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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA07-26


Filed: 4 September 2007


         v.                        Haywood County
                                Nos. 05 CRS 53979

    Appeal by defendant from judgment entered 11 August 2006 by Judge J. Marlene Hyatt in Superior Court, Haywood County. Heard in the Court of Appeals 27 August 2007.

    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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