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  "name": "STATE OF NORTH CAROLINA v. MALCOLM FITZGERALD TYSON, SR.",
  "name_abbreviation": "State v. Tyson",
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      "Judge STEELMAN concurs.",
      "Judge HUNTER, Robert C. concurs in part and dissents in part in a separate opinion."
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    "parties": [
      "STATE OF NORTH CAROLINA v. MALCOLM FITZGERALD TYSON, SR."
    ],
    "opinions": [
      {
        "text": "STEPHENS, Judge.\nOn 16 October 2006, the Grand Jury of Pitt County returned bills of indictment charging Defendant Malcolm Tyson, Sr. with two counts of taking indecent liberties with a child and two counts of statutory rape. The case came on for trial at the 23 May 2007 Criminal Session of Pitt County Superior Court. Defendant offered no evidence and moved to dismiss the charges for insufficient evidence. The trial court denied his motion. On 25 May 2007, the jury acquitted Defendant of the indecent liberties charges and returned guilty verdicts on the statutory rape charges. On that date, the trial court sentenced Defendant to two consecutive prison terms of 307 to 378 months. From these judgments and commitments, Defendant appeals.\n. I. Facts\nBeginning in July 2004, Defendant Malcolm- Tyson, Sr. lived in Greenville, North Carolina, with his wife and their children, and his girlfriend, Alicia Komegay, and her children, N.B. and N.B.\u2019s sister and half-brother. N.B., the alleged victim in this case, was bom in December 1989. N.B. gave birth to children on 29 April 2005 and 25 June 2006. Pitt County Sheriff\u2019s Investigator Paula Dance was notified of the birth of the second child and commenced an investigation. On 27 June 2006, DNA samples were consensually obtained from N.B., her children, and Defendant.\nDance executed a search warrant of Defendant\u2019s residence on 28 June 2006 where she seized letters written by Defendant to N.B. Also on that date, Dance interviewed N.B. N.B. denied having had sex with Defendant and denied that he had fathered either of her children. N.B. said that she thought Defendant\u2019s son, Malcolm Tyson, Jr. could have fathered one of her children and that one of several boys in Ayden might have fathered the other. Dance asked N.B. about the recurring phrase in Defendant\u2019s letters to her, \u201c[c]an I get in them drawers[.]\u201d N.B. explained that the phrase was a song lyric and that Defendant said that to everyone.\nDance questioned Ms. Kornegay on 29 June 2006. Dance showed her the letters and asked Ms. Kornegay if she was concerned about the phrase, \u201c[c]an I get in them drawers[.]\u201d Ms. Kornegay said she knew people would take that the wrong way, but it was only a song and Defendant said that to everyone. Ms. Kornegay told Dance that N.B. was infatuated with Defendant. She said that she and Defendant had told N.B. that she could not be in love with him in that way, but that afterwards, N.B. told her mother that she had given Defendant a pill when he had come home drunk and had been \u201cwith him.\u201d N.B. said that she had had sex with Defendant and that he did not remember it. Ms. Kornegay said that N.B. had always been a problem child, had trouble in school, and that she and her friends gave pills to boys and had sex with them. Ms. Kornegay told Dance that she felt the situation was all N.B.\u2019s fault.\nDetective Dance spoke with N.B. again on 10 July 2006. This time, N.B. told Dance that she had given Defendant pills to knock him out and then had collected Defendant\u2019s semen in a shot cup and put the semen inside herself with a syringe.\nOn 16 August 2006, Defendant was arrested on statutory rape warrants and taken to Pitt County Detention Center, where he remained until his case came on for trial.\nII. Motion to Dismiss\nDefendant argues that the trial court erred in denying his motion to dismiss the statutory rape charges as there was insufficient evidence to show that Defendant was conscious during the alleged sexual acts and, therefore, that, he committed voluntary acts.\nWhen a defendant moves to dismiss based on insufficiency of the evidence, the trial court must determine whether there is substantial evidence (1) of each element of the crime charged and (2) that the defendant is the perpetrator. State v. Scott, 356 N.C. 591, 573 S.E.2d 866 (2002). \u201cSubstantial evidence is evidence from which any rational trier of fact could find the fact to be proved beyond a reasonable doubt.\u201d State v. Alston, 131 N.C. App. 514, 518, 508 S.E.2d 315, 318 (1998) (quotation marks and citation omitted). \u201cThe 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.\u201d State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996). \u201cAny contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.