State v. Summitt

273 S.E.2d 425, 301 N.C. 591, 1981 N.C. LEXIS 1010

• Court: Supreme Court of North Carolina
• Decided: January 6, 1981
• Docket: 41
• Status: Published

Opinions

BRANCH, Chief Justice.

Defendant assigns as error the action of the trial judge in submitting to the jury, over his objection, the lesser-included offense of second-degree rape. Defendant argues that it was error to submit the lesser-included offense of second-degree rape because there was no evidence from which the jury could find that he committed that offense. Defendant was charged under the provisions of former G.S. 14-21, repealed effective 1 January 1980 which provided:

Every person who ravishes and carnally knows any female of the age. of 12 years or more by force and against her will, or who unlawfully and carnally abuses any female child under the age of 12 years, shall be guilty of rape, and upon conviction, shall be punished as follows:

(1) First-Degree Rape -

a. If the person guilty of rape is more than 16 years of age, and the rape victim is a virtuous child under the age of 12 years, the punishment shall be death; or

b. If the person guilty of rape is more than 16 years of age, and the rape victim had her resistance overcome or her submission procured by the use of a deadly weapon, or by the infliction of serious bodily injury to her, the punishment shall be death.

(2) Second-Degree Rape - Any other offense of rape defined in this section shall be a lesser-included offense of rape in the first degree and shall be punished by imprisonment in the State’s prison for life, or for a term of years, in the discretion of the court.

The trial judge gave the following instructions to the jury on second-degree rape:

If you do not find the defendant guilty of first-degree rape, you must decide whether he is guilty of second-degree rape. Second-degree rape differs from first-degree rape in that it is not necessary for the State to prove that the defendant was more than sixteen years of age or that Sherry Lynn Knight was virtuous.

So, I charge that if you find from the evidence beyond a reasonable doubt that on or about March 24, 1978, Mark Summitt had sexual intercourse with Sherry Lynn Knight who at that time had not reached her twelfth birthday, it would be your duty to return a verdict of guilty of second-degree rape. However, if you do not so find or have a reasonable doubt as to one or both of these things, you will not return a verdict of guilty of second-degree rape.

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Now, Members of the Jury, I want to instruct you as to second-degree rape because in my earlier charge to you I left out a portion of it.

If you do not find the defendant guilty of first-degree rape, you must decide whether he is guilty of second-degree rape. Second-degree rape differs from first-degree rape in that it is not necessary for the State to prove the defendant was more than sixteen years of age or that Sherry Lynn Knight was virtuous.

So, I charge that if you find from the evidence beyond a reasonable doubt that on or about March 24,1978, Mark Summitt had sexual intercourse with Sherry Lynn Knight who at that time had not reached her twelfth birthday, it would be your duty to return a verdict of guilty of second-degree rape.

The trial judge must submit and instruct the jury on a lesser-included offense when, and only when, there is evidence from which the jury can find that a defendant committed the lesser-included offense. Conversely, when all the evidence tends to show that defendant committed the crime charged in the bill of indictment and there is no evidence of the lesser-included offense, the court should refuse to charge on the lesser-included offense. State v. Redfern, 291 N.C. 319, 230 S.E. 2d 152 (1976). The presence of evidence to support conviction of the lesser-included offense is the determinative fact. State v. Harris, 290 N.C. 681, 228 S.E. 2d 437 (1976).

Evidence would be sufficient to carry a case to the jury on a charge of second-degree rape of a twelve-year-old child pursuant to G.S. 14-21 when the evidence fails to support any one of the elements of first-degree rape enumerated in G.S. 14-21(l)(a), to wit, (1) the age of the prosecuting witness is less than twelve years old, (2) the age of defendant is more than sixteen years old, (3) the virtuous character of the prosecuting witness. Neither defendant nor the State contends that the age of the prosecuting witness or the age of defendant is in doubt. The State contends however that evidence exists in the record to support the submission and an instruction on the lesser offense since there was sufficient evidence to permit the jury to find that the prosecuting witness was not virtuous.

The State emphasizes two aspects of the evidence to support the instruction on the lesser offense. First, the State points to the medical evidence which indicated that the victim had previously engaged in sexual intercourse. Second, the State notes that during the prosecuting witness’s testimony she twice stated that the rape did not cause any bleeding. The State contends that this evidence is sufficient to support a reasonable inference that the prosecuting witness was not virtuous.

The standard to determine whether a charge should be submitted to a jury is the “more than a scintilla of evidence” test. The classic statement- of the test comes from Stacy, C.J., in State v. Johnson, 199 N.C. 429, 431, 154 S.E. 730, 731 (1930), where he states:

It is sometimes difficult to distinguish between evidence sufficient to carry a case to the jury, and a mere scintilla, which only raises a suspicion or possibility of the fact in issue. [Citations omitted.] The general rule is that, if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.

