Opinion
No. 07-1022.
Filed March 18, 2008.
Wayne County No. 06CRS54406.
Appeal by Defendant from judgment entered 17 January 2007 by Judge Paul G. Gessner in Wayne County Superior Court. Heard in the Court of Appeals 20 February 2008.
Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State. William D. Spence, for Defendant.
Defendant appeals from judgment entered 17 January 2007, convicting Defendant of second degree rape and second degree sexual offense. We find no error. The evidence tended to show, in pertinent part, the following: On 4 July 1998, Nicole Sandres (Nicole) married Howard Sandres (Defendant). Nicole and Defendant were in the United States Air Force. The Air Force stationed Nicole and Defendant in Goldsboro at the Seymour-Johnson Air Force Base. They bought a home together in Wayne County, and they also owned a vacation home in Williamsburg, Virginia. In 2002, the Sandres began experiencing marital problems.
In August 2005, while Defendant and Nicole were in Williamsburg, Defendant expressed a desire to have sex with Nicole, but Nicole said "no." Despite her lack of consent, Defendant "got? on top of" Nicole while she lay in the bed, but Nicole told Defendant "three or four" times that she "did not want to" have sex. Defendant "ignored" Nicole, and "began to take [her] clothes off." Nicole "[tried] to get him off of [her] by [pushing with her] legs [and] arms." Defendant "began to have [vaginal intercourse] with [Nicole]." Nicole did not give consent at any time; instead, Nicole "scream[ed]." Defendant and Nicole returned to Goldsboro, and Nicole did not feel comfortable sleeping in the same room with Defendant; they agreed to sleep separately.
In January 2006, Defendant was deployed to the Middle East, and in April 2006, Nicole told Defendant during a telephone conversation that she "wanted a separation." Defendant returned from his deployment in May 2006, and Nicole and Defendant had sexual intercourse. Nicole explained, "I . . . felt like I did not want to do it, but I gave in to it." Thereafter, Nicole told Defendant, "face-to-face[,]" that she "wanted a separation," and Defendant became suicidal. In an effort to protect Defendant, Nicole hid Defendant's gun. Defendant then "threatened to rape" Nicole "again" if she didn't "give him his gun[.]" Defendant argued that he did not want to be on Earth if they could not be together. Then, Defendant "got on top of [Nicole] and pushed [her] down on the bed[.]" Nicole asked him to "stop[.]" After this incident, Nicole called Sergeant Patrick Kelly, "a friend . . . [who] live[d] down the street[.]"
On 10 June 2006, Defendant moved out of the house. Defendant asked Nicole to help him move his furniture, but Nicole refused. Nicole then attempted to distance herself from Defendant by walking to a different part of the house, but Defendant followed Nicole and "grabbed [her] from behind." Defendant "said that he wanted to do one last thing with [Nicole]; he said he wanted to make love to [Nicole.]" When Nicole said "no[,]" Defendant responded that "he was going to do it either way." Defendant "grabbed [Nicole]," and "[they] ended on the floor[.]" Defendant then sat on Nicole, "straddling [her] chest." Defendant and Nicole struggled for "[thirty] or [forty-five] minutes." Nicole "tried to use [her] arms and legs to get him off of [her,]" and "at one point, [Nicole] grabbed his genitals." Then, Defendant "pulled [Nicole's] pubic hair." Nicole was "screaming[,]" and Defendant "tr[ied] to cover [Nicole's] mouth or choke [her]." Defendant told Nicole to "shut up" and "pinned" her arms "beside [her] head." Defendant took Nicole's clothes off and penetrated her vagina and anus with his fingers. Defendant also penetrated Nicole's vagina with his penis. Nicole continuously "told him to stop" and "asked him why he was doing it[.]" After Defendant "penetrated" Nicole, but "before he ejaculated[,]" Defendant "stopped himself" and asked, "What am I doing? Why am I doing this?"
The testimony of Defendant and Nicole's neighbors and friends corroborate Nicole's testimony. Connie Williams (Connie), a friend of Nicole and Defendant, testified that on 10 June 2006, Nicole "showed up at my door"; Nicole was "crying" and "upset[,]" and told Connie that "[Defendant] had raped her again." Nicole stated that she and Defendant "had wrestled for quite some period of time, that he had choked her, that he had put his hand over [her] mouth, and that it was very, very physical."
Edwin Williams (Edwin) testified that Defendant called him and said, "I've done it again[.]" Edwin drove to Defendant's house and walked in, discovering "[Defendant] dangling a large kitchen knife." Defendant "was crouched over dangling the knife, I guess contemplating." Defendant then told Edwin, "I did it again. . . . I raped her." Defendant stated, "[w]e fought and she kept screaming no, and I just covered her mouth." Defendant was "crying the whole time."
Patrick Kelly (Kelly), a flight chief at Seymour-Johnson Air Force Base and a friend to Nicole and Defendant, testified that in May 2006, he received a telephone call from Nicole asking him to come to their house as soon as possible. Kelly met Nicole outside and told Kelly that Defendant "was trying to take his own life." Kelly said he saw Defendant "standing up next to his couch[,] and he had a loaded .22 rifle [lying] on the couch."
