State v. Harris

602 S.E.2d 697, 166 N.C. App. 386, 2004 N.C. App. LEXIS 1779

• Court: Court of Appeals of North Carolina
• Decided: October 5, 2004
• Docket: COA03-1071
• Status: Published

Opinions

McCullough, Judge.

Defendant was found guilty on the charges of common law robbery and second degree rape. The State’s evidence tended to show the following: On 13 April 2002, Shannon Parrott, a sixteen-year-old high school student and the alleged victim in this case, was meeting her friend Kevin at Southern States to walk together to Johnny’s house, their mutual friend. When Kevin did not arrive, the victim walked on to Johnny’s house alone. She alleges she left for Johnny’s sometime after midnight, and walked in total six or seven miles. En route to Johnny’s house, she approached a Texaco gas station and saw a group of men hanging around a trash dump. As she walked past these men, defendant approached her and put his arm around her. Defendant asked the victim if she smoked marijuana, and she replied that she no longer did. Defendant asked where the victim was going a number of times, and she replied that she was going home. Defendant then grabbed her by the back of the neck and dragged her in an alleyway between a house and a church. At the time, the victim was wearing a jacket, T-shirt, sweat pants, and carrying her book bag. In the alleyway, he threw her on the ground, yanking down both her underwear and her pants. He then put his penis in the victim’s vagina without her consent. When the victim tried to scream, defendant put his hand over her mouth and told her to be quiet. He then turned her over and put his penis in her rectum. He then made defendant pull her clothes back on and look for his cell phone. The phone was never seen by the victim. He then threw her down, and forced his penis in the victim’s vagina a second time without her consent. Next, he went through her bag and asked if she had any money. Defendant told the victim to pee and he told her he would kill her if she told anyone about the incident. Next, he took six rings from the victim’s fingers. Defendant left the victim, and she went to her friend Johnny’s house and told him what had happened. The following day the victim told her mother who took her to the police department. While there, the victim identified defendant in a photo lineup. The police department requested that she go to Maria Parham Hospital for a rape kit. At the hospital, a culdoscope was used to take pictures of lacerations, bruising, and tears on the victim’s vaginal and rectal areas.

Defendant’s evidence tended to show the following: Eugene Latta, a witness on the night in question, observed defendant and victim together just walking and talking. He then saw them and they were all hugged up. Latta did not hear a scream and he did not see a rape. During his cross-examination, Latta admitted to making a statement to police that he saw a male subject pull a girl to the side of the church against her will. He wrote the name of defendant. He claimed this statement was false and that he wrote it so the charge would not be pinned on him.

Defendant was 29 years old, married, and had three children. On the night in question, defendant first saw the victim walking near the Texaco gas station at around 11 o’clock. Defendant asked her what she was doing, and she said she was going to a friend’s, and that someone had told her that her boyfriend was mad at her for getting caught having sex in the woods. They talked about hooking up and in fact did so an hour later. Then he and the victim smoked marijuana together before engaging in consensual sexual intercourse lasting twenty minutes. The intercourse was tacitly agreed to in exchange for the marijuana. The victim then offered defendant her rings in exchange for more marijuana. He gave one of the rings to his brother that night for money.

The issues raised by defendant’s appeal are as follows: that the trial court erred when it did not allow defendant to question the victim concerning other alleged sexual activity she had on the day of the incident; that the trial court erred when it denied defendant’s motion to dismiss the charge of second degree rape and common law robbery; and that the trial court erred in composing defendant’s sentence in finding the aggravating factors that defendant’s offenses were especially heinous, atrocious, or cruel; and that defendant was a “predator.” We now address these issues.

