{ "id": 4104066, "name": "STATE OF NORTH CAROLINA v. WAYNE ANTHONY HUSS", "name_abbreviation": "State v. Huss", "decision_date": "2012-11-20", "docket_number": "No. COA12-250", "first_page": "480", "last_page": "486", "citations": [ { "type": "official", "cite": "223 N.C. App. 480" } ], "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": "666 S.E. 2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641938 ], "weight": 5, "year": 2008, "pin_cites": [ { "page": "812" }, { "page": "812-13", "parenthetical": "alterations in original" }, { "page": "813" }, { "page": "813" } ], "opinion_index": 0, "case_paths": [ "/se2d/666/0809-01" ] }, { "cite": "650 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639310 ], "year": 2007, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0029-01" ] }, { "cite": "296 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "270", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560548 ], "year": 1982, "pin_cites": [ { "page": "48", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0042-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2012, "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "372 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "Finding sufficient evidence to support the defendant's guilt of second-degree rape by force because he pinned the victim against the kitchen sink with one of his arms on each side of her body." } ], "opinion_index": 0 }, { "cite": "323 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560790 ], "year": 1988, "pin_cites": [ { "parenthetical": "Finding sufficient evidence to support the defendant's guilt of second-degree rape by force because he pinned the victim against the kitchen sink with one of his arms on each side of her body." } ], "opinion_index": 0, "case_paths": [ "/nc/323/0350-01" ] }, { "cite": "319 S.E.2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680707 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0398-01" ] }, { "cite": "311 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "66 N.C.App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525400 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/66/0459-01" ] }, { "cite": "193 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4161880 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "204" }, { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0200-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)" }, { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 8, "pin_cites": [ { "page": "(a)" }, { "page": "(a)(1)" }, { "page": "(a)(2)" }, { "page": "(a)(2)" }, { "page": "(a)(2)" }, { "page": "205" }, { "page": "(a)(1)" }, { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "132 L. Ed. 2d 818", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "515 U.S. 1135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1563969, 1564577, 1564483, 1564008, 1564296, 1564331, 1564174, 1563855, 1564503, 1564049, 1563795, 1563863, 1563768, 1564252, 1564093 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/515/1135-02", "/us/515/1135-14", "/us/515/1135-10", "/us/515/1135-04", "/us/515/1135-15", "/us/515/1135-07", "/us/515/1135-03", "/us/515/1135-09", "/us/515/1135-08", "/us/515/1135-01", "/us/515/1135-12", "/us/515/1135-11", "/us/515/1135-05", "/us/515/1135-06", "/us/515/1135-13" ] }, { "cite": "451 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "223" } ], "opinion_index": 0 }, { "cite": "339 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556681 ], "year": 1994, "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0172-01" ] }, { "cite": "148 L. Ed. 2d 150", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9564641, 9565507, 9564931, 9565413, 9565127, 9565834, 9565727, 9565933, 9565644, 9565235, 9564441, 9564731, 9564539, 9564829, 9565023 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/0890-03", "/us/531/0890-11", "/us/531/0890-06", "/us/531/0890-10", "/us/531/0890-08", "/us/531/0890-14", "/us/531/0890-13", "/us/531/0890-15", "/us/531/0890-12", "/us/531/0890-09", "/us/531/0890-01", "/us/531/0890-04", "/us/531/0890-02", "/us/531/0890-05", "/us/531/0890-07" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "year": 2000, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "186 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154614 ], "year": 2007, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0057-01" ] }, { "cite": "N.C. Gen. Stat. \u00a714-27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(3)" }, { "page": "(3)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 684, "char_count": 14773, "ocr_confidence": 0.747, "pagerank": { "raw": 4.400479698708787e-08, "percentile": 0.27610354889416333 }, "sha256": "0a80816e8987e1f9e8259e22dd60faefc88ea47fb8352c178cbcb34912e28697", "simhash": "1:5bea696cde454ed1", "word_count": 2392 }, "last_updated": "2023-07-14T18:08:05.693184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WAYNE ANTHONY HUSS" ], "opinions": [ { "text": "ELMORE, Judge.