{ "id": 12135137, "name": "STATE OF NORTH CAROLINA v. RANDALL EUGENE JENKINS", "name_abbreviation": "State v. Jenkins", "decision_date": "1994-07-19", "docket_number": "No. 9314SC68", "first_page": "520", "last_page": "527", "citations": [ { "type": "official", "cite": "115 N.C. App. 520" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "41 ALR Fed 497", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "94 ALR3d 257", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "49 ALR3d 1186", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "343 Pa. Super. 118", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 635183 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "132" }, { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/pa-super/343/0118-01" ] }, { "cite": "391 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "174", "parenthetical": "quoting Commonwealth v. Evans, 343 Pa. Super. 118, 132, 494 A.2d 383, 390 (1985)" } ], "opinion_index": 0 }, { "cite": "326 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305171 ], "year": 1990, "pin_cites": [ { "page": "547", "parenthetical": "quoting Commonwealth v. Evans, 343 Pa. Super. 118, 132, 494 A.2d 383, 390 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0542-01" ] }, { "cite": "432 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521747 ], "year": 1993, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0284-01" ] }, { "cite": "276 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567730 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0529-01" ] }, { "cite": "467 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6193857 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "48" }, { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/us/467/0039-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-166", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "opinion_index": 0 }, { "cite": "250 S.E.2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552239 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/39/0359-01" ] }, { "cite": "333 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "314 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696763 ], "year": 1985, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0232-01" ] }, { "cite": "306 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 177", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526451 ], "year": 1983, "pin_cites": [ { "page": "178-79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0177-01" ] }, { "cite": "313 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "year": 1984, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "265 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "237 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564024 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0321-01" ] } ], "analysis": { "cardinality": 851, "char_count": 17708, "ocr_confidence": 0.724, "pagerank": { "raw": 4.901723523448478e-07, "percentile": 0.9337760618476212 }, "sha256": "40e4633c29bf5381070ef9cd10e6ff08b4150678d1a8208271cba1f71dbf3fa4", "simhash": "1:87eac026f63adeb4", "word_count": 2963 }, "last_updated": "2023-07-14T22:58:18.676868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and McCRODDEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RANDALL EUGENE JENKINS" ], "opinions": [ { "text": "COZORT, Judge.\nOn 24 July 1992, defendant was convicted of one count of first degree rape and one count of second degree kidnapping. Judge Orlando F. Hudson sentenced defendant to life in prison for the first degree rape and thirty years in prison for the second degree kidnapping to run at the expiration of the first sentence. Defendant appeals. We find the trial court committed two errors of sufficient prejudice to require a new trial for defendant.\nThe State presented the following evidence: A female student at North Carolina Central University, began dating defendant, a temporary employee for Western Temporary Services, in November or December of 1990. The student and defendant lived together periodically from March 1991 to September 1991. In September 1991, defendant took the student\u2019s car, her pocketbook, and $200.00. The student refused to allow defendant to return to live in her apartment. During the month of October, defendant called the student and attempted to reconcile with her. On 7 October 1991, the student had defendant arrested when he attempted to enter her apartment and damaged her front door.\nOn 1 November 1991, defendant stopped by the student\u2019s apartment to borrow $50.00. Defendant entered the apartment carrying a laundry basket. Defendant became angry, grabbed the student by the neck, and told her they were \u201call going to die.\u201d Defendant then grabbed neckties from the laundry basket and dragged the student into the bedroom. He threw her on the bed and began choking her. The student fought defendant as he ripped her robe and pulled off her underwear. Defendant straddled the student and tied a necktie to her foot. At that time, Michael Kennealy, a delivery man for a florist, knocked on the door and heard someone crying repeatedly \u201cOh, God, help me.\u201d Defendant answered the door and told Mr. Kennealy that everything was all right. Mr. Kennealy went to the apartment complex office, and the office manager called the police.