\u201d Id. If the evidence, when considered in 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 to dismiss must be allowed. Scott, 356 N.C. 591, 573 S.E.2d 866. A trial court\u2019s 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, 644 S.E.2d 615 (2007).\nA defendant is guilty of statutory rape if \u201cthe 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.\u201d N.C. Gen. Stat. \u00a7 14-27.7A(a) (2007). Although \u201c[c]riminal mens rea is not an element of statutory rape[,]\u201d State v. Ainsworth, 109 N.C. App. 136, 145, 426 S.E.2d 410, 416 (1993), \u201cwhere 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.\u201d State v. Jerrett, 309 N.C. 239, 264, 307 S.E.2d 339, 353 (1983) (citing State v. Boone, 307 N.C. 198, 297 S.E.2d 585 (1982), overruled on other grounds by State v. Richmond, 347 N.C. 412, 495 S.E.2d 677 (1998); State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969), overruled on other grounds by Caddell, 287 N.C. 266, 215 S.E.2d 348). Thus, \u201cunder the law of this State, unconsciousness . . . is a complete defense to a criminal charge,\u201d Caddell, 287 N.C. at 290, 215 S.E.2d at 363, because unconsciousness \u201cnot only excludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability.\u201d Id. at 295, 215 S.E.2d at 366.\nThe ultimate burden rests on the State to prove every element essential to the crime charged beyond a reasonable doubt. \u201c[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.\u201d Id. at 298-99, 215 S.E.2d at 368. However, this presumption may be rebutted by sufficient evidence to the contrary. If the defendant wishes to overcome the presumption of consciousness, the burden rests upon the defendant to establish this defense by a preponderance of the evidence. Jerrett, 309 N.C. 239, 307 S.E.2d 339; Caddell, 287 N.C. 266, 215 S.E.2d 348. If, however, the evidence of unconsciousness \u201carises out of the State\u2019s own evidence,\u201d the burden rests on the State to prove the defendant\u2019s consciousness beyond a reasonable doubt. Caddell, 287 N.C. at 290, 215 S.E.2d at 363.\nIn most North Carolina cases dealing with the defense of unconsciousness, the defendant has been the party offering evidence of his or her unconsciousness, and the issue before the appellate court has been whether the defendant submitted sufficient evidence to warrant a jury instruction on unconsciousness. Here, however, Defendant presented no evidence and the evidence of Defendant\u2019s unconsciousness arose out of the State\u2019s own evidence. Thus, the State had the burden of proving beyond a reasonable doubt that Defendant was indeed conscious when he committed the alleged acts. The State may meet its burden of proof by either direct or circumstantial evidence. State v. Salters, 137 N.C. App. 553, 528 S.E.2d 386 (2000). Accordingly, the question before us is whether there is sufficient 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. We conclude there is.\nThe State\u2019s 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 \u201cunzipped his pants[,] pulled his privacy [sic] out and started jacking him off.\u201d She acknowledged that his penis became erect while she was doing this, and that \u201cafter that a little cum came out.... I got on top of him.\u201d 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.\nN.B. then 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 \u201cpart true and part story\u201d 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\u2019s semen in a shot cup and then put the semen inside herself with a syringe. N.B. testified, \u201cI just lied because I didn\u2019t want to be in trouble\u201d and said that she told a different story on the stand because \u201cI don\u2019t want to go to jail for telling a lie.\u201d\nAlicia Kornegay testified that N.B. told her \u201cshe 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 syringe and she placed it in herself. That\u2019s what she told me.\u201d 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.\nDetective 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 \u201clay a person out.\u201d N.B. stated that she put two pills in Defendant\u2019s drink after he had \u201ccome home, tired from drinking and smoking drugs.\u201d She said that \u201cwhen she gave it to him[,] he couldn\u2019t move or anything.\u201d N.B. stated to her that he was \u201cdead-weight\u201d and that she couldn\u2019t lift him to get his pants off so she unzipped his pants and pulled his \u201cprivate\u201d out. She told Dance that she started \u201cmessing\u201d with him and then used a shot cup and a syringe to collect his semen and put it into herself. She told Dance that \u201cthe next day he acted like he didn\u2019t remember anything\u201d and that he \u201conly said that his head was hurting.