Appeal by defendant from judgments entered 27 September 2005
by Judge Charles P. Ginn in Haywood County Superior Court. Heard
in the Court of Appeals 15 October 2007.
Roy Cooper, Attorney General, by Amy C. Kunstling, Assistant
Attorney General, for the State.
Michael E. Casterline for defendant-appellant.
MARTIN, Chief Judge.
On 27 September 2005, defendant was convicted of first degree
kidnapping and attempted second degree rape of Tracy Payne and was
sentenced to a term of 108 to 139 months and a term of 96 to 125
months, to be served consecutively. Defendant appeals from the
convictions.
The evidence presented at trial tended to show that Payne
lived in Waynesville, North Carolina, and defendant was her next-
door neighbor whom she had known casually because they had been
classmates in school. Payne had a six-year-old son who sometimes
played with defendant's daughter.
On the evening of 4 June 2004, Payne's son was staying with
his father. Two friends were visiting Payne that evening, and they
left in the early morning hours of 5 June 2004 to get something to
eat. Payne fell asleep on the couch watching television until she
was awakened by defendant knocking on her door. Defendant
explained that his vehicle would not start, and he asked to borrow
Payne's telephone. Payne let defendant inside, gave him her cellphone, and returned to the couch. Defendant took the cell phone
into Payne's bathroom and returned a few minutes later. Payne did
not hear defendant talking on the cell phone and did not hear the
toilet flush.
When defendant came out of the bathroom, he talked to Payne
for a few minutes. Suddenly, defendant got on top of Payne and
straddled her. Payne screamed and struggled, and defendant hit her
in the face and head and told her that if she stopped screaming he
would let her live. Defendant tried to put a piece of duct tape
over Payne's mouth and pinned her down, trying to lift up her
shirt. Payne was wearing a tank top without a bra. Payne told
defendant that she expected her friends back soon, and defendant
said “we're going over here,” and dragged Payne off the couch and
toward the kitchen. Payne noticed that defendant's pants were
unzipped. Once in the kitchen, defendant opened the door to the
outside of the house, and Payne resisted by grabbing the door. In
the struggle, defendant pulled Payne's left arm behind her back,
then she and defendant fell across the kitchen table, and finally
she backed defendant against the wall and hit his mouth with the
back of her head. At that point, defendant let go of Payne and
apologized, asking her not to call the police. He also said he
would go get help and told her he was “out of his head.” He
returned her cell phone and its battery to her and left.
Payne called the Haywood Sheriff's Department. The deputy who
arrived took photographs of Payne's injuries, including bruises on
her face, ears, head, arms, and leg, and a lacerated lip. At aboutsix o'clock in the morning, defendant called Payne twice, although
she only spoke to him once, and about an hour later defendant
returned to Payne's home and knocked on her door. She refused to
let him in, and he was arrested outside her home. Sometime after
the incident, Payne discovered her dogs chewing on a roll of duct
tape in the back yard. A few days after the incident Payne was
treated at an urgent care facility for a pulled muscle in her right
shoulder that caused her to miss work and lose her job. Payne also
had nightmares and felt uncomfortable around men after the
incident.
Nancy Farmer testified at the trial concerning another
incident, which occurred in June 2004, involving defendant. Farmer
testified that she did not know defendant when he approached her in
his truck on 24 June 2004 as she was walking to a store to buy
cigarettes. Defendant asked Farmer if she would like to “hit some
crack,” and Farmer responded affirmatively. Defendant and Farmer
drove to a parking lot where they smoked crack. Then they drove to
a store, bought two beers, and drove to a location near Pigeon
River. Defendant parked the truck in a wooded area, and defendant
and Farmer smoked crack and drank beer until daybreak on 25 June
2004. Then they returned to defendant's truck. Farmer was sitting
in the passenger seat when defendant told her that the truck would
not start. Defendant got out of the truck and went to the
passenger side where he threw a towel around Farmer's neck and
pulled on the towel. Farmer struggled and tried to hit defendant
with a stick. Defendant told her “he was going to [have sex withher], and if [she] made any noise he was going to kill [her].”
