State v. Joyner

• Citation: 255 S.E.2d 390,297 N.C. 349
• Decision Date: 12 June 1979
• Docket Number: No. 72,72
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Roderick Thomas JOYNER.

Page 390

255 S.E.2d 390

297 N.C. 349

STATE of North Carolina v. Roderick Thomas JOYNER.

No. 72.

Supreme Court of North Carolina.

June 12, 1979.

Jeffrey L. Miller, Greenville, for defendant-appellant.

EXUM, Justice.

Defendant's assignments of error challenge the following actions of the trial court: (1) denial of defendant's motion to dismiss, because of insufficiency of the evidence, the charges of first degree rape, armed robbery, crime against nature, and assault inflicting serious injury; (2) instructing the jury on the principle of "acting in concert;" (3) stating the contentions of defendant; and (4) curtailing defendant's cross-examination of one of the state's witnesses. We find no merit in any of defendant's assignments of error and conclude that he has had a fair trial free from prejudicial error.

The state's evidence here is substantially as it was in the Joyner, Curmon, and Barnes cases. It tended to show that around 7:15 p. m. on 11 January 1977 Mrs. Carolyn Lincoln was at home alone with her four year old daughter, Mara Carolyn Lincoln. Mrs. Lincoln lived on Route 8, two or three miles outside of Greenville. She answered a knock on her door and thought she recognized the voice of a neighbor. Upon opening the door she realized she did not know the man whom she described as a "young black man, tall and thin, wearing a jacket and cap." This man asked to use her telephone. She refused saying that she did not have a telephone and started to close the door. Two men then forced themselves into her home. One of them knocked her to the floor and lay down on top of her while the other searched through the house to see if anyone else was there. Upon learning that Mrs. Lincoln and her daughter were alone one of these men pulled her into the kitchen and held her while the other pulled off her clothes. These men then sexually abused her and threatened her and her child with death if she said anything.

Three other men then entered the house, one of whom Mrs. Lincoln identified as the defendant, Roderick Joyner. Four of the men, including defendant, were in her kitchen "standing around and laughing" while one of the others had forcible sexual intercourse with her.

Generally these men terrorized Mrs. Lincoln and her daughter. They secured a loaded .22 caliber pistol owned by Mrs. Lincoln, put the pistol to her head, and threatened to kill her. During one episode of sexual abuse they brought her daughter into the kitchen, pointed the gun at her daughter's head, and threatened to kill her daughter if Mrs. Lincoln did not comply with all of their wishes. Defendant had forcible sexual intercourse with Mrs. Lincoln twice, once before she and her daughter were threatened with the pistol and once thereafter. Meanwhile one of the men in the presence of all the others forced a drink bottle into her rectum. Mrs. Lincoln was forced, during the course of the episode and in the presence of all the men, to perform fellatio on some of them but not on the defendant. At least one instance of forcible fellatio occurred while defendant was raping her.

After these savage instances of sexual abuse and with all five of her abusers "in the kitchen standing around my feet . . . they tried to pull my ring off." When they failed in this, she took the ring off and gave it to one of the men. Two of the men then started dragging her into her front bedroom. She began screaming and was hit over the back of the head. She said, "The other three men were in front of me while the two were trying to pull me out the door. . . . The next thing I can remember was crawling in the house off the front porch." Mrs. Lincoln was able to go to a neighbor's house where she called the sheriff whose deputies responded immediately to her aid.

Sheriff's deputies located the defendant and three of his companions, Roy Lee Barnes, Sylvester Joyner, and Alton Ray Curmon together at a residence in Greenville in the early morning hours on 12 January 1977. The other assailant, Roy Chester Ebron, had been earlier arrested. Defendant and the three others with him were then arrested. At the place of this arrest a .22 caliber revolver identified as that owned by Mrs. Lincoln was found in a field jacket lying on the floor close to where defendant was lying. Several similar jackets were taken from this location. Mrs. Lincoln's diamond ring fell from the pocket of one of them and was likewise seized by the arresting officers.

After defendant's arrest he was fully advised of his rights to remain silent and to have a lawyer. After duly waiving these rights, defendant made a voluntary statement to the arresting officers. In this statement defendant admitted having entered the home of Mrs. Lincoln on the night in question with four others after which he and several of the others "had a sexual relationship with her."

Defendant was 16 years old.

