Appeal by defendant from judgment entered 18 April 2002 by
Judge W. Osmond Smith in Wake County Superior Court. Heard in the
Court of Appeals 17 March 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Benjamin Dowling-Sendor, for defendant appellant.
McCULLOUGH, Judge.
Defendant was tried before a jury at the 16 April 2002
Criminal Session of Wake County Superior Court on the charge of
first degree rape. The State's evidence tended to show the
following: On 3 July 2001, Nicole Bouleris was dropped off by a
friend at the Char-Grill Restaurant on Hillsborough Street in
Raleigh, North Carolina. It was after 5:30 p.m., and she was
planning on walking to a friend's house on Dorothea Drive to drink
alcohol. On her way there, Nicole decided to follow a path thatwent through a wooded area. She did so around 6:00 p.m. while it
was still light outside.
Nicole was then approached by defendant, who asked her
something like, “Hey baby, what are you doing?” Nicole smiled at
defendant and said hello. Defendant asked Nicole if she wanted to
hang out with him, to which Nicole replied in the negative and
stated that she was going to her friend's house. Defendant then
stepped in front of Nicole, about an arm's length away. Defendant
again asked Nicole if she wanted to come hang out with him. Nicole
again replied in the negative and stated she was going to her
friend's house. Defendant then punched her in the nose, grabbed
her around the neck, and said, “Shut the f*ck up,” and dragged her
into an area of bushes behind an abandoned building.
Behind the building, defendant grabbed her around the neck,
threw her to the ground on something like a rug, and straddled her.
He then slammed her head against the ground, punched her a few
times, and choked her. He said repeatedly, “Shut the f*ck up,
bitch. Shut the f*ck up.” Defendant then took off Nicole's pants,
leaving her shirt on, and when doing so found and removed a knife
that Nicole had kept in a sheath clipped to her pants. Defendant
held the knife to Nicole's neck and kept repeating, “Shut the f*ck
up.” He then said that if she did not keep quiet he would kill
her, and “Do you think you are the first bitch I've killed?” He
then cut her slightly on the neck.
A struggle ensued and Nicole knocked the knife out of
defendant's hand. Defendant got mad and slammed Nicole's head
against the ground, choking and punching her. Defendant, having lost the knife, undid his pants. He than
proceeded to have vaginal intercourse with Nicole, stating, “I'm
going to f*ck that pussy and then I am going to kill you.” When
she continued to try to push him off with her legs, he hit her.
She successfully pushed defendant off once, to which he came back
at Nicole with both hands and began choking her. She never lost
consciousness.
A nearby resident, Ms. Vanessa Crockett, witnessed two
partially dressed adults in broad daylight amidst a sexual act.
Ms. Crocket did not believe the female was struggling. Though she
heard “don't hit me,” she thought it might be something kinky and
did not call the police until she conferred with a friend.
Officer S.R. Davis of the Raleigh Police Department was the
first to arrive at the scene. As he approached, Officer Davis saw
defendant having intercourse with a female. The female did not
appear to be struggling, but the officer challenged defendant with
his sidearm. Nicole heard somebody yell, scaring defendant.
Defendant immediately jumped off Nicole, and she saw a police
officer standing in the woods. Officer Davis noticed defendant was
totally naked and that Nicole had on only a shirt. In a matter of
seconds, defendant had his pants on, which were either still around
his ankles when the officer first approached or very close to him.
Before fleeing the scene, Nicole hit defendant in the face as
hard as she could. She fled to a nearby store that she frequented.
The owner of the store, a testifying witness for the State, noticed
that Nicole was cut on the neck. Nicole next went to a friend's
house, where she called her friend and housemate Ellie London tocome get her. Ellie testified that when she picked Nicole up, she
noticed blood on Nicole's neck and shirt. Ellie also noticed cuts,
bruises, and scrapes on Nicole. Nicole did not want to go to the
hospital, so Ellie took her home. They first stopped at the scene
of the alleged rape, where Nicole sought to retrieve her shoes,
knife, and her day planner. The day planner was not there.
Nicole contacted a rape counselor about three days after the
incident. The counselor suggested Nicole go to the hospital and
report the crime to the police. Nicole wrote a letter and e-mailed
the Raleigh Police Department telling them what happened on 3 July
2001. Nicole herself was wanted for setting fire to a building,
which she had done to escape involuntary commitment at Dorothea Dix
Mental Hospital in Raleigh. Nicole decided to talk to the police in
person on 26 July 2001. Nicole spoke consistently about the
incident to the police and this was testified to by two members of
the department. She confessed to the arson charges and was
arrested after making a statement.