I. Rape Shield

Defendant, as preserved by objection at trial, now contends that he should have been able to question the victim concerning alleged sexual activity she had on the evening of the day in question. Specifically, defendant argues that the following testimony, elicited by defendant during an in camera voir dire, should have been allowed to be heard by the jury:

Q. [Defense counsel]: [Victim], can you tell what you did earlier in the day on April 13th?

A. [The victim]: I went to a friend’s house after school.

Q. After school.

A. Yes.

Q. What day of the week was it?

A. I’m not—

Q. (Interposing) I believe, it was a Friday. So, after school you went to a friends.

A. Yes, ma’am.

* * * *

Q. Okay, and what did y’all do?

A. We walked around the neighborhood with some of her friends. * * * *

Q. Okay. And are there woods nearby?

A. Yes, ma’am.

Q. Were you in those woods?

A. Yes, ma’am.

Q. Who were you with?

A. My boyfriend.

* * * *

Q. ... Do you go to school with him or did you go to school with him . . . ?

A. Yes, ma’am.

Q. Okay, did you have sex with him?

A. Attempted to.

Q. . . . [Was] [your friend] and her friend with you at that time?

A. Yes, ma’am.

Q. Did they have sex?

A. They attempted to also.

Q. Okay, so you had your clothes off? Right?

A. I had on a skirt.

* * * *

Q. (Interposing) A skirt, okay.

A. My clothes were still on.

Q. Did he have his pants down?

A. I believe so.

Q. Okay, why did you not have sex?

A. Because it didn’t — something told me it wasn’t right. It didn’t feel right. That it — something told — I had the gut instinct that it would be wrong and that something bad would happen.

Q. Okay, was the fact that he couldn’t get hard have anything to do with it?

A. No, ma’am.

Q. Were y’all smoking pot.

A. No, ma’am.

Q. How long were y’all out in the woods?

A. Not long.

Q. All right. Thirty minutes or less?

A. Less.

Q. Okay. Had you taken a towel out there with you so y’all would have something to lay on?

A. [My friend] did.

Q. Okay. Now, did y’all get in a little bit of trouble with [your friend]’s mom because somebody saw y’all out there?

A. Yes, ma’am.

Q. All right, tell us what happened.

A. [My friend]’s mom made me go home and she took [my friend] to the Granville County Hospital.

The State then asked:

Q. [The State]: [Victim], when you attempted to have sex with [your boyfriend], did he hurt you in anyway.

A. No, ma’am.

Q. Did you attempt any anal intercourse? Did you have anal intercourse with [him]?

A. No ma’am.

The trial court then asked:

The Court: [Victim], when you had the sexual encounter with this other person, prior to the events that you testified to with respect to the defendant, was there sexual penetration? Do you remember? Do you know what I am talking about?

A. [The victim]: No sir.

The Court: You don’t. Let me be more explicit with you, if I can.

The boy with whom you had the — the boy with whom you tried to have sex earlier that day, did he put his penis into your vagina.

A. No, not quite.

The Court: Not quite. Did he attempt to?

A. Yes,, sir.

The court did not allow any of this testimony to be heard based upon its application of North Carolina’s rape shield law. Defendant contends one of the exceptions to the law applies.

N.C. Gen. Stat. § 8C-1, Rule 412 (2003), provides that “the sexual behavior of the complainant is irrelevant to any issue in the prosecution” except in four narrow situations. The exception defendant attempted to apply at trial, and that is the básis of this issue on appeal, states as follows:

(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendantf.]

N.C. Gen. Stat. § 8C-1, Rule 412(b)(2). Defendant’s defense at trial was consent. He believed that the evidence of the prior sexual encounter the victim had with her boyfriend may account for some of the physical evidence of the alleged force by defendant which was used for the rape conviction.

