State v. Thomas
| Decision Date | 05 May 2009 |
| Docket Number | No. COA08-515.,COA08-515. |
| Citation | 676 S.E.2d 56 |
| Parties | STATE of North Carolina v. Travis Bernard THOMAS, Defendant. |
| Court | North Carolina Court of Appeals |
Robert W. Ewing, Clemmons, for defendant-appellant.
Defendant Travis Bernard Thomas appeals from the judgments and commitments imposing sentences for second degree kidnapping and first degree rape. Defendant primarily argues on appeal that the trial court should have instructed the jury on the offense of assault on a female as a lesser alternative charge to first degree rape as provided in N.C. Gen.Stat. § 15-144.1 (2007). Because the conduct that defendant relies upon as supporting a charge of assault on a female is unrelated to the conduct that gave rise to the first degree rape charge, we hold that the trial court properly, under N.C. Gen.Stat. § 15-144.1, declined to instruct the jury regarding assault on a female.
The State's evidence tended to show the following facts. From 2000 to 2006, defendant was romantically involved with "Jane" while both lived in Wilson, North Carolina.1 In April or May 2006, the two ended their romantic relationship, and defendant moved to Georgia. According to Jane, she broke up with defendant because of his tendency to "date other women" and her realization that she "could do better." Between April 2006 and 20 November 2006, Jane spoke with defendant five or six times on the phone. Jane reported that the communication "wasn't hostile, but it wasn't pleasant either."
In November 2006, defendant made a visit to North Carolina to see his mother. In early November, defendant and Jane had dinner, but Jane did not want to see him again although defendant made frequent phone calls to her while he was still in North Carolina. On 20 November 2006, defendant called Jane on her cell phone and told her that he had something "really important" to show her before he returned to Atlanta. When Jane told him that she was on her way home with her son and nephew, he told her that he would meet her at her house.
Defendant arrived a little after 9:00 p.m. Jane agreed to accompany him to see what he wanted to show her, but only if she could bring the two boys with her because they had not spent any time together that day. She expected to return home within 20 to 30 minutes and left wearing her bedroom slippers.
Jane followed defendant's car in her own. She noticed that defendant was driving further and further into the countryside. Because she was becoming concerned about the distance, she used her cell phone to call defendant's cell phone and ask where they were going. She got his voice mail, but he called her back and told her that they were "almost here" and immediately turned into an abandoned area with an older house and several barns. Defendant told Jane that the farm had belonged to his grandmother, that he had grown up on it, and that he had recently purchased it.
Defendant then convinced Jane to get into his car where they talked for a while. Defendant told Jane, "I just want to know what we are." She replied, He responded, Defendant then told her that he had "got something" for her "in case [they did not] see [each other] again."
Defendant went to his trunk and retrieved an object wrapped in a blue blanket. After he got back into the car, he told Jane, "Turn your head to the left side and count to 20." She replied, He urged her, saying Jane testified that she heard something click and asked defendant if he had a gun inside the blanket. He denied it, saying that he was afraid of guns. After she heard another click, Jane grabbed the blanket and felt the barrel of a gun.
At that point, Jane tried to escape from the car, but defendant sprayed her with mace and drove off, leaving the two boys alone in Jane's car. The boys saw that defendant had driven off while Jane was trying to get out of the car—her feet were initially being dragged along the road. Jane's son called his father, Dwight Joyner. Joyner set out to find the boys and called 911 twice to summon the police.
Jane asked defendant what he was doing, and he responded: Jane begged defendant not to kill her. He replied, She pled with him some more, asking him to think of her son, her nephew, defendant's daughters, and their pastor.
Jane then jumped out of defendant's car while it was still moving. She suffered a number of injuries to her head, foot, knees stomach, and arms from hitting the road. Defendant stopped the car, put a rifle to her head, and threatened, "If you holler, I'll kill you." He then dragged her back to the car, scraping her stomach raw, and put her back inside. He drove to a secluded, wooded area and told her to pull her pants down. She said that she could not move, so he removed her pants and got on top of her. He then had sexual intercourse with her. Jane was unable to push him off because her arm was injured.
