State v. Walker

• Decision Date: 15 August 2000
• Docket Number: No. COA99-720.,COA99-720.
• Citation: 139 NC App. 512,533 S.E.2d 858
• Parties: STATE of North Carolina v. Clarence Lee WALKER.
• Court: North Carolina Court of Appeals

533 S.E.2d 858

139 NC App. 512

STATE of North Carolina v. Clarence Lee WALKER.

No. COA99-720.

Court of Appeals of North Carolina.

August 15, 2000.

Michael F. Easley, Attorney General, by Jane Ammons Gilchrist, Assistant Attorney General, for the State.

Clifford Clendenin O'Hale & Jones, LLP, by Walter L. Jones, Greensboro, for defendant-appellant.

EDMUNDS, Judge.

Defendant Clarence Lee Walker appeals his convictions of attempted first-degree rape and assault with a deadly weapon inflicting serious injury. We vacate the attempted rape conviction but find no error in the assault conviction.

The victim in this case was employed as a Deputy Clerk of Court of Guilford County, working in the courthouse in High Point. At approximately 9:30 a.m. on 31 March 1998, she went to the public restroom on the second floor of the courthouse. While in one of the stalls, she heard the men's restroom door open, then almost immediately heard the women's restroom door open. Unsure what was happening, she waited a moment before exiting the stall. As she walked toward one of the bathroom sinks, she saw a man, whom she later identified as defendant, standing against a wall peeking around a partition. He was wearing a yellow, hooded sweatshirt. Defendant turned off the lights in the bathroom, then came toward the victim, grabbed her by the shoulders or arms, and threw her to the floor. The victim landed on her buttocks and back but quickly turned onto her side.

Defendant also fell when he threw down the victim. She testified that "[w]hen I rolled over, he was laying completely on top of me. He was straddling me but he was laying—laying on me." While defendant tried to cover the victim's mouth with his right hand to stifle her screams, she kept moving her head to thwart his efforts. At the same time, defendant was striking the victim in her head and face with his left hand. Defendant said "shut up bitch" and told her to roll onto her stomach.

Because defendant continued to hit her and no one came to her aid, the victim stopped screaming and asked defendant what he wanted. He responded that he wanted her to roll over onto her stomach. The victim added:

His hands came away from my head area where they had been where he had been trying to hold my mouth and when he was beating me. His hands did come away. I felt them touch my side. And it may have just been his right hand touch my side.

The victim began screaming again, and defendant resumed beating her in the face and attempting to cover her mouth with his hand. After approximately one minute, defendant got up and ran away. The victim made her way out of the bathroom and was escorted to the district attorney's office. There, she gave Police Officer Brewer a description of her assailant including his height, weight, and clothing. In turn, the officer relayed the description over police radio.

Guilford County Mental Health case worker Arthur Carlton Montsinger (Montsinger) worked in the Mental Health Building beside the courthouse and was acquainted with defendant. Sometime between 9:30 and 10:00 a.m. on the morning of the assault, he saw defendant at the Mental Health Building. He was perspiring heavily and was wearing a "yellowish, gold" hooded sweatshirt, which matched the description provided by the victim. Defendant said that he had misplaced his Social Security card and asked Montsinger to take him to his aunt's house to retrieve it. They left the Mental Health Building in a county vehicle but were stopped by the police. Defendant was returned in a police car to the courthouse parking area. Officers removed defendant from the police car, and the victim, observing defendant from a vantage point in the courthouse, identified him as her assailant.

Defendant was arrested, waived his rights, and spoke with a police detective. He initially denied being at the courthouse, then changed his account and told the detective that he had been on the second floor of the courthouse. He said he had been near the public restrooms but denied going into the restrooms or touching the victim.

At trial, defendant testified that he came to the courthouse on the day of the assault and spoke to someone about obtaining a copy of his birth certificate. When he was told that it would cost $10.00, he left to see Montsinger. Defendant testified that he made his inquiry about his birth certificate on the first floor of the courthouse and that he never went to the second floor.

Defendant was convicted of attempted first-degree rape and assault with a deadly weapon inflicting serious injury. Thereafter, the jury found defendant to be an habitual felon. As to the charge of attempted firstdegree rape, he was sentenced for the substantive offense alone and received a sentence of 313 to 385 months. The court also imposed a consecutive sentence of 168 to 211 months for committing assault with a deadly weapon inflicting serious injury while being an habitual felon. Defendant appeals.

