An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-1037


Filed: 15 June 2004


v .                         Johnston County
                            No. 02 CRS 56283

    Appeal by defendant from judgment entered 15 January 2003 by Judge Thomas D. Haigwood in Johnston County Superior Court. Heard in the Court of Appeals 29 April 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.

    Irving Joyner for the defendant.

    LEVINSON, Judge.

    Defendant (Eugene Davis) appeals from convictions and judgments for first degree kidnapping, attempted first degree rape, and assault on a corrections officer. For the reasons that follow, we conclude that defendant received a fair trial, free of prejudicial error.
    Defendant was indicted for first degree kidnapping, attempted first degree rape, and assault on a correctional officer. Defendant pled not guilty, and these charges were called for trial during the 13 January 2003 criminal session of Johnston County Superior Court. The State presented the testimony of Karen Smith, which may be summarized as follows: In July 2002, Smith was working as a corrections officer for the North Carolina Department ofCorrections at the Johnston Correctional Institution. Specifically, she worked in the prison kitchen, and her duties involved supervising inmates who worked in the kitchen and ensuring that meals were prepared and served.
    Defendant was one of the inmates who worked with the victim in the prison kitchen. During the two months prior to July 2002, Smith noticed defendant looking at her in an unusual manner on a near-daily basis. On 12 July 2002 Smith was observing inmates working in the kitchen when she noticed defendant looking at her and masturbating. Smith reported the incident to her supervisor. As a result of this incident, defendant was no longer permitted to work in the kitchen.
    On the morning of 14 July 2002, Smith was working in the kitchen when she noticed that defendant seemed “agitated” and that he kept walking past the kitchen windows without making eye contact with her. Smith called her supervisor to report the behavior. After hanging up the phone, Smith went into the kitchen office to put up a knife. Immediately after Smith put the knife away, defendant entered through the door to the kitchen office, grabbed Smith's shirt, slammed her into a door, and said, “Why did you do this to me? Why did you do this to me?” After slamming Smith into the door, defendant turned and held the lock to the office door; Smith heard the door lock. Defendant then took a pair of scissors from his pocket and held them approximately one foot in front of Smith's chest. Smith asked defendant to stop and began screaming for help. Another corrections officer approached the office windowand used her radio to call for help. Defendant and Smith both saw the officer and heard her radio for help.
    After hearing the other corrections officer call for help, defendant opened the door to the kitchen office, grabbed Smith's shirt, and pulled her into the hallway. Defendant placed his arm across Smith's neck and shoulders and began “maneuvering” her down a hallway towards a stockroom. Smith resisted defendant's attempt to move her and began calling for some nearby inmates to help her. Defendant succeeded in forcing Smith into the entrance of a storeroom.
    At the threshold of the storeroom, defendant used his hand to hold the door open. Smith also grabbed the door. At this point, Smith's hand got caught in the scissors. A struggle ensued, which resulted in the breaking of the scissors. Defendant took a piece which had broken off of the scissors, held it against Smith's neck, and told her to “let the f---ing door go[.]” Smith released the storeroom door, and defendant swung her around into the storeroom and released her such that she fell into a metal rack before hitting the floor. Defendant then used one hand to hold the storeroom door closed, which prevented corrections personnel from entering the storeroom, and started grabbing at Smith's belt with the other hand. Smith testified that defendant was unable to get her belt undone because it was a “pretty sturdy belt[]”. As he was grabbing at the belt, defendant said, “Get them off. Get them off.” Smith testified that she was able to slide backwards out of defendant's reach. After Smith slid back, defendant put the partof the broken scissors that he was holding in his pocket, turned around, and released the lock to the storeroom door. Corrections officers immediately entered and subdued defendant. When the correction officers entered the room, Smith's shirt was missing the top two buttons, and her glasses, hairnet, and apron were gone.
    The State and defendant presented additional evidence. Defendant made motions to dismiss the charges against him at the close of the State's evidence and at the end of all of the evidence. The trial court denied these motions.
    The jury convicted defendant of attempted first degree rape, assault on a correctional officer, and first degree kidnapping. After the reading of each guilty verdict, the trial court asked the jury, “Is this your verdict, so say you all?” For all three counts, the jury unanimously responded in the affirmative. After each unanimous response, the trial court said, “All those who agree and ascend [sic], please raise your hand.” The record reflects that all twelve jurors raised their hands to affirm that they had voted to convict defendant of all three crimes.
    The trial court imposed sentences for the convictions of attempted first degree rape and assault on a correctional officer and arrested judgment on the first degree kidnapping. Defendant appeals from these convictions and judgments contending (1) the trial court erred in denying his motion to dismiss the attempted first degree rape charge based on insufficiency of the evidence, and (2) the trial court polled the jury in an impermissible manner. For the reasons that follow, we find no error.    We first address defendant's argument that the trial court erred in failing to dismiss the attempted first degree rape charge based on insufficiency of the evidence. We are unpersuaded by this contention.
    When ruling on a motion to dismiss, “the trial court must determine only 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) (citation omitted). “Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion.” State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (citation omitted), cert denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002). “In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence.” Id. (citation omitted). “The trial court must also resolve any contradictions in the evidence in the State's favor.” Id. (citation omitted). “The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.” Id. (citation omitted). “[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.” State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981) (citation omitted).    “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. Oxendine, 150 N.C. App. 670, 673, 564 S.E.2d 561, 564 (2002) (citation and internal quotation marks omitted), disc. review denied, 356 N.C. 689, 578 S.E.2d 325 (2003). “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, notwithstanding any resistance on her part.” State v. Schultz, 88 N.C. App. 197, 200, 362 S.E.2d 853, 855-56 (1987) (citation omitted), affirmed per curiam, 322 N.C. 467-68, 368 S.E.2d 386 (1988). “Intent to rape may be proved circumstantially by inference, based upon a defendant's actions, words, dress, or demeanor.” Oxendine, 150 N.C. App. at 674, 564 S.E.2d at 564 (citation and internal quotation marks omitted). “[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) (citation omitted). 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 (citation omitted). “The State need not show that the defendant made anactual physical attempt to have intercourse or that he retained the intent to rape his victim throughout the incident.” Id. at 625, 369 S.E.2d at 638 (citation omitted).
    This Court has held that a trial court should dismiss an attempted rape charge where there is no evidence that a defendant either forced himself upon a victim in a sexual manner or indicated that it was his intent to engage in forcible, nonconsensual intercourse with her. State v. Brayboy, 105 N.C. App. 370, 374, 413 S.E.2d 590, 593 (1992); see State v. Walker, 139 N.C. App. 512, 518, 533 S.E.2d 858, 861 (2000) (insufficient evidence of attempted rape where defendant attacked victim in women's bathroom, threw her to the floor, straddled her, attempted to cover her mouth, and directed her to roll onto her stomach); State v. Nicholson, 99 N.C. App. 143, 144-46, 392 S.E.2d 748, 750 (1990) (insufficient evidence of attempted rape where defendant entered the victim's residence with a gun, threatened to kill her, carried her towards the area of her home in which the bedrooms were located, and “slammed himself down on top of her” when she fell or was dropped to the floor, after which defendant immediately permitted the victim to leave); State v. Rushing, 61 N.C. App. 62, 66-67, 300 S.E.2d 445, 449 (insufficient evidence of attempted rape where shirtless defendant entered the sleeping victim's bedroom through a window at night, threatened to kill her if she screamed, and grabbed her arm), affirmed per curiam, 308 N.C. 804, 303 S.E.2d 822 (1983). However, this Court has recently held that a charge of attempted rape was appropriately submitted to the jury where a defendant entered thevictim's room while she was sleeping, pointed a knife at her, told her to undress, and ordered the victim, who had undressed and moved out of defendant's reach, to come toward him. State v. Owen, 159 N.C. App. 204, 205, 208, 582 S.E.2d 689, 690, 692 (2003).
    In the instant case, there was evidence that defendant had been looking at Smith while he was masturbating and that he had been staring at her strangely for several months before the attack. During the attack, defendant used a weapon, took Smith from an office with windows to a more private storeroom, grabbed at her belt, and twice told her to “Get them off.” After the attack, Smith's shirt was missing the top two buttons, and her apron was gone. This evidence, cast in the light most favorable to the State, was sufficient to permit a jury to infer that defendant intended to gratify his passion on Smith, notwithstanding any resistance on her part. Moreover, the jury could infer that defendant committed overt acts to further his intent by taking Smith into a secluded storeroom, reaching for her belt and telling her to “Get them off.” As such, the trial court did not err in denying defendant's motion to dismiss the attempted rape charge. This assignment of error is overruled.
    We next address defendant's argument that the trial court polled the jury in an impermissible manner. Defendant did not object to this alleged error at trial. Rather, defendant argues that we should find plain error in the manner in which the trial court polled the jury. However, “plain error review is appropriate only when the issue involves either errors in the trial judge'sinstructions to the jury or rulings on the admissibility of evidence.” State v. Walters, 357 N.C. 68, 110, 588 S.E.2d 344, 369 (citation and internal quotation marks omitted), cert. denied, __ U.S. __, 157 L. Ed. 2d 320 (2003). Nevertheless, we choose to review this assignment of error pursuant to our discretion under Rule 2 of the North Carolina Rules of Appellate Procedure and conclude that it lacks merit.
    Polling of individual jurors is governed by N.C.G.S. § 15A- 1238, which provides:
        Upon the motion of any party made after a verdict has been returned and before the jury has dispersed, the jury must be polled. The judge may also upon his own motion require the polling of the jury. The poll may be conducted by the judge or by the clerk by asking each juror individually whether the verdict announced is his verdict. If upon the poll there is not unanimous concurrence, the jury must be directed to retire for further deliberations.

