1. Criminal Law--burden of proof--greater weight of evidence--beyond a reasonable
doubt
Although the trial court erred in a first-degree rape, first-degree sexual offense, and taking
indecent liberties case by its preliminary instruction to the jury explaining the law of
circumstantial evidence that the jury could convict defendant based upon the greater weight of
the evidence, the trial court did not commit plain error when it properly instructed the jury fifty
times that the State had to prove its case beyond a reasonable doubt for all fifteen charges
brought against defendant.
2. Constitutional Law--double jeopardy--acting in concert jury instructions
The trial court committed plain error in a first-degree rape, first-degree sexual offense,
and taking indecent liberties case by its jury instructions on those counts where defendant was
convicted on the theory of acting in concert with his coparticipant, because: (1) use of the pattern
jury instruction without amendments allowed the jury to convict defendant based on acting in
concert regardless of whether the jury believed that defendant had acted together with his
coparticipant as the coparticipant committed the offense, or whether defendant committed the
offense acting alone; and (2) since defendant was separately convicted for all of the same
offenses based on his own actions, the instructions allowed defendant to be convicted twice for
the same offense in violation of his right to be free from double jeopardy. U.S. Const. amends. V
and XIV; N.C. Const. art. I, § 19.
3. Rape; Sexual Offenses--short-form indictments--constitutionality
Although defendant contends the short-form indictments charging him with first-degree
rape and first-degree sexual offense were deficient based on a failure to allege the elements that
distinguished the crimes as first-degree, our Supreme Court has already upheld the
constitutionality of these indictments.
Attorney General Michael F. Easley, by Assistant Attorney
General Sylvia Thibaut, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Julie Ramseur Lewis, for defendant.
HUDSON, Judge.
Defendant was convicted of two counts of first degree rape,
five counts of first degree sexual offense, and six counts of
taking indecent liberties with a child. He contends the trial
court gave the jury improper instructions regarding the State's
burden of proof and on the theory of acting in concert. Because we
agree the trial court committed plain error in its instructions on
the charges for which defendant was convicted on the theory of
acting in concert, we hold that defendant is entitled to a new
trial for those crimes, identified in case numbers 97 CRS 25655
(count #2), 25658, 25661, and 25662.
The State presented evidence at trial tending to show the
following: on 12 June 1997, Melissa Robertson (Robertson), Brandy
Jo Boyd (Boyd), and Lori Mark (Mark), all fourteen years old,
decided to try to get a ride to Rock Hill, South Carolina, in order
to visit Boyd's boyfriend. Mark, who was at a Harris Teeter store
that evening, approached defendant and Ashley Burnette (Burnette),
who were sitting in a pick-up truck in the store parking lot. Mark
asked the men if they would be willing to give the girls a ride to
Rock Hill for thirty dollars. Defendant, twenty-one years old,
agreed to do so and proceeded with Burnette and Mark to pick up
Robertson and Boyd at pre-arranged sites.
After driving on Highway 51 for a distance, defendant pulled
onto a dirt road and stopped at a barn. He forced the girls out of
the back of the truck and into the barn. Once everyone was inside
the barn, he forced Boyd to have oral, vaginal, and anal sex with
him, and made both Mark and Robertson fellate him. Burnette also
forced Boyd to have oral and vaginal sex and made Mark fellate him. After these sexual assaults, defendant forced the girls to curl up
into balls on the floor, covered them with straw, and the girls
were struck with hard objects. Defendant told the girls not to
move or he would kill them. After defendant and Burnette left, the
girls escaped, found a telephone, and called the police.
At a trial commencing 30 March 1998, defendant was convicted
of the following crimes: first degree rape of Boyd, first degree
rape of Boyd by acting in concert with Burnette, taking indecent
liberties with Boyd by having sexual intercourse with her, taking
indecent liberties with Boyd by acting in concert with Burnette who
had sexual intercourse with her, first degree sexual offense
against Boyd by forcing her to perform oral sex, first degree
sexual offense against Boyd by acting in concert with Burnette who
forced her to perform oral sex, taking indecent liberties with Boyd
by forcing her to perform oral sex, taking indecent liberties with
Boyd by acting in concert with Burnette who forced her to perform
oral sex, first degree sexual offense against Boyd by having anal
sex with her, first degree sexual offense against Mark by forcing
her to perform oral sex, taking indecent liberties with Mark by
forcing her to perform oral sex, first degree sexual offense
against Robertson by forcing her to perform oral sex, and taking
indecent liberties with Robertson by forcing her to perform oral
sex. Judge Robert P. Johnston entered judgment in accordance with
the jury's verdicts on 20 April 1998. Defendant filed a petition
for writ of certiorari to this Court on 29 September 1999, which
petition was allowed.
[1]Defendant first argues on appeal that the trial judgeinstructed the jury that it could use the wrong burden of
proof in
convicting defendant. The judge gave the jury an instruction on
the law of circumstantial evidence as follows:
The law makes no distinction between the weight to be
given to either direct or circumstantial evidence. Nor
is a greater degree of certainty required of
circumstantial evidence than of direct evidence. The law
simply requires the party having the burden of proof on
a particular issue to satisfy the jury as to that issue
by the greater weight of the evidence in the case.
Clearly, the judge erred in instructing the jury that it could
convict defendant based upon "the greater weight of the evidence."
