Sexual Offenses--crime against nature--constitutionality of statute--cunnilingus--consent--
collateral estoppel
The crime against nature statute, N.C.G.S. § 14-177, is not unconstitutional on its face
because it may properly be used to criminalize sexual conduct involving minors, nonconsensual or
coercive conduct, public conduct, and prostitution. Although the statute could constitutionally be
applied in this case on the basis that an act of cunnilingus was nonconsensual because the victim
was physically helpless, it was unconstitutional as applied in that the trial court erroneously
refused to instruct the jury that defendant would be guilty of a crime against nature only if the act
of cunnilingus was performed without the victim's consent. However, the issue of the victim's
consent cannot be relitigated in a new trial, and defendant's conviction of crime against nature is
vacated, where defendant was acquitted of second-degree sexual offense based upon the same act
of cunnilingus; the trial court had instructed the jury that, in order to find defendant guilty of
second-degree sexual offense, it must find beyond a reasonable doubt that the victim was
physically helpless; and the jury by it verdict found that the evidence did not show beyond a
reasonable doubt that the act of cunnilingus was performed while the victim was physically
helpless and, therefore, without her consent.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Amy C. Kunstling, for the State.
David Childers for defendant-appellant.
HUNTER, Judge.
Gregory Paul Whiteley (“defendant”) appeals from a judgment
dated 17 July 2003 entered consistent with a jury verdict finding
him guilty of a crime against nature. Defendant contends the trial
court erred in denying his motion to dismiss and in submitting the
offense of a crime against nature to the jury, on the grounds that
the statute creating the offense, N.C. Gen. Stat. § 14-177 (2003),is unconstitutional. Although we do not find section 14-177
unconstitutional on its face, we find the statute unconstitutional
as applied to the facts of this case and, therefore, vacate
defendant's sentence as to this offense.
The evidence tends to show that on 24 May 2002, defendant
attended a party at which Tashah Stevens (“Stevens”) was also
present. Defendant was twenty-two and Stevens was eighteen years
old at that time.
Stevens testified she attended the party with her younger
sister (“Kimberly”), her friend Tomie Miller (“Miller”), and
others. Conflicting evidence was offered as to whether Stevens
ingested alcohol and took a type of drug known as “ladder bars”
while traveling to and after reaching the party. Stevens testified
she did not knowingly drink alcohol or take drugs at any point
during the night. Stevens also stated she believed she left her
drink unattended at the party, and that after retrieving the drink,
she did not remember the remainder of the evening.
Contradictory evidence as to Stevens' drug and alcohol use,
and as to her apparent cognizance, was offered by those who rode to
the party with Stevens and by guests at the party. Miller and
another occupant of the vehicle testified Stevens drank alcohol and
took ladder bars en route to the party. Multiple witnesses
testified that drugs and alcohol were present at the party.
Defendant stated he took drugs while at the party, including ladder
bars, Ecstasy, marijuana, and crack. Guests present at the partytestified they observed Stevens drinking alcohol and behaving in an
intoxicated manner.
Sometime in the early morning hours of 25 May 2002, Stevens
left the party with Kimberly, Kimberly's boyfriend (“Mark”), and
defendant, who was Mark's roommate. Stevens testified she had no
recollection of leaving the party or any of the events that
followed until the next morning. Kimberly stated Stevens was
unable to talk and appeared to be unconscious for part of the ride.
Defendant testified Stevens appeared to be “stumbling drunk” when
they left the party, but was not unconscious. Upon arriving at
defendant's apartment where a number of individuals were gathered,
Kimberly testified Stevens was carried inside and placed in
defendant's bedroom, because she was “passed out”. Defendant
testified that he and Stevens walked in together and then went to
his bedroom. Matt Stiednam (“Stiednam”), who had also come from
the party, testified he observed defendant and Stevens enter
defendant's bedroom together upon arrival, and that Stevens was
walking by herself.
