State v. Banks

IN THE SUPREME COURT OF NORTH CAROLINA
No. 90PA13
Filed 19 December 2014
STATE OF NORTH CAROLINA
v.
EDY CHARLES BANKS, JR.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous
decision of the Court of Appeals, ___ N.C. App. ___, 736 S.E.2d 843 (2013), reversing
and remanding an order denying defendant’s motion for appropriate relief entered
on 5 December 2011 by Judge Anna Mills Wagoner in Superior Court, Rowan
County. Heard in the Supreme Court on 17 February 2014.
Roy Cooper, Attorney General, by Amy Kunstling Irene, Assistant Attorney
General, for the State-appellant.
Allison Standard for defendant-appellee.
BEASLEY, Justice.
Petitioner Edy Charles Banks, Jr., in his motion for appropriate relief (MAR),
claims that he received ineffective assistance of counsel (IAC) when his trial counsel
failed to object on double jeopardy grounds to his being sentenced by the trial court
for both statutory rape and second-degree rape when the convictions were
predicated on a single act of sexual intercourse with the victim. We conclude that
defendant was properly convicted of both statutory rape and second-degree rape
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Opinion of the Court
committed during a single act of sexual intercourse and that separate punishments
for each offense are appropriate. Consequently, defendant could not have been
prejudiced by ineffective assistance of counsel when a double jeopardy argument
would have been unsuccessful at trial. We, therefore, reverse the decision of the
Court of Appeals.
In 2007 Banks was convicted of statutory rape of a fifteen-year-old child,
second-degree rape of a mentally disabled person, and taking indecent liberties with
a child. The evidence presented in support of these convictions tended to show that
on 4 May 2005, Banks engaged in a single act of vaginal intercourse with J.L., a
juvenile who suffers from various mental disorders and is mildly to moderately
mentally disabled. At the time of the incident, Banks was twenty-nine years old
and J.L. was fifteen years old. The trial court sentenced Banks to a presumptive-
range term of 240 to 297 months of imprisonment for the statutory rape conviction.
The trial court consolidated the second-degree rape and indecent liberties
convictions into one judgment and sentenced Banks to a consecutive, presumptive-
range term of 73 to 97 months of imprisonment. Banks’s convictions were
subsequently upheld on direct appeal. See State v. Banks, 201 N.C. App. 591, 689
S.E.2d 245, 2009 WL 4931757 (unpublished).
On 2 September 2011, Banks filed an MAR in Superior Court, Rowan
County, asserting that his
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Opinion of the Court
convictions of statutory rape and second degree rape for
the same act violate the protection against double
jeopardy in the Fifth Amendment to the United States
Constitution and the North Carolina Constitution’s law of
the land provision in Article 1, Section 19. Trial counsel’s
failure to raise this claim at trial constitutes ineffective
assistance of counsel in violation of the Fifth, Sixth, and
Fourteenth Amendments to the United States
Constitution and the North Carolina Constitution, Article
1, Sections 19 and 23.
The trial court, without conducting an evidentiary hearing on Banks’s IAC claim,
entered an order on 5 December 2011 denying Banks’s MAR. The court applied the
test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180,
182, 76 L. Ed. 306, 309 (1932). The test, established as a means to identify “
‘congressional intent to impose separate sanctions for . . . offenses arising in the
course of a single act or transaction,’ ” Albernaz v. United States, 450 U.S. 333, 337,
101 S. Ct. 1137, 1141, 67 L. Ed. 2d 275, 281 (1981) (citations omitted), requires the
trial court to consider “whether each provision requires proof of a fact which the
other does not,” Blockburger, 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309
(citations omitted). Applying this test, the trial court determined that statutory
rape and second-degree rape “constitute separate and distinct crimes” and that
“there is no clear legislative intent to prohibit multiple convictions for the same
conduct in the [applicable criminal] statutes.” Accordingly, the trial court found
that “[Banks]’s rights against double jeopardy were not violated” and thus, “trial
counsel was not ineffective in failing to raise the claim.”
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Opinion of the Court
Banks petitioned the Court of Appeals for a writ of certiorari to review the
trial court’s denial of his MAR. The Court of Appeals allowed Banks’s petition,
reversed the trial court’s order, and remanded for further proceedings consistent
with its opinion. State v. Banks, ___ N.C. App. ___, ___, ___, 736 S.E.2d 843, 845,
847 (2013). In its opinion the Court of Appeals held that the General Assembly did
not intend for Banks to be punished separately for both statutory rape and second-
degree rape based upon a single act of sexual intercourse, and thus Banks had been
improperly sentenced. Id. at ___, 736 S.E.2d at 847. The Court of Appeals based its
holding exclusively upon its prior decision in State v. Ridgeway, 185 N.C. App. 423,
648 S.E.2d 886 (2007), in which the court concluded that the General Assembly did
not intend cumulative punishment for statutory rape and sexual offense when the
convictions were based on a single act. Id. at 434-35, 648 S.E.2d at 894-95.