Farmer managed to get away from defendant and ran toward the road.
Defendant threw a rock at her, which hit her face, causing her to
need seven stitches. A detective who interviewed defendant after
the incident testified that defendant indicated he had expected sex
and Farmer did not want to have sex, and that defendant attributed
the incident to “drugs, man, that's all it was. I wasn't in my
right mind.”
________________________
[1] Defendant raises four issues on appeal. First, defendant
argues that the trial court erred in its instructions to the jury
on the kidnapping charge because it improperly defined the offense.
When the court instructed the jury on the element of serious injury
for first degree kidnapping, the court stated, over defendant's
objection: “Serious injury is defined as injury that causes great
pain and suffering. Serious injury may also be defined as mental
injury where such mental injury extends for some appreciable time
beyond the incidence [sic] which surrounds the crime itself.”
Defendant assigns error to the court's failure to instruct the jury
that a serious mental injury also must be a mental injury beyond
that normally experienced by other victims of the type of crime
charged.
See State v. Baker, 336 N.C. 58, 62-63, 441 S.E.2d 551,
554 (1994). Defendant's argument contravenes subsequent case law
from this Court and our Supreme Court.
Defendant's argument relies on our Supreme Court's language
in
Baker, stating: [I]n order to prove a serious personal injury
based on mental or emotional harm, the State
must prove that the defendant caused the harm,
that it extended for some appreciable period
of time beyond the incidents surrounding the
crime itself, and that the harm was more than
the “
res gestae” results present in every
forcible rape.
Id. This language from
Baker interpreted language from an earlier
Supreme Court case,
State v. Boone, 307 N.C. 198, 205, 297 S.E.2d
585, 590 (1982),
overruled on other grounds,
State v. Richmond, 347
N.C. 412, 430, 495 S.E.2d 677, 687 (1998), which stated:
We . . . believe that the legislature intended
that ordinarily the mental injury inflicted
must be more than the
res gestae results
present in every forcible rape and sexual
offense. In order to support a jury finding of
serious personal injury because of injury to
the mind or nervous system, the State must
ordinarily offer proof that such injury was
not only caused by the defendant but that the
injury extended for some appreciable time
beyond the incidents surrounding the crime
itself.
Id. The discrepancy in the phrasing in these cases has given rise
to controversy over whether the State must separately prove that
the harm to the victim was more than that normally experienced by
victims of the same crime. This Court addressed the issue in
State
v. Easterling:
We do not read
Boone as placing an additional
burden on the State to show a mental injury
must be more than that normally experienced in
every forcible rape in addition to showing the
mental injury extended for some appreciable
time, as defendant suggests. Rather, we read
Boone as holding that if a mental injury
extends for some appreciable time, it is
therefore a mental injury beyond that normally
experienced in every forcible rape.
119 N.C. App. 22, 40, 457 S.E.2d 913, 923-24,
disc. review denied,
341 N.C. 422, 461 S.E.2d 762 (1995);
accord State v. Ackerman, 144
N.C. App. 452, 460-61, 551 S.E.2d 139, 144-45,
cert. denied, 354
N.C. 221, 554 S.E.2d 344 (2001). This Court's interpretation has
been ratified by our Supreme Court in
State v. Finney, where the
Court upheld a jury instruction on serious mental injury which
omitted mention of a requirement that the harm be more than that
normally experienced by other victims of the same crime.
State v.
Finney, 358 N.C. 79, 89-90, 591 S.E.2d 863, 869-70 (2004).
Accordingly, we hold the trial court did not err in its instruction
to the jury on the element of serious injury in the present case.
