NO. COA02-636
Appeal by defendant from judgment dated 13 March 2002 by Judge
James M. Webb in Forsyth County Superior Court. Heard in the Court
of Appeals 30 December 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen M. Waylett, for the State.
Carlton, Rhodes & Carlton, by Gary C. Rhodes, for defendant
appellant.
GREENE, Judge.
Joe Robert Reynolds (Defendant) appeals from a judgment dated
13 March 2002 entered consistent with a jury verdict finding him
guilty of second-degree rape.
Before trial, the trial court noted the indictment lacked any
indication by the foreman of the grand jury as to whether the
listed witnesses had testified or had been sworn in by the grand
jury. Following this acknowledgment, Defendant moved to quash the
indictment but did not present evidence to show any irregularity in
the grand jury proceedings in this case. The motion was denied,
and the case went to trial.
The State's evidence at trial tends to show through testimonyof Allison Burden (Victim) that on the morning of 7 May 2000,
Defendant entered Victim's car through the passenger's side door
while she waited at a stoplight to turn onto Martin Luther King
Drive in Winston-Salem. Defendant told Victim he was not going to
hurt her but needed a ride home. Seeing no one around to whom she
could yell for help, Victim drove with Defendant on to Martin
Luther King Drive when the light turned green. Defendant was
“talkative” and offered Victim money for gas. He directed Victim
to turn left on to Waughtown Street and offered to allow her to
stop for gas at the intersection. Wanting Defendant out of her car
as soon as possible, Victim declined. Victim drove down Waughtown
Street until Defendant directed her onto Salem Lake Road. Although
Victim was unfamiliar with the area she did as she was told. When
Victim saw “a dirt road and nothing in front of [her],” Victim
began to slow the car. As the vehicle came to a stop, Defendant
announced, “[Y]ou're about to get raped.” He “shoved the car into
park,” removed the keys from the ignition, and put them on the
dashboard. Victim thought she “was going to die.”
Defendant attempted to grab Victim, but she repeatedly pushed
him away from her and “tried everything [she] had heard to try,”
including telling Defendant she had a sexually transmitted disease.
After resisting for “[m]aybe a minute,” Victim began to cry,
begging Defendant “not to do it.” Defendant became visibly
“aggravated.” Unable to exit the vehicle and afraid of making
Defendant more angry, Victim cooperated with Defendant. At his
direction, she removed her shorts and underwear and tilted thesteering wheel away from her. Defendant then climbed on top of
Victim and had vaginal intercourse with her for approximately three
minutes. After losing his erection, Defendant returned to the
passenger's seat and allowed Victim to put on her clothes. Victim
started the car, assuring Defendant she would not tell the police
what had happened. As she drove, Victim asked Defendant a series
of questions hoping to obtain information about him. Defendant
told Victim to drop him off at the stop sign before the
intersection of Waughtown Street and Martin Luther King Drive.
Once Defendant exited the car, Victim went directly to the office
of the Winston-Salem State campus police to report the incident.
Victim gave a statement to Winston-Salem Police Officer Scott
Doss consistent with her trial testimony. She was taken to Forsyth
Medical Center for an examination which revealed generalized
redness and “fresh” abrasions in Victim's vaginal opening in a
location consistent with her account of the sexual assault.
Winston-Salem Police Officer Richard L. Taylor (Officer
Taylor) testified he interviewed Defendant on 27 June 2000. When
asked about his activities on 7 May 2000, Defendant initially
denied getting into a vehicle on Martin Luther King Drive.
Defendant subsequently claimed to have accepted a ride from a
female who was using the telephone at a BP gas station at the
intersection of “First and Martin Luther King.” Defendant further
stated he smoked crack cocaine while he and the female were
driving. The female told Defendant she needed money for gas and
agreed to have sex with him for twenty dollars. According toDefendant, he had consensual sex with the female near Salem Gardens
apartments, after which he threw his condom out of the window. In
giving his tape-recorded statement to Officer Taylor, Defendant
changed one detail of his account, admitting that he approached the
female's car at the traffic light at First and Martin Luther King.
Officer Taylor testified the police did not find a condom in the
area identified by Defendant.
Defendant offered no evidence at trial. His counsel's cross-
examination of the State's witnesses pursued the theory Victim had
engaged in consensual sex with Defendant for money. Defendant's
motion to dismiss at the conclusion of the evidence was denied by
the trial court. The jury found Defendant guilty of second-degree
rape but acquitted him of second-degree kidnapping.
_______________________________
The issues are whether: (I) the failure of the grand jury
foreman to note which witnesses had been sworn in or testified
before the grand jury, by itself, renders the indictment fatally
defective; (II) there was substantial evidence Defendant committed
the crime of second-degree rape; and (III) the acquittal of
Defendant on the charge of second-degree kidnapping was
inconsistent with a conviction of second-degree rape.
