State v. MilesÂ

NO. COA14-458
NORTH CAROLINA COURT OF APPEALS
Filed: 4 November 2014
STATE OF NORTH CAROLINA
v. Alamance County
Nos. 11CRS054104-06
DERICK JOHNELLE MILES,
Defendant.
Appeal by defendant from judgments entered on or about 7
June 2013 by Judge Thomas H. Lock in Superior Court, Alamance
County. Heard in the Court of Appeals 25 September 2014.
Attorney General Roy A. Cooper, III by Assistant Attorney
General Anne M. Middleton, for the State.
Glover & Petersen, P.A. by James R. Glover, for defendant-
appellant.
STROUD, Judge.
Derick Johnelle Miles (“defendant”) appeals from a
conviction for an attempted second-degree sexual offense.
Defendant contends that insufficient evidence supports his
conviction. We find no error.
I. Background
In 2010, M.G. met defendant while working at a car wash.
M.G. and defendant talked on the phone and went on one date. In
-2-
2010, they had sexual relations twice. After hearing a rumor
about defendant, M.G. ended their relationship.
In early 2011, M.G. and her daughter moved to an apartment
in Mebane. In February 2011, while picking up her daughter from
day care, M.G. saw defendant. They agreed to meet again.
Defendant wanted a romantic relationship, but M.G. wanted a
friendship only. Between February and May 2011, defendant and
M.G. had sexual relations five times. In May 2011, after
defendant threatened M.G., M.G. ended their relationship and
attempted to cut off contact with defendant. In response,
defendant called M.G.’s phone numerous times, knocked on M.G.’s
door for an hour, attempted to evict M.G., and threatened to
damage M.G.’s car. M.G. sometimes answered his phone calls and
told him that she did not want a relationship.
Sometime after 8:00 p.m. on 3 July 2011, while M.G. was
cleaning her apartment, she heard a knock on her door. M.G.
looked through her peephole and saw one of her neighbors. She
did not see anyone else, so she opened the door. After she
opened it, defendant appeared, ran into her apartment, slammed
the door behind him, and took his clothes off. Defendant had
asked M.G’s neighbor to knock on her door, so that defendant
could “surprise” her. M.G. attempted to run toward the back of
-3-
the apartment, but defendant grabbed her by her shoulder.
Defendant threw M.G. on the couch, and M.G. cried, screamed, and
yelled. M.G. tried to fight off defendant, but defendant
overpowered her. Defendant took M.G’s clothes off and raped
her. M.G. tried to escape through the front door, but defendant
grabbed M.G. by her hair, ripping out some of her hair
extensions, and pulled her back into the apartment. Defendant
then choked M.G. with his hand, impeding M.G.’s ability to
breathe. Defendant flipped M.G. upside down, yelled at her,
grabbed a screwdriver, and jabbed it at her in a threatening
manner. M.G. told defendant that she needed to pick up her
daughter. Defendant demanded that M.G. first drive him to his
apartment in Burlington.
After M.G. drove defendant to his apartment, defendant
grabbed her car keys. Defendant grabbed M.G. by her waist and
dragged her out of her car and into his apartment. Defendant
yelled and slapped M.G.’s face so hard that her braces cut the
inside of her mouth. Defendant then acted as if he would let
her leave and allowed her to go back to her car. But then
defendant grabbed her and dragged her back into his apartment.
Defendant grabbed a pointed kitchen knife and tried to hand it
to M.G. He told her that she would escape only if she used it
-4-
against him. She refused to take it. Defendant then asked her
to perform fellatio and showed her his penis. M.G. begged him
to not make her do it. Defendant then took M.G.’s clothes off
and attempted to perform anal intercourse on her. After M.G.
screamed and jumped in pain, defendant turned M.G. over and
raped her. After unsuccessfully trying to fight off defendant,
M.G. decided to feign love for defendant in order to get him to
stop his abuse. Defendant gave M.G. some of his clothes and let
her leave around 1:00 a.m.
On or about 13 February 2012, a grand jury indicted
defendant for two counts of first-degree rape, two counts of
first-degree kidnapping, first-degree burglary, assault by
strangulation, a first-degree sexual offense, and an attempted
first-degree sexual offense. At the conclusion of all the
evidence at trial, defendant moved to dismiss all the charges.
The trial court denied the motion. On or about 7 June 2013, a
jury found defendant guilty of second-degree rape, non-felonious
breaking or entering, and two counts of attempted second-degree
sexual offense and not guilty of all other charges. One of the
attempted second-degree sexual offense convictions arose from
defendant’s request for fellatio. The trial court sentenced
defendant to 146 to 236 months’ imprisonment for second-degree
-5-
rape, 128 to 214 months’ imprisonment for an attempted second-
degree sexual offense, and 128 to 214 months’ imprisonment for
an attempted second-degree sexual offense and non-felonious
breaking or entering. The sentences were to be served
consecutively. Defendant gave notice of appeal in open court.
