State v. Boone, 382A82

• Decision Date: 07 December 1982
• Docket Number: No. 382A82,382A82
• Citation: 307 N.C. 198,297 S.E.2d 585
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Daniel BOONE.

Page 585

297 S.E.2d 585

307 N.C. 198

STATE of North Carolina v. Daniel BOONE.

No. 382A82.

Supreme Court of North Carolina.

Dec. 7, 1982.

Rufus L. Edmisten, Atty. Gen. by James Peeler Smith, Asst. Atty. Gen., Raleigh, for the State.

Perry W. Martin and Donnie R. Taylor, Ahaskie, for defendant-appellant.

BRANCH, Chief Justice.

Defendant assigns as error the trial court's denial of his motion to dismiss the charges of attempted first-degree rape and first-degree sexual offense.

G.S. 14-27.2 provides in part:

(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:

* * *

* * *

(2) With another person by force and against the will of the other person, and:

* * *

* * *

b. Inflicts serious personal injury upon the victim or another person; or ....

G.S. 14-27.4, in pertinent part, reads as follows:

(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:

* * *

* * *

(2) With another person by force and against the will of the other person, and:

* * *

* * *

b. Inflicts serious personal injury upon the victim or another person; or ....

It is defendant's position that the State has failed to prove beyond a reasonable doubt that defendant inflicted "serious personal injury" on the victim and therefore defendant, at most, could be convicted of attempted second-degree rape and second-degree sexual offense.

The General Assembly of 1979 redefined first-degree rape and, inter alia, included the language "serious personal injury" in lieu of the former language "serious bodily injury." At the same time the legislature created the crimes of first-degree and second-degree sexual offenses. One of the elements of the crime of first-degree sexual offense is the infliction of "serious personal injury" upon the victim. 1979 N.C.Sess. Laws, ch. 682.

In instant case the trial judge, in his mandate on the charge of first-degree sexual offense, instructed the jury:

So I charge you that if you find from the evidence and beyond a reasonable doubt that on this eighteenth day of September, 1981, Daniel Boone engaged in the act of cunnilingus, as I have defined that for you, with Winona Boone; and that he did so by threatening to beat her to death if she resisted; and that this was sufficient to overcome any resistance which Winona Boone might make; and that Winona Boone did not consent; and that it was against her will; and that Daniel Boone inflicted extreme terror, fear, agitation and produced a state of hysteria to the extent that this was a serious personal injury, then this would constitute the offense and it would be your duty to return a verdict of guilty of a first degree sexual offense.

In his charge on attempted first-degree rape the trial judge did not again attempt to define "personal injury" but instead instructed as follows:

Third, you must find beyond a reasonable doubt that he inflicted serious personal injury upon Winona Boone. I've already defined serious personal injury for you with respect to the other alleged offense, and I will not undertake to do it again simply to say to you that the same rule would apply as to what would be necessary to constitute serious personal injury.

Our examination of the entire charge leads us to conclude that the trial judge chose not to submit the case to the jury on the theory of actual "serious bodily injury" but rather limited the jury's consideration of the element of "serious personal injury" to mental or emotional injury.

This Court has not considered the meaning of the phrase "serious personal injury," and we find little guidance as to mental injury in our Court's treatment of the former language in the relevant statutes of the phrase "serious bodily injury."

The leading case defining "serious bodily injury" is in State v. Jones, 258 N.C. 89, 128 S.E.2d 1 (1962), where it is stated:

The term 'inflicts serious injury' means physical or bodily injury resulting from an assault with a deadly weapon with intent to kill. The injury must be serious but it must fall short of causing death.

Further definition seems neither wise nor desirable. Whether such serious injury has been inflicted must be determined according to the particular facts of each case.

Id. at 91, 128 S.E.2d at 3.

In Jones the victim was shot in the back with a shotgun resulting in hospitalization for the removal of 17 birdshot pellets. There the Court held that the evidence was sufficient to carry the case to the jury on the question of "serious bodily injury."

