Not overruled or negatively treated on appealinfoCoverage
North Carolina Court of AppealsMar 1, 2003
156 N.C. App. 699 (N.C. Ct. App. 2003)
156 N.C. App. 699578 S.E.2d 2

No. COA02-866

Filed 18 March 2003 This case not for publication.

Appeal by defendant from judgments entered 5 September 2000 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 3 March 2003.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General William P. Hart and Assistant Attorney General M. Janette Soles, for the State. John T. Hall for defendant-appellant.

Wake County Nos. 98CRS102406, 102414, 107818, 99CRS064575.

Troy Lamar Walker ("defendant") appeals from judgments entered on convictions by a jury of reckless driving, felonious restraint, two counts of assault on a female, second degree rape, second degree sexual offense, and failure to stop for a blue light and siren. We find no error.

The State presented evidence tending to show that on 4 December 1998, defendant forced his estranged wife, Tanisha Bagley, into her automobile as she was leaving her place of employment. Defendant drove the vehicle to a Bojangles Restaurant near the North Carolina State University campus in Raleigh and parked it. He grabbed Bagley by the arm and walked her into a wooded area, stopping near a warehouse. Defendant removed his shirt and placed it on the ground. Defendant told Bagley to remove her pants and to sit down on his shirt. Defendant kneeled in front of her, spread her legs apart with his hands, and performed cunnilingus on her. He then engaged in sexual intercourse with her. After Bagley promised defendant that she would not prosecute him, they returned to her vehicle and departed from the parking lot. The Raleigh Police Department ultimately apprehended defendant after a high speed chase of Bagley's vehicle. Defendant was driving the vehicle with Bagley as a passenger.

Defendant testified that he abducted Bagley for the purpose of talking to her about their children and their relationship. Bagley walked willingly with him into the wooded area. The two of them had a long conversation, during which Bagley offered to help him obtain counseling. Thinking they had reconciled, he kissed Bagley and engaged in oral sex and sexual intercourse with her. Bagley never told him that she did not want to engage in the sexual activity. He did not force her to engage in the sexual activity.

Defendant assigns as error the entry of judgment on the convictions of second degree rape and second degree sexual offense and the denial of his motion to dismiss these charges made at the close of all the evidence. He contends the evidence is insufficient to support the convictions of second degree rape and second degree sexual offense.

To withstand a motion to dismiss for insufficient evidence, the State must present substantial evidence of each element of the offense and of the defendant's perpetration of the offense. Statev. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The evidence must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). If a reasonable inference of the defendant's guilt may be deduced from the evidence, then the court must deny the motion to dismiss and submit the case to the jury even though the evidence may also support inferences of innocence. State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994).

A person is guilty of second degree rape if he engages in vaginal intercourse with another person by force and against the will of the other person. N.C. Gen. Stat. § 14-27.3(a)(1) (2001); State v. Parks, 96 N.C. App. 589, 593, 386 S.E.2d 748, 751 (1989). Similarly, a person is guilty of second degree sexual offense if he engages in a sexual act with another person by force and against the will of the other person. N.C. Gen. Stat. § 14-27.5(a)(1) (2001); State v. Raines, 72 N.C. App. 300, 303, 324 S.E.2d 279, 281 (1985). Cunnilingus is a sexual act. N.C. Gen. Stat. § 14-27.1(4) (2001).

Defendant contends that the evidence is insufficient to establish the element of force and to establish defendant's mens rea. He argues there is no evidence to show that he committed the acts upon Ms. Bagley with criminal intent.

The element of "by force" may be satisfied by the production of evidence showing physical force or constructive force. State v. Brown, 332 N.C. 262, 267, 420 S.E.2d 147, 150 (1992). Physical force consists of the application of physical force to the victim's body. State v. Scott, 323 N.C. 350, 354, 372 S.E.2d 572, 575 (1988). Constructive force occurs when the defendant obtains the victim's submission by threats, coercion, or placing the victim in fear or fright. State v. Etheridge, 319 N.C. 34, 45, 352 S.E.2d 673, 680 (1987). It is no defense to a prosecution for rape or sexual offense that the victim is the defendant's legal spouse at the time of the commission of the offense. N.C. Gen. Stat. § 14-27.8 (2001). A mistaken belief that an act is not in violation of criminal law does not excuse the violation. State v. Rogers, 68 N.C. App. 358, 385, 315 S.E.2d 492, 510 (1984).

Viewed in the light most favorable to the State, the evidence shows that defendant, a large man who weighed as much as 250 pounds, regularly abused and beat the victim. Bagley testified that during their marriage defendant refused to allow her to have any peace until she acquiesced to his demands for sex. Bagley separated from defendant in September 1998 and obtained two domestic violence protective orders. In October 1998, defendant grabbed her outside a Wal-Mart store and forced her to walk behind the store. Defendant ordered her to remove her pants and threatened not to allow her to leave until she submitted to his sexual demands. Every time she attempted to run, defendant caught her. She submitted to sexual intercourse with him on this occasion.

During the incident at bar, defendant abducted Bagley and transported her to an unfamiliar wooded area. Bagley testified that when defendant told her to remove her pants, she was afraid defendant was going to kill her. She submitted to his sexual advances "[s]o that nothing would happen to [her]." She cried as defendant engaged in the sexual activity with her. She told him that she did not want to have sex.

We conclude the foregoing evidence is sufficient to show defendant knowingly engaged in vaginal intercourse and a sexual act with Bagley by force and against her will. We hold the court properly denied the motion to dismiss the charges and properly entered judgment on the convictions.

No error.

Judges BRYANT and ELMORE concur.

Report per Rule 30(e).