Summary
recognizing that voluntary patients have the power to "terminate their stay" as hospital patients
Summary of this case from In re J.L.AOpinion
No. 427PA86
Filed 7 April 1987
1. Rape and Allied Offenses 1 — custodial sexual offense — voluntary patient in private hospital As used in the custodial sexual offense statute, N.C.G.S. 14-27.7, the word "custody" applies to voluntary patients in private hospitals.
2. Rape and Allied Offenses 5 — custodial sexual offenses — sufficiency of evidence The State's evidence was sufficient to support defendant's convictions for engaging in vaginal intercourse with a person over whom defendant's employer had assumed custody and engaging in a sexual act with a person over whom defendant's employer had assumed custody where it tended to show that the female victim was a patient at a private hospital, defendant was employed as a charge nurse at the hospital, and defendant committed the sex acts alleged.
3. Rape and Allied Offense 6 — custodial sexual offense — instruction — housing of hospital patient as custody In a prosecution for engaging in vaginal intercourse and another sexual act with a person over whom defendant's employer had assumed custody, the trial court's instruction that "a medical hospital's housing of a patient would be custody" correctly stated a matter of law and did not remove the jury's duty to find the fact of custody.
4. Criminal Law 26.5 — acquittal of rape and sexual offense — conviction of custodial sexual offenses — no double jeopardy Where defendant was acquitted of second degree rape and his conviction of second degree sexual offense was reversed on appeal for lack of evidence of force, the subsequent conviction of defendant for offenses of engaging in vaginal intercourse and another sexual act with a person over whom defendant's employer had assumed custody based on the same incidents did not violate the double jeopardy provisions of the fifth amendment to the U.S. Constitution and Art. I, 19 of the N.C. Constitution since custodial sexual offense requires proof of custody which second degree rape and second degree sexual offense do not require, and both second degree rape and second degree sexual offense require proof of an act of force which custodial sexual offense does not require.
5. Criminal Law 138.27 — aggravating factor — position of trust or confidence — same evidence for two factors The trial court erred in finding as an aggravating factor for custodial sexual offense that "defendant took advantage of a position of trust or confidence to commit the offense" since the evidence that proved the aggravating factor was necessary to prove the custodial element of the offense, and the finding of the aggravating factor was proscribed by N.C.G.S. 15A-1340.4 (a).
ON discretionary review of a decision of the Court of Appeals, 81 N.C. App. 299, 344 S.E.2d 138 (1986), which found no error in defendant's trial, which resulted in convictions for (1) engaging in vaginal intercourse with a person over whom defendant's employer had assumed custody, and (2) engaging in a sexual act with a person over whom defendant's employer had assumed custody, both acts being found to violate N.C.G.S. 14-27.7. Judgment was entered by Lamm, J., at the 8 July 1985 Regular Criminal Term of Superior Court, BUNCOMBE County. Heard in the Supreme Court 9 February 1987.
Lacy H. Thornburg, Attorney General, by Elisha H. Bunting, Jr., Assistant Attorney General, for the State.
Elmore Powell, P.A., by Bruce A. Elmore, Sr. and Stephen P. Lindsay, for defendant-appellant.
Justice MARTIN dissenting.
Justices FRYE and WEBB join in this dissenting opinion.
The State's evidence, in pertinent part, showed the following:
The victim suffered from migraine headaches so severe that "sometimes [she] would pass out, or most of the time [she] would be extremely . . . nauseated." On the morning of 13 July 1983 the victim went to the emergency room at St. Joseph's Hospital, a private hospital in Asheville, complaining of a migraine headache. She was placed in intensive care later that day when she experienced severe nausea and vomiting. She described her condition as "still vomiting severely and just too weak to move." She was "hooked up" to both "an IV" and a heart monitor.
The victim's husband visited her during the 7:00 p.m. visiting hour. She was vomiting severely at the time. Defendant, a charge nurse employed by the hospital in its intensive care unit, entered the room, administered a shot to the victim and told her it "would take care of [her] vomiting in about 10 minutes."
