State v. Hardy, No. 903SC1184

• Decision Date: 15 October 1991
• Docket Number: No. 903SC1184
• Citation: 409 S.E.2d 96,104 N.C.App. 226
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Charles Edward HARDY.

Page 96

409 S.E.2d 96

104 N.C.App. 226

STATE of North Carolina v. Charles Edward HARDY.

No. 903SC1184.

Court of Appeals of North Carolina.

Oct. 15, 1991.

Attorney General Lacy H. Thornburg, by Asst. Atty. Gen., Teresa L. White, Raleigh, for the State.

Robin L. Fornes, Greenville, for defendant-appellant.

EAGLES, Judge.

I

The defendant first argues that the trial court erred by denying defendant's motion to dismiss the charges because of insufficient evidence. We disagree.

It is well settled that upon a motion to dismiss in a criminal action, all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. Any contradictions or discrepancies in the evidence are for resolution by the jury.

State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citing State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977)).

A

Defendant argues that the State failed to show that the alleged sexual intercourse was by force and against the victim's will. This argument is controlled by State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987). In Etheridge, the Supreme Court addressed the proof necessary to support a conviction for second-degree sexual offense. Specifically, the court addressed the requirements of the phrase "[b]y force and against the will of the other person." The language construed is identical to the phrase found in the definition of second-degree rape. Id. at 44, 352 S.E.2d at 680; G.S. § 14-27.3. The Court stated:

The phrase "by force and against the will of the other person" means the same as it did at common law when it was used to describe an element of rape. State v. Locklear, 304 N.C. 534, 284 S.E.2d 500 (1981). The requisite force may be established either by actual, physical force or by constructive force in the form of fear, fright, or coercion. State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975). Constructive force is demonstrated by proof of threats or other actions by the defendant which compel the victim's submission to sexual acts. See State v. Burns, 287 N.C. 102, 214 S.E.2d 56, cert. denied, 423 U.S. 933 , 46 L.Ed.2d 264 (1975) (threat of serious bodily injury sufficient to constitute constructive force). 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. State v. Barnette, 304 N.C. 447, 284 S.E.2d 298 (1981).

Etheridge at 45, 352 S.E.2d at 680. The Etheridge Court then applied the constructive force doctrine to the defendant's acts. In Etheridge, the defendant, the minor child's father, had made illicit sexual advances toward his son beginning when the son was eight years old. Id. at 47, 352 S.E.2d at 681. The abuse occurred while the child lived as an unemancipated minor in the defendant's household, subject to the defendant's parental authority and discipline. Id. at 47-48, 352 S.E.2d at 681. In the incident charged the defendant instructed his son "[d]o it anyway" when his son initially refused to disrobe. Id. at 48, 352 S.E.2d at 681. Finding constructive force to be present the Court stated:

It is nonetheless reasonable to conclude that these words carried a great deal more menace than is apparent on the surface,.... The child's knowledge of his [parent's] power may alone induce fear sufficient to overcome his will to resist, and the child may acquiesce rather than risk his [parent's] wrath. As one commentator observes, force can be understood in some contexts as the power one need not use. Estrich, Rape, 95 Yale L.J. 1087, 1115 (1986).

In such cases the parent wields authority as another assailant might wield a weapon. The authority itself intimidates; the implicit threat to exercise it coerces. Coercion, as stated above, is a form of constructive force.

Etheridge at 48, 352 S.E.2d at 681-682.

Here, constructive force can be reasonably inferred from the circumstances surrounding the parent-child relationship. The defendant, the victim's step-father, began abusing the victim when she was only fifteen years old. Each episode of abuse occurred while the victim lived with the defendant as an unemancipated minor in the defendant's trailer and subject to his parental authority. In each incident the defendant was either silent or at most said "Shh" while climbing on top of his step-daughter and engaging in sexual intercourse with her. She never gave her consent and the defendant never asked for it. When considered with the totality of the circumstances of this case, it is reasonable to conclude that by removing her underwear and physically climbing in on top of the victim, either silently or with a "Shh," the defendant's actions "carried a great deal more menace than is apparent on the surface...." Etheridge at 48, 352 S.E.2d at 681. "[W]e hold that the state presented sufficient evidence from which a jury could reasonably infer that the defendant used his position of power to force his [step-daughter] to participat[e] in sexual [intercourse]." Id.

