State v. Gurganus

• Decision Date: 16 January 1979
• Docket Number: No. 787SC762,787SC762
• Citation: 250 S.E.2d 668,39 N.C.App. 395
• Court: North Carolina Court of Appeals
• Parties: , 5 A.L.R.4th 700 STATE of North Carolina v. McDonald GURGANUS

Page 668

250 S.E.2d 668

39 N.C.App. 395, 5 A.L.R.4th 700

STATE of North Carolina v. McDonald GURGANUS

No. 787SC762.

Court of Appeals of North Carolina.

Jan. 16, 1979.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.

Spruill, Trotter & Lane by N. K. Falk, Rocky Mount, for defendant-appellant.

MITCHELL, Judge.

The defendant contends that G.S. 14-33(b)(2) arbitrarily discriminates against him on the basis of his sex in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. In support of this contention, the defendant correctly points out that he has received a greater sentence of imprisonment as a male for assaulting a female than that permitted by statute in cases involving an otherwise identical assault by a female upon a male or upon another female. For reasons hereinafter set forth, we find the statute does not deny the defendant "the equal protection of the laws" in violation of the Fourteenth Amendment.

The authority of the courts of this State to declare an act of the General Assembly unconstitutional was established in Bayard v. Singleton, 1 N.C. 5 (1787). In Bayard, North Carolina adopted the doctrine of judicial review, which was to be later adopted by the Supreme Court of the United States in Marbury v. Madison, 1 Cranch. 137, 5 U.S. 137, 2 L.Ed. 60 (1803). Should a conflict arise between a statute and the Constitution, our courts must decide the issues presented in the case before them in accordance with the Constitution, as it is the superior rule of law in such situations. Nicholson v. Education Assistance Authority, 275 N.C. 439, 168 S.E.2d 401 (1969); Mazda Motors v. Southwestern Motors, 36 N.C.App. 1, 243 S.E.2d 793 (1978). With these rules in mind, we undertake an analysis of the constitutional issues presented by the present case.

In passing upon questions involving gender based classifications, the Supreme Court of the United States has apparently adopted "an intermediate standard of scrutiny in equal protection analysis, more deferential than the 'strict scrutiny' exercised in challenges to suspect classifications and classifications impinging on fundamental rights but more exacting than the 'rational basis' test traditionally applied to economic and social welfare legislation." The Supreme Court, 1976 Term, 91 Harv.L.Rev. 1, 177 (1977) (hereinafter "The Supreme Court "). In Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397, Reh. den., 428 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574 (1976), Mr. Justice Brennan delivered the opinion of the Court requiring that: "(C)lassifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." 429 U.S. at 197, 97 S.Ct. at 457. A majority of the Court joined in the opinion with each member filing a separate concurring opinion.

It has been stated that Mr. Justice Brennan's opinion in Craig did not specifically call for a "middle tier" of scrutiny. The Supreme Court, 178. The opinions of the other members of the Court forming the majority in that case, however, indicated that they were of the opinion that the case established just such a "middle tier." We concur in this view. The "middle tier" level of scrutiny set forth in Craig has been since reaffirmed and is for the present fully applicable to cases involving attacks upon gender based classifications. Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977). Although there is little agreement by the commentators that the Craig test is necessarily the best test to be employed in cases of alleged discrimination on the basis of sex, there does appear to be general agreement that it is the currently controlling test. Loewy, A Different and More Viable Theory of Equal Protection, 57 N.C.L.Rev. 1, 11 (1978) (hereinafter "Loewy"); The Supreme Court, 177-88.

The commentators have also contended that, in addition to the test stated in Craig, the Court has allowed a generally unstated element of "reverse discrimination" against men in their capacity as a dominant group to influence its opinions. Loewy, 11-22 (1978); Cf. Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977) (upholding gender based classification "deliberately enacted to compensate for particular economic disabilities suffered by women.") These and other facets presented by the evolving law of equal protection have prompted one commentator to yield to an apparent sense of some frustration and to state that: "Surely we are near the point of maximum incoherence of equal protection doctrine." Karst, The Supreme Court, 1976 Term-Forward: Equal Citizenship Under the Fourteenth Amendment, 91 Harv.L.Rev. 1, 3 (1977).

Despite the existence of certain areas of uncertainty which will require further clarification by the Supreme Court of the United States, we find the test set forth in Craig and reiterated in Goldfarb to be controlling in cases involving constitutional challenges to gender based classifications applied by the States. That test compels any statute or other "state action" to meet two requirements prior to being found permissible and consistent with the Fourteenth Amendment. First, the classification by gender must serve "important" governmental objectives. Second, the classification by gender must be "substantially" related to achievement of those objectives. We find that G.S. 14-33(b)(2) meets both these requirements and is in no way violative of the letter or spirit of the Fourteenth Amendment.

In passing upon the constitutionality of the challenged subsection of the statute, we do not examine it in isolation. Instead, the challenged subsection must be viewed in context and as a part of the entire and integrated whole of the statute in which it is found. G.S. 14-33, in its entirety, prohibits varying types of assault, batteries and affrays as follows:

§ 14-33. Misdemeanor assaults, batteries, and affrays, simple and aggravated; punishments. (a) Any person who commits a simple assault or a simple assault and battery or participates in a simple affray is guilty of a misdemeanor punishable by a fine not to exceed fifty dollars ($50.00) or imprisonment for not more than 30 days.

(b) Unless his conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a misdemeanor punishable by a fine, imprisonment for not more than two years, or both such fine and imprisonment if, in the course of the assault, assault and battery, or affray, he:

(1) Inflicts, or attempts to inflict, serious injury upon another person or uses a deadly weapon; or

(2) Assaults a female, he being a male person over the age of 18 years; or

(3) Assaults a child under the age of 12 years; or

(4) Assaults a law-enforcement officer or a custodial officer of the State Department of Correction, while the officer is discharging or attempting to discharge a duty of his office.

The statute in its entirety provides a logical pattern protecting the citizens of North Carolina from acts of violence. Subsection (a) of the statute establishes the crimes of assault, assault and battery and affray. Subsection (b) and its subsections do not create additional or separate offenses. Instead, those subsections provide for differing punishments when the presence or absence of certain factors are established. State v. Roberts, 270 N.C. 655, 155 S.E.2d 303 (1967); State v. Jones, 258 N.C. 89, 128 S.E.2d 1 (1962); State v. Beam, 255 N.C. 347, 121 S.E.2d 558 (1961); State v. Courtney, 248 N.C. 447, 103 S.E.2d 861 (1958); State v. Jackson, 226 N.C. 66, 36 S.E.2d 706 (1946); State v. Smith, 157 N.C. 578, 72 S.E. 853 (1911). Although not elements of the crimes prohibited, these factors must be shown to exist in order for the evidence to support a judgment imposing one of the greater sentences provided. State v. Grimes, 226 N.C. 523, 39 S.E.2d 394 (1946).

In adopting G.S. 14-33, the General Assembly of North Carolina clearly sought to prevent bodily injury to the citizens of the State arising from assaults, batteries and affrays. The protection of the physical integrity of the citizens of the State is An important governmental objective. It is not only An important governmental objective; it is The most important and fundamental objective of government. Without such protection there can be neither government nor civilization.

We must additionally determine, however, whether subsection (b)(2) of the statute, providing for imprisonment for a period of as much as two years in cases of assaults upon females by males over eighteen years of age but providing for a maximum term of imprisonment of not more than...