\u201d She told Dance that she had done this two different times.\nDance further testified that on 29 June 2006, she interviewed Ms. Kornegay. She testified that Ms. Kornegay 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. Kornegay said N.B. told her she was the one that did it to him and that he did not remember doing things with her.\nNeil Elks, a captain of the patrol division of the Pitt County Sheriff\u2019s Department, testified to a conversation he had with Defendant at the Detention Center on or about 16 August 2006. Elks testified that Defendant told him \u201chis wife\u2019s 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.\u201d 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, \u201c[y]ou don\u2019t think anyone will believe that?\u201d Defendant then said, \u201c[o]kay. I need to think of something else to say.\u201d\nShawn Weiss, an expert in the field of DNA analysis, testified that, based on DNA tests done on N.B., her two children, and Defendant, the probability that Defendant was the father of N.B.\u2019s two children was 99.99 percent.\nAfter being arrested on the current charges and while in jail awaiting trial, Defendant sent N.B. two drawings, one depicting a male, a female, and a baby and another depicting a male, a female, a baby standing, and a baby being held. Defendant had also written letters to N.B. Excerpts from these letters stated:\n\u201cSo what\u2019s the deal, Baby? Can I get in them drawers.\u201d\n\u201cQuit smiling saying to yourself right now. Yes, you can.\u201d\n\u201cP.S. What\u2019s the deal, Shorty, can I get in them drawers?\u201d\n\u201cP.S. Quit smiling.\u201d\n\u201cBig Daddy 4-life.\u201d\n\u201cThe only way to ensure that this cycle be broken is to live for the Lord, but I can\u2019t even do that because of things I don\u2019t regret but maybe should have done differently. . . .\u201d\n\u201cI hate you have to go back through that kind of pain, but this time I\u2019ll be at the hospital with you. Okay.\u201d\n\u201cGood night my darling one. I love you more than you can ever know.\u201d\n\u201cAge Ain\u2019t Nothing But a Number].]\u201d\nAnother letter from Defendant to N.B. stated, in pertinent part:\n\u201cYou always act like you\u2019re so into me, can\u2019t live without me. As soon as you\u2019re out of my sight you don\u2019t give a damn about me. I don\u2019t even matter then.\u201d\n\u201cYou only, you\u2019re only crazy about me when you\u2019re around me, but the minute you\u2019re 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\u2019t we?\u201d\nWe conclude that Defendant\u2019s statements in his letters to N.B. and Defendant\u2019s statement to Elks that he would \u201cneed to think of something else to say\u201d when Elks did not believe Defendant\u2019s story about how N.B. became pregnant, taken together with the manifest inconsistencies in N.B.\u2019s testimony, provide adequate circumstantial evidence from which a jury could find beyond a reasonable doubt that Defendant was conscious during the two acts of sexual intercourse with N.B. that resulted in the birth of their two children. Defendant\u2019s argument is thus overruled.\nIII. Jury Instructions\nDefendant also contends the trial court committed plain error by failing to incorporate the element of a voluntary act into the instruction on statutory rape and by omitting \u201cnot guilty by reason of unconsciousness\u201d in its final mandate to the jury. Defendant argues that the trial court\u2019s charge lessened the State\u2019s burden of proof to show Defendant\u2019s consciousness beyond a reasonable doubt.\n[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201c \u2018resulted in a miscarriage of justice or in the denial to appellant of a fair trial\u2019 \u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378-79 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted)). \u201cIn deciding whether a defect in the jury instruction constitutes \u2018plain error,\u2019 the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\u201d Id. at 661, 300 S.E.2d at 378.\nA trial court\u2019s jury instruction \u201cis for the guidance of the jury,\u201d Sugg v. Baker, 258 N.C. 333, 335, 128 S.E.2d 595, 597 (1962), and its purpose \u201cis to give a clear instruction which applies the law to the evidence in such manner as to assist the jury in understanding the case and in reaching a correct verdict.\u201d State v. Williams, 280 N.C. 132, 136, 184 S.E.2d 875, 877 (1971). It is recognized by this Court that \u201cthe preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions.\u201d In re Will of Leonard, 71 N.C. App. 714, 717, 323 S.E.2d 377, 379 (1984).\n\u201cIn a criminal trial the judge has the duty to instruct the jury on the law arising from all the evidence presented.