Opinion
No. 07-1567.
Filed 15 July 2008.
Jackson County No. 06 CRS 51541.
Appeal by defendant from judgment entered 17 May 2007 by Judge Dennis J. Winner in Jackson County Superior Court. Heard in the Court of Appeals 30 June 2008.
Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State. Crumpler Freedman Parker Witt, by Vincent F. Rabil, for defendant-appellant.
Defendant Bruce D. McDonald appeals from a judgment entered upon a jury verdict finding him guilty of second degree rape. For the following reasons, we find no error.
The State's evidence tended to show that on the evening of 9 June 2006, the victim C.A.L. drove to the residence of her friend, Sam Howell, to pay respects upon the death of his mother. C.A.L. spoke with Howell and his brothers and gave them her condolences. C.A.L. saw defendant, whom she had met briefly a month before at Howell's friend's house, and said, "Hey." During the evening, C.A.L. smoked a small amount of crack cocaine in her 1982Oldsmobile. C.A.L. left the gathering to go home a little after midnight.
C.A.L. drove down the road and started to go through the parking lot of a hospital. Defendant flagged her down, asked her for a ride home, and she agreed. Defendant sat in the front bench seat of the 1982 Oldsmobile. C.A.L. followed his directions up one road and down another until they arrived at his house. C.A.L. pulled off to the side of the road and waited for defendant to get out of her car. Defendant suddenly grabbed her by the arm and leg and pulled her around on the front seat of the car. Defendant told her he was not going to hurt her. C.A.L. told defendant to stop. Defendant then pulled C.A.L.'s pants down, held her legs open with his hand and put his penis inside her vagina. C.A.L. begged defendant to stop. Once defendant got on top of C.A.L., she could not get him off of her. Defendant repeatedly told her that he would not hurt her. After defendant ejaculated, he put his clothes on and left. C.A.L. testified at trial that she has been a lesbian her "whole life" and did not consent to have sex with defendant.
C.A.L. drove around for a while and then went to the hospital near her home. Officer John Buchanan of the Sylva Police Department responded to the rape allegation on the morning of 10 June 2006. Officer Buchanan observed C.A.L. was crying and breathing hard. C.A.L. told the officer that she stopped to give the defendant a ride home, that when they got to his house, defendant grabbed her, pulled her legs out from underneath the steering wheel, and raped her while she told him to stop. The officer observed bruises on both C.A.L.'s left and right arms, and took pictures of the bruises. The photographs of the bruises were admitted into evidence at trial.
Upon a search of C.A.L.'s Oldsmobile, a sample of male ejaculate was taken from the front seat and sent to the SBI for testing. An SBI agent determined that the sample matched defendant's DNA. When arrested, defendant waived his Miranda rights and told police that he got a ride from C.A.L., they rode around for a while and smoked crack, and she played with herself, but he did not have sex with her.
A jury found defendant guilty of second degree rape and the trial court sentenced him to 84 to 110 months imprisonment. Defendant appeals.
Defendant contends the trial court erred in denying his motion to dismiss the charge of second degree rape based on insufficiency of the evidence. Defendant asserts the State failed to offer substantial evidence of either actual or constructive force to commit rape. We disagree.
The standard for ruling on a motion to dismiss "is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence "in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence." State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). "Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal." State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
To establish the crime of second-degree rape, the State must prove the defendant "engage[d] in vaginal intercourse with another person by force and against the will of the other person[.]" N.C. Gen. Stat. § 14-27.3(a)(1) (2007). The element of "[b]y force and against the will of the other person" used in the second-degree rape statute is present where there is evidence of force "sufficient to overcome any resistence the victim might make." State v. Brown, 332 N.C. 262, 267, 420 S.E.2d 147, 150 (1992). "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. Scott, 323 N.C. 350, 354, 372 S.E.2d 572, 575 (1988). Our Supreme Court has held that "[c]onstructive force is demonstrated by proof of threats or other actions by the defendant which compel the victim's submission to sexual acts. Threats need not be explicit so long as the totality of circumstances allows a reasonable inference that such compulsion was the unspoken purpose of the threat." State v. Etheridge, 319 N.C. 34, 45, 352 S.E.2d 673, 680 (1987) (citation omitted). Here, C.A.L. testified that defendant "grabbed her" and "pulled her", that she told defendant, "[p]lease stop", that defendant got on top of her; that she tried to resist, but defendant was "too big" and she "couldn't get him off." C.A.L. testified, "[h]e wouldn't stop and I begged [him] to stop." Officer Buchanan testified that when he arrived at the hospital, C.A.L. was "very distraught" and "very upset" and that he observed visible bruising on C.A.L.'s arms.
We conclude that the State's evidence was sufficient that a jury reasonably could have concluded that, under the circumstances, the defendant's actions amounted to a threat of force sufficient to overcome any resistance of the victim. As such, the evidence was sufficient to support defendant's conviction for second-degree rape. This assignment of error is overruled.
Defendant also contends the trial court erred in instructing the jury on actual and constructive force in its second degree rape. During its charge to the jury, the trial court instructed on the element of force as follows:
Second, the defendant used or threatened to use force sufficient to overcome any resistance the victim may make. The force necessary to constitute rape need not be actual force. Fear or coercion may take the place of physical force.
Defendant did not object to the trial court's instructions and, therefore, asks this Court to review for plain error. The North Carolina Supreme Court has chosen to review such "unpreserved issues for plain error when . . . the issue involves either errors in the trial judge's instructions to the jury or rulings on the admissibility of evidence." State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d 550, 563 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998). Plain error arises when the error is "`so basic, so prejudicial, so lacking in its elements that justice cannot have been done.'" State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). Defendant, therefore, "must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). As previously discussed, the State presented sufficient evidence to support a finding of actual force and defendant cannot show that the jury would have reached a different result if it had not been instructed on constructive force. Accordingly, the trial court did not commit plain error in its instruction to the jury on the charge on second degree rape.
No error.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).