State v. Moorman

• Decision Date: 02 September 1986
• Docket Number: No. 8610SC1,8610SC1
• Citation: 347 S.E.2d 857,82 N.C.App. 594
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Percy Robert MOORMAN.

Page 857

347 S.E.2d 857

82 N.C.App. 594

STATE of North Carolina v. Percy Robert MOORMAN.

No. 8610SC1.

Court of Appeals of North Carolina.

Sept. 2, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Attys. Gen. David Roy Blackwell, Steven F. Bryant and John H. Watters, Raleigh, for 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-appellant.

ARNOLD, Judge.

Defendant first contends that the trial court erred in denying his motion for dismissal of the charges of second degree rape and second degree sexual offense based upon insufficiency of the evidence. We hold the trial court properly denied dismissal of the charge of second degree sexual offense. As to the charge of second degree rape, we find there is a fatal variance between the indictment and the proof, and therefore the judgment as to this charge must be arrested.

The indictment for second degree rape in the present case reads:

Date of Offense: September 1, 1984 Offense in Violation of G.S. 14-27.3

The jurors for the State upon their oath present that on or about the date of offense shown and in [Wake] [C]ounty ... the defendant ... unlawfully, willfully and feloniously did ravish and carnally know [the prosecutrix], by force and against her will, in violation of N.C.G.S. 14-72.3 (sic).

We note that G.S. 14-72.3 concerns the removal of shopping carts from shopping premises. It is recognized that a reference in an indictment to the specific section of the General Statutes relied upon is not necessary to its validity, and reference to an inapposite statute will not vitiate such an indictment. State v. McKinnon, 35 N.C.App. 741, 242 S.E.2d 545 (1978). Furthermore, the indictment does include reference to the appropriate statute, G.S. 14-27.3.

General Statute 14-27.3 reads in pertinent part:

(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; or

(2) Who is ... physically helpless, and the person performing the act knows or should reasonably know the other person is ... physically helpless.

"Physically helpless" is defined in G.S. 14-27.1(3) as meaning "(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 State presented evidence which tended to show the following facts. On the evening of 31 August 1984, the prosecutrix dated a friend from Charlotte and met with friends. During the evening she consumed two beers. She returned to her room at approximately 1:00 a.m. on the morning of 1 September 1984. She entered her room, closed the door, and turned on the radio to a low volume. She then fell asleep on her bed fully clothed. The next thing she remembered was that she dreamed she was having sexual intercourse. She awoke in a darkened room to find a male on top of her engaging in sexual intercourse. She tried to sit up, but the male grabbed her by the neck and pushed her back down causing multiple scratches about the neck. Afraid that the male might injure her, she offered no further resistance. After ejaculating in her vagina, the male engaged in anal intercourse with the prosecutrix, causing a one-half inch tear or fissure in her anus. She did not resist due to the pain and fear that the male might strangle her. After the male stopped, she went to the door and turned on the light. She recognized the face of the male, but could not remember his name. The male told her not to call the police, that he was her roommate's friend Percy, that he thought she was the roommate, and that he would not have done what he did if he had known she was not the roommate.

The facts of this case present a question of first impression. The evidence indicates the initiation of sexual intercourse occurred while the prosecutrix was asleep, but that upon awakening, defendant used force in pushing the prosecutrix back down upon the bed. General Statute 14-27.3 provides for two distinct and separate offenses of second degree rape in that force is not an element of the rape of a physically helpless person. It is well settled that an indictment will not support a conviction for a crime, all the elements of which are not accurately and clearly alleged in the indictment. State v. Perry, 291 N.C. 586, 231 S.E.2d 262 (1977). The indictment in this case used the language "by force and against her will," giving notice of violation of G.S. 14-27.3(a)(1). The indictment failed to allege that defendant engaged in sexual intercourse with a person who is "physically helpless," which would give notice of a violation of G.S. 14-27.3(a)(2). A person who is asleep is "physically helpless" within the meaning of the statute. Thus we are faced with the question of whether, given the facts of the case, the State issued a proper indictment for second degree rape.