\u201d State v. Moore, 75 N.C. App. 543, 546, 331 S.E.2d 251, 253, disc. review denied, 315 N.C. 188, 337 S.E.2d 862 (1985). This places a duty upon the presiding judge to instruct the jury as to the burden of proof upon each issue arising upon the pleadings. See State v. Redman, 217 N.C. 483, 8 S.E.2d 623 (1940) (holding that the failure to properly instruct the jury on the burden of proof required a new trial). \u201cThe rule as to the burden of proof is important and indispensable in the administration of justice, and constitutes a substantial right of the party upon whose adversary the burden rests. It should, therefore, be jealously guarded and rigidly enforced by the courts.\u201d State v. Falkner, 182 N.C. 793, 798, 108 S.E. 756, 758 (1921) (quotation marks and citations omitted).\nPursuant to N.C. Gen. Stat. \u00a7 14-27.7A(a), a defendant is guilty of statutory rape \u201cif 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.\u201d N.C. Gen. Stat. \u00a7 14-27.7A(a). However, \u201cunder the law of this State, unconsciousness ... is a complete defense to a criminal charge, ... it is an affirmative defense; and [] the burden rests upon the defendant to establish this defense, unless it arises out of the State\u2019s own evidence^]\u201d Caddell, 287 N.C. at 290, 215 S.E.2d at 363.\nThe trial court gave the following instruction regarding statutory rape:\nFor you to find defendant guilty of statutory rape of a victim who was 14 and 15 years old, the State must prove four things beyond a reasonable doubt:\nFirst, that the defendant engaged in vaginal intercourse with the victim. Vaginal intercourse is penetration, however slight, ... of the female sex organ by the male sex organ. The actual emission of semen is not necessary.\nSecond, that at the time of the act the victim was in this case in one count alleged to be 14, and in the other count alleged to be 15. Years old [sic].\nThird, that at the time of the act the defendant was at least six years older than the victim.\nAnd fourth, that at the time of the act the defendant was not lawfully married to the victim.\nThis instruction adequately encompasses the law of statutory rape and tracks the language of the pattern jury instruction set forth in N.C.P.I. \u2014 Crim. 207.15.2 (March 2002).\nPrior to this instruction, the trial court instructed the jury \"on unconsciousness as follows:\n[Y]ou may find there\u2019s evidence which tends to show that the defendant was physically unable to control his physical actions because of unconsciousness. That is a state of mind in which a person, though capable of action, is not conscious of what he is doing at the time the crime was alleged to have been committed.\nIn this case one element is that the act charged be done voluntarily. Therefore, unless you find from the evidence beyond a reasonable doubt that at the time the defendant was able to exercise conscious control of his physical actions he would not be guilty of a crime.\nIf the defendant was unable to act voluntarily, he would not be guilty of any offense. The burden of persuasion rests on the defendant to establish this defense to the satisfaction of the jury, unless it arises out of the State\u2019s own evidence, in which case the burden is on the State to prove beyond a reasonable doubt that the defendant was able to exercise conscious control of his physical action.\n(Emphasis added.)\nAlthough this jury instruction adequately encompasses the law of unconsciousness and tracks the language of the pattern jury instruction set forth in N.C.P.L \u2014 Crim. 302.10 (May 2003), the emphasized portion fails to clearly charge the jury as to who had the burden of proof, and what that burden was, to show Defendant\u2019s consciousness in this case. The instruction, as given, only explained where the burden of proof could lie, depending on the nature of the evidence, and did not explain that in this case, since the evidence of Defendant\u2019s unconsciousness arose out of the State\u2019s own evidence, the State had the burden of proving Defendant\u2019s consciousness beyond a reasonable doubt. Moreover, since Defendant offered no evidence, it was unnecessary to charge the jury that \u201c[t]he burden of persuasion rests on the defendant to establish [unconsciousness] to the satisfaction of the jury[.]\u201d We are of the opinion that including this statement in the charge compounded the confusion of the charge, particularly given the trial court\u2019s failure to clearly charge that, under the circumstances of this case, the State had the burden of proof beyond a reasonable doubt, and not simply to the jury\u2019s satisfaction, to establish Defendant\u2019s consciousness.