State v. Midyette

360 S.E.2d 507, 87 N.C. App. 199, 1987 N.C. App. LEXIS 3116
CourtCourt of Appeals of North Carolina
DecidedOctober 6, 1987
Docket8710SC299
StatusPublished
Cited by23 cases

This text of 360 S.E.2d 507 (State v. Midyette) 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. Midyette, 360 S.E.2d 507, 87 N.C. App. 199, 1987 N.C. App. LEXIS 3116 (N.C. Ct. App. 1987).

Opinions

MARTIN, Judge.

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 [202]*202(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 [203]*203twenty-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 [204]*204judge 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:

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Bluebook (online)
360 S.E.2d 507, 87 N.C. App. 199, 1987 N.C. App. LEXIS 3116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-midyette-ncctapp-1987.