State v. Goss

• Decision Date: 14 July 1977
• Docket Number: No. 41,41
• Parties: STATE of North Carolina v. Tim GOSS.
• Court: North Carolina Supreme Court

Page 844

235 S.E.2d 844

293 N.C. 147

STATE of North Carolina v. Tim GOSS.

No. 41.

Supreme Court of North Carolina.

July 14, 1977.

Rufus L. Edmisten, Atty. Gen. by Henry H. Burgwyn, Associate Atty., Raleigh, for the State.

McElwee, Hall & McElwee by John E. Hall and William C. Warden, Jr., North Wilkesboro, for defendant-appellant.

EXUM, Justice.

Defendant was tried upon an indictment charging first degree rape and upon two warrants each charging misdemeanor assault with a deadly weapon. The three charges were consolidated for trial. Defendant was convicted and sentenced to life imprisonment upon the rape charge and two years in prison for each of the misdemeanors. Motion to bypass the Court of Appeals in the misdemeanor cases was allowed and the appeals were consolidated.

Defendant raises a number of questions on appeal. The most significant are: (1) his contention that the indictment, lacking an allegation that defendant was over sixteen years of age at the time of the alleged rape, was insufficient to support a conviction for first degree rape; and (2) his contention that the court erred prejudicially in its instruction limiting the jury's consideration of evidence of the victim's bad character reputation to her credibility. We find merit in both these arguments. Accordingly, the rape case is remanded for the entry of a verdict of guilty of second degree rape and reconsideration of the sentence by the trial court. In the jury instruction limiting the effect of evidence of the victim's character, we find the error was without prejudice to defendant. In other assignments of error raised, we find no merit.

The state presented evidence tending to show that Joyce Johnson, the victim, and her sister, Nancy, accompanied defendant, Tim Goss, with Diane Walker and one Monroe Hawkins in a truck to a deer camp. The Johnson girls had agreed to go to town with the others, but were told a detour by the camp was necessary to enable Hawkins to put out a fire and pick up some belongings. While at the camp, Tim Goss forced Joyce into the woods, threatening her with a knife and a gun. After one episode of sexual intercourse she escaped him. He followed her and caught her, slashing at the other two girls who attempted to interfere. Goss then took Joyce back into the woods and repeated the sexual act. When he allowed the girls to leave they went to a nearby house occupied by Mr. Rowan Combs, where they called police.

Defendant's evidence, including his own testimony, tended to show the girls willingly accompanied Hawkins and himself to the camping area, that everyone at the camp was smoking "pot," that Joyce had sexual intercourse with him voluntarily and at her own suggestion inside the tent. He testified that he walked the girls to Mr. Combs' house. His knife was stuck in a tree near the tent all evening according to Goss, and he never possessed the pistol offered in evidence, which belonged to Rex Wiles. He could not explain the bruises and scratches on Joyce's body, but testified she kept her clothes on at all times outside the tent. Defendant also presented evidence tending to show the bad reputation of all three girls as well as his own good reputation.

Although no reference to the issue is made in his brief, defendant has challenged the sufficiency of the indictment for rape by a motion in arrest of judgment made during oral argument in this Court in reliance upon State v. Perry, 291 N.C. 586, 231 S.E.2d 262 (1977).

A motion in arrest of judgment is directed to some fatal defect appearing on the face of the record. State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972); State v. Fletcher, 279 N.C. 85, 181 S.E.2d 405 (1971). It has been held that such a motion may be made for the first time on appeal in the Supreme Court. State v. Sellers, 273 N.C. 641, 161 S.E.2d 15 (1968); 4 Strong's North Carolina Index 3d, Criminal Law § 127 (1976).

The motion in arrest of judgment, however, "is proper when it is apparent that no judgment against the defendant could be lawfully entered because of some fatal error appearing in (1) the organization of the court, (2) the charge made against the defendant (the information, warrant or indictment), (3) the arraignment and plea, (4) the verdict, and (5) the judgment." State v. Perry, supra, 291 N.C. at 589, 231 S.E.2d at 265. (Emphasis added.) "Such motion is to be distinguished from a motion to vacate or set aside an erroneous judgment in order that a proper judgment may be entered." Id.

The motion in arrest of judgment is properly overruled in this case, for the indictment will clearly support a judgment against defendant for second degree rape. Under our holding in State v. Perry, supra, however, the indictment is insufficient to support a conviction for rape in the first degree.

