State v. Charles

374 S.E.2d 658, 92 N.C. App. 430, 1988 N.C. App. LEXIS 1067
CourtCourt of Appeals of North Carolina
DecidedDecember 30, 1988
DocketNo. 8810SC79
StatusPublished
Cited by3 cases

This text of 374 S.E.2d 658 (State v. Charles) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Charles, 374 S.E.2d 658, 92 N.C. App. 430, 1988 N.C. App. LEXIS 1067 (N.C. Ct. App. 1988).

Opinion

ORR, Judge.

Defendant, George G. Charles, was convicted of first-degree rape, first-degree sexual offense, first-degree burglary, and assault with a deadly weapon. Defendant was given concurrent life sentences for the rape and sexual offense, a consecutive 20-year sentence for the burglary, and judgment was arrested on the assault with a deadly weapon conviction.

On appeal, defendant has brought forth numerous assignments of error relating to: (1) certain jury instructions, (2) the admission of specific exculpatory statements, (3) the removal of a prospective juror, and (4) the trial court’s refusal to find certain mitigating factors.

The State’s evidence tended to show that the victim and defendant were acquaintances from church. Some time after a sepa[432]*432ration from her husband, the victim and defendant dated one another, but following certain disagreements, discontinued their relationship. On 13 May 1987, defendant saw the victim at church with her estranged husband. Later that night, defendant went to the victim’s residence but she did not allow him to enter. The victim asked defendant to leave which he did, but he later returned in the early hours of the morning.

The victim awoke shortly after 2:00 a.m. and found defendant standing nude at her bedside. Defendant began to pull at the victim’s underwear but he stopped when he was asked to do so. The victim then agreed to talk with defendant if he would put on his clothes. The victim then went downstairs with defendant, talked with him briefly, and followed him to the door to see that he left. Defendant suddenly grabbed the victim and carried her to the couch. Defendant then pulled down the victim’s underwear and unzipped his pants.

During their struggle, defendant choked the victim with his hands and tried to have intercourse with her. When they fell off of the couch, defendant began to choke the victim with a cord until she lost consciousness. Upon regaining consciousness the victim found defendant “trying to have sexual intercourse with [her].” Defendant then engaged in oral sex with her.

Following this, the victim complained about throat pains and asked defendant for some water. Defendant gave the victim a cup of water and called the rescue squad. Defendant was leaving when he encountered the police. He told them that all that the victim said was true. Defendant was arrested and taken into custody where he made an incriminating statement. The victim was then taken to the hospital for treatment.

f — *

We will first address the issue of whether the court erred in failing to instruct the jury on second-degree rape, attempted second-degree rape, second-degree sexual offense, and felonious breaking or entering, all of which are lesser included offenses to those for which defendant was convicted.

Defendant did not object to the instructions at trial. Therefore, this issue was not properly preserved for appeal. In order for the instruction to be the basis of a reversal, it must rise to the [433]*433level of “plain error.” See State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983); United States v. McCaskill, 676 F. 2d 995 (4th Cir. 1982). We have examined the record and determined for the reasons set forth below that no instructional error occurred which would have affected the jury’s decision.

A.

Defendant contends that there is conflicting evidence of whether penetration of the victim actually occurred. He argues that due to this ambiguity in the evidence, the jury should have been instructed on the relevant lesser included offenses. Defendant is incorrect in his assertions. The victim testified that when she regained consciousness, defendant was forcing his penis inside her. She further responded affirmatively when asked whether defendant had put his penis inside her.

Our Supreme Court has on several occasions relied on the rule that “[e]vidence of the slightest penetration of the female sex organ by the male sex organ is sufficient for vaginal intercourse . . . .” State v. Williams, 314 N.C. 337, 351, 333 S.E. 2d 708, 718 (1985). We find that the State introduced sufficient evidence of vaginal penetration through the victim’s testimony to permit a rational jury to find beyond a reasonable doubt that defendant engaged in forced intercourse with the victim.

Additionally, defendant claims that the court erred in not charging the jury on second-degree rape because the evidence was controverted as to whether the cord that he used was a deadly weapon as a matter of law. According to State v. Young, 317 N.C. 396, 346 S.E. 2d 626 (1986), “[i]n order to be characterized as a ‘dangerous or deadly weapon,’ an instrumentality need not have actually inflicted serious injury. A dangerous or deadly weapon is ‘any article, instrument or substance which is likely to produce death or great bodily injury.’ ” Id. at 417, 346 S.E. 2d at 638 (citation omitted) (emphasis original). The Strickland court in upholding a trial court’s instruction that the jury could consider a rope to be a deadly weapon said: “ ‘[a] deadly weapon is not one which must kill but one which under the circumstances of its use is likely to cause death or great bodily harm.’ ” State v. Strickland, 307 N.C. 274, 295, 298 S.E. 2d 645, 659 (1983) (citation omitted).

Furthermore, the court should charge the jury that an instrumentality is deadly “ ‘[w]here the allegedly deadly weapon and [434]*434the manner of its use are of such character as to admit of but one conclusion. . . State v. Torain, 316 N.C. 111, 119, 340 S.E. 2d 465, 470 (1986) (citation omitted). Based upon Torain, the deadly nature of an instrument is a jury question “ ‘where the instrument, according to the manner of its use or the part of the body at which the blow is aimed, may or may not be likely to produce such results, ....’” Id. at 120, 340 S.E. 2d at 470.

In the instant case, as in Torain and Young, the defendant used his weapon to subdue his victim so that his assault could be completed. Here the victim was choked until she lost consciousness. Under these circumstances, the manner in which defendant used the rope could have resulted in the victim’s death by strangulation. There is little question that choking a person with a cord until they lose consciousness could likely result in death or serious bodily injury. Therefore, we believe that the only reasonable inference is that the cord as used by defendant was a dangerous weapon as a matter of law.

Accordingly, we conclude that there was no contradictory evidence which would have compelled the judge to charge the jury on the lesser included offenses. Instructions on the lesser included offenses of first-degree rape are warranted only when there is some doubt or conflict concerning crucial elements of the offense. See State v. Wright, 304 N.C. 349, 283 S.E. 2d 502 (1981).

B.

Defendant also argues that because he entered the victim’s house with a key and did not break the close of her dwelling as proscribed by the burglary statute, he was therefore entitled to have the jury instructed on the lesser offense of felonious breaking or entering. The elements of felonious breaking or entering are “(1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein.” State v. Litchford, 78 N.C. App. 722, 725, 338 S.E. 2d 575, 577 (1986) (emphasis added).

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Bluebook (online)
374 S.E.2d 658, 92 N.C. App. 430, 1988 N.C. App. LEXIS 1067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-charles-ncctapp-1988.