B

Defendant next argues that two of the second degree rape charges (90 CRS 1786 and 90 CRS 1787) should have been dismissed "because of a lack of speci[f]icity and proof as to when the charges occurred." This argument is without merit.

In State v. Wood, 311 N.C. 739, 319 S.E.2d 247 (1984), the defendant was convicted of first degree rape and two counts of taking indecent liberties with a minor. Id. at 740, 319 S.E.2d at 247. On appeal the defendant argued that the evidence was insufficient to convict him of rape because the State failed to prove the specific date of the rape as alleged in the indictment. Id. at 742, 319 S.E.2d at 249. The victim had testified that the offense occurred on a weekend sometime prior to Memorial Day and that she was still in school. Id. The court rejected the defendant's argument:

We have stated repeatedly that in the interest of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child's uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of evidence. State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983); State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962). See: State v. Sills, 311 N.C. 370, 317 S.E.2d 379 (1984). Nonsuit may not be allowed on the ground that the State's evidence fails to fix any definite time for the offense where there is sufficient evidence that defendant committed each essential act of the offense. Id.

Id. at 742, 319 S.E.2d at 249.

State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988) is also instructive. In Swann, the defendant sexually assaulted an eleven year old child. Id. at 669, 370 S.E.2d at 535. The child was unable to remember the exact date of the assaults. However, he was able to identify a specific event around which the assaults occurred. The child testified that the incidents occurred shortly after his brother was born. Id. at 674, 370 S.E.2d at 538. The victim's mother testified that the first incident occurred three to four weeks after the victim's brother's birth and stated the date of that birth. Id. at 674-675, 370 S.E.2d at 538. The Court held that the testimony was sufficient to submit the charges to the jury. Id. at 675, 370 S.E.2d at 538.

Here, both indictments attacked by the defendant state the date of offense as "[b]etween" July 1989 and 22 October 1989. Lisa was unable to identify a specific date on which each of the offenses occurred. However, Lisa was able to relate the assaults to specific events in her life. Lisa testified, "[w]ell, nothing really started until we moved to the new trailer." She also testified that she moved into the new trailer "in the middle of July [or] early August." This testimony was sufficiently precise to submit the charges to the jury.

C

Defendant also assigns as error the trial court's denial of the defendant's motion to dismiss the charges of taking indecent liberties with a child. However, the defendant has failed to support his assignment with reason, argument or authority. Accordingly, this assignment of error has been abandoned. N.C.R.App.P. 28(c).

II

Defendant next argues the trial court committed reversible error by allowing into evidence out of court statements made by the victim. We find no reversible error here.

A

First, the defendant claims the letter that the victim gave to the pastor's wife of the Community Christian Church in Winterville was inadmissible hearsay and was not corroborative of the victim's prior testimony. Specifically, the defendant objects to that part of the letter which states, "my step-father forces my (sic) to have sexual intercourse with me [sic] but I don't want that...." This contention is without merit.

One of the most widely used and well-recognized methods of strengthening the credibility of a witness is by the admission of prior consistent statements. State v. Carter, 293 N.C. 532, 238 S.E.2d 493 (1977). If previous statements offered in corroboration are generally consistent with the witness's testimony, slight variations between them will not render the statements inadmissible. Such variations only affect the credibility of the evidence which is always for the jury. [Citations omitted.]

State v. Locklear, 320 N.C. 754, 761-762, 360 S.E.2d 682, 686 (1987).

Upon direct examination the victim testified as follows:

Q: What would happen when he would come in your room?

A: Well, he'll get--he'll get on me.

Q: Now, would you have any clothes on or would he have any clothes on?

A: I had my night clothes on.

Q: What would happen to your night clothes?

A: They still be on.

Q: And what would the defendant do?

A: Take off my underwear.

Q: Would he say anything to you?

A: No.

Q: And what would he do to you?

A: Get on top of me.

Q: What would happen then?

A: He put his penis inside me....