State v. Tyson

HUNTER, Robert C., Judge,

concurring in part, dissenting in part.

I concur in Part III of the majority opinion holding that the trial court committed plain error in instructing the jury, warranting a new trial. However, because I conclude that the trial court erred in denying defendant’s motion' to dismiss the statutory rape charges for insufficient evidence of defendant’s consciousness, I respectfully dissent in Part II of the majority opinion.

My concern with the majority’s holding in Part II is that it sets a precedent which allows a defendant to be convicted of a crime even though the State’s own evidence exculpates the defendant of that crime, and the State attempts to prove its case solely by requiring the jury to disbelieve the State’s evidence without offering any affirmative evidence to support all the elements of the charge. The prosecution’s own evidence in this case directly contradicted its theory that defendant was conscious during the acts charged. N.B., the State’s *340main witness and the purported victim, testified that defendant was unconscious when the sexual acts occurred, and her testimony was corroborated by her mother and the officer who took her statement during the investigation. The prosecution essentially asked the jury to disregard the evidence it presented and to find that defendant was in fact conscious, despite the fact that no evidence was presented to support that theory. The prosecution presented some evidence, such as defendant’s letters to N.B., which amounted to circumstantial evidence that there was an inappropriate relationship, or that defendant sought an inappropriate relationship, but there was no evidence whatsoever that defendant was conscious when the alleged statutory rapes occurred. A criminal defendant cannot be convicted on what the jury, or this Court, might suspect happened. There must be actual evidence to support the prosecution’s case.

In sum, the prosecution presented circumstantial evidence that defendant had an inappropriate relationship with N.B. That is irrelevant. The prosecution raised, at best, a circumstantial suspicion that defendant was conscious when the sexual acts occurred. Circumstantial suspicion is not enough to overcome a motion to dismiss.

Analysis

The standard of review on appeal of a trial court’s denial of a criminal defendant’s motion to dismiss for insufficient evidence is whether the State offered substantial evidence to show the defendant committed each element required to be convicted of the crime charged. State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620 (2002). “ ‘Substantial evidence is evidence from which any rational trier of fact could find the fact to be proved beyond a reasonable doubt.’ ” State v. Alston, 131 N.C. App. 514, 518, 508 S.E.2d 315, 318 (1998) (citation omitted). “The evidence must be viewed in the light most favorable to the State, and the State must receive every reasonable inference to be drawn from the evidence.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citation omitted). “If the evidence, when considered in the light of the foregoing principles, is sufficient only to raise a suspicion, even though the suspicion may be strong, as to either the commission of the crime or that the defendant on trial committed it, the motion for dismissal must be allowed.” State v. Davis, 74 N.C. App. 208, 212-13, 328 S.E.2d 11, 14-15 (1985). A trial court’s denial of a motion to dismiss for insufficient evidence is a question of law, reviewed de novo upon appeal. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007).

*341A defendant may be guilty of statutory rape 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.” N.C. Gen. Stat. § 14-27.7A(a) (2007). However, “where a person commits an act without being conscious thereof, the act is not a criminal act even though it would be a crime if it had been committed by a person who was conscious.” State v. Jerrett, 309 N.C. 239, 264, 307 S.E.2d 339, 353 (1983). “[U]nder the law of this State, unconsciousness ... is a complete defense to a criminal charge,” State v. Caddell, 287 N.C. 266, 290, 215 S.E.2d 348, 363 (1975), because unconsciousness “excludes the possibility of a voluntary act without which there can be no criminal liability.” Id. at 295, 215 S.E.2d at 366.

The ultimate burden rests on the State to prove beyond a reasonable doubt every element necessary to convict a defendant. “[N]ormally the presumption of mental capacity is sufficient to prove that [a defendant] acted consciously and voluntarily and the prosecution need go no further.” Id. at 298-99, 215 S.E.2d at 368. However, this presumption may be overcome by sufficient evidence to the contrary. If sufficient evidence of the defendant’s unconsciousness “arises out of the State’s own evidence,” the burden rests on the State to prove the defendant’s consciousness beyond a reasonable doubt. Id. at 290, 215 S.E.2d at 363. Accordingly, the State had to prove beyond a reasonable doubt the elements of statutory rape in N.C. Gen. Stat. § 14-27.7A(a), and, as the evidence of defendant’s unconsciousness arose out of the State’s evidence, the State had to prove beyond a reasonable doubt that defendant was conscious when he committed the acts charged. Id.