The medical evidence relied upon by the State cannot be considered in support of its position. The examination of the prosecuting witness took place about a year after the incident and, while relevant to the issue of prior sexual activity as some evidence of defendant’s guilt, the evidence is irrelevant as to the question of the victim’s condition at the time of the alleged rape. Nothing in the doctor’s testimony gives the jury a time frame from which it could reasonably conclude that the prosecuting witness was not virtuous on or before March, 1978.

The prosecuting witness’s testimony that she did not bleed when she had her encounter with defendant does have some tendency to support the inference that she was not virtuous at the time of the incident. However, without more we cannot say that this meets the standard which would permit the case to go to the jury. It is common knowledge that a female person’s hymen may be ruptured by many means other than sexual intercourse. Thus, in our opinion, the evidence relied upon by the State to support an inference that the prosecuting witness was not virtuous does not rise above a scintilla. The evidence may raise “a suspicion or conjecture,” but it does not support “a fairly logical and legitimate deduction.” Therefore, it was error for the trial judge to submit to the jury and instruct on the lesser-included offense of second-degree rape.

We turn to the question of whether the erroneous submission of the lesser-included offenses was so prejudicial to defendant as to warrant a new trial.

For many years, it has been the rule in this jurisdiction that the erroneous submission of a lesser-included offense not supported by the evidence is error, but not prejudicial error. State v. Vestal, 283 N.C. 249, 195 S.E. 2d 297 (1973); State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431 (1956); State v. Quick, 150 N.C. 820, 64 S.E. 168 (1909); State v. Alston, 113 N.C. 666, 18 S.E. 692 (1893). However, in State v. Ray, 299 N.C. 151, 261 S.E. 2d 789 (1980), a new dimension was added to this rule by applying the harmless error test to the facts and circumstances peculiar to each case.

The harmless error test, other than in constitutional matters, requires a finding of prejudice to a defendant when there is a reasonable possibility that had the error not been committed a different result would have been reached at the trial. State v. Ray, supra; G.S. 15A-1443.

In Ray the defendant was charged with first-degree murder and at the close of the evidence, the court submitted to the jury alternative verdicts of second-degree murder, manslaughter, involuntary manslaughter, not guilty and not guilty by reason of self-defense and defense of another. All the evidence disclosed that the defendant intentionally shot the victim and the only defense was self-defense and defense of another. Defendant was convicted of involuntary manslaughter, and his appeal presented the sole question of whether the court committed prejudicial error in submitting the alternative possible verdict of involuntary manslaughter.

In writing the majority opinion, Justice Exum (Justice Copeland dissenting, and Chief Justice Branch joining in the dissent) reasoned that the trial judge erred in distinguishing involuntary manslaughter from manslaughter and second-degree murder by focusing on intent to kill rather than the presence of an intentional act, thereby “short-circuiting” the jury’s consideration of defendant’s claims of self-defense and defense of another. The majority further reasoned that, if the jury had been required to squarely face the real issue of self-defense or the right to defend another, there was a reasonable possibility that a verdict of not guilty might have resulted. In reversing the Court of Appeals’ finding of no prejudicial error, Justice Exum, inter alia, wrote:

We emphasize that the result reached here should not be read as casting any doubt on the validity of earlier decisions of this Court or of the Court of Appeals. Our decision today does no more than recognize that a verdict based upon the erroneous submission of a lesser included offense not supported by the evidence does not invariably constitute error favorable to a defendant as a matter of law. Whether such an error is harmless depends instead upon the facts and circumstances peculiar to each case. We hold simply that the facts and circumstances peculiar to the instant case warrant a conclusion that, absent the erroneous sumission on involuntary manslaughter, there is a reasonable possibility that the jury would have returned a verdict of acquittal. The error complained of was therefore prejudicial to the defendant. G.S. ISA-1442 ....

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The principle applied in our cases so far, then, is nothing more than an application of the well recognized doctrine of harmless error, now codified in G.S. 15A-1442 and G.S. 15A-1443. Stated simply, thatdoctrine provides thatonly those errors which prejudice a defendant will entitle him to relief on appeal. G.S. 15A-1442. And a defendant is “prejudiced” by errors other than constitutional ones only when “there is a reasonable possibility that, had the error in question not been committed, a different result [favorable to defendant] would have been reached at the trial —” G.S. 15A-1443. Thus, where there is no reasonable possibility that a verdict more favorable to defendant would have occurred absent an erroneous instruction on a lesser offense not supported by the evidence, the error occasioned by such instruction is harmless. Conversely, where there does exist a reasonable possibility that defendant would have been acquitted had not the lesser offense been erroneously submitted, the error is prejudicial and defendant is entitled to appellate relief.