\nWhen defendant answered the door for the delivery man, the student ran into the bathroom. Defendant brought the flowers and a butcher knife into the bathroom. He grabbed the student\u2019s hair and pulled her back into the bedroom, where he raped her while holding the knife to her throat. Defendant got up, and the student grabbed her clothes. Defendant took a necktie and tied her legs to the bed. The student grabbed the knife that defendant had laid on the bed and attempted to cut the necktie off her left foot. Defendant grabbed the knife, tied her hands to the bed, and tied a necktie around her head so she could not scream.\nDurham police officers arrived on the scene, knocked on the door, and forcibly entered the apartment. Defendant ran towards the officers yelling \u201cshoot me, shoot me.\u201d Defendant struggled and the officers subdued him.\nMedical testimony was offered that the student had a bruise on her right temple and an abrasion on her left hand. After notification of his Miranda rights, defendant gave a statement that he dated the student, he had gone to her apartment to get a check, and he did not remember anything else. \u00a1\nDefendant presented testimony that when he entered the apartment the student hugged and kissed him and led him to the bedroom where she had two neckties attached to the head of the bed. They engaged in consensual intercourse. When defendant went to the door and saw flowers being delivered, he became angry, and the student began to cry. When defendant attempted to discard the flowers, the student grabbed the butcher knife and cut him. The student ran into the bathroom where she vomited. The student attacked defendant. Defendant placed her in a bear hug and threw her on the bed. The student kicked defendant as he attempted to dress, and he slapped her. Defendant took the knife away from the student and apologized for hitting her. The couple then reconciled and the student requested that defendant tie her up before engaging in sexual intercourse. At that point defendant heard a knock, saw the police, and attempted to put on his clothes. When police entered the room, he said \u201cOh, you\u2019re going to shoot me. Shoot me, kill me, come on.\u201d Defendant further testified that he and the student had engaged in bondage twice before. He gave the initial statement to police because he wanted to cooperate, but he changed his mind when he realized he was going to be arrested and prosecuted.\nDefendant argues twelve assignments of error on appeal. We find two have merit and entitle defendant to a new trial. Before addressing those two issues, we first consider defendant\u2019s argument that the evidence was insufficient to uphold a guilty verdict. We disagree.\nIt is well settled that upon a motion to dismiss in a criminal action, all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. Any contradictions or discrepancies in the evidence are for resolution by the jury. State v. Witherspoon, 293 N.C. 321, 237 S.E. 2d 822 (1977). The trial judge must decide whether there is substantial evidence of each element of the offense charged. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 78, 265 S.E. 2d 164, 169 (1980).\nState v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).\nApplying the Brown standards to the State\u2019s evidence below, we find sufficient evidence of each element of each offense. The trial court did not err in denying defendant\u2019s motion to dismiss.\nWe now turn to defendant\u2019s meritorious arguments. First, defendant argues that the trial court improperly expressed an opinion in the presence of the jury when he turned his back to the jury for forty-five minutes during defendant\u2019s testimony on direct examination. We agree. In the case below, the following exchange occurred between defense counsel and the trial court:\nMr. Aus: Your Honor, I would also like to have it put on the record that during about forty-five minutes of Mr. Jenkins\u2019 testimony that you were staring at the wall and you had your back turned to the jury.\nThe Court: Yes, I sure did. Do you want to move for a mistrial based on that?\nMr. Aus: No, Judge.\nThe Court: And I may do it again during the cross examination. I mean, I can look anywhere I want to look but if you want to tell me something different, we can discuss that now. Where would you like for me to look? Mr. Aus, where would you like me to look during anybody\u2019s examination.\nMr. Aus: Judge, I would like for you, Judge, you have looked at the jury, or at least was looking in the direction of the jury the entire time.\nThe Court: I haven\u2019t done anything the entire time.\nMr. Aus: Well, Judge, you didn\u2019t have your back \u2014 Let me put it this way, your back was to the wall.\nThe Court: You may note that it was forty-five minutes, I believe it was. So how many minutes did I look at other witnesses when they were testifying? Did you keep a record of that?\nN.C. Gen. Stat. \u00a7 15A-1222 (1988) provides: \u201cThe judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury. \u201d Trial judges \u201cmust be careful in what they say and do because a jury looks to the court for guidance and picks up the slightest intimation of an opinion. It does not matter whether the opinion of the trial judge is conveyed to the jury directly or indirectly as every defendant in a criminal case is entitled to a trial before an impartial judge and an unbiased jury.