State v. Summitt

• Decision Date: 06 January 1981
• Docket Number: No. 41,41
• Citation: 301 N.C. 591,273 S.E.2d 425
• Parties: STATE of North Carolina v. Mark SUMMITT.
• Court: North Carolina Supreme Court

Page 425

273 S.E.2d 425

301 N.C. 591

STATE of North Carolina v. Mark SUMMITT.

No. 41.

Supreme Court of North Carolina.

Jan. 6, 1981.

On petition for discretionary review of decision of the Court of Appeals, 45 N.C.App. 481, 263 S.E.2d 612, finding no error in the trial before Burroughs, J., at the 21 May 1979 Session of Gaston Superior Court.

Defendant was charged in bill of indictment number 79CRS5134 with the first-degree rape of his eleven-year-old niece, Sherry Lynn Knight. He was also charged with the second-degree rape of the same person in bill of indictment number 79CRS5133. The charges were consolidated for trial, and defendant entered a plea of not guilty to each charge. The indictment for second-degree rape in indictment number 79CRS5133 is not before us on this appeal since the jury returned a verdict of not guilty on that charge.

The prosecuting witness testified that on or about 24 March 1978, defendant came to her home and carried her to his home. Defendant told her at that time that he and his wife were going to take her to buy an Easter dress. Upon arriving at defendant's home, she discovered that his wife was not at home, and shortly thereafter defendant proceeded to have intercourse with her. Sherry testified that she had never had intercourse before that date and that she did not tell her mother about this incident until sometime in March, 1979. After she told her mother of this assault, her mother called the police, and Sherry related substantially the same facts to the police. The witness's mother and police officers corroborated the prosecuting witness's testimony by relating statements that she made to them on that day.

A medical examination performed in March, 1979, indicated that the prosecuting witness had engaged in intercourse at some prior time.

Defendant testified that he had never transported the prosecuting witness anywhere unless someone else was in the car and that his wife was with him when they picked Sherry up on the date in question. Defendant offered corroborative testimony and also offered evidence of his good character.

In rebuttal, the State offered a witness who testified concerning a conversation with the prosecuting witness in which she told the witness of an attack upon her by defendant.

On the charge of first-degree rape on or about 24 March 1978, the trial judge submitted the possible verdicts of guilty or not guilty of first-degree rape, guilty or not guilty of second-degree rape, guilty or not guilty of assault with intent to commit rape and guilty or not guilty of assault on a female. Before the trial judge instructed the jury, defendant objected to the submission of the lesser-included offenses. His objection was overruled. The jury returned a verdict of guilty of second-degree rape, and the trial judge entered judgment imposing a prison sentence of not less than ten nor more than fifteen years. Defendant appealed. The Court of Appeals in a unanimous opinion found no error, and defendant gave notice of appeal. In the alternative, defendant petitioned this Court for discretionary review pursuant to G.S. 7A-31. The Attorney General moved to dismiss defendant's appeal on 24 April 1980. We allowed defendant's petition for discretionary review on 3 June 1980 and denied the Attorney General's motion to dismiss on the same date.

Rufus L. Edmisten, Atty. Gen., by John R. B. Matthis, Sp. Deputy Atty. Gen., Alan S. Hirsch, Asst. Atty. Gen., and John F. Maddry, Associate Atty., Raleigh, for the State.

Frank Patton Cooke, Gastonia, by Kenneth B. Oettinger, for defendant-appellant.

BRANCH, Chief Justice.

Defendant assigns as error the action of the trial judge in submitting to the jury, over his objection, the lesser-included offense of second-degree rape. Defendant argues that it was error to submit the lesser-included offense of second-degree rape because there was no evidence from which the jury could find that he committed that offense. Defendant was charged under the provisions of former G.S. 14-21, repealed effective 1 January 1980 which provided Every person who ravishes and carnally knows any female of the age of 12 years or more by force and against her will, or who unlawfully and carnally abuses any female child under the age of 12 years, shall be guilty of rape, and upon conviction, shall be punished as follows:

(1) First-Degree Rape

a. If the person guilty of rape is more than 16 years of age, and the rape victim is a virtuous female child under the age of 12 years, the punishment shall be death; or

b. If the person guilty of rape is more than 16 years of age, and the rape victim had her resistance overcome or her submission procured by the use of a deadly weapon, or by the infliction of serious bodily injury to her, the punishment shall be death.

