Opinion
No. COA07-584.
Filed February 19, 2008.
Randolph County No. 05 CRS 80738.
Appeal by defendant from judgment entered 8 May 2006 by Judge Michael E. Helms in Guilford County Superior Court. Heard in the Court of Appeals 28 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State. Adrian M. Lapas, for defendant-appellant.
William Spencer Pass ("defendant") appeals from his judgment entered upon a jury verdict finding him guilty of two counts of second-degree rape. We find no error.
The State presented the following pertinent evidence: In the Fall of 2004, Carla Andrews ("Ms. Andrews") arranged for treatment of her crack cocaine addiction at Oxford House, a live-in drug rehabilitation center in Greensboro, North Carolina. As a condition for treatment, Ms. Andrews had to remain drug free for fourteen days; therefore, she attended Narcotics Anonymous ("NA") meetings. Because Ms. Andrews needed a place to live prior to moving into Oxford House, she stayed with her NA sponsor, Deborah DeBandy ("Ms. DeBandy"). In early November 2004, Ms. Andrews and Ms. DeBandy attended a NA convention together in Myrtle Beach, South Carolina. During their stay at a motel, Ms. Andrews took the clock radio from the motel room without permission. When Ms. DeBandy discovered Ms. Andrews took the clock radio, she informed Ms. Andrews that she could no longer stay with Ms. DeBandy. Ms. DeBandy helped Ms. Andrews find another place to stay for a few days while Ms. Andrews tried to remain drug free to qualify for treatment at Oxford House. Ms. DeBandy introduced Ms. Andrews to her friend, the defendant, whom Ms. Andrews had previously seen at NA meetings. A breakfast meeting was arranged at defendant's apartment to determine if it was suitable for Ms. Andrews to stay with him until she moved into Oxford House. During breakfast, it was agreed that Ms. Andrews would stay at defendant's apartment for a few days.
Later that evening, after Ms. Andrews arrived at defendant's apartment and they ate take-out food, defendant asked for a hug. While they hugged, according to Ms. Andrews, defendant tried to kiss her. She resisted and explained that she was not ready for anything like that. Defendant apologized, got up from the kitchen table and went to the bathroom. When defendant returned, he had a marijuana joint ("the joint") and offered it to Ms. Andrews. Ms. Andrews declined the offer and defendant smoked about half of the joint.
They left the kitchen, went to the living room and sat on the couch. While sitting on the couch, defendant put his arm around Ms. Andrews and tried to kiss her. Ms. Andrews told defendant she considered him just a friend. At this point, Ms. Andrews felt uneasy, stepped outside the apartment, and tried to call Ms. DeBandy and two co-workers on her cellular phone. She was unable to reach anyone. After Ms. Andrews sat outside awhile, defendant came outside, was apologetic, and promised it would not happen again. Both of them went back inside defendant's apartment and continued to talk. Eventually, Ms. Andrews fell asleep on defendant's couch.
Ms. Andrews subsequently awoke to find defendant kneeling in front of her with one hand on her leg and his other hand up her shirt. Defendant wore only his undershirt and underwear underneath an open bathrobe. Ms. Andrews pushed defendant away. Defendant hit her twice on the head with his fist, directed her to stand up, and started taking off her shirt. As Ms. Andrews began to cry, defendant grabbed her by the waist, forced her into his bedroom, removed her underwear and his clothes, and pushed her onto the bed. Defendant told Ms. Andrews to stop crying. Ms. Andrews pleaded with him to stop, and defendant responded that "he knew [she] wanted him to." He told Ms. Andrews to open her legs, and then he inserted his penis into her vagina but had trouble getting an erection. After approximately twenty minutes, defendant stopped, at which point Ms. Andrews saw that he was wearing a condom.
As a tactic to get away, Ms. Andrews asked permission to retrieve her cigarettes in the living room. Defendant refused to allow her to do so. Instead, he retrieved the cigarettes, but took Ms. Andrews' cigarette from her after she smoked only half of it, and told her to turn over. Defendant grabbed Ms. Andrews' right breast particularly hard, leaving it bruised. Defendant then positioned Ms. Andrews up on her hands and knees, and again penetrated her vagina from behind. Defendant instructed Ms. Andrews to tell him it felt good, but she could not stop crying. Defendant hit Ms. Andrews in the back of the head, pushing her head down. After approximately ten to fifteen minutes, defendant stopped, rolled over, and fell asleep.
After defendant fell asleep, Ms. Andrews grabbed her belongings and ran outside. She called 911 and told the operator she had been raped. When officers from the Greensboro Police Department ("GPD") arrived at the scene, they found Ms. Andrews crying, upset, and nervous. One of the officers transported Ms. Andrews to the hospital where she was administered a rape kit and examined by a doctor and a forensic nurse examiner. After arriving at the scene, the officers entered defendant's residence, where they found him asleep on his bed. He was naked and still had a condom on his penis. Defendant acknowledged to the police officers that he had sexual intercourse with Ms. Andrews but that the intercourse was consensual.
