STATE OF NORTH CAROLINA
v
.
JIMMY RAY OXENDINE
Attorney General Roy Cooper, by Special Deputy Attorney
General J. Charles Waldrup, for the State.
Matthew F. Ginn for defendant appellant.
TIMMONS-GOODSON, Judge.
Jimmy Ray Oxendine (“defendant”) appeals from his convictions
of two counts of attempted first-degree rape and two counts of
second-degree kidnapping. For the reasons stated herein, we vacate
in part the judgment of the trial court.
The State presented evidence at trial tending to show the
following: On the afternoon of 9 June 2000, defendant appeared at
the rear door of the Concord, North Carolina, residence of Melinda
Arnett (“Arnett”), and requested a cup of sugar. Arnett, who was
home at the time with her two young children, knew defendant as the
boyfriend of her neighbor, and she had loaned defendant sugar on a
previous occasion. After Arnett gave defendant the sugar, he asked
her whether “[she] and [her] husband are church-goers.” When
Arnett replied affirmatively, defendant stated that he would “liketo talk to [her] about . . . something” and entered Arnett's house.
Arnett and defendant then sat down in the living room, whereupon
defendant proceeded to tell Arnett about problems he was having
with his girlfriend. Defendant stated that he also wanted to talk
to Arnett's husband, and asked her when she expected him home.
Arnett informed him that her husband would be coming home early
that day.
Upon concluding their conversation, defendant requested to use
Arnett's bathroom. When he returned to the living room, he
indicated that he was leaving and headed towards the rear door of
the residence. Before reaching the door, however, defendant turned
towards Arnett and pulled out a long butcher knife from the
waistband of his pants. Defendant pointed the knife at Arnett and
ordered her to walk to the bedroom with him. Arnett initially
complied with defendant's demand, but when she reached the door of
the bedroom, she told defendant that she “couldn't do that, that my
body belongs to Jesus Christ and to my husband only and I will not
violate my body for somebody else.” Arnett testified that she was
terrified, and that her voice was “shaky and I was panicking.” At
that point, Arnett's older child approached them and asked his
mother what was wrong. Defendant told Arnett to “[s]end him back
to the living room and have him watch T.V. and he'll never know
anything is going to happen because he won't see anything. We'll
lock the door and let them watch T.V. and he'll never see
anything.” Arnett again refused and offered to give defendant
money. Defendant replied that, “this is not about money; it'sabout sex, all I want is sex.” Arnett told defendant that her
son's therapist would be arriving at the house shortly and that
they would not “have time for anything anyway so . . . let's go to
the living room and talk.” Defendant then told Arnett to perform
an act of masturbation upon him, but finally agreed to return to
the living room.
Shortly thereafter, Michelle Ashby (“Ashby”), an occupational
therapist, arrived at the residence for her appointment with
Arnett's son. Defendant remained seated in a chair in the living
room with the knife concealed by his side while Ashby worked with
Arnett's child. When Arnett took her older son to the bathroom,
defendant whispered and gestured for Ashby to come closer to him.
When Ashby moved to within two feet of defendant, he asked her
whether she was married and then brandished his knife. Defendant
ordered Ashby to “go to the back bedroom and quietly take [her]
clothes [off] so that the kids wouldn't see what he was going to
do.” Ashby testified that she “started to shake” and “couldn't
breathe very well.” She began pleading with defendant not to hurt
her and asked him why he wanted to rape her. Defendant replied,
“Because I want to[.]” When Ashby told defendant that he could
probably find someone willing to have sexual intercourse with him,
he stated, “[N]o, I want to have sex with you[.]” Defendant stood
over Ashby with his knife pointed towards her and told her to “come
on,” pointing towards the bedroom.
Arnett returned from the bathroom with her son and saw
defendant standing over and reaching for Ashby with his knifedrawn. Both women then begged defendant not to hurt them, telling
him that if he left, they would not call the police. After
approximately thirty minutes, defendant agreed to leave.
The jury found defendant guilty of two counts of attempted
first-degree rape and two counts of second-degree kidnapping, for
which the trial court sentenced defendant to an active term of
imprisonment for 189 to 236 months. From his convictions and
resulting sentence, defendant appeals.
___________________________________________________
Defendant argues that the trial court erred in denying his
motion to dismiss the charges against him at the close of the
State's evidence. For the reasons stated herein, we vacate in part
the judgment of the trial court.
When a defendant moves to dismiss the charges against him, the
only issue for the trial court is "whether there is substantial
evidence of each essential element of the offense charged and of
the defendant being the perpetrator of the offense." State v.
Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. See State v. Vick, 341
N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). In reviewing a
motion to dismiss, the trial court should be concerned only with
the sufficiency of the evidence, and not with its weight. See
State v. Sokolowski, 351 N.C. 137, 143, 522 S.E.2d 65, 69 (1999).
The court must consider the evidence in the light most favorable to
the State and give the State the benefit of every reasonableinference from that evidence. See State v. Jaynes, 342 N.C. 249,
274, 464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135
L. Ed. 2d 1080 (1996). Contradictions and discrepancies in the
evidence are resolved in favor of the State. See State v. Gibson,
342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995). Review of the
sufficiency of the evidence to withstand the defendant's motion to
dismiss is the same whether the evidence is direct, circumstantial,
or both. See State v. Jones, 303 N.C. 500, 504, 279 S.E.2d 835,
838 (1981).
In the instant case, defendant was charged with attempted
first-degree rape and kidnapping in the first and second degrees.
To convict a defendant of attempted rape, the State must prove the
following two essential elements beyond a reasonable doubt: (1)
that the defendant had the specific intent to rape the victim, and
(2) “that [the] defendant committed an act that goes beyond mere
preparation, but falls short of the actual commission of the rape.”
State v. Schultz, 88 N.C. App. 197, 200, 362 S.E.2d 853, 855
(1987), affirmed per curiam, 322 N.C. 467, 368 S.E.2d 386 (1988).
“The element of intent as to the offense of attempted rape is
established if the evidence shows that [the] defendant, at any time
during the incident, had an intent to gratify his passion upon the
victim, notwithstanding any resistance on her part.” Id. at 200,
362 S.E.2d at 855-56; see also State v. Brayboy, 105 N.C. App.
370, 374, 413 S.E.2d 590, 593 (1992) (defining attempt in the
context of an attempted rape).
Defendant contends that there was insufficient evidence of hisintent to rape either Arnett or Ashby in that, once the victims
presented resistance, he ceased his sexual assault. Defendant
argues that, had he possessed the requisite intent to commit the
act, resistance by the victims would not have stopped him. We
disagree.
As stated supra, 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. See Schultz, 88 N.C. App. at 200, 362
S.E.2d at 855-56. Intent to rape may be “proved circumstantially
by inference, based upon a defendant's actions, words, dress, or
demeanor.” State v. Cooper, 138 N.C. App. 495, 498, 530 S.E.2d 73,
75, affirmed per curiam, 353 N.C. 260, 538 S.E.2d 912 (2000). An
“overt act manifesting a sexual purpose or motivation on the part
of the defendant is adequate evidence of an intent to commit rape.”
State v. Dunston, 90 N.C. App. 622, 625, 369 S.E.2d 636, 638
(1988). Evidence that an attack is sexually motivated “will
support a reasonable inference of an intent to engage in vaginal
intercourse with the victim even though other inferences are also
possible.” Id. at 625-26, 369 S.E.2d at 638.
Considering the evidence in the light most favorable to the
State, a reasonable jury could infer from defendant's actions with
Arnett and Ashby that he intended to rape them. Defendant showed
his intent towards Arnett by pulling out the butcher knife,
ordering her to walk to the bedroom at knifepoint, and telling her
he wanted to have sex with her. He also told Arnett to perform anact of masturbation upon him. These actions by defendant
demonstrate that his attack was sexually motivated and provide
sufficient evidence to support a reasonable inference that
defendant intended to rape Arnett. Defendant's actions towards
Ashby provide similar support for the attempted rape charge.
Defendant pointed the knife at Ashby and demanded that she go to
the bedroom and undress. He also told her that he intended to rape
her. The fact that defendant ended his assault before he actually
raped either Arnett or Ashby, or the reasons for the change in his
stated intent to rape the women, is irrelevant for purposes of
attempted rape. The fact that the women apparently managed to
dissuade defendant from his stated purpose does not alter
defendant's initial actions towards them. “The jury could have
reasonably inferred that, but for the victim's ingenuity and
courage, she would have been subjected to attempted forcible sexual
intercourse.” State v. Whitaker, 316 N.C. 515, 519, 342 S.E.2d
514, 517 (1986). We hold there was sufficient evidence to support
the jury's verdict, and the trial court therefore did nor err in
denying defendant's motion to dismiss the charges of attempted
rape.
