State v. McKoy

Decision Date05 May 2009
Docket NumberNo. COA08-923.,COA08-923.
PartiesSTATE of North Carolina v. William Edward McKOY.
CourtNorth Carolina Court of Appeals

McGEE, Judge.

William Edward McKoy (Defendant) was convicted on 20 September 2007 of second-degree sexual offense and second-degree rape. The trial court sentenced Defendant to a term of 80 to 105 months in prison on the charge of second-degree sexual offense, and to a consecutive term of 80 to 105 months in prison on the second-degree rape charge. Defendant appeals.

The victim, R.B., testified at trial that she was homeless and had met Defendant at a soup kitchen in Raleigh on 7 November 2006. Defendant offered R.B. a place to sleep at his apartment. However, when R.B. accompanied Defendant to where he was living, it was an eighteen wheeler truck, so R.B. left. R.B. saw Defendant two evenings later in Chavis Park. R.B. testified Defendant told her he came to "make sure [she] was alright." After Defendant left, R.B. went to sleep under a park bench. She was awakened around 2:00 a.m. and found Defendant kneeling over her. R.B. testified Defendant hit her in the face and threatened to kill her if she did not have sex with him. He forced her to perform oral sex and then penetrated her vaginally. Defendant only stopped assaulting R.B. when she told him she had to go to work. Defendant then left on his bicycle. R.B. waited for daylight and walked to the police station to report the attack.

Officer S.F. McKenna (Officer McKenna) with the Raleigh Police Department testified that he was called to the police station on the morning of 10 November 2006 to interview R.B. R.B.'s left eye was swollen with a contusion and she had a bloodied, swollen lip. R.B. recounted the attack to Officer McKenna who then transported R.B. to Wake Medical Center to obtain a rape kit. Officer McKenna called Detective Scott Meyers (Detective Meyers) with the Raleigh Police Department to conduct an additional interview with R.B.

Detective Meyers testified he met R.B. and Officer McKenna at the hospital where he interviewed R.B., and prepared a report of her statement. R.B.'s statements to the two officers were essentially the same as her trial testimony. The officers testified R.B. told them Defendant had threatened to kill her if she did not have sex with him, and that Defendant had punched her in the face five or six times. R.B. did not know Defendant's name but provided a detailed description of him. After the rape kit was completed, R.B. accompanied Detective Meyers and Officer McKenna to locations where Defendant frequented. However, their search for Defendant was unsuccessful.

Detective Michael Galloway (Detective Galloway) with the Raleigh Police Department testified that he received a call on 10 November 2006 indicating that a person matching the description of the suspect had been transported to the Raleigh Police Department. Detective Galloway interviewed Defendant. Defendant waived his Miranda rights and made three statements to Detective Galloway. Defendant first denied going to Chavis Park and having sex with anyone. In his second statement, Defendant admitted he "[knew] the girl." He said he had met R.B. on the prior Tuesday and they "had sex ... at a hotel room downtown." Defendant said he also saw R.B. on 9 November 2006 and they went "to Chavis Park ... and had sex and that was that." In his third statement, Defendant said he "recently met that girl," and that he "gave her twenty dollars this past Tuesday, and [they] had sex outside near the bus station." Defendant said that later in the week he "went to Chavis Park to find [R.B.]." Defendant said he "found [R.B.] under the shelter asleep. [He] woke her up, and ... asked her if she was trying to do anything. [R.B.] said yes. [Defendant] gave [R.B.] twenty dollars." However, Defendant said R.B. changed her mind and she would not give back his money. Defendant then admitted he "slapped [R.B.] in the face with an open hand two or three times. [He] asked her again if she was trying to do anything, and she said yes." Defendant said R.B. performed oral sex on him and that they had sexual intercourse.

Defendant moved to dismiss the charges at the close of the State's evidence, arguing insufficiency of the evidence and that the indictments were fatally defective for failing to name the victim. The trial court denied Defendant's motion to dismiss.