Our State Supreme Court, in discussing the minimum elements necessary to constitute rape, has stated that "... the offense shall be completed upon proof of penetration only." State v. Monds, 130 N.C. 697, 41 S.E. 789 (1902). A recent case has also indicated that the force required to constitute rape must be actual or constructive force used to achieve or accomplish the sexual intercourse. See State v. Alston, 310 N.C. 399, 312 S.E.2d 470 (1984). Furthermore the language from § 65 Am.Jur. 2d, Rape, §§ 4-6, regarding the element of force, indicates that the force must be used to achieve the sexual intercourse.

In view of the above cited authority and the language of G.S. 14-27.3(a), we hold that the proper indictment for the rape of a person who is asleep is one alleging rape of a "physically helpless" person. In the present case, penetration and the initiation of sexual intercourse was achieved while the prosecutrix was asleep and unable to communicate an unwillingness to submit to the act. Thus, there is a fatal variance between the indictment's allegations that defendant carnally knew the prosecutrix by force and against her will and the proof the State presented at trial. The trial court should have granted the motion to dismiss the second degree rape charge, and the judgment as to that offense must be arrested.

Defendant also asserts that the evidence presented is insufficient to support his conviction of second degree sexual offense. To withstand a motion to dismiss for insufficiency of the evidence, there must be substantial evidence of all material elements of the offense charged. State v. Keyes; State v. Cashion, 64 N.C.App. 529, 307 S.E.2d 820 (1983). In ruling on a motion for dismissal, the trial judge must consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from the evidence. Id.

In accord with the indictment, the elements of second degree sexual offense are (1) a sexual act, (2) against the will and without the consent of the victim, (3) using force sufficient to overcome any resistance of the victim. G.S. 14-27.5(a)(1); State v. Jones, 304 N.C. 323, 283 S.E.2d 483 (1981). "Sexual act," as defined by G.S. 14-27.1(4), includes anal intercourse.

Defendant in his testimony admits engaging in anal intercourse with the prosecutrix. The only remaining question is whether there is sufficient evidence that such intercourse was by force and against the will of the prosecutrix. The State's evidence indicates that upon awakening and prior to the anal intercourse, the prosecutrix attempted to sit up but defendant grabbed the prosecutrix by the neck and pushed her back down onto the bed with enough force to cause multiple scratches and bruising about the neck. After this use of force, the prosecutrix was scared that defendant might injure her further, and thus offered no other resistance. As a result of the anal intercourse, the prosecutrix received a one-half inch tear or fissure in the anus. We find this evidence constitutes substantial evidence of all material elements of second degree sexual offense and is thus sufficient to withstand a motion to dismiss.

Defendant's next four assignments of error concern comments made by the court during the trial. G.S. 15A-1222 places a duty on the trial judge to be absolutely impartial. The judge is not to intimate an opinion in any way, but is to insure a fair and impartial trial before a jury.

The challenged remarks in this case were made both in and out of the jury's presence. There is no need to set out all of the excepted statements. The following comment is illustrative:

DISTRICT ATTORNEY: Object to Mr. Paul making his little noises over there, Judge, whatever that is.

COURT: Well, for lack of a description, I believe I'll overrule your objection. I thought maybe we had a hog loose in the room. All right, we will stop at this time for lunch....

We do not approve of the judge's comments. Neverthless, while these gratuitous statements before the jury were entirely unnecessary and improper, we do not find that their probable result was prejudicial to defendant. See State v. Lofton, 66 N.C.App. 79, 310 S.E.2d 633 (1984).

Defendant next contends that the trial court erred in denying the opportunity to conduct recross-examination of certain witnesses, and thus violated his right to confront adversarial witnesses guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. We do not agree. The scope of cross-examination rests largely within the discretion of the trial court, and its rulings thereon will not be disturbed absent a clear showing of abuse or prejudice. State v. Pinch, 306 N.C. 1, 292 S.E.2d 203, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982). Furthermore, after a witness has been cross-examined and reexamined, unless the redirect examination includes new...