finding sufficient evidence of intent to rape where the victim testified that the defendant "dragged her down a hallway toward a guest bedroom, and that he put his hand down over her shoulder and down the front of her shirt and grabbed her breasts"
How later courts described this case
- finding sufficient evidence of intent to rape where the victim testified that the defendant "dragged her down a hallway toward a guest bedroom, and that he put his hand down over her shoulder and down the front of her shirt and grabbed her breasts"
- finding circumstantial evidence of intent where “the victim testified that defendant dragged her down a hallway toward a guest bedroom, and that he put his hand down over her shoulder and down the front of her shirt and grabbed her breasts.”
- defendant touched victim’s breast
Written by the judges who cited it.
The opinion
Judge BECTON
dissenting.
Believing that this case is controlled by State v. Freeman, 307 N.C. 445 , 298 S.E. 2d 376 (1983); State v. Gammons, 260 N.C. 753 , 133 S.E. 2d 649 (1963); State v. Gay, 224 N.C. 141 , 29 S.E. 2d 458 (1944); and State v. Rushing, 61 N.C. App. 62 , 300 S.E. 2d 445 (1983), I dissent. In my view, the evidence presented by the State was insufficient as a matter of law to establish defendant’s guilt of attempted second degree rape, and I therefore vote to reverse the attempted second degree rape conviction.
Discussing the offense of attempted rape, this court in Rushing said:
... in order to carry its burden, it was necessary for the State to present sufficient evidence to permit the jury to find first, that when defendant assaulted the prosecutrix he intended to engage in forcible, nonconsensual intercourse with her and second, that in the ordinary and likely course of events his assaultive acts would result in the commission of a rape.
61 N.C. App. at 67 , 300 S.E. 2d at 449 .
In the case sub judice, the evidence in the light most favorable to the State shows the following. Defendant grabbed the prosecuting witness from behind. Placing his left arm under her left arm, defendant then picked her up and asked her for money. When she said she did not have any money, defendant asked to see her underwear drawer and started pulling her down the foyer and guest room hall in such a manner that her feet were not always on the ground. At that point, the direct examination reveals the following:
. . . [h]e was just kind of holding me up and I was screaming and he dropped me in the corner before the guest bedroom and I started screaming real loud and he got real panicky and he picked me back up and tried to shut me in the guest bathroom and I was fighting back and he put his hands down over *205 my right shoulder and down my shirt and at that time I bit his finger.
Q. Okay, hold on a second, when he put his hand, you say his hand, which hand?
A. His right hand.
Q. He put his right hand down your shirt, did he grab part of your body?
A. He grabbed my chest.
Q. Your breasts?
A. Yes sir.
Q. After he did that, where was his left hand?
A. I’m not really sure.
Q. O.K., you indicated you bit his hand, do you know which hand you bit?
A. It must have been his left hand, his left hand was over my mouth and I bit his index finger.
Q. What did he do then?
A. He got up and walked to the foyer and he went to the doors and I came out and I said, “I promise I won’t say anything,” and he said, “you promise,” and ran out of the door.
The foregoing evidence does not show the requisite “overt manifestation of an intended forcible sexual gratification” discussed in Rushing, 61 N.C. App. at 66 , 300 S.E. 2d at 449 . Moreover, in my view, the foregoing evidence is weaker than the evidence in Freeman, Gammons, Gay, or Rushing . This court, in Rushing , thoroughly reviewed the precedent:
... In State v. Gay, 224 N.C. 141 , 29 S.E. 2d 458 (1944), our Supreme Court held that where the defendant indecently exposed himself to the victim on a city street, posed an indecent question and chased her briefly when she screamed and ran, but did not touch the victim, there was insufficient evidence of assault with intent to commit rape because there was no showing that the defendant intended to gratify his *206 passions notwithstanding the resistance of the victim. The Court, noting that the evidence would warrant a verdict of guilty of assault on a female, granted the defendant a new trial.
In State v. Gammons, 260 N.C. 753 , 133 S.E. 2d 649 (1963), the evidence tended to show that the defendant, who was a minister, told the prosecutrix that the Lord had told him to have sexual relations with her in order to heal her, pushed her down on a bed and laid on top of her, put his hand up her dress removing her underclothes and touched her “body” with his. When the woman threatened to scream, which would have alerted the minister’s wife, he ceased in his efforts, threatening her with death should she tell. The Court held that there was insufficient evidence to show that the defendant intended to overcome the victim’s resistance and granted the defendant a new trial on the lesser included misdemeanor of assault on a female.
* * *
In Freeman , the State’s evidence tended to show that the defendant, dressed in a sweat shirt type jacket and blue jeans, upon asking permission to enter and being refused, twice forcibly entered the female victim’s home at night telling her that she “shouldn’t have enticed” him. Citing State v. Bell, supra as an example of where sufficient intent to rape had been shown, the Court held that defendant Freeman’s conviction of burglary could not stand, stating that “[t]here was nothing in defendant’s dress or demeanor to suggest an intent to commit rape” and that the “words spoken by the defendant . . ., [i]n light of [the victim’s] testimony that she was fully clothed and in no way encouraged the defendant, . . . are at best ambiguous and . . . are virtually meaningless.”
61 N.C. App. at 64-67 , 300 S.E. 2d at 448-49 . Based on the foregoing precedent, the Rushing court held the following evidence insufficient to show intent to rape:
The prosecutrix was awakened from her sleep on 3 August 1981 in the early morning hours by a noise. Although there was no light in her room, she saw someone climb in her win *207 dow. She could tell that the intruder . . . was wearing dark pants, white fabric gloves, and no shirt. The women asked who it was and he said, “Don’t holler, don’t scream, I got a gun, I’ll shoot you.” The prosecutrix backed up to the head of her bed, whereupon the intruder came to the side of the bed and grabbed her arm. Every time she tried to turn on the light, the man told her not to move. The prosecutrix started screaming .... The intruder put his hand over her mouth. Her small child woke and started screaming. The man let go of her arm and dove out the window head first.
61 N.C. App. at 62-63 , 300 S.E. 2d at 447 .
Considering the precedent, I believe the evidence in the case sub judice fails to show that when defendant assaulted the prosecuting witness, he intended to engage in forcible nonconsensual intercourse with her and it fails to show that in the ordinary and likely course of events his assaultive acts would result in the commission of a rape.