STATE OF NORTH CAROLINA
v
.
Johnston County
No. 02 CRS 56283
EUGENE DAVIS
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).
*** Converted from WordPerfect ***