\nWayne Anthony Huss (defendant) appeals from judgments entered upon jury convictions of 1) first-degree kidnapping, 2) second-degree sexual offense, and 3) second-degree rape. Judgment was arrested on the second-degree rape conviction, and defendant was sentenced to 71 to 95 months imprisonment on both the first-degree kidnapping and second-degree sexual offense convictions, to run consecutively. After careful consideration, we reverse the judgments of the trial court.\nI. Background\nDefendant and the victim first met in the fall of 2006. At that time, the victim was employed as the director for an after-school program at Central Latino, a non-profit organization in Hickory. Defendant was a martial arts instructor who taught classes at the local YMCA. The two met when the victim attended a self-defense class taught by defendant. Later, in January 2007, the victim invited defendant to begin teaching self-defense programs at Central Latino. Soon after, defendant and the victim began a romantic relationship.\nTheir relationship continued for several months, but the couple began experiencing difficulties in March of that same year. Defendant became frustrated with the victim because she maintained an ongoing relationship with her prior boyfriend. The victim was similarly frustrated with defendant, because she felt as though he was not giving her enough space. Ultimately, the couple decided to end their relationship. In doing so, they agreed to meet on 9 May 2007 at defendant\u2019s home, and, without telling the victim, defendant decided to videotape their interactions during the meeting.\nBoth the victim and defendant disagree as to what happened that day. According to defendant, he and the victim engaged in consensual sex, which included vaginal intercourse, digital penetration, the use of a vibrator, and defendant tying the victim\u2019s hands behind her back with a martial arts belt. Defendant maintains that this type of sexual activity was not abnormal for the couple, as they often engaged in spanking, role-playing, and bondage.\nHowever, according to the victim, the two had never before engaged in the use of restraints or role-playing during consensual sex. In this particular instance, the victim maintains that defendant insisted the two have sex one last time, and that she realized he wasn\u2019t going to let her go unless she did.\nAfter the event, the victim did not immediately discuss details of the incident with anyone. However, several days later she saw defendant again at a festival in downtown Hickory. There, the two got into a public argument, and the victim then decided to report the event to the police.\nDefendant was arrested on 1 August 2007 and charged with 1) first-degree kidnapping, 2) second-degree sexual offense, and 3) second-degree rape. On 28 July 2011, the case came on for trial. At the close of all evidence, defendant moved to dismiss all charges, which the trial court denied. On 1 July 2011, defendant was convicted of all charges. Judgment was arrested on the second-degree rape conviction, and defendant was sentenced to 71 to 95 months imprisonment on both the first-degree kidnapping and second-degree sexual offense convictions, to run consecutively. Defendant now appeals.\nII. Arguments\nDefendant presents four arguments on appeal. He argues that: 1) The trial court erred in denying his motion to dismiss all charges at the close of evidence because the victim was not \u201cphysically helpless\u201d as defined in N.C. Gen. Stat. \u00a714-27.1(3); 2) The trial court erred in failing to dismiss the kidnapping charge because there was insufficient evidence of a restraint separate from any rape or sex offense; 3) The trial court erred in failing to intervene ex mero motu in response to the prosecutor\u2019s closing arguments; 4) The trial court committed plain error by failing to instruct the jury that lack of consent is an element of rape and sexual offense of a \u201cphysically helpless\u201d person. We agree, in part, with defendant\u2019s first argument. As such, we need not address defendant\u2019s remaining arguments on appeal.\nIII. Analysis\nA. Physically helpless\nDefendant first argues that the trial court erred in denying his motion to dismiss, because the victim was not \u201cphysically helpless\u201d as the term is defined under our general statutes. According to defendant, the term \u201cphysically helpless\u201d applies only to individuals who are asleep, who are unconscious, or who suffer from a permanent physical condition. We agree, in part, with defendant\u2019s argument.\n\u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo.\u201d State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). \u201cUpon defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the peipetrator of such offense. If so, the motion is properly denied.