Defendant explained that as he helped Stevens undress in his
room, that she began kissing him, and that he attempted to have
sexual intercourse with her. Defendant testified the contact was
consensual and that Stevens was an active participant. Defendant
also stated he did not give Stevens any drugs. Defendant testified
he was physically unable to engage in intercourse, and instead
performed cunnilingus upon Stevens and inserted his fingers into
her vagina. Defendant stated that following the intimate contact,Stevens asked for a telephone to make a call. After retrieving a
phone for her, he left the room. Stiednam testified defendant left
the apartment to take another girl home and did not return until
the following morning.
Stevens testified that when she awoke on the morning of 25 May
2003, she was naked, alone in defendant's bedroom, and had a sharp
pain in her swollen vaginal area. Stevens also reported trouble
focusing her vision when she first awoke. Stevens testified she
had no memory of how she got to defendant's apartment, of
consenting to sexual activity, or of any events that occurred
following the party.
Stevens called a friend to pick her up and took a shower after
arriving home. She then went to a hair appointment and to a
restaurant where a friend, Shannon Miller (“Shannon”), worked.
Shannon testified Stevens was upset and told her she had been
raped. Shannon convinced Stevens to go to the emergency room.
Shannon testified Stevens asked her to tell the nurses, if asked,
that Stevens had not been drinking the previous night or that
someone had slipped something into her drink.
Stevens was examined by Dr. Elizabeth Bradley (“Dr. Bradley”),
who testified at trial that her examination revealed bruises around
Stevens's pelvic area and a swollen, red, and bleeding vagina. Dr.
Bradley explained a physical examination was not completed due to
the abrasions and soreness, but that something had been forcibly
inserted into Stevens's vagina, possibly repeatedly. She further
stated the vaginal injuries sustained by Stevens could not havebeen caused by the sexual activity described by defendant, but that
the perpetrator's identity could not be determined from the
examination.
A toxicology screen was performed on Stevens. The test
showed no presence of alcohol, but did reveal the presence of the
drug benzodiazepine. Benzodiazepine is a prescription drug also
known by the street name of ladder bars. Dr. Bradley testified
that when ingested, benzodiazepine can take effect in fifteen to
thirty minutes, can result in a person appearing intoxicated, and
can cause memory loss, confusion, and loss of consciousness. Dr.
Bradley stated Stevens' description of her memory loss was
consistent with having ingested ladder bars.
Defendant was charged with first degree rape, first degree
sexual offense, and a crime against nature. At trial, defendant
moved to dismiss all charges, asserting that Stevens consented to
the sexual activity, and contending that the United States Supreme
Court's decision in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d
508 (2003), rendered the North Carolina crime against nature
statute unconstitutional. The trial court reduced the first two
charges to second degree rape and second degree sexual offense, but
due to the conflicting evidence of the consensual nature of the
sexual activity, the trial court denied the motion to dismiss the
crime against nature charge. The jury subsequently returned
verdicts of not guilty on the charges of second degree rape and
second degree sexual offense, and guilty as to the charge of a
crime against nature. Defendant received a suspended sentence ofsix to eight months after sixty days in custody, and thirty-six
months intensive supervised probation. Defendant appeals.
Defendant contends, in his interrelated assignments of error,
that the trial court committed reversible error in both denying
defendant's motion to dismiss the charge of crime against nature
and in instructing the jury on the offense of a crime against
nature. Defendant argues that N.C. Gen. Stat. § 14-177 is
unconstitutional in light of the United States Supreme Court's
recent decision in Lawrence v. Texas. Although we find N.C. Gen.
Stat. § 14-177 constitutional on its face, we agree that the
statute is unconstitutional as applied in this case in that the
trial court erred in its jury instructions.
N.C. Gen. Stat. § 14-177 states: “If any person shall commit
the crime against nature, with mankind or beast, he shall be
punished as a Class I felon.” Id. Specific acts which constitute
a crime against nature have been defined by case law to include the
offense with which defendant was charged in this case, cunnilingus.
