State v. Weaver

• Decision Date: 05 October 1982
• Docket Number: No. 24A81,24A81
• Citation: 295 S.E.2d 375,306 N.C. 629
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Henry WEAVER.

Page 375

295 S.E.2d 375

306 N.C. 629

STATE of North Carolina v. Henry WEAVER.

No. 24A81.

Supreme Court of North Carolina.

Oct. 5, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., Nonnie F. Midgette, Raleigh, for the State.

Appellate Defender Adam Stein and Ann Petersen, Raleigh, admitted pro hac vice, for defendant-appellant.

CARLTON, Justice.

The primary question on this appeal is whether the offenses of taking indecent liberties with a child under the age of sixteen, G.S. 14-202.1 (1981); assaulting a child under the age of twelve, G.S. 14-33(b)(3) (1981); and assault on a female by a male over the age of eighteen, G.S. 14-33(b)(2) (1981), are lesser included offenses of first-degree rape of a child of the age of twelve or less, G.S. 14-27.2(a)(1) (1981).

I.

Evidence for the State tended to show that Cassandra Westbrook was eleven years old on 16 April 1980. Defendant, about 48 years of age, was the father of Cassandra's half-brother. On 16 April 1980, defendant, Cassandra's aunt Martha Brown, Cassandra and two other children went downtown to look for an inner tube for a bicycle tire. Cassandra gave the following testimony at trial. Defendant led Cassandra through town to the end of a dead-end street, telling her he knew a place where they could get a tire. He led her through a wooded area to a creek. There defendant choked her, threatened her with a knife, and struck her in the face. He told her to take down her pants; she complied. Cassandra also testified that defendant then "put his privates against mine. When I say privates I mean his penis." Cassandra then pulled up her pants and the two prepared to leave. Defendant pulled her pants down again and repeated the act described above. Cassandra testified, "He put his private parts inside me halfway." He also "put his mouth to my private parts." Defendant then made her put her mouth to his penis and told her to open her shirt. When she did not do so he ripped her shirt and brassiere. He put his mouth on her breast. He then wiped Cassandra with a white, brown and orange rag he had brought along. He told Cassandra that if she told her mother about the incident, he would kill her and her mother.

Defendant and Cassandra then returned to town where defendant bought Cassandra new clothes. She changed into the new clothes in the rest room of the Krispy Kreme shop where defendant worked. Defendant made three phone calls, one of which was to Cassandra's aunt, Martha Brown, who came to the doughnut shop to pick up Cassandra.

Cassandra's mother, Peggy Westbrook, testified that when she questioned Cassandra upon her arrival home, Cassandra denied that anything was wrong. Later, according to Ms. Westbrook, Cassandra began to have nightmares and do poorly in school. Cassandra's teacher called from school to say that Cassandra's grades were dropping. At the end of May 1980, Cassandra told her mother "a little bit about what happened." Ms. Westbrook testified, "She said he put his mouth on her, made her put her mouth on him and he put it in." Ms. Westbrook called the police.

The investigating officer, Sylvia Williamson, testified that Cassandra showed her the place where the alleged assaults occurred. They found the towel which Cassandra identified in court as similar to the one defendant used on the occasion in question. Ms. Williamson said Cassandra told her that defendant put his penis in her private area and "stroked." He also made her perform oral sex on him.

At the close of the State's evidence, the State and defendant stipulated that a crime laboratory examination of the towel failed to reveal the presence of hair or sperm.

A specialist in obstetrics and gynecology testified for defendant that he examined Cassandra some six weeks after the incident. He found no evidence of trauma to her genitals. He also testified that Cassandra told him defendant's penis had not been inserted into her vagina, mouth or rectum. On cross-examination Cassandra testified she had told the doctor this because she was embarrassed.

On Friday, the day scheduled for final arguments, defendant's lead counsel was not present in court because he had a family medical emergency. The trial court denied defendant's motion to continue the case until the following Monday. The court did recess until 2 p. m. in order to give defendant's assisting counsel, Ms. Isabell Day, time to prepare her closing argument. Although Ms. Day had been present throughout the trial, she told the court, "I have never had a jury trial before. This is my first time in front of the jury, my first examination of a witness in front of a jury, and I have never argued to a jury before." Ms. Day made the closing argument.

