BRYANT, Judge.
Where there was sufficient evidence of force to support submitting the charges of second-degree rape and second-degree sexual offense to the jury, the trial court did not err in denying defendant's motion to dismiss. Where there was clear and positive evidence of intercourse between defendant and the victim, the trial court did not err in failing to submit a lesser included offense of attempted second-degree rape.
On 14 December 2009, defendant was indicted on charges of one count of second-degree rape and one count of second-degree sexual offense in Nash County Superior Court. A trial commenced during the Nash County Criminal Court Term beginning 14 November 2011, the Honorable Robert F. Johnson, Judge presiding.
The evidence presented at trial tended to show that the victim, a twenty-five year old woman at the time of trial, went to Club 252 in Rocky Mount around midnight on the evening of 9 October 2009. The victim had been to the club several times in the past, usually with her sisters and her friend. This night, she was alone. While the victim sat at the bar, a security guard, defendant Kenneth Norman, approached and asked where her friends were. Then he started making sexual advances toward her, which the victim rejected-dancing behind her, leaning in trying to kiss her, and continuing to attempt to kiss her even after she told him she had a girlfriend and did not date guys. At about 2:30 a.m., on the morning of 10 October, after the victim had consumed several mixed drinks, the female bartender took the victim's car keys and escorted her outside the bar. Defendant accompanied them. The bartender and defendant walked the victim around the parking lot attempting to help her sober up. The victim sat in defendant's car while the bartender went back inside. Meanwhile, defendant continued to make sexual advances toward the victim, asking if he could take her to a hotel and could he "get [her] p***y." At about 3:00 a.m., the club closed and the bartender said that she would give the victim a ride home but she had to take three or four employees home in her truck first. The victim had tried several times to reach her girlfriend to drive her home but was unsuccessful. Defendant volunteered to stay with the victim until the bartender returned.
Alone in the parking lot, defendant took the victim's hand and pulled her over to a swing located on the edge of the property near a wooded area at the rear end of the building. He pushed the victim down on the swing seat and told her they would wait for the bartender to return. There defendant began touching the victim in a sexual manner: kissing her, fondling her breasts, and pulling on her clothes. The victim testified that she resisted defendant by telling him no, and that she did not want him to touch her, and by struggling to make it difficult for him to kiss her or remove her clothing. The victim testified that she was crying, but she didn't want to anger defendant, knowing they were the only two people on the property. Defendant picked the victim up, pulled her pants down and pushed her down on the ground. As defendant unzipped his pants, and lay on top of her, the victim "clinch[ed] [her] legs together" and continually "scoot[ed] back away from him"; however, the victim testified that defendant's penis entered her vagina three times. At some point, defendant put his penis in victim's mouth before she turned away. Defendant also put his mouth between her legs, and his tongue in her vagina. The victim also testified defendant digitally penetrated her anus with his finger before she pulled away. The victim's mother and sister arrived to find the victim hysterical and defendant's clothes in disarray. Law enforcement officers were called, and the victim was taken to Nash General Hospital to undergo an evaluation, including the collection of possible evidence for a rape kit.
Following the presentation of evidence, the jury returned guilty verdicts on the charges of second-degree rape and second-degree sexual offense. The trial court entered judgment in accordance with the jury verdicts and sentenced defendant to active terms of 100 to 129 months imprisonment for second-degree rape and 80 to 105 months imprisonment for second-degree sexual offense, to be served consecutively. The trial court further ordered that upon release from prison, defendant register as a sex offender and that he enroll in satellite based monitoring for his natural life. Defendant appeals.
On appeal, defendant raises two issues: whether the trial court erred (I) in denying his motion to dismiss the charges; and (II) in failing to instruct the jury on the lesser-included offense of attempted second-degree rape.
Defendant first argues that the trial court erred in failing to dismiss the charges of second-degree rape and second-degree sexual offense. Defendant contends that the evidence fails to establish defendant used force to overcome the victim's will. Specifically, defendant argues that he did not threaten the victim with bodily harm, she did not resist his sexual advances, and there was no history of violence. We disagree.
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citations and quotations omitted). "In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted).
Defendant was charged with second-degree rape and second-degree sexual offense. "A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person: (1) [b]y force and against the will of the other person ...." N.C. Gen. Stat. § 14-27.3(a)(1) (2011). "A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person: (1) [b]y force and against the will of the other person ...." N.C. Gen. Stat. § 14-27.5 (a)(1) (2011).