The crime of rape was divided into two degrees by the 1973 amendment to General Statute 14-21, which provided that second degree rape shall be a lesser included offense of first degree rape. That statute provides:

"Rape; punishment in the first and second degree. Every person who ravishes and carnally knows any female of the age of 12 years or more by force and against her will, or who unlawfully and carnally knows and abuses any female child under the age of 12 years, shall be guilty of rape, and upon conviction, shall be punished as follows:

(a) First-Degree Rape

(1) If the person guilty of rape is more than 16 years of age, and the rape victim is a virtuous female child under the age of 12 years, the punishment shall be death; or

(2) If the person guilty of rape is more than 16 years of age, and the rape victim had her resistance overcome or her submission procured by the use of a deadly weapon, or by the infliction of serious bodily injury to her, the punishment shall be death.

(b) Second-Degree Rape Any other offense of rape defined in this section shall be a lesser-included offense of rape in the first degree and shall be punished by imprisonment in the State's prison for life, or for a term of years, in the discretion of the court."

Where the victim is at least 12 years old, the elements of first degree rape are: (1) carnal knowledge of a female person, (2) by force, or as we explained in State v Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), death sentence vacated, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976), by "fear, fright or coercion," (3) against the will of the victim, (4) the defendant being more than 16 years of age, and (5) the victim's resistance having been overcome or her submission having been procured by the use of a deadly weapon or by the infliction of serious bodily injury. G.S. 14-21; State v. Perry, supra.

The indictment in this case appears as follows:

"THE JURORS FOR THE STATE UPON THEIR OATH PRESENT, That Tim Goss in Wilkes County, on or before the 24th day of November, 1975, with force and arms, at and in the county aforesaid, did, unlawfully, wilfully and feloniously ravish and carnally know Joyce K. Johnson, a female, by force and against her will against the form of the statute in such case made and provided and against the peace and dignity of the state."

As in Perry, there was ample evidence presented by the state to show first degree rape. But, as in Perry, the indictment fails to charge that offense since it charges neither the use of a deadly weapon or infliction of serious bodily injury nor that defendant, at the time of the offenses, was more than 16 years of age. Both are elements of the crime which must be alleged and proved to support a conviction. State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977); State v. Perry, supra.

As in Perry, however, the indictment is sufficient to charge rape in the second degree; the evidence is clearly sufficient to support a verdict of guilty of that offense and the verdict "must, therefore, be regarded as a verdict of guilty of rape in the second degree." State v. Perry, supra, 291 N.C. at 595, 231 S.E.2d at 268. The defendant thus may not be sentenced for first degree rape. The case must be remanded to the Superior Court of Wilkes County for entry of a verdict of guilty of second degree rape and for a proper judgment on that verdict. State v. Perry, supra; State v. Courtney, 248 N.C. 447, 103 S.E.2d 861 (1958).

The punishment for rape in the second degree is provided by General Statute 14-21(b) to include life imprisonment or imprisonment for a term of years, in the court's discretion. This discretion is vested, as we noted in Perry, in the trial court, not the Supreme Court. The case must therefore be remanded for the exercise of that court's discretion in sentencing defendant Goss for second degree rape as provided by the statute.

We next consider defendant's eleventh assignment of error, by which he urges the prejudicial impropriety of the following instruction to the jury:

"Evidence has been received with regard to the reputation of the witnesses, Joyce Johnson, Nancy Johnson and Diane Walker, that is the defendant offered the testimony of Chief of Police of North Wilkesboro that as to each of those girls their reputation was not good. You may consider this evidence for one purpose. If you believe all or any part of this evidence and find that it bears upon one of those particular girls' statements as a witness as to their truthfulness, you may consider it, together with all the other facts and circumstances bearing upon that particular witness's truthfulness, in deciding whether you will believe or disbelieve their testimony at this trial. Except as it may bear on this decision this evidence may not be considered by you in your determination of any facts in this case."

A similar instruction was given concerning evidence of a rape victim's reputation in State v. Davis, 291 N.C. 1, 229 S.E.2d 285 (1976). There, as here, the defendant contended the effect of the instruction was improperly to withdraw evidence of the victim's reputation from the jury's consideration on the issue of her consent to...