State v. Williams
| Decision Date | 18 November 1986 |
| Docket Number | No. 75A86,75A86 |
| Citation | 318 N.C. 624,350 S.E.2d 353 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Kenneth Alfred WILLIAMS. |
Lacy H. Thornburg, Atty. Gen. by James C. Gulick, Sp. Deputy Atty. Gen., Raleigh, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender by David W. Dorey, Asst. Appellate Defender, Raleigh, for defendant-appellant.
In his appeal defendant contends the trial court (1) committed reversible error in failing to dismiss the first and second-degree rape charges for insufficient evidence; (2) committed plain error in instructing the jury on a theory of rape not charged in the indictment; and (3) committed reversible error in admitting evidence that defendant had taken his daughter to an x-rated movie and told her to look at scenes depicting graphic sexual acts. We find merit in defendant's first and second contentions. The trial court's failure to instruct the jury on forcible rape was the equivalent of a dismissal of that crime and all lesser included offenses. Although the jury returned a verdict of "Guilty of First Degree Rape," the judge instructed the jury only on rape of a female under thirteen years, a theory of rape not charged in the indictment. We find no error in defendant's trial and conviction of incest.
The indictment charging defendant with rape alleged that he "unlawfully, willfully and feloniously did ravish and carnally know Dolly Marie Williams, a female person, by force and against her will." The indictment alleged that the offense was in violation of N.C.G.S. § 14-27.2(a)(2) and N.C.G.S. § 14-27.3(a)(1), our statutes governing first-degree rape and second-degree rape by use of force and against the victim's will. The crimes were alleged to have occurred on 1 August 1985.
The State's first witness was Dollie Marie Williams. Ms. Williams testified that she was thirteen years old and that her last birthday had fallen on 16 August 1985. Defendant, she testified, was her natural father. She had moved in with defendant, his wife and their children at the end of February, 1985.
According to the witness, defendant had touched her on several occasions between the end of May, 1985 and the end of July, 1985. Although she had been fully clothed on those occasions, this conduct had involved her breasts and "private parts" and she had disliked it and had asked defendant to quit doing it. Defendant had said nothing on those occasions. She stated that she did not tell anybody about defendant's conduct because she had been present on prior occasions when he made belligerent remarks and those remarks had made her afraid. She had also seen him strike two of his stepchildren.
In early July, Williams said, defendant had told her to take off her shorts and panties. She complied because she was afraid of defendant. That fear was rooted in having been previously exposed to defendant's belligerence. She stated defendant then had vaginal intercourse with her. Afterwards, defendant told her not to say anything.
According to Williams, defendant continued to have vaginal intercourse with her on a regular basis in the weeks that followed. One day, she recalled, she had heard somebody get out of a bed in another room during one of the times defendant had touched her. A few days after that, employees of the Department of Social Services interviewed her. When first interviewed, the prosecutrix did not relate the events about which she testified. Subsequently, the interviewer, Becky Morrow, told her that she had received information from one of the other children that there had been sexual contact between Ms. Williams and defendant. In response to that accusation, Ms. Williams gave the version of events that she was testifying to at trial.
As to the offenses charged, Ms. Williams testified that defendant had sent the four younger children out to the yard at around 1:20 in the afternoon and, shortly thereafter, called her to come back to the bathroom. He kissed and touched her, before telling her to take off her shorts and panties. She complied and then bent over, holding the bathtub, while defendant engaged in vaginal intercourse with her.
Melissa Barnes, defendant's stepdaughter, testified that she had once seen Dollie Williams in the same bed as defendant, and that defendant's hand had been touching Williams' buttocks.
Shirley Williams, defendant's wife, gave testimony corroborating that of Melissa Barnes, her daughter. She also testified, over defendant's repeated objections, that defendant had taken her and Dollie Williams to a drive-in movie, which she described as x-rated. According to the witness, the movie had contained explicit sexual scenes and defendant had encouraged his daughter to look at them.
Becky Morrow, the case worker who interviewed Dollie Williams, gave corroborative testimony based on Williams' prior statements to her.
Dr. Michael Hunt testified that he had examined Dollie Williams and that his findings were consistent with a sexually active young woman. He had found no evidence of trauma.