Id. at 167 and 163-64, 261 S.E. 2d at 799 and 797.

The instant case is not governed by Ray. The case subjudice is controlled by the rule set out in the original line of cases represented by State v. Vestal, supra. We are of the opinion that the language in State v. Quick, supra, accurately sets forth the rule and its rationale.

In Quick the defendant was charged with second-degree murder and convicted of voluntary manslaughter. On appeal he contended that there was no evidence to support the charge of the lesser-included offense. Although the Court found there was evidence to support the lesser charge, the Court in a dictum statement wrote:

Suppose the court erroneously submitted to the jury a view of the case not supported by evidence, whereby the jury were permitted, if they saw fit, to convict of manslaughter instead of murder, what right has the defendant to complain? It is an error prejudicial to the State, and not to him. His plea of self-defense had been fully and fairly presented to the jury and rejected by them as untrue. What, then, was the duty of the jury, if there was no evidence of manslaughter? Clearly, under the law, they should have convicted the defendant of murder in the second degree.

Id. at 823-24, 64 S.E. at 170.

In instant case, defendant’s sole defense was that he did not commit the act upon which the greater and lesser offenses were based. There is no contention that there was anything in the charge to the jury which clouded that defense. Thus, the jury’s verdict finding him guilty of second-degree rape implicitly, but clearly, rejected his defense that he did not commit the act upon which the charges were based. When the jury discarded defendant’s sole defense, all the evidence pointed to the greater crime of first-degree rape. Therefore, the submission of the lesser-included offense was not prejudicial to defendant but to the contrary was in his favor.

Defendant next assigns as error the failure of the trial judge to grant his motion for judgment as of nonsuit. He contends that the State’s evidence was so inconsistent that it could not support a verdict of guilty.

In support of his position, defendant relies upon the case of State v. Williams, 185 N.C. 685, 116 S.E. 736 (1923), which stands for the proposition that a case of this nature should be subjected to close examination and scrutiny by the jury.

A motion for judgment of nonsuit is correctly denied if there is competent evidence to support the allegations contained in the bill of indictment. Evidence tending to support these allegations must be considered in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from such evidence. State v. Bell, 285 N.C. 746, 208 S.E. 506 (1974). Further, this Court has consistently applied the rule that contradictions and discrepancies are for the jury to resolve and the presence of such contradictions and discrepancies does not warrant nonsuit. State v. McKinney, 288 N.C. 113, 215 S.E. 2d 578 (1975). Here the prosecuting witness testified that defendant had intercourse with her on or about Friday before Easter. She testified that she was born on 18 November 1966 and therefore was under the age of twelve years old at that time. She also testified that she had never had sexual intercourse with anyone prior to the incident on or about the Friday before Easter in the year 1978. The fact that defendant was over sixteen years of age was not contested.

Applying the above-stated rules of law, we hold that there was plenary evidence to carry the case to the jury.

Defendant contends that the trial judge erred by permitting the witness, Linda Harris, to testify concerning a conversation she had with the prosecuting witness in the fall of 1978. Defendant takes the position that the witness’s testimony had the effect of altering the date fixed in the bill of indictment. Our careful examination of this record discloses that the witness, Linda Harris, made no statement as to the date of the alleged incident.

Finally, defendant contends that he was denied a fair trial because of the court’s instructions as to the date of the offense. He contends that, because the judge expressly instructed the jury as to the date of the July charge and did not so instruct on the 24 March charge, that the jury was left with the impression that the date of that crime was of no concern. The record reveals an exchange between defense counsel and the prosecutor concerning the July charge which necessitated the instruction there given. A contextual reading of the record makes it clear that the jury’s consideration of the crime of which defendant stands convicted was restricted to his actions on or about 24 March 1978. The record reveals nothing indicating that defendant was surprised or hampered by any attempt of the State to alter the date charged in the bill of indictment. Defendant clearly had full opportunity to meet the State’s evidence and did squarely meet the State’s evidence concerning his actions on or about 24 March 1978. The jury chose to believe the evidence offered by the State.

We are constrained to note that because of the discrepancies and contradictions in the evidence and the long delay before the prosecuting witness made an accusation, a very close question was presented to the jury as to defendant’s guilt or innocence. Nevertheless, our careful review of this record discloses no error warranting a new trial. Any relief for defendant must, therefore, come from the Executive Branch.

The decision of the Court of Appeals is

Affirmed.

Justice BROCK did not participate in the consideration or decision of this case.