\u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). \u201cIn making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).\nHere, the indictment charged defendant, in part, with second-degree rape under N.C. Gen. Stat. \u00a7 14-27.3(a), and second-degree sexual offense under N.C. Gen. Stat. \u00a7 14-27.5(a). According to the second-degree rape statute,\nA person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person: (1) By force and against the will of the other person; or (2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless.\nN.C. Gen. Stat. \u00a7 14-27.3(a)(1)-(2) (2012). The language of the second-degree sexual offense statute is nearly identical, with the term \u201csexual act\u201d replacing \u201cvaginal intercourse.\u201d See N.C. Gen. Stat. \u00a7 14-27.5 (2012). At trial, the State proceeded under a theory that the victim was \u201cphysically helpless,\u201d in essence, prosecuting defendant only under N.C. Gen. Stat. \u00a7 14-27.3(a)(2) and N.C. Gen. Stat. \u00a7 14-27.5(a)(2). Thus, at issue is whether the victim in this case was \u201cphysically helpless.\u201d\nAccording to our General Statutes, \u2018\u201c[pjhysically helpless\u2019 means (i) a victim who is unconscious; or (ii) a victim who is physically unable to resist an act of vaginal intercourse or a sexual act[.]\u201d N.C. Gen. Stat. \u00a7 14-27.1(3) (2012). Here, neither party contends that the victim was unconscious during the event. Thus, we will review whether the victim fell under the second category of \u201cphysically helpless.\u201d\nDefendant argues that our Courts have limited this category to apply only to victims who suffer from some permanent physical disability or condition. In support of his argument, he directs our attention to two cases: 1) State v. Atkins, 193 N.C. App. 200, 666 S.E. 2d 809 (2008); 2) State v. Joines, 66 N.C.App. 459, 311 S.E.2d 49, rev\u2019d on other grounds, 311 N.C. 398, 319 S.E.2d 282 (1984). In Atkins, the victim was deemed \u201cphysically helpless\u201d because she was an 83-year-old woman who suffered from arthritis. Similarly in Joines, the victim suffered from multiple sclerosis and was thus found to be \u201cphysically helpless.\u201d Defendant argues that these are the only two cases in which our Courts have addressed the second category of \u201cphysically helpless.\u201d Likewise, the State concedes that there are a \u201cdearth of decisions interpreting physically helpless victims in sex offense cases.\u201d Based on this lack of authority, defendant argues that the second category of \u201cphysically helpless\u201d does not apply to the victim here, because she did not suffer from any permanent physical condition. We reject this argument, but we nonetheless conclude that the victim here did not fall within the special class of victims the term \u201cphysically helpless\u201d was meant to protect. See Atkins, 193 N.C. App. at 204, 666 S.E.2d at 812 (\u201cN.C. Gen. Stat. \u00a7 14-27.3(a)(2)[] is applicable when the victim falls within a special class of victims])]\u201d).\nFirst, we do not think it would be wise for this Court to adopt such a strict application, as defendant suggests, of the term \u201cphysically helpless.\u201d In Atkins, this Court established that \u201ca \u2018physically helpless\u2019 victim, as used within N.C. Gen. Stat. \u00a7 14-27.3(a)(2), is a victim who is physically unable [[t]o strive or work against; oppose actively] an act of vaginal intercourse or a sexual act[.]\u201d Id. at 205, 666 S.E.2d at 812-13 (alterations in original). There, this Court examined a number of factors to determine that the victim was \u201cphysically helpless.\u201d We determined that \u201c[g]iven the evidence of Brown\u2019s age, frailty, and physical limitations, there is evidence from which the jury could reasonably conclude that Brown was not able to actively oppose or resist her attacker.\u201d Id. at 205, 666 S.E.2d at 813. Thus, contrary to defendant\u2019s contention, it is clear that this Court in Atkins considered more than just the victim\u2019s physical disability in determining that she was \u201cphysically helpless.\u201d\nRather, what this Court in Atkins considered were a number of factors and attributes that were unique and personal to the victim, which rendered the victim physically unable to strive or oppose an act of vaginal intercourse or a sexual act. Upon a de novo review of the record, we are unable to find similar evidence concerning the victim here.\nAt trial, the State presented evidence that defendant \u201chad fought professionally\u201d and that he \u201cwas very high ranked\u201d in martial arts. Further, the victim testified that at the time of the event, she weighed \u201c125, maybe 130 max[]\u201d and that defendant weighed \u201c[m]aybe 250, 260[,]\u201d twice as much as her. She also testified that \u201c[w]ell, a lot of the time he had \u2014 he was on top of one of my arms, and one of my legs was in like a submission hold.