State v. Schultz, 874SC309

• Decision Date: 22 December 1987
• Docket Number: No. 874SC309,874SC309
• Citation: 88 N.C.App. 197,362 S.E.2d 853
• Parties: STATE of North Carolina v. Mark H. SCHULTZ.
• Court: North Carolina Court of Appeals

Page 853

362 S.E.2d 853

88 N.C.App. 197

STATE of North Carolina v. Mark H. SCHULTZ.

No. 874SC309.

Court of Appeals of North Carolina.

Dec. 22, 1987.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Kaye R. Webb, Raleigh, for State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Leland Q. Towns, Raleigh, for defendant-appellant.

PARKER, Judge.

Defendant has raised two issues in this appeal: whether the trial court erred in denying his motions to dismiss the charge of attempted second degree rape and whether the trial court erred in allowing into evidence testimony regarding the incident that occurred in April 1985. We find defendant's arguments as to both issues to be without merit.

Defendant first argues that the evidence presented by the State was insufficient as a matter of law to establish defendant's guilt beyond a reasonable doubt as to the charge of attempted second degree rape. We disagree.

Our Supreme Court has recently recited the duty of the trial court in considering a criminal defendant's motion to dismiss:

Upon a motion to dismiss in a criminal prosecution, the trial court must view the evidence in the light most favorable to the state, giving the state the benefit of every reasonable inference that might be drawn therefrom.... The trial judge must decide if there is substantial evidence of each element of the offense charged. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. (Citations omitted).

State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673, 681 (1987).

General Statute 14-27.3(a) provides the following in relevant part:

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....

General Statute 14-27.6 makes the attempt to commit second degree rape a Class H felony. Under applicable North Carolina case law, to convict a defendant of attempted rape, the State must prove, beyond a reasonable doubt, two essential elements: (i) that defendant had the specific intent to rape the victim and (ii) that defendant committed an act that goes beyond mere preparation, but falls short of the actual commission of the rape. State v. Boone, 307 N.C. 198, 210, 297 S.E.2d 585, 592 (1982); State v. Hall, 85 N.C.App. 447, 452, 355 S.E.2d 250, 253 (1987).

The critical question in this case is whether the State met its burden of showing defendant's intent. The State is not required to show that the defendant made an actual physical attempt to have intercourse, State v. Hudson, 280 N.C. 74, 77, 185 S.E.2d 189, 191 (1971), cert. denied, 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed.2d 112 (1974), and defendant's actions clearly exceeded "mere preparation." See State v. Hall, 85 N.C.App. at 452, 355 S.E.2d at 253. The element of intent as to the offense of attempted rape is established if the evidence shows that defendant, at any time during the incident, had an intent to gratify his passion upon the victim, notwithstanding any resistance on her part. State v. Moser, 74 N.C.App. 216, 220, 328 S.E.2d 315, 317 (1985). It is not necessary that defendant retain the intent throughout the incident. State v. Hudson, 280 N.C. at 77, 185 S.E.2d at 191; State v. Gammons, 260 N.C. 753, 755, 133 S.E.2d 649, 651 (1963). Furthermore, "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. at 756, 133 S.E.2d at 651.

Our Courts have addressed the issue of the sufficiency of the evidence of intent to commit rape in a variety of factual situations. See, e.g., State v. Whitaker, 316 N.C. 515, 342 S.E.2d 514 (1986); State v. Hankins, 64 N.C.App. 324, 307 S.E.2d 440 (1983), aff'd per curiam, 310 N.C. 622, 313 S.E.2d 579 (1984); State v. Dawkins, 305 N.C. 289, 287 S.E.2d 885 (1982); State v. Hall, supra; State v. Powell, 74 N.C.App. 584, 328 S.E.2d 613 (1985); State v. Rushing, 61 N.C.App. 62, 300 S.E.2d 445, aff'd per curiam, 308 N.C. 804, 303 S.E.2d 822 (1983); State v. Norman, 14 N.C.App. 394, 188 S.E.2d 667 (1972). In each of these cases where the evidence of intent was found sufficient, the defendant manifested his sexual motivation by some overt act. See, e.g., State v. Whitaker, supra (defendant verbally expressed his intent to commit cunnilingus with the victim); State v. Hall, supra (defendant pulled the victim's shirt down and touched her breasts); State v. Powell, supra (defendant undressed himself in room where victim was sleeping and began to fondle his genitalia); State v. Norman, supra (defendant touched the victim on the breast).