\u201d State v. Sidbury, 64 N.C. App. 177, 178-79, 306 S.E.2d 844, 845 (1983). \u201cWhether the judge\u2019s comments, questions or actions constitute reversible error is a question to be considered in light of the factors and circumstances disclosed by the record, the burden of showing prejudice being upon the defendant.\u201d State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985). \u201c[I]n a criminal case it is only when the jury may reasonably infer from the evidence before it that the trial judge\u2019s action intimated an opinion as to a factual issue, the defendant\u2019s guilt, the weight of the evidence or a witness\u2019s credibility that prejudicial error results.\u201d Id.\nConsidering the trial court\u2019s action in light of the factors and circumstances disclosed in the record, we find that the jury could reasonably infer from the trial court\u2019s action in turning his back to defendant and the jury during defendant\u2019s testimony that the trial judge did not believe defendant\u2019s testimony to be credible. Although the trial court may not have intended to convey such a message, we must find error where the trial court\u2019s actions may speak directly to the guilt or innocence of the defendant. See State v. Guffey, 39 N.C. App. 359, 250 S.E.2d 96, 97 (1979). Here, defendant asserted consent as a defense. Defendant\u2019s testimony and his credibility were crucial to that defense. Therefore, we believe the trial court\u2019s action was sufficiently prejudicial to require a new trial.\nWe also find merit to defendant\u2019s argument that the trial court erred in granting the State\u2019s motion to clear the courtroom during the student\u2019s testimony. The trial court permitted counsel, defendant, court personnel, and members of the press to remain in the courtroom during the testimony. N.C. Gen. Stat. \u00a7 15-166 (1983) provides that the trial court may exclude from the courtroom all persons except officers of the court, the defendant, and those engaged in the trial during the testimony of the prosecutrix. In clearing the courtroom, the trial court must determine if the party seeking closure has advanced an overriding interest that is likely to be prejudiced, order closure no broader than necessary to protect that interest, consider reasonable alternatives to closing the procedure, and make findings adequate to support the closure. Waller v. Georgia, 467 U.S. 39, 48, 81 L.Ed.2d 31, 39 (1984). In the case below, the trial court made no findings of fact to support the closure during the student\u2019s testimony. See State v. Burney, 302 N.C. 529, 276 S.E.2d 693 (1981). Accordingly, we find the trial court erred. On re-trial, the trial court must follow the above mandates if the State moves to close the trial during the student\u2019s testimony.\nWe now turn our attention to three matters which may arise upon retrial.\nFirst, defendant argues that the trial court erred in excluding evidence of all the prior sexual acts between defendant and the student. We disagree. N.C. Gen. Stat. \u00a7 8C-1, Rule 412(b) (1992) provides in part:\n(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:\n(1) Was between the complainant and the defendant; or\n* * * *\n(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant\u2019s version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or\n* * * *\nBefore any questions pertaining to such evidence are asked of any witness, the proponent of such evidence shall first apply to the court for a determination of the relevance of the sexual behavior to which it relates. ... In the hearing, the proponent of the evidence shall establish the basis of admissibility of such evidence.\nAlthough evidence of prior sexual activity may be admissible pursuant to the exception set forth in Rule 412(b)(1), the defendant must show the basis of admissibility, and the trial court must determine the relevance of the proffered evidence. State v. Black, 111 N.C. App. 284, 289, 432 S.E.2d 710, 714 (1993). In the case below, the trial court ruled that defendant could present evidence of previous acts of bondage between the complainant and defendant, sexual acts on a leather couch, complainant experiencing pain during previous acts of intercourse, a sexual act on a piano stool, and watching pornographic movies. The trial court ruled that defendant could not present evidence of masturbation, sexual aids, a sexual encounter in a hotel room while another couple slept, and certain sexual acts prior to complainant and defendant watching the pornographic movie. The trial court excluded the evidence as irrelevant or highly prejudicial. We agree with the trial court that every sexual act between the complainant and defendant was not relevant. The trial court permitted evidence of sexual acts pertinent to the defense that the complainant consented to the sexual act on 1 November 1991. We find that defendant failed to prove the basis of admissibility for the excluded evidence which was irrelevant and cumulative. We find no error.