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State v. Locklear11/15/2005
Timothy Daniel Locklear (defendant) was convicted of second- degree sexual offense and was sentenced to a minimum term of 168 months in prison, to begin at the expiration of the sentences defendant was serving at the date of trial.
The State's evidence at trial tended to show that on 5 September 2003, defendant was incarcerated in the Brunswick County jail. Defendant was moved into a cell occupied by Joshua Zack (Zack), James Rash (Rash), and two other inmates. Zack slept on a mat on the cell floor and defendant slept in a bunk bed. During the evening of 5 September 2003, while the other cellmates were sleeping, defendant invited Zack onto defendant's bed. Zack and defendant sat on defendant's bed drawing with a pencil. Zack testified that defendant pressed the pencil behind Zack's right ear and demanded that Zack perform oral sex on defendant. Zack complied. Defendant also had anal sex with Zack, after which Zack got down from the bunk and struck defendant in the mouth. A fist fight ensued, and the other cellmates awoke. Defendant told Zack not to tell anyone about what had occurred. Zack reported the incident to a prison guard two days later.
Rash testified that on 5 September 2003, he shared a cell with defendant and Zack. Rash awoke during a fight between defendant and Zack. Rash heard Zack say " o" and noticed that Zack's pants were down. Rash testified that he heard defendant tell Zack that if Zack "said anything about what happened that [defendant would] kill [Zack]." Rash later heard defendant brag about raping Zack. Rash also testified that he had seen defendant harass another young inmate by pulling down that inmate's pants.
After the assault was reported, Zack was removed from the cell and James Burriss (Burriss) took Zack's place. Burriss testified that defendant bragged about using a pencil to force Zack to engage in sexual acts. Burriss also testified that defendant forced an inmate who was "not very mentally stable" to dance naked on a table.
Benny Narem (Narem), another inmate, heard defendant on 6 September 2003 brag about "rap the guy . . . named Zack" and forcing Zack to perform oral sex. Narem also testified that he had seen defendant harass the same young inmate to whom Rash had referred. Narem saw defendant touch the young inmate in a sexualmanner.
Defendant testified that on 5 September 2003 Zack offered to perform oral sex on defendant. Defendant described the fight between himself and Zack as a fight over Zack not paying for some cookies. Defendant denied using force or a pencil against Zack and denied having anal sex. On cross-examination, defendant admitted making several false statements to the investigating detective and admitted to prior criminal convictions.
I.
Defendant's first assignment of error is that the trial court entered its judgment out of term. Defendant argues that the trial court failed to enter an order extending court after the session was scheduled to expire on 9 July 2004. As a result, defendant argues, the judgment is null and void and must be vacated. We disagree.
A trial court's extension of a session of court is governed by N.C. Gen. Stat. ยง 15-167 (2003), which provides:
Whenever a trial for a felony is in progress on the last Friday of any session of court and it appears to the trial judge that it is unlikely that such trial can be completed before 5:00 P.M. on such Friday, the trial judge may extend the session[.] . . . Whenever a trial judge continues a session pursuant to this section, he shall cause an order to such effect to be entered in the minutes, which order may be entered at such time as the judge directs, either before
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