NO. COA07-327
v. Wayne County
No. 05 CRS 58177, -58234
Appeal by defendant from judgment entered 26 July 2006 by
Judge Russell J. Lanier, Jr. in Wayne County Superior Court. Heard
in the Court of Appeals 18 September 2007.
Roy Cooper, Attorney General, by David L. Elliott, Assistant
Attorney General, for the State.
Brian Michael Aus, for defendant-appellant.
MARTIN, Chief Judge.
William Charles Kohls (“defendant”) appeals from judgments
entered upon jury verdicts finding him guilty of one count of
second degree sexual offense pursuant to N.C.G.S. § 14-27.5(a), and
one count each of second degree arson and conspiracy to commit
second degree arson pursuant to N.C.G.S. § 14-58.
As relevant to the issues properly before this Court, evidence
presented at defendant's trial tended to show that on 23 September
2005, defendant's wife Windy Kohls returned home from work to the
mobile home she shared with defendant and their two minor children.
Mrs. Kohls testified that she wanted to tell defendant that she
“needed space” because he was unemployed and she was “just tired of
going down the same path over and over.” However, she testifiedthat she was scared to talk with defendant because he had “been
violent before,” so it “took [her] a while before [she] could get
up the courage to talk to him” because she “didn't know what was
going to happen.”
Mrs. Kohls testified that, after dinner, she was standing in
the kitchen and defendant was sitting in his recliner. Mrs. Kohls
told defendant that she “needed some space for the weekend” and was
going to stay with her father, with whom defendant did not get
along. After some heated discussion about household finances, Mrs.
Kohls told defendant she “might as well be by [her]self.” Mrs.
Kohls testified that she “guess[ed] that struck him the wrong way,
. . . [so she] got quiet, and . . . sat down at [her] computer,”
which was in the same room with defendant. Without saying
anything, defendant “came up from behind [her]” and “grabbed [her]
around [her] neck and threw [her] out of [her] chair onto the
floor.” Mrs. Kohls “crawled” over to a futon and curled into a
“fetal position” while defendant “stood over the top of [her]
pounding [her] in the back of the head.” She heard defendant unzip
his trousers and he told her that he was “fixing to p--- all over”
her. Mrs. Kohls testified that she tried to crawl away but that
defendant “flipped [her] over on [her] back and . . . sat down on
top of [her], basically straddling [her] chest.” Mrs. Kohls said
that defendant choked her while repeatedly asking her whether she
needed her space because there was “somebody else.” According to
Mrs. Kohls's testimony, defendant then put his fist on the top of
her chest so she could not move. While this was occurring, theiroldest son entered the room and asked what was going on. Defendant
told him that “[h]e needed to go the f--- back to sleep.”
Mrs. Kohls testified that defendant noticed that she was
wearing makeup, and pulled on her eyelid saying, “I thought I told
you you were not to wear makeup.” He told her, “Well, I'll give
you a good reason to wear makeup. . . . I'll just take a knife and
cut up your face. . . . Or better yet[,] I'll just pour gasoline on
your face and light a match.”
Defendant got off of Mrs. Kohls and returned to his recliner,
telling her, “If you go press charges, I'll kill you.” Mrs. Kohls
stayed on the floor because she was frightened. Defendant told
Mrs. Kohls that she was not to go to work the next day and stood
beside her while she called her employer to say she would not be at
work the next day. Mrs. Kohls picked up her computer chair off the
floor and sat down in the chair “in a daze” while “[e]verything was
quiet for a little while.” After a period of time, the duration of
which Mrs. Kohls was uncertain, defendant told her, “I want you to
suck my d---.” She initially refused, but after defendant “balled
up his fists and pressed them into the side of his chair . . .
recliner, and just gave [her] a . . . it was like an evil look,
. . . [she] felt right then if [she] didn't do it it was just going
to be worse.” Mrs. Kohls asked defendant if she could pull her
chair over, “even though [she] had already told him no,” because
she did not feel like she could refuse him. She testified that she
started to fellate defendant and she “felt like [she] was gagging”
and “felt like [she] was going to throw up.” She told defendantshe had to go to the bathroom. Defendant followed her into the
bathroom and, as she was sitting on the toilet, put his hands on
the back of her head and put his penis in her mouth and thrust it
in her throat. He instructed her to swallow his ejaculate and told
her that if she did not, he would “p--- in [her] mouth.” Defendant
then returned to his recliner.
