State v. Robinson

Citation313 S.E.2d 571,310 N.C. 530
Decision Date03 April 1984
Docket NumberNo. 515A83,515A83
CourtUnited States State Supreme Court of North Carolina
PartiesSTATE of North Carolina v. Reginald L. ROBINSON.

Rufus L. Edmisten, Atty. Gen., by H.A. Cole, Jr., Sp. Deputy Atty. Gen., and Fred R. Gamin, Asst. Atty. Gen., Raleigh, for the state.

Mary Ann Tally, Public Defender, Fayetteville, Twelfth Judicial District, for defendant.

MARTIN, Justice.

At the close of the state's evidence in this case, counsel for the defendant moved to dismiss the charge for insufficiency of the evidence. The defendant has assigned as error the trial judge's refusal to grant the motion, as well as his subsequent denial of defendant's motion to set aside the verdict as contrary to the law and the evidence in this case.

There is merit in these arguments.

Considering the testimony favorable to the state and assuming it to be true, State v. Bowman, 232 N.C. 374, 61 S.E.2d 107 (1950), we find that this evidence is not sufficient to sustain the allegation of the indictment that defendant raped Selena McDonald. The state has not offered the requisite evidence to establish beyond a reasonable doubt the fact that defendant had vaginal intercourse with the child. State v. Jones, 249 N.C. 134, 105 S.E.2d 513 (1958); State v. Cope, 240 N.C. 244, 81 S.E.2d 773 (1954); N.C.Gen.Stat. § 14-27.2 (Cum.Supp.1983). See also 75 C.J.S. Rape § 67 (1952).

It is true that the law does not require the complaining witness to use any particular form of words in stating that defendant had carnal knowledge of her, State v. Bowman, supra, and further that "vaginal intercourse" in a legal sense is proven if there is the slightest penetration of the sexual organ of the female by the sexual organ of the male. State v. Jones, supra (and cases cited therein).

However, it is equally true that "[n]o matter how disgusting and degrading defendant's conduct as depicted by the witness may have been, his conviction should not be sustained unless the evidence suffices to prove the existence of each essential ingredient of the crimes for which he was being tried." State v. Whittemore, 255 N.C. 583, 586, 122 S.E.2d 396, 398 (1961). The corpus delicti in a prosecution for rape may be proved, inter alia, by the testimony of the prosecutrix and corroborating circumstances or by circumstantial evidence. 75 C.J.S. Rape supra, § 67.

A careful review of every statement made by Selena McDonald regarding the events of the night of 13 August 1982 and the sexual misconduct of the man who abused her reveals that the child nowhere described an act of sexual intercourse. There remain the statements by defendant at the time he was discovered with Selena, the examining doctor's testimony that a male sex organ "could" cause the vaginal condition he found in the child, and the circumstantial evidence of defendant's compromising appearance. Defendant's statement, "I did it ...," is ambiguous, requiring the jury to speculate what he meant by "it."

We hold as a matter of law that the evidence is insufficient to submit the charge of the crime of rape in the first degree to the jury. We therefore vacate the judgment in this case.

N.C.G.S. 15-170 provides: "Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime." It is well settled that this statutory section is applicable only when there is evidence in the case tending to show that the defendant may be guilty of a lesser offense. State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982); State v. Murry, 277 N.C. 197, 176 S.E.2d 738 (1970); State v. Jones, supra, 249 N.C. 134, 105 S.E.2d 513.

Pursuant to N.C.G.S. 15-170 and N.C.G.S. 14-27.6, hereinafter explained, we are remanding this case for sentencing on the offense of attempt to commit rape in the first degree.

"An attempt to commit first-degree rape as defined by G.S. 14-27.2 ... is a Class F felony." N.C.Gen.Stat. § 14-27.6 (1981). 1 In order to prove this offense the state must show that the defendant had the intent to commit the crime and committed an act that goes beyond mere preparation but falls short of actual commission of the offense. State v. Boone, 307 N.C. 198, 297 S.E.2d 585 (1982). In his charge to the jury, Judge Johnson included an instruction on the offense of attempt to commit rape in the first degree.