Later, in June 2006, Kelly received another call from Defendant. When Kelly visited Defendant's home, Edwin was also present, and Defendant instructed Edwin to tell Kelly "what's going on." Edwin then told Kelly "that [Defendant] . . . raped[Nicole]." Kelly testified that "after Ed said it . . . [Defendant] seemed . . . that much more . . . sad."
Detective Robert Golimowski (Golimowski) of the Wayne County Sheriff's Department testified that in the early morning hours of 11 June 2006, he responded to a sexual assault call at Wayne Memorial Hospital, at which time Nicole told Golimowski that she had been raped by Defendant. Golimowski visited Defendant's house, and Defendant made the following voluntary statement: "I guess things happen when you get angry."
Dr. Debra Zimmerman (Dr. Zimmerman), a sexual assault response coordinator for Seymour-Johnson Air Force Base, also testified that Defendant requested to meet Dr. Zimmerman, and she "thought [Defendant] was the victim." Defendant told Dr. Zimmerman that "whenever [he and his wife got] into an argument he rape[d] her, and she lock[ed] herself in a bedroom in their home[.]" Defendant also stated that "he was getting concerned because as time [went] by the rapes ha[d] been more brutal."
The case was heard by a jury on 16 January 2007, and on 17 January 2007, the jury found Defendant guilty of second degree rape and second degree sexual offense. The trial court entered judgment consolidating the charges and sentencing Defendant to 66 to 89 months imprisonment. From this judgment, Defendant appeals.
Motion to Dismiss
In his first argument, Defendant contends that the trial court erred by denying Defendant's motion to dismiss the charges of second degree rape and second degree sexual offense. We disagree. Upon a defendant's motion for dismissal, the question for the Court is "whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citation omitted). "If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed." Id. "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." Id. at 597, 573 S.E.2d at 869.
On review of a denial of a motion to dismiss, this Court must "examine the evidence in the light most advantageous to the State, drawing all reasonable inferences from the evidence in favor of the State's case." State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002).
N.C. Gen. Stat. § 14-27.3 (2007) states that "[a] person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person . . . [b]y force and against the will of the other person[.]"
N.C. Gen. Stat. § 14.27.5 (2007) states that "[a] person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person . . . [b]y force and against the will of the other person[.]" N.C. Gen. Stat. § 14.27.1 (2007) defines "[s]exual act": "Sexual act" means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body: provided, that it shall be an affirmative defense that the penetration was for accepted medical purposes.
Relying on State v. Alston, 310 N.C. 399, 312 S.E.2d 470 (1984), Defendant specifically argues that the State failed to present sufficient evidence that the penetration and vaginal intercourse between Defendant and Nicole was by force and against Nicole's will.
"[A]ctual physical force need not be shown in order to establish force sufficient to constitute an element of the crime of rape." Alston, 310 N.C. at 408, 312 S.E.2d at 476. However, "[t]hreats of serious bodily harm which reasonably induce fear thereof are sufficient." Id. "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. Etheridge, 319 N.C. 34, 45, 352 S.E.2d 673, 680 (1987).
"Constructive force may be shown by evidence of threats or other actions of the defendant which compel the victim's submission." State v. Brown, 332 N.C. 262, 267-68, 420 S.E.2d 147, 150 (1992). "Such 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." Id. (internal quotation marks omitted).
Defendant argued in his brief that "the long consensual sexual relationship between the parties" and Nicole's "fail[ure] to complain to law enforcement" makes this case indistinguishable from Alston, 310 N.C. 399, 312 S.E.2d 470, in which the victim testified that:
[S]he and the defendant had sexual relations throughout their relationship. Although she sometimes enjoyed their sexual relations, she often had sex with the defendant just to accommodate him. On those occasions, she would stand still and remain entirely passive while the defendant undressed her and had intercourse with her.
Id. at 401, 312 S.E.2d at 471.
In Alston, the Court stated:
Where as here the victim has engaged in a prior continuing consensual sexual relationship with the defendant, however, determining the victim's state of mind at the time of the alleged rape obviously is made more difficult. Although inquiry in such cases still must be made into the victim's state of mind at the time of the alleged rape, the State ordinarily will be able to show the victim's lack of consent to the specific act charged only by evidence of statements or actions by the victim which were clearly communicated to the defendant and which expressly and unequivocally indicated the victim's withdrawal of any prior consent and lack of consent to the particular act of intercourse.
Id. at 407-08, 312 S.E.2d at 475. In Alston, the victim "gave no physical resistance to the defendant[,]" and the Court held that there was no evidence of force. Id. at 408, 312 S.E.2d at 475.