The State petitioned this Court for discretionary review, which we allowed on
27 August 2013. The State contends that the Court of Appeals erred in holding that
Banks received ineffective assistance of counsel because of trial counsel’s failure to
argue that Banks could not, consistent with double jeopardy principles, be
sentenced for both statutory rape and second-degree rape when the convictions
stemmed from a single act of sexual intercourse with the same victim. To prevail on
an IAC claim, the defendant must satisfy a two-part test. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
First, the defendant must show that counsel’s
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performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Id. The United States Supreme Court has explained, however, that a reviewing
court need not “address both components of the inquiry if the defendant makes an
insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, . . . that course should be followed.”
466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699. Because we conclude that
Banks was not prejudiced by trial counsel’s failure to raise the double jeopardy
argument, we need not determine whether counsel’s performance was deficient.
The State argues that Banks was not prejudiced by counsel’s failure to raise
the argument that defendant could not be punished for both second-degree rape and
statutory rape because any such argument would have been unsuccessful. We
agree.
Where multiple punishment [in a single
prosecution] is involved, the Double Jeopardy Clause acts
as a restraint on the prosecutor and the courts, not the
legislature. The Double Jeopardy Clauses of both the
United States and North Carolina Constitutions prohibit
a court from imposing more punishment than that
intended by the legislature. “[T]he question whether
punishments imposed by a court after a defendant’s
conviction upon criminal charges are unconstitutionally
multiple cannot be resolved without determining what
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punishments the Legislative Branch has authorized.”
State v. Gardner, 315 N.C. 444, 452-53, 340 S.E.2d 701, 707-08 (1986) (second
alteration in original) (citations omitted). Therefore, the issue here is whether the
General Assembly intended a single act of sexual intercourse to support
punishments for both statutory rape and second-degree rape when the elements of
both offenses are satisfied.
We first note that the reasoning underlying Ridgeway, the case on which the
Court of Appeals largely relied, is inapplicable. In Ridgeway the issue was whether
the trial court properly allowed the jury to consider both first-degree rape and
statutory sexual offense as grounds for convicting the defendant. 185 N.C. App. at
433-35, 648 S.E.2d at 894-95. The Court of Appeals concluded that while
submitting both charges to the jury was proper, “judgment must be arrested on one
count of first degree rape and on one count of first degree sexual offense,” id. at 434,
648 S.E.2d at 894, because “the legislative intent was to provide alternate methods
by which the State can prove the crimes of rape or sexual offense,” id. at 435, 648
S.E.2d at 894. The court noted that the 1995 statute criminalizing statutory rape or
statutory sexual offenses involving a thirteen-, fourteen-, or fifteen-year-old
extended the age requirement in “the original statutes for rape and sexual offense”
that criminalized sexual intercourse with a child under thirteen years of age. Id. at
435, 648 S.E.2d at 894-95. Here, by contrast, we do not have any legislative history
indicating an intent by the legislature that the two offenses in question were to be
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“alternate methods” by which the State could prove the offenses. As such, Ridgeway
does not inform our present inquiry.
To begin our analysis, we first examine whether double jeopardy principles
have been violated by determining whether the “two crimes are considered
identical.” State v. Etheridge, 319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987). This
Court has used the test set out in Blockburger to determine whether two crimes
should be considered identical. See generally State v. Sparks, 362 N.C. 181, 657
S.E.2d 655 (2008); State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350 (1997); State v.
Pipkins, 337 N.C. 431, 446 S.E.2d 360 (1994). This test provides that “ ‘[a] single
act may be an offense against two statutes; and if each statute requires proof of an
additional fact which the other does not, an acquittal or conviction under either
statute does not exempt the defendant from prosecution and punishment under the
other.’ ” Blockburger, 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309 (citations
omitted). We have held that “the fact that each crime for which a defendant is
convicted in one trial requires proof of an element the other does not demonstrates
the legislature’s intent that the defendant may be punished for both crimes.” State
v. Swann, 322 N.C. 666, 677, 370 S.E.2d 533, 539 (1988) (citing Etheridge, 319 N.C.
34, 352 S.E.2d 673). Thus, legislative intent determines whether multiple
punishments may be supported by one act [of sexual intercourse]. Gardner, 315
N.C. at 455, 340 S.E.2d at 709 (explaining that the presumption raised by the
Blockburger test “may be rebutted by a clear indication of legislative intent”).
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The legislative intent of the statutes defining the offenses in question can be
extrapolated from the provisions of each statute. State v. Davis, 364 N.C. 297, 302,
698 S.E.2d 65, 68 (2010) (“When a statute is unambiguous, this Court will give
effect to the plain meaning of the words without resorting to judicial construction.
[C]ourts must give [an unambiguous] statute its plain and definite meaning, and
are without power to interpolate, or superimpose, provisions and limitations not
contained therein.” (alterations in original) (internal quotation marks omitted)
(quoting State v. Byrd, 363 N.C. 214, 219, 675 S.E.2d 323, 325 (2009); State v.