Defendant was charged with two counts of second-degree rape. At trial, in Guilford County Superior Court, before The Honorable Michael E. Helms ("Judge Helms"), evidence was presented that defendant had several mental disorders. On Monday morning, after the weekend trial recess, defendant was not present in court. Judge Helms learned, that on the previous Sunday evening, defendant reported to the Veterans Administration ("VA") Hospital in Durham for treatment of his mental instability. Due to lack of space at the VA Hospital in Durham, defendant was transported to the VA Hospital in Salisbury. The trial court then excused the jury for the remainder of the day while awaiting a report on defendant.
On Thursday, 4 May 2006, several days after defendant's release from the Salisbury VA Hospital, he was present in court with his attorney. Defendant told the court that he was ready to re-take the witness stand and to move forward with the trial. The jury returned guilty verdicts for both counts of second-degree rape. Judge Helms sentenced defendant to a minimum of 100 months to a maximum of 129 months in the North Carolina Department of Correction. Defendant appeals.
On appeal, defendant argues the trial court erred in (i) failing to hold a competency hearing to ensure that defendant was competent because defendant was involuntarily committed during trial and (ii) denying defendant's motion to dismiss where insufficient evidence was presented that defendant used force sufficient to overcome the victim's will.
I. Incompetency hearing
Defendant first argues that because he was involuntarily committed during trial and substantial evidence existed that he lacked the mental capacity to proceed at trial, the court erred in failing to hold a competency hearing. We disagree.
We first address defendant's contention that he was involuntarily committed during trial. Pursuant to N.C. Gen. Stat. § 122C-262 (2006), for a "physician or eligible psychologist" to involuntarily commit a patient to a hospital, a written certification before an official authorized to administer oaths must state the reason the individual needs to be immediately hospitalized. In addition:
[t]he physician or eligible psychologist shall send a copy of the certificate to the clerk of superior court. . . . If it cannot be reasonably anticipated that the clerk will receive the copy within 24 hours, excluding Saturday, Sunday, and holidays, of the time that it was signed, the physician or eligible psychologist shall also communicate the findings to the clerk by telephone.
Id.
Pursuant to N.C. Gen. Stat. § 122C-332 (2006), "Veterans Administration facilities may be used for [involuntary commitment] pending a district court hearing[.]" In contrast, N.C. Gen. Stat. § 122C-331 (2006) addresses a patient's voluntary admission into a hospital. N.C. Gen. Stat. § 122C-331 states, "Veterans in need of treatment for mental illness or substance abuse may seek voluntary admission to a facility operated by the Veterans Administration."
In the instant case, there is no evidence in the record to indicate defendant was involuntary committed to either the Durham or Salisbury VA Hospital. There is also no evidence in the record to show a district court hearing was held. Nor does the record show where a "physician or eligible psychologist" sent a copy of a certificate to the courtroom clerk stating the reasons defendant was involuntarily hospitalized. See N.C. Gen. Stat. § 122C-332; N.C. Gen. Stat. § 122C-262. There is no evidence in the record indicating defendant was involuntarily committed. Instead, it appears defendant sought and received a voluntary admission to the VA Hospital.
Even though it appears defendant was voluntarily admitted to the VA Hospital, we must address defendant's argument that he was denied his due process rights because he claims the trial court failed to conduct a competency hearing.
It is well-established, pursuant to the Due Process Clause of the United States Constitution, that "[a] criminal defendant may not be tried unless he is competent." Godinez v. Moran, 509 U.S. 389, 396, 125 L. Ed. 2d 321, 330 (1993); see also Drope v. Missouri, 420 U.S. 162, 43 L. Ed. 2d 103 (1975); Cooper v. Oklahoma, 517 U.S. 348, 134 L. Ed. 2d 498 (1996). Pursuant to N.C. Gen. Stat. § 15A-1001 (2006):
(a) No person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings, or to assist in his defense in a rational or reasonable manner.
Id.
"[A] trial court has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent." State v. Heptinstall, 309 N.C. 231, 236, 306 S.E.2d 109, 112 (1983) (alteration in original) (internal quotation omitted). a trial judge is required to hold a competency hearing when there is a bona fide doubt as to the defendant's competency even absent a request. Evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant to a bona fide doubt inquiry.
State v. Staten, 172 N.C. App. 673, 678, 616 S.E.2d 650, 654-55 (2005).