II. Motion to Dismiss
A. Standard of Review
When reviewing a defendant’s motion to
dismiss a charge on the basis of
insufficiency of the evidence, this Court
determines whether the State presented
substantial evidence in support of each
element of the charged offense. Substantial
evidence is relevant evidence that a
reasonable person might accept as adequate,
or would consider necessary to support a
particular conclusion. In this
determination, all evidence is considered in
the light most favorable to the State, and
the State receives the benefit of every
reasonable inference supported by that
evidence. The defendant’s evidence, unless
favorable to the State, is not to be taken
into consideration, except when it is
consistent with the State’s evidence, the
defendant’s evidence may be used to explain
or clarify that offered by the State.
Additionally, a substantial evidence inquiry
examines the sufficiency of the evidence
presented but not its weight, which is a
matter for the jury. Thus, if there is
substantial evidence—whether direct,
circumstantial, or both—to support a finding
that the offense charged has been committed
and that the defendant committed it, the
case is for the jury and the motion to
dismiss should be denied.
-6-
State v. Hunt, 365 N.C. 432, 436, 722 S.E.2d 484, 488 (2012).
B. Analysis
Defendant contends that the trial court erred in denying
his motion to dismiss the attempted second-degree sexual offense
charge arising from defendant’s request for fellatio. A person
is guilty of this offense if the person engages in a sexual act
with another person by force and against the will of the other
person. N.C. Gen. Stat. § 14-27.5(a)(1) (2011). Fellatio is a
sexual act within the meaning of the statute. State v. Jacobs,
128 N.C. App. 559, 563, 495 S.E.2d 757, 760, disc. rev. denied,
348 N.C. 506, 510 S.E.2d 665 (1998). The force required need not
be physical force; fear, fright, or coercion may take the place
of force. Id., 495 S.E.2d at 760. “Fear of serious bodily harm
reasonably engendered by threats or other actions of a defendant
and which causes the victim to consent to the sexual act takes
the place of force and negates the consent.” State v. Locklear,
304 N.C. 534, 540, 284 S.E.2d 500, 503 (1981).
The elements of an attempt to commit any crime are: (1)
the intent to commit the substantive offense, and (2) an overt
act done for that purpose which goes beyond mere preparation,
but (3) falls short of the completed offense. State v.
Henderson, 182 N.C. App. 406, 412, 642 S.E.2d 509, 513 (2007).
-7-
“[W]henever the design of a person to commit a crime is clearly
shown, slight acts in furtherance of the design will constitute
an attempt.” Id. at 413, 642 S.E.2d at 514.
Defendant contends that requesting a sexual act from an
adult cannot constitute an attempted sexual offense, because
such a request does not show an intention to commit a sexual act
“[b]y force and against the will of the other person.” See N.C.
Gen. Stat. § 14-27.5(a)(1). In this way, this case differs from
cases involving attempted statutory sex offenses where a
defendant requests a sexual act from a victim who legally cannot
give consent. See, e.g., State v. Sines, 158 N.C. App. 79, 579
S.E.2d 895, cert. denied, 357 N.C. 468, 587 S.E.2d 69 (2003);
Henderson, 182 N.C. App. 406, 642 S.E.2d 509. Defendant is
correct that requesting fellatio from an adult who is legally
capable of consent in a non-threatening manner generally would
not constitute an attempted sexual offense. But where the
request for fellatio is immediately preceded by defendant
tricking the victim into letting him into her apartment, raping
her, pulling her hair, choking her, flipping her upside down,
jabbing at her with a screwdriver, refusing to allow her to
leave, pulling her out of her car, taking her car keys, dragging
her to his apartment, slapping her so hard that her braces cut
-8-
the inside of her mouth, screaming at her, and immediately after
her denial of his request, raping her again, we hold that this
request is accompanied by a threat and a show of force and thus
amounts to an attempt. Had M.G. complied with defendant’s
request, thus completing the sexual act, we cannot imagine that
the jury would have found that she had consented to perform
fellatio. Given the violent, threatening context, defendant’s
request and presentation of his penis to M.G. amounted to an
attempt to engage M.G. in a sexual act by force and against her
will. See N.C. Gen. Stat. § 14-27.5(a)(1); Jacobs, 128 N.C. App.
at 563, 495 S.E.2d at 760; Locklear, 304 N.C. at 540, 284 S.E.2d
at 503. We thus hold that sufficient evidence supports
defendant’s conviction for an attempted second-degree sexual
offense arising from defendant’s request for fellatio.
III. Conclusion
Because sufficient evidence supports defendant’s conviction
for an attempted second-degree sexual offense, we hold that the
trial court committed no error.
NO ERROR.
Chief Judge MCGEE and Judge GEER concur.