State v. Herring
| Citation | 322 N.C. 733,370 S.E.2d 363 |
| Decision Date | 28 July 1988 |
| Docket Number | No. 572A87,572A87 |
| Court | United States State Supreme Court of North Carolina |
| Parties | STATE of North Carolina v. Curtis HERRING. |
Lacy H. Thornburg, Atty. Gen. by Doris J. Holton, Asst. Atty. Gen., Raleigh, for the State.
Joslin Davis, Winston-Salem, for defendant-appellant.
The defendant, Curtis Ray Herring, was tried upon proper bills of indictment charging him with rape, first-degree kidnapping, three counts of sexual offense and common law robbery. A jury found the defendant guilty of first-degree rape, first-degree sexual offense, first-degree kidnapping, two counts of second-degree sexual offense and common law robbery. The trial court entered judgments sentencing the defendant to two consecutive life sentences for first-degree rape and first-degree sexual offense, forty years for two counts of second-degree sexual offense and three years for common law robbery. The trial court arrested judgment on the conviction for first-degree kidnapping.
The defendant has brought forward on appeal numerous assignments of error. Having reviewed his assignments, we hold that the defendant's trial was free of reversible error.
The State's evidence tended to show, inter alia, that at approximately 9:30 p.m. on 29 September 1986, the female victim was walking along Ogburn Avenue in Winston-Salem when the defendant stopped his car beside her and asked if she wanted a ride. She answered "no" and continued walking. The defendant again drove up beside her and stopped. He told her to "get in the car or he was going to kill [her]." She got in as told, and the defendant held her hair so she could not get out of the car. The defendant drove to a dead-end road beside a church and stopped. He made the victim undress and threw her onto the back seat. He then performed cunnilingus upon her and made her perform fellatio upon him. The defendant also forcibly penetrated the victim with his penis, both vaginally and anally. She began to scream and the defendant choked her into unconsciousness. She regained consciousness as she was being dragged through the woods with her jeans tied around her neck. When the defendant saw her regain consciousness, he began choking her again. She once again lost consciousness. When she regained consciousness, the defendant was gone. Clad only in shoes and jeans, the victim went to the nearest house and telephoned the police.
The victim was taken by ambulance to Forsyth County Hospital. The attending physician testified that the victim suffered from numerous bruises and scratches over her body. The bruises around her neck resembled the "ends of fingers." The doctor observed dried blood in the victim's vaginal and anal areas.
Corporal Joyce Sink of the Forsyth County Sheriff's Department responded to the victim's call. She drove down the dirt road where the incident had occurred and saw a car with three men coming in her direction. She stopped the car and asked the occupants for identification. All three men denied having any identification. The defendant, Herring, identified himself as Ricky Davis.
On 3 November 1986, the defendant was apprehended in Narrows, Virginia, pursuant to a fugitive warrant and returned to North Carolina. Deputy Thurman Stewart of the Forsyth County Sheriff's Department spoke with the defendant on 10 November 1986 and read his Miranda rights to him. The defendant signed the waiver of rights form and said he wanted to talk.
The defendant gave Deputy Stewart a statement in which he admitted taking the victim to "the end of [a dirt] road and rap[ing] her." He stated that she began to scream rape, "but he did not stop because he thought he would be in just as much trouble if he finished what he started ... as he would be if he stopped." He further stated that he had drunk liquor and "shot two loads of cocaine" that evening and that he did not remember performing oral or anal sex on the victim. He admitted dragging the victim out of the car and into the woods. He stated that he and his two brothers returned to the area to see if the girl was injured. Finally, the defendant stated that he found the victim's purse and panties in his car the next day and threw them away.
By his first assignment of error, the defendant contends that the trial court erred in denying his motions to dismiss the charges against him at the close of the State's evidence and at the close of all of the evidence. We conclude that the trial court properly denied the defendant's motions to dismiss.
The defendant assigns as error the trial court's denial of his motions to dismiss the charges against him for insufficiency of the evidence. A defendant's motion for dismissal for insufficiency of the evidence in a criminal case raises the question of whether substantial evidence of each essential element of the offenses charged has been presented. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). In determining this issue, the evidence must be viewed in the light most favorable to the State, giving the State every reasonable inference which may be drawn therefrom. State v. Jerrett, 309 N.C. 239, 263, 307 S.E.2d 339, 352 (1983). If there is substantial evidence--whether direct, circumstantial, or both--to support a finding that the offense charged has been committed and that the defendant committed it, a motion to dismiss should be denied. E.g., State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649.
The defendant first argues that the trial court erred in dismissing the charges of first-degree rape and first-degree sexual offense because the State failed to present substantial evidence of "serious personal injury" as that phrase is used in the definition of first-degree rape under N.C.G.S. § 14-27.2(a)(2)b and in the definition of first-degree sexual offense under N.C.G.S. § 14-27.4. We do not agree.
In determining whether serious personal injury has been inflicted, the court must consider the particular facts of each case. State v. Roberts, 293 N.C. 1, 235 S.E.2d 203 (1977). The element of infliction of serious personal injury is satisfied
when there is a series of incidents forming one continuous transaction between the rape or sexual offense and the infliction of the serious personal injury. Such incidents include injury inflicted on the victim to overcome resistance or to obtain submission, injury inflicted upon the victim or another in an attempt to commit the crimes or in furtherance of the crimes of rape or sexual offense, or injury inflicted upon the victim or another for the purpose of concealing the crimes or to aid in the assailant's escape.
State v. Blackstock, 314 N.C. 232, 242, 333 S.E.2d 245, 252 (1985).
In the present case, the State's evidence tended to show that the defendant choked the victim into unconsciousness three times. Her jeans were tied around her neck and used to drag her nude body through a wooded area where she was left. She had a deep red ring around her throat and bruises and abrasions over nearly her entire body. The victim testified that the defendant had tried to "put her eyes out with his thumbs." One witness testified that the victim's eyes were "red as tomatoes and swollen real bad." We conclude that the evidence, taken in the light most favorable to the State, supports the serious injury element of first-degree rape and first-degree sexual offense. See generally State v. Boone, 307 N.C. 198, 297 S.E.2d 585 (1982).
The defendant next argues that the trial court erred in denying his motions to dismiss the charge of common law robbery because the State failed to present substantial evidence of "felonious intent." Common law robbery is defined as "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear." State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982). The felonious taking element of common law robbery requires "a taking with the felonious intent on the part of the taker to deprive the owner of his property permanently and to convert it to the use of the taker." State v. Lawrence, 262 N.C. 162, 168, 136 S.E.2d 595, 599-600 (1964).
In the present case, no direct evidence established the defendant's intent at the time of the taking to deprive the victim of her pocketbook. However, State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974). The evidence in the present case tended to show that after the rape and sexual offenses, the defendant threw the victim's clothing out of the car but kept her pocketbook containing fifty dollars. The next day the defendant disposed of the pocketbook. Taken in the light most favorable to the State and giving the State the benefit of every reasonable inference to be drawn therefrom, the evidence permitted, but did not compel, the reasonable inference that the defendant took the victim's pocketbook with the intent to permanently deprive her of her property and convert it to his own use. The trial court thus properly denied the defendant's motions.
By his next assignment, the defendant contends that the trial court erred in instructing the jury on the element of serious injury, in denying his request for special jury instructions, and in refusing to reinstruct the jury using the defendant's special instructions. Prior to the charge conference, the defense counsel informed the trial court that she would request an instruction that The trial court agreed to give the requested...
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