Early the following morning, Mrs. Kohls left the mobile home
with her youngest son and went to her father's home. She reported
the events of the previous night to a magistrate. Later that
morning, she returned to her home to get some belongings and
discovered that some of her personal belongings had been destroyed.
The mobile home was destroyed by fire early on the morning of
26 September 2005.
Detective Sergeant Tammy Odom of the Wayne County Sheriff's
Office investigated the incidents. She interviewed defendant on
two occasions and defendant made statements to her in which he
admitted striking his wife, and that she had fellated him, but
denied that he had forced her to do so. In his first statement,
defendant also said that he called a friend, Nathan Britt, from
jail and told him to “make [the trailer] disappear and let it be a
cookout. I didn't tell him to burn it down, in those words.” In
his second statement, he admitted that he told his brother, Brian
Kohls, to burn the trailer. The State also offered the testimony
of Brian Kohls that defendant had asked him to burn the trailer and
that defendant called him after the fire to make sure it had been
burned. Defendant laughed when he learned that the trailer hadbeen destroyed.
Defendant testified in his own behalf. He admitted that he
asked Mrs. Kohls “about 6 to 8 times” why she wanted space, that he
“grabbed her by the side of her neck,” and that they then “both
went to the floor.” He testified that he “did pop [Mrs. Kohls] in
the back of the head,” but asserted that he “hurt her feelings more
than [he] hurt her physically.” He denied that he threatened to
cut her. Defendant also admitted that he told Mrs. Kohls to stay
home from work the next day, but said that he made the request
because he wanted to surprise her by taking her to a restaurant in
Myrtle Beach.
Defendant testified that he instructed Mrs. Kohls to perform
fellatio on him in a manner consistent with Mrs. Kohls's account.
However, defendant testified that Mrs. Kohls did not try to refuse
his instruction, and that she told him to come with her to the
bathroom where she completed the sexual act as she used the toilet.
_________________________
The record on appeal contains four assignments of error. In
his brief, however, defendant has brought forward arguments in
support of only the first and fourth assignments of error;
therefore, we must consider that he has abandoned his second and
third assignments of error.
N.C.R. App. P. 28(a) (2007)
(“Questions raised by assignments of error in appeals from trial
tribunals but not then presented and discussed in a party's brief,
are deemed abandoned.”); N.C.R. App. P. 28(b)(6) (2007)
(“Assignments of error not set out in the appellant's brief, or insupport of which no reason or argument is stated or authority
cited, will be taken as abandoned.”).
In his first assignment of error, defendant asserts as error
the trial court's denial of his motion to dismiss the charge of
second degree sexual offense due to the insufficiency of the
evidence. Our standard of review of a trial court's ruling with
respect to a defendant's motion to dismiss in a criminal
prosecution is well established; “[t]he trial judge must decide if
there is substantial evidence of each element of the offense
charged.”
State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673, 681
(1987). In doing so, the trial court “must view the evidence in
the light most favorable to the [S]tate, giving the [S]tate the
benefit of every reasonable inference that might be drawn
therefrom.”
Id. (citing
State v. Witherspoon, 293 N.C. 321, 237
S.E.2d 822 (1977)). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”
Id. (citing
State v. Smith, 300 N.C. 71, 265 S.E.2d
164 (1980)). “'What is substantial evidence is a question of law
for the court. What that evidence proves or fails to prove is a
question of fact for the jury.'”
State v. Powell, 299 N.C. 95,
101, 261 S.E.2d 114, 119 (1980) (quoting
State v. Stephens,
244 N.C. 380, 383_84, 93 S.E.2d 431, 433_34 (1956)).
“[C]ontradictions and discrepancies [in the evidence] are for the
jury to resolve and do not warrant dismissal; and all of the
evidence actually admitted, whether competent or incompetent, which
is favorable to the State is to be considered by the court inruling on the motion.”