Mrs. Lincoln was examined by her physician, Dr. Howard Satterfield, at 11:03 p. m. on 11 January at Pitt County Memorial Hospital. He found her "very upset, crying, sobbing and had blood all over her. She was extremely torn up." He found large bruises on both sides of her neck, a severe abrasion on her left knee, and tenderness in her lower back. Her labia were swollen two to three times their normal size and she suffered multiple cuts, some of them quite deep in and around her rectum, which had been expanded to three or four times its normal size.

I

Defendant first assigns as error the trial judge's denial of his motion that the first degree rape charge be dismissed on the ground that there is no evidence that the victim's resistance was "overcome or her submission procured by the use of a deadly weapon, or by the infliction of serious bodily injury to her" an essential statutory element of first degree rape. G.S. 14-21(1)(b). The assignment is without merit. The state's evidence tends to show that defendant raped Mrs. Lincoln twice, once before her life and that of her child were threatened with a .22 caliber pistol and again thereafter. The trial judge correctly called the jury's attention to the state's contention that it was this second sexual intercourse in which the deadly weapon had figured. Shortly before this second rape by defendant Mrs. Lincoln and her daughter had been threatened with the weapon and told that they both would be killed "if I didn't do everything they wanted me to do." This evidence is amply sufficient for the jury to find that her resistance at least on the second occasion was overcome and her submission procured by the use of a deadly weapon within the meaning of the statute. State v. Carson, 296 N.C. 31, 249 S.E.2d 417 (1978); State v. Lowe, 295 N.C. 596, 247 S.E.2d 878 (1978); State v. Thompson, 290 N.C. 431, 226 S.E.2d 487 (1976). In the last cited case this Court said, 290 N.C. at 444, 226 S.E.2d at 494-95:

"(A) deadly weapon is used to procure the subjugation or submission of a rape victim within the meaning of G.S. 14-21(a)(2) when (1) it is exhibited to her and the defendant verbally, by brandishment or otherwise, threatens to use it; (2) the victim knows, or reasonably believes, that the weapon remains in the possession of her attacker or readily accessible to him; and (3) she submits or terminates her resistance because of her fear that if she does not he will kill or injure her with the weapon. In other words, the deadly weapon is used, not only when the attacker overcomes the rape victim's resistance or obtains her submission by its actual functional use as a weapon, but also by his threatened use of it when the victim knows, or reasonably believes, that the weapon is readily accessible to her attacker or that he commands its immediate use."

Defendant's argument that the armed robbery charge should have been dismissed because of insufficiency of the evidence is likewise without merit. The basis for this charge was the theft of Mrs. Lincoln's diamond ring. Defendant argues there is no evidence that one "who, having in possession or with the use or threatened use of any firearms or other dangerous weapon . . . whereby the life of a person is endangered or threatened," G.S. 14-87, took the ring. This same argument was raised and correctly answered against one of defendant's accomplices, Sylvester Joyner, in State v. Joyner, supra, 295 N.C. 55, 243 S.E.2d 367 (1978). This Court there said, 295 N.C. at 64, 243 S.E.2d at 373:

"It is clear from this evidence that Ms. Lincoln was placed under a continuing threat with a firearm. Though Ms. Lincoln did not testify that defendant actually pointed the gun at her at the time she gave her ring to his accomplice, earlier there had been such 'use' of the firearm as to force her to commit certain acts, and it had been made clear to her on several occasions prior to the actual taking of her ring that the firearm would be used against her if she did not comply. This continuing threat extended to every subsequent act by her, and thus constituted a 'threatened use' of a firearm which 'endangered or threatened' her life within the terms of G.S. 14-87(a). See also State v. Harris, 281 N.C. 542, 189 S.E.2d 249 (1972). The evidence presented by the State was, therefore, sufficient to overcome defendant's motion for nonsuit."

These assignments of error are overruled.

II

By defendant's next several assignments of error he contends the trial court improperly applied the principle of concerted action. Defendant argues that in order to be convicted of a crime under this principle, a defendant must personally do at least one act necessary to constitute at least part of the crime. Under this view defendant contends the charges of crime against nature (forcible fellatio), assault inflicting serious injury (insertion of the drink bottle into Mrs. Lincoln's rectum), and armed robbery (of Mrs. Lincoln's ring) should have been dismissed since there is no evidence that defendant personally did any act constituting a part of any of these crimes. He further...