Opinion
No. COA05-1120.
Filed September 5, 2006.
Sexual Offenses — crime against nature — juvenile — public place
There was no error in applying the crime against nature statute to a minor where the act was committed in a car in a bowling alley parking lot. The crime against nature statute remains applicable to minors and to public conduct. Other statutes involving sexual acts by minors which require a greater age difference than found here were placed within the statutes in such a way that in pari materia construction is not required.
Judge ELMORE dissenting.
Appeal by respondent-juvenile from an adjudication order entered 15 February 2005 by Judge G. Wayne Abernathy in Alamance County District Court. Heard in the Court of Appeals 22 March 2006.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Amy C. Kunstling, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for respondent-appellant.
Respondent appeals from an order adjudicating him delinquent for violating North Carolina's crime against nature statute, North Carolina General Statutes, section 14-177. The pertinent facts are as follows: O.P.M., a female juvenile, testified that her date of birth was 26 April 1991. O.P.M. said that she had known respondent for two or three years, going back to the sixth grade. She testified that they dated during her sixth grade year and through the next year. O.P.M. and respondent broke up during O.P.M.'s seventh grade year. When they were dating, respondent would come to the bowling alley to see O.P.M. while her parents bowled.
O.P.M. testified that she had a sexual relationship with respondent while they were dating. She and respondent had sexual intercourse in the back seat of O.P.M.'s mother's Suburban when it was parked in the bowling alley parking lot and O.P.M.'s parents were inside bowling. O.P.M. gave respondent a "blow job" on two occasions, by which she meant respondent put his penis in her mouth. O.P.M. stated that the last time she had sexual relations with respondent was about a year and a half before the hearing. At the time of the hearing, December 2004, O.P.M. was thirteen years old.
In October 2004, over one year after respondent and O.P.M. broke up, Detective Bobby Baldwin of the Alamance County Sheriff's Office was investigating a fight between O.P.M. and another student. Detective Baldwin learned of the alleged sexual activity at this time. O.P.M. gave respondent's name, and Detective Baldwin contacted respondent's mother by phone and asked her to have respondent call him. Respondent returned the call and agreed to come to the Alamance County Sheriff's Office at 9:00 a.m. on 14 October 2004.
Respondent arrived at the sheriff's office accompanied by his mother. Respondent stated that he was sixteen years old and that his date of birth was 1 June 1988. Detective Baldwin testified that defendant stated O.P.M. had given him a blow job and that these activities took place "probably near May and June, 2002, 2003." Detective Baldwin stated that he thought respondent indicated the blow job occurred two or three times.
The instant case was heard on 20 December 2004 and 6 January 2005 before Judge G. Wayne Abernathy in Alamance County District Court based upon three juvenile petitions. Each petition alleged that, between 1 July and 31 August 2003, respondent committed the offense of crime against nature with O.P.M. At trial, O.P.M. testified that she gave respondent a blow job only twice. Accordingly, the court dismissed one of the three petitions at the close of the evidence. In an order entered 15 February 2005, the court adjudicated respondent delinquent for committing two counts of crime against nature. The court also entered a juvenile disposition order, placing respondent on six months of unsupervised probation and ordering that respondent have no contact with O.P.M. Respondent appeals.
On appeal, respondent argues that North Carolina's crime against nature statute is unconstitutional as applied in his case because the legislature could not have intended to criminalize non-procreative consensual relations between minors less than three years apart in age, while failing to criminalize procreative relations between the same minors. We disagree and find no error in the verdict below.
The crime against nature statute has a long history in North Carolina. In 1819, the "vice of buggery" was reported as being in force in this State and had been illegal in England since the reign of Henry the Eighth in 1533. 1 Potter, Laws of North Carolina, 90 (1821). By 1837, the statute had substantially taken its current form. In 1868, the death penalty was replaced by a prison term of five to sixty years. Public Laws 1868-69, c. 167, § 6. Subsequent amendments have altered the level of offense, but have not changed the substance of the offense significantly, which in current form reads: "If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon." N.C. Gen. Stat. § 14-177 (2005).
"Any person who shall commit the abominable and detestable crime against nature, not to be named among christians, with either man or beast, shall be adjudged guilty of felony, and shall suffer death without benefit of clergy." N.C. Rev. Stat. ch. 34, § 6 (1837) (derived from 25 Hen. VIII, c. 6 and 5 Eliz., c. 17).
Our State Supreme Court has found it "manifest that the legislative intent and purpose of [section] 14-177 . . . is to punish persons who undertake by unnatural and indecent methods to gratify a perverted and depraved sexual instinct which is an offense against public decency and morality." State v. Stubbs, 266 N.C. 295, 298, 145 S.E.2d 899, 902 (1966). The act of fellatio was first recognized by our courts as a "crime against nature" in State v. Fenner, 166 N.C. 247, 249, 80 S.E. 970, 971 (1914) ("We are [of the] opinion that under our statute having carnal knowledge of another by inserting the private parts in the mouth is indictable.").