On this charge, the state is required to prove beyond a reasonable doubt that defendant intended to have sexual intercourse with the child. "Intent is an attitude or emotion of the mind and is seldom, if ever, susceptible of proof by direct evidence, it must ordinarily be proven by circumstantial evidence, i.e., by facts and circumstances from which it may be inferred." State v. Gammons, 260 N.C. 753, 756, 133 S.E.2d 649, 651 (1963). In order to convict defendant on this charge, it is not necessary for the state to prove an actual physical attempt forcibly to have sexual intercourse with the child. State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971), cert. denied, 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed.2d 112 (1974). From the totality of the evidence in this case, the jury could properly infer that the defendant intended to have sexual intercourse with Selena. Id.; State v. Mehaffey, 132 N.C. 1062, 44 S.E. 107 (1903); State v. Lang, 46 N.C.App. 138, 264 S.E.2d 821 (1980). Likewise, the evidence fully supports the conclusion that defendant committed acts upon Selena that fall short of actual commission of the offense. State v. Boone, supra, 307 N.C. 198, 297 S.E.2d 585.

We hold that by its verdict of guilty of rape the jury necessarily found beyond a reasonable doubt all of the elements of the lesser offense of attempt to commit rape. See State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980).

We turn next to a consideration of defendant's remaining assignments of error. Defendant has assigned as error the trial court's refusal to grant his motion in limine as to evidence of prior acts of misconduct and prior convictions of the state's witnesses, regardless of whether they resulted in criminal charges against the witness. At the hearing on this motion, immediately following the trial court's denial, the assistant district attorney acknowledged that certain of his witnesses "have not denied anything they've been convicted of to me yet that I know of." Defendant argues that this admission only strengthens his position on the question of the necessity of this impeaching information for an effective defense.

The relevant statute, N.C.G.S. 15A-903, does not grant the defendant the right to discover the names and addresses, let alone the criminal records, of the state's witnesses. Furthermore, a provision authorizing the discovery of such material was included in the draft of the original bill and subsequently deleted. N.C.Gen.Stat. § 15A-903 official commentary (1978); see State v. Brown, 306 N.C. 151, 293 S.E.2d 569 (1982); accord, State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977).

Defendant concedes that the statute does not entitle him to the requested information but argues that "fundamental fairness and the right to due process" should nevertheless compel a decision in his favor. We find this due process argument to have been carefully addressed in State v. Ford, 297 N.C. 144, 254 S.E.2d 14 (1979). Writing for this Court, Chief Justice Sharp framed the question as follows:

The only issue, therefore, is whether the information which defendant sought from the prosecution was of such significance that the prosecutor's failure to disclose it resulted in the denial of the defendant's due process right to a fair trial. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)....

To establish a denial of due process defendant would have had to show (1) that Smith had a significant record of degrading or criminal conduct; (2) that the impeaching information sought was withheld by the prosecution; and (3) that its disclosure considered in light of all the evidence would have created a reasonable doubt of his guilt which would not otherwise exist. United States v. Agurs, supra at 112, 96 S.Ct. at 2401-2, 49 L.Ed.2d at 354-55.

297 N.C. at 148-49, 254 S.E.2d at 17. Assuming, arguendo, that defendant has satisfactorily proven (1) and (2) above, he clearly has made no showing of prejudice as required by (3).

This assignment of error must fail.

Defendant next assigns as error the trial court's admission into evidence, over his objections, of state's Exhibits I through IV. These were, respectively: a photograph of the area at the Riverside Trailer Park depicting the tree where Selena McDonald's uncle located her clothes two months after her abduction; two photographs of the clothing itself--underwear, shorts, and a sandal; and a photograph of the trailer park depicting the layout of the park. Each exhibit was offered to illustrate the testimony of Selena's uncle, Abraham James, as he related facts concerning the location of the party and the search for Selena's missing clothes. Judge Johnson gave the proper limiting instructions concerning the illustrative purpose of these exhibits as they were presented at trial and again in his final charge to the jury. The photographs were properly admitted as evidence. See generally 1 Brandis on North Carolina Evidence § 34 (1982).

The next two assignments of error concern the expert medical testimony of Dr. Perry Harmon. Defendant argues that the trial court erred in allowing Dr. Harmon to testify about Selena's injuries prior to the state's establishing the corpus delicti of the offense and in allowing Dr. Harmon's "speculative testimony concerning the possible cause" of these injuries.

Defendant concedes that a party may ordinarily call his witnesses in such order as he desires and departure from the regular order is within the sound discretion of the court. See id. § 24. Defendant having...

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