State v. Smith
| Decision Date | 07 June 2005 |
| Docket Number | No. COA04-587.,COA04-587. |
| Citation | 613 S.E.2d 304 |
| Parties | STATE of North Carolina v. William Beach SMITH. |
| Court | North Carolina Supreme Court |
Bruce T. Cunningham, Jr., Southern Pines, George Hughes, and Joseph Blount Cheshire, V, Raleigh, for defendant-appellant.
William Beach Smith ("defendant") contends the trial court unconstitutionally relieved the State of its burden to prove all elements of second degree rape beyond a reasonable doubt by instructing the jury: "Force and lack of consent are implied in law if at the time of the vaginal intercourse the victim is sleeping or similarly incapacitated." After careful review, we conclude the trial court's instruction did not comport with constitutional standards. Accordingly, defendant's conviction is reversed and we remand for a new trial.
The evidence tended to show that defendant, a pilot and flight instructor, met the alleged victim when she took several flight lessons. Defendant and the victim became friends, and then became roommates when defendant allowed the victim to live in his home during the summer of 2001 after the victim's mother would no longer allow her to live in the family residence. The victim had recently graduated from high school, and in August 2001, she moved to Illinois to attend college.
During the weekend of 20 October 2001, the victim returned home for a visit. That Saturday evening she consumed eight malt liquor beverages and a glass of Jack Daniels whiskey while at a friend's home. On the same evening, defendant was celebrating a friend's birthday with a group of at least six individuals. After patronizing a local bar, the group returned to defendant's home to eat, socialize, and go to bed. The victim was not a part of this group.
Defendant and the victim each testified differently as to what occurred between them on Saturday evening and Sunday morning. The victim testified that defendant called her cell phone several times on Saturday evening and early Sunday morning to invite her over to his home for a cookout. She drove to defendant's home, knocked on the front door, and rang the doorbell. After defendant and his friend John opened the door, the victim entered the house, talked a few minutes in the foyer, and was informed that the party was over and that everyone had gone to bed. She indicated that she was too tired to drive home, so she went upstairs to go to sleep for a few hours in defendant's room. Defendant, his friend John, and the victim all slept in defendant's bed, with the victim in the middle. The victim testified that defendant began rubbing her arm and kissing her. She told him no and informed him that she was going to sleep. She went to sleep and then awoke with defendant on top of her. John was no longer in the room. Her pants and underwear had been removed, defendant had her hands pinned down above her head, and was having sexual intercourse with her. She told him to stop, but he continued. She then used her feet to push defendant off of her. Defendant left the room, and John returned and began touching her. She then told him to stop, he left the room, and the victim went back to sleep. She awoke at approximately 9:45 a.m. and left the residence. She testified that she had to pack and prepare to leave for the airport at 11:00 a.m. in order to return to Illinois. The victim did not inform anyone in North Carolina what had occurred; however, upon returning to her dormitory, she told two friends, sought medical treatment, and spoke to a college police officer a few days later.
Defendant testified that he did not know the victim was in town visiting from college, and that he did not call the victim several times that evening. He testified that he was celebrating a friend's birthday with a group of friends, and that the group returned to his home to cookout and sit in the hot tub. The victim called his cell phone at 4:30 a.m. and left a message. He returned her phone call approximately twenty minutes later, and told her who was at his house, but that they were getting ready to go to bed. Approximately forty minutes later, the victim called defendant and told him she was on her way over. He told her that everyone was in bed. To corroborate his testimony, defendant provided his cell phone bill which indicated he only called the victim at 4:52 a.m., and not several times. He also called two witnesses who had been with him that evening who testified that they did not call the victim from their cell phones, nor had they mentioned calling the victim as they did not know she was in town.
