State v. Person
| Decision Date | 18 December 2007 |
| Docket Number | No. COA06-1507.,COA06-1507. |
| Citation | 653 S.E.2d 560 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Devozeo PERSON, Defendant. |
Office of the Public Defender, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant.
Defendant Devozeo Person appeals from convictions for the following offenses: robbery with a dangerous weapon; second degree kidnapping; first degree rape as the principal; first degree rape by acting in concert with someone else; first degree sexual offense by fellatio; first degree sexual offense by anal intercourse; and first degree sexual offense by digital penetration. On appeal, defendant argues, and we agree, that the evidence at trial was insufficient to sustain the convictions for first degree rape and first degree sexual offense by anal intercourse. In addition, with respect to the conviction for first degree rape by acting in concert with someone else, defendant is entitled to a new trial since the jury instructions on that count were fatally flawed. Regarding the remaining convictions, however, we hold that defendant's trial was free of prejudicial error.
At trial, the State's evidence tended to show the following facts. At about 2:00 a.m. on 7 December 2002, "Carla," a married mother of four children, finished work at a Kentucky Fried Chicken restaurant.1 When she arrived home, she realized she had left a shirt at the restaurant that she needed to wear the next day. She drove back to work, retrieved the shirt, and returned to her apartment.
Upon arriving home the second time, Carla parked her car and was about to get out when she noticed a man standing next to her car door. Immediately, she locked the door and put the keys back into the ignition. The man, Nicholas Johnson, pointed a gun at her and threatened to shoot if she did not open the door. After Carla complied, defendant approached and took her keys and cell phone. The men then went through her purse and stole the money inside, about $300.00, as well as a necklace and bracelet Carla was wearing.
The men opened the trunk of the car and ordered her to get inside. When she refused and pleaded with them to take everything, including the car, she was grabbed by her hair and forced into the trunk. The men drove around for approximately two hours, making a few brief stops, while Carla remained locked in the trunk. At one point, she succeeded in opening the trunk and tried to signal to another car, but the men stopped the car, threatened to shoot her if she tried to escape, and shut her back inside the trunk.
Eventually, defendant and Johnson stopped the car at an abandoned house. The men opened the trunk and took Carla behind the house. Johnson ordered her to sit on the steps and pull down her pants, but she refused. Johnson pointed the gun at her and threatened that she would never see her children again if she did not obey. When she still refused, Johnson himself pulled down her pants and underwear, inserted his fingers into her vagina, and remarked to defendant that he thought Carla was having her period. While still pointing the gun at Carla, Johnson first engaged in sexual intercourse followed by anal intercourse and then forced Carla to perform fellatio on him.
After Johnson finished, defendant inserted his penis in Carla's vagina and, after a while, told her to turn around. According to Carla's in-court testimony, which was related through an interpreter, defendant "tried" to put his penis in her rectum, but he "didn't last very long."
Before leaving on foot, the two men threatened Carla that if she went to the police, they would kill her and her children. When the men were gone, Carla went back to her car, found her keys, and drove away. She spotted police officers at a gas station and told them about the attack. The officers recognized Carla as a woman who had been reported as missing by her husband when she did not return home from work at the expected time.
Carla was taken to a hospital where a nurse and a doctor administered a sexual assault examination. Vaginal, anal, and oral swabs were taken from Carla. Sperm was found on the vaginal and anal swabs. Through subsequent testing, authorities learned that sperm on the vaginal and anal swabs matched defendant's DNA profile. The probability that the source of the sperm was a member of the African-American population, other than defendant, was approximately 1 in 3.05 quadrillion.
After defendant was arrested in June 2005, he gave a statement to the police. Defendant told detectives that, with Nicholas Johnson holding the gun, the two men robbed the victim, put her in the trunk of the car, and drove her to an abandoned house. He admitted to watching as Johnson forced the victim to engage in fellatio and intercourse. Defendant admitted that he too had intercourse with the victim against her will, stating that he joined in because he was intoxicated.
In July 2005, defendant was indicted on the following charges: one count of robbery with a dangerous weapon; one count of first degree kidnapping; two counts of first degree rape; and three counts of first degree sexual offense based on acts of fellatio, anal intercourse, and digital penetration. Following a jury trial in February and March 2006 in Mecklenburg County Superior Court, defendant was convicted of one count of robbery with a dangerous weapon, one count of second degree kidnapping, first degree rape by acting in concert with another person, first degree rape as the principal, first degree sexual offense by fellatio, first degree sexual offense by anal intercourse, and first degree sexual offense by digital penetration.
The trial court sentenced defendant to a presumptive range term of 288 to 355 months for first degree rape as a principal, followed by consecutive presumptive range terms of 77 to 102 months for robbery with a dangerous weapon, 29 to 44 months for second degree kidnapping, and 230 to 285 months for first degree rape by acting in concert. In addition, the court imposed a presumptive range sentence of 288 to 355 months for first degree sexual offense by anal intercourse to run consecutive to the sentence for first degree rape by acting in concert. Finally, the court imposed two presumptive range sentences of 230 to 285 months for first degree sexual offense by fellatio and for first degree sexual offense by digital penetration, with the sentences running concurrently with each other, but consecutive to the sentence for first degree sexual offense by anal intercourse. The trial court also ordered defendant to pay $2,300.52 in restitution to the victim, noting that defendant and Nicholas Johnson were to be held jointly and severally liable for rendering payment. Defendant gave timely notice of appeal to this Court.
Defendant first argues that the trial court erred in denying his motion to dismiss the charges of first degree rape and first degree sexual offense by anal intercourse because there was insufficient evidence showing that defendant employed or displayed a dangerous weapon during commission of these offenses. Both rape and sexual offense crimes are elevated to the first degree when the actor "[e]mploys or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon." N.C. Gen.Stat. §§ 14-27.2(a)(2)(a), -27.4(a)(2)(a) (2005).
Defendant asserts that our prior decision in State v. Roberts, 176 N.C.App. 159, 163-64, 625 S.E.2d 846, 850 (2006), is controlling. In Roberts, we held that when a defendant is charged with first degree sexual offense as a principal and not on the theory of acting in concert or aiding and abetting, "the evidence must support a finding that defendant personally employed or displayed a dangerous or deadly weapon in the commission of the sexual offense." Id. at 164, 625 S.E.2d at 850. See also State v. Wilson, 345 N.C. 119, 123, 478 S.E.2d 507, 510 (1996) ().
In this case, the indictments charging defendant with first degree rape as a principal and first degree sexual offense by anal intercourse alleged that defendant committed the acts while "displaying a handgun, a dangerous and deadly weapon. . . ." When the trial judge instructed the jury on each of those charges, he instructed that the jury needed to find, as a requisite element of the offense, that defendant employed or displayed a dangerous or deadly weapon. The judge did not, with respect to those two charges, provide any instruction that would have allowed the jury to convict defendant for "acting in concert" with Nicholas Johnson.
We agree with defendant that Roberts is controlling under these facts. Indeed, the State, in its brief, concedes that it is unable to distinguish Roberts. The State nevertheless argues that defendant's argument is procedurally barred because his motion to dismiss and assignment of error were "broadside" and, therefore, insufficient under our appellate rules. We disagree.
At trial, defendant moved to dismiss all the charges at the close of the State's evidence and at the close of all the evidence, and thus he sufficiently preserved the denial of his motion for appellate review under N.C.R.App. P. 10(b)(3). Although defendant provided no specific reasoning to support the motion to dismiss, he was not required to do so, since it was apparent from the context that he was moving to dismiss all the charges based on the insufficiency of the evidence. See N.C.R.App. P. 10(b)(1) ...
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