I
Defendant first claims the indictment under which he was tried
was fatally defective because the grand jury foreman failed to mark
on the form whether the listed witnesses were sworn by the foreman
or testified before the grand jury. It is well established,however, “the mere absence of such an endorsement is not sufficient
to overcome the presumption of validity of the indictment arising
from its return by the grand jury as 'a true bill.'”
State v.
Tudor, 14 N.C. App. 526, 528, 188 S.E.2d 583, 585 (1972); N.C.G.S.
§ 15A-623(c) (2001) (“[f]ailure to comply with this provision does
not vitiate a bill of indictment or presentment”). While Defendant
points to statements made by the trial court reflecting its
awareness of similar errors made by the grand jury in other cases,
there is no evidence in the record rebutting the presumption of
validity accorded the “true bill” returned in this case.
See State
v. Mitchell, 260 N.C. 235, 238, 132 S.E.2d 481, 482 (1963).
II
Defendant next asserts the trial court erred in denying his
motion to dismiss. A motion to dismiss should be denied if there
is substantial evidence to support each essential element of the
offense presented at trial.
State v. Roseborough, 344 N.C. 121,
126, 472 S.E.2d 763, 766 (1996). “Substantial evidence is evidence
from which any rational trier of fact could find the fact to be
proved beyond a reasonable doubt.”
State v. Sumpter, 318 N.C. 102,
108, 347 S.E.2d 396, 399 (1986). The State is entitled to all
reasonable inferences supported by the evidence,
see State v.
Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463 (1995)
, and its
witnesses are deemed credible.
See State v. Locklear, 322 N.C.
349, 358, 368 S.E.2d 377, 383 (1988). “The crime of second[-
]degree rape consists of engaging in vaginal intercourse, by force
and against the will of the other person.”
State v. Martin, 126N.C. App. 426, 428, 485 S.E.2d 352, 354 (1997). Force “may be
established either by actual, physical force or by constructive
force in the form of fear, fright, or coercion.”
State v.
Etheridge, 319 N.C. 34, 45, 352 S.E.2d 673, 680 (1987). Threats
that compel the victim's submission to non-consensual sex may
constitute constructive force.
Id. Such “[t]hreats need not be
explicit so long as the totality of circumstances allows a
reasonable inference that such compulsion was the unspoken purpose
of the threat.”
Id. (citing
State v. Barnette, 304 N.C. 447, 284
S.E.2d 298 (1981)). A showing the victim submitted to unwanted
sexual intercourse is insufficient to establish the crime of rape
“absent evidence that the defendant used force or threats to
overcome the will of the victim to resist the sexual intercourse.”
State v. Alston, 310 N.C. 399, 409, 312 S.E.2d 470, 476 (1984).
In this case, Victim's testimony, as corroborated by other
witnesses, was sufficient to withstand a motion to dismiss the rape
charge.
See generally State v. Grimes, 96 N.C. App. 489, 493, 386
S.E.2d 214, 217 (1989) (evidence of sexual intercourse and evidence
of force and against victim's will sufficient to withstand motion
to dismiss).
Victim testified Defendant led her to an isolated
area under the pretext of needing a ride home. Once in this
secluded location, Defendant removed the keys from the vehicle's
ignition and told Victim that she was “about to get raped.”
Defendant tried to grab Victim, and she tried to keep Defendant off
of her by using her hands. When these efforts proved unavailing,
she began to cry and beg. Defendant became visibly “aggravated[,]”causing Victim to fear angering him further. Defendant then had
vaginal intercourse with Victim against her will. By placing
Victim in an area where help was unavailable, announcing he was
going to “rape” her, and attempting to grab her while she pushed
him off Defendant applied sufficient actual and constructive force
to satisfy this element of second-degree rape. Even in its lay
sense, the term “rape” denotes an act of non-consensual sexual
intercourse accomplished by force.
See, e.g., The American
Heritage Dictionary 1132 (3d ed. 1993). Defendant's stated
intention to rape Victim could thus reasonably be construed as an
explicit threat of force designed to compel her submission. The
State has thus presented substantial evidence Defendant committed
the offense of second-degree rape, sufficient to overcome
Defendant's motion to dismiss.
III
In his remaining assignment of error, Defendant argues the
trial court should have set aside the guilty verdict for second-
degree rape in light of the jury's finding he did not kidnap
Victim. We find no merit to this argument. A jury's verdicts need
not be consistent.
See State v. Black, 14 N.C. App. 373, 378, 188
S.E.2d 634, 637 (1972). Moreover, there is no inconsistency
between the verdicts reached here. The jury could have reasonably
concluded Victim consented to give Defendant a ride but did not
consent to have sex with him.
Accordingly, Defendant's conviction of second-degree rape is
upheld. No error.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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