State v. Arnold , 284 N.C. 41 ( 1973 )

199 S.E.2d 423 (1973) 284 N.C. 41

STATE of North Carolina
v.
Connie Lee ARNOLD.

No. 9.

Supreme Court of North Carolina.

October 10, 1973.

Atty. Gen. Robert Morgan by Associate Atty. Gen. Thomas Maddox, Jr., Raleigh, for the State.

Michael D. Levine, Chapel Hill, for defendant appellant.

BRANCH, Justice.

Defendant first contends that the trial judge committed reversible error by expressing an opinion prejudicial to defendant in the presence of the jury.

During the cross-examination of Sally Campbell, defendant's counsel introduced several photographs into evidence. At that time the following exchange occurred:

"COURT: All right, gentlemen. Mr. Levine, have you got any more Exhibits you intend to introduce during this trial, any statements, documents, anything of that nature?

MR. LEVINE: Yes, sir. There may be one or two more things.

COURT: All right. Mr. Pierce, do you have any documents or physical evidence you plan to introduce?

MR. PIERCE: No, sir, your honor.

COURT: All right, I want you both to get together. Show each other everything you want to introduce so we don't have the jury sitting here waiting while you all go over the stuff you should have done beforehand. Let's get on with this."

It is well established that every person charged with a crime has a right to trial before an impartial judge and an unprejudiced jury. G.S. § 1-180. State v. McBryde, 270 N.C. 776, 155 S.E.2d 266; State v. Belk, 268 N.C. 320, 150 S.E.2d 481. And any intimation or expressed opinion by the judge at any time during the trial which prejudices the jury against the accused is ground for a new trial. State v. Frazier, 278 N.C. 458, 180 S.E.2d 128; State v. Douglas, 268 N.C. 267, 150 S.E.2d 412. However, whether the accused was deprived of a fair trial by the trial judge's remarks must be determined by the probable effect upon the jury in light of all attendant circumstances, the burden of showing prejudice being upon the appellant. State v. Faust, 254 N.C. 101, 118 S.E.2d 769; State v. Gibson, 233 N.C. 691, 65 S.E.2d 508. The judge conducting a jury trial is the governor of the trial for the purpose of assuring its proper conduct and it is his right and duty, inter alia, to control the course of the trial to the end that the court's time be conserved and the witnesses be protected from over-prolonged examination. State v. Frazier, supra; State v. Mansell, 192 N.C. 20, 133 S.E. 190.

Here the judge's remarks were clearly addressed to both the Solicitor for the State and defendant's counsel for the purposes of insuring an orderly trial and conserving the court's time.

There is no merit in this assignment of error.

Defendant's next assignment of error relates to the admission of testimony of the witnesses Miriam Kaufman, Carol Chase and Holly Hoxeng.

His principal argument is directed to the testimony of Miriam Kaufman, a student at Duke University. Miss Kaufman testified that she was waiting for a bus at the Gilbert-Adams bus stop on 7 September at about 4:40 p. m. when defendant drove up in a beige car and asked her if she wanted a ride. She accepted, but instead of taking to West Campus he followed a route along Highway 70 into rural Orange County. Although he did not threaten her, he several times said that it was not going to cost her anything. Miss Kaufman became frightened and jumped out of the automobile. She managed to obtain a ride with one of her teachers who lived in the same area, and upon reaching the campus, she reported the incident to the Duke Security authorities.

In determining the admissibility of this evidence, we first consider its relevancy.

Evidence is relevant if it has any logical tendency to prove a fact at issue in a case, Stansbury N.C. Evidence 2d Ed. § 77, and in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible. State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506; State v. Knight, 261 N.C. 17, 134 S.E.2d 101; State v. Ham, 224 N. C. 128, 29 S.E.2d 449. It is not required that evidence bear directly on the question in issue, and evidence is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known, to properly understand their conduct or motives, or if it reasonably allows the jury to draw an inference as to a disputed fact. Jones v. Hester, 260 N.C. 264, 132 S.E.2d 586; Redding v. Braddy, 258 N.C. 154, 128 S.E.2d 147; and Bank v. Stack, 179 N.C. 514, 103 S.E. 6.

All of the evidence in this case shows that defendant and prosecuting witness engaged in sexual intercourse, thus the ultimate issue for the jury was whether the act was with the consent of Sally Campbell. Defendant testified that he had not earlier on that day been near the spot where he picked up Sally Campbell. Whether Miss Campbell voluntarily accompanied the defendant to the secluded spot where the rape allegedly occurred is sharply controverted, as is the question of consent to the act of intercourse. Although the evidence under the attack does not bear directly upon the ultimate question before the jury, it does tend to shed some light upon the alleged crime and defendant's conduct and motives. We, therefore, hold that the evidence was relevant.