The victim's husband then left, and the next person the victim saw was defendant. Defendant gave her a back rub and left, but subsequently returned and gave her "an injection in [her] IV" which caused a burning sensation. Approximately ten minutes later defendant returned, inserted his hand into the victim's vagina, and "started pushing harder and harder." He tried to insert his penis "but it didn't go." He "began to rock back and forth" and in a few minutes ejaculated on the victim.
Defendant later returned and administered another injection in the victim's "IV." The victim felt the same burning sensation as before. Defendant left, returned a few minutes later, pulled the victim to the side of the bed, and "inserted his penis." The victim testified: "[T]his time it did go." Defendant "began to rock back and forth again" but was interrupted and left when someone called for him. He subsequently returned and sexually assaulted the victim again. She testified: "He inserted his penis into the vagina and rocked back and forth again for a while."
Visual and microscopic examinations of the victim's nightgown and bedsheets revealed the presence of semen and spermatozoa. An SBI chemist examined the semen. He also examined blood samples from defendant, the victim's husband, and a respiratory therapist who had monitored the victim's oxygen on the night in question. The chemist testified that neither the victim's husband nor the therapist could have contributed the semen found on the victim's nightgown, but that defendant could have.
Defendant testified, denying any sexual contact with the victim. He stated: "I at no time touched [the victim] in any way that was improper or unprofessional." Other hospital personnel testified that they observed nothing unusual in or about the intensive care unit that night, and that nothing unusual was reported to them.
The jury returned verdicts of guilty of (1) engaging in vaginal intercourse with a person over whom defendant's employer had assumed custody, and (2) engaging in a sexual act with a person over whom defendant's employer had assumed custody. N.C.G.S. 14-27.7 (1986). Defendant appealed from judgments of imprisonment for four years on each count. The Court of Appeals found no error in the trial, but remanded for resentencing. This Court allowed discretionary review on 12 August 1986.
First, defendant contends the trial court erred in denying his motions to dismiss and to set aside the verdict. He argues that the State failed to prove that his employer, St. Joseph's Hospital, had custody of the victim. We disagree.
The statute under which defendant was convicted provides:
[I]f a person having custody of a victim of any age or a person who is an agent or employee of any person, or institution, whether such institution is private, charitable, or governmental, having custody of a victim of any age engages in vaginal intercourse or a sexual act with such victim, the defendant is guilty of a Class G felony. Consent is not a defense to a charge under this section.
N.C.G.S. 14-27.7 (1986). Defendant contends that the custodial relationship, which is an element of the offense created by this statute, cannot exist between a private hospital and its patient because the patient voluntarily submits to the hospital's care and control and thus can leave or refuse treatment at any time. Defendant would limit the meaning of the word "custody," as used in the statute, to legal control or restraint.
We do not believe the General Assembly intended such a narrow construction. Words in a statute generally must be construed in accordance with their common and ordinary meaning, unless a different meaning is apparent or clearly indicated by the context. State v. Koberlein, 309 N.C. 601, 605, 308 S.E.2d 442, 445 (1983). The ordinary meaning of the word "custody" is not limited to legal control or restraint. The word's definitions include an aspect of care, preservation, and protection as well. See Burton, Legal Thesaurus 131 (1980) ("care, charge, control"); Black's Law Dictionary 347 (5th ed. 1979) (the "care and control of a thing or person"); Webster's New International Dictionary (3d ed. unabridged 1964) (the "act or duty of guarding and preserving"). Voluntary patients in a private hospital place themselves in the care, charge, and control of the institution. The normal role of the hospital is to guard, preserve, and restore the health of patients who are in its care, charge or control. We thus conclude that the ordinary meaning of the word "custody," in the context in which it is used here, applies to voluntary patients in a private hospital.