\nGiven the jury\u2019s seemingly inconsistent verdicts, finding Defendant not guilty of indecent liberties, which has a statutory element of willfulness, but guilty of statutory rape, there is a reasonable likelihood that the jury applied the instructions on unconsciousness in a manner that impermissibly lessened the State\u2019s burden of proof to show Defendant\u2019s consciousness. The trial court\u2019s failure to properly instruct the jury on the burden of proof constitutes plain error in this case and warrants a new trial.\nEven assuming arguendo that the trial court\u2019s failure to properly instruct the jury on the State\u2019s burden to prove Defendant\u2019s consciousness beyond a reasonable doubt did not rise to the level of plain error, we conclude that the trial court committed plain error by failing to include in the final mandate the possible verdict of \u201cnot guilty by reason of unconsciousness.\u201d\nEvery criminal jury must be \u201cinstructed as to its right to return, and the conditions upon which it should render, a verdict of not guilty.\u201d State v. Howell, 218 N.C. 280, 282, 10 S.E.2d 815, 817 (1940). \u201cSuch instruction is generally given during the final mandate after the trial court has instructed the jury as to elements it must find to reach a guilty verdict.\u201d State v. Chapman, 359 N.C. 328, 380, 611 S.E.2d 794, 831 (2005) (citing State v. Ward, 300 N.C. 150, 156-57, 266 S.E.2d 581, 585-86 (1980)).\nIn State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974), the trial court did not include \u201cnot guilty by reason of self-defense\u201d as a possible verdict in its final mandate to the jury on the charge of manslaughter. In holding that the trial court\u2019s failure to include such an instruction in its final mandate constituted prejudicial error, entitling defendant to a new trial, the North Carolina Supreme Court reasoned,\n[t]he failure of the trial judge to include not guilty by reason of self-defense as a possible verdict in his final mandate to the jury was not cured by the discussion of the law of self-defense in the body of the charge. By failing to so charge, the jury could have assumed that a verdict of not guilty by reason of self-defense was not a permissible verdict in the case.\nId. at 165-66, 203 S.E.2d at 820. Accord State v. Withers, 179 N.C. App. 249, 633 S.E.2d 863 (2006); State v. Ledford, 171 N.C. App. 144, 613 S.E.2d 726 (2005); State v. Williams, 154 N.C. App. 496, 571 S.E.2d 886 (2002); State v. Kelly, 56 N.C. App. 442, 289 S.E.2d 120 (1982).\nIn this case, in its final mandate on the charge of statutory rape, the trial court instructed:\nIf you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant engaged in vaginal intercourse with the victim, when the victim was-. . . alleged to be 14 in one case, alleged to be 15 years old in the other case, and that the defendant was at least six years older than the victim, and was not lawfully married to the victim, it would be your duty to return a verdict of guilty of statutory rape.\nIf you do not so find or have a reasonable doubt as to one or more of these things it would be your duty to return a verdict of not guilty.\nWhile the trial court correctly instructed that the jury should find Defendant \u201cnot guilty\u201d if it had a reasonable doubt as to any of the elements of statutory rape, the trial court failed to include in its final mandate that the jury should find Defendant \u201cnot guilty\u201d if it had a reasonable doubt as to Defendant\u2019s consciousness. As in Dooley where, even if the State proved all the statutory elements of murder, the defendant would be not guilty if his actions were justified by self-defense, in this case, even if the State proved all the statutory elements of statutory rape, Defendant would be not guilty if his actions were blameless due to his unconsciousness. Thus, as in Dooley, the omission of \u201cnot guilty by reason of unconsciousness\u201d was not cured by the discussion of the law of unconsciousness in the body of the charge. By failing to so charge, the jury could have assumed that a verdict of not guilty of statutory rape by reason of unconsciousness was not a permissible verdict in the case. The trial court\u2019s failure to include \u201cnot guilty by reason of unconsciousness\u201d in the final mandate to the jury constitutes plain error in this case and warrants a new trial.\nBased on our holding, we need not address Defendant\u2019s remaining argument. This case is remanded to the Superior Court of Pitt County for a new trial in accordance with the principles stated herein.\nNEW TRIAL.\nJudge STEELMAN concurs.\nJudge HUNTER, Robert C. concurs in part and dissents in part in a separate opinion.\n. In its closing argument, the State argued that the four elements of statutory rape listed in the North Carolina General Statutes \"are the four things and only four things the State has to prove to you beyond a reasonable doubt.\u201d This is a misleading misstatement of the law.",
        "type": "majority",
        "author": "STEPHENS, Judge."
