{ "id": 9082764, "name": "STATE OF NORTH CAROLINA v. JIMMY RAY OXENDINE", "name_abbreviation": "State v. Oxendine", "decision_date": "2002-06-18", "docket_number": "No. COA01-1079", "first_page": "670", "last_page": "677", "citations": [ { "type": "official", "cite": "150 N.C. App. 670" } ], "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": "551 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "142" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 452", "category": "reporters:state", "reporter": "N.C. 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Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "518 U.S. 1024", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1730080, 1729633, 1730183, 1729928, 1730015, 1729611, 1730027, 1730125, 1729681, 1729939, 1730227, 1729596, 1730110, 1729791 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/518/1024-08", "/us/518/1024-11", "/us/518/1024-13", "/us/518/1024-02", "/us/518/1024-04", "/us/518/1024-03", "/us/518/1024-12", "/us/518/1024-01", "/us/518/1024-06", "/us/518/1024-09", "/us/518/1024-14", "/us/518/1024-05", "/us/518/1024-07", "/us/518/1024-10" ] }, { "cite": "464 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "463" } ], "opinion_index": 0 }, { "cite": "342 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795939 ], "year": 1995, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0249-01" ] }, { "cite": "522 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "69" } ], "opinion_index": 0 }, { "cite": "351 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155797 ], "year": 1999, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0137-01" ] }, { "cite": "461 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "663" } ], "opinion_index": 0 }, { "cite": "341 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793199 ], "year": 1995, "pin_cites": [ { "page": "583-84" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0569-01" ] }, { "cite": "472 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "925" } ], "opinion_index": 0 }, { "cite": "344 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867565 ], "year": 1996, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0065-01" ] } ], "analysis": { "cardinality": 777, "char_count": 16961, "ocr_confidence": 0.763, "pagerank": { "raw": 3.29825122386636e-07, "percentile": 0.8717322901837135 }, "sha256": "a178110e561bc561f4ac9e1900c4987d72553a1e303908c544dcdb5286b50f99", "simhash": "1:016f70b586bf60de", "word_count": 2802 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and CAMPBELL concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JIMMY RAY OXENDINE" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nJimmy Ray Oxendine (\u201cdefendant\u201d) appeals from his convictions of two counts of attempted first-degree rape and two counts of second-degree kidnapping. For the reasons stated herein, we vacate in part the judgment of the trial court.\nThe State presented evidence at trial tending to show the following: On the afternoon of 9 June 2000, defendant appeared at the rear door of the Concord, North Carolina, residence of Melinda Arnett (\u201cArnett\u201d), and requested a cup of sugar. Arnett, who was home at the time with her two young children, knew defendant as the boyfriend of her neighbor, and she had loaned defendant sugar on a previous occasion. After Arnett gave defendant the sugar, he asked her whether \u201c[she] and [her] husband are church-goers.\u201d When Arnett replied affirmatively, defendant stated that he would \u201clike to talk to [her] about . . . something\u201d and entered Arnett\u2019s house. Arnett and defendant then sat down in the living room, whereupon defendant proceeded to tell Arnett about problems he was having with his girlfriend. Defendant stated that he also wanted to talk to Arnett\u2019s husband, and asked her when she expected him home. Arnett informed him that her husband would be coming home early that day.\nUpon concluding their conversation, defendant requested to use Arnett\u2019s bathroom. When he returned to the living room, he indicated that he was leaving and headed towards the rear door of the residence. Before reaching the door, however, defendant turned towards Arnett and pulled out a long butcher knife from the waistband of his pants. Defendant pointed the knife at Arnett and ordered her to walk to the bedroom with him. Arnett initially complied with defendant\u2019s demand, but when she reached the door of the bedroom, she told defendant that she \u201ccouldn\u2019t do that, that my body belongs to Jesus Christ and to my husband only and I will not violate my body for somebody else.\u201d Arnett testified that she was terrified, and that her voice was \u201cshaky and I was panicking.