In the case before us, the victim testified that defendant dragged her down a hallway toward a guest bedroom, and that he put his hand down over her shoulder and down the front of her shirt and grabbed her breasts. This evidence is sufficient circumstantial evidence from which the jury could infer defendant's intent to engage in vaginal intercourse with the victim by force and against her will.

Defendant's contention that the case of State v. Rushing, supra, is dispositive of the issue of intent is meritless. In Rushing, the State's evidence showed that defendant entered the victim's bedroom window at night, awakening the victim. Defendant wore dark pants, no shirt, and white gloves. When the victim asked who he was, defendant stated, " 'Don't holler, don't scream, I got a gun, I'll shoot you.' " When the victim backed away from him, defendant grabbed her arm, and prevented her from turning on a light. When a child sleeping in the room woke up and began to scream, defendant fled. The Court held that the evidence did not permit an inference that defendant intended to commit rape because there was no "overt manifestation of an intended forcible sexual gratification." State v. Rushing, 61 N.C.App. at 66, 300 S.E.2d at 449. The case before us is distinguishable in that there was such an overt manifestation in the defendant's touching of the victim's breasts. See State v. Hall, supra; State v. Norman, supra.

Defendant's argument that the evidence shows only his intent to rob the victim is also without merit. The fact that defendant verbally manifested his intent to rob the victim when he first grabbed hold of her does not exclude a reasonable inference by the jury that once defendant learned the victim had no money, he formed the intent to gain some other gratification from the situation. See State v. Whitaker, supra; State v. Hall, supra. The evidence showed that after Ms. Tease told defendant she had no money, defendant dragged her down the hall and during the struggle grabbed her breast. Notwithstanding the possibility of other inferences, this evidence is sufficient to raise an inference of intent to commit rape. See State v. Whitaker, supra; State v. Hall, supra.

The final issue presented by this appeal is whether the trial court erred in allowing the State to present evidence concerning the incident in April 1985 that led to defendant's conviction on a plea of guilty to assault on a female. We find that the court did not err in allowing this evidence.

General Statute 8C-1, Rule 404(b), provides that evidence of crimes, wrongs or acts other than those specifically at issue in the trial is inadmissible "to prove the character of a person in order to show that he acted in conformity therewith"; however, such evidence may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident." The test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not too remote in time so as to be more probative than prejudicial under the balancing test of G.S. 8C-1, Rule 403. State v. Cotton, 318 N.C. 663, 665, 351 S.E.2d 277, 278-279 (1987); State v. Scott, 318 N.C. 237, 248, 347 S.E.2d 414, 420 (1986).

In the case before us, evidence of the incident that occurred in April 1985 was clearly probative of defendant's identity as the man who entered Ms. Tease's home on 9 September 1986. The identity of defendant was put in issue by defendant's alibi defense. See State v. Thomas, 310 N.C. 369, 312 S.E.2d 458 (1984); State v. Freeman, 303 N.C. 299, 278 S.E.2d 207 (1981). Application of the identity exception of Rule 404(b) requires that some unusual facts or particularly similar acts be present in both crimes indicating that the same person committed both crimes. State v. Riddick, 316 N.C. 127, 133, 340 S.E.2d 422, 426 (1986); State v. Moore, 309 N.C. 102, 106, 305 S.E.2d 542, 545 (1983). The two incidents in the case before us are strikingly similar in many respects. Both incidents began when a man came to the female victim's residence to inquire about a lost dog. In each case, the man left his name and number in the event the victim saw the dog. The man asked to use the telephone and the bathroom in both incidents. In each situation, the man toyed with the lock of the victim's front door before he seized hold of her.

Defendant, however, contends that the time elapsed between the incidents, approximately twenty-one months, rendered the April 1985 incident too remote in time to be probative. This argument is without merit.

Whether or not to exclude evidence under G.S. 8C-1, Rule 403, because its probative value is substantially outweighed by the danger of unfair prejudice is a matter within the sound discretion of the trial judge. State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986). We find no abuse of that discretion here.

Remoteness in time is most important where evidence of another crime is used to show that both crimes arose out of a common scheme or plan; "Remoteness in time is less important when the other crime is admitted because its modus operandi is so...