State v. Moorman

• Citation: 358 S.E.2d 502,320 N.C. 387
• Decision Date: 28 July 1987
• Docket Number: No. 577PA86,577PA86
• Parties: STATE of North Carolina v. Percy Robert MOORMAN.
• Court: United States State Supreme Court of North Carolina

Page 502

358 S.E.2d 502

320 N.C. 387

STATE of North Carolina v. Percy Robert MOORMAN.

No. 577PA86.

Supreme Court of North Carolina.

July 28, 1987.

Lacy H. Thornburg, Atty. Gen. by David Roy Blackwell and John H. Watters, Asst. Attys. Gen., Raleigh, for the State.

Tharrington, Smith & Hargrove by Roger W. Smith, George T. Rogister, Jr., J. David Farren, Burton Craige and G. Bryan Collins, Jr., Raleigh, for defendant-appellee Moorman.

EXUM, Chief Justice.

Questions presented dispositive of the appeal are whether the Court of Appeals erred in (1) arresting judgment on defendant's conviction of second degree rape and (2) concluding defendant was not denied his right to effective assistance of counsel at trial. We answer both questions affirmatively, reverse the decision of the Court of Appeals and award defendant a new trial in all cases.

I.

Defendant was tried on indictments charging first degree burglary, second degree rape, and second degree sexual offense at the 11 February 1985 Session of Superior Court in Wake County before Judge Bailey. He was convicted by the jury as charged in the rape and sexual offense cases and of misdemeanor breaking on the burglary indictment. Judge Bailey ordered a presentence diagnostic study before imposing sentences.

On 18 March 1985 defendant moved in writing to have his trial counsel, Mr. Jerome Paul, removed from the case. The motion was allowed on the same day, and Mr. Roger Smith then entered the case as counsel for defendant.

On 23 May 1985 defendant moved in writing to set aside the verdicts and to dismiss the charges in the rape and sexual offense cases for insufficiency of the evidence. This motion was denied at the 28 May 1985 Session of Superior Court at which session the trial court, after a sentencing hearing, imposed sentences of imprisonment as follows: two years for misdemeanor breaking; twelve years for second degree rape; and twelve years for second degree sexual offense. All sentences were ordered to run concurrently, and defendant was sentenced in all cases as a Committed Youthful Offender. Defendant appealed from these judgments to the Court of Appeals.

On 10 June 1985 defendant filed a Motion for Appropriate Relief by which he sought a new trial on the ground that his trial counsel, Mr. Paul, provided such ineffective assistance of counsel that defendant was convicted in violation of the federal and state constitutions. An evidentiary hearing on this motion was held, beginning 22 July 1985, before Judge Donald Stephens. Extensive evidence was taken on this motion; and on 9 August 1985 Judge Stephens, after making full findings and conclusions, denied the motion. Defendant appealed from this order to the Court of Appeals.

II.

The first question presented is whether the Court of Appeals erred in arresting judgment on the rape indictment on the ground there was a fatal variance between the indictment and the proof. We conclude that it did.

The rape indictment alleged that defendant "unlawfully, willfully and feloniously did ravish and carnally know [the victim] by force and and against her will, in violation of N.C.G.S. 14-72.3."

At trial evidence for the state tended to show as follows:

On the evening of 31 August 1984 the victim was out with friends. She returned to her dorm room at approximately 1:00 a.m. She entered her room, closed the door, turned on the radio and fell asleep fully clothed. The victim dreamed she was engaging in sexual intercourse. She awoke to find defendant on top of her having vaginal intercourse with her. She tried to sit up, but defendant pushed her back down. Afraid her attacker might injure her, the victim offered no further resistance. Thereafter defendant engaged in anal intercourse with the victim.

The victim went to the door and turned on the light. Defendant told her not to call the police. He said, "I'm Lynn's (the victim's roommate) friend, I thought you were Lynn and I wouldn't have done this if I had known it was you." The victim told several friends about the incident, but did not report the incident to the North Carolina State Public Safety Department or make a statement until two days later.

Defendant testified in his own behalf as follows:

He knocked on the victim's door. Hearing music, he believed his friend, Lynn, to be present and entered the room. Defendant observed a girl lying on the bed with her back facing him. Defendant called out the name Lynn but received no response. He then kissed the girl on the neck. The girl turned over and invited him to engage in oral sex. Defendant assisted the girl in removing her underpants. They engaged in oral sex, anal and vaginal intercourse. Following a brief rest, they engaged in sexual intercourse again. The girl then ran into the bathroom. When she returned, defendant noticed for the first time that his sexual partner was not Lynn. The victim told defendant not to worry because it could have happened to anybody. Defendant then left.