\u201d At that point, Arnett\u2019s older child approached them and asked his mother what was wrong. Defendant told Arnett to \u201c[s]end him back to the living room and have him watch T.V. and he\u2019ll never know anything is going to happen because he won\u2019t see anything. We\u2019ll lock the door and let them watch T.V. and he\u2019ll never see anything.\u201d Arnett again refused and offered to give defendant money. Defendant replied that, \u201cthis is not about money; it\u2019s about sex, all I want is sex.\u201d Arnett told defendant that her son\u2019s therapist would be arriving at the house shortly and that they would not \u201chave time for anything anyway so . . . let\u2019s go to the living room and talk.\u201d Defendant then told Arnett to perform an act of masturbation upon him, but finally agreed to return to the living room.\nShortly thereafter, Michelle Ashby (\u201cAshby\u201d), an occupational therapist, arrived at the residence for her appointment with Arnett\u2019s son. Defendant remained seated in a chair in the living room with the knife concealed by his side while Ashby worked with Arnett\u2019s child. When Arnett took her older son to the bathroom, defendant whispered and gestured for Ashby to come closer to him. When Ashby moved to within two feet of defendant, he asked her whether she was married and then brandished his knife. Defendant ordered Ashby to \u201cgo to the back bedroom and quietly take [her] clothes [off] so that the kids wouldn\u2019t see what he was going to do.\u201d Ashby testified that she \u201cstarted to shake\u201d and \u201ccouldn\u2019t breathe very well.\u201d She began pleading with defendant not to hurt her and asked him why he wanted to rape her. Defendant replied, \u201cBecause I want to[.]\u201d When Ashby told defendant that he could probably find someone willing to have sexual intercourse with him, he stated, \u201c[N]o, I want to have sex with you[.]\u201d Defendant stood over Ashby with his knife pointed towards her and told her to \u201ccome on,\u201d pointing towards the bedroom.\nArnett returned from the bathroom with her son and saw defendant standing over and reaching for Ashby with his knife drawn. Both women then begged defendant not to hurt them, telling him that if he left, they would not call the police. After approximately thirty minutes, defendant agreed to leave.\nThe jury found defendant guilty of two counts of attempted first-degree rape and two counts of second-degree kidnapping, for which the trial court sentenced defendant to an active term of imprisonment for 189 to 236 months. From his convictions and resulting sentence, defendant appeals.\nDefendant argues that the trial court erred in denying his motion to dismiss the charges against him at the close of the State\u2019s evidence. For the reasons stated herein, we vacate in part the judgment of the trial court.\nWhen a defendant moves to dismiss the charges against him, the only issue for the trial court is \u201cwhether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u201d State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). In reviewing a motion to dismiss, the trial court should be concerned only with the sufficiency of the evidence, and not with its weight. See State v. Sokolowski, 351 N.C. 137, 143, 522 S.E.2d 65, 69 (1999). The court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from that evidence. See State v. Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). Contradictions and discrepancies in the evidence are resolved in favor of the State. See State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995). Review of the sufficiency of the evidence to withstand the defendant\u2019s motion to dismiss is the same whether the evidence is direct, circumstantial, or both. See State v. Jones, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981).\nIn the instant case, defendant was charged with attempted first-degree rape and kidnapping in the first and second degrees. To convict a defendant of attempted rape, the State must prove the following two essential elements beyond a reasonable doubt: (1) that the defendant had the specific intent to rape the victim, and (2) \u201cthat [the] defendant committed an act that goes beyond mere preparation, but falls short of the actual commission of the rape.\u201d State v. Schultz, 88 N.C. App. 197, 200, 362 S.E.2d 853, 855 (1987), affirmed per curiam, 322 N.C. 467, 368 S.E.2d 386 (1988). \u201cThe element of intent as to the offense of attempted rape is established if the evidence shows that [the] defendant, at any time during the incident, had an intent to gratify his passion upon the victim, notwithstanding any resistance on her part.\u201d Id. at 200, 362 S.E.2d at 855-56; see also State v. Brayboy, 105 N.C. App. 370, 374, 413 S.E.2d 590, 593 (1992) (defining attempt in the context of an attempted rape).\nDefendant contends that there was insufficient evidence of his intent to rape either Arnett or Ashby in that, once the victims presented resistance, he ceased his sexual assault. Defendant argues that, had he possessed the requisite intent to commit the act, resistance by the victims would not have stopped him. We disagree.