See State v. Joyner, 295 N.C. 55, 66, 243 S.E.2d 367, 374 (1978).
Prior to Lawrence, our courts have upheld the
constitutionality of section 14-177, finding it neither vague nor
overbroad. See State v. Singleton, 85 N.C. App. 123, 130, 354
S.E.2d 259, 264 (1987); see also State v. Adams, 299 N.C. 699, 264
S.E.2d 46 (1980); State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843
(1979). In light of the United States Supreme Court's
pronouncements in Lawrence, however, we must now reconsider the
constitutionality of this law. See State v. Gray, 268 N.C. 69, 79,150 S.E.2d 1, 9 (1966) (holding that our courts are bound by the
United States Supreme Court's interpretation of the Federal
Constitution). Accordingly, we begin with an examination of the
United States Supreme Court's holding.
In Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, the
United States Supreme Court held that a Texas law prohibiting
“deviate sexual intercourse” with a member of the same sex violated
the due process clause, where the individuals charged were adults
engaging in consensual, private sexual activity. Id. at 578, 156
L. Ed. 2d at 525. The Supreme Court based its holding on the right
to privacy in intimate relationships first recognized in Griswold
v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510 (1965) (invalidating
application to married couples of a state law prohibiting the use
of contraception and counseling in the use of contraception), and
extended to non-marital relationships in Eisenstadt v. Baird, 405
U.S. 438, 31 L. Ed. 2d 349 (1972) (invalidating a law prohibiting
distribution of contraceptives to unmarried persons as an
impairment of personal rights). Although the Texas statute at
issue in Lawrence prohibited only same-sex sexual conduct, the
majority holding explicitly stated that its decision to invalidate
the Texas statute was not based on equal protection grounds, but
was instead based on the unconstitutional infringement of the
liberty interest in private, intimate acts between consenting
adults. Id. at 574-75, 156 L. Ed. 2d at 523. The Court
specifically overruled its prior ruling in Bowers v. Hardwick, 478
U.S. 186, 92 L. Ed. 2d 140 (1986), which had upheld theconstitutionality of the state of Georgia's sodomy statute
prohibiting both heterosexual and homosexual conduct. The Court
found that the analysis in Justice Stevens' dissent in Bowers,
which focused on the “liberty” inherent in individual decisions in
the intimacies of physical relationships, should have been
controlling in both that case, and in Lawrence. Lawrence, 538 U.S.
at 577-78, 156 L. Ed. 2d at 525.
The Supreme Court, however, did not hold that this Fourteenth
Amendment liberty interest in personal relations was without
limits. The Court stated that laws which do no more that prohibit
a particular sexual act “have more far-reaching consequences,
touching upon the most private human conduct, sexual behavior, and
in the most private of places, the home[,]” and thus “seek to
control a personal relationship that, whether or not entitled to
formal recognition in the law, is within the liberty of persons to
choose without being punished as criminals.” Id. at 567, 156 L.
Ed. 2d at 518. Concerns about these far-reaching consequences,
therefore, “counsel against attempts by the State, or a court, to
define the meaning of the relationship or to set its boundaries
absent injury to a person or abuse of an institution the law
protects.” Id. The Supreme Court provided guidance as to those
boundaries, however, suggesting four areas where legitimate state
interests justified intrusion into the personal and private life of
an individual. Id. at 578, 156 L. Ed. 2d at 525-26. Lawrence
stated: “The present case does not involve minors. It does not
involve persons who might be injured or coerced or who are situatedin relationships where consent might not easily be refused. It
does not involve public conduct or prostitution.” Id. at 578, 156
L. Ed. 2d at 525. The inclusion of this language by the United
States Supreme Court clearly indicates that state regulation of
sexual conduct involving minors, non-consensual or coercive
conduct, public conduct, and prostitution falls outside the
boundaries of the liberty interest protecting personal relations
and is therefore constitutionally permissible. We conclude that
our state's regulation of sexual conduct falling outside the narrow
liberty interest recognized in Lawrence remains constitutional.
