{ "id": 8955156, "name": "STATE OF NORTH CAROLINA v. JEFFREY LEON OWEN", "name_abbreviation": "State v. Owen", "decision_date": "2003-07-15", "docket_number": "No. COA02-1224", "first_page": "204", "last_page": "209", "citations": [ { "type": "official", "cite": "159 N.C. App. 204" } ], "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": "148 L. Ed. 2d 784", "category": "reporters:federal", "reporter": "L. 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JEFFREY LEON OWEN" ], "opinions": [ { "text": "CALABRIA, Judge.\nOn 22 May 2002, Jeffrey Leon Owen (\u201cdefendant\u201d) was convicted of attempted first-degree forcible rape and breaking or entering. For these offenses, the court sentenced defendant to a total of 151 months to 191 months\u2019 imprisonment. Defendant appeals. We find no error and affirm the judgment of the trial court.\nOn 31 May 2001, Lauren Tyler (\u201cthe victim\u201d), aged 17, was asleep on the top single bunk in the rear bedroom of her home. On the bottom double bunk, her older sister, Lucia Tyler, and their cousin, Toni Jimerson, were also sleeping. The Tyler girls\u2019 father, Richard, was asleep in the adjoining bedroom.\nAt approximately 8:30 a.m., the victim awoke and saw defendant standing on the side of her bed holding a knife and putting socks on his hands. The victim had known defendant for approximately five or six years. Defendant pointed the knife at her and said: \u201cTake your fucking clothes off.\u201d The victim complied with defendant\u2019s order to remove her clothing, but she moved away from defendant by retreating to the back comer of her bed. She twice refused defendant\u2019s orders to come toward him. While she was in the comer of her bed, naked and on her knees, he approached her with his knife. When defendant leaned over her bed and stuck his knife at her, she grabbed the knife and pressed it down into the bed. In the ensuing struggle, defendant pulled her off the bed, and she sustained cuts to her right hand and right arm. The victim screamed thereby awakening her sister, cousin, and father. When they came to her aid, defendant jumped out the open bedroom window.\nDetective William Britton of the Fayetteville Police Department testified that, after defendant was arrested and informed of his rights, he made the following statement, which was admitted into evidence: \u201cI went in there to commit a B&E. That is what I do. I don\u2019t have to rape girls. I swear to God, I did not touch Lauren or rape her, nor did I touch the other two girls. I have known Lauren and Lucia since I was about ten years old.\u201d\nDefendant asserts the trial court erred by: (I) denying defendant\u2019s motion to dismiss the attempted first-degree rape charge and (II) refusing to permit a portion of defendant\u2019s statement to the police to be considered by the jury.\nI. Motion to Dismiss\nTo review a motion to dismiss for insufficient evidence, this Court asks \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). \u201cSubstantial evidence is that which a reasonable juror would consider sufficient to support the conclusion that each essential element of the crime exists.\u201d State v. Baldwin, 141 N.C. App. 596, 604, 540 S.E.2d 815, 821 (2000). \u201cIn reviewing a motion to dismiss, the trial court should be concerned only with the sufficiency of the evidence, and not with its weight.\u201d State v. Oxendine, 150 N.C. App. 670, 673, 564 S.E.2d 561, 564 (2002), disc. rev. denied, 356 N.C. 689, 578 S.E.2d 325 (2003). \u201c[T]he evidence must be viewed in the light most favorable to the State, giving the State the benefit of all reasonable inferences.\u201d State v. Payne, 149 N.C. App. 421, 424, 561 S.E.2d 507, 509 (2002). \u201cReview 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.\u201d Oxendine, 150 N.C. App. at 673, 564 S.E.2d at 564.\nThe elements of attempted first-degree rape are as follows: \u201c(i) that defendant had the specific intent to rape the victim and (ii) that 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), aff\u2019d per curiam, 322 N.C. 467, 368 S.E.2d 386 (1988). Defendant argues the State failed to prove the element of intent.\n\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., 88 N.C. App. at 200, 362 S.E.2d at 855-56. \u201cSexual intent may be proved 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, aff'd 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); see also Oxendine, 150 N.C. App. at 672-75, 564 S.E.2d at 563-64. Moreover, \u201cevidence an attack is sexually motivated will support a reasonable inference of an intent to engage in vaginal intercourse with the victim even though other inferences are also possible.\u201d Id., 90 N.C. App. at 625-26, 369 S.E.2d at 638. \u201cThe State need not show that the defendant made an actual physical attempt to have intercourse or that he retained the intent to rape his victim throughout the incident.\u201d Id., 90 N.C. App. at 625, 369 S.E.2d at 638.\nIn the case at bar, defendant\u2019s actions and words constitute sufficient evidence of defendant\u2019s \u201cintent to gratify his passion upon the victim.\u201d Schultz, 88 N.C. App. at 200, 362 S.E.2d at 855. Specifically, defendant\u2019s repeated insistence that the victim remove her clothes and come toward him and his attempt to stab her with his knife are \u201covert act[s] manifesting a sexual purpose or motivation on the part of the defendant.\u201d Dunston, 90 N.C. App. at 625, 369 S.E.2d at 638. Even though defendant never removed any of his clothing or said anything to the victim about sexually assaulting her, the evidence is sufficient to satisfy the intent element of attempted rape.\nHowever, defendant contends State v. Brayboy, 105 N.C. App. 370, 413 S.E.2d 590 (1992), favorably compares to this case. In Brayboy, the Court explained the evidence did \u201cnot support the conclusion that he intended to rape [the victim]\u201d because\n[t]here [was] no evidence that defendant forced himself upon her in a sexual manner or indicated that it was his intent to engage in forcible, nonconsensual intercourse with her. The evidence merely show[ed] that defendant grabbed [the victim], forced her to the ground, pinned her arms behind her back and then straddled her following [the co-defendant\u2019s] shooting [of another victim], The only evidence which could [have given] any indication that defendant might have intended to commit some sexual act upon [the victim was the co-defendant\u2019s] statement, \u2018Go on and do what you want to do with her.