See State v. Blue, 138 N.C. App. 404, 415, 531 S.E.2d 267, 275
(2000), aff'd in part, rev'd in part on other grounds, 353 N.C.
364, 543 S.E.2d 478 (2001)(where judge gave the exact instruction
given in this case). In a criminal trial, the State must prove its
case "beyond a reasonable doubt." Id.
The State points out that the court instructed the jury using
the correct "beyond a reasonable doubt" standard numerous times
elsewhere in its charge. Defendant correctly responds that "an
erroneous instruction on the burden of proof is not ordinarily
corrected by subsequent correct instructions upon the point."
State v. Harris, 289 N.C. 275, 280, 221 S.E.2d 343, 347 (1976).
However, there are exceptions to this rule. In State v. Harris, 46
N.C. App. 284, 288, 264 S.E.2d 790, 792 (1980), this Court
considered a case where the trial court had given an improper
instruction on the burden of proof one time, but had given the
correct instruction fifteen times and had instructed the jury
properly in the "all-important mandate on each charge." In thatcase, we determined that "[t]he charge as a whole presented
the law
of burden of proof to the jury in such a manner as to leave no
reasonable cause to believe that the jury was misled." Id. at 289,
264 S.E.2d at 793.
In the present case, although the trial court gave an
erroneous preliminary instruction regarding the burden of proof
while explaining the law of circumstantial evidence, it instructed
the jury properly that the State had to prove its case beyond a
reasonable doubt repeatedly for all fifteen charges brought against
defendant. In total, the court instructed the jury that the
State's burden of proof was "beyond a reasonable doubt" fifty
times. As in Harris, we do not believe there is reasonable cause
to believe the jury in this case was misled regarding the State's
burden of proof. Certainly, the trial court's single erroneous
jury instruction on the burden of proof does not amount to plain
error, which defendant must show given that he did not object to
the instruction at trial. See N.C.R. App. P. 10(c)(4).
[2]Defendant next argues the trial court erred in its
instructions to the jury on those counts where he was convicted on
the theory of acting in concert with Ashley Burnette, specifically,
in 97 CRS 25655 (count #2), 25658, 25661, and 25662. For example,
in charging the jury on the crime of first degree sexual offense
against Boyd by acting in concert with Burnette when Burnette
forced Boyd to fellate him, the judge stated:
So I charge that if you find from the evidence beyond a
reasonable doubt that on or about June 13th, 1997, the
defendant acting either by himself or acting together
with Ashley Burnett [sic] committed these offenses, thenyou would find him guilty.
(emphasis added).
The court gave similar instructions in the other three
instances where defendant was convicted on the theory that he acted
in concert with Burnette, including for the first degree rape of
Boyd and two counts of taking indecent liberties with Boyd.
The State contends the foregoing instruction was proper
because it was taken from the pattern jury instruction for acting
in concert. See N.C.P.I.--Crim. 202.10. However, defendant
correctly asserts that the cited instruction allowed the jury to
convict him twice for the same crime. To be precise, the jury
instruction allowed the jury to convict defendant based on the
theory of acting in concert regardless of whether the jury believed
that defendant had acted together with Burnette as Burnette
committed the offense, or believed that defendant committed the
offense acting alone. Since defendant was separately convicted for
all of the same offenses based on his own actions, the cited jury
instructions allowed defendant to be convicted twice for the same
offense, and thus violated his rights under the Fifth and
Fourteenth Amendments to the United States Constitution and under
Article I, § 19, of the North Carolina Constitution to be free from
double jeopardy. See State v. Murray, 310 N.C. 541, 547, 313
S.E.2d 523, 528 (1984)(defendant subjected to double jeopardy if
convicted twice for same offense). Thus, use of the pattern
instructions without appropriate amendment under the circumstances
of this particular case rendered the charge confusing.
Defendant did not object at trial to any of the erroneous juryinstructions discussed above. He is thus limited to
arguing the
trial court committed plain error. See N.C.R. App. P. 10(c)(4).
Plain error may be found where the trial court has committed
"fundamental error, something so basic, so prejudicial, so lacking
in its elements that justice cannot have been done." State v.
Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)(emphasis in
original)(citation omitted). In this case, where the trial court
instructed the jury in a manner such that the jury was allowed to
convict defendant twice for the same offense, fundamental error
occurred. Defendant is therefore entitled to a new trial with
corrected jury instructions for the crimes with which he was
charged on the basis of acting in concert with Ashley Burnette.
[3]Defendant finally objects that he was charged with first
degree rape and first degree sexual offense using the short-form
indictments set forth in N.C.G.S. § 15-144.1 (1999) and N.C.G.S. §
15-144.2 (1999), respectively. Defendant asserts these indictments
were deficient in that they failed to allege the elements that
distinguished the crimes as first degree. Defendant acknowledges
that the North Carolina Supreme Court has upheld the use of such
short-form indictments in State v. Wallace, 351 N.C. 481, 505, 528
S.E.2d 326, 342, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498
(2000). This assignment of error is thus overruled.
In conclusion, we find no error in defendant's conviction of
charges in 97 CRS 25655 (count #1), 25656, 25657, 25660, 25663,
25664, 25665, 25666, and 25667; however, he is due a new trial in
97 CRS 25655 (count #2), 25658, 25661, and 25662. No error in part; new trial in part.
Judges MARTIN and HUNTER concur.
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