testimony of law enforcement officer’s personal recollection of conviction
How later courts described this case
- testimony of law enforcement officer’s personal recollection of conviction
Written by the judges who cited it.
The opinion
Justice Webb
dissenting.
I dissent. I would concur if the majority were willing to overrule State v. Alston, 310 N.C. 399 , 312 S.E. 2d 470 (1984) but if Alston is precedent I do not believe the defendant may be convicted of rape in this case. In Alston the evidence showed that on previous occasions the defendant had beaten the prosecuting witness and that she was afraid of him. On the occasion in question he forced the victim to accompany him by twisting her arm and threatening to “fix her face.” This Court held there was not sufficient evidence of force' to submit a charge of rape to the jury. This Court said, “there was no substantial evidence that threats or force by the defendant on June 15 were sufficiently related to sexual conduct to cause Brown (the prosecuting victim) to believe that she had to submit to sexual intercourse with him or suffer harm. Although Brown’s general fear of the defendant may have been justified by his conduct on prior occasions, absent evidence that the defendant used force or threats to overcome the will of the victim to resist the sexual intercourse alleged to have been rape, such general fear was not sufficient to show that the defendant used the force required to support a conviction of rape.”
The prosecuting victim in Alston , as the prosecuting victim in this case, did not physically resist the defendant. In neither case did the defendant use more force than was necessary to have intercourse. In neither case was there a specific threat by the defendant to harm the victim if she resisted. On this evidence Alston says there is not enough evidence to submit rape to the jury. I believe Alston was decided incorrectly and should be overruled. If it is not to be overruled, however, I believe we are bound to reverse the rape conviction in this case.
*663 I note that the majority opinion contains the following statement. “This ‘general fear’ theory is applicable only to fact situations similar to those in Alston.” If the majority means by this that Alston on its facts has no precedential value I might concur. There are other interpretations however, and I therefore dissent.