\nAs stated supra, the element of intent as to the offense of attempted rape is established if the evidence shows that defendant, at any time during the incident, had an intent to gratify his passion upon the victim. See Schultz, 88 N.C. App. at 200, 362 S.E.2d at 855-56. Intent to rape may be \u201cproved circumstantially by inference, based upon a defendant\u2019s actions, words, dress, or demeanor.\u201d State v. Cooper, 138 N.C. App. 495, 498, 530 S.E.2d 73, 75, affirmed per curiam, 353 N.C. 260, 538 S.E.2d 912 (2000). An \u201covert act manifesting a sexual purpose or motivation on the part of the defendant is adequate evidence of an intent to commit rape.\u201d State v. Dunston, 90 N.C. App. 622, 625, 369 S.E.2d 636, 638 (1988). Evidence that an attack is sexually motivated \u201cwill support a reasonable inference of an intent to engage in vaginal intercourse with the victim even though other inferences are also possible.\u201d Id. at 625-26, 369 S.E.2d at 638.\nConsidering the evidence in the light most favorable to the State, a reasonable jury could infer from defendant\u2019s actions with Arnett and Ashby that he intended to rape them. Defendant showed his intent towards Arnett by pulling out the butcher knife, ordering her to walk to the bedroom at knifepoint, and telling her he wanted to have sex with her. He also told Arnett to perform an act of masturbation upon him. These actions by defendant demonstrate that his attack was sexually motivated and provide sufficient evidence to support a reasonable inference that defendant intended to rape Arnett. Defendant\u2019s actions towards Ashby provide similar support for the attempted rape charge. Defendant pointed the knife at Ashby and demanded that she go to the bedroom and undress. He also told her that he intended to rape her. The fact that defendant ended his assault before he actually raped either Arnett or Ashby, or the reasons for the change in his stated intent to rape the women, is irrelevant for purposes of attempted rape. The fact that the women apparently managed to dissuade defendant from his stated purpose does not alter defendant\u2019s initial actions towards them. \u201cThe jury could have reasonably inferred that, but for the victim\u2019s ingenuity and courage, she would have been subjected to attempted forcible sexual intercourse.\u201d State v. Whitaker, 316 N.C. 515, 519, 342 S.E.2d 514, 517 (1986). We hold there was sufficient evidence to support the jury\u2019s verdict, and the trial court therefore did nor err in denying defendant\u2019s motion to dismiss the charges of attempted rape.\nDefendant further contends that there was insufficient evidence of either second-degree or first-degree kidnapping. The elements of first-degree kidnapping are: (1) confining, restraining, or removing from one place to another; (2) any person sixteen years or older; (3) without such person\u2019s consent; (4) if such act was for the purposes of facilitating the commission of a felony. See N.C. Gen. Stat. \u00a7 14-39 (a)(2) (2001). The difference between first and second-degree kidnapping is\n[i]f the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C felony. If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree.\nN.C. Gen. Stat. \u00a7 14-39(b) (2001).\nIn State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978), our Supreme Court stated that \u201ccertain felonies (e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim.\u201d Id. at 523, 243 S.E.2d at 351. \u201c[Restraint, which is an inherent, inevitable feature of such other felony,\u201d cannot also form the basis of a kidnapping conviction. Id. Nonetheless, \u201ctwo or more criminal offenses may grow out of the same course of action,\u201d id., and there is no barrier to convicting a defendant for kidnapping, \u201cby restraining his victim, and also of another felony to facilitate which such restraint was committed, provided the restraint, which constitutes the kidnapping, is a separate, complete act, independent of and apart from the other felony.\u201d Id. at 524, 243 S.E.2d at 352. See also State v. Silhan, 297 N.C. 660, 673, 256 S.E.2d 702, 710 (1979) (noting that restraint of a rape victim may constitute kidnapping if it is a separate and independent act). Moreover, \u201c[a]sportation of a rape victim is sufficient to support a charge of kidnapping if the defendant could have perpetrated the offense when he first threatened the victim, and instead, took the victim to a more secluded area to prevent others from witnessing or hindering the rape.\u201d State v. Walker, 84 N.C. App. 540, 543, 353 S.E.2d 245, 247 (1987).