State v. Smith

429 S.E.2d 425, 110 N.C. App. 119, 1993 N.C. App. LEXIS 435

• Court: Court of Appeals of North Carolina
• Decided: May 18, 1993
• Docket: 9213SC104
• Status: Published

Opinions

EAGLES, Judge.

I.

Defendant first argues that the trial court erred by denying his motion to dismiss the indictment in 91CrS3100 (first degree sexual offense) because the indictment failed to properly allege an offense as required by G.S. § 15-144.2 and G.S. § 15A-924. Specifically, defendant argues that the indictment was insufficient under G.S. § 15-144.2, G.S. § 15A-924 and State v. Dillard, 90 N.C. App. 320, 368 S.E.2d 422 (1988), because it failed to allege that the offense was committed with force and arms.

In State v. Corbett, 307 N.C. 169, 297 S.E.2d 553 (1982), our Supreme Court addressed substantially the same argument as it related to first degree rape. Our Supreme Court noted that G.S. § 15-155 provided, in part, that:

No judgment upon any indictment for felony or misdemeanor, whether after verdict, or by confession, or otherwise, shall be stayed or reversed for . . . omission of the words . . . “with force and arms,” ....

Id. at 174, 297 S.E.2d at 558. Our Supreme Court then held:

We therefore must determine whether the inclusion of the averment “with force and arms,” though not necessary by virtue of G.S. § 15-155, is nevertheless mandated by G.S. § 15444.1(a). We do not read this statute as either requiring the averment or as expressing a legislative intent that the language in G.S. § 15444.1(a) prevail over the express language in G.S. § 15-155 which states in effect that no judgment shall be stayed or reversed because of the omission of the words “with force and arms” from the indictment. As the bill of indictment upon which defendant was charged comports with the requirements of G.S. § 15444.1(a), this assignment of error is overruled.

Id. at 175, 297 S.E.2d at 558.

The holding in Corbett applies with equal force here. In any event, we note that the indictment here uses the words “by force and against the victim’s will[.]” This language is sufficient. See, State v. Dillard, 90 N.C. App 318, 368 S.E.2d 422 (1988) (upholding sexual offense indictment that used the words “by force and against the victim’s will” instead of “with force and arms”). This assignment is overruled.

II.

Defendant next argues that the trial court erred by failing to dismiss the charge of kidnapping because there was insufficient evidence that the purpose of the kidnapping was to terrorize Ms. Watters. We disagree.

“[W]here the indictment for a crime alleges a theory of the crime, the State is held to proof of that theory and the jury is only allowed to convict on that theory.” State v. Taylor, 304 N.C. 249, 275, 283 S.E.2d 761, 778 (1981), cert. denied, 463 U.S. 1213, 77 L. Ed. 2d 1398, rehearing denied, 463 U.S. 1249, 77 L. Ed. 2d 1456 (1983).

Defendant contends that a review of the evidence will show that the purpose of the kidnapping of Ms. Watters was either to hold her as a hostage or to obtain another vehicle to facilitate a bank robbery. The indictment alleges that the defendant kidnapped Ms. Watters “for the purpose of terrorizing her.” Defendant’s argument overlooks a record replete with evidence from which a jury could find that the defendant kidnapped Ms. Watters with the intent to terrorize her.

The defendant kidnapped Ms. Watters from her work site and immediately began to transport her to a secluded wooded area. Mr. Carr testified that while en route the defendant placed a knife against Ms. Watters’ throat and “told her he would cut her head off” if she did not answer his questions honestly. Ms. Watters testified that during virtually the entire ordeal the defendant held her at gunpoint, that on several occasions the defendant placed a gun at the back or side of her head, and that on no less than two occasions the defendant discharged a firearm near the back of her head. Indeed, Mr. Carr testified that after the second occasion, the defendant told him, “I was just trying to scar [sic] her, but I made you look like the heavy. I told her you sent me back there to kill her.” Furthermore, Ms. Watters testified that the defendant placed a gun beside her head, told her to raise her head and then placed his penis in her mouth. After a minute the defendant “backed up and kind of laughed, and said [he] was just trying to prove a point.” This evidence is sufficient for a jury to infer an intent to terrorize. Accordingly, this argument is overruled.

III.

Defendant next argues that the trial court erred by denying his motion to dismiss the charge of armed robbery because there was insufficient evidence that the defendant intended to permanently deprive the owner of the possession of the truck Ms. Watters was driving. Defendant cites State v. Smith, 268 N.C. 167, 150 S.E.2d 194 (1966).

In Smith, our Supreme Court stated that “[i]n robbery, as in larceny, the taking of the property must be with the felonious intent permanently to deprive the owner of his property.” Id. at 170, 150 S.E.2d at 198. (Citations omitted.) However, the Court then went on to hold that:

When, in order to serve a temporary purpose of his own, one takes property (1) with the specific intent wholly and permanently to deprive the owner of it, or (2) under circumstances which render it unlikely that the owner will ever recover his property and which disclose the taker’s total indifference to his rights, one takes it with the intent to steal (animus furandi). A man’s intentions can only be judge by his words and deed; he must be taken to intend those consequences which are the natural and immediate results of his acts. If one who has taken property from its owner without any color of right, his intent to deprive the owner wholly of the property “may, generally speaking, be deemed proved” if it appears he “kept the goods as his own ’til his apprehension, or that he gave them away, or sold or exchanged or destroyed them. . . .” State v. South, 28 N.J.L. 28, 30, 75 Am. Dec. 250, 252.