Thus, the question before this Court is whether there is some evidence from which the jury could find beyond a reasonable doubt that defendant was conscious, and therefore committed voluntary acts, when he had sexual intercourse with N.B. I conclude there is not.

The State’s evidence tends to show the following: On direct examination by the State, N.B. testified that she had given defendant pills and then waited until it looked like he was passed out. She then “unzipped his pants],] pulled his privacy [sic] out and started jacking him off.” She acknowledged that his penis became erect while she was doing this, and that “after [] a little bit of cum came out... I got on top of him.” N.B. further testified on direct examination that during intercourse, defendant did not respond to her, did not say anything to her, did not move, and did not open his eyes.

*342N.B. admitted that the first time she was interviewed by Detective Dance, she told Dance that she had not had sex with defendant. She also admitted that the second time she spoke with Dance, she told her “part true and part story” in that she said she had given defendant a pill, but that, instead of saying she had gotten on top of defendant, she told Dance she had collected defendant’s semen in a shot glass and then put the semen inside of herself with a turkey basten N.B. testified, “I just lied because I didn’t want to be in trouble” and said that she told a different story on the stand because “I don’t want to go to jail for telling a lie.”

The majority cites “the manifest inconsistencies in N.B.’s testimony” as to how she became pregnant as circumstantial evidence of defendant’s consciousness. The consistent part of both stories was, however, that defendant was unconscious while N.B. performed sexual acts on him. The State offered no evidence to contradict this.

Alicia Komegay testified that N.B. told her “she took and gave [defendant] a pill, and he was out and she took and said she unzipped his pants and she played with him and she got a little cup and she had a [turkey basterj and she placed it in herself. That’s what she told me.” Ms. Kornegay testified that the only thing she knew about N.B. having intercourse with defendant was what N.B. told her and that when she asked defendant about it, he said that he had no idea about any of it.

This testimony corroborates N.B.’s testimony that defendant was unconscious during intercourse, and none of Ms. Kornegay’s testimony allows an inference that defendant was indeed conscious during intercourse with N.B.

Detective Dance testified that she first interviewed N.B. on or about 28 June. 2006. During that interview, N.B. denied ever having sex with defendant. Detective Dance interviewed N.B. again on 10 July 2006. Detective Dance testified that during that interview, N.B. stated that she got pills that could “lay a person out.” N.B. stated that she put two pills in defendant’s drink after he had “come home tired from drinking and smoking drugs.” She said that “when she gave it to him[,] he couldn’t move or anything.” N.B. stated to her that he was “dead-weight” and that she couldn’t lift him to get his pants off so she unzipped his pants and pulled out his genitals. She then told Dance that she started “messing” with him and then used a shot cup and a turkey baster to collect his semen and put it into herself. She told Dance that' “the next day he acted like he didn’t remember anything” *343and that he “only said that his head was hurting.” She told Dance that she had done this two different times.

Dance further testified that on 29 June 2006, she interviewed Ms. Kornegay. Dance testified that Ms. Komegay told her N.B. had told Ms. Kornegay that she had given defendant a pill and that after giving him the pill, N.B. had sex with defendant. Ms. Komegay said N.B. told her she was the one that did it to him and that he did not remember doing things with her. Detective Dance never interviewed defendant or asked him to give a statement.

Like N.B.’s and Ms. Kornegay’s testimony, Detective Dance’s testimony provides no evidence that defendant was conscious during intercourse with N.B. and, in fact, corroborates prior testimony that defendant was unconscious.