      },
      {
        "text": "HUNTER, Robert C., Judge,\nconcurring in part, dissenting in part.\nI 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\u2019s motion' to dismiss the statutory rape charges for insufficient evidence of defendant\u2019s consciousness, I respectfully dissent in Part II of the majority opinion.\nMy concern with the majority\u2019s holding in Part II is that it sets a precedent which allows a defendant to be convicted of a crime even though the State\u2019s 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\u2019s evidence without offering any affirmative evidence to support all the elements of the charge. The prosecution\u2019s own evidence in this case directly contradicted its theory that defendant was conscious during the acts charged. N.B., the State\u2019s main 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\u2019s 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\u2019s case.\nIn 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.\nAnalysis\nThe standard of review on appeal of a trial court\u2019s denial of a criminal defendant\u2019s 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). \u201c \u2018Substantial evidence is evidence from which any rational trier of fact could find the fact to be proved beyond a reasonable doubt.\u2019 \u201d State v. Alston, 131 N.C. App. 514, 518, 508 S.E.2d 315, 318 (1998) (citation omitted). \u201cThe 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.\u201d State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citation omitted). \u201cIf 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.\u201d State v. Davis, 74 N.C. App. 208, 212-13, 328 S.E.2d 11, 14-15 (1985). A trial court\u2019s 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).\nA defendant may be guilty of statutory rape if \u201cthe 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.\u201d N.C. Gen. Stat. \u00a7 14-27.7A(a) (2007). However, \u201cwhere 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.\u201d State v. Jerrett, 309 N.C. 239, 264, 307 S.E.2d 339, 353 (1983). \u201c[U]nder the law of this State, unconsciousness ... is a complete defense to a criminal charge,\u201d State v. Caddell, 287 N.C. 266, 290, 215 S.E.2d 348, 363 (1975), because unconsciousness \u201cexcludes the possibility of a voluntary act without which there can be no criminal liability.\u201d Id. at 295, 215 S.E.2d at 366.\nThe ultimate burden rests on the State to prove beyond a reasonable doubt every element necessary to convict a defendant. \u201c[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.\u201d 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\u2019s unconsciousness \u201carises out of the State\u2019s own evidence,\u201d the burden rests on the State to prove the defendant\u2019s 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. \u00a7 14-27.7A(a), and, as the evidence of defendant\u2019s unconsciousness arose out of the State\u2019s evidence, the State had to prove beyond a reasonable doubt that defendant was conscious when he committed the acts charged. Id.\nThus, 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.\nThe State\u2019s 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 \u201cunzipped his pants],] pulled his privacy [sic] out and started jacking him off.\u201d She acknowledged that his penis became erect while she was doing this, and that \u201cafter [] a little bit of cum came out... I got on top of him.\u201d 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.\nN.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 \u201cpart true and part story\u201d 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\u2019s semen in a shot glass and then put the semen inside of herself with a turkey basten N.B. testified, \u201cI just lied because I didn\u2019t want to be in trouble\u201d and said that she told a different story on the stand because \u201cI don\u2019t want to go to jail for telling a lie.\u201d\nThe majority cites \u201cthe manifest inconsistencies in N.B.\u2019s testimony\u201d as to how she became pregnant as circumstantial evidence of defendant\u2019s 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.\nAlicia Komegay testified that N.B. told her \u201cshe 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\u2019s what she told me.\u201d 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.\nThis testimony corroborates N.B.\u2019s testimony that defendant was unconscious during intercourse, and none of Ms. Kornegay\u2019s testimony allows an inference that defendant was indeed conscious during intercourse with N.B.\nDetective 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 \u201clay a person out.\u201d N.B. stated that she put two pills in defendant\u2019s drink after he had \u201ccome home tired from drinking and smoking drugs.\u201d She said that \u201cwhen she gave it to him[,] he couldn\u2019t move or anything.