\u2019\nId., 105 N.C. App. at 374, 413 S.E.2d at 593. The Court concluded the State produced insufficient evidence of the element of intent to withstand defendant\u2019s motion to dismiss the charge of attempted rape. Id.\nContrary to defendant\u2019s argument, we distinguish the case at bar from Brayboy. In Brayboy, the circumstances surrounding the shooting supported the inference that defendant\u2019s motivation in restraining the victim was \u201cto prevent her from interfering with [the shooting of another person] or aiding [him] once he had been assaulted.\u201d Id., 105 N.C. App. at 376, 413 S.E.2d at 594. In contrast, the only evidence supporting an alternative motivation here is defendant\u2019s statement to the police, \u201cI went in there to commit a B&E.\u201d The surrounding circumstances do not corroborate defendant\u2019s assertion. Although defendant contends he entered the Tyler home for the purpose of \u201cbreaking and entering,\u201d he did not remove anything from their home. The house contained televisions, VCR\u2019s, stereos, jewelry and cell phones, yet nothing was stolen. Rather, as explained previously, the circumstances and evidence support the charge of attempted first-degree rape. Accordingly, we find Brayboy materially different from the case at bar.\nWe hold the evidence that defendant forced victim to undress at knifepoint and then attempted to stab her with his knife when she refused to come toward him, considered in the light most favorable to the State, constitutes an \u201covert act manifesting a sexual purpose or motivation on the part of the defendant\u201d and was sufficient to support the intent element. Dunston, 90 N.C. App. at 625, 369 S.E.2d at 638. Accordingly, defendant\u2019s assertion of error is overruled on this basis.\nDefendant asserts, in the alternative and for preservation of the issue, that the trial court erred in refusing to dismiss the charge of attempted first-degree rape on the basis that the short-form indictment utilized was fatally defective because it failed to allege \u201cthe essential elements of attempted first-degree rape.\u201d Defendant concedes North Carolina has consistently upheld the constitutionality of the use of the short-form indictment in rape cases as prescribed by N.C. Gen. Stat. \u00a715-144.1. State v. Bidgood, 144 N.C. App. 267, 550 S.E.2d 198, cert. denied, 354 N.C. 222, 554 S.E.2d 647 (2001); State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000), reh\u2019g denied, 531 U.S. 1120, 148 L. Ed. 2d 784 (2001). Thus, we hold accordingly.\nII. Defendant\u2019s Statement to Police\nDefendant asserts the trial court erred in excluding from evidence the following portions of his statement to police: \u201cWhat is funny is that [Lauren and Lucia] told my aunt that I tried to rape them. Now they\u2019re saying that I actually raped them.\u201d Defendant contends these statements were admissible under the North Carolina Rule of Evidence 106 and the trial court should not have excluded them as hearsay pursuant to Rule 802.\nWe need not address these arguments because even assuming arguendo defendant is correct, defendant has failed to meet his burden of showing that \u201chad the error in question not been committed, a different result would have been reached at the trial. . . .\u2019\u2019N.C. Gen. Stat. \u00a7 15A-1443(a) (2001). The excluded statement is relevant only to the crime of attempted first-degree forcible rape. Regarding this crime, there was ample evidence of defendant\u2019s actions and intention. Accordingly, we cannot find that if the missing portion of defendant\u2019s statement to the police had been admitted into evidence, there is a \u201creasonable possibility ... a different result\u201d would have been reached. Id.\nAffirmed.\nJudges WYNN and HUDSON concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Newton G. Pritchett, Jr., for the State.", "Hosford & Hosford, P.L.L.G., by Geoffrey W. Hosford, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JEFFREY LEON OWEN\nNo. COA02-1224\n(Filed 15 July 2003)\n1. Rape\u2014 attempted first-degree \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 short-form indictment\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of attempted first-degree rape even though defendant never removed any of his clothing or said anything to the victim about sexually assaulting her, and defendant contends the short-form indictment was fatally defective, because: (1) defendant\u2019s actions and words constitute sufficient evidence of defendant\u2019s intent to gratify his passion upon the victim, including defendant\u2019s repeated insistence that the victim remove her clothes and come toward him and his attempt to stab her with his knife; (2) the only evidence supporting an alternative motivation was defendant\u2019s statement to the police that he went in the house to commit a breaking and entering, and the surrounding circumstances do not corroborate defendant\u2019s assertion; and (3) North Carolina has consistently upheld the constitutionality of the use of the short-form indictment in rape cases.\n2. Evidence\u2014 refusing to admit portion of defendant\u2019s statement to police \u2014 no prejudicial error\nAlthough defendant contends the trial court erred in an attempted first-degree rape and breaking or entering case by refusing to permit a portion of defendant\u2019s statement to the police to be considered by the jury, this assignment of error is dismissed because: (1) defendant failed to meet his burden of showing that had the error in question not been committed, a different result would have been reached at trial; and (2) the excluded statement was relevant only to the crime of attempted first-degree forcible rape, and there was ample evidence of defendant\u2019s actions and intention.\nAppeal by defendant from judgment entered 22 May 2002 by Judge James F. Ammons, Jr., in Cumberland County Superior Court. Heard in the Court of Appeals 10 June 2003.\nAttorney General Roy Cooper, by Assistant Attorney General Newton G. Pritchett, Jr., for the State.\nHosford & Hosford, P.L.L.G., by Geoffrey W. Hosford, for defendant-appellant." }, "file_name": "0204-01", "first_page_order": 234, "last_page_order": 239 }