Detective Kenneth Sealey gave corroborating testimony based on Dollie Williams' prior statements. Sealey also testified that he collected samples for a rape kit and sent it to the North Carolina Bureau of Investigation laboratory, along with some sheets taken from household items found in defendant's truck.
Jed Taub, from the State Bureau of Investigation laboratory, testified that he found semen stains on the sheet that Sealey had sent to them. He identified them as type O. Taub identified a blood sample taken from defendant as also being type O.
Defendant presented a number of witnesses.
Dollie Mae Williams testified that her granddaughter, Dollie Williams, the prosecutrix, had been at her house throughout the time that she alleged the crimes charged had taken place. Defendant had been there for much of that time.
Clara Barnes, Dollie Mae Williams' next door neighbor, testified that she had seen Dollie Williams at Mrs. Williams' house at the time that she had testified to having sexual intercourse in defendant's trailer some miles away.
Lillie Hickman testified that she saw defendant's truck at Mrs. Williams' house at around 1:20 p.m. on 1 August 1985. Dollie Williams and defendant's stepchildren were on the porch of the house at that time. When Mrs. Hickman returned between 2:30 and 3:00 p.m., she stopped to visit and again saw Dollie Williams at that location.
Robert Hickman confirmed Lillie Hickman's testimony. He said he had been driving her to the hospital and back at the time they saw defendant's truck and his children.
Defendant moved to dismiss the charges at the close of the evidence. The court denied his motion.
In his first assignment of error, defendant contends that the evidence presented at trial was insufficient to sustain his conviction on the indictment for forcible first-degree rape and, for that reason, that the trial court erred in denying his motion to dismiss that charge. This contention is based on the State's failure to present substantial evidence of each of the essential elements of the charge as laid in the indictment. No evidence was presented to show that the alleged rape entailed the use of a weapon, the infliction of serious injury or aiding and abetting. Proof of at least one of those elements is necessary to sustain a conviction for first-degree rape under N.C.G.S. § 14-27.2(a)(2), the theory of prosecution under which defendant was charged. Although the trial judge denied defendant's motion to dismiss, when he charged the jury he did not instruct them on forcible rape; he instructed only on the offense of vaginal intercourse with a female under thirteen years of age.
It has long been the law of this State that a defendant must be convicted, if convicted at all, of the particular offense charged in the warrant or bill of indictment. State v. Faircloth, 297 N.C. 100, 253 S.E.2d 890 (1979); State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969); State v. Lawrence, 264 N.C. 220, 141 S.E.2d 264 (1965); State v. Law, 227 N.C. 103, 40 S.E.2d 699 (1946).
While evidence was adduced at trial that indicated that a basis existed upon which the State could have brought defendant to trial on a theory of rape based on Dollie Williams' age pursuant to N.C.G.S. § 14-27.2(a)(1), defendant was not so charged. Having chosen forcible first-degree rape as its theory of prosecution and having brought defendant to trial, the State was bound to prove all of the material elements of that charge and could not rely on proof of rape pursuant to N.C.G.S. § 14-27.2(a)(1). The failure of the trial court to submit the case to the jury pursuant to the crime charged in the indictment amounted to a dismissal of that charge and all lesser included offenses. Therefore, we hold that the trial judge did in fact dismiss the first and second-degree rape charges alleged in the indictment.
We next are asked to consider whether the trial court committed plain error in instructing the jury on a theory of rape not charged in the indictment. Insofar as the instructions given allowed the jury to convict on grounds other than those charged in the indictment, they were error. But, we hold that the jury instructions were more than erroneous; they were a basic violation of due process because the defendant was never charged with the only rape offense which the jury was instructed to consider. "It is a rule of universal observance in the administration of criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment." State v. Jackson, 218 N.C. 373, 376, 11 S.E.2d 149, 151 (1940).
N.C.G.S. § 14-27.2, first-degree rape, provides:
(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:
(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years...
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State v. Lawrence
...than the crime charged in the indictment, which was an offense against N.C. Gen.Stat. § 14-27.4(a)(2)) (quoting State v. Williams, 318 N.C. 624, 628, 350 S.E.2d 353, 356 (1986) (dealing with a variance in the indictment and instructions on first-degree rape the Court noted that "[t]he failu......
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State v. Kelly, No. COA03-612 (NC 5/18/2004)
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