Neil Elks, a captain of the patrol division of the Pitt County Sheriff’s Department, testified to an alleged conversation he had with defendant at the Detention Center on or about 16 August 2006. Elks testified that defendant told him “they had him for something he didn’t do.” Elks testified that defendant said “his wife’s daughter had got him drunk, he had passed out, and then she got him off and she used a turkey baster to put his stuff inside of her and she got pregnant.” Elks further testified that he told defendant he was going to have to come up with a better story than that, and that defendant had responded, “ ‘[y]ou don’t think anyone will believe that?’ ” According to Elks, defendant then said, “ ‘[o]kay. I need to think of something else to say.’ ”

While the majority concludes that “[djefendant’s statement to Elks that he would ‘need to think of something else to say’ ” is circumstantial evidence that defendant was conscious during the two acts of sexual intercourse with N.B., nothing in this statement provides any evidence of defendant’s consciousness. At most, this statement suggests that defendant considered changing some part of his story that “his wife’s daughter had got him drunk, he had passed out, and then she got him off and she used a turkey baster to put his stuff inside of her and she got pregnant” because people might not believe it. Defendant did not state that the story recounted to Elks was untruthful; no witness testified to defendant giving a contradictory version of the story that he had recounted to Elks and defendant did not take the stand and testify to a contradictory version of events.

Shawn Weiss, an expert in the field of DNA analysis, testified that, based on DNA tests done on N.B., her two children, and defend*344ant, the probability that defendant was the father of N.B.’s two children was 99.99 percent. Although this may provide substantial evidence that defendant and N.B. had sexual intercourse, that is not the issue on appeal. The issue to be determined is whether the State offered sufficient evidence that defendant was conscious during the intercourse. The DNA evidence has no relevance to the determination of this essential issue.

Other evidence introduced by the State included two drawings sent to N.B. by defendant while he was in jail awaiting trial on the current charges. One depicted a male, a female, and a baby, and the other depicted a male, a female, a baby standing, and a baby being held. Although N.B. acknowledged that the children in the second drawing represented her children, she stated that the male figure depicted in each drawing represented her boyfriend, Dominic. While it could be surmised that the drawing depicted N.B., defendant, and their children, this.is not evidence that defendant was conscious during the intercourse that resulted in the children’s births.

The State also offered into evidence several letters defendant had written to' N.B. Excerpts from some of these letters are as follows:

“So what’s the deal, Baby? Can I get in them drawers. . . .”
“Quit smiling saying to yourself right now. Yes, you can.”
“P.S. What’s the deal, Shorty, can I get in them drawers?”
“P.S. Quit smiling.”
“Big Daddy 4-life.”
The only way to ensure that this, cycle be broken is to live for the Lord, but I can’t even do that because of things I don’t regret, but maybe should have done differently. . . .
. I hate you have to go back through that kind of pain, but this time I’ll be at the hospital with you. Okay.
*345Good night my darling one. I love you more than you can ever know.
“Age Ain’t Nothing But a Number[.]”

Both N.B. and Ms. Komegay testified that the phrase, “ ‘[s]o what’s the deal, Baby? Can I get in them drawers.‘Quit smiling saying to yourself right now. Yes, you can[]’ ” came from a song and was said often around their house.

The State offered no evidence to contradict N.B. or Ms. Komegay’s explanation of the meaning of the song lyrics. Even if the lyrics were taken literally as defendant asking N.B. if he could “get in [her pants];” this could only provide circumstantial evidence of defendant’s improper motives towards N.B. and does not provide any evidence of defendant’s consciousness during the sexual acts testified to by N.B. In fact, N.B. testified that defendant was unconscious, and her testimony was corroborated by other witnesses. N.B. was never inconsistent in her assertion that defendant was unconscious and no one testified to the contrary. Whether or not defendant wanted to pursue a sexual relationship with N.B. is not relevant evidence pertaining to defendant’s consciousness in this case.

Another letter from defendant to N.B. stated, in pertinent part:

You always act like you’re so into me, can’t live without me. As soon as you’re out of my sight you don’t give a damn about me. I don’t even matter then.
You only, you’re only crazy about me when you’re around me, but the minute you’re gone, who the hell is Malcolm? Some part of [N.B.] will never change, and you and I both know what parts they are, don’t we?

Again, while this may be evidence of defendant’s improper motives towards N.B., the letter does not provide any evidence of defendant’s consciousness during intercourse with N.B.

Defendant offered no evidence. The State offered no evidence to refute N.B.’s testimony at trial or statements to other witnesses that defendant was unconscious during intercourse with her. While the evidence was sufficient to establish each of the four elements of statutory rape listed in N.C. Gen. Stat. § 14-27.7A, the State offered no evidence to show that defendant acted consciously and voluntarily.