Our courts have already recognized the limits of the narrow
liberty interest articulated in Lawrence v. Texas, and have upheld
laws regulating sexual conduct outside those boundaries. See State
v. Pope, 168 N.C. App. 592, 594, 608 S.E.2d 114, 116 (2005)
(holding the state may properly criminalize solicitation of a crime
against nature); State v. Oakley, 167 N.C. App. 318, 322, 605
S.E.2d 215, 218 (2004) (holding Lawrence does not invalidate
charges of criminally prohibited sexual activity with minors);
State v. Clark, 161 N.C. App. 316, 321, 588 S.E.2d 66, 68-69
(2003), disc. review denied, 358 N.C. 157, 593 S.E.2d 81 (2004)
(finding Lawrence does not control in statutory rape charge due to
the express exceptions relating to minors).
We further note that many of our sister courts have likewise
interpreted Lawrence to apply to the limited liberty interest of
personal relations, and have upheld statutes criminalizing acts
outside that boundary. See State v. Thomas, 891 So.2d 1233, 1238(La. 2005), (declining to use Lawrence to strike down a Louisiana
law criminalizing solicitation of a crime against nature); People
v. Williams, 811 N.E.2d 1197, 1199 (Ill. App. 2004) (noting
Lawrence specifically excludes prostitution from its holding); see
also Anderson v. Morrow, 371 F.3d 1027, 1033 (9th Cir. 2004)
(holding Lawrence's recognition of right of individuals to engage
in fully and mutually consensual private sexual conduct does not
affect a state's legitimate interest to interpose when consent is
in doubt).
Having considered the United States Supreme Court's holding in
Lawrence, we now turn to defendant's challenge of N.C. Gen. Stat.
§ 14-177. Defendant contends section 14-177 is unconstitutional on
its face as it prohibits specific sexual conduct, and thus attempts
to regulate personal relations protected by the Fourteenth
Amendment liberty interest. We disagree.
Our Court has a duty to examine a statute and determine its
constitutionality when the issue is properly presented, rather than
to assume the role of policy maker, which has been entrusted by our
Constitution to the legislature. See State v. Arnold, 147 N.C.
App. 670, 673, 557 S.E.2d 119, 121 (2001). In reviewing the
constitutionality of statutes, “[w]e presume that the statutes are
constitutional, and resolve all doubts in favor of their
constitutionality.” State v. Evans, 73 N.C. App. 214, 217, 326
S.E.2d 303, 305 (1985). A statute must be held constitutional
“unless it is in conflict with some constitutional provision of the
State or Federal Constitutions.” In re Banks, 295 N.C. 236, 239,244 S.E.2d 386, 388 (1978). Our North Carolina Supreme Court has
noted the heavy burden inherent in mounting a facial challenge to
the constitutionality of a statute.
“A facial challenge to a legislative act is,
of course, the most difficult challenge to
mount successfully.” . . . An individual
challenging the facial constitutionality of a
legislative act “must establish that no set of
circumstances exists under which the act would
be valid.” The fact that a statute “might
operate unconstitutionally under some
conceivable set of circumstances is
insufficient to render it wholly invalid.”
State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 281-82 (1998)
(quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d
697, 707 (1987)).
As discussed supra, Lawrence clearly indicates that regulation
of particular sexual acts is permissible when legitimate state
interests justify intrusion into the personal and private life of
the individual, but is not permissible when such regulation
intrudes upon personal relations with no legitimate state interest.
See Lawrence, 539 U.S. at 567, 156 L. Ed. 2d at 518. A legitimate
state interest clearly exists in regulating conduct involving
minors, non-consensual or coercive conduct, public conduct, and
prostitution. Therefore, as we find that section 14-177 may
properly be used to prosecute conduct in which a minor is involved,
conduct involving non-consensual or coercive sexual acts, conduct
occurring in a public place, or conduct involving prostitution or
solicitation, the statute is facially constitutional.
