Summary
In Midyette, the defendant began raping the victim in one position and then, when the victim complained of pain, the defendant turned the victim from her back to her front and re-inserted his penis in her vagina.
Summary of this case from State v. LeblancOpinion
No. 8710SC299
Filed 6 October 1987
1. Rape and Allied Offenses 1, 5 — three acts with one victim — separate offenses Defendant was properly convicted of three charges of second degree rape where the evidence showed that defendant penetrated the victim's vagina with his penis on three distinct occasions and that on each occasion he accomplished the vaginal intercourse by the use of actual and constructive force against the will of the victim. The evidence as to each separate act of forcible intercourse was complete and sufficient to sustain a conviction of second degree rape without resort to the evidence necessary to prove either of the other rape charges.
2. Criminal Law 138.27 — rape — position of trust or confidence — evidence not sufficient The trial court erred when sentencing defendant for second degree rape by finding that he had taken advantage of a position of trust or confidence where the evidence merely showed that the victim was acquainted with defendant and did not show the existence of a relationship between them through which defendant would occupy a position of trust and confidence.
3. Criminal Law 138.8 — sentencing — victim input session — no confrontation with defendant Trial courts should exercise extreme caution in conducting in camera "victim input sessions" and insure that all information received by the court relating to punishment is made known to the defendant and his counsel and that he is given the opportunity to explain or refute it.
APPEAL by defendant from Farmer, Judge. Judgment entered 24 July 1986 in Superior Court, WAKE County. Heard in the Court of Appeals 24 September 1987.
Attorney General Lacy H. Thornburg, by Assistant Attorney General William P. Hart, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Leland Q. Towns, for defendant appellant.
Judge EAGLES dissenting.
Defendant was charged with second degree sexual offense and three counts of second degree rape, all allegedly committed upon Joyce Still on 29 January 1985. He entered pleas of not guilty. The evidence at trial tended to show that on 29 January 1985 Ms. Still, who was then separated from her husband, was at her Raleigh apartment with her two-year-old son. Shortly after midnight, Ms. Still heard a knock at her door and looked through the peephole, but did not recognize the man she saw. She stepped back from the door without opening it. About a minute later, there was another knock and the man said, "Joyce, this is Joe. Remember me." She looked again and recognized the defendant as a man she and her sister had met on the preceding New Year's Eve and had invited to join them for breakfast at Ms. Still's apartment. Defendant told Ms. Still that he needed to use her telephone. Because it was snowing, Ms. Still admitted defendant and he used the telephone, but told her that he was unable to get an answer. Then defendant walked up behind the chair where Ms. Still was sitting, put his arm around her and his hand over her mouth and forced her to stand. Defendant told Ms. Still not to make any noise and to do as he said if she did not want him to hurt her or her son. He pushed her over to a couch, undressed her, and forced her to perform fellatio upon him. He then forced her to lie down on the sofa and had sexual intercourse with her, penetrating her vagina with his penis. Defendant said that he was uncomfortable and pulled Ms. Still up from the sofa and pushed her down the hall into her bedroom. He pushed her face down onto the bed and inserted his penis into her vagina from the rear. Ms. Still complained that defendant was hurting her; he pushed her onto her back, got on top of her and forcibly penetrated her vagina with his penis a third time. Ms. Still testified that throughout the commission of these acts, defendant threatened to harm her and her son if she did not do as he wanted.
Defendant presented no evidence. The jury found defendant guilty of second degree sexual offense and three counts of second degree rape. The trial judge sentenced defendant to four consecutive fifteen year terms of imprisonment. Defendant appeals.
In the only assignment of error directed to the guilt-innocence phase of his trial, defendant contends that the same evidence was used by the State to obtain his conviction of each of the three charges of second degree rape. He argues that the three instances in which he penetrated Ms. Still's vagina with his penis constituted but a single continuous incident and "merge" into one criminal act, so that he can be convicted of only one rape. Therefore, he asserts, his conviction and punishment for three separate rapes is a violation of the double jeopardy provisions of the North Carolina and United States constitutions. We disagree.
Second degree rape is "vaginal intercourse with another person (1) [b]y force and against the will of the other person." G.S. 14-27.3(a)(1). State v. Hosey, 79 N.C. App. 196, 339 S.E.2d 414, modified and aff'd, 318 N.C. 330, 348 S.E.2d 805 (1986). The force necessary to constitute an element of the crime of rape need not be actual physical force. The use of force may be established by evidence that submission was induced by fear, duress or coercion. State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977). "Evidence of the slightest penetration of the female sex organ by the male sex organ is sufficient for vaginal intercourse and the emission of semen need not be shown." State v. Williams, 314 N.C. 337, 351, 333 S.E.2d 708, 718 (1985). State v. Brown, 312 N.C. 237, 321 S.E.2d 856 (1984); State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968); State v. Monds, 130 N.C. 697, 41 S.E. 789 (1902). Each act of forcible vaginal intercourse constitutes a separate rape. State v. Dudley, 319 N.C. 656, 356 S.E.2d 361 (1987). "Generally rape is not a continuous offense, but each act of intercourse constitutes a distinct and separate offense." Id. at 659, 356 S.E.2d at 363, quoting 75 C.J.S. Rape 4; State v. Small, 31 N.C. App. 556, 559, 230 S.E.2d 425, 427 (1976), disc. rev. denied, 291 N.C. 715, 232 S.E.2d 207 (1977).