Defendant further contends that there was insufficient
evidence of either second-degree or first-degree kidnapping. The
elements of first-degree kidnapping are: (1) confining,
restraining, or removing from one place to another; (2) any person
sixteen years or older; (3) without such person's consent; (4) if
such act was for the purposes of facilitating the commission of afelony. See N.C. Gen. Stat. § 14-39 (a)(2) (2001). The difference
between first and second-degree kidnapping is
[i]f the person kidnapped either was not
released by the defendant in a safe place or
had been seriously injured or sexually
assaulted, the offense is kidnapping in the
first degree and is punishable as a Class C
felony. If the person kidnapped was released
in a safe place by the defendant and had not
been seriously injured or sexually assaulted,
the offense is kidnapping in the second
degree.
N.C. Gen. Stat. § 14-39(b) (2001).
In State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978), our
Supreme Court stated that "certain felonies (e.g., forcible rape
and armed robbery) cannot be committed without some restraint of
the victim." Id. at 523, 243 S.E.2d at 351. "[R]estraint, which
is an inherent, inevitable feature of such other felony," cannot
also form the basis of a kidnapping conviction. Id. Nonetheless,
"two or more criminal offenses may grow out of the same course of
action," id., and there is no barrier to convicting a defendant for
kidnapping, "by restraining his victim, and also of another felony
to facilitate which such restraint was committed, provided the
restraint, which constitutes the kidnapping, is a separate,
complete act, independent of and apart from the other felony." Id.
at 524, 243 S.E.2d at 352. See also State v. Silhan, 297 N.C. 660,
673, 256 S.E.2d 702, 710 (1979) (noting that restraint of a rape
victim may constitute kidnapping if it is a separate and
independent act). Moreover, "[a]sportation of a rape victim is
sufficient to support a charge of kidnapping if the defendant could
have perpetrated the offense when he first threatened the victim,and instead, took the victim to a more secluded area to prevent
others from witnessing or hindering the rape." State v. Walker, 84
N.C. App. 540, 543, 353 S.E.2d 245, 247 (1987).
Defendant contends there was insufficient evidence to support
the charge of first or second-degree kidnapping. Defendant argues
that there was insufficient evidence of a sexual assault by
defendant to support the essential element that the “purpose of the
restraint was to facilitate a felony.” Defendant further argues
that, because he did not move Ashby in any manner, her restraint
was not a separate and complete act independent of the crime of
attempted rape. We agree in part with defendant's argument.
We have determined that there was adequate evidence to support
both counts of attempted rape against defendant. There was also
sufficient evidence to support the charge of first or second-degree
kidnapping as to defendant's actions regarding Arnett. Defendant's
act of forcing Arnett to the bedroom at knifepoint in order to
prevent her children from either witnessing or hindering the
intended rape constituted a separate act and properly supports the
charge of first or second-degree kidnapping. Moreover, we note
that the jury found defendant guilty of second-degree kidnapping,
rather than first-degree kidnapping. The trial court did not err
in submitting the first and second-degree kidnapping charges as to
Arnett to the jury.
We agree with defendant, however, that there was insufficient
evidence to support the kidnapping charges as to Ashby. As stated
supra, the restraint required for kidnapping must be an actindependent of the intended felony. See State v. Harris, 140 N.C.
App. 208, 213, 535 S.E.2d 614, 617, disc. review denied, 353 N.C.
271, 546 S.E.2d 122 (2000). “The test of the independence of the
act is 'whether there was substantial evidence that the defendant
restrained or confined the victim separate and apart from any
restraint necessary to accomplish the [felony].'” Id. at 213, 535
S.E.2d at 618 (quoting State v. Mebane, 106 N.C. App. 516, 532, 418
S.E.2d 245, 255, disc. review denied, 332 N.C. 670, 424 S.E.2d 414
(1992)). The restraint of the victim must be a complete act,
independent of the sexual offense. See State v. Ackerman, 144 N.C.
App. 452, 457, 551 S.E.2d 139, 142 (2001). The State presented
insufficient evidence in the instant case that defendant's
restraint of Ashby by knifepoint was for purposes other than his
stated intention to rape her. Although defendant instructed Ashby
to go to the back bedroom, Ashby remained on the floor and never
moved during her encounter with defendant. As there was
insufficient evidence to support the kidnapping charges as to
Ashby, we conclude that the trial court erred in submitting such to
the jury. We therefore vacate defendant's conviction of second-
degree kidnapping regarding Ashby and remand defendant's case to
the trial court for re-sentencing.
Vacated in part, no error in part.
Judges MARTIN and CAMPBELL concur.
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