[2] Defendant also argues that the trial court erred in
admitting, over his objection, evidence of the incident between
defendant and Farmer, contending there was insufficient similarity
between the incident with Farmer and the current offense in
violation of N.C.G.S. § 8C-1, Rule 404(b), and the evidence was
unfairly prejudicial to defendant in violation of N.C.G.S. § 8C-1,
Rule 403. “We review a trial court's determination to admit
evidence under [Rules] 404(b) and 403, for an abuse of discretion.”
State v. Summers, 177 N.C. App. 691, 697, 629 S.E.2d 902, 907,
disc. review denied, 360 N.C. 653, 637 S.E.2d 192 (2006).
At trial, in response to defendant's motion
in limine to
exclude Farmer's testimony, the State argued, “we believe they are
similar in nature and can show intent, knowledge, scheme or plan.”
The trial court denied defendant's motion and allowed Farmer to
testify about the incident with defendant that occurred twenty daysafter the incident with Payne. Evidence of a defendant's other
crime, wrongs, or acts is admissible under Rule 404(b) for purposes
such as “proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, entrapment, or
accident.” N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005). “When
evidence of the defendant's prior sex offenses is offered for the
proper purpose of showing plan, scheme, system, or design . . . the
ultimate test for admissibility has two parts: First, whether the
incidents are sufficiently similar; and second, whether the
incidents are too remote in time.”
State v. Curry, 153 N.C. App.
260, 264, 569 S.E.2d 691, 694 (2002) (internal quotation marks
omitted) (alteration in original).
Defendant contends the trial court erred in admitting Farmer's
testimony because the incident with Farmer lacked sufficient
similarity to the incident with Payne. However, the two incidents
demonstrated many specific similarities, including that both
incidents occurred in the early morning hours, defendant told both
victims that his vehicle would not start, defendant told Payne he
would let her live if she stopped struggling and told Farmer he
would kill her if she made any noise, defendant told Payne he was
“out of his head” and told a law enforcement officer that he
“wasn't in [his] right mind” after the incident involving Farmer,
defendant tried to restrain and silence both victims, and defendant
ceased his efforts when the victims forcefully resisted his
advances. In order to be sufficient, “[s]imilarities need not be
bizarre or uncanny; they simply must 'tend to support a
reasonableinference that the same person committed both the earlier and later
acts.'”
State v. Murillo, 349 N.C. 573, 593, 509 S.E.2d 752, 764
(1998) (quoting
State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876,
891 (1991)). The similarities in the incidents support such an
inference; thus, the trial court did not abuse its discretion in
concluding that the similarities were sufficient to admit Farmer's
testimony.
“The admissibility of evidence under Rule 404(b) is further
subject to the weighing of probative value versus unfair prejudice
mandated by [N.C. Gen. Stat. § 8C-1,] Rule 403.”
Curry, 153 N.C.
App. at 265, 569 S.E.2d at 695 (internal quotation marks omitted)
(alteration in original). Thus, defendant also argues that this
Court must reverse the trial court's ruling because the prejudicial
effect of the testimony substantially outweighed its probative
value, in violation of Rule 403. N.C. Gen. Stat. § 8C-1, Rule 403
(2005) (“[E]vidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . .
.”). “'Unfair prejudice' within its context means an undue
tendency to suggest decision on an improper basis . . . .” N.C.
Gen. Stat. § 8C-1, Rule 403 official commentary. In light of the
trial court's instruction to the jury limiting their consideration
of the evidence to the purposes of showing motive, intent, and
plan, scheme, system, or design, any tendency of the evidence to
suggest decision on an improper basis is not excessive and does not
outweigh the probative value of the evidence. Accordingly,
defendant has not shown that the trial court abused its discretion;therefore, the trial court did not err in admitting evidence of the
incident with Farmer.
Defendant ultimately argues that the trial court erred in
denying his motion to dismiss the charges of first degree
kidnapping and attempted second degree rape. Defendant contends
that the State failed to submit substantial evidence of all of the
elements of each of the crimes charged. We note:
In ruling on a motion to dismiss at the
close of evidence made pursuant to G.S. §
15A-1227, a trial court must determine whether
there is substantial evidence of each
essential element of the offenses charged.