In the present case, the evidence showed that defendant penetrated the victim's vagina with his penis on three distinct occasions and that on each occasion he accomplished the vaginal intercourse by the use of actual and constructive force against the will of the victim. The evidence as to each separate act of forcible intercourse was complete and sufficient to sustain a conviction of second degree rape without resort to the evidence necessary to prove either of the other rape charges. Therefore, under Dudley, each of the three acts of forcible vaginal intercourse with the victim was a separate rape and defendant was properly convicted and sentenced for all three offenses. This assignment of error is overruled.
Defendant's remaining assignments of error relate to sentencing. In each of the four cases, the trial court found as aggravating factors that defendant had a prior record of convictions for criminal offenses, that he was on parole at the time of the offenses against Ms. Still, and that he took advantage of a position of trust or confidence to commit the offenses against Ms. Still. Defendant assigns error to the latter finding, contending that there was insufficient evidence to show the existence of any relationship of trust or confidence between him and the victim. We agree.
A finding of a relationship of trust or confidence "depends . . . upon the existence of a relationship between the defendant and the victim generally conducive to reliance of one upon the other." State v. Daniel, 319 N.C. 308, 311, 354 S.E.2d 216, 218 (1987) (mother's relationship to newborn child supports finding of the factor). See also State v. Potts, 65 N.C. App. 101, 308 S.E.2d 754 (1983) disc. rev. denied, 311 N.C. 406, 319 S.E.2d 278 (1984) (victim thought of defendant as a brother and stated he knew defendant would not shoot him); State v. Baucom, 66 N.C. App. 298, 311 S.E.2d 73 (1984) (factor might be properly found where twenty-one-year-old defendant sodomized his ten-year-old brother); State v. Stanley, 74 N.C. App. 178, 327 S.E.2d 902, disc. rev. denied, 314 N.C. 546, 335 S.E.2d 318 (1985) (factor properly found where defendant raped a nineteen-year-old retarded girl who lived with defendant's family and who testified that she trusted and obeyed defendant as an authority figure). But see State v. Carroll, 85 N.C. App. 696, 355 S.E.2d 844 , disc. rev. denied, 320 N.C. 514, 358 S.E.2d 523 (1987) (factor not properly found where defendant and victim had met only one and a half days before the murder and decided to take a trip in defendant's car).
In the present case, the evidence showed that Ms. Still had met defendant approximately one month before the events which gave rise to these charges. On that occasion, she had invited him to join her and her sister for an early morning New Year's breakfast at her apartment. After the breakfast, Ms. Still had permitted defendant to sleep on the sofa in her living room because he said that he had consumed too much alcohol to drive home. She had locked her bedroom door and had instructed her sister to do so. Defendant left the apartment without incident the next morning. He had called her on another occasion to invite her to lunch; she had declined his invitation. The evidence shows merely that the victim was acquainted with defendant; it does not show the existence of a relationship between them through which the defendant would occupy a position of trust and confidence. The trial court's error in finding this aggravating factor entitles defendant to a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).
Because it is necessary to remand this case for resentencing, we deem it appropriate to briefly discuss defendant's other assignment of error relating to the sentencing hearing. After hearing evidence and the arguments of counsel at the sentencing hearing, the trial judge conducted an in camera"victim input session" in his chambers before pronouncing judgment. Only the trial judge, the victim, the prosecutor, defense counsel and the court reporter were permitted to be present. The victim was permitted to make a statement expressing her views concerning the appropriate punishment to be imposed and the reasons therefor. Neither the prosecutor nor defendant's counsel were permitted to examine the victim. From the record, it appears that the trial judge pronounced judgment immediately after returning to the courtroom without affording the defendant an opportunity to refute any of the matters urged by the victim in her statement.
Trial judges in North Carolina are allowed wide latitude in conducting sentencing hearings, State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980), and are encouraged to seek all relevant information which may be of assistance in determining an appropriate sentence. State v. Hester, 37 N.C. App. 448, 246 S.E.2d 83 (1978). Formal rules of evidence do not apply. G.S. 15A-1334(b). The trial court may properly consider a victim's statement relating to a defendant's sentence. State v. Clemmons, 34 N.C. App. 101, 237 S.E.2d 298 (1977), disc. rev. denied, 296 N.C. 412, 251 S.E.2d 471 (1979). See G.S. 15A-825(9) (providing for preparation of victim impact statement for consideration by court).
The latitude and discretion accorded trial judges in the conduct of the sentencing hearing are not, however, without limits. Our Supreme Court has stated:
Sentencing is not an exact science, but there are some well established principles which apply to the sentencing procedure. The accused has the undeniable right to be personally present when sentence is imposed. Oral testimony, as such, relating to punishment is not to be heard in his absence. He shall be given full opportunity to rebut defamatory and condemnatory matters urged against him, and to give his version of the offense charged, and to introduce any relevant facts in mitigation.
State v. Pope, 257 N.C. 326, 334, 126 S.E.2d 132-33 (1962) (emphasis supplied). "All information coming to the notice of the court which tends to defame and condemn the defendant and to aggravate punishment should be brought to his attention before sentencing, and he should be given full opportunity to refute or explain it." Id. at 335, 126 S.E.2d at 133.
The trial judge's action in conducting the in camera "victim input session" in the absence of defendant may have been prompted by a desire to spare the victim further confrontation with defendant, an understandable and laudable motive. Nevertheless, the trial courts should exercise extreme caution in conducting such in camera hearings and insure that all information received by the court relating to punishment is made known to the defendant and his counsel and that he be given the opportunity to explain or refute it.
We conclude that defendant received a fair trial, free from prejudicial error. For the reasons stated, however, we remand these cases to the Superior Court of Wake County for a new sentencing hearing.
No error in the trial, remanded for resentencing.
Judge WELLS concurs.
Judge EAGLES dissents.