An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-6


Filed: 03 January 2006


v .                         Durham County
                            Nos. 02 CRS 50596, 50597,
MARK STEVENSON UMSTEAD            50598, 50599    

    Appeal by defendant from judgment entered 6 July 2004 by Judge Henry W. Hight, Jr. in Durham County Superior Court. Heard in the Court of Appeals 15 September 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General W. Dale Talbert, for the State.

    Thomas R. Sallenger for defendant-appellant.

    ELMORE, Judge.

    Mark Stevenson Umstead (defendant) was indicted on 16 September 2002 for the offenses of first-degree rape, first-degree sexual offense (two counts), and first-degree kidnapping. The State's evidence at trial tended to show that Lauren Gilmore (Lauren) met defendant on 3 January 2001 and the two began seeing each other romantically. In March, Lauren moved in with her parents after they discovered that Lauren was dating defendant, who is seven years older than she. Sometime in May of 2002, Lauren and defendant began having a romantic relationship again. Lauren testified that she wanted to end the relationship because she was tired of lying to her parents. She stated that she saw defendant for the last time on 26 June 2002. Lauren's friend Jennie calledher to say that defendant was talking about suicide. Lauren agreed to meet defendant at his parents' house and arrived there at about 8:30 p.m. Lauren testified that defendant grabbed her phone away from her when she walked in. He then grabbed her keys and ran into his parents' bedroom. Defendant asked Lauren how she could shut him out of her life. Defendant retrieved a knife and began acting like he was going to stab her with the knife. Defendant ordered Lauren to take her clothes off, and she refused. He then ripped her pants and underwear down. Lauren testified that defendant penetrated her vagina and her rectum. He also made her perform oral sex on him. At about 10:30 p.m., defendant told her to get dressed because they were going to pick up his mother in Lauren's car.
    When Lauren and defendant returned home, defendant's mother asked what was wrong. Lauren testified that she tried to get defendant to tell his mother about the knife. Defendant then told Lauren to take a shower. Before getting in the shower, Lauren noticed a huge welt on her neck. After Lauren finished showering, defendant requested that Lauren lay next to him on the couch until he fell asleep. Lauren waited until defendant began to go to sleep, then she got up and went to his parents' room. Lauren told defendant's parents that he had her belongings and that she wanted to go home. Defendant's mother demanded that defendant return her things, and he told her that they were in the top cabinet in the kitchen. Lauren drove home and went to bed. She testified that she did not tell anybody what had happened until the next morning. Lauren told her friend Jennie and her father, and Lauren's father called the police. Lauren was examined at Duke University Medical Center by Wendy Craven, a sexual assault nurse examiner. Ms. Craven testified that she wrote down a description of what Lauren told her had happened the previous evening. Over objection by defendant, Ms. Craven testified that the injuries she observed were consistent with blunt force trauma to the genital and anal area.
    Defendant called Sandra Umstead, his mother, to testify. Ms. Umstead testified that she did not see any marks or bruising on Lauren's face the night when Lauren was visiting and that Lauren did not say anything about a knife or about defendant raping her. Defendant's father also testified that Lauren did not say anything to him about defendant raping her. The jury found defendant guilty of second-degree rape, two counts of second-degree sexual offense, and second-degree kidnapping. The jury found defendant not guilty of assault with a deadly weapon. The trial court sentenced defendant to three consecutive terms of a minimum of 100 months and maximum of 129 months imprisonment for the second-degree rape conviction and the two counts of second-degree sexual offense; and a minimum of 29 months and maximum of 44 months for the second- degree kidnapping conviction, to also run consecutively. Defendant gave notice of appeal in open court.
    By his first assignment of error, defendant argues that the trial court erred in denying his motion to dismiss the kidnapping charge for insufficiency of the evidence. Specifically, defendant contends that the only evidence of restraint of the victim was thethreatened use of a knife and that this restraint was inherent in the rape and sexual offenses.
    N.C. Gen. Stat. § 14-39 defines the offense of kidnapping as follows:
        (a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person . . . shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:

            (1) Holding such other person for a ransom or as a hostage or using such other person as a shield; or

            (2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or

            (3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person; or

            (4) Holding such other person in involuntary servitude in violation of G.S. 14-43.2.