This interpretation is consistent with our Courts prior
examination of N.C. Gen. Stat. § 14-177 in light of Lawrence. InState v. Pope, this Court considered whether Lawrence v. Texas
rendered the statute unconstitutional when used to prosecute
solicitation of a crime against nature. Pope, 168 N.C. App. at
594, 608 S.E.2d at 116. Pope, noting the limitations of the
holding in Lawrence, concluded that because acts of prostitution
and public conduct were not within the right to private intimate
relations recognized by Lawrence, the North Carolina statute
criminalizing such conduct was not unconstitutional. Id. at 594,
608 S.E.2d at 116.
Defendant further contends, however, that N.C. Gen. Stat. §
14-177 is unconstitutional as applied in this case in that the
trial court erred in instructing the jury on the offense of crime
against nature. After careful review of the facts and law, we
agree.
In the wake of the United States Supreme Court's ruling in
Lawrence, the application of section 14-177, while permissible to
prohibit particular sexual acts in which a legitimate state
interest in regulation exists, is unconstitutional when used to
criminalize acts within private relations protected by the
Fourteenth Amendment liberty interest. As noted supra, a
legitimate state interest exists in prohibiting the conduct
proscribed by section 14-177 when such conduct involves minors,
public conduct or solicitation. The evidence of record is clear,
however, that the act in this case did not involve minors, did not
occur in public, and did not involve solicitation. A legitimate state interest, however, also permits prosecution
under section 14-177 in cases involving non-consensual or coercive
acts. As the Supreme Court noted in Lawrence, historically, laws
prohibiting crimes against nature were routinely used to prosecute
“predatory acts against those who could not or did not consent[.]”
Lawrence, 539 U.S. at 569, 156 L. Ed. 2d at 519. Therefore, in
order for the application of section 14-177 to be constitutional
post-Lawrence on the facts of this case, the State must prove
beyond a reasonable doubt that defendant committed the sexual act,
cunnilingus, and that such an act was non-consensual.
Defendant's request for an instruction that defendant
committed a crime against nature without the victim's consent was
denied by the trial court. The trial court instead charged the
jury that defendant was guilty if he committed the physical act of
a crime against nature. The trial court instructed:
[Defendant] also has been charged with a crime
known as crime against nature, which is an
unnatural sexual act. For you to find him
guilty of this offense, the State must prove
beyond a reasonable doubt, that [defendant]
committed an unnatural sexual act with Tashah
Stevens. One kind of unnatural act is the
actual penetration of female sex organ by the
tongue of another person.
If you find from the evidence, beyond a
reasonable doubt, that on or about the alleged
date, [defendant] committed an unnatural sex
act, it would be your duty to return a verdict
of guilty. If you do not so find or have a
reasonable doubt, it would be your duty to
return a verdict of not guilty.
“A trial judge is required . . . to instruct the jury on the law
arising on the evidence. This includes instruction on the elementsof the crime.” State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745,
748 (1989). “Failure to instruct upon all substantive or material
features of the crime charged is error.” Id. As the jury was not
instructed to consider whether the act was committed without
Stevens' consent, the trial court's instruction as to the offense
of a crime against nature was in error.
Ordinarily, failure to instruct on each element of a crime is
prejudicial error requiring a new trial. See Bogle, 324 N.C. at
197, 376 S.E.2d at 748. However, “when an issue of ultimate fact
has once been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any future
lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 25 L. Ed. 2d 469,
475 (1970). We, therefore, must determine whether the element of
non-consent has been decided and may not be relitigated in a new
trial. See State v. McKenzie, 292 N.C. 170, 175, 232 S.E.2d 424,
428 (1977) (applying Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d
469).