Defendant then testified that he did not know how she got into his home, and that he first encountered her when he got up to investigate a noise he had heard. Defendant called a witness who had been sleeping on defendant's couch downstairs that evening. This individual testified that he heard the kitchen door slam and heard someone bump into the trash can. He looked up and saw the victim in the kitchen. He watched her as she walked into the foyer and went upstairs. Defendant then testified that the victim got into his bed, and they began kissing. He indicated the kissing and touching was mutual and that the victim never went to sleep.
In a telephone conversation that the victim recorded without defendant's knowledge, defendant stated that he thought the sexual intercourse was mutual because they had been kissing and touching. He stated that she had touched him in certain places and that he decided to try and take it to another level. He indicated that because of the mutual kissing and touching, he felt she was aware of what was occurring and was awake. Defendant was very apologetic during the conversation, and he testified that he kept apologizing because the victim was a friend and was upset about what had happened between them. However, he reiterated that he felt the sexual intercourse was mutual and consensual.
The trial court instructed the jury on the elements of second degree rape. In the portion of the instruction regarding consent, the trial court stated: Defendant was convicted of second degree rape, and was sentenced to a minimum of seventy-three and a maximum of ninety-seven months imprisonment. Defendant appeals.
Defendant contends the trial court's instruction that "[f]orce and lack of consent are implied in law if at the time of the vaginal intercourse the victim is sleeping or similarly incapacitated[]" was erroneous. This instruction was based upon the Supreme Court of North Carolina's holding in State v. Moorman, 320 N.C. 387, 358 S.E.2d 502 (1987). In Moorman, the defendant knocked on the door of his friend's dormitory room, but did not receive a response. Id. at 390, 358 S.E.2d at 504. After he heard music playing in the room, he opened the door and saw a girl lying on the bed with her face down. Id. He went up to the girl, kissed her on her neck, and engaged in sexual intercourse with her twice. Id. After they had finished, he realized the girl was not his friend. Id. The victim testified that she was asleep in her dorm room and dreamed she was engaging in sexual intercourse. Id. at 389, 358 S.E.2d at 504. She awoke to find a stranger on top of her engaging in vaginal intercourse. Id. The defendant was indicted for, inter alia, second degree rape, and the State alleged that the defendant "`unlawfully, willfully and feloniously did ravish and carnally know [the victim] by force and ... against her will, in violation of N.C.G.S. 14-72.3.'" Id. at 389, 358 S.E.2d at 504. The defendant argued there was a fatal variance between this indictment and the proof presented at trial because the indictment alleged he utilized force to commit the rape, and the evidence presented at trial did not establish the use of force. State v. Moorman, 82 N.C.App. 594, 596, 347 S.E.2d 857, 858 (1986), overruled by 320 N.C. 387, 358 S.E.2d 502. Rather, the evidence only indicated the victim was asleep, which indicated physical helplessness, and not force. Id. at 597, 347 S.E.2d at 859. This Court determined there was a fatal variance between the indictment allegations and the proof because the indictment did not allege the victim was physically helpless. Id. at 598, 347 S.E.2d at 859. Specifically, this Court stated,
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.
Id. The Supreme Court of North Carolina reversed, and held that in the crime of rape, the elements of force and lack of consent are implied in law upon the showing of sexual intercourse with a person who was asleep, unconscious, or otherwise incapacitated and therefore unable to resist or give consent. Moorman, 320 N.C. at 391-92, 358 S.E.2d at 505. Thus, in Moorman, our Supreme Court concluded there was not a fatal variance between the indictment and the evidence offered at trial, and affirmed the defendant's conviction for second degree rape. Id. at 391-92, 358 S.E.2d at 505-06.
In this...
To continue reading
Request your trial
-
State v. McDaris
...and larceny when it found beyond a reasonable doubt Defendant had only committed N.C.G.S. § 14-54(a1). See State v. Smith , 170 N.C. App 461, 473, 613 S.E.2d 304, 313 (2005), aff'd as modified by 360 N.C. 341, 626 S.E.2d 258 (2006) (quoting Francis v. Franklin , 471 U.S. 307, 313, 105 S.Ct.......