We conclude that Alston is distinguishable from the instant case. Here, based on substantial evidence introduced at trial, the jury could reasonably find that the defendant in the present case used actual physical force sufficient to overcome any resistance Nicole might have offered. Defendant followed Nicole and "grabbed [her] from behind." Defendant "said that he wanted to do one last thing with [Nicole]; he said he wanted to make love to [Nicole][.]" When Nicole said "no[,]" Defendant responded that "he was going to do it either way." When Defendant "grabbed [Nicole, they] ended on the floor[,]" and Defendant sat on Nicole, "straddling [her] chest." Defendant and Nicole struggled for "[thirty] or [forty-five] minutes." Nicole "tried to use [her] arms and legs to get him off of [her,]" and "at one point, [she] grabbed his genitals." Then, Defendant "pulled [her] pubic hair." Nicole was "screaming[,]" and Defendant "tr[ied] to cover [Nicole's] mouth or choke [her]." Defendant told Nicole to "shut up" and "pinned" her arms "beside [her] head." Defendant took Nicole's clothes off and penetrated her vagina and anus with his fingers. Defendant also penetrated Nicole's vagina with his penis. Nicole continuously "told him to stop" and "asked him why he was doing it[.]"
We conclude that the State produced substantial evidence as to each element of the offenses of second degree rape and second degree sexual offense, including force, and that Defendant was the perpetrator of the crimes. This assignment of error is overruled.
Rule 404(b), Prior Bad Acts
In his next argument, Defendant contends that the trial court erred by allowing the State to introduce Nicole's testimony, pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b), regarding the sexual incidents in August 2005 and May 2006. We disagree. "Under Evidence Code Rule 404(b), evidence of prior incidents is admissible to show, inter alia, motive, opportunity, intent, knowledge, and common plan or scheme if the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of Evidence Code Rule 403." State v. Stevenson, 169 N.C. App. 797, 798, 611 S.E.2d 206, 208 (2005) (citation omitted). "[Rule 404(b)] is a general rule of inclusion of such evidence, subject to an exception if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." State v. West, 103 N.C. App. 1, 9, 404 S.E.2d 191, 197 (1991) (citation omitted). "[T]he ultimate test for determining whether [evidence of other offenses] is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. 8C-1, Rule 403." State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988) (citation omitted). Thus, "[t]he use of evidence under Rule 404(b) is guided by two constraints: similarity and temporal proximity." State v. Bidgood, 144 N.C. App. 267, 271, 550 S.E.2d 198, 201 (2001) (internal quotation marks omitted).
When the features of the earlier act are dissimilar from those of the offense with which the defendant is currently charged, such evidence lacks probative value. When otherwise similar offenses are distanced by significant stretches of time, commonalities become less striking, and the probative value of the analogy attaches less to the acts than to the character of the actor.
Id. at 271-72, 550 S.E.2d at 201.
North Carolina courts have been "markedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in Rule 404(b)[.]" State v. Cotton, 318 N.C. 663, 666, 351 S.E.2d 277, 279 (1987).
Defendant specifically contends that the trial improperly admitted evidence of Defendant's two prior sexual incidents with his wife. After hearing Nicole's vior dire testimony, the court ruled that the evidence was admissible pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b). The court concluded, "I have considered . . . these instances" — "the . . . Williamsburg incident and the May of 2006 incident[.] . . . [These instances] are not too remote in time from the time of the alleged incident of June the 10th, and [these instances] are substantially similar[.]" Further, the trial court stated, "[these instances] involve? the same victim, [and] each [time] . . . she verbally said no," "he removed her clothes," and "he held her down." The trial court also said, "I have considered Rule 403," and "the probative value is not outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]"
In light of the similarities noted above, we hold the trial court did not abuse its discretion by admitting Nicole's testimony with regard to the two prior incidents of sex; the alleged incidents were sufficiently similar and occurred within the span of several months. The associated assignments of error are overruled.
Rule 403: Probative Value and Unfair Prejudice
In his next argument, Defendant contends that the trial court erred by allowing the State to introduce the testimony of Defendant's wife pursuant to N.C. Gen. Stat. § 8C-1, Rule 403.
"Once the trial court determines evidence is properly admissible under Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice." Bidgood, 144 N.C. App. at 272, 550 S.E.2d at 202. "That determination is within the sound discretion of the trial court, whose ruling will be reversed on appeal only when it is shown that the ruling was so arbitrary that it could not have resulted from a reasoned decision." Id.
In light of the similarities noted above, we hold the trial court did not abuse its discretion by admitting evidence of the two prior incidents. This assignment of error is overruled.
Jury Instruction
In his final argument, Defendant contends that the trial court committed plain error by failing to instruct the jury on Defendant's character for truthfulness. We disagree.
At the outset, we note that defendant failed to preserve this issue by raising an objection at trial. N.C.R. App. P. 10(b)(2). However, N.C.R. App. P. 10(c)(4) allows plain error review of certain questions that were not properly preserved at trial and are not otherwise deemed preserved by rule of law. In State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983), the North Carolina Supreme Court adopted the "plain error" analysis with regard to errors in jury instructions. As stated in Odom:
[The plain error rule] is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.
Id. (internal quotation marks omitted)
In light of the overwhelming evidence against Defendant, we cannot conclude that the court's failure to charge the jury with regard to Defendant's truthfulness had a probable impact on the jury's finding of guilt. Therefore, the trial court did not commit plain error by failing to instruct the jury with regard to Defendant's character for truthfulness.
For the foregoing reasons, we conclude Defendant received a fair trial, free from error.
No Error.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).