Defendant was found guilty of first degree rape and sentenced
to a term from the presumptive range of a minimum of 480 months and
a corresponding maximum of 585 months. He appealed. For the
reasons stated below, we conclude defendant received a trial free
from prejudicial error.
At the outset, we note that while defendant sets forth five
assignments of error in the record on appeal, those assignments not
addressed in his brief are deemed abandoned, pursuant to Rule
28(b)(5) of the North Carolina Rules of Appellate Procedure. The single issue properly preserved for our review in this
case is whether the trial court committed prejudicial error by
denying defendant's request that the jury be given the option of
the lesser, alternative instruction of assault on a female. The
jury was given only guilty of first degree rape and not guilty.
Defendant argues that N.C. Gen. Stat. § 15-144.1 (2003), the short
form indictment statute for rape, expressly authorizes the lesser
alternative charge of assault on a female, and that the facts of
this case support such an instruction. We do not find the short
form indictment for rape applicable in this case.
Pursuant to N.C. Gen. Stat. § 14-27.2(a)(2) (2003), “In order
to prove first degree rape, it is sufficient that the State
demonstrate that the defendant engaged in vaginal intercourse with
another person by force and against the will of the other person
and either (1) employed or displayed a dangerous weapon, or (2)
inflicted serious personal injury upon the victim or another
person.”
State v. Worsley, 336 N.C. 268, 275, 443 S.E.2d 68, 71
(1994). An indictment under N.C. Gen. Stat. § 14-27.2(a)(2) will
support a verdict of rape; it will also support a verdict of any
lesser included offense of first degree rape, as an alternative
verdict, where the evidence on an essential element of the first
degree rape indictment is in conflict.
State v. Drumgold, 297 N.C.
267, 271, 254 S.E.2d 531, 533 (1979). In determining whether one
offense is a lesser included offense of another, we apply a
definitional test as opposed to a case-by-case factual test.
State
v. Weaver, 306 N.C. 629, 636-37, 295 S.E.2d 375, 378-79 (1982),
overruled on other grounds by State v. Collins, 334 N.C. 54, 431S.E.2d 188 (1993);
see also State v. Bagley, 321 N.C. 201, 362
S.E.2d 244 (1987),
cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912
(1988). “If the lesser crime has an essential element which is not
completely covered by the greater crime, it is not a lesser
included offense.”
Weaver, 306 N.C. at 635, 295 S.E.2d at 379.
Under North Carolina law, assault on a female does not meet
this definitional test because assault on a female contains
elements not present in the greater offense of rape: (1) the
element that the defendant be a male person; and (2) the element
that he be at least eighteen years old.
State v. Herring, 322 N.C.
733, 743, 370 S.E.2d 363, 370 (1988) (assault on a female not a
lesser included offense of first degree rape);
see also State v.
Wortham, 318 N.C. 669, 351 S.E.2d 294 (1987) (assault on a female
not lesser included offense of attempted second degree rape).
In his indictment, defendant was charged with violating N.C.
Gen. Stat. § 14-27.2. The indictment stated the following:
[T]he defendant named above unlawfully,
willfully, and feloniously did engage in
vaginal intercourse with Nicole [], by force
and against the victim's will. The defendant
used or displayed a dangerous or deadly
weapon, to wit: a knife, or the defendant
inflicted serious personal injury on Nicole []
by beating her on the head and face and
cutting her on the neck with the knife.
The indictment tracks the language of N.C. Gen. Stat. § 14-
27.2(a)(2)(a) & (b). Defendant argues that the language of his
indictment is sufficient to meet the short form rape indictment,
N.C. Gen. Stat. § 15-144.1. That statute states:
In indictments for rape it is not necessary to
allege every matter required to be proved on
the trial; but in the body of the indictment,
after naming the person accused, the date ofthe offense, the county in which the offense
of rape was allegedly committed, and the
averment "with force and arms," as is now
usual, it is sufficient in describing rape to
allege that the accused person unlawfully,
willfully, and feloniously did ravish and
carnally know the victim, naming her, by force
and against her will and concluding as is now
required by law.
Any bill of indictment
containing the averments and allegations
herein named shall be good and sufficient in
law as an indictment for rape in the first
degree and will support a verdict of guilty of
rape in the first degree, rape in the second
degree, attempted rape or assault on a female.
Id. (emphasis added). Defendant argues that his indictment in
substance states all of the required averments and allegations in
the short form rape statute, and therefore defendant should be
allowed an instruction on the alternative offense of assault on a
female.