Id. at 173, 150 S.E.2d at 200.

Defendant argues that there is no evidence that the defendant intended to permanently deprive the owner of the truck. To the contrary, we find more than ample evidence that the defendant had the specific intent to wholly and permanently deprive the owner of the possession of the truck and no evidence that the defendant “took the vehicle for a temporary use only.”

Defendant points out that the defendant “left the truck in plain view and in the vicinity of Leland, North Carolinaf,]” and based on that fact, defendant contends there is no evidence that the defendant intended to permanently deprive the owner of the truck of its use.

Mr. Carr testified that the defendant “[o]ffered [his brother] the truck or anything he wanted.” Additionally, Mr. Carr testified that after the defendant’s brother refused the truck, he and the defendant drove the truck about a mile down the road. The two men got out of the truck, and the defendant fired several shots with a .38 pistol into the truck “where the gas tank was at.” The State has presented ample evidence that the defendant intended to permanently deprive the owner of the truck.

IV.

By this argument defendant contends that the trial court erred in denying his request for special instructions on armed robbery. Defendant reiterates his contention that there was insufficient evidence of defendant’s intent to permanently deprive the owner of the truck of its use. Defendant’s brief argues:

At the instruction conference the Defendant tendered a written instruction on the charge of armed robbery. It requested that the court instruct the jury that in order to find the Defendant guilty of armed robbery they must find beyond a reasonable doubt that the Defendant had the specific intent to deprive the owner permanently of possession of the 1990 truck and to convert it to his own use and if they did not so find or had reasonable doubt as to that then they should find the Defendant not guilty of armed robbery.

We have closely examined the instructions given by the trial court and hold they give the defendant’s requested instruction in substance. Accordingly, this assignment is overruled. State v. Corn, 307 N.C. 79, 296 S.E.2d 261 (1982).

V.

Defendant next argues that the trial court erred by denying his request to instruct the jury on the lesser included offense of attempted first degree sexual offense. We disagree.

The law is well settled that the trial court must submit and instruct the jury on a lesser included offense when, and only when, there is evidence from which the jury could find that defendant committed the lesser included offense. However, when the State’s evidence is positive as to every element of the crime charged and there is no conflicting evidence relating to any element of the crime charged, the trial court is not required to submit and instruct the jury on any lesser included offense. The determining factor is the presence of evidence to support a conviction of the lesser included offense.

State v. Boykin, 310 N.C. 118, 121, 310 S.E.2d 315, 317 (1984) (citations omitted). Error in failing to instruct on a lesser offense is not cured by a verdict of guilty of the greater offense. State v. Bell, 284 N.C. 416, 200 S.E.2d 601 (1973).

Defendant argues that there is conflicting evidence warranting instruction on the lesser offense of attempted first degree sexual offense. At trial Ms. Watters testified that the defendant “placed his penis in [her] mouth.” The defendant “stayed there about a minute and backed up and kind of laughed, and said I was just trying to prove a point.” Det. Simpson testified that she took a statement from Ms. Watters. According to that statement, Ms. Watters told Det. Simpson that the defendant “placed his penis in her mouth.” Det. Caison also took a statement from Ms. Watters. According to that statement, Ms. Watters said she “got on her knees, and the [defendant] told [her] that he wanted oral sex. [The defendant] then changed his mind and said he couldn’t do it.” Mr. Carr also gave a statement to Det. Caison. That statement provided that the defendant told Mr. Carr that “he tried to get her to have oral sex with him but that she didn’t want to.” Mr. Carr further testified under cross-examination:

Q. And you recall to the best of your ability that Mr. Smith said to you that he attempted to get — to have her perform oral sex but that she refused?

A. Yes, sir. That’s what he informed me of, yes.

“The mere possibility that the jury might believe part but not all of the testimony of the prosecuting witness is not sufficient to require the Court to submit to the jury the issue of the defendant’s guilt or innocence of a lesser offense than that which the prosecuting witness testified was committed.” State v. Lampkins, 286 N.C. 497, 505, 212 S.E.2d 106, 110 (1975), cert. denied, 428 U.S. 909, 49 L. Ed. 2d 1216 (1976). Here, Ms. Watters testified at trial that the defendant placed his penis in her mouth. The mere possibility that the jury might infer from her statement to Det. Caison that the defendant did not force her to perform oral sex is not sufficient to require the court to submit the lesser offense to the jury.