(2) Second-Degree Rape Any other offense of rape defined in this section shall be a lesser-included offense of rape in the first degree and shall be punished by imprisonment in the State's prison for life, or for a term of years, in the discretion of the court.

The trial judge gave the following instructions to the jury on second-degree rape:

If you do not find the defendant guilty of first-degree rape, you must decide whether he is guilty of second-degree rape. Second-degree rape differs from first-degree rape in that it is not necessary for the State to prove that the defendant was more than sixteen years of age or that Sherry Lynn Knight was virtuous.

So, I charge that if you find from the evidence beyond a reasonable doubt that on or about March 24, 1978, Mark Summitt had sexual intercourse with Sherry Lynn Knight who at that time had not reached her twelfth birthday, it would be your duty to return a verdict of guilty of second-degree rape. However, if you do not so find or have a reasonable doubt as to one or both of these things, you will not return a verdict of guilty of second-degree rape.

Now, Members of the Jury, I want to instruct you as to second-degree rape because in my earlier charge to you I left out a portion of it.

If you do not find the defendant guilty of first-degree rape, you must decide whether he is guilty of second-degree rape. Second-degree rape differs from first-degree rape in that it is not necessary for the State to prove the defendant was more than sixteen years of age or that Sherry Lynn Knight was virtuous.

So, I charge that if you find from the evidence beyond a reasonable doubt that on or about March 24, 1978, Mark Summitt had sexual intercourse with Sherry Lynn Knight who at that time had not reached her twelfth birthday, it would be your duty to return a verdict of guilty of second-degree rape.

The trial judge must submit and instruct the jury on a lesser-included offense when, and only when, there is evidence from which the jury can find that a defendant committed the lesser-included offense. Conversely, when all the evidence tends to show that defendant committed the crime charged in the bill of indictment and there is no evidence of the lesser-included offense, the court should refuse to charge on the lesser-included offense. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976). The presence of evidence to support conviction of the lesser-included offense is the determinative fact. State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976).

Evidence would be sufficient to carry a case to the jury on a charge of second-degree rape of a twelve-year-old child pursuant to G.S. 14-21 when the evidence fails to support any one of the elements of first-degree rape enumerated in G.S. 14-21(1)(a), to wit, (1) the age of the prosecuting witness is less than twelve years old, (2) the age of defendant is more than sixteen years old, (3) the virtuous character of the prosecuting witness. Neither defendant nor the State contends that the age of the prosecuting witness or the age of defendant is in doubt. The State contends however that evidence exists in the record to support the submission and an instruction on the lesser offense since there was sufficient evidence to permit the jury to find that the prosecuting witness was not virtuous.

The State emphasizes two aspects of the evidence to support the instruction on the lesser offense. First, the State points to the medical evidence which indicated that the victim had previously engaged in sexual intercourse. Second, the State notes that during the prosecuting witness's testimony she twice stated that the rape did not cause any bleeding. The State contends that this evidence is sufficient to support a reasonable inference that the prosecuting witness was not virtuous.

The standard to determine whether a charge should be submitted to a jury is the "more than a scintilla of evidence" test. The classic statement of the test comes from Stacy, C. J., in State v. Johnson, 199 N.C. 429, 431, 154 S.E. 730, 731 (1930), where he states:

It is sometimes difficult to distinguish between evidence sufficient to carry a case to the jury, and a mere scintilla, which only raises a suspicion or possibility of the fact in issue. (Citations omitted.) The general rule is that, if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.

The medical evidence relied upon by the State cannot be considered in support of its position. The examination of the prosecuting witness took place about a year after the incident and, while relevant to the issue of prior sexual activity as some evidence of defendant's guilt, the evidence is irrelevant as the question of the victim's condition at the time of the alleged rape. Nothing in the doctor's testimony gives the jury a time frame from which it could reasonably conclude that the prosecuting witness was not virtuous on or before March, 1978.

The prosecuting witness's testimony that s...