Prior to the United States Supreme Court decision in Lawrence v. Texas, 539 U.S. 558, 156 L.Ed.2d 508 (2003), this Court held the statute constitutional when applied to fellatio between an adult man and an adult woman, even in private. State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843 (1979). However, in Lawrence, the Court "held that a Texas law prohibiting `deviate sexual intercourse' with a member of the same sex violated the due process clause, where the individuals charged were adults engaging in consensual, private sexual activity." State v. Whiteley, 172 N.C. App. 772, 776, 616 S.E.2d 576, 579 (2005) (citing Lawrence, 539 U.S. at 578, 156 L.Ed.2d at 525). Thus, since Lawrence, it is unconstitutional to apply section 14-177 to such private activity between consenting adults. See Whiteley, 172 N.C. App. at 779, 616 S.E.2d at 581. Although its applicability has changed, the legislative intent behind the crime against nature statute has not.
The Supreme Court's holding in Lawrence specifically limited the scope of the decision, by stating:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. . . . The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.
Lawrence, 539 U.S. at 578, 156 L.Ed.2d at 525 (emphasis added). Thus, only private conduct, out of public view and between consenting adults is deemed protected by Lawrence. The majority specifically cautioned against reading the Court's holding too broadly. Id. at 578, 156 L.Ed.2d at 525-26.
North Carolina's rape statute has a similar past to that of our crime against nature statute. It, too, was incorporated into our criminal statutes in 1819 from the English law. 1 Potter, Laws of North Carolina, 92 (1821). By 1837, carnal knowledge of a female under ten years of age, or of a female ten years of age or older by force or against her will, was punishable by death. N.C. Rev. Stat. ch. 34, § 5 (1837) (derived from 18 Eliz. c. 7). It was not until 1923 that North Carolina began distinguishing the age of the defendant as compared to the victim, but only when the victim was "virtuous." In 1949, the jury was statutorily given the option of sentencing a defendant to a life term of imprisonment instead of the death penalty. 1949 N.C. Sess. Laws ch. 299, § 4.
"[A]ll persons charged with a violation of [the law prohibiting a male person from carnally knowing a female child over twelve and under sixteen years of age, who has never before had sexual intercourse with any person, and prohibiting any female person from carnally knowing any male child under the age of sixteen] shall be subject to the jurisdiction of the juvenile court . . . and shall be classed as delinquents and not as felons: Provided . . . that any male person convicted of the violation of this [same law], who is under eighteen (18) years of age, shall be guilty of a misdemeanor only." 1923 N.C. Sess. Laws ch. 140, § 2.
In 1973, the crime of rape was divided into two degrees, with the death sentence available for first degree rape, and a life sentence or term of years for second degree rape. 1973 N.C. Sess. Laws (2d Sess. 1974) ch. 1201, § 2. Under this law, a boy of seventeen who engaged in consensual intercourse with a non-virtuous girl of eleven would be guilty of second degree rape, while he would be guilty of first degree rape — exposed to the death penalty — if the girl were virtuous. The death penalty was not completely removed from the statute until 1979 when all sex offenses were clarified, modernized, and consolidated into a single new Article 7A. 1979 N.C. Sess. Laws ch. 682, § 1.
The 1979 revisions constituted a complete overhaul of what previously had been labeled "Rape and Kindred Offences." The new Article was renamed "Rape and Other Sex Offenses." Among other changes, the "virtuous" language was removed from the first degree rape statute, bringing it closer to its current form. In addition, new statutes were created for first and second degree sex offense, which included cunnilingus, fellatio, analingus, and anal intercourse, as those terms are included in the definition of "sexual act" contained in the sex offense statutes.
"A person is guilty of rape in the first degree if the person engages in vaginal intercourse: . . . (2) [w]ith a victim who is a child of the age of 12 years or less and the defendant is four or more years older than the victim." 1979 N.C. Sess. Laws ch. 682, § 1, § 14-27.2(a)(2).
For a comprehensive review of the changes resulting from the 1979 revisions, see Benjamin H. Flowe, Jr., Lawrence K. Rynning, Elizabeth Garland Sam, Survey of Developments in North Carolina Law, 1979, 58 N.C. L.Rev. 1181, 1394-1403 (1980).
The law prohibiting consensual intercourse between a thirteen, fourteen, or fifteen year old and a person at least six years older (class B1 felony) or at least four but less than six years older (class C felony) was created in 1995. 1995 N.C. Sess. Laws ch. 281, § 1. Despite the numerous changes to the rape statutes over the years, the crime against nature statute has remained relatively unchanged throughout its existence.
This Court has had an opportunity to interpret the crime against nature statute post-Lawrence, and repeatedly has found its application permissible when the conduct involved: minors; public conduct; prostitution; or non-consensual, coercive conduct. Whiteley, 172 N.C. App. at 779, 616 S.E.2d at 581; see also State v. Browning 177 N.C. App. 487, 629 S.E.2d 299 (2006); State v. Pope, 168 N.C. App. 592, 608 S.E.2d 114, disc. review denied, 359 N.C. 413, 612 S.E.2d 636 (2005). The instant case involves both minors and public conduct. Respondent asserts that the General Assembly did not intend to criminalize sexual acts between minors who are less than three years apart in age. He asks this Court to reconcile section 14-177 with sections 14-27.2 (statutory rape), 14-27.4 (statutory sex offense), and 14-202.2 (indecent liberties between minors).