The United States Supreme Court, in Ashe v. Swenson, addressed
the issue of collateral estoppel in criminal matters, holding
the rule of collateral estoppel in criminal
cases is not to be applied with the
hypertechnical and archaic approach of a 19th
century pleading book, but with realism and
rationality. Where a previous judgment of
acquittal was based upon a general verdict, as
is usually the case, this approach requires a
court to “examine the record of a prior
proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter,
and conclude whether a rational jury could
have grounded its verdict upon an issue other
than that which the defendant seeks to
foreclose from consideration.”
Ashe, 397 U.S. at 444, 25 L. Ed. 2d at 475-76 (footnote omitted).
In Ashe, the defendant was charged with six counts of armed robbery
arising from the same transaction, a robbery of six participants of
a poker game. Id. at 438, 25 L. Ed. 2d at 472. The defendant was
tried and acquitted for the robbery of one victim. Id. at 439, 25
L. Ed. 2d at 473. Subsequently, the defendant was again brought to
trial for the robbery of another victim. The defendant was found
guilty at the second trial, and alleged that the second conviction
was barred by the Fifth Amendment protection against double
jeopardy. Id. at 440, 25 L. Ed. 2d at 473. As the Court noted,
the evidence of record was
utterly devoid of any indication that the
first jury could rationally have found that an
armed robbery had not occurred, or that [the
victim] had not been a victim of that robbery.
The single rationally conceivable issue in
dispute before the jury was whether the
petitioner had been one of the robbers. And
the jury by its verdict found that he had not.
The . . . rule of law, therefore, would make a
second prosecution for the robbery . . .
wholly impermissible.
Id. at 445, 25 L. Ed. 2d at 476.
Here, defendant was also charged with second degree sexual
offense. In cases where the alleged victim is not mentally
handicapped, second degree sexual offense is defined as a sexual
act committed either without consent, that is “[b]y force and
against the will” of the victim, or when the victim is “physically
helpless.” N.C. Gen. Stat. § 14-27.5 (2003), see also State v.
Booher, 305 N.C. 554, 561, 290 S.E.2d 561, 564 (1982). The trial
court, in instructing the jury as to the charge of second degreesexual offense, stated that to find defendant guilty, “the State
must prove beyond a reasonable doubt” that defendant engaged in a
“sexual act” with Stevens. The trial court defined the sexual act
that was the basis for second degree sexual offense as cunnilingus,
the same conduct that was the basis for the charge of a crime
against nature. The trial court further instructed the jury that
to find defendant guilty as to second degree sexual offense, they
must also find beyond a reasonable doubt that Stevens was
physically helpless, and that defendant knew or should have
reasonably known that Stevens was physically helpless. The jury
acquitted defendant of the charge of second degree sexual offense.
The record is utterly devoid of any indication that the jury
could rationally have found that the sexual act which was the basis
for both crimes did not occur, as defendant testified at trial to
the commission of the sexual act. Further, no evidence was offered
at trial that the act was committed by force and against the will
of Stevens, as is evidenced by the trial court's instruction,
without objection by the State, only as to physical helplessness
and not as to force for the charge of second degree sexual offense.
The single rationally conceivable issue in dispute before the jury
was whether the sexual act was committed while Stevens was
physically helpless, and, therefore, without her consent. The
jury, by its verdict, found that the evidence did not show beyond
a reasonable doubt that the act was non-consensual, that is, that
Stevens was physically helpless and therefore unable to consent to
the sexual act. As the issue of non-consent to the sexual act haspreviously been determined, the State may not “constitutionally
hale him before a new jury to litigate that issue again.” Ashe,
397 U.S. at 446, 25 L. Ed. 2d at 477.
We find that defendant's conviction for a violation of N.C.
Gen. Stat. § 14-177, under the facts of this case, was error. We
therefore vacate his conviction for a crime against nature.
Vacated.
Judges CALABRIA and JACKSON concur.
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