State v. Booher, 42A81
| Decision Date | 04 May 1982 |
| Docket Number | No. 42A81,42A81 |
| Citation | 305 N.C. 554,290 S.E.2d 561 |
| Parties | STATE of North Carolina v. Jerry Francisco BOOHER. |
| Court | North Carolina Supreme Court |
Rufus L. Edmisten, Atty. Gen. by William W. Melvin, Deputy Atty. Gen., and William B. Ray, Asst. Atty. Gen., Raleigh, for the State.
Adam Stein, Appellate Defender by Malcolm R. Hunter, Jr., Asst. Appellate Defender, Raleigh, for defendant-appellant.
The question dispositive of this appeal is whether the evidence was sufficient to be submitted to the jury on the question of defendant's guilt of a first degree sexual offense. We conclude that it was not.
The state's evidence consisted almost entirely of the testimony of Timothy Moore. According to Moore, he first met defendant on 30 May 1980 at a "Welcome Aboard" meeting upon Moore's arrival at Camp Lejeune. At the time of trial Moore was a twenty-one-year-old sergeant in the Marine Corps with three years and two months' service in the Corps. During the Welcome Aboard meeting, defendant invited Moore out that evening to drink beer and shoot pool. Moore agreed, and the two spent the evening together. They both returned to defendant's home where defendant grabbed Moore and bit him on the neck. Upset, Moore left defendant's home on foot. Shortly thereafter, defendant approached Moore in defendant's vehicle and gave Moore a ride to Moore's vehicle. During the ride Moore expressed concern about the bite on his neck and wondered out loud what he would tell his wife. When Moore arrived home he explained to his wife what had happened with defendant.
On 1 July 1980, Moore saw Booher again on base and Booher apologized for what had happened earlier. On 16 July 1980, two days after Moore's wife had given birth to a child and was still hospitalized, defendant called Moore and invited him out. Upon defendant's assurance that "there would be no funny business," Moore agreed to go. They rode around, drank beer, smoked marijuana, got together with other friends of defendant and finally arrived at defendant's home. Defendant asked Moore to remove his clothes, and Moore refused. Defendant told Moore that if he didn't disrobe, defendant would report Moore to military officials as being a homosexual. Moore left, arriving at his home at approximately 1 a.m.
After Moore arrived home, defendant drove up. Moore turned on his tape recorder. Defendant came to the door and Moore invited him inside
A transcription of the tape-recorded conversation that ensued between Moore and defendant was offered into evidence. According to the transcription, much of what defendant said in response to Moore's statements was inaudible. In essence, the transcription shows that Moore invited defendant into his home by saying, Defendant replied, "You want to hurt me." Moore assured defendant that he did not want to hurt him but only wanted to talk. The two talked at length. The conversation dealt with: defendant's concern that Moore was going to hurt him and Moore's protestations to the contrary; the prior encounters of the two men; homosexual relationships in general; defendant's expressions of affection for and attempts at physical contact with Moore and Moore's verbal protestations; the relationship between love and hate; and the introduction of a knife belonging to Moore. According to Moore, the conversation took place while the men "were sitting on ... a small couch, called a loveseat." During it, defendant "was trying to slide his hands and arms ... above my waist and on my shoulders."
The transcript shows that the first discussion regarding the knife proceeded as follows:
B I need you.
M But you can't have me.
M If you need me, kill me.
B (Inaudible)
M Jerry Booher, are you gonna kill me with that knife ?
B Are you gonna give me what I want?
B Are you gonna give me what I want?
M No.
B Yes you are.
M I can't give you what you want, whether you're holding that knife or not.
B Yes you will.
M I can't and I won't.
B Yes you will.
M I can't and I won't.
B Yes you will.
M No I won't.
B You will.
M I won't.
B Yes you will.
M I can't and I won't. No, I can't give it to you.
B (Inaudible)
M I'm glad, man.
B (Inaudible)
M I'm glad you don't want it, what I'm saying is man--
B (Inaudible)
(Emphasis supplied.)
The knife, described by Moore as a twenty-first birthday present, later entered into the transcribed portions of the conversation as follows:
M Do you wanna die?
B Yes.
M No, you don't.
B You don't know how much.
M You want to die?
B You bet.
M If you want to die, man, this here was my 21st birthday present.
B Will you [obscenity omitted] do it or you don't.
M I'm not gonna do it, man. I'm not gonna kill nobody.
B Put it back. You're just [obscenity omitted], then, put it back.
M I like you, man.
B Well, put it back.
M But I don't love you.
M Can you understand?
B You love me or you'd kill me right now.
M No.
B And don't give me no [obscenity omitted].
M No.
B Yes, you do.
M You just can't go killing people.
B Yes, you love me.
M I can't kill--
B You love me.
M I don't love you.
B Yes, you do.
M No, I don't. I can't.
B Yes, you do.
M Okay, if I didn't love you, I'd kill you, right?
B That's right.
M No, that's [obscenity omitted].
Shortly thereafter the tape transcript ended and Moore's trial testimony continued. Moore said that when defendant entered the apartment the knife was underneath the loveseat where he and defendant were sitting and talking. Eventually the knife appeared "either on the big coffee table ... in front of the loveseat or ... directly underneath it." Moore said,
Moore then testified that defendant Defendant then held the knife against Moore's arm. Moore said, Moore said this lasted for a couple of minutes, that he "did not have an orgasm or anything" and that defendant "raised his head and dropped the knife right there on the floor." Moore got up, dressed himself, and told the defendant to "get the hell out." Defendant refused to leave. Moore continued to insist that defendant leave; defendant remained adamant in his refusal to do so. Moore finally called the police.
According to officers who responded to the call, both Moore and defendant were engaged in a bitter verbal dispute when they arrived at Moore's home. The officers had difficulty ascertaining what had happened. Both parties were taken to the magistrate's office by a Jacksonville police officer, Walter Lamb. Lamb, despite the magistrate's request, wouldn't sign an arrest warrant. Instead, Lamb called his supervisor who agreed to assign a detective to the case.
Jacksonville detective William Whitehead arrived at the magistrate's office at approximately 3:45 a.m. on July 17 and talked with the magistrate, Moore and the defendant. Whitehead sent Lamb and Moore to pick up Moore's tape recorder. After listening to the tape, Whitehead placed defendant under arrest and later signed an arrest warrant charging defendant with a first degree sexual offense under G.S. 14-27.4.
Defendant, testifying in his own behalf, denied committing the crime charged against him. According to defendant Moore invited him to his home on the evening in question to celebrate the birth of Moore's baby. When defendant arrived Moore was nude, but later put on his underwear. Defendant said he never threatened Moore or forced him Defendant, a Marine Corps corporal with approximately eight years of service, testified,
Because of the bizarre and unique facts of this case, we are satisfied the evidence is insufficient to support the verdict. Both a first and second degree sexual offense, insofar as they may be committed against an adult not physically or mentally handicapped, have as an essential element the lack of the victim's consent because they must be committed "by force and against the will" of the victim. G.S. 14-27.4(a)(2); G.S. 14-27.5(a)(1); State v. Locklear, 304 N.C. 534, 284 S.E.2d 500 (1981); State v. Jones, 304 N.C. 323, 283 S.E.2d 483 (1981). In Locklear, we said the phrase "by force and against the will," as used in both the new rape statutes, G.S. 14-27.2 and 14-27.3, and the new sexual...
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