The Court of Appeals arrested judgment as to the charge of second degree rape. It first noted that N.C.G.S. § 14-27.3 provided for two theories of second degree rape: one theory is that the vaginal intercourse was committed "by force and against the will" of the victim, id., (a)(1); the other theory is that such intercourse was committed against one who is "mentally defective, mentally incapacitated, or physically helpless, and the person performing the act should reasonably know" it. Id., (a)(2). It then noted that N.C.G.S. § 14-27.1(3) defines "physically helpless" to mean "(i) a victim who is unconscious; or (ii) a victim who is physically unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act." The Court of Appeals concluded that a sleeping person is a "physically helpless" person under N.C.G.S. § 14-27.3(a)(2). It held that an indictment for the rape of one who is asleep must proceed on the theory that the victim was "physically helpless" pursuant to N.C.G.S. § 14-27.3(a)(2) and not on the theory that the rape was "by force and against the will" of the victim as provided in subsection (a)(1). The result in the Court of Appeals was that there is a fatal variance between the indictment and the proof presented at trial, and judgment was arrested.

We conclude that while the state might have elected to proceed under N.C.G.S. § 14-27.3(a)(2), it was not required to do so and that the evidence in this case supports a conviction of rape on a theory of force and lack of consent. There was, therefore, no fatal variance between the indictment and the proof.

At common law rape occurred when there was sexual intercourse by force and without the victim's consent. State v. Hines, 286 N.C. 377, 380, 211 S.E.2d 201, 203 (1975); accord, State v. Burns, 287 N.C. 102, 116, 214 S.E.2d 56, 65, cert. denied, 423 U.S. 933, 96 S.Ct.288, 46 L.Ed.2d 264 (1975). Rape also occurred when there was sexual intercourse with a victim who was asleep or otherwise incapable of providing resistance or consent. Harvey v. State, 53 Ark. 425, 14 S.W. 645 (1890); Brown v. State, 138 Ga. 814, 76 S.E. 379 (1912); Territory of Hawaii v. Tatsuo Noguchi, 38 Haw. 350 (1949); State v. Lung, 21 Nev. 209, 28 P. 235 (1891); Payne v. State, 40 Tex.Crim. 202, 49 S.W. 604 (1899); 75 C.J.S. Rape § 11 (1952); 3 Wharton's Criminal Law § 289 (1978).

In Brown v. State, 174 Ga.App. 913, 331 S.E.2d 891 (1985), defendant had sexual relations with the victim as she lay comatose in her hospital bed. The court said that "[s]exual intercourse with a woman whose will is temporarily lost from intoxication, or unconsciousness arising from use of drugs or other cause, or sleep, is rape." 174 Ga.App. at 913, 331 S.E.2d at 892. An Oklahoma court held that an information which charged the accused with an act of sexual intercourse with a female while she was asleep and at the time unconscious of the nature of the act was sufficient to charge the accused with second degree rape and to give the court jurisdiction to pronounce judgment and sentence. In re Childers, 310 P.2d 776 (Okla.Crim.App.1957). The court said: "It is easily understood, and universally recognized, that a person who is unconscious by reason of intoxication, drugs, or sleep, is incapable of exercising any judgment in any matter whatsoever." Id. at 778. In State v. Welch, 191 Mo. 179, 89 S.W. 945 (1905), the court said:

[T]he general, if not universal, rule is that if a man have connection with a woman while she is asleep, he is guilty of rape, because the act is without her consent.... We are, therefore, unanimously of opinion that the crime, which the evidence in this case tended to prove, of a man's having carnal intercourse with a woman, without her consent, while she was, as he knew, wholly insensible so as to be incapable of consenting, and with such force as was necessary to accomplish the purpose, was rape.

191 Mo. at 187-88, 89 S.W. at 947.

As can be seen from the foregoing cases the common law implied in law the elements of force and lack of consent so as to make the crime of rape complete upon the mere showing of sexual intercourse with a person who is asleep, unconscious, or otherwise incapacitated and therefore could not resist or give consent. Our rape statutes essentially codify the common law of rape. N.C.G.S. § 14-27.2 et seq. (1986); State v. Booher, 305 N.C. 554, 290 S.E.2d 561 (1982); State v. Locklear, 304 N.C. 534, 284 S.E.2d 500 (1981); State v. Perry, 291 N.C. 586, 231 S.E.2d 262 (1977). In the case of a sleeping, or similarly incapacitated victim, it makes no difference whether the indictment alleges that the vaginal intercourse was by force and against the victim's will or whether it alleges merely the vaginal intercourse with an incapacitated victim. In such a case sexual intercourse with the victim is ipso facto rape because the force and lack of consent are implied in law.

III.

The second...