If, viewed in the light most favorable to the
State, the evidence is such that a jury could
reasonably infer that defendant is guilty, the
motion must be denied.
State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620-21
(2002) (citation omitted). “Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion.”
State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d
655, 663 (1995).
[3] With regard to the charge of kidnapping, defendant argues
that the State failed to present substantial evidence of the
required element that the restraint be a separate complete act
independent of and apart from the attempted second degree rape.
“It is self-evident that certain felonies (
e.g., forcible rape and
armed robbery) cannot be committed without some restraint of the
victim.”
State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351
(1978). To support a conviction on charges of both kidnapping and
attempted rape, “the restraint, which constitutes the kidnapping,[must be] a separate, complete act, independent of and apart from
the other felony.”
Id. at 524, 243 S.E.2d at 352. “[A] person
cannot be convicted of kidnapping when the only evidence of
restraint is that 'which is an inherent, inevitable feature' of
another felony such as armed robbery.”
State v. Beatty, 347 N.C.
555, 559, 495 S.E.2d 367, 369 (1998) (quoting
Fulcher, 294 N.C. at
523, 243 S.E.2d at 351). In determining whether the restraint is
sufficient for a kidnapping charge:
The court may consider whether the defendant's
acts place the victim in greater danger than
is inherent in the other offense, or subject
the victim to the kind of danger and abuse
that the kidnapping statute was designed to
prevent. The court also considers whether
defendant's acts “cause additional restraint
of the victim or increase the victim's
helplessness and vulnerability.”
State v. Key, 180 N.C. App. 286, 290, 636 S.E.2d 816, 820 (2006)
(citations omitted),
disc. review denied, 361 N.C. 433, 649 S.E.2d
399 (2007).
The restraint defendant used in the case before us went beyond
the restraint inherent in the crime of attempted second degree
rape. The evidence indicated defendant straddled Payne on the
sofa, hit her, tried to pull up her tank top, and had his pants
unzipped, at which time he had completed the crime of attempted
second degree rape. Defendant then pulled Payne from the couch and
dragged her to the kitchen, toward the door. Defendant's acts to
restrain Payne while they struggled in the kitchen clearly
subjected her to greater danger and vulnerability than was inherent
in the attempted rape that occurred on the couch. Accordingly, theState presented substantial evidence of the restraint element, and
the trial court did not err in denying the motion to dismiss the
charge.
[4] With regard to the attempted second degree rape charge,
defendant argues that the State failed to present substantial
evidence of the elements of the crime.
To obtain a conviction for attempted
second-degree rape, the State must prove
beyond a reasonable doubt that (1) the accused
had the specific intent to commit rape; and
(2) the accused committed an overt act for the
purpose, which goes beyond mere preparation,
but falls short of the complete offense.
State v. Farmer, 158 N.C. App. 699, 702, 582 S.E.2d 352, 354
(2003). Defendant contends that there was no substantial evidence
of either of the required elements.
This Court has held:
[T]he 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. Intent to rape may be “proved
circumstantially by inference, based upon a
defendant's actions, words, dress, or
demeanor.”
State v. Oxendine, 150 N.C. App. 670, 674, 564 S.E.2d 561, 564
(2002) (citations omitted). The circumstantial evidence in this
case is sufficient to create a reasonable inference of guilt, and
therefore constitutes substantial evidence of defendant's intent.
The evidence indicated defendant straddled Payne and tried to pull
up her shirt, and his pants were unzipped. This same evidence also
demonstrates defendant's overt act in furtherance of the crime;
thus, the State presented substantial evidence of both elements ofthe crime of attempted second degree rape. The trial court did not
err in granting the motion to dismiss the charge.
No error.
Judges McCULLOUGH and ELMORE concur.
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