Our Supreme Court has held that a trial court did not conduct a jury poll where it requested that all twelve jurors collectively raise their hands if they assented to the verdict rendered in open court. State v. Flowers, 347 N.C. 1, 21-22, 489 S.E.2d 391, 403 (1997). The defendant in Flowers made no request for an individual polling of the jurors, but argued on appeal that the trial court, acting on its own initiative, undertook to poll the jury and did so improperly. Id. In rejecting this argument, the Supreme Court stated the following:
        There is nothing in the record suggesting that the trial court undertook on its own motion to poll the jurors individually. The trial court's questions were directed to the jury asa group and not individually. The procedure followed by the trial court merely served to insure that before the verdicts were accepted, the record reflected the fact that the written verdicts were returned in open court and were unanimous as required by N.C.G.S. § 15A-1237(b). Accordingly, we find no undertaking by the trial court to poll the jurors individually on its own motion. Since the defendant made no request that the jury be polled as required by N.C.G.S. § 15A-1238, he has waived his right to such individual polling.

Id. (citation omitted).
    The instant case is governed by Flowers. Defendant made no request that the jurors be polled individually, and the trial court merely followed a procedure designed to ensure that the verdicts returned in open court were in fact unanimous by asking the jurors to raise their hands collectively if they assented to each guilty verdict. This assignment of error is overruled.
    No error.
    Judges McCULLOUGH and HUDSON concur.
    Report per Rule 30(e).

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