State v. Morrison , 85 N.C. App. 511 ( 1987 )

355 S.E.2d 182 (1987)

STATE of North Carolina
v.
Kenneth MORRISON.

No. 8614SC1067.

Court of Appeals of North Carolina.

May 5, 1987.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Daniel F. McLawhorn, for the State.

Loflin & Loflin by Thomas F. Loflin III, Durham, for defendant-appellant.

ARNOLD, Judge.

Defendant first contends that the trial court erred in allowing a witness (whose name need not be mentioned) to testify that defendant had attempted to rape her.

The witness testified that she met defendant through a mutual friend when she agreed to let defendant borrow her typewriter. Defendant took the witness for "fast-food" to repay her for the use of her typewriter. At that time, defendant tried to get the witness to go home with him but she declined and exited the car abruptly. Defendant called her ten minutes later to apologize for his behavior.

Defendant called the witness repeatedly to ask her to dinner. On 28 April 1985, she finally agreed. When defendant arrived to take the witness to dinner, he was dressed in sweat clothes. He told her that he had helped a friend fix a car and needed to stop by his apartment to change clothes. The witness went into defendant's apartment with him and as she was looking for a light switch, defendant locked the door. Just as the witness found a light, defendant pushed her into the bedroom and blocked the entrance so she couldn't get out. Defendant pushed her back onto the bed and "started getting rough." He rubbed his body against her, and she resisted. In the ensuing struggle, defendant attempted to take her clothes off and choked her to stop her from screaming. Defendant attempted to have intercourse with the witness but she continued to resist and hit him with a hammer. She then escaped and fled his apartment partially disrobed.

Defendant argues that the witness's testimony was not properly admissible. We do not agree.

G.S. 8C-1, Rule 404(b) permits evidence that a defendant committed similar offenses "when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission." State v. DeLeonardo, 315 N.C. 762, 770, 340 S.E.2d 350, 356 (1986). In State v. Gordon, 316 N.C. 497, 504, 342 S.E.2d 509, 513 (1986), our Supreme Court stated:

This Court has been quite "liberal in admitting evidence of similar sex crimes" under the common plan or scheme exception. State v. Effler, 309 N.C. 742, 748, 309 S.E.2d 203, 207 (1983). This position has included allowing the admission of evidence showing sexual assaults by the defendant against people other than the victim in the crime for which he is on trial.

The witness's testimony was properly admissible to show that the prior crime involved a common plan or scheme to the present offense charged. In both the present case and the case involving the witness, defendant lured the women into his apartment on the pretext that he needed to change clothes before their dates. Once inside, defendant's pattern of behavior was nearly identical. His demeanor changed and he became threatening. The witness testified, "[h]e was looking different. He had a very wild and very hateful look in his eye that frightened me." The victim testified that defendant was "losing it" and that she thought he would hurt her because of "the way he looked and the tone of his voice." Defendant then pushed the women toward the bed, disrobed them and attempted intercourse. Therefore, the testimony was properly admitted under Rule 404(b).

Defendant also argues that the admission of the testimony was unfairly prejudicial and violated Rule 403 of the Rules of Evidence. We disagree.

Whether to exclude evidence under Rule 403 is a matter within the sound discretion of the trial judge. State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986). Defendant has failed to show that the trial judge abused his discretion. Thus, we hold that the testimony was properly admitted.

Defendant next contends that "the trial court erred in admitting into evidence a stipulation signed by the defense attorney and the prosecutor establishing an essential element of second degree rape — that is, the act of sexual intercourse or penetration — without any showing on the record that the defendant himself had personally stipulated to this essential element of the charged crime, and without anything in the record showing that defendant knowingly, voluntarily, and understandingly consented to such a stipulation being entered and read to the jury." We do not agree.

In State v. Watson, 303 N.C. 533, 279 S.E.2d 580 (1981), defense counsel entered a stipulation regarding an element of the offense with which his client was charged. On appeal, defendant alleged error by its admission since he had not signed it and there was nothing in the record to indicate that he knowingly and intelligently consented to it. The Court found his contention meritless and stated:

It is well-established that stipulations are acceptable and desirable substitutes for proving a particular act. Statements of an attorney are admissible against his client provided that they have been within the scope of his authority and that the relationship of attorney and client existed at the time. In conducting an individual's defense an attorney is presumed to have the authority to act on behalf of his client. The burden is upon the client to prove lack of authority to the satisfaction of the court. (Citations omitted).

Id. at 538, 279 S.E.2d at 583.

In Watson, the record was free of any indication that defense counsel was acting contrary to the wishes of his client. The same is true of the present case. Therefore, we hold that the trial court properly admitted the stipulation.

Defendant also contends that there was insufficient evidence of the element of force to convict him of second degree rape. We do not agree.

Second degree rape is vaginal intercourse by force and against the will of the victim. G.S. 14-27.3(a)(1). State v. Barnette, 304 N.C. 447, 284 S.E.2d 298 (1981). In the present case, the victim testified that defendant locked the bedroom door and pushed her towards the bed. She stated that defendant was "losing it" and yelled at her to sit down. She also stated that she was afraid defendant would hurt her and that she began to cry. When she tried to stop defendant from undressing her, he pushed her hands aside and told her that her crying "was going to make it worse."

The force required to constitute rape must be actual or constructive force used to achieve the sexual intercourse. Either is sufficient. State v. Alston, 310 N.C. 399, 312 S.E.2d 470 (1984). In the case sub judice, there is evidence of both actual and constructive force. The actual force occurred when defendant pushed the victim towards the bed and when he pushed her hands aside. Constructive force occurred when defendant locked the door, yelled at the victim and placed her in fear that she would be hurt. See id.

Therefore, we hold that there was ample evidence of the element of force to withstand defendant's motion to dismiss.

We have reviewed defendant's remaining assignment of error and find it to be without merit.

No error.

PHILLIPS and GREENE, JJ., concur.