In Staten, this Court addressed whether defendant was competent to stand trial for first-degree felony murder and armed robbery. Id., 172 N.C. App. at 676, 616 S.E.2d at 653. While the Court found "defendant suffered from mental retardation and intellectual deficiencies throughout his life, and experienced periods of intermittent mental illness which was based in a delusional belief system," the Court nonetheless determined defendant was competent to stand trial. Id., 172 N.C. App. at 683, 616 S.E.2d at 657. In determining defendant was competent to stand trial, this Court reasoned:
defendant took the stand willingly in his own, defense and testified clearly to the events leading up, to Boone's death. He exhibited proper courtroom, decorum and a desire to cooperate in the process. In, his testimony, defendant tried to convince the court, and the jury that his hallucinations were real, denying all criminal culpability throughout, and, apologizing when his explanations were too lengthy.
Id., 172 N.C. App. at 683-84, 616 S.E.2d at 657.
In the instant case, on Friday, 28 April 2006, defendant began testifying. At the end of the day, the State had not finished with defendant's cross-examination, and court recessed for the weekend. When court reconvened at 9:45 a.m. on Monday, 1 May 2006, neither defendant nor defense counsel were present in court. During the morning court session, defense counsel entered the courtroom and reported to the court that he learned from defendant's cousin defendant had an "episode" over the weekend. Defense counsel further stated that defendant was admitted to the VA Hospital in Durham on Sunday evening. However, because the VA Hospital in Durham lacked bed space, defendant was transferred to the VA Hospital in Salisbury on Monday, 1 May 2006. At the Salisbury VA Hospital, the doctor ordered various tests to determine defendant's emotional stability. When the doctor determined defendant was fit to be released, he was released to the custody of the Guilford County Sheriff on Wednesday, 3 May 2006.
On Thursday, 4 May 2006, defendant and his defense counsel were present in court. Defense counsel told the court, "I talked to [defendant] in the jail yesterday and he's ready to retake the witness stand and finish this thing up." In addition, defendant's counsel never expressed any opinion or concern that defendant was incompetent to proceed with trial.
On cross-examination, defendant testified that he was diagnosed and treated for schizophrenia. He testified that he currently was taking medications for his illness, and he coherently listed and gave the dosages for his medications. He also testified that he took medication for schizophrenia on a regular schedule in November of 2004 and took it on the night of the incident. Regarding the incident, defendant testified that he never prevented Ms. Andrews from leaving the bedroom, that he did not force her to open her legs, or force her to lay back on the bed. Defendant also denied hitting Ms. Andrews. Defendant's testimony essentially conveyed a defense to second-degree rape, the crime for which he was being tried. Thus, defendant's testimony demonstrates that defendant understood the nature of the offense with which he was charged and was aware of the defense that should be asserted. Defendant also showed an awareness of the consequences of the trial proceedings when he testified that, if the jury found him guilty, he would lose his VA benefits.
Nevertheless, during trial, when defendant was questioned, his responses could be characterized as unusual and nonsensical. Defendant testified:
Q: What you're basically telling the jury is that, you fell off the wagon and smoked some marihuana, [sic]?
A: Yeah. For the first in six years.
Q: All right. And what happened after that?
A: Okay, Well, actually I been married. I just, got my divorce in 1999. I had never lived with, another woman besides my wife.
Defendant also described happiness as "a pink cloud." The trial court noted that defendant "didn't seem stable on the witness stand," and that defendant "said a lot of things that a sane person with any sense wouldn't say." However, the trial court also articulated "suspicion that [defendant] contrived" the mental episode.
Although some of defendant's trial testimony included rambling, irrelevant statements, and nonsensical answers, there is insufficient evidence to show "a bona fide doubt as to the defendant's competency." Staten, 172 N.C. App. at 678, 616 S.E.2d at 654-55. Defendant's testimony revealed he understood the nature of his charges. Moreover, the record does not contain defendant's medical records from the VA Hospital, but defendant's doctor at the Salisbury VA Hospital apparently believed defendant was sufficiently competent and fit to be released from the hospital. Accordingly, after a review of the whole record, we determine the evidence shows defendant had the capacity to stand trial, and since the trial court was not required to hold a competency hearing, the defendant was not denied due process. This assignment of error is overruled.
II. Motion to dismiss
Defendant next argues the trial court erred in denying defendant's motion to dismiss. Defendant contends the State presented insufficient evidence that defendant used force sufficient to overcome the victim's will. We disagree.
Our review of the trial court's denial of defendant's motion to dismiss is as follows:
In ruling on a motion to dismiss, the trial court is to consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from that evidence. The trial court must determine if the State has presented substantial evidence of each essential element of the offense. Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion.
State v. Teel, 180 N.C. App. 446, 450, 637 S.E.2d 288, 290-91 (2006) (internal quotation marks omitted) (citations omitted). "Evidentiary contradictions and discrepancies are for the jury to resolve and do not warrant dismissal." State v. Garcia, 358 N.C.382, 413, 597 S.E.2d 724, 746 (2004) (internal quotation marks omitted) (citation omitted).