"In matters of statutory construction the task of the Court is to determine the legislative intent, and the intent is ascertained in the first instance `from the plain words of the statute.'" N.C. School Bds. Ass'n v. Moore, 359 N.C. 474, 488, 614 S.E.2d 504, 512 (2005) (quoting Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991)). Our Legislature has amended the level of punishment for a violation of our crime against nature statute, without making substantial changes to the wording of the statute. In addition, the legislature has substantially overhauled our state's sexual offense statutes, and has revised and amended the statutes on numerous occasions subsequent to the 1979 complete overhaul. The Legislature could have changed the wording or intent of the crime against nature statue had it chosen to; however it has not created any specific exception where the sexual acts occur between minors who are less than three years apart in age. Even in the wake of Lawrence, our Legislature has chosen not to make this exception. It is the role of our General Assembly to define the elements of a crime. See N.C. Const. Art. I, § 6; In re Greene, 297 N.C. 305, 309, 255 S.E.2d 142, 145 (1979). The role of courts is to interpret statutes not to enact them. We reject defendant's suggestion that we graft age requirements into section 14-177 which the General Assembly has not seen fit to enact.
In interpreting statutes, all "[statutes dealing with the same subject matter must be construed in pari materia, as together constituting one law, and harmonized to give effect to each." Williams v. Williams, 299 N.C. 174, 180-81, 261 S.E.2d 849, 854 (1980) (internal citations omitted). In Williams, the Supreme Court construed North Carolina General Statutes, sections 50-16.1 through -16.8 together, stating, "Each of these sections deals with the same subject matter and constitutes one law — that of alimony — with the common purpose of delineating the statutory rules for the same." Id. at 181, 261 S.E.2d at 854. These statutes are contained wholly within Article 1, Chapter 50. They are sequential, and constitute only a small portion of Article 1. Respondent asks this Court to compare statutes on the same subject matter within all of Chapter 14. However, this comparison is too broad.
Crime Against Nature is found in Subchapter 7, Article 26 — Offenses Against Public Morality and Decency. Statutory Rape and Statutory Sex Offense are not only not found within the same Article, but also are not within the same Subchapter; these offenses are found in Subchapter 3, Article 7A — Rape and Other Sex Offenses. Therefore, it is improper to construe these statutes together. In addition, although Indecent Liberties Between Children falls within the same Article as Crime Against Nature, sections 14-177 and 14-202.2 are not sequential. Also included in the Article are such statutes as Obstructing Way to Places of Public Worship, Harassing by Repeated Telephoning, and Using Profane or Indecent Language on Public Highways.
Even had respondent and his partner been adults, making the issue of minority immaterial, he would yet have been guilty under section 14-177. The Article in which the crime against nature statute is found is entitled Offenses Against Public Morality and Decency. Although this is not compelling evidence, we may consider it. See State v. Flowers, 318 N.C. 208, 215, 347 S.E.2d 773, 778 (1986); State v. Anthony, 133 N.C. App. 573, 516 S.E.2d 195 (1999), aff'd, 351 N.C. 611, 528 S.E.2d 321 (2000). Public morals and standards of decency continue to consider public sexual behavior criminal.
It was undisputed that the conduct occurred in a car parked in a bowling alley parking lot. The crime against nature statute remains applicable where public conduct is involved. See Whiteley, 172 N.C. App. at 779, 616 S.E.2d at 581; compare Lawrence, 539 U.S. 558, 156 L.Ed.2d 508 (case involved sexual activity in the confines of defendant's private residence). A place is public if it is "open or available for all to use, share, or enjoy." Black's Law Dictionary 1264 (8th ed. 2004). A parking lot is available for all to use and is thus a public place. In State v. King, 268 N.C. 711, 151 S.E.2d 566 (1966), the Supreme Court held that intentional exposure of private parts while sitting in a car on a public street where persons were present who could have seen if they had looked constituted the common law offense of indecent exposure, whether actually seen or not. Thus, whether anyone saw respondent engaged in sexual behavior in a parked car in a public parking lot is immaterial to whether he engaged in the activity in a public place.
In the instant case, respondent engaged in sexual conduct prohibited by section 14-177 of the criminal code, by engaging in sexual behavior deemed unnatural by our precedents. "The crime against nature is sexual intercourse contrary to the order of nature. It includes acts with animals and acts between humans per anum and per os." State v. Harward, 264 N.C. 746, 746, 142 S.E.2d 691, 692 (1965). This Court "has `no authority to overrule decisions of [the] Supreme Court and [has] the responsibility to follow those decisions "until otherwise ordered by the Supreme Court."'" Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993) (citation omitted). Respondent was a minor who engaged in sexual behavior between humans per os and in a public place. He was found delinquent for his behavior and punished accordingly.
Because the crime against nature statute remains applicable in cases involving minors and public conduct, the statute was constitutionally applied to respondent. We therefore find no error.
No error.
Judge STEELMAN concurs.
Judge ELMORE dissents in a separate opinion.