State v. Harvell

262 S.E.2d 850 (1980)

STATE of North Carolina
v.
Shelton Earl HARVELL.

No. 793SC724.

Court of Appeals of North Carolina.

February 19, 1980.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Lucien Capone, III, Raleigh, for the State.

Frazier & Moore by Reginald L. Frazier, New Bern, Bowen C. Tatum, Jr. by T. E. Moore, Jacksonville, for defendant.

ROBERT M. MARTIN, Judge.

It is clear from the argument in defendant's brief concerning the charge of second degree rape that he intended to appeal from the judgment entered therein. A copy of the indictment, verdict and formal judgment on the charge of second degree rape was not included in the record on appeal. Both the defense counsel and the Attorney General submitted briefs in this Court. Neither made any objection or called any attention to the defective condition of the record as it pertains to the purported appeal on the charge of second degree rape. Rule 9(b)(3)(vii) provides that "the record on appeal in criminal actions shall contain . . . copies of . . . indictments . . . verdict and of the judgment . . ." In an appeal in criminal cases, the indictment or warrant, and the plea on which the defendant was tried in the Court below, the verdict, and the judgment appealed from, are essential parts of the transcript. State v. Hunter, 245 N.C. 607, 608, 96 S.E.2d 840, 841 (1957). State v. Gaddy, 14 N.C.App. 599, 188 S.E.2d 745 (1972). In this case the appeal is fatally defective for the reason that it contains no bill of indictment. State v. Hunter, supra; State v. Currie, 206 N.C. 598, 174 S.E. 447 (1934); State v. Dobbs, 234 N.C. 560, 67 S.E.2d 751 (1951); State v. Jenkins, 234 N.C. 112, 66 S.E.2d 819 (1951). It was the duty of the defendant to see that the indictment appeared in the record. State v. Currie, supra. The "minutes" of the court that were included are not a substitute for a copy of the judgment. A judgment is a necessary part of the record. State v. Willis, 285 N.C. 195, 204 S.E.2d 33 (1974); State v. Gilliam, 33 N.C.App. 490, 235 S.E.2d 421 (1977). When a necessary part of the record has been omitted, the appeal will be dismissed. State v. Dobbs, supra; 4 Strong's N.C. Index 3d, Criminal Law § 157.2 (1976). It is the duty of appellant to see that the record is properly made up and transmitted to the court. State v. Stubbs, 265 N.C. 420, 423, 144 S.E.2d 262, 265 (1965). The purported appeal in the charge of second degree rape is dismissed for an insufficient record; however, we have nevertheless reviewed all of defendant's assignments of error and found them to be without merit.

We also note that the entire charge of the trial judge was included in the record on appeal, even though no error was assigned to the charge. This is in violation of Rule of Appellate Procedure 9(b)(3)(vi).

Defendant brings forward thirteen assignments of error which he groups in seven questions. The first question is as follows: "Does the Court of Appeals of North Carolina have the authority to weigh the evidence in this case and determine the credibility of the witnesses who testified?" The question and the supporting argument bears no relationship to his assignment of error on the exception upon which the assignment is based. The assignment of error stated in the record is as follows: "Did the trial court commit reversible error by failing, on its own motion, to establish the competency of a witness, who was a minor child and unable to understand the nature and obligation of the oath?"

The competency of a child to testify is a matter resting within the sound discretion of the trial judge, and the trial judge has been held not to abuse that discretion without hearing testimony as to the child's competency since an accurate determination of the child's moral and religious sensitivity can be made by the trial judge through his personal observation while the child is being questioned. State v. Roberts, 18 N.C.App. 388, 197 S.E.2d 54, cert. denied, 283 N.C. 758, 198 S.E.2d 728 (1973); State v. Bowden, 272 N.C. 481, 158 S.E.2d 493 (1968). Moreover, defendant's trial counsel stipulated that the child was competent to testify. Defendant has shown neither error nor prejudice. Defendant's first assignment of error is overruled.

Defendant argues in his brief that this Court has authority to weigh the evidence and pass on the credibility of witnesses. He relies on the holding in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In Jackson, the Court stated: ". . . [t]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319, 99 S.Ct. at 2789, 61 L. Ed. at 573. In footnote twelve to the Jackson opinion the Supreme Court approved the test long used in North Carolina in resolving a challenge to the sufficiency of the evidence, i. e., "whether ``considering the evidence in the light most favorable to the government, there is substantial evidence from which a jury might reasonably find the defendant is guilty beyond a reasonable doubt.'" 443 U.S. at 319, 99 S. Ct. at 2789, 61 L.Ed. at 574. In the case under consideration we hold that the record evidence reasonably supports a finding of guilt beyond a reasonable doubt.

Defendant contends in his second argument, based on assignments of error Nos. 3, 4, 5 and 6, that the court erred in denying defendant's motion to dismiss the charges of second degree rape and incest.

Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or a lesser included offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied. State v. Mason, 279 N.C. 435, 183 S.E.2d 661 (1971).

The defendant's daughter, Tina, gave positive testimony that on December 30, 1978, she and her father engaged in sexual intercourse, penetration having definitely occurred. Tina also testified that defendant forced her down and made her have sex with him. She told him no, but he did not stop. She was afraid of him, especially since he had been drinking. The force necessary to constitute rape need not amount to actual physical force; fear, fright or coercion may take the place of actual force. State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977).

A father violates G.S. 14-178 and by reason thereof is guilty of the statutory felony of incest if he has sexual intercourse, either habitual or in a single instance, with a woman or girl whom he knows to be his daughter. State v. Vincent, 278 N.C. 63, 178 S.E.2d 608 (1971). There was positive testimony that the defendant, Tina's father, while living with her in the relationship of father and daughter, had sexual intercourse with her. We hold the evidence was sufficient in both the case of second degree rape and incest to carry the cases to the jury. Defendant's assignments of error are overruled.

By his third assignment of error, defendant contends the court erred in denying defendant's motion to merge the charges of incest and rape. We do not agree. Rape requires force, incest does not. Incest requires kinship, rape does not. Obviously, they are different offenses. They have different elements and are therefore distinct offenses even though one crime was committed during the perpetration of another. State v. Vert, 39 N.C.App. 26, 249 S.E.2d 476 (1978), cert. denied 296 N.C. 739, 254 S.E.2d 181 (1979).

By his 7th assignment of error defendant contends the court erred by admitting evidence of a conversation by defendant and his wife overheard by the prosecutrix. The prosecutrix was permitted to refute testimony of her mother who had testified that defendant, her husband, never said that if she took Tina to a doctor he would leave. He relies on Hicks v. Hicks, 271 N.C. 204, 155 S.E.2d 799 (1967). Hicks was a civil case and the holding of the court therein is not applicable to the case sub judice. N.C.Gen.Stat. § 8-57 specifically provides that the privilege does not apply with regard to any criminal offense against a minor child. The privilege is waived in criminal cases where the conversation is overheard by a third person. State v. Freeman, 197 N.C. 376, 48 S.E. 450 (1929). Moreover, the privilege was waived where the wife testified to the conversation, without objection. Defendant's argument is unavailing and his assignment of error is overruled.

Defendant filed a motion for appropriate relief after judgment was entered. The motion was denied at a post-trial hearing by Allsbrook, Judge. In his ruling we find no error.

We have carefully reviewed defendant's remaining assignments of error and find them to be without merit and they are overruled.

On the charge of second degree rape the appeal is dismissed.

On the charge of incest we find no prejudicial error.

No error.

HEDRICK and WELLS, JJ., concur.