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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
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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)
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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.
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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
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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,
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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
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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.
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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
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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
