It is clear from the 1997 Kentucky incident that

the use of a condom was very important to Clark in 1997; a

necessity. The use or lack of use of condoms, the necessity

of condoms for Clark’s consent, was an important factual

element for the finder of fact, the jury, to consider.

Under the facts of this case, the use of a condom strongly

implies that the act was consensual. An issue of

credibility was raised by the 1997 allegations, and no good

reason was given by the trial court for preventing Heller

from exploring it on cross examination.

    Appellant has specifically abandoned Assignments of

Errors Numbers Four(4), Ten(10), Eleven(11), Thirteen(13),

                            -16-

Fifteen(15), Sixteen(16), and Eighteen(18) because he

acknowledges that under the standard for deciding a motion

to dismiss, the State’s evidence, though contradictory and
vague on many points, was sufficient for all charges,

except possession of cocaine, to be submitted to the jury.

Certainly, the jury could have inferred that Clark did

everything she did under duress; but they could have just

as well have seen her as a willing participant. Her conduct

in a similar situation was relevant because it involved

prior sexual conduct which tended to suggest that Clark

would have been willing to have consensual sexual

intercourse with a man wearing a condom as opposed to one

who was not. Here the evidence tended to suggest that her

sexual behavior on the night of the crime charged was no

different from her past sexual behavior. State v. Shoffner,

62 N.C. App. 245, 302 S.E.2d 830(1983).

     The jury convicted Heller of attempted rape, the least

of the underlying offenses of first degree rape. A serious

doubt in the evidence was expressed in that verdict. It is

reasonable to believe that a not guilty verdict may have

resulted had the jury known of the 1997 allegations. (R.

pp. 51). G.S.§15A-1443(a).

     While Heller did not testify or offer evidence, his

attorney brought out considerable evidence through cross

                             -17-

examination that challenged Clark‘s assertions that,

against her will and under duress, she went off with Heller
from a neighborhood in Asheville known for illegal

activity, drove around Asheville, Catawba County and

Statesville with him, rolled cigarettes out of newspaper

for him, had sex with him, made ATM withdrawals, checked

into a motel, and drove back from Statesville to Asheville

with him. The prior rape allegation and the circumstances

were relevant on the question of duress and consent, and it

related to all of the charges, not just rape.        The facts

of the 1997 incident relate to Clark’s credibility, and

could have influenced the jury’s view of her interaction

with Heller, not just in the context of sexual intercourse,

but also as to whether or not Heller kidnapped her, or she

went off with him voluntarily. Whether or not she gave her

consent and willing participation in the several ATM

transactions upon which the common law robbery charges were

based is also raised. Had the jury believed that Clark

willingly engaged in intercourse with Heller they may well

have believed that she went off with voluntarily, and made

the ATM withdrawals in the absence of duress; that what

appeared to be, for Clark, a horrific and degrading

experience at first viewing, was in reality the result of

her own appetites and indiscretions. Clark’s credibility

after cross-examination as to her prior

                            -18-
sexual encounter is essential to support all charges

stemming from the entire criminal transaction.     State v.

Harris, ___N.C. App.___, ____S.E.2d____(2004-437).

      Since our law leaves the resolution of disputed facts

to be decided by the jury, it is vital to the adversarial

process that the Defendant be allowed to challenge the

evidence, and to point out alternative inferences that may

be drawn from it. That is what Heller was trying to do with

the inquiry into the allegations of rape made by Clark in

1997 in Kentucky. By not allowing Heller’s counsel to bring

out the prior allegations, the jury was prevented from

hearing important evidence about Clark’s past that bore

directly on the facts in dispute.

      Heller should be granted a new trial not only on the

Attempted Second Degree Rape charge, but on all of the

charges of which he was convicted and a jury allowed to

consider the excluded testimony of the 1997 rape

allegations in Kentucky, and how it relates to Clark’s

credibility and consent.

II.  THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING
     DEFENDANT’S MOTIONS TO DISMISS THE CHARGE OF
POSSESSION     OF COCAINE AT THE CLOSE OF THE STATE‘S
EVIDENCE, AND AT    THE CLOSE OF ALL EVIDENCE, AND IN
DENYING DEFENDANT’S      MOTIONS TO SET ASIDE THE VERDICT
OF GUILTY OF   POSSESSION OF COCAINE BECAUSE, LOOKING AT
THE EVIDENCE IN THE BEST LIGHT TO THE STATE, THE
     EVIDENCE DID NOT SUPPORT THE ALLEGATIONS THAT THE
     DEFENDANT POSSESSED COCAINE.
                            -19-

    ASSIGNMENTS OF ERROR NOS. 12, 17 and 19

    Volume III, Transcript, page 389

    Volume IV, Transcript, page 10

    At trial, the State introduced into evidence a pipe

(Ex. 14)that was found in Clark’s car by police. (Vol. I,

T. pp. 59-60) The pipe was found in the floorboard of

Clark’s car during a search conducted on Clark’s car by

Asheville Police on February 26, 2001. (Vol. II, T. p. 259)

According to Clark, when Heller got out of the car, “the

crack pipe had ended up” with the marijuana that was left

”under this compartment right beside the driver’s door” in

her car. (Vol. I, T. p. 57). Clark testified that Belinda

also had a crack pipe that they used to smoke with. (Vol.

I, T. p. 112-113) When she identified Exhibit

Fourteen(14)for the

State, she described it as “the one they used part of the

night for smoking.” (Vol. I, T. p. 59) Since crack cocaine

was smoked through the entire course of the time Clark

spent with Heller and Belinda, there was obviously another

pipe to consider; Belinda’s pipe.