As further indication of legislative intent, we note that the statute expressly applies to "any" private institutions. Because patients in private institutions generally are voluntary admittees, the General Assembly must have intended — by the express, unlimited inclusion of such institutions — to extend the protection of the statute to those patients.
Further, the purpose of the statute — prevention of sexual abuse by institutional personnel of persons in an institution's care — is no less applicable, nor is such abuse of a position of trust less reprehensible, in a private hospital-voluntary patient context than otherwise. While voluntary patients in private hospitals may have the legal power to terminate their stay, in reality their physical freedom is normally restricted by the condition that motivated their admission. Such restraint is not dissimilar from that imposed on a penal institution inmate or an involuntarily committed patient. As stated by the Court of Appeals:
[V]oluntary patients need the protection that the statute provides no less than committed patients; for . . . while they remain as patients of a hospital they are as vulnerable as committed patients to abuse by employees who have ready access to their quarters and supply them with food, drink, medication, assistance, and other necessary care.
State v. Raines, 81 N.C. App. at 302, 344 S.E.2d at 140.
In adopting this construction we are not unmindful that "criminal statutes are to be strictly construed against the State." State v. Glidden, 317 N.C. 557, 561, 346 S.E.2d 470, 472 (1986). However,
[t]he object in construing penal, as well as other statutes, is to ascertain the legislative intent. . . . The words must not be narrowed to the exclusion of what the legislature intended to embrace. . . . When the words . . . include various classes of persons, there is no authority which would justify a court in restricting them to one class and excluding others, where the purpose of the statute is alike applicable to all. The proper course in all cases is to adopt that sense of the words which best harmonizes with the context, and promotes in the fullest manner the policy and object of the legislature. The rule of strict construction is not violated by permitting the words of [a] statute to have their full meaning, or the more extended of two meanings, . . . but the words should be taken in such a sense, bent neither one way nor the other, as will best manifest the legislative intent.
United States v. Hartwell, 73 U.S. (6 Wall.) 385, 395-96, 18 L.Ed. 830, 832-33 (1868).
The canon in favor of strict construction [of criminal statutes] is not an inexorable command to override common sense and evident statutory purpose. . . . Nor does it demand that a statute be given the "narrowest meaning"; it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers.
United States v. Brown, 333 U.S. 18, 25-26, 92 L.Ed. 442, 448 (1948).
We conclude that to construe the word "custody," as used in N.C.G.S. 14-27.7, to apply to voluntary patients in a private hospital gives the word its "fair meaning in accord with the manifest intent of the lawmakers." Id. We thus reject defendant's contention.
On a motion to dismiss for insufficiency of the evidence, the question for the trial court is whether there is substantial evidence of each element of the crime charged and of the defendant's perpetration of such crime. State v. Young, 312 N.C. 669, 680, 325 S.E.2d 181, 188 (1985). The court must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. Id. Here the State presented uncontroverted evidence that the female victim was a patient at St. Joseph's Hospital at the time of the incidents alleged. She thus was in the hospital's "custody" within the meaning and intent of that word as used in N.C.G.S. 14-27.7. There was also substantial evidence that defendant was an employee of the hospital and that he committed the sex acts alleged. The motions to dismiss and to set aside the verdict thus were properly denied. This assignment of error is overruled.
Second, defendant contends the trial court erred in instructing the jury that "[a] medical hospital's housing of a patient would be custody." He argues that this instruction impermissibly relieved the State of its burden of proving beyond a reasonable doubt an essential element of the crime, viz, custody. See In re Winship, 397 U.S. 358, 25 L.Ed.2d 368 (1970); State v. Torain, 316 N.C. 111, 112-23, 340 S.E.2d 465, 468-72, cert. denied, ___ U.S. ___, 93 L.Ed.2d 77 (1986).