As to both charges, defendant challenges whether there was sufficient evidence to find he used force to overcome the victim's will. Defendant cites State v. Alston, 310 N.C. 399, 312 S.E.2d 470 (1984), for the proposition that in the absence of evidence that a defendant used force or threats to overcome the will of the victim, generalized fear is not sufficient to establish the force required to support a conviction of rape. Id. at 409, 312 S.E.2d at 476 (finding substantial evidence of intercourse against the victim's will but not substantial evidence of actual force or threat of force sufficient to overcome the victim's will).
Our Supreme Court later specifically limited the application of the "general fear theory" "to fact situations similar to those in Alston."
Id. at 656-57, 351 S.E.2d at 283 (citations omitted).
Considering defendant's argument as to a lack of force or threat sufficient to overcome the victim's will as it relates to the conviction for second-degree rape, we note the following observation by the Alston Court:
Alston, 310 N.C. at 407-08, 312 S.E.2d at 475.
Here, the victim testified that while she was in the bar, defendant said "sexual things" to her: "he wanted to feel my tongue ring and ... could we basically have sex." "I told him no[.]" Just before the bar closed, the female bartender took the victim's keys and, along with defendant, walked the victim around to help her sober up. While the bartender went to retrieve a bottle of water for the victim, defendant "kept asking me could he take me to a hotel[;] [a]sking me could he get my p***y .... And I was saying no. The whole time I was saying no." After the club closed at 3:00 a.m., the bartender came out and let the victim know that she would give the victim a ride home after taking a few co-workers home, first. Defendant volunteered to stay with the victim. Defendant walked the victim to a wooden swing located at the "back end" of the club away from the club's exit door and sat her down. After the bartender left, "it was just me and him there. And he started — he put his arms around me, he started touching me and kissing on my face and on my neck. And kept on asking me to go to a hotel with him and then he started touching me inside of my shirt. And basically pulling on my clothes to the point where he pulled me up off of the swing and unbuttoned my pants."
The victim went on to describe continuous acts of resistance throughout the sexual assault, which included penile-vaginal penetration, digital-anal penetration, as well as fellatio and cunnilingus.
The record presents evidence of force and constructive force by defendant, and statements and actions by the victim which were clearly communicated to defendant and which expressly and unequivocally indicated the victim's lack of consent to intercourse or a sexual act.
Next, defendant argues that the trial court erred in failing to instruct the jury concerning the issue of defendant's guilt of the lesser-included offense of attempted second-degree rape. Specifically, defendant contends that the evidence of penetration was not "clear and positive." We disagree.
State v. Speight, ___ N.C. App. ___, ___, 711 S.E.2d 808, 815 (2011) (citation omitted).
"A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person: (1) [b]y force and against the will of the other person ...." N.C.G.S. § 14-27.3(a)(1). Defendant specifically asserts that the evidence of intercourse was not "clear and positive." We look to the record.
During trial, the victim gave the following testimony about the rape:
After the rape, the victim's mother and sister arrived to pick her up. The victim testified that she was crying hysterically and that she told her sister exactly what happened. Law enforcement arrived shortly thereafter and transported the victim to Nash General Hospital.
At trial, a sexual assault nurse examiner (SANE) working for Nash Healthcare Systems was received as an expert in the field of sexual assault examination and testified to her examination of the victim. On voir dire, the SANE nurse testified that as part of the documentation typically generated by a SANE nurse in completing a rape kit, she asked the victim specifically what happened and then wrote down the victim's statement in the victim's words as she was saying it. Before the jury, the SANE nurse was asked to read the words that the victim told her during the course of her rape kit evaluation as corroboration of the victim's testimony. In pertinent part, the SANE nurse read the following into the record:
We hold the record reflects clear and positive evidence that defendant's penis penetrated the victim's vagina; therefore, defendant was not entitled to an instruction on attempted second-degree rape. Accordingly, defendant's argument is overruled.
No error.
Judges McGEE and ERVIN concur.
The Court determined that absent an explicit threat and absent circumstances that would give rise to a reasonable inference an unspoken threat was used to force unwanted sexual intercourse, the evidence was insufficient to support a conviction of rape. The Court stated that "[w]here as here the victim has engaged in a prior continuing consensual sexual relationship with the defendant, [] determining the victim's state of mind at the time of the alleged rape obviously is made more difficult." Alston, 310 N.C. at 407, 312 S.E.2d at 475.