Other cases holding that there was sufficient evidence to go to the jury on the question of "serious bodily injury" are State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626 (1964) [defendant while driving his pickup truck intentionally rammed into the back of the victim's automobile causing a "whiplash" injury which required two visits to the doctor. The victim testified that he continued to have cramps and pain in his legs]; State v. White, 270 N.C. 78, 153 S.E.2d 774 (1967) [knife wounds requiring 64 stitches to close the wounds]; State v. Roberts, 293 N.C. 1, 235 S.E.2d 203 (1977) [female victim suffered blows from defendant which knocked five teeth out of alignment, breaking the root of one tooth. The victim was required to use a metal brace in her mouth for six weeks and a medical expert testified the teeth would in all probability have to be extracted despite his treatment]. See also, State v. Hefner, 199 N.C. 778, 155 S.E. 879 (1930); State v. Roseman, 108 N.C. 765, 12 S.E. 1039 (1891); State v. Shelly, 98 N.C. 673, 4 S.E. 530 (1887). All of the cases above referred to involved tangible bodily injury and continuing suffering and pain. In its consideration of these cases, our Court has declined to attempt to define the substance of the phrase "serious bodily injury" and has adopted the rule clearly enunciated in State v. Jones, supra, and quoted with approval in the recent case of State v. Roberts, supra, that, "[w]hether such serious injury has been inflicted must be determined according to the particular facts of each case."

Because of the paucity of precedent in this or other jurisdictions concerning the question presented by this assignment of error, we turn for guidance to our civil cases involving damages for mental anguish in negligence cases. In those cases, it appears to be well settled in North Carolina that recovery in civil cases may be had where coincident in time and place with the act producing the mental stress some actual physical impact or genuine physical injury also results from the defendant's wrongful acts. King v. Higgins, 272 N.C. 267, 158 S.E.2d 67 (1967); Williamson v. Bennett, 251 N.C. 498, 112 S.E.2d 48 (1960). See also, Ford v. Blythe Bros. Co., 242 N.C. 347, 87 S.E.2d 879 (1955); Kistler v. R.R., 171 N.C. 577, 88 S.E. 864 (1916). This Court has also recognized that there may be recovery when the physical injury "consists of a wrecked nervous system instead of wounded or lacerated limbs, as those of the former class are frequently much more painful and enduring than those of the latter." May v. Telegraph Co., 157 N.C. 416, 422, 72 S.E. 1059, 1061 (1911).

Our consideration of the above principles of law convinces us, and we so hold, that proof of the element of infliction of "serious personal injury" as required by G.S. 14-27.2(2)b. and G.S. 14-27.4(2)b. may be met by the showing of mental injury as well as bodily injury.

It is impossible to enunciate a "bright line" rule as to when the acts of an accused cause mental upset which could support a finding of "serious personal injury." It would defy reason and common sense to say that there could be a forcible rape or forcible sexual offense which did not humiliate, terrorize and inflict some degree of mental injury upon the victim. Yet, the legislature has seen fit to create two degrees of rape and provide that one of the elements which may raise the degree of the crime from second degree to first-degree rape is the infliction of "serious personal injury." Likewise, the legislature has created two degrees of sexual offense by providing that one of the elements which may raise the degree of the crime from second-degree sexual offense to first-degree sexual offense is the infliction of "serious personal injury." We therefore believe that the legislature intended that ordinarily the mental injury inflicted must be more than the res gestae results present in every forcible rape and sexual offense. In order to support a jury finding of serious personal injury because of injury to the mind or nervous system, the State must ordinarily offer proof that such injury was not only caused by the defendant but that the injury extended for some appreciable time beyond the incidents surrounding the crime itself. Obviously, the question of whether there was such mental injury as to result in "serious personal injury" must be decided upon the facts of each case.

In instant case there was evidence that the victim was shaking, crying and "hysterical" immediately after the crime was committed and after the officers arrived on the morning of the crime. It must be borne in mind that all of this testimony related to the morning hours of the day that the crime was committed. This record does not disclose that there was any residual injury to the mind or nervous system of the victim after the morning of the crime. The hysteria and crying described by the witnesses occurred nearly coincident with the crime and were results that one could reasonably expect to be present during and immediately after any forcible rape or sexual offense has been committed upon the female's person.

Upon the facts of this particular case, we hold that there was not sufficient evidence to support a jury finding that the victim suffered such mental or emotional injuries as a result of defendant's acts which would constitute "serious personal injury."

By his assignment of error No. 5, defendant contends that the...