After defendant finished, he said, Jane asked him to take her back to the boys so that they could go to the emergency room, and she promised not to tell anybody about the rape. Defendant explained that the road they were on was a loop and started driving again. As they went around the loop, she saw flashing lights and realized that the boys had turned on the hazard lights and that she was near her car. She again jumped out of defendant's car and ran to her own. Defendant then drove off.
Jane tried to drive back to her house, but had trouble seeing because the mace was still burning her eyes. As Jane was trying to drive home, they encountered Joyner, her son's father. The police and emergency medical technicians met Jane at her house and took her to the emergency room. Jane reported that defendant had raped her. Officers could smell the odor of mace on Jane. When inspecting the crime scene, officers found Jane's bedroom slippers in the middle of the road.
The next day, defendant contacted the Sheriff's Department in Wilson County to ask whether there were any warrants for his arrest. He told Detective Williams that he had raped someone, "but it wasn't like that." He ultimately gave a voluntary statement to the Greene County Sheriff's Department that same day in which he admitted many of the events described by Jane, but claimed that they had consensual sex. Defendant acknowledged, however, that Jane had injured herself when jumping out of his car and that he had asked if she wanted to go to the emergency room.
The SBI seized defendant's car and collected a .22 rifle, an empty .22 ammunition box, duct tape, handcuffs, binoculars, and handwritten letters. In one letter, defendant wrote: Defendant also wrote: He ended by saying that he was "[s]orry" to his parents, siblings, Jane's mother, Jane's son, and Jane's nephew.
Defendant was indicted for first degree kidnapping and first degree rape. At trial, defendant testified on his own behalf, asserting that the sexual intercourse was consensual. He admitted that he removed a rifle from his trunk, wrapped it in a blue blanket, and moved it to the back seat, but claimed that he never displayed it to Jane. He testified that his can of pepper spray "went off by accident." On cross-examination, the prosecutor asked, "So how did you get consensual sex out of somebody who had a broken arm, a stomach that was ripped up, a knee that had injuries on it, feet that had injuries ... ?" Defendant explained that he only knew that Jane's arm was hurting and that her eyes were watering from the mace; he learned about her other injuries later. He explained: He added: "She didn't say no."
The jury convicted him of first degree kidnapping and first degree rape. The trial court sentenced defendant to a presumptive-range sentence of 216 to 269 months for the first degree rape conviction. The trial court arrested judgment on the first degree kidnapping charge and sentenced defendant for second degree kidnapping to a consecutive presumptive-range sentence of 24 to 38 months. Defendant timely appealed to this Court.
Defendant first argues that the trial court erred by denying his request that the court instruct the jury on the lesser alternative offense of assault on a female. Defendant acknowledges that assault on a female is not a lesser included offense of rape. See State v. Herring, 322 N.C. 733, 743, 370 S.E.2d 363, 370 (1988) (). Defendant argues, however, that he was entitled to an assault on a female instruction by virtue of N.C. Gen.Stat. § 15-144.1.
The State, in charging defendant with first degree rape, used...
To continue reading
Request your trial
-
Gaston v. Perry
...State v. Robison, 708 S.E.2d 215 (N.C. Ct. App. 2009) (unpublished); State v. Locklear, 681 S.E.2d 293 (N.C. 2009); State v. Thomas, 676 S.E.2d 56 (N.C. Ct. App. 2009); State v. Dyson, 648 599 S.E.2d 73 (N.C. Ct. App. 2004); State v. Beck; 594 S.E.2d 94 (N.C. 2004); State v. Mays, 582 S.E.2......
-
State Of North Carolina v. Trapp, COA09-1719
...lesser alternative charge of assault on a female. Our Court addressed this issue recently in State v. Thomas, Page 15 196 N.C. App. 523, 676 S.E.2d 56 (2009), where the defendant was convicted of second-degree kidnapping and first-degree rape. Thomas, 196 N.C. App. at 524, 676 S.E.2d at 57.......
-
Thomas v. Hall
...defendant for second degree kidnapping to a consecutive presumptive-range sentence of 24 to 38 months. State v. Thomas, 196 N.C. App. 523,524-27,676 S.E.2d 56,57-59 (2009) (footnote omitted). The North Carolina Court of Appeals, finding no error, affirmed Thomas's conviction and sentence. I......