While the presence or absence of custody is a question of fact, whether the hospital-patient relationship constitutes custody within the meaning and intent of N.C.G.S. 14-27.7 is one of law. We have held above that the legal conclusion stated in the instruction is correct. No presumption is created when the trial court fulfills its duty of declaring a matter of law. State v. Torain, 316 N.C. at 123, 340 S.E.2d at 472. "Presumptions may potentially arise only as to certain `elemental' questions of fact and have no applicability to the trial court's resolution of questions of law." Id. This assignment of error is thus overruled.
Third, defendant contends that his conviction violates the double jeopardy provisions of the fifth amendment to the United States Constitution and Article I, Section 19, of the North Carolina Constitution. See State v. Revelle, 301 N.C. 153, 162, 270 S.E.2d 476, 481 (1980); State v. Birckhead, 256 N.C. 494, 496-97, 124 S.E.2d 838, 841 (1962) (double jeopardy principle regarded as integral part of "law of the land" clause of state constitution). He argues that he had been tried previously for second-degree rape (N.C.G.S. 14-27.3) and second-degree sexual offense (N.C.G.S. 14-27.5) based on the incidents alleged in the indictment here. He was acquitted of second-degree rape but convicted of second-degree sexual offense. The Court of Appeals reversed the conviction, however, on the ground that there was no evidence of the essential element of force. State v. Raines, 72 N.C. App. 300, 324 S.E.2d 279 (1985).
Traditionally, the United States Supreme Court has applied what has been referred to as the Blockburger test in analyzing multiple offenses for double jeopardy purposes. The opinion in Blockburger v. United States, 284 U.S. 299, 304, 76 L.Ed. 306, 309 (1932), stated:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
If what purports to be two offenses actually is one under the Blockburger test, double jeopardy prohibits successive prosecutions, Brown v. Ohio, 432 U.S. 161, 53 L.Ed.2d 187 (1977); Harris v. Oklahoma, 433 U.S. 682, 53 L.Ed.2d 1054 (1977); Illinois v. Vitale, 447 U.S. 410, 65 L.Ed.2d 228 (1980)
State v. Gardner, 315 N.C. 444, 454, 340 S.E.2d 701, 708-09 (1986). Second-degree rape and second-degree sexual offense require an act by force and against the will of another person. N.C.G.S. 14-27.3, -27.5 (1986). Custodial sexual offense does not. N.C.G.S. 14-27.7 (1986). Custodial sexual offense requires that the perpetrator, or the perpetrator's principal or employer, have custody of the victim. Id. Second-degree rape and second-degree sexual offense do not. N.C.G.S. 14-27.3, -27.5 (1986). Custodial sexual offense thus requires proof of a fact which second-degree rape and second-degree sexual offense do not, and both second-degree rape and second-degree sexual offense require proof of a fact which custodial sexual offense does not. Double jeopardy considerations thus are not implicated.
Defendant argues that the trial court's instruction that "[a] medical hospital's housing of a patient would be custody" removes custody as an element of the custodial sexual offense, and thereby invokes double jeopardy principles. The argument is without merit. As held above, this instruction stated a matter of law; it did not remove the jury's duty to find the fact of custody. This assignment of error is overruled.
Finally, the State, as appellee, argues pursuant to N.C.R. App. P. 16 (a) that the Court of Appeals erred in remanding the case for resentencing. The trial court found as an aggravating factor that "[t]he defendant took advantage of a position of trust or confidence to commit the offense." See N.C.G.S. 15A-1340.4 (a)(1)(n) (1983). We agree that this was error. "Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation . . . ." N.C.G.S. 15A-1340.4 (a) (1983). Under the facts here a showing of a relationship of trust and confidence was needed to prove the custodial element of the offense. The evidence that proved the aggravating factor thus was necessary to prove the custodial element of the offense, and the finding of the aggravating factor was proscribed by N.C.G.S. 15A-1340.4 (a) (1983).
For the foregoing reasons, the decision of the Court of Appeals is affirmed. The case is remanded to that Court for further remand to the trial court for sentencing of the defendant not inconsistent with this opinion.
Affirmed.