\u201d N.B. stated to her that he was \u201cdead-weight\u201d and that she couldn\u2019t lift him to get his pants off so she unzipped his pants and pulled out his genitals. She then told Dance that she started \u201cmessing\u201d 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' \u201cthe next day he acted like he didn\u2019t remember anything\u201d and that he \u201conly said that his head was hurting.\u201d She told Dance that she had done this two different times.\nDance 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.\nLike N.B.\u2019s and Ms. Kornegay\u2019s testimony, Detective Dance\u2019s testimony provides no evidence that defendant was conscious during intercourse with N.B. and, in fact, corroborates prior testimony that defendant was unconscious.\nNeil Elks, a captain of the patrol division of the Pitt County Sheriff\u2019s 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 \u201cthey had him for something he didn\u2019t do.\u201d Elks testified that defendant said \u201chis wife\u2019s 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.\u201d 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, \u201c \u2018[y]ou don\u2019t think anyone will believe that?\u2019 \u201d According to Elks, defendant then said, \u201c \u2018[o]kay. I need to think of something else to say.\u2019 \u201d\nWhile the majority concludes that \u201c[djefendant\u2019s statement to Elks that he would \u2018need to think of something else to say\u2019 \u201d 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\u2019s consciousness. At most, this statement suggests that defendant considered changing some part of his story that \u201chis wife\u2019s 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\u201d 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.\nShawn Weiss, an expert in the field of DNA analysis, testified that, based on DNA tests done on N.B., her two children, and defendant, the probability that defendant was the father of N.B.\u2019s 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.\nOther 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\u2019s births.\nThe State also offered into evidence several letters defendant had written to' N.B. Excerpts from some of these letters are as follows:\n\u201cSo what\u2019s the deal, Baby? Can I get in them drawers. . . .\u201d\n\u201cQuit smiling saying to yourself right now. Yes, you can.\u201d\n\u201cP.S. What\u2019s the deal, Shorty, can I get in them drawers?\u201d\n\u201cP.S. Quit smiling.\u201d\n\u201cBig Daddy 4-life.\u201d\nThe only way to ensure that this, cycle be broken is to live for the Lord, but I can\u2019t even do that because of things I don\u2019t regret, but maybe should have done differently. . . .\n. I hate you have to go back through that kind of pain, but this time I\u2019ll be at the hospital with you. Okay.\nGood night my darling one. I love you more than you can ever know.\n\u201cAge Ain\u2019t Nothing But a Number[.]\u201d\nBoth N.B. and Ms. Komegay testified that the phrase, \u201c \u2018[s]o what\u2019s the deal, Baby? Can I get in them drawers.\u2018Quit smiling saying to yourself right now. Yes, you can[]\u2019 \u201d came from a song and was said often around their house.\nThe State offered no evidence to contradict N.B. or Ms. Komegay\u2019s explanation of the meaning of the song lyrics. Even if the lyrics were taken literally as defendant asking N.B. if he could \u201cget in [her pants];\u201d this could only provide circumstantial evidence of defendant\u2019s improper motives towards N.B. and does not provide any evidence of defendant\u2019s 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\u2019s consciousness in this case.\nAnother letter from defendant to N.B. stated, in pertinent part:\nYou always act like you\u2019re so into me, can\u2019t live without me. As soon as you\u2019re out of my sight you don\u2019t give a damn about me. I don\u2019t even matter then.\nYou only, you\u2019re only crazy about me when you\u2019re around me, but the minute you\u2019re 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\u2019t we?\nAgain, while this may be evidence of defendant\u2019s improper motives towards N.B., the letter does not provide any evidence of defendant\u2019s consciousness during intercourse with N.B.\nDefendant offered no evidence. The State offered no evidence to refute N.B.\u2019s 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. \u00a7 14-27.7A, the State offered no evidence to show that defendant acted consciously and voluntarily.\nThe 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\u2019s own witnesses. In its closing argument, the State argued that N.B.\u2019s testimony was \u201cjust unbelievable\u201d and that \u201c[i]t just doesn\u2019t work that way. A man\u2019s knocked out. Unconscious, he\u2019s not going to be erect. He\u2019s not going to be ejaculating.\u201d However, \u201cfinal arguments \u2018are not evidence[,]\u2019 \u201d 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.\nThe 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\u2019s 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.