State v. Brown

• Decision Date: 04 September 1992
• Docket Number: No. 459PA91,459PA91
• Citation: 420 S.E.2d 147,332 N.C. 262
• Parties: STATE of North Carolina v. John BROWN.
• Court: North Carolina Supreme Court

Page 147

420 S.E.2d 147

332 N.C. 262

STATE of North Carolina v. John BROWN.

No. 459PA91.

Supreme Court of North Carolina.

Sept. 4, 1992.

On discretionary review of an unpublished decision of the Court of Appeals, 104 N.C.App. 309, 409 S.E.2d 332 (1991), reversing a judgment entered on 2 May 1990 by Watts, J., in Superior Court, Pitt County. Heard in the Supreme Court on 13 April 1992.

The defendant was tried at the 30 April 1990 Criminal Session of Superior Court, Pitt County, upon a proper bill of indictment for second-degree sexual offense. The jury having returned a verdict finding the defendant guilty of second-degree sexual offense, the trial court entered judgment sentencing him to imprisonment for a term of thirty-five years. The defendant appealed to the Court of Appeals.

In an unpublished opinion, the Court of Appeals concluded that the State had not presented substantial evidence at trial to establish the element of force necessary to sustain a conviction under N.C.G.S. § 14-27.5(a)(1) for second-degree sexual offense. As a result, the Court of Appeals reversed the judgment of the trial court. On 21 October 1991, the Supreme Court allowed the State's motion for a temporary stay of the decision of the Court of Appeals. 330 N.C. 198, 410 S.E.2d 497. By Order dated 6 December 1991, the Supreme Court allowed supersedeas, granted the State's petition for discretionary review of the decision of the Court of Appeals, and granted the defendant's motion to bring additional issues forward for discretionary review. 330 N.C. 443, 412 S.E.2d 77.

Lacy H. Thornburg, Atty. Gen., by Timothy D. Nifong, Asst. Atty. Gen., Raleigh, for State-appellant.

Malcolm Ray Hunter, Jr., Appellate Defender by Teresa A. McHugh, Asst. Appellate Defender, Raleigh, for defendant-appellee Brown.

MITCHELL, Justice.

On discretionary review before this Court, the State first argues that it met its burden of proof at trial as to all essential elements of the crime of second-degree sexual offense. The Court of Appeals concluded that no substantial evidence was introduced at trial to support a reasonable finding that the defendant in the present case used force in the commission of the offense charged. For that reason, the Court of Appeals concluded that the defendant was entitled to his liberty and reversed the trial court's judgment without reaching the defendant's remaining assignments of error. For reasons which follow, we conclude that the Court of Appeals erred in its conclusion and holding. Therefore, the decision of the Court of Appeals must be reversed, and the judgment of the trial court must be reinstated.

The evidence introduced at trial tended to show that the victim, an adult female, was employed as a registered nurse at Pitt County Memorial Hospital. She had long suffered from cystic fibrosis, a hereditary pulmonary disease. She became seriously ill and was hospitalized as a patient at Pitt County Memorial Hospital on 20 December 1989. A course of treatment was commenced, including the intravenous administration of antibiotics. During 21 December 1989, the victim was coughing up blood and was nauseated. By the evening of 22 December 1989, she was feeling better and was able to watch television. About 11:30 p.m., she turned the television off and went to sleep. A nightlight was on in her room. The bathroom door was cracked open, and the light in the bathroom was left on.

At approximately 1:10 a.m., on 23 December 1989, the victim aroused from her sleep sufficiently to become aware that someone was feeling her identification bracelet and feeling the tubing being used to administer antibiotics to her intravenously. The victim assumed it was her nurse and did not open her eyes. The person then pulled down the bedclothing and began feeling the victim's abdomen. The victim assumed her nurse was assessing her condition by conducting abdominal palpation, which is a routine procedure for assessing the condition of patients who have experienced nausea. The person then pulled up the victim's nightgown and pulled her panties aside. Immediately thereafter, the victim opened her eyes for the first time when the person placed his fingers in her pubic hair. The victim saw the defendant standing over her. The defendant then pushed his finger into the victim's vagina. When she moved, he began to walk away from the bed and toward the door. At that point the victim could tell that he was not dressed as a nurse. She sat up and said, "Sir, may I help you?" The defendant turned as he left the room and said, "No, ma'm, everything's okay, just go back to sleep."