Defendant cites
State v. Hatcher, 117 N.C. App. 78, 450 S.E.2d
19 (1994),
appeal dismissed, disc. review denied, 339 N.C. 618, 454
S.E.2d 261 (1995) as governing this issue. In
Hatcher, the
defendant was indicted on second degree rape. After a hung jury
and mistrial, he was then indicted for attempted second degree rape
and assault on a female.
Id. at 83-84, 454 S.E.2d at 23. The
trial court dismissed these indictments finding that double
jeopardy had attached to these charges when the State initially
chose to pursue a case on the single indictment of second degree
rape. We reversed, holding that double jeopardy only attaches to
charged crimes in specific instances, and that in the double
jeopardy context, there is no
de facto acquittal of a lesser and/or
alternative theory of criminal liability when the State choosesinitially to pursue a greater theory but gets a hung jury. The
Hatcher opinion stated:
We note that in the instant case, the
indictment for second degree rape would
support a verdict for attempted second degree
rape or assault on a female. Although
defendant was not indicted for attempted
second degree rape and assault on a female,
defendant could still have been convicted of
any of those charges under North Carolina
General Statutes § 15-144.1[.]
Id. at 82, 454 S.E.2d at 23. Defendant would have us read
Hatcher
for the proposition that when a defendant is indicted specifically
under N.C. Gen. Stat. § 14-27.3 (2003) for second degree rape, he
automatically is subject to the charges of N.C. Gen. Stat. § 15-
144.1, and the same would hold true for an indictment under first
degree rape. We do not agree.
We cannot discern from the
Hatcher opinion the language of the
initial second degree rape indictment. If the initial indictment in
Hatcher contained the “averments and allegations” as set out in
N.C. Gen. Stat. § 15-144.1, we agree defendant could be charged
with assault on a female even if the indictment cited N.C. Gen.
Stat. § 14-27.3, but used the language of N.C. Gen. Stat. § 15-
144.1. The language of N.C. Gen. Stat. § 15-144.1 states that
“[a]ny bill of indictment containing the averments and allegations
herein” is sufficient. But if the defendant was indicted under the
exact language of N.C. Gen. Stat. § 14-27.3, then
Hatcher is an
anomaly and not controlling.
See Wortham, 318 N.C. 669, 351 S.E.2d
294. Additionally, the Court's notation in
Hatcher is dicta and
not controlling.
In
Wortham, our Supreme Court determined: Assault on a female not being a lesser
included offense of attempted second degree
rape for which defendant was indicted and
defendant not having been otherwise charged
with such an assault, the trial court had no
jurisdiction to try, convict or sentence
defendant for that offense.
Id. at 673, 351 S.E.2d 297 (emphasis added).
Herring followed this
rationale in holding that assault on a female was not a lesser
included offense of first degree rape.
Herring, 322 N.C. at 743,
370 S.E.2d at 370. Neither of these opinions mention N.C. Gen.
Stat. § 15-144.1, though that statute was effective at the time of
these decisions. The instant case is consistent with
Herring and
Wortham. Where the language of the indictment alleges each element
of first degree rape, then the trial court has jurisdiction to
instruct the jury
only on first degree rape and its lesser included
theories. To hold otherwise would be to make an indictment under
N.C. Gen. Stat. § 14-27.2 superfluous, as it would always be the
equivalent to an indictment under N.C. Gen. Stat. § 15-144.1.
By using the express averment and allegations of N.C. Gen.
Stat. § 15-144.1, the State gives the defendant notice of the
potential theories of liability it may pursue based on the evidence
it has acquired at that point and also protects the defendant from
double jeopardy on any of that statute's listed offenses.
State v.
Sills, 311 N.C. 370, 375-76, 317 S.E.2d 379, 382 (1984). By using
the exact language of N.C. Gen. Stat. § 14-27.2 in its indictment
and citing it, the State gives defendant notice it will pursue the
theory of first degree rape and foreclose pursuing a charge of
assault on a female under that indictment. The court is without
jurisdiction to instruct on that theory though the evidence maysupport it. It is the State's choice as to how to scale the
benefits and risks of pursuing a greater degree of criminal
liability under the more specific indictment.
Therefore, we hold that where the indictment specifically
alleges all of the elements of first degree rape under N.C. Gen.
Stat. § 14-27.2(a)(2)(a) & (b) and does not contain the specific
averments or allegations of N.C. Gen. Stat. § 15-144.1, the court
has jurisdiction only to issue instructions on that offense, and
any lesser included offenses that meet the definitional test. The
short form rape indictment is not at issue.
Therefore, we find the trial court properly denied defendant
the jury instruction of assault on a female.
No error.
Judges BRYANT and ELMORE concur.
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