The State argues that this issue is governed by State v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (1980). Fortney analyzed and found as constitutional the nearly identical rape shield law, N.C. Gen. Stat. § 8-58.6 (1980), before it was moved into N.C. Gen. Stat. § 8C-1 and the rules of evidence. Fortney, 301 N.C. at 36, 269 S.E.2d at 112. In Fortney, three different blood types of semen were found on the victim’s panties, stockings, and robes. Upon cross-examination, the victim testified that she had intercourse with her boyfriend a day and a half before the rape, and that she was wearing the same underwear she wore the morning of the rape. She further testified she had not washed her bathrobe for at least a year and that her prior roommate, a sister, had worn it at times. At the conclusion of the in camera voir dire in that case, the trial court did not allow any questioning as to the various sources of the semen finding them to be irrelevant and inadmissible. Id. at 33, 269 S.E.2d at 110. The court did allow the defense counsel to question the victim at trial as to her sexual activity with third persons on the night of the crime. Id. Our Supreme Court found there to be no error made by the trial court in the in camera review. The court went on to state in dicta:

The statute’s exceptions provide ample safeguards to insure that relevant evidence is not excluded. G.S. 8-58.6(b)(2) specifically provides: “(b) The' sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior: ... (2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant. ...” This exception is clearly intended, inter alia, to allow evidence showing the source of sperm, infurtes or pregnancy to be someone or something other than the defendant. See generally, Tanford & Bocchino, supra at 553.

Id. at 41, 269 S.E.2d at 114 (emphasis added) (footnote omitted).

In the instant case, we find the facts of Fortney distinguishable, and the dicta interpreting Rule 412(b)(2), then N.C. Gen. Stat. § 8-58.6(b)(2), applicable. Unlike Fortney, the sexual activity sought to be admitted before the jury relates to a sexual encounter by the victim on the day of the alleged rape. However, even in Fortney, the trial judge allowed questioning as to sexual encounters with third parties on the night of the crime. However, evidence of intercourse on the same day is clearly not always admissible. See State v. Rhinehart, 68 N.C. App. 615, 316 S.E.2d 118 (1984) (The victim had consensual sex with her former boyfriend of four years on the night of the incident.). In this case the evidence is relevant and probative as to whether or not the victim consented to having sex with defendant. Had she consented, then it is within reason that no physical evidence of vaginal injury on the victim was caused by defendant. Thus, if the jury found the lacerations on the vagina (which evidence was used by the State to prove the rape) to have been caused by the attempted sexual encounter earlier that day, they could still harbor reasonable doubt as to whether or not the victim consented to having sex with defendant. The fact that there was evidence of lacerations and bruising to the victim’s rectal area does not negate the relevancy of the victim’s sexual encounter on the day of the incident and that injuries to her vaginal area may have been caused by someone other than defendant. One element of second degree rape is that the intercourse be vaginal. N.C. Gen. Stat. § 14-27.3 (2003).

Therefore, we reverse on this issue, and grant a new trial in which the evidence of the prior sexual encounter on the day of the alleged rape should be admitted. See State v. Guthrie, 110 N.C. App. 91, 428 S.E.2d 853, disc. review denied, 333 N.C. 793, 431 S.E.2d 28 (1993). Furthermore, we reverse and .grant a new trial on the charge of common law robbery as we believe the victim’s credibility after cross-examination as to her prior sexual encounter is essential to support all charges stemming from the entire criminal transaction.

II. Aggravating Factors

Though defendant has been granted a new trial, we here address those issues relating to defendant’s sentencing which may recur at any new trial and to which defendant assigned as error. On the felony judgment form finding aggravating and mitigating factors, the trial court found the statutory aggravating factor that “the offense was especially heinous, atrocious, or cruel.” Additionally, the court found the nonstatutory aggravating factor that defendant “IS A PREDATOR[].” These findings by the court were used to enhance defendant’s sentence for his offenses into the aggravated sentencing range. Defendant believes both of these factors in aggravation were found in error. We agree.

A. The Offense was Especially Heinous, Atrocious, or Cruel

The U.S. Supreme Court recently held that the “statutory maximum” for any offense is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, - U.S. -, -, 159 L. Ed. 2d 403, 413. The high Court further explained that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, - U.S. at -, 159 L. Ed. 2d at 413-14 (emphasis added). Thus, any additional findings that may be used to increase a defendant’s sentence, but not found by the jury, are otherwise made in violation of defendant’s Sixth Amendment Right to trial by jury. Id. at -, 159 L. Ed. 2d at 415. The only exception to this would be if the defendant has stipulated to those facts which have increased his sentence, or waived his right to a jury. Id. at -, 159 L. Ed. 2d at 417-18.