I.

Defendant first contends that the trial court erred in denying his motion to dismiss the charge of attempted first-degree rape based on insufficiency of the evidence. In ruling on such a motion, the trial court must view the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference. See State v. Hall 85 N.C.App. 447, 452, 355 S.E.2d 250, 253 (1987). If the trial court then finds substantial evidence of each element of the offense, it must submit the case to the jury. See id. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citations omitted).

"In order to prove attempted firstdegree rape, the State must prove that the defendant had the intent to commit the crime and committed an act which went beyond mere preparation, but fell short of actual commission of the first-degree rape." State v. Montgomery, 331 N.C. 559, 567, 417 S.E.2d 742, 746 (1992) (citation omitted). In the case at bar, because the evidence of defendant's overt behavior is quite clear, the only issue is defendant's intent at the time he attacked the victim. To prove intent to commit rape,

[t]he State is not required to show that the defendant made an actual physical attempt to have intercourse.... 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. Schultz, 88 N.C.App. 197, 200, 362 S.E.2d 853, 855-56 (1987) (internal citations omitted), aff'd per curiam, 322 N.C. 467, 368 S.E.2d 386 (1988).

The defendant in Schultz was convicted of attempted second-degree rape. The evidence in that case indicated that the defendant inveigled his way into the victim's home, then grabbed her from behind and asked her for money. On appeal, we noted that the defendant, who was behind the victim as they struggled, dragged her toward a bedroom, then reached over her shoulder, down her shirt, and touched her breasts. Affirming the conviction, this Court cited other cases where an attempted rape conviction was allowed to stand and noted that "[i]n each of these cases where the evidence of intent was found sufficient, the defendant manifested his sexual motivation by some overt act." Id. at 201, 362 S.E.2d at 856; see State v. Whitaker, 316 N.C. 515, 342 S.E.2d 514 (1986) (defendant verbalized his intent to commit cunnilingus with the victim); Hall, 85 N.C.App. 447, 355 S.E.2d 250 (defendant pulled the victim's shirt down and touched her breasts); State v. Norman, 14 N.C.App. 394, 188 S.E.2d 667 (1972) (defendant touched the victim on one of her breasts). Defendant cites cases where this Court found insufficient evidence of intent to rape. In State v. Brayboy, 105 N.C.App. 370, 413 S.E.2d 590 (1992), the defendant and a codefendant were fishing when they were joined by the victim and her boyfriend. The co-defendant shot and wounded the victim's boyfriend. When the victim walked toward the sound of the shot, the defendant "grabbed her from behind, put his hand over her mouth and pinned her to the ground." Id. at 372, 413 S.E.2d at 591. The defendant repeatedly told the victim to shut up or he would kill her and raised his fist as if to strike. The co-defendant approached the struggling victim and the defendant and said to the defendant, "`Go on and do what you want to do with her.'" Id. However, the defendant never touched the victim's private parts, nor did she complain of being sexually assaulted. See id. In holding this evidence insufficient to support a charge of attempted rape, we said:

There is no evidence that defendant forced himself upon her in a sexual manner or indicated that it was his intent to engage in forcible, nonconsensual intercourse with her. The evidence merely shows that defendant grabbed [the victim], forced her to the ground, pinned her arms behind her back and then straddled her following [codefendant's] shooting [the victim's boyfriend]. The only evidence which could give any indication that defendant might have intended to commit some sexual act upon [the victim] is [co-defendant's] statement, "Go on and do what you want to do with her." This evidence allows one only to speculate exactly what defendant may have intended to "do"....

Id. at 374-75, 413 S.E.2d at 593.

In State v. Nicholson, 99 N.C.App. 143, 392 S.E.2d 748 (1990), the defendant first came to the victim's door and asked for a bandage, then returned twenty minutes later seeking matches. While the victim was trying to help, the defendant entered the victim's house, grabbed her around the neck and shoulder, and pointed a pistol at her head. He threatened to kill her and forced her to walk to another room, where the victim fell to the floor and asked the defendant why he was attacking her. The defendant did not...