Defendant presented the testimony of Ivy McMillan (McMillan) a DNA analyst with the State Bureau of Investigation. McMillan testified she was unable to find a DNA profile from the sperm fractions of the vaginal swabs and cuttings from toilet tissue because the quantity of spermatozoa was too few. Defendant renewed his motion to dismiss at the close of all the evidence. The trial court again denied Defendant's motion.

I.

Defendant assigns error to the trial court's denial of his motion to dismiss the charges of second-degree rape and second-degree sexual offense, alleging the indictments were fatally defective because they failed to state the full name of the victim. On appeal, we review the sufficiency of an indictment de novo. See State v. Sturdivant, 304 N.C. 293, 307-11, 283 S.E.2d 719, 729-31 (1981). Defendant's indictment for second-degree rape states:

The jurors for the State upon their oath present that on or about November 10, 2006, in Wake County, ... [D]efendant named above unlawfully, willfully and feloniously did ravish and carnally know and attempt to ravish and carnally know RTB, by force and against the victim's will. This was done in violation of N.C.G.S. § 14-27.3.

Defendant's indictment for second-degree sexual offense states:

The jurors for the State upon their oath present that on or about November 10, 2006, in Wake County, ... [D]efendant named above unlawfully, willfully and feloniously did engage in a sex offense with RTB by force and against the victim's will. This act was done in violation of N.C.G.S. § 14-27.5.

Defendant argues that the indictments are invalid in failing to set out an element of the offenses, specifically the element that the offenses were committed against "another person."

N.C. Gen.Stat. § 14-27.3 defines the crime of second-degree rape as: "(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person: (1) By force and against the will of the other person." N.C. Gen.Stat. § 14-27.3(a)(1) (2007) (emphasis added). Second-degree sexual offense is defined by N.C. Gen.Stat. § 14-27.5 as: "(a) A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person: (1) By force and against the will of the other person." N.C. Gen.Stat. § 14-27.5(a)(1) (2007) (emphasis added).

As Defendant points out, it is correct that both criminal statutes require the act to be committed against "another person." Defendant contends, however, that the use of "RTB" in both indictments does not meet the element of another person because "RTB" without periods following each letter does not constitute "initials" of a person's name. His argument implies that had there been periods between the letters, he would have understood them to be initials of a person's name, satisfying the statutory element that the crimes be against "another person."

Defendant's contention that the indictments do not meet the element of "another person" is without merit. Our Supreme Court has held that judgments should not be set aside based on hyper-technical arguments. State v. Bell, 311 N.C. 131, 138, 316 S.E.2d 611, 615 (1984). In Bell, the Supreme Court found no merit in the defendant's contention that the indictments for rape were insufficient because the indictments failed to allege the victims were females. Id. Similarly, in Sturdivant, our Supreme Court rejected the defendant's argument that his indictment was fatally defective under N.C. Gen. Stat. § 14-39(a) because it failed to allege specifically that the kidnapping was effected without the victim's consent. Sturdivant, 304 N.C. at 310, 283 S.E.2d at 731. The Court held that although the indictment did not specifically allege "without consent," the indictment did not fail because "common sense dictates that one cannot unlawfully kidnap or unlawfully restrain another with his consent." Id.

The same analysis applies in the case before us. Where the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against "another person," the indictments charging these offenses do not need to state the victim's full given name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Further, an indictment for a statutory offense is generally sufficient when it charges the offense in the language of the statute. State v. Penley, 277 N.C. 704, 707, 178 S.E.2d 490, 492 (1971) (citing State v. Hord, 264 N.C. 149, 157, 141 S.E.2d 241, 246 (1965)). The indictments in the present case tracked the statutory language of N.C.G.S. §§ 14-27.3(a)(1) and 14-27.5(a)(1). Therefore, we find Defendant's first argument fails since the indictment tracked the language of the statute and "RTB" was sufficient to inform Defendant he was charged with second-degree rape and second-degree sexual offense against "another person."

II.

Defendant further argues that even if the use of "RTB" in the indictments is sufficient to charge him under N.C.G.S. §§ 14-27.3 and 14-27.5, the indictments are insufficient under North Carolina's short-form indictment statutes for rape and sexual offense. Defendant argues the trial court lacked...

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