Green, 348 N.C. 588, 596, 502 S.E.2d 819, 824 (1998), cert. denied, 525 U.S. 1111,
119 S. Ct. 883, 142 L. Ed. 2d 783 (1999))).
The second-degree rape statute provides in pertinent part that
(a) A person is guilty of rape in the second degree if the
person engages in vaginal intercourse with another
person:
(1) By force and against the will of the other
person; or
(2) Who is mentally disabled, mentally
incapacitated, or physically helpless, and the
person performing the act knows or should
reasonably know the other person is mentally
disabled, mentally incapacitated, or physically
helpless.
(b) Any person who commits the offense defined in this
section is guilty of a Class C felony.
N.C.G.S. § 14-27.3(a)(1)-(2) (2013).
The General Assembly has defined statutory rape as follows:
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Opinion of the Court
(a) A defendant is guilty of a Class B1 felony if the
defendant engages in vaginal intercourse or a sexual act
with another person who is 13, 14, or 15 years old and the
defendant is at least six years older than the person,
except when the defendant is lawfully married to the
person.
Id. § 14-27.7A (2013).
As the language of N.C.G.S. § 14-27.7A indicates, an element of the offense of
statutory rape is the age of the minor victim, “ ‘under which it should be presumed
. . . that consent [cannot] be given.’ ” State v. Anthony, 351 N.C. 611, 615, 528
S.E.2d 321, 323 (2000) (citation and emphasis omitted). Moreover, the age of the
defendant, “or more specifically the difference in age between the defendant and the
victim, [is] an essential element” of statutory rape. Id. at 617, 538 S.E.2d at 324.
Second-degree rape, however, involves the act of intercourse with a victim who is
mentally disabled or incapacitated. N.C.G.S. § 14-27.3. The terms “mentally
disabled” and “mentally incapacitated” have been defined by statute as:
(1) “Mentally disabled” means (i) a victim who suffers
from mental retardation, or (ii) a victim who suffers
from a mental disorder, either of which temporarily or
permanently renders the victim substantially
incapable of appraising the nature of his or her
conduct, or of resisting the act of vaginal intercourse or
a sexual act, or of communicating unwillingness to
submit to the act of vaginal intercourse or a sexual act.
(2) “Mentally incapacitated” means a victim who due to
any act committed upon the victim is rendered
substantially incapable of either appraising the nature
of his or her conduct, or resisting the act of vaginal
intercourse or a sexual act.
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Id. § 27.1(1), (2) (2013).
Here Banks was convicted and sentenced for both (1) statutory rape of a
person who is thirteen, fourteen, or fifteen years old by a defendant who is at least
six years older than the victim and (2) second-degree rape. Although based on the
same act of sexual intercourse, the two offenses committed by Banks are separate
and distinct under the Blockburger test, each requiring proof of an element where
the other offense does not. Statutory rape involves an age component under which
consent legally cannot be given absent marriage. N.C.G.S. § 14-27.7A; Anthony, 351
N.C. at 616, 528 S.E.2d at 323 (explaining that “[t]he purpose of the statutory rape
law is to protect children under a certain age from sexual acts.” (citation omitted)).
This age component is an essential element of the crime. Id. at 617, 528 S.E.2d at
324. In contrast, second-degree rape involves the act of intercourse with a victim
who suffers from a mental disability or mental incapacity. N.C.G.S. § 14-27.3.
Based on the separate and distinct elements that must be proved, neither of these
two criminal offenses is a lesser included offense of the other. Thus, double
jeopardy principles have not been violated. See generally Gardner, 315 N.C. at 463,
340 S.E.2d at 714 (holding “that a defendant may be tried for, convicted of, and
punished separately for the crime of breaking or entering and the crime of felony
larceny” arising from one act or occurrence).
Given the elements of second-degree rape and statutory rape, it is clear that
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the legislature intended to separately punish the act of intercourse with a victim
who, because of her age, is unable to consent to the act, and the act of intercourse
with a victim who, because of a mental disability or mental incapacity, is unable to
consent to the act. See Albernaz, 450 U.S. at 339, 343, 101 S. Ct. at 1142, 1144, 67
L. Ed. 2d at 281-82, 284 (explaining that Congress intended to impose multiple
punishments for two statutes directed at separate evils and thus punishment for
both offenses does not exceed legislative authority).
Because it is the General Assembly’s intent for defendants to be separately
punished for a violation of the second-degree rape and statutory rape statutes
arising from a single act of sexual intercourse when the elements of each offense are
satisfied, defendant’s argument that he was prejudiced by counsel’s failure to raise
the argument of double jeopardy would fail. We therefore conclude that defendant
was not prejudiced.
For the reasons stated above, the decision of the Court of Appeals is reversed.
REVERSED.
Justices JACKSON and HUNTER did not participate in the
consideration or decision of this case.
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