When the man left her room, the victim turned off the solution of antibiotics which was being administered to her intravenously, picked up the pole on which the antibiotics were hanging, and went into the hall outside her room. She saw the defendant walking down the hall, and she called for someone to stop him. The victim told her nurse, Mrs. Horsely, what had happened and described her assailant. Nurse Horsely recognized that the description the victim gave of her assailant fit the man Horsely had seen in the hallway a few moments before. Nurse Horsely, with the assistance of a police officer, located the defendant in the front lobby of the hospital. Nurse Horsely recognized him as the man she had seen coming from the direction of the victim's room at about the time the victim had been assaulted. Shortly thereafter, the victim identified the defendant as the man who had assaulted her in her hospital room.

Under N.C.G.S. § 14-27.5(a):

A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:

(1) By force and against the will of the other person; or

(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally defective, mentally incapacitated, or physically helpless.

N.C.G.S. § 14-27.5(a) (1986). We neither consider nor decide whether the evidence in this case would support a reasonable finding that the victim was "physically helpless" as that term is used in the statute, N.C.G.S. § 14-27.5(a)(2), since the charge against the defendant was not submitted to the jury on that theory. Instead, the charge against the defendant was submitted to the jury on the theory that the defendant engaged in a sexual act with the victim by force and against her will in violation of N.C.G.S. § 14-27.5(a)(1), and the jury returned its guilty verdict based on that theory. Our inquiry concerning this issue on appeal, then, is limited to the question of whether there was substantial evidence to support a reasonable finding that the defendant used the force required to sustain his conviction under N.C.G.S. § 14-27.5(a)(1).

The phrase "[b]y force and against the will of the other person" as used in N.C.G.S. § 14-27.5(a)(1) has the same meaning as it did at common law when it was used to describe an element of rape. State v. Locklear, 304 N.C. 534, 539, 284 S.E.2d 500, 503 (1981). That element is present if the defendant uses force sufficient to overcome any resistance the victim might make. See, e.g., State v. Etheridge, 319 N.C. 34, 46, 352 S.E.2d 673, 681 (1987) (quoting State v. Alston, 310 N.C. 399, 409, 312 S.E.2d 470, 476 (1984)); State v. Jones, 304 N.C. 323, 330, 283 S.E.2d 483, 487 (1981); State v. Bailey, 36 N.C.App. 728, 732, 245 S.E.2d 97, 100 (1978). "The requisite force may be established either by actual, physical force or by constructive force in the form of fear, fright, or coercion." Etheridge, 319 N.C. at 45, 352 S.E.2d at 680. Constructive force may be shown by evidence of threats or other actions of the defendant which compel the victim's submission. Id. Such threats "need not be explicit so long as the totality of circumstances allows a reasonable inference that such compulsion was the unspoken purpose of the threat." Id. The defendant argues that no evidence of either actual physical force or constructive force was introduced at trial in the present case. In support of this argument, he relies strongly inter alia upon reasoning applied in State v. Alston, 310 N.C. 399, 312 S.E.2d 470 (1984). The defendant's reliance is misplaced.

Alston arose upon evidence so peculiar that the decision in that case may well be sui generis. The alleged victim in Alston had engaged in a consensual sexual relationship with the defendant for six months prior to the rape alleged in that case. Uncontroverted and uncontested testimony by the alleged victim herself showed that when they had sexual intercourse during that relationship, she would remain entirely motionless while the defendant undressed her and had intercourse with her. On the day of the alleged rape, the defendant waited outside the school which the woman attended. He grabbed her arm and told her she was going with him. As they walked away, he threatened to "fix" her face. The two then walked around the neighborhood and discussed their relationship. Eventually, the alleged victim followed the defendant to the home of a friend. There, as she testified was customary and usual conduct between them, the defendant began to undress her and told her to lie on the bed. Then, in accord with what she also described as usual and ordinary conduct between them, the defendant pushed her legs apart and had intercourse with her while she offered no resistance and remained motionless. She then left and went home. She waited some time but, after telling her mother what had happened, contacted law enforcement authorities who charged the defendant Alston with rape. Uncontested and uncontroverted testimony by the alleged victim in Alston also indicated that after the defendant had been charged with rape, he came by her apartment to see her.

Brown said she sat and looked at him, and he began kissing her. She pulled away and he picked her up and carried her to the bedroom. H...