        (b) There shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C felony. If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony.

N.C. Gen. Stat. § 14-39 (2003). Our Supreme Court has held that, consistent with a defendant's protection against double jeopardy, a defendant may be convicted of kidnapping and another felonyinvolving restraint only if the restraint underlying the kidnapping is separate and apart from the other felony. See State v. Fulcher, 294 N.C. 503, 523-24, 243 S.E.2d 338, 351-52 (1978).
        It is self-evident that certain felonies (e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim. We are of the opinion, and so hold, that G.S. 14-39 was not intended by the Legislature to make a restraint, which is an inherent, inevitable feature of such other felony, also kidnapping so as to permit the conviction and punishment of the defendant for both crimes. To hold otherwise would violate the constitutional prohibition against double jeopardy.

Id. at 523, 243 S.E.2d at 351. Thus, the Court construed the word “restrain” to mean “a restraint separate and apart from that which is inherent in the commission of the other felony.” Id. Similarly, the Supreme Court construed the phrase “removal from one place to another” as requiring “a removal separate and apart from that which is an inherent, inevitable part of the commission of another felony.” State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981). When determining whether the restraint or removal is sufficient to support a separate kidnapping offense, the court must ask if the victim was “exposed to a greater danger than that inherent in the [felony] itself” or “subjected to the kind of danger and abuse the kidnapping statute was designed to prevent.” Id.
    After reviewing the evidence in the light most favorable to the State, see State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002), we determine that the trial court properly denied defendant's motion to dismiss. The State's evidence tended to showthat defendant grabbed the victim by her chin and threw her onto the couch. After taking the victim's cell phone and keys into his parents' room, defendant walked back over to the victim. He pushed the victim up against the wall and started pressing his forehead against hers. He continued to press on her forehead while grabbing her hands and grunting. Defendant eased up and took a few steps back. The victim sat down on the love seat, and defendant jumped on top and straddled her. Defendant started poking the victim's head with his forefinger. The victim testified that she became very scared and tried to calm defendant down. Defendant then got up and retrieved a knife that was lying beside the television. As he walked towards her, defendant stated, “You know how easy it is for me to kill you?” The victim said, “Mark, please, God, no, what are you doing?” The victim testified that defendant rubbed the knife around her face and down her neck. Defendant then put the victim in a headlock and was swinging the knife at her. The victim was screaming at the top of her lungs. The victim ended up on the floor, and defendant straddled her and kept stabbing the knife in the direction of her face.
    Contrary to defendant's assertion, the State's evidence shows that defendant restrained the victim in several different ways prior to the commission of the sexual activity. Defendant held the victim against the wall, put her in a headlock, and straddled her while stabbing with the knife. These acts of restraint were separate and apart from the acts of rape and sexual offense. See State v. Mebane, 106 N.C. App. 516, 532, 418 S.E.2d 245, 255 (whendefendants blocked door to bedroom where victim was located, forced her against a window, and dragged her into the living room prior to acts of rape, they restrained victim separate and apart from acts necessary to accomplish rape), disc. review denied, 332 N.C. 670, 424 S.E.2d 414 (1992). As there is sufficient evidence that defendant restrained the victim separate and apart from the acts of rape and sexual offense and that the restraint subjected the victim to a greater danger than that inherent in these other felonies, the trial court properly denied defendant's motion to dismiss the kidnapping charge. We overrule defendant's assignment of error.
    Next, defendant contends that the trial court erred in allowing a certified sexual assault nurse to testify that the victim's injuries were consistent with blunt force trauma and with the events described to her by the victim.
        Q. [the State]: Based upon your experience as a sexual assault nurse examiner, were those injuries consistent with the information that you got from Lauren?

        [defense counsel]: Objection, your Honor.

        THE COURT: Overruled.

        A. [Ms. Craven]: Those injuries were consistent with blunt force trauma to the genital and anal area, and were consistent with the events that Lauren stated to me in her actual statement.

