STATE OF NORTH CAROLINA
v. Onslow County
No. 00 CRS 54895
JOHN WILLIAM WESLEY AARON
Attorney General Roy Cooper, by Special Deputy Attorney
General Kathryn Jones Cooper, for the State.
Ellis, Hooper, Warlick & Morgan, L.L.P., by Deke S. Owens, for
defendant-appellant.
WYNN, Judge.
Defendant was found guilty of second degree rape and was
sentenced to a minimum term of 107 months and a maximum term of 138
months.
The State presented evidence tending to show that on 16 May
2000, defendant saw the prosecuting witness, with whom he had
formerly shared a residence with two other people, walking down the
road with a friend. Defendant asked the prosecuting witness to go
for a ride with him. Defendant assured the prosecuting witness
that he would return her to the Trade Mart convenience store where
her friend would be waiting. The prosecuting witness agreed to go
for a ride with defendant. The prosecuting witness thought
defendant would drive just “around the circle”; however, defendantdrove to a place that was unfamiliar to the prosecuting witness.
Defendant parked the vehicle and asked the prosecuting witness to
have sex with him. She refused. Defendant pushed her down in the
seat, removed her underwear and shorts, held her down with one
hand, and forced her to have sexual intercourse. After completing
intercourse, he brought her back to the Trade Mart convenience
store.
Later that evening her stomach began to hurt. She and her
friend went to the hospital, where a rape kit was administered to
her. At the hospital the prosecuting witness spoke to Detective
Steven Jeffrey Geisinger. She told him that defendant made sexual
advances towards her and that she told defendant she was not
interested in having sex with him. She asked defendant to take her
back to the Trade Mart but defendant did not, instead taking her to
the park. Defendant continued to make sexual advances towards her
and she continued to state that she was not interested. Defendant
pushed her over to the side, removed her clothing and his clothing,
held her down on her side, and had vaginal intercourse with her.
The emergency room nurse who collected the evidence for the
rape kit testified that no evidence of scratches, marks or trauma
was found. However, semen was found in her crotch.
Defendant initially denied knowing the prosecuting witness.
Subsequently, he stated and testified at trial that he and the
prosecuting witness engaged in consensual vaginal intercourse.
The sole issue on appeal is whether the trial court erred by
denying defendant's motion to dismiss at the close of all theevidence.
Upon a motion to dismiss, a trial court must determine
whether there is substantial evidence (1) of each essential element
of the charged offense and (2) of perpetration of the offense by
the defendant. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114,
117 (1980). The court must view the evidence in the light most
favorable to the State, giving it the benefit of every reasonable
inference that may be drawn from the evidence. State v. Benson,
331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). The defendant's
evidence is to be disregarded except to the extent it explains,
clarifies or is consistent with the State's evidence. State v.
Furr, 292 N.C. 711, 715, 235 S.E.2d 193, 196, cert. denied, 434
U.S. 924, 54 L. Ed. 2d 281 (1977). In evaluating the evidence, the
court is to determine only whether the evidence is sufficient to
allow the jury to draw a reasonable inference of the defendant's
guilt of the crime charged. State v. Earnhardt, 307 N.C. 62, 67,
296 S.E.2d 649, 652 (1982).
To convict a defendant of second degree rape in violation of
N.C. Gen. Stat. § 14-27.3, it must be shown that the defendant
“engaged in vaginal intercourse with another person by force and
against the will of the other person.” State v. Scott, 323 N.C.
350, 353, 372 S.E.2d 572, 575 (1988); see also N.C.G.S. § 14-27(3)
(2002). Defendant contends the evidence in the present case is
insufficient to prove the element of “by force.” We disagree.
The force necessary to establish second degree rape may be in
the forms of actual physical force or constructive force. State v.Brown, 332 N.C. 262, 420 S.E.2d 147 (1992). Actual physical force
consists of the application of force to the body. Scott, 323 N.C.
at 354, 372 S.E.2d at 575. Constructive force consists of
obtaining submission by threats, fear, fright or other actions.
State v. Etheridge, 319 N.C. 34, 45, 352 S.E.2d 673, 680 (1987).
Here, the evidence viewed in the light most favorable to the
State shows that defendant transported the victim, captive in his
vehicle, to a strange and unfamiliar place. After the victim
spurned his repeated sexual advances, he pushed her down, removed
her clothing, and while holding her down, engaged in sexual
intercourse with her. She attempted to resist by pushing defendant
away. She was eight and one-half months pregnant at the time and
she was afraid to fight defendant because of fear of harming her
unborn baby.
We conclude the foregoing evidence is sufficient to establish
both physical and constructive force. We hold the trial court
properly denied the motion to dismiss.
No error.
Judges McGEE and CAMPBELL concur.
Report per Rule 30(e).
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