\nDefendant next argues that the trial court erred in admitting evidence that one month prior to the alleged rape, defendant failed to return the student\u2019s car, stole some money, broke into her home, and was arrested. Defendant contends that the evidence was inadmissible pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (1992), which prohibits use of prior bad acts to show a defendant\u2019s bad character and that he acted in conformity therewith. We disagree. The State argues that the evidence was admissible to show the chain of events and the termination of the relationship. We find the evidence admissible as \u201ca part of the history of the event [which] serve[d] to enhance the natural development of the facts.\u2019\u201d State v. Agee, 326 N.C. 542, 547, 391 S.E.2d 171, 174 (1990) (quoting Commonwealth v. Evans, 343 Pa. Super. 118, 132, 494 A.2d 383, 390 (1985)). We find no error.\nNext, defendant contends that the trial court erred in failing to instruct the jury on the lesser included offense of false imprisonment because defendant\u2019s testimony raised the possibility that defendant tied the student to the bed in order to avoid being struck by her. We find no merit to defendant\u2019s argument. Defendant testified that he bound the student to the bed at her request after they had reconciled and she had relinquished the knife. Defendant\u2019s argument is overruled.\nWe have reviewed defendant\u2019s remaining assignments of error and find them either unlikely to recur on retrial or to be unpersuasive.\nNew trial.\nJudges JOHNSON and McCRODDEN concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Teresa L. White, for the State.", "Public Defender Robert Brown, Jr., by Assistant Public Defender Brian Michael Aus; and Daniel Shatz, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RANDALL EUGENE JENKINS\nNo. 9314SC68\n(Filed 19 July 1994)\n1. Rape and Allied Sexual Offenses \u00a7 82 (NCI4th)\u2014 sufficiency of evidence\nEvidence was sufficient to be submitted to the jury in a prosecution for first-degree rape and second-degree kidnapping.\nAm Jur 2d, Rape \u00a7\u00a7 88 et seq.\n2. Criminal Law \u00a7 375 (NCI4th)\u2014 judge\u2019s turning back on defendant \u2014 improper expression of opinion\nThe trial court improperly expressed an opinion in the presence of the jury in a rape and kidnapping trial when he turned his back to the jury for forty-five minutes during defendant\u2019s testimony on direct examination, and because defendant asserted consent as a defense, and his testimony and credibility were crucial to that defense, the trial court\u2019s action was sufficiently prejudicial to require a new trial.\nAm Jur 2d, Trial \u00a7\u00a7 91 et seq.\nGestures or facial expressions of trial judge in criminal case, indicating approval or disapproval, belief or disbelief, as ground for relief. 49 ALR3d 1186.\n3. Criminal Law \u00a7 362 (NCI4th)\u2014 rape case \u2014 judge\u2019s clearing of courtroom \u2014 failure to make required findings\nIn a prosecution for first-degree rape and second-degree kidnapping of a college student, the trial court erred in granting the State\u2019s motion to clear the courtroom during the student\u2019s testimony without making the required findings that the party seeking closure had advanced an overriding interest that was likely to be prejudiced, the degree of closure required to protect that interest, and whether alternatives to closing the procedure existed.\nAm Jur 2d, Trial \u00a7\u00a7 87 et seq.\n4. Evidence and Witnesses \u00a7 124 (NCI4th)\u2014 evidence of prior sexual acts between complainant and defendant\u2014 admissibility\nIn a prosecution for first-degree rape and second-degree kidnapping, the trial court did not err in admitting evidence of prior sexual acts between the complainant and defendant which was pertinent to the defense that complainant consented to the sexual act in question, nor did the court err in excluding evidence of sexual acts which was irrelevant and cumulative.\nAm Jur 2d, Evidence \u00a7\u00a7 496 et seq.\nModern status of admissibility, in forcible rape prosecution, of complainant\u2019s prior sexual acts. 94 ALR3d 257.\n5. Evidence and Witnesses \u00a7 386 (NCI4th)\u2014 evidence of other offenses \u2014 admissibility\nThe trial court in a first-degree rape and second-degree kidnapping case did not err in admitting evidence that one month prior to the alleged rape, defendant failed to return the victim\u2019s car, stole some money, broke into her home, and was arrested, since the evidence was admissible to show the chain of events and the termination of the relationship.\nAm Jur 2d, Evidence \u00a7\u00a7 404 et seq.\nAdmissibility, under Rule 404(b) of Federal Rules of Evidence, of evidence of other crimes, wrongs, or acts not similar to offense charged. 41 ALR Fed 497.\nAppeal by defendant from judgments entered 24 July 1992 by Judge Orlando F. Hudson in Durham County Superior Court. Heard in the Court of Appeals 7 October 1993.\nAttorney General Michael F. Easley, by Assistant Attorney General Teresa L. White, for the State.\nPublic Defender Robert Brown, Jr., by Assistant Public Defender Brian Michael Aus; and Daniel Shatz, for defendant appellant." }, "file_name": "0520-01", "first_page_order": 552, "last_page_order": 559 }