Our Court, in State v. Allen, 166 N.C. App. 139, 149, 601 S.E.2d 299, 306 (2004), adopted the high Court’s principles in Blakely to North Carolina’s sentencing scheme concerning a court’s ability to enhance a defendant’s sentence by finding factors in aggravation. See N.C. Gen. Stat. § 15A-1340.16 (2003). In Allen we held that, pursuant to Blakely, the defendant was denied his Sixth Amendment right to a jury trial when the trial court unilaterally found that the offense that defendant committed in that case was “especially heinous, atrocious and cruel.” Allen, 166 N.C. App. at 147-48, 601 S.E.2d at 305.

Therefore, pursuant to Allen and Blakely, should the court at any new trial use a factor in aggravation to impose a sentence beyond the presumptive term for which defendant has been found guilty, the fact must be found by the following: beyond a reasonable doubt by the jury, stipulated to by defendant, or defendant shall have waived his right to a jury such that judicial fact finding would be appropriate.

B. Defendant is a Predator

Turning to the next sentencing issue that may arise at any new trial. The term “predator” in the North Carolina’s criminal code, as related to sex offenses, is a specifically defined legal classification of sex offenders. N.C. Gen. Stat. § 14-208.6(6) (2003) defines a “sexually violent predator” as:

(6) “Sexually violent predator” means a person who has been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in sexually violent offenses directed at strangers or at a person with whom a relationship has been established or promoted for the primary purpose of victimization.

N.C. Gen. Stat. § 14-208.20 (2003) provides procedures for determining if an individual is a sexually violent predator for the purpose of this criminal classification. The statute states:

(a) ... If the district attorney intends to seek the classification of a sexually violent predator, the district attorney shall within the time provided for the filing of pretrial motions under G.S. 15A-952 file a notice of the district attorney’s intent. . . .

(b) Prior to sentencing a person as a sexually violent predator, the court shall order a presentence investigation in accordance with G.S. 15A-1332(c). However, the study of the defendant and whether the defendant is a sexually violent predator shall be conducted by a board of experts selected by the Department of Correction. The board of experts shall be composed of at least four people. Two of the board members shall be experts in the field of the behavior and treatment of sexual offenders, one of whom shall be selected from a panel of experts in those fields provided by the North Carolina Medical Society and not employed with the Department of Correction or employed on a full-time basis with any other State agency. One of the board members shall be a victims’ rights advocate, and one of the board members shall be a representative of law enforcement agencies.

(c) When the defendant is returned from the presentence commitment, the court shall hold a sentencing hearing in accord-anee with G.S. 15A-1334. At the sentencing hearing, the court shall, after taking the presentencing report under advisement, make written findings as to whether the defendant is classified as a sexually violent predator and the basis for the court’s findings.

N.C. Gen. Stat. § 14-208.20. When classified as a sexually violent predator, a defendant, among other requirements, must maintain registration as a sex offender for life. See N.C. Gen. Stat. § 208.23; N.C. Gen. Stat. § 14-208.6A (2003). However, there are no sentencing implications in the court’s finding of a defendant to be a predator under this statute that allow the court to extend a defendant’s sentence beyond the presumptive range for the sex crime for which he has been convicted. It is purely a means of classification.

We believe that in the case at bar, in light of the potential misuse and confusion which may be caused due to the other legal implications of the term predator, the court’s listing “DEFENDANT IS A PREDATOR” as a nonstatutory factor in aggravation was improper and should not be considered at any new trial for such purposes.

After close review of the transcript, record, and briefs, we hereby grant defendant a new trial.

New trial.

Judge HUDSON concurs. Judge LEVINSON dissents in part and concurs in part.