Relevant evidence is properly received as substantive evidence unless it is forbidden by some specific rule of law. State ex rel. Freeman v. Ponder, 234 N.C. 294, 67 S.E.2d 292. Stansbury N.C. Evidence 2d Ed. § 78.

Defendant cites State v. McClain, 240 N.C. 171, 81 S.E.2d 364, for the exclusionary rule that "in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense." However, McClain also enumerated several well recognized exceptions to the general rule therein stated. We quote one of the exceptions which we consider pertinent to decision:

"6. Evidence of other crimes is admissible 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.. . . Evidence of other crimes receivable under this exception is ordinarily admissible under the other exceptions which sanction the use of such evidence to show criminal intent, guilty knowledge, or identity." (Citations omitted)

In the case of State v. Fowler, 230 N.C. 470, 53 S.E.2d 853, Stacy, C. J., stated: ". . . proof of the commission of other like offenses is competent to show the quo animo, intent, design, guilty knowledge or scienter, or to make out the res gestae, or to exhibit a chain of circumstances in respect of the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions."

Miss Kaufman's testimony and Miss Campbell's testimony reveal striking similarities. The two alleged abductions occurred within a period of a few hours, and from the same location. On both occasions defendant followed approximately the same route into rural Orange County and he used identical language in an attempt to quell their fears.

In our opinion, Miriam Kaufman's testimony clearly disclosed a common plan, scheme and design by defendant to pick up a female person and carry her into rural Orange County in order to gratify his sexual desires.

The remaining testimony challenged by this assignment of error was given by Miss Carol Chase and Miss Holly Hoxeng.

Miss Holly Hoxeng testified that between 3:30 and 4:00 p. m. on the afternoon of 7 September 1972 she saw a light-colored automobile with a Tennessee license plate parked near the Gilbert-Adams bus stop. She saw the driver say something to a girl who was standing near the automobile. She could not identify defendant as being the man sitting in this automobile.

Carol Chase testified that at about 4:30 p. m. on 7 September 1972 a man driving an automobile bearing a Tennessee license plate stopped and asked her if she wanted a ride to the Duke Campus. She refused his offer. Defendant was the operator of this automobile.

Decision as to the admission of the testimony of Miss Hoxeng and Miss Carol Chase is not complicated by the rule of law barring admission of evidence concerning prior criminal offenses. Their testimony presented circumstances, not too remote in time to have probative value, which tended to aid the jury in understanding the conduct and motives of the parties.

We hold that the trial judge correctly admitted the testimony of Miriam Kaufman, Carol Chase and Holly Hoxeng as substantive evidence.

Defendant contends that the trial judge's failure to grant his motions as of nonsuit resulted in reversible error. He argues that the evidence does not warrant an inference that defendant had intercourse with the prosecuting witness by force and against her will.

Rape is the carnal knowledge of a female, by force and against her will. State v. Overman, 269 N.C. 453, 153 S.E.2d 44; State v. Johnson, 226 N.C. 671, 40 S.E.2d 113.

A motion for judgment as of nonsuit presents a question of law for the court as to whether there is reasonable basis for the jury to find that the offense charged was committed by accused. In deciding this question, the trial judge must consider the State's evidence in the light most favorable to the State and without considering evidence of the defendant in conflict therewith.

It is for the jury to determine the truth and credibility of the evidence. State v. Goines, 273 N.C. 509, 160 S.E.2d 469; State v. Bell, 270 N.C. 25, 153 S.E.2d 741.

The testimony of the prosecuting witness is replete with evidence that defendant, by force and against her will, had intercourse with her. We quote portions of this testimony:

"[S]he was afraid and did not want to be hurt, and that he handled her roughly as he pushed her down on the seat.

* * * * * *

"He held her arms down when they got in the way. Connie Lee Arnold, on this occasion, was stronger than she was, and she was not successfully able to resist him.

* * * * * *

"By way of ``force' she meant that when she would not touch his parts. . . or whatever else he wanted to have her do, he would put her hand or head in that position and would not release the pressure on that part of the body until she complied with what he wanted.

* * * * * *

". . . [S]he kept resisting because she didn't want to continue but it was of no avail; his drive was stronger than her power to resist him.

* * * * * *

"During each of these three times she did not consent to having intercourse and during each of these three times he forced her in the action.

* * * * * *

"During the time that she and the driver were having sexual intercourse, she struggled at every point and resisted. She told him verbally, she pushed him away. She indicated her intense nondesire for this action to occur. All of the muscles in her body, including those around the vaginal area were at all times constricted and tight and tense.

* * * * * *

"The defendant was physically stronger than she was on the occasion . . . she was not successfully able to fight him that night. . . ."

Admittedly there was testimony from the prosecuting witness which might have raised a reasonable doubt in the mind of a juror. However, the jury believed the State's evidence.

