State v. Haywood

• Decision Date: 19 June 2001
• Docket Number: No. COA00-412.,COA00-412.
• Citation: 144 NC App. 223,550 S.E.2d 38
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Gary Wayne HAYWOOD.

550 S.E.2d 38

144 NC App. 223

STATE of North Carolina v. Gary Wayne HAYWOOD.

No. COA00-412.

Court of Appeals of North Carolina.

June 19, 2001.

Attorney General Michael F. Easley, by Assistant Attorney General Thomas O. Lawton, III, for the State.

Hubert N. Rogers, III, Lumberton, for defendant.

HUDSON, Judge.

Defendant appeals from his conviction of the crimes of first degree rape, first degree sexual offense, and conspiracy to commit first degree rape. We find no error.

The facts presented at trial tended to show that Loretta Kimbrough (Loretta) was walking along a road in Robeson County on the evening of 26 October 1996 when a car containing three men pulled up beside her. Defendant was in the passenger seat, James Haywood (James), defendant's cousin, was driving, and Tim Robinson (Tim) sat in the backseat. Loretta recognized James' face and knew Tim, as he had previously dated her sister. Loretta told James she was walking to a club called T.J.'s to meet her sisters. James told her that T.J.'s was closed and asked if she would like to go with them to buy some beer. She said she would and got into the backseat of the car.

Instead of driving to a store, James drove down a dirt road and asked Loretta to get out of the car to talk with him. He then asked her if she would have sex with him, and she told him no. When Loretta got back into the car, James asked defendant to get out of the car to talk with him. Defendant did, but neither Loretta nor Tim could hear what they said. James then drove to a convenience store. He and defendant went inside, and James purchased a pack of condoms. After they left the convenience store, Loretta began to be worried and asked to be taken back to where they had found her; she testified that defendant laughed at her.

James eventually drove to a vacant barn and forced Loretta out of the car by pointing a gun at her and hitting her in the face. He continued to beat her and began to sexually assault her. Defendant sat in the car for approximately twenty-five minutes, and testified that he got out of the car to try to make James stop. However, Loretta testified that, although defendant never beat her, he took turns with James sexually assaulting her. Tim testified that at one point defendant returned to the car where Tim still sat in the backseat, handed him a condom, and asked him if he wanted to participate. Tim refused. Against James' protests, defendant eventually insisted that they leave and that they take Loretta with them. Defendant drove Loretta to a bridge near a West Point Pepperell plant and let her out of the car. He and Tim testified that defendant was upset with James for beating Loretta.

In a trial commencing 18 May 1998, defendant was found guilty of first degree rape, first degree sexual offense, and conspiracy to commit first degree rape, and not guilty of second degree kidnapping. He was sentenced to between 240 and 297 months on the first degree rape charge, to between 240 and 297 months on the first degree sexual offense, and to between 151 and 191 months on the conspiracy charge, the sentences to run concurrently. Defendant filed notice of appeal to this Court.

Defendant first contends on appeal that his indictment for first degree sexual offense should have been dismissed in that it omitted the element "by force." The indictment in question reads in pertinent part: "the defendant named above unlawfully, willfully and feloniously did engage in a sexual offense with Lorretta [sic] Kimbrough against the victim's will." N.C.G.S. § 15-144.2(a) (1999) states that in indictments for sex offense, "it is sufficient in describing a sex offense to allege that the accused person unlawfully, willfully, and feloniously did engage in a sex offense with the victim, naming the victim, by force and against the will of such victim." Defendant's indictment did omit the term "by force" specified in G.S. § 15-144.2(a). Over the objection of defendant, the court allowed the State to amend the indictment to insert this term.

