STATE OF NORTH CAROLINA
v. Haywood County
Nos. 05 CRS 53979
JOPHIEL SHAY RODRIGUEZ
Attorney General Roy Cooper, by Special Deputy Attorney
General Amar Majmundar, for the State.
Brannon Strickland, PLLC, by Anthony M. Brannon, for
defendant-appellant.
WYNN, Judge.
This appeal arises out Defendant Jophiel Shay Rodriguez's
conviction on second degree rape. We find no error.
On 4 November 2005, Defendant invited a sixteen-year old
female and her friend to his residence for a party. Defendant and
several others picked up the girls and drove them back to his
house. During the course of the evening, the sixteen-year old
female continuously drank rum and smoked marijuana with the group
which included Defendant .
After drinking and smoking for a period of at least two and
one half hours, the sixteen-year old female became sick, laid down
on Defendant's bed and passed out. She later awoke when Defendantdigitally penetrating her vagina. She pushed him away and ran to
the bathroom, where she passed out on the floor. When she awoke,
Defendant was having vaginal intercourse with her. She tried to
push Defendant away and told him to stop; but, Defendant responded
that it would only take a minute. When Defendant was finished, he
left the room.
The sixteen-year old female and her friend left Defendant's
house and walked to a nearby McDonald's, where they saw two friends
who took her to the hospital. At the hospital, a rape kit was
completed for the sixteen-year old female. She had bruising and
semen was found on her thigh, pelvis, and vagina. Her blood
alcohol level was .07 and the presence of marijuana was detected in
her system.
Following a jury trial, Defendant was convicted of second
degree rape and was sentenced to a minimum term of ninety months
and a maximum term of one hundred seventeen months in prison.
Defendant's sole argument on appeal is that the trial court
erred by denying his motion to dismiss. We disagree.
On a motion to dismiss, “the evidence [is viewed] in the light
most favorable to the State, giving the State the benefit of all
reasonable inferences.” State v. Morgan, 359 N.C. 131, 161, 604
S.E.2d 886, 904 (2004), cert. denied, 546 U.S. 830, 163 L. Ed. 2d
79 (2005). “If substantial evidence exists to support each
essential element of the crime charged and that defendant was the
perpetrator, it is proper for the trial court to deny the motion.”
Id. The Supreme Court has articulated that “[s]ubstantial evidenceis such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” State v. Brown, 310 N.C. 563,
566, 313 S.E.2d 585, 587 (1984).
To prove second-degree rape the State must show that the
person engaged in vaginal intercourse with another person by force
and against the other person's will; or, with a person who is
mentally disabled or incapacitated, or physically helpless, and the
person performing the act knows or should reasonably know the other
person is mentally disabled or incapacitated, or physically
helpless. N.C. Gen. Stat. § 14-27.3 (2005). The term “physically
helpless” is statutorily defined as:
(i) a victim who is unconscious; or (ii) a
victim who is physically unable to resist an
act of vaginal intercourse or a sexual act or
communicate unwillingness to submit to an act
of vaginal intercourse or a sexual act.
N.C. Gen. Stat. § 14-27.1(3)(2005).
Defendant asserts that the State failed to present evidence
that he knew that the sixteen-year old female was physically
helpless. The sixteen-year old female testified that Defendant
provided her with alcohol and that she consumed it in his presence;
that she smoked marijuana in Defendant's presence; that this period
of drinking and smoking marijuana lasted for approximately two and
one half hours; that when she became sick she laid down on
Defendant's bed, passed out and vomited; that she was twice
awakened by Defendant once after he digitally penetrated her vagina
and again after he engaged in vaginal intercourse with her. The State also offered the testimony of a male friend that
visited Defendant's house during the time that the sixteen-year old
female was unconscious on Defendant's bed. The witness described
her as “passed out on the bed with a bucket next to her.” He
further testified that he had to pat the sixteen-year old female on
the leg to wake her and that she was unable to coherently respond
to his questions. He also testified that he could smell alcohol on
her and knew from observing her that she was drunk.
From this evidence, a jury could reasonably conclude that the
sixteen-year old female was unconscious from the effects of alcohol
and marijuana at the time that Defendant began sexual intercourse
with her. Moreover, our Supreme Court has held that in the case of
a sleeping, or similarly incapacitated victim, “. . .sexual
intercourse with the victim is ipso facto rape because the force
and lack of consent are implied in law.” State v. Moorman, 320
N.C. 387, 392, 358 S.E.2d 502, 506 (1987); see also State v.
Dillard, 90 N.C. App. 318, 322-323, 368 S.E.2d 442,445 (1988).
Accordingly, we conclude that the State presented sufficient
evidence to support each of the elements of second-degree rape.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e)
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