{
  "id": 4245065,
  "name": "STATE OF NORTH CAROLINA v. BILLY BOYETT",
  "name_abbreviation": "State v. Boyett",
  "decision_date": "2013-09-17",
  "docket_number": "No. COA12-222-2",
  "first_page": "576",
  "last_page": "578",
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      "type": "official",
      "cite": "229 N.C. App. 576"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
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      "year": 2013,
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      "cite": "735 S.E.2d 371",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
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      "year": 2012,
      "pin_cites": [
        {
          "page": "374-75"
        },
        {
          "page": "377"
        },
        {
          "page": "377, n.5"
        },
        {
          "page": "377"
        },
        {
          "page": "377"
        }
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  "last_updated": "2023-07-14T15:07:10.338246+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge McGEE and Judge DAVIS concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. BILLY BOYETT"
    ],
    "opinions": [
      {
        "text": "DILLON, Judge.\nThe facts in this case are set forth in this Court\u2019s previous opinion, State v. Boyett,_N.C. App._, 735 S.E.2d 371 (2012), filed 4 December 2012. On 12 June 2013, our Supreme Court allowed the Attorney General\u2019s petition for writ of certiorari \u201cfor the limited purpose of remanding to the North Carolina Court of Appeals for reconsideration in light of State v. Carter, _ N.C. _, 739 S.E.2d 548 (2013).\u201d\nIn Defendant\u2019s appeal in this case, Defendant contended the trial court committed plain error by failing to instruct the juiy on attempted second-degree rape and attempted incest when the evidence on the issue of whether penetration occurred was conflicting. The Court summarized the evidence as follows:\nThe victim said Defendant \u201ctr[ied] to get his penis to go inside my vagina.\u201d When asked how far Defendant was able to get his penis inside her vagina, the victim replied, \u201cNot very far. If he could even get it in at all.\u201d According to the victim, this was because Defendant could not maintain an erection. When asked more specifically, in a police interview, about the degree of penetration, the victim affirmed that Defendant\u2019s penis went \u201cpast the lips.\u201d Defendant denies that he penetrated her, explaining that he could not maintain an erection.\nBoyett,_N.C. App. at_, 735 S.E.2d at 374-75. In its determination that the trial court committed plain error by failing to instruct the jury on attempted second-degree rape and attempted incest on the foregoing evidence, the Court relied on State v. Carter, N.C. App. , 718 S.E.2d 687 (2011), stating that the \u201cevidence on penetration in Carter ... is remarkably similar to the evidence presented in this case, and, resultantly, we believe Garter is indistinguishable.\u201d Boyett,_N.C. App. at _, 735 S.E.2d at 377. The Court further stated that \u201c[l]ike this case, the victim\u2019s testimony in Carter could support both the proposition that the defendant penetrated her and that he did not.\u201d Id. However, the Court in Boyett noted that \u201c[o]ur Supreme Court has granted discretionary review, and briefs have been submitted by the parties, on the question of whether this Court erred in concluding that the trial court in Carter committed plain error by failing to instruct the jury on attempted first degree sexual offense[,]\u201d and \u201c[ultimately, our Supreme Court\u2019s decision in Carter will be controlling on this issue. However, presently, this Court is bound by Carter.\u201d Id. at_, n.5, 735 S.E.2d at 377, n.5.\nSubsequently, our Supreme Court held in State v. Carter,_N.C._, 739 S.E.2d 548 (2013) that \u201cthe Court of Appeals misconstrued the plain error standard.\u201d Id. at_, 739 S.E.2d at 551. The Court explained that \u201c[t]he necessary examination is whether there was a \u2018probable impact\u2019 on the verdict, not a possible one.\u201d Id. Our Supreme Court further held, upon an examination of the substantive question in Carter of whether the error constituted plain error, that, upon the evidence in that case, the \u201c [defendant has not shown that \u2018the jury probably would have returned a different verdict\u2019 if the trial court had provided the attempt instruction\u201d because the defendant had not shown that \u201cthe jury would have disregarded any portions of the victim\u2019s testimony stating that he put his penis \u2018in\u2019 her anus in favor of those instances in which she said \u2018on.\u2019 \u201d Id. Accordingly, our Supreme Court reversed this Court\u2019s decision in Carter, supra.\nBased on the Supreme Court\u2019s reversal of the decision upon which this Court relied in the case sub judice, the Supreme Court ordered that this Court reconvene in this case for the limited purpose of reconsidering the question of whether the trial court committed plain error by failing to instruct the jury on attempted second-degree rape and attempted incest.\nIn our reconsideration, we reiterate that the evidence in this case \u201cis remarkably similar to the evidence presented\u201d in Carter. Boyett,_N.C. App. at_, 735 S.E.2d at 377. Therefore, we must conclude that there was no plain error in the trial court\u2019s failure to instruct the jury on attempted second-degree rape and attempted incest, where, as in Carter, supra, the evidence on the issue of whether penetration actually occurred was conflicting. Here, as in Carter, Defendant has \u201cnot shown that the jury would have disregarded any portions of the victim\u2019s testimony stating that [penetration occurred] in favor of those instances in which she said [penetration did not occur].\u201d Carter,_N.C. at_, 739 S.E.2d at 551. Thus, Defendant has not shown a \u201cprobable impact\u201d on the verdict.\nAccordingly, this Court\u2019s holding in Boyett,_N.C. App. at_, 735 S.E.2d at 377, that \u201cDefendant must receive a new trial on his six second-degree rape convictions and his six incest convictions[,]\u201d is superseded. There was no plain error on this issue in this case.\nNO ERROR.\nJudge McGEE and Judge DAVIS concur.",
        "type": "majority",
        "author": "DILLON, Judge."
      }
    ],
    "attorneys": [
      "Attorney GeneralRoy Cooper, by Assistant Attorney General Sarah Meacham, for the State.",
      "Russell J. Hollers III, for the Defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BILLY BOYETT\nNo. COA12-222-2\nFiled 17 September 2013\nRape \u2014 instructions\u2014second-degree rape and attempted incest\u2014 evidence of penetration conflicting\nOn reconsideration following the Supreme Court\u2019s reversal of the decision upon which the Court of Appeals relied, there was no plain error where the evidence of p\u00e9netration was conflicting and the trial court did not instruct the jury on attempted second-degree rape and attempted incest.\nAppeal by Defendant from judgments entered 10 October 2011 by Judge Charles H. Henry in New Hanover County Superior Court. Originally heard in the Court of Appeals 28 August 2012, with opinion filed 4 December 2012. Reconsidered pursuant to an order of the North Carolina Supreme Court, entered 12 June 2013.\nAttorney GeneralRoy Cooper, by Assistant Attorney General Sarah Meacham, for the State.\nRussell J. Hollers III, for the Defendant."
  },
  "file_name": "0576-01",
  "first_page_order": 586,
  "last_page_order": 588
}