\nDefendant contends there was insufficient evidence to support the charge of first or second-degree kidnapping. Defendant argues that there was insufficient evidence of a sexual assault by defendant to support the essential element that the \u201cpurpose of the restraint was to facilitate a felony.\u201d Defendant further argues that, because he did not move Ashby in any manner, her restraint was not a separate and complete act independent of the crime of attempted rape. We agree in part with defendant\u2019s argument.\nWe have determined that there was adequate evidence to support both counts of attempted rape against defendant. There was also sufficient evidence to support the charge of first or second-degree kidnapping as to defendant\u2019s actions regarding Arnett. Defendant\u2019s act of forcing Arnett to the bedroom at knifepoint in order to prevent her children from either witnessing or hindering the intended rape constituted a separate act and properly supports the charge of first or second-degree kidnapping. Moreover, we note that the jury found defendant guilty of second-degree kidnapping, rather than first-degree kidnapping. The trial court did not err in submitting the first and second-degree kidnapping charges as to Arnett to the jury.\nWe agree with defendant, however, that there was insufficient evidence to support the kidnapping charges as to Ashby. As stated supra, the restraint required for kidnapping must be an act independent of the intended felony. See State v. Harris, 140 N.C. App. 208, 213, 535 S.E.2d 614, 617, disc. review denied, 353 N.C. 271, 546 S.E.2d 122 (2000). \u201cThe test of the independence of the act is \u2018whether there was substantial evidence that the defendant restrained or confined the victim separate and apart from any restraint necessary to accomplish the [felony].\u2019 \u201d Id. at 213, 535 S.E.2d at 618 (quoting State v. Mebane, 106 N.C. App. 516, 532, 418 S.E.2d 245, 255, disc. review denied, 332 N.C. 670, 424 S.E.2d 414 (1992)). The restraint of the victim must be a complete act, independent of the sexual offense. See State v. Ackerman, 144 N.C. App. 452, 457, 551 S.E.2d 139, 142 (2001). The State presented insufficient evidence in the instant case that defendant\u2019s restraint of Ashby by knifepoint was for purposes other than his stated intention to rape her. Although defendant instructed Ashby to go to the back bedroom, Ashby remained on the floor and never moved during her encounter with defendant. As there was insufficient evidence to support the kidnapping charges as to Ashby, we conclude that the trial court erred in submitting such to the jury. We therefore vacate defendant\u2019s conviction of second-degree kidnapping regarding Ashby and remand defendant\u2019s case to the trial court for re-sentencing.\nVacated in part, no error in part.\nJudges MARTIN and CAMPBELL concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General J. Charles Waldrup, for the State.", "Matthew F. Ginn for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JIMMY RAY OXENDINE\nNo. COA01-1079\n(Filed 18 June 2002)\n1. Rape\u2014 attempted \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the two charges of attempted rape, because: (1) a reasonable jury could infer from defendant\u2019s actions with the two victims that he intended to rape them; (2) the fact that defendant ended his assault before he actually raped either victim or the reasons for the change in his stated intent to rape the women is irrelevant for purposes of attempted rape; and (3) the fact that the women apparently managed to dissuade defendant from his stated purpose does not alter defendant\u2019s initial actions towards them.\n2. Kidnapping\u2014 second-degree \u2014 sufficiency of evidence\u2014 separate act\nThe trial court did not err in an attempted rape and kidnapping case by denying defendant\u2019s motion to dismiss the charge of first-degree and second-degree kidnapping regarding one of the victims, because defendant\u2019s act of forcing the victim to the bedroom at knifepoint in order to prevent her children from either witnessing or hindering the intended rape constituted a separate act.\n3. Kidnapping\u2014 second-degree \u2014 sufficiency of evidence\u2014 failure to show separate act\nThe trial court erred in an attempted rape and kidnapping case by denying defendant\u2019s motion to dismiss the charge of first-degree and second-degree kidnapping regarding the second victim, because the State failed to present sufficient evidence that defendant\u2019s restraint of the victim by knifepoint was for purposes other than his stated intention to rape her.\nAppeal by defendant from judgments entered 18 January 2001 by Judge Michael E. Beale in Cabarrus County Superior Court. Heard in the Court of Appeals 23 May 2002.\nAttorney General Roy Cooper, by Special Deputy Attorney General J. Charles Waldrup, for the State.\nMatthew F. Ginn for defendant appellant." }, "file_name": "0670-01", "first_page_order": 700, "last_page_order": 707 }