     Because the pipe allowed into evidence and identified

   by Clark was found under the floorboard, and not in a
 compartment under the steering wheel, and because several

  hours had passed since Heller was in the car, there is

  uncertainty as to whether or not the pipe identified by

                             -20-

Clark was the one Heller allegedly possessed, or Belinda‘s.

Nothing was brought out to distinguish Exhibit Fourteen(14)

from Belinda’s crack pipe.

    In deciding a motion to dismiss, the court must

consider all of the evidence in the most favorable light to

the State, giving the benefit of every reasonable inference

to the State. State v. Brown, 310 N.C. 563, 313 S.E.2d 585

(1984). Contradictions and discrepancies are to be

disregarded by the court and left for resolution by a jury.

State v. Powell, 299 N.C. 95, 261 S.E.2d 114(1980). Whether

substantial evidence establishes each element of the

offense charged and identifies the defendant as the

perpetrator is for the trial court to decide. State v.

Earnhardt, 307 N.C. 62, 296 S.E.2d 649(1982), State v.

Setzer, ___N.C. App.___, ___S.E.2d___ (2004).   Even under

this standard, the trial court did not have the minimal

evidence needed to make the reasonable connection between

Heller and the pipe. The trial court should have dismissed

the cocaine charge.

    Failing to dismiss, the trial court should have set
aside the guilty verdict, once rendered. A motion to set

aside a verdict on the grounds that it is contrary to the

weight of the evidence is within the discretion of the

trial court. The Appeals court may review such a decision

only if the trial court has abused that discretion.     State

v. Pratt,

                            -21-

306 N.C. 673, 295 S.E.2d 462(1982); State v. Morgan, 108

N.C. App. 673, 425 S.E.2d 1(1993). An abuse of discretion

is established only if it is shown that the court’s actions

are manifestly unsupported by reason.   A ruling committed

to a trial court’s discretion is to be accorded great

deference and will only be upset upon a showing that it was

so arbitrary that it could not have been the result of a

reasoned decision.   State v. T.D.R., 347 N.C. 489, 495

S.E.2d 700(1998). “Abuse of discretion“ is established only

when it is shown that a court's actions "are manifestly

unsupported by reason." White v. White, 312 N.C. 770, 324

S.E.2d 829(1985).

    The evidence of cocaine possession introduced in this

case by the State is not supported by reason, is

insubstantial, and does not identify Heller as the person

who possessed any traces of cocaine in the crack pipe. The

pipe was not located in Heller’s possession. It was located
long after Heller had left the car. There is a substantial

and important gap in time between Heller leaving Clark’s

car, and the discovery of the crack pipe by police. The

time span between Heller leaving the car, and the discovery

of the pipe by police included a trip to an ATM in

Asheville, a trip to the bus station in Asheville where

Clark and Belinda learned that the bus for Statesville had

left earlier, a

                            -22-

trip to Connor’s home on Starnes Avenue to discuss the

matter with friends, the discussion with friends, a trip to

the rape crisis center, and then to the hospital.    After

the arrival at the hospital, time passed   while police were

called in. Heller was arrested, and the car was finally

searched later in the day. (Vol. I, T. pp. 35-38, Vol. II,

T. pp. 252-267)

    The reliability of the crack pipe introduced into

evidenced is further weakened by the continued presence of

Belinda in the car after Heller left,   Belinda’s possession

of a second crack pipe, her possession of a portion of the

last batch of crack purchased by Heller and Belinda with

Clark’s money, and the location of the crack pipe in

Clark’s car in a place different from that where Clark said

she had placed it.
     No reliable evidence was introduced as to when any

traces of cocaine were placed in the pipe or by whom. This

is not reliable evidence, and it is unreasonable to allow

it to support a charge of possession of cocaine by a person

who was not present when the pipe was found in a location

different from where it was said to be, and in light of the

great possibility that the pipe discovered could have

belonged to a person other than the one charged.



                               -23-

                         CONCLUSION

     Because Heller was prevented from questioning Clark

about the 1997 allegations of rape that she made against

another man in Kentucky, and was therefore prevented from

developing important evidence that touched on Clark’s

credibility; and because the charge of possession of

cocaine was not supported by sufficient evidence to survive

motions to dismiss and to set aside the verdicts, the North

Carolina Court Of Appeals should vacate the judgments in

this case, and grant Heller a new trial on all of the

charges of which he was convicted.

                    This the    14th day of February, 2005.
               _______________________
               David Childers
               Attorney For Cleveland Wesley Heller




                            -24-

                   CERTIFICATE OF SERVICE

     I hereby certify that I have this day served a copy of
the foregoing DEFENDANT-APPELLANT’S BRIEF by depositing a
copy thereof in an envelope bearing sufficient postage in
the United States Mail, first class, addressed to the
following:

                      Mr. Neil Dalton
                Assistant Attorney General
           North Carolina Department Of justice
                    Corrections Section
                        P.O. Box 629
            Raleigh, North Carolina 27602-0629



     The Clerk Of The North Carolina Court of Appeals
                       P.O. Box 2779
            Raleigh, North Carolina 27602-2779


               This the 14th day of February, 2005.
__________________________
David Childers,
Attorney for Cleveland Wesley Heller

108 Tuckaseege Road
Mount Holly, North Carolina 28120
     (704) 822-0531

								
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