Moreover, the defendant’s statement to Mr. Carr does not conflict with Ms. Watters’ testimony. Mr. Carr told Det. Caison that the defendant said “he tried to get her to have oral sex with him, but that she didn’t want to.” The act of oral sex entails more than is required for conviction of first degree sexual offense by fellatio. Fellatio only requires “any touching by the lips or tongue of one person of the male sex organ of another.” State v. Hewett, 93 N.C. App. 1, 12, 376 S.E.2d 467, 473 (1989) (citing State v. Bailey, 80 N.C. App. 678, 682, 343 S.E.2d 434, 437 (1986), review dismissed, 318 N.C. 652, 350 S.E.2d 94 (1986)). The defendant’s statement that Ms. Watters refused to perform oral sex does not refute Ms. Watters’ testimony that the defendant “placed his penis in [her] mouth.” But cf. State v. Rhinehart, 322 N.C. 53, 366 S.E.2d 429 (1988). Accordingly, this assignment is overruled.

VI.

Defendant next argues that the trial court erred by failing to give an instruction on armed robbery’s lesser included offense, assault with a deadly weapon, because there was conflicting evidence of the defendant’s specific intent to permanently deprive the owner of the use of his property. Specifically, defendant claims he was entitled to the instruction for two reasons: (1) there is conflicting evidence of defendant’s intent to permanently deprive and (2) there was evidence that the defendant was intoxicated.

“Assault with a deadly weapon is a lesser included offense of the crime of robbery by firearm.” State v. Davis, 31 N.C. App. 590, 591, 230 S.E.2d 203, 204 (1976). Intent is not an element of assault with a deadly weapon. State v. Curie, 19 N.C. App. 17, 198 S.E.2d 28 (1973). Accordingly, if there was evidence supporting a finding of lack of intent, the court should have instructed on the lesser offense.

We have already decided defendant’s first argument against him under heading III, supra. The dispositive question here, then, is whether the defendant’s alleged intoxication required the trial court to instruct on assault with a deadly weapon.

We hold that there is ample evidence in the record to warrant submission of the lesser offense of assault with a deadly weapon to the jury. Mr. Carr testified that the defendant began drinking liquor during the morning of 22 April 1991, and that during the day, the defendant consumed “many” alcoholic drinks. Mr. Carr also testified that when they were in the woods, the defendant “was drunk and beginning to get real crazy.” Ms. Watters testified that when the defendant got into the truck with her she noticed the odor of alcohol about him. She also testified that after Mr. Carr got into the truck she saw the defendant drink “[a] swallow or two” of brandy or whiskey from a partially empty bottle. Based on this testimony, the trial court instructed the jury that it could consider the evidence of defendant’s intoxication to determine whether the defendant had the requisite specific intent necessary to commit the crime of armed robbery with a firearm.

We hold that based on this same testimony the trial court should have submitted to the jury the lesser offense of assault with a deadly weapon. Accordingly, we reverse defendant’s conviction for robbery by firearm and remand for a new trial on this charge.

We note in passing, however, that the State argues that “[t]he defendant did not request further specific instruction linking the intoxication with an assault charge and he did not object to the instruction given.” The transcript clearly reveals that defense counsel asked the trial court to instruct the jury on the lesser offense of assault with a deadly weapon based on lack of evidence of “permanent deprivation of property.” This was sufficient to preserve the instruction for appeal. In any event, “[rjegardless of requests by the parties, a judge has an obligation to fully instruct the jury on all substantial and essential features of the case embraced within the issue and arising on the evidence.” State v. Harris, 306 N.C. 724, 727, 295 S.E.2d 391, 393 (1982). “[W]hen there is some evidence supporting a lesser included offense, a defendant is entitled to a charge thereon even when there is no specific prayer for such instruction. . . .” Bell, 284 N.C. at 419, 200 S.E.2d at 603 (1973).

The State also argues that “the evidence does not even support the intoxication charge. See, State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986).” Johnson is clearly distinguishable from the instant case. In Johnson our Supreme Court rejected defendant’s argument that the trial court should have instructed on intoxication by drugs. In doing so the Court noted that there was no evidence to support the defendant’s assertion that he had consumed drugs or was intoxicated at the relevant time.

VII.

Finally, defendant argues that the jury should have been instructed on the lesser included offense of second degree kidnapping. Defendant argues that there was evidence from which the jury could conclude that the victim was released in a safe place. We disagree.

Defendant contends that the only evidence concerning where the victim was released was Det. Caison’s statement that she was released in a “woodland” area. Ms. Watters testified that she was left tied to a tree in a wooded area off of a dirt road. Moreover, defendant completely overlooks the remainder of Det. Caison’s description of the area where Ms. Watters was left. Det. Caison testified that the area was 45 feet off a dirt road and 93 feet down a path to the tree. Det. Caison also testified that the ground was damp, and that when he returned to the area the next day he saw snakes. This argument is wholly without merit.

VIII.

In conclusion, we find no error in defendant’s convictions for first degree kidnapping (91 CRS 2720), larceny of a firearm (91 CRS 2722), and first degree sexual offense (91 CRS 3100). We reverse defendant’s conviction for robbery with a firearm (91 CRS 3332) and remand for a new trial.

No error in part; reversed and remanded in part.

Judge WYNN concurs. Judge COZORT concurs in part and dissents in part.