\nThe trial court stated that the statute \u201c[d]oesn\u2019t say who brought [the intercourse] on; who \u2014 who did anything. Just says man can\u2019t penetrate a child, whether she consents, jumps on him or whatever.\u201d Defendant argued, \u201c[hjowever, the actions have to be voluntary on the part of the defendant.\u201d The trial court responded, \u201c[t]hat\u2019s a jury question.\u201d However, the issue of defendant\u2019s 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.\nJust 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 assault, see State v. Poland, 148 N.C. App. 588, 597, 560 S.E.2d 186, 192 (2002) (\u201c[t]he State has the burden of proving that a defendant is not entitled to the defense [of self-defense]\u201d), or homicide, see State v. Watson, 338 N.C. 168, 180, 449 S.E.2d 694, 701-02 (1994) (\u201c[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\u201d), and the sufficiency of the State\u2019s 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\u2019s 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\u2019s 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\u2019s evidence of defendant\u2019s consciousness, and thus his commission of a voluntary act, was a proper subject of defendant\u2019s 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\u2019s intended theory that defendant was in fact conscious during the acts, the motion to dismiss should have been granted.\nI 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.\u2019s vagina. Moreover, assuming arguendo the evidence cited by the majority provides circumstantial evidence of defendant\u2019s 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.\nAgain, 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.\nAs the State failed to meet its burden of proof, the trial court erred in denying defendant\u2019s motion to dismiss. I would thus vacate the trial court\u2019s judgment.",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "HUNTER, Robert C., Judge,"
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State.",
      "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for Defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MALCOLM FITZGERALD TYSON, SR.\nNo. COA07-1376\n(Filed 17 February 2009)\n1. Rape\u2014 statutory rape \u2014 consciousness of defendant \u2014 sufficiency of evidence\nThe evidence was sufficient to support a finding by the jury that defendant was conscious when he twice had sexual intercourse with the alleged minor victim and she became pregnant so as to support his conviction on two counts of statutory rape, even though defendant claimed and the minor victim testified that she had drugged defendant and he had passed out when she had sex with him on two occasions, where (1) the State had the burden of proving beyond a reasonable doubt that defendant was indeed conscious when he committed the alleged acts since evidence of \u25a0his unconsciousness arose out of the State\u2019s own evidence; (2) the minor victim changed her story after previously stating that she had impregnated herself by drugging defendant, collecting his sperm, and placing it within herself with a syringe; (3) defendant had written sexually suggestive letters to the minor victim; and (4) defendant told an officer that he would need to think of something else to say when the officer did not believe his story about how the minor victim had become pregnant.\n2. Rape\u2014 statutory rape \u2014 instruction\u2014voluntary act \u2014 omitting not guilty by reason of unconsciousness \u2014 plain error\nThe trial court committed plain error by failing to incorporate the element of a voluntary act into the statutory rape instruction and by omitting \u201cnot guilty by reason of unconsciousness\u201d in its final mandate to the jury, and defendant is entitled to a new trial, because: (1) given the jury\u2019s seemingly inconsistent verdicts finding defendant not guilty of indecent liberties (which has a statutory element of willfulness) but guilty of statutory rape, there was a reasonable likelihood that the jury applied the instructions on unconsciousness in a manner that impermissibly lessened the State\u2019s burden of proof to show defendant\u2019s consciousness; and (2) even assuming arguendo that the trial court\u2019s failure to properly instruct the jury on the State\u2019s burden to prove defendant\u2019s consciousness beyond a reasonable doubt did not rise to the level of plain error, the trial court committed plain error by failing to include in the final mandate the possible verdict of \u201cnot guilty by reason of unconsciousness\u201d since the jury could have assumed that a verdict of not guilty of statutory rape by reason of unconsciousness was not a permissible verdict.\nJudge HUNTER, Robert C. concurring in part and dissenting in part.\nAppeal by Defendant from judgments entered 25 May 2007 by Judge Clifton W. Everett, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 16 April 2008.\nAttorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for Defendant."
  },
  "file_name": "0327-01",
  "first_page_order": 359,
  "last_page_order": 379
}