Id. at 99, 261 S.E.2d at 117 (citing
State
v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978);
State v. McKinney,
288 N.C. 113, 215 S.E.2d 578 (1975)).
In other words,
“[i]f the
evidence supports that a reasonable inference of defendant's guilt
may be drawn from the circumstances, then 'it is for the [jurors]
to decide whether the facts, taken singly or in combination,
satisfy them beyond a reasonable doubt that the defendant is
actually guilty.'”
State v. Warren, 348 N.C. 80, 102, 499 S.E.2d
431, 443 (1998) (quoting
State v. Rowland, 263 N.C. 353, 358,
139 S.E.2d 661, 665 (1965)) (alteration in original).
N.C.G.S. § 14-27.5 provides, in part, that “[a] person is
guilty of a sexual offense in the second degree if the person
engages in a sexual act with another person . . . [b]y force and
against the will of the other person . . . .” N.C. Gen. Stat.
§ 14-27.5(a)(1) (2005). “Fellatio is included as a sexual act
within the meaning of the statute.”
State v. Jacobs, 128 N.C. App.
559, 563, 495 S.E.2d 757, 760 (1998) (citing
State v. Baker,
333 N.C. 325, 426 S.E.2d 73 (1993)).
“'The force necessary to meet
the [“by force”] requirement, as explained on numerous occasions by
this Court, need not be physical force but may take the form of
fear, fright or coercion.'”
State v. Berkley, 56 N.C. App. 163,
168, 287 S.E.2d 445, 449 (1982) (citations omitted). “'The mere
threat of serious bodily harm which reasonably induces fear thereof
constitutes the requisite force.'”
Id. at 168, 287 S.E.2d at 449
(citations omitted).
“Threats need not be explicit so long as the
totality of circumstances allows a reasonable inference that suchcompulsion was the unspoken purpose of the threat.
”
Etheridge,
319 N.C. at 45, 352 S.E.2d at 680 (citing
State v. Barnette,
304 N.C. 447, 284 S.E.2d 298 (1981)).
Defendant contends that the totality of the circumstances in
the case
sub judice was insufficient to support the element of
constructive force for the charge of second degree sexual offense.
Defendant argues that he and Mrs. Kohls had a history of domestic
violence and that the events of 23 September 2005 were consistent
with “the norm of their relationship” and did not rise to the level
of constructive force. We do not find defendant's argument
persuasive.
Viewed in the light most favorable to the State, the evidence
in this case was sufficient to submit the charge of second degree
sexual offense to the jury. Defendant and Mrs. Kohls both
testified that defendant grabbed Mrs. Kohls's neck while she sat in
a chair and that they both went to the floor. Both testified that
defendant hit Mrs. Kohls in the back of the head a number of times
while she lay on the floor. There was evidence that defendant sat
on top of Mrs. Kohls while she lay on the floor, and that he choked
her and put his fist on top of her chest so she could not move.
Defendant threatened to cut her face and, alternatively, that he
would pour gasoline on her face and set her on fire. Mrs. Kohls
testified that defendant threatened to kill her if she pressed
charges for the assault. Then, after demanding that she fellate
him, defendant “balled up his fists,” “pressed them into the side
of his chair,” and gave her an “evil look,” causing her to beafraid and to believe she had no choice but to comply with his
demand.
The foregoing evidence is clearly substantial evidence of
constructive force sufficient to withstand defendant's motion to
dismiss the charge of second degree sexual offense and we find no
error in the trial court's denial of the motion.
_________________________
In his remaining assignment of error, defendant contends the
trial court erred by failing to intervene
ex mero motu during the
State's closing argument. Defendant asserts that the prosecutor's
remarks went beyond proper argument and conveyed to the jury the
notion that the citizens of the community were demanding that
defendant be convicted and punished. No objection was interposed
to the prosecutor's argument at trial.
“As a general rule, counsel possess wide latitude 'to argue
the facts which have been presented, as well as reasonable
inferences that may be drawn therefrom.'”