\u201d She further explained that \u201che got a martial arts belt and between the middle of the floor and the couch, tied my hands behind my back.\u201d\nBased on this evidence, the State argues that the victim was \u201cphysically helpless.\u201d However, we disagree for a number of reasons. First, as we have discussed, in determining whether a victim is \u201cphysically helpless,\u201d this Court looks to factors and attributes unique and personal of the victim. Thus, the evidence that defendant was 1) a skilled fighter and 2) weighed twice as much as the victim is not dis-positive of whether the victim was \u201cphysically helpless.\u201d Second, the evidence that defendant 1) pinned the victim in a submissive hold and 2) tied her hands behind her back is, again, not a unique and personal attribute of the victim, but rather, more indicative of the use of force. See State v. Scott, 323 N.C. 350, 372 S.E.2d 572 (1988) (Finding sufficient evidence to support the defendant\u2019s guilt of second-degree rape by force because he pinned the victim against the kitchen sink with one of his arms on each side of her body.).\nThus, we conclude that the State failed to present sufficient evidence at trial to establish that the victim was \u201cphysically helpless.\u201d However, it appears from the record that the State did present evidence sufficient to establish that defendant engaged in sexual acts with the victim by force and against her will. This Court has held that \u201c[w]here there is evidence that a rape has been effectuated by force and against the will of the victim, the best practice is for the State to prosecute the defendant under the theory codified by N.C. Gen. Stat. \u00a7 14-27.3(a)(1)\u201d and not under N.C. Gen. Stat. \u00a7 14-27.3(a)(2). Atkins, 193 N.C. App. at 206, 666 S.E.2d at 813. Accordingly, we reverse the second-degree rape and second-degree sex offense judgments.\nB. First-degree kidnapping\nAs a result, we must also reverse the first-degree kidnapping judgment. The elements of first-degree kidnapping as applicable here are: 1) the confinement or restraint of any other person 16 years of age or over, 2) for the purpose of facilitating the commission of any felony. See N.C. Gen. Stat. \u00a7 14-39(a)(2) (2012). Further, \u201c[w]hen an indictment alleges an intent to commit a particular felony, the state must prove the particular felonious intent alleged.\u201d State v. White, 307 N.C. 42, 48, 296 S.E.2d 267, 270 (1982) (citations omitted).\nHere, the indictment alleged that \u201cthe defendant named above unlawfully, willfully, and feloniously did kidnap [the victim], a person who has attained the age of 16 years by unlawfully restraining the victim, without the victim\u2019s consent, and for the purpose of facilitating the commission of a felony, second[-]degree rape.\u201d Thus, because the State proceeded under an improper theory of second-degree rape, we are unable to find that the State sufficiently proved the particular felonious intent alleged here. Accordingly, we reverse the first-degree kidnapping judgment.\nIV. Conclusion\nIn sum, we reverse the judgments of the trial court.\nReversed.\nJudges STROUD and BEASLEY concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State.", "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WAYNE ANTHONY HUSS\nNo. COA12-250\n(Filed 20 November 2012)\n1. Rape \u2014 second-degree\u2014physically helpless victim \u2014 evidence not sufficient\nConvictions for second-degree rape and second-degree sex offense were reversed where the State proceeded under the theory that the victim was physically helpless and evidence of defendant\u2019s size, martial arts prowess, and actions was not sufficient. In determining whether a victim is \u201cphysically helpless,\u201d the court looks to factors and attributes unique and personal to the victim. Defendant\u2019s contention that the category of \u201cphysically helpless\u201d does not apply because the victim did not suffer a permanent physical condition was rejected.\n2. Kidnapping \u2014 first-degree\u2014intent\u2014second-degree rape\u2014 helpless victim \u2014 evidence not sufficient\nA first-degree kidnapping conviction was reversed where the indictment alleged the intent to commit second-degree rape but the State proceeded under an improper theory of that offense (a physically helpless victim) and did not sufficiently prove the particular felonious intent alleged.\nAppeal by defendant from judgments entered 1 July 2012 by Judge Beverly T. Beal in Lincoln County Superior Court. Heard in the Court of Appeals 10 October 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant." }, "file_name": "0480-01", "first_page_order": 490, "last_page_order": 496 }