*346The State attempted to carry its burden of proof to show defendant was conscious and acted voluntarily by putting N.B. and Ms. Kornegay on the stand to give what the State then argued to be false testimony. As defendant pointed out, it was not up to defendant to impeach the exculpatory testimony given by the State’s own witnesses. In its closing argument, the State argued that N.B.’s testimony was “just unbelievable” and that “[i]t just doesn’t work that way. A man’s knocked out. Unconscious, he’s not going to be erect. He’s not going to be ejaculating.” However, “final arguments ‘are not evidence[,]’ ” State v. Cummings, 361 N.C. 438, 468, 648 S.E.2d 788, 806 (2007), and the State offered no evidence, medical or otherwise, that defendant would not have been able to maintain an erection under the influence of incapacitating drugs. Furthermore, the State offered no contradictory statements made by any witnesses or by defendant himself that he was conscious during the intercourse or that he remembered the intercourse.

The State cannot prove beyond a reasonable doubt any element of a crime charged by offering evidence which the State subsequently argues to be false, and then requiring the jury to conclude that, because the evidence was false, the State’s theory must be true. In the absence of credible evidence to the contrary, the State must offer some affirmative evidence for a jury to believe. There is no doctrine of res ipsa loquitor in the criminal law.

The trial court stated that the statute “[d]oesn’t say who brought [the intercourse] on; who — who did anything. Just says man can’t penetrate a child, whether she consents, jumps on him or whatever.” Defendant argued, “[hjowever, the actions have to be voluntary on the part of the defendant.” The trial court responded, “[t]hat’s a jury question.” However, the issue of defendant’s consciousness may only be submitted to the jury if the trial court determines that there was sufficient evidence from which the jury could find beyond a reasonable doubt that defendant was conscious. In this case, based on the evidence presented by the State, there was at most circumstantial evidence that defendant and N.B. had an inappropriate relationship, or that defendant sought an inappropriate relationship. There was not sufficient evidence to prove that defendant consciously committed the crime charged such that the case should have been presented to the jury.

Just as the State has the burden of proving that a defendant is not entitled to the complete defense of self-defense on a charge of *347assault, see State v. Poland, 148 N.C. App. 588, 597, 560 S.E.2d 186, 192 (2002) (“[t]he State has the burden of proving that a defendant is not entitled to the defense [of self-defense]”), or homicide, see State v. Watson, 338 N.C. 168, 180, 449 S.E.2d 694, 701-02 (1994) (“[w]hen-ever there is evidence that a defendant charged with a homicide killed in self-defense, the State has the burden of proving beyond a reasonable doubt that he did not”), and the sufficiency of the State’s evidence is the proper subject of a motion to dismiss even though self-defense is not a statutory element of those crimes, see, e.g. Poland, 148 N.C. App. at 597, 560 S.E.2d at 191 (considering whether the trial court erred in denying defendant’s motion to dismiss the charge of assault for insufficient evidence that defendant did not act in self-defense); Watson, 338 N.C. at 179-81, 449 S.E.2d at 701-02 (considering whether the trial court erred in denying defendant’s motion to dismiss the charge of homicide on the ground that the State failed to prove defendant did not act in self-defense), here the sufficiency of the State’s evidence of defendant’s consciousness, and thus his commission of a voluntary act, was a proper subject of defendant’s motion to dismiss. Based on the substantial evidence presented by the State that defendant was unconscious when the alleged sexual acts occurred, and the dearth of evidence to support the State’s intended theory that defendant was in fact conscious during the acts, the motion to dismiss should have been granted.

I conclude that the State offered no evidence from which a jury could find beyond a reasonable doubt that defendant was conscious and, therefore, committed voluntary acts, when his penis penetrated N.B.’s vagina. Moreover, assuming arguendo the evidence cited by the majority provides circumstantial evidence of defendant’s consciousness, such evidence merely creates a suspicion that defendant was conscious during the acts charged, and thus, would not support a finding beyond a reasonable doubt that defendant was conscious.

Again, I am concerned about the precedent set by the majority in this opinion. What the jury or I may suspect happened is not grounds for a conviction. There must be substantial evidence that a crime occurred and that defendant voluntarily committed it. Such evidence was not presented in this case.

As the State failed to meet its burden of proof, the trial court erred in denying defendant’s motion to dismiss. I would thus vacate the trial court’s judgment.