    Defendant contends that the witness's testimony was inadmissible under Rule 702 of the North Carolina Rules of Evidence, which states that a witness qualified as an expert may provide testimony “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidenceor to determine a fact in issue[.]” N.C. Gen. Stat. § 8C-1, Rule 702 (2003). Our Supreme Court has explained the standard of admitting testimony of an expert witness based upon whether the opinion would assist the trier of fact as follows:
        In determining whether expert medical opinion is to be admitted into evidence the inquiry should be . . . whether the opinion expressed is really one based on the special expertise of the expert, that is, whether the witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.

State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987) (internal quotations omitted) (discussing Rule 702).
    Defendant argues that Ms. Craven's testimony violates Rule 702 because it “constituted an opinion as to whether or not the legal standard of sexual assault had been met in this case . . . .” Specifically, defendant asserts that Ms. Craven was not in a better position than the jury to draw the conclusion that the victim had been sexually assaulted.
We first note that the expert witness expressed no opinion on whether the sexual acts were committed by force and without the victim's consent or by the defendant. On this question, Ms. Craven would have been in no better position to have an opinion than the jury. Rather, Ms. Craven testified to a medical opinion of blunt force trauma. Thus, defendant's contention that the witness was permitted to testify regarding her opinion of a sexual assault where the opinion was not based on her special expertise is without merit.     Defendant also argues that Ms. Craven's testimony was an impermissible opinion regarding the victim's credibility. However, defendant has not properly preserved this issue for appellate review. Later during Ms. Craven's testimony, the State asked the following:
        Based upon your experience as a sexual assault nurse examiner, the bruising you saw to the front and back of [the victim's] ears, the swelling to her face -- to her neck, the bruises that she had on her buttocks, both sides, the internal bleeding to her cervix, the redness to her cervix, the external redness to her vaginal area, the tears between her anus and her vagina, and the tears to her rectum, are they consistent with what [the victim] told you happened to her?

Defense counsel made no objection. The witness responded, “Yes, ma'am, they are.” This evidence was the same evidence previously admitted, and thus the benefit of the earlier objection is not preserved here. See State v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995) (citing cases). Defendant's objection to the physical injuries being consistent with what the victim told Ms. Craven was not preserved.         
    Finally, defendant assigns error to the trial court's denial of his motion to dismiss the charges of first-degree rape and first-degree sexual offense (fellatio and anal sex). The jury convicted defendant of the lesser included offenses of second- degree rape and second-degree sexual offense (both counts). Defendant contends that the State failed on its proof of the element of force. Committing the act by force and against the will of the victim is an essential element of second-degree rape andsecond-degree sexual offense. See N.C. Gen. Stat. §§ 14-27.3(a)(1) (2003) (rape in the second degree) and 14-27.5(a)(1) (2003) (sexual offense in the second degree). “The requisite 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). The State may prove constructive force with evidence of the defendant's threats of serious bodily injury or other actions, which under the totality of the circumstances, permit an inference that the victim was compelled to submit to the sexual acts. Id.
    Here, the totality of the circumstances permit the reasonable inference that the victim was compelled to submit to the sexual offenses and the rape. The State's evidence established that defendant grabbed the victim by the chin and threw her on the couch, pushed the victim up against a wall, placed her in a headlock while jabbing a knife toward her face, and told the victim, “You know how easy it is for me to kill you?” Also, the victim testified that when defendant told her to perform oral sex on him, and while he was penetrating her vagina and anus, the knife was visible and within arm's reach. The verbal threat of serious bodily harm, combined with the various acts of violence and threatened use of the knife, constitute sufficient evidence of constructive force to satisfy the requirements of N.C. Gen. Stat. §§ 14-27.3 and 14-27.5. See, e.g., State v. Scercy, 159 N.C. App. 344, 346-47, 352, 583 S.E.2d 339, 340-41, 344 (evidence that the defendant, prior to vaginal intercourse, threatened the victim'slife with a nine millimeter gun if she did not perform oral sex, was sufficient to establish constructive force for second-degree rape), disc. review denied, 357 N.C. 581, 589 S.E.2d 363 (2003). Defendant's final assignment of error is overruled.
    No error.
    Judges HUDSON and LEWIS concur.
    Report per Rule 30(e).

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