We hold that there was sufficient evidence to withstand defendant's motions as of nonsuit.

Defendant assigns as error the failure of the trial court to instruct the jury that they might find the defendant guilty of a lesser included offense.

In the case of State v. Bryant, 280 N.C. 551, 187 S.E.2d 111, Justice Higgins speaking for the Court (Chief Justice Bobbitt and Justice Sharp dissenting) stated:

"The defendant has objected to the court's failure to submit to the jury the lesser included offense of assault with intent to commit rape. This objection cannot be sustained. All the evidence, including the defendant's testimony, disclosed completed acts of intercourse. The factual dispute was whether the acts were voluntary or as a result of defendant's use of force. Even consent if induced by fear, fright, or coercion, is equivalent to physical force. State v. Primes, [275 N.C. 61, 165 S.E.2d 225]; State v. Carter, [265 N.C. 626, 144 S.E.2d 826]. The court should not submit an issue in the absence of some evidence which tended to support it. The rule is stated in State v. McNeil, 277 N.C. 162, 176 S.E.2d 732. ``The court (trial) charged the jury to return a verdict: (1) guilty of rape; (2) guilty of rape with a recommendation that punishment be imprisonment for life in the State's prison; or (3) not guilty. Failure to find the defendant guilty of (1) or (2) required a verdict of not guilty. The defendant was not prejudiced by the charge which required the jury to acquit of all included lesser offenses. There was no evidence of the lesser included offenses, and the court was correct in refusing to permit the jury to consider them.'"

Here all of the evidence reveals a completed act or completed acts of sexual intercourse. The factual dispute relates only to whether the act or acts were by consent or as a result of force or coercion. We are unable to distinguish instant case from State v. Bryant, supra, and by authority of Bryant, this assignment of error is overruled.

Defendant's final assignment of error is that the trial judge erred by denying his motion to set aside the verdict as being against the greater weight of the evidence. This motion was addressed to the trial judge's discretion and was without merit. State v. Henderson, 276 N.C. 430, 173 S.E.2d 291.

Defendant has failed to show prejudicial error which will warrant disturbing the verdict and judgment.

No error.

BOBBITT, Chief Justice (dissenting).

The testimony of prosecutrix was sufficient to support the verdict of guilty of rape. However, her testimony was contradicted by testimony of defendant on all crucial aspects of the case.

The preliminary statement in the majority opinion summarizes the testimony of prosecutrix and of defendant relating to the circumstances under which prosecutrix entered defendant's car, and to their conversations while riding through the streets of Durham and to the area where, according to both prosecutrix and defendant, the act(s) of sexual intercourse occurred.

Although contradicted at all points, there was ample evidence to support a finding that defendant was guilty of an assault with intent to commit rape. To convict one of the crime of an assault with intent to commit rape, "the State must prove (1) an assault by a male upon a female (2) with intent to commit rape, and the felonious intent is the intent to gratify his passion on the person of the woman at all events against her will and notwithstanding any resistance she may make." State v. Overcash, 226 N.C. 632, 634, 39 S.E.2d 810, 811 (1946), and cases cited.

Assuming that defendant was guilty of an assault with intent to commit rape, it does not necessarily follow that he was guilty of rape because he succeeded in having sexual intercourse with the prosecutrix. He testified positively that his sexual intercourse with prosecutrix was with her consent. Her testimony referred to their philosophical arguments, concluding with her statement that defendant had shown "his will was stronger than hers." Whether her submission was the result of overpersuasion was for jury consideration.

Of course, "[t]he force necessary to constitute rape need not be actual physical force. Fear, fright, or coercion may take the place of force." State v. Primes, 275 N.C. 61, 67, 165 S.E.2d 225, 229 (1969). Here, the prosecutrix's testimony is that defendant never threatened to harm her physically; that he did not use, display or refer to a weapon of any kind; that he inflicted no bruises; and that her clothes were not torn or damaged. Nothing in her testimony indicated that she attempted any kind of vigorous physical resistance.

I disavow completely any intent to cast doubt upon the credibility of the testimony of the prosecutrix. In all probability, if I had been a juror, I would have returned the verdict of guilty of rape. However, where a defendant's testimony contradicts that of the prosecutrix as to rape and as to assault with intent to commit rape, the jury should not be confined to the single alternative of returning either a verdict of guilty of rape or a verdict of not guilty (of any offense) but should be permitted, if they consider the evidence warrants, to return a verdict of guilty of the lesser included felony of assault with intent to commit rape.

For the reasons fully stated and documented in my dissenting opinion in State v. Bryant, 280 N.C. 551, 187 S.E.2d 111 (1972), I would award a new trial on account of the failure of the court to submit for jury consideration whether defendant was guilty of the lesser included felony of an assault with intent to commit rape.

SHARP, J., joins in this dissenting opinion.