A person is guilty of second-degree rape when "the person engages in vaginal intercourse with another person . . . [b]y force and against the will of the other person[.]" N.C. Gen. Stat. § 14-27.3(a)(1) (2006). "Each act of forcible vaginal intercourse constitutes a separate rape." State v. Owen, 133 N.C. App. 543, 551-52, 516 S.E.2d 159, 165 (1999). 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 constructive 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) (citations omitted).
In the instant case, Ms. Andrews testified that when she awoke on the couch, she found defendant touching her leg and placing his hand up her shirt. After she awoke and found him touching her, Ms. Andrews screamed and pushed defendant away from her. Defendant then hit Ms. Andrews twice on the side of her head, once on each side of her head. When defendant hit Ms. Andrew's head, he had his hand balled up in a fist. After defendant hit Ms. Andrews, she "begged [defendant] to please not do that" because she "thought that he was going to make me have sex with him." Defendant then told Ms. Andrews to stand up and ordered her to lift her arms. Ms. Andrews testified she obeyed him because she "was afraid" and "didn't know what [defendant] would do if [she] didn't do what [defendant] told [her] to do." As defendant led Ms. Andrews down the hallway into the bedroom, Ms. Andrews was crying and defendant told her to "quit crying."
Ms. Andrews testified that when they got to the bedroom, defendant pushed her chest area and she fell back onto the bed. She begged defendant to "please please not to do this." Defendant told Ms. Andrews to "be quiet" and "to open [her] legs." Defendant then inserted his penis into Ms. Andrews' vagina. During intercourse, Ms. Andrews was crying. Defendant told her to "shut up and moan."
After defendant finished, Ms. Andrews told defendant she wanted to retrieve her cigarettes that were in the living room in order to create a diversion and leave the apartment. However, defendant did not allow Ms. Andrews to retrieve her cigarettes, but instead retrieved them himself. After allowing Ms. Andrews to smoke only half of the cigarette, defendant ordered Ms. Andrews to roll over, at which time he grabbed her breasts. Defendant grabbed Ms. Andrews' right breast "really hard and just squeezed it." Ms. Andrews testified defendant's action left her right breast bruised. Defendant then positioned Ms. Andrews up on her hands and knees, and again penetrated her vagina, this time from behind. Defendant told Ms. Andrews to tell him it felt good, but she could not stop crying. Because Ms. Andrews was crying and could not tell defendant that it felt good, defendant hit her in the back of her head with his palm. He then pushed her head down in order to get her attention. After defendant hit her and pushed her head down, Ms. Andrews then told defendant it felt good. Defendant stopped intercourse after approximately ten to fifteen minutes, rolled over, and went to sleep.
After waiting five minutes, Ms. Andrews grabbed her belongings, called 911, and told the 911 operator she had been raped. Officer D. T. Sims of the GPD, testified that when he arrived on the scene, Ms. Andrews was upset, distraught, and crying. An officer transferred Ms. Andrews to Moses-Cone Hospital in Greensboro, where she was administered a rape kit, spoke with a rape-crisis counselor, and was examined by and treated by a forensic nurse examiner, Connie White-Harris ("Ms. White-Harris"), and a doctor. According to Ms. White-Harris' testimony, Ms. Andrews' forensic examination revealed that she had abrasions on the opening of her vaginal area that were "very consistent" with forcible intercourse. Ms. White-Harris testified that Ms. Andrews also had blue to purple areas on her right breast and some tenderness to the side of her head. Ms. White-Harris also testified that Ms. Andrews' injuries to her right breast and the side of her head were consistent with her description of how these injuries had occurred.
Officer Lauren J. Lewis ("Officer Lewis") of the GPD testified that she arrived on the scene after Ms. Andrews called 911. After arriving on the scene, Officer Lewis, along with other GPD officers, entered defendant's apartment, where they found him asleep and naked on his bed with a condom still on his penis. Defendant told Officer Lewis that they ate dinner, smoked marijuana, and began kissing and hugging. Defendant told Officer Lewis that they took their clothes off in the living room and Ms. Andrews told defendant "I don't know you well enough to do this." Defendant also told Officer Lewis that "you know women resist a little."
Therefore, when we review "the evidence in the light most favorable to the State," we conclude that the State's evidence was sufficient for the jury to find that the victim, Ms. Andrews, was afraid defendant would hurt her if she resisted him. Teel, 180 N.C. App. at 450, 637 S.E.2d at 290-91. Furthermore, we determine a jury reasonably could have concluded that, under the circumstances, the defendant's words and 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 both charges of second-degree rape. This assignment of error is overruled.
The record on appeal includes additional assignments of error which are not addressed by defendant in his brief to this Court Pursuant to N.C.R. App. P. 28(b)(6) (2006), we deem them abandoned and need not address them.
No error.
Judges HUNTER and STROUD concur.
Report per Rule 30(e).