Defendant requested the court to instruct the jury on the offenses of assault on a female, assault on a child under twelve years of age, and taking indecent liberties with a child. The court instructed only on first-degree rape and attempted first-degree rape.

The jury convicted defendant of first-degree rape and he was sentenced to life imprisonment. He appeals the life sentence to this Court as a matter of right.

II.

Before this Court, defendant contends that the trial court erred in failing to instruct the jury on the offenses of taking indecent liberties with a child under the age of sixteen, G.S. 14-202.1 (1981); assaulting a child under the age of twelve, G.S. 14-33(b)(3) (1981); and assault on a female by a male over the age of eighteen, G.S. 14-33(b)(2) (1981)--offenses defendant argues are lesser included offenses of first-degree rape of a child of the age of twelve or less, G.S. 14-27.2(a)(1) (1981). We hold that these offenses are not, as a matter of law, lesser included offenses of first-degree rape of a child of the age of twelve or less, G.S. 14-27.2(a)(1) (1981).

The well-established rule in this jurisdiction is:

When a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense when the greater offense charged in the bill of indictment contains all of the essential elements of the lesser, all of which could be proved by proof of the allegations in the indictment. Further, when there is some evidence supporting a lesser included offense, a defendant is entitled to a charge thereon even when there is no specific prayer for such instruction, and error in failing to do so will not be cured by a verdict finding a defendant guilty of a higher degree of the same crime.

State v. Banks, 295 N.C. 399, 415-16, 245 S.E.2d 743, 754 (1978) (quotingState v. Bell, 284 N.C. 416, 419, 200 S.E.2d 601, 603 (1973)).

A.

Defendant was indicted and tried for the first-degree rape of a child "of the age of 12 years or less," G.S. 14-27.2(a)(1) (1981). That statute provides: "(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse: (1) With a victim who is a child of the age of 12 years or less and the defendant is of the age of 12 years or more and is four or more years older than the victim."

The "taking indecent liberties" statute in force at the time defendant was indicted defined that crime as follows: ¹

(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:

(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or

(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.

(b) Taking indecent liberties with children is a felony punishable by a fine, imprisonment for not more than 10 years or both.

G.S. 14-202.1 (Cum.Supp.1979), amended by G.S. 14-202.1 (1981).

It is clear from the statutory definition of these two crimes that the offense of taking indecent liberties with a child under G.S. 14-202.1 has essential elements which are not also essential elements of first-degree rape under G.S. 14-27.2(a)(1). The age requirements under the indecent liberties statute are not the same as those for first-degree rape. Under the indecent liberties statute the defendant must be "16 years of age or more" and "at least five years older" than the victim; the victim must be "under the age of 16 years." Under the first-degree rape statute the defendant must be "12 years or more" and "four or more years older than the victim;" the victim must be "12 years or less." (Emphases added.) Although both crimes have age requirements, those requirements are not the same. The offense of taking indecent liberties with a child, G.S. 14-202.1, contains different age requirements, or different essential elements, from the first-degree rape statute, G.S. 14-27.2(a)(1), and thus is not a lesser included offense of first-degree rape.

It might be argued that under certain factual circumstances taking indecent liberties with a child is a lesser included offense of first-degree rape. For example, in all cases in which the defendant is over seventeen and the victim is under twelve, as here, all the age elements of both statutes are met. However, if the defendant is less than seventeen years old it is possible that he will be four but not five years older than his victim; the age differential element of the rape statute would be met but not the age differential element of the indecent liberties statute. In that case, satisfying the age requirements of the statutory rape law does not automatically satisfy the age requirements of the indecent liberties statute. The age differential element of the "lesser" crime of taking indecent liberties is not completely included in the "greater" crime, the rape offense.

We do not agree with the proposition that the facts of a particular case should determine whether one crime is a lesser included offense of...