Pursuant to N.C.G.S. § 15A-923(e) (1999), a bill of indictment may not be amended in a manner which substantially alters the charge set forth. State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822, 824 (1994). Therefore, we must determine whether the addition of the term "by force" in the indictment substantially altered the charge against defendant. Our Supreme Court opined in State v. Johnson, 226 N.C. 266, 268, 37 S.E.2d 678, 679 (1946) that while a rape indictment omitting both the terms "forcibly" and "against the will" of the victim is fatally defective, the term "`forcibly' can be supplied by any equivalent word" and "is sufficiently charged by the words `feloniously and against her will.'" Since the indictment in the present case did include the terms "feloniously" and "against the victim's will," we believe the charge was not substantially altered by the addition of the term "by force." Thus, the trial court did not err in allowing the amendment.

Defendant next argues the trial court erred in denying his motion to require the State to furnish the prior criminal records of non-law enforcement witnesses for the State. Our Supreme Court has held that the State is not required to produce such information in discovery. State v. Bruce, 315 N.C. 273, 279, 337 S.E.2d 510, 514-15 (1985). This assignment of error is overruled.

Defendant further contends the trial court erred in denying his motion to dismiss the charges against him for insufficiency of the evidence. In ruling on a motion to dismiss, the trial court must decide whether there is substantial evidence as to each essential element of the crime charged and that defendant was the person who committed the offense. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Furthermore, the court must consider all of the evidence in the light most favorable to the State; the defendant's evidence, unless favorable to the State, is not to be taken into consideration. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652-53 (1982).

Defendant first contends there was insufficient evidence of a conspiracy to commit first degree rape. Conspiracy is an agreement between two parties to do an unlawful act. State v. LeDuc, 306 N.C. 62, 75, 291 S.E.2d 607, 615 (1982), overruled on other grounds by State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987)

. Evidence of an overt act or express agreement is not required and the crime may be proved solely by circumstantial evidence. Id. at 75-76, 291 S.E.2d 607, 291 S.E.2d at 615-16. A person is guilty of rape if he engages in vaginal intercourse with a person by force and against her will; the crime is elevated to first degree if, among other options, he displays a dangerous weapon or is aided and abetted by another person. N.C.G.S. § 14-27.2 (1999).

At trial, the State proved the crime of conspiracy based solely on circumstantial evidence. In particular, there was evidence that after Loretta told James she did not want to have sex with him, James asked defendant to step outside the car and talk with him. After the men returned to the car, James drove to a convenience store where he and defendant entered and James bought condoms. James then drove to a trailer park behind the store and tried to get Loretta out of the car; when a light came on in one of the trailers, defendant allegedly told James it was the wrong stop. As James was driving to the barn where Loretta was raped, defendant purportedly laughed when Loretta asked to be taken back to where they had found her. Defendant knew James owned a handgun and had seen him with it earlier that day. When they reached the barn, James threatened Loretta with the handgun, forced her out of the car, and began sexually assaulting her. Defendant allegedly engaged in all the same sex acts with Loretta that James did, including oral, vaginal, and anal intercourse.

We believe the above evidence taken together is adequate to support the inference that defendant made an agreement with James to commit rape in the first degree. Thus, the trial court did not err in submitting the charge of conspiracy to commit first degree rape to the jury.

Defendant next argues there was insufficient evidence that he committed first degree rape. Specifically, he contends that there was no evidence he penetrated Loretta's vagina with his penis. Loretta testified at trial regarding defendant: "He put his penis in my rectum. He made me have sex with him." Thus, it is true that she did not specifically testify that defendant penetrated her vaginally. However, a nurse testified Loretta told her at the hospital the night of the crime that the men had penetrated both her vagina and her rectum. See N.C.R. Evid. 803(4)(statements made for purposes of medical treatment are exceptions to hearsay rule). In addition, Loretta testified that defendant had committed all the same sex acts James had.

Defendant also asserts there was insufficient evidence to elevate the crime of rape to first degree. The trial court instructed the jury it could find defendant guilty of first degree rape if he "displayed a dangerous or deadly weapon" or "was aided and abetted by another person" during the commission of the crime. See G.S. § 14-27.2(a)(2)(a) & (c). The evidence is undisputed that James displayed a handgun during his and defendant's sexual assault of Loretta. The jury could have imputed James' use of the handgun to defendant under the theory of acting in concert and was in fact given an instruction on this theory.

It is not ... necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient

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