State v. Nicholson,
355 N.C. 1, 42, 558 S.E.2d 109, 137 (2002) (quoting
State v.
Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986));
see also
State v. Graves, 252 N.C. 779, 781, 114 S.E.2d 770, 771 (1960).
“'Whether counsel abuses this privilege is a matter ordinarily left
to the sound discretion of the trial judge . . . .'”
State v.
McNeil, 350 N.C. 657, 685, 518 S.E.2d 486, 503 (1999) (quoting
State v. Covington, 290 N.C. 313, 328, 226 S.E.2d 629, 640 (1976)).
If a defendant fails to object to an adversary's closing arguments,
“'defendant must establish that the remarks were so grossly
improper that the trial court abused its discretion by failing tointervene
ex mero motu.'”
State v. Pulley, 180 N.C. App. 54, 68,
636 S.E.2d 231, 242 (2006) (quoting
State v. Grooms, 353 N.C. 50,
81, 540 S.E.2d 713, 732 (2000)). “Defendant must establish that
the prosecutor's comments 'so infected the trial with unfairness
that they rendered the conviction fundamentally unfair.'”
Id.
Under this standard, “'[o]nly an extreme impropriety on the part of
the prosecutor will compel this Court to hold that the trial judge
abused his discretion in not recognizing and correcting
ex mero
motu an argument that defense counsel apparently did not believe
was prejudicial when originally spoken.'”
Nicholson, 355 N.C. at
42, 558 S.E.2d at 137 (quoting
State v. Richardson, 342 N.C. 772,
786, 467 S.E.2d 685, 693
(1996)) (alteration in original) (internal
quotation marks omitted).
The argument to which defendant now contends the trial court
should have intervened
ex mero motu was as follows:
So one thing that we have learned for certain by
listening to this case and learning about William Kohls
is that if this guy is not stopped, Windy Kohls's days
are numbered. He said what he is going to do, and how,
if he's mad about . . . his wife saying I need some
space, how mad is he now about Windy testifying against
him? His wife. His little woman he likes to control has
gotten up here and told you how it is. How mad is he
now?
But Windy is not our only concern. The citizens of
Wayne County are depending on you. We cannot have this
man out there walking around doing what he does. We
can't have it.
So I'm asking you to please do what you
know is right, what you know the State has proven to you,
and find him guilty.
(Emphasis added.) O
ur Supreme Court has “long held that arguments
are to be evaluated in context.”
State v. Larrimore, 340 N.C. 119,
160, 456 S.E.2d 789, 811 (1995) (citations omitted). While “[t]he
State must not ask the jury 'to lend an ear to the community ratherthan a voice,'”
McNeil, 350 N.C. at 687, 518 S.E.2d at 505 (quoting
State v. Scott, 314 N.C. 309, 312, 333 S.E.2d 296, 298 (1985))
(internal quotation marks omitted), “[i]t is not . . . improper to
remind the jurors that 'they are the voice and conscience of the
community.'”
Id. at 687_88, 518 S.E.2d at
505 (quoting
State v.
Brown, 320 N.C. 179, 204, 358 S.E.2d 1, 18 (1987)).
“Permitting
the jury to act as the voice and conscience of the community is
required because the very reason for the jury system is to temper
the harshness of the law with the 'commonsense judgment of the
community.'”
Scott, 314 N.C. at 311_12, 333 S.E.2d at 298 (quoting
Taylor v. Louisiana, 419 U.S. 522, 530 (1975)).
Employing these standards and considering the remarks in the
context of the entire argument, we do not believe the prosecutor's
argument invited the jurors to ignore the evidence and convict
defendant because the citizens of the community demanded that he be
punished. We do not find the State's argument grossly improper and
hold that the trial court did not abuse its discretion by failing
to intervene
ex mero motu.
Defendant brought forward additional arguments in his brief
directed to assignments of error not contained in the record on
appeal and as to which his motion to amend the record was denied.
Therefore, the arguments are not properly before us and we may not
consider them.
No Error.
Judges STROUD and ARROWOOD concur.
Report per Rule 30(e).
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