{
  "id": 8526623,
  "name": "STATE OF NORTH CAROLINA v. BOBBY ALLEN RAINES",
  "name_abbreviation": "State v. Raines",
  "decision_date": "1985-01-15",
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    "judges": [
      "Judges Hedrick and Phillips concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. BOBBY ALLEN RAINES"
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nThe defendant, Bobby Allen Raines, a charge nurse at Memorial Mission Hospital in Asheville, North Carolina, was charged with second-degree rape and second-degree sexual offense of one of the patients under his care. The trial court submitted the case to the jury on alternative theories that the defendant raped and committed a second-degree sexual offense on the victim: (1) \u201cby force and against her will\u201d or (2) who was \u201cphysically helpless.\u201d The defendant was found not guilty of rape; however, the jury convicted the defendant of the second-degree sexual offense \u201cby force and against her will\u201d and found that the victim was not \u201cphysically helpless.\u201d From a judgment imposing the presumptive sentence of twelve years for the Class D felony, defendant appeals.\nI\nThe prosecuting witness was admitted to the emergency room of Memorial Mission Hospital on 13 July 1983 at approximately 10:00 a.m. with migraine headaches. Later, she was transferred to the intensive care unit because she was extremely nauseated and having seizures. At all relevant times, she was \u201chooked up\u201d to an I.V. and to heart monitoring equipment.\nWhen the defendant first saw the prosecuting witness at approximately 7:15 p.m., she was vomiting, and, according to the defendant, he gave her an injection of torecan, an anti-nausea drug, although he did not note this on the patient\u2019s chart nor report it to his head nurse the following morning.\nThe prosecuting witness suggested that twice during the night the defendant put something in her I.V. which caused a burning sensation, and testified that defendant thereafter twice placed his hand in her vagina and attempted to rape her, succeeding the second time. The prosecuting witness admitted that she never saw the defendant give her an injection and that she merely saw him stand over her with his hands \u201cin a position on the I.V.\u201d She did not allege any physical force, nor did she resist his advances in any way. Between the first and second incidents, the prosecuting witness\u2019 doctor checked on her, but she did not report the incident to him although she spoke with him. The prosecuting witness denied seeing any nurse other than the defendant in her room.\nThe defendant admitted that he, as well as two other nurses, purged and adjusted the prosecuting witness\u2019 I.V. numerous times and that he took her temperature rectally during the night. Defendant denies injecting her with anything other than an anti-nausea drug and, further, denies making any sexual advances. Two nurses testified, corroborating defendant\u2019s testimony concerning purging and adjusting the I.V.\nAn examination of the prosecuting witness\u2019 gown and the bedsheet revealed the presence of sperm. An analysis of the semen on the bedsheet and on her gown showed no A.B.O. reaction and showed a P.G.M. reaction of one. An analysis of the vaginal swabs revealed no A.B.O. or P.G.M. reaction. The prosecutrix\u2019s A.B.O. blood type was determined to be O secretor with a P.G.M. group one. Her husband\u2019s A.B.O. type was determined to be 0 non-secretor, P.G.M. group two-one. The defendant\u2019s A.B.O. type was determined to be A non-secretor, P.G.M. one. However, the forensic serologist who testified for the State could draw \u201cno conclusion ... as to the A.B.O. or P.G.M. blood group of the donor of the semen.\u201d The serologist further testified:\nA. I cannot say that this individual contributed. I cannot say that this person did contribute the semen that was found.\nQ. In fact, sir, wouldn\u2019t there be hundreds of millions of men that could have contributed this as far as their body fluids are concerned?\nA. Given the results on the bed sheet, as well as on the hospital gown, taking into consideration the population frequency of members of the population that are P.G.M. Group 1, approximately 58 percent of the male population are P.G.M. Group 1.\nQ. Thank you. I believe the world population is about four billion right now. Now, the P.G.M. reactions can come from vaginal fluids as well as the male fluid, isn\u2019t that right?\nA. That is correct.\nQ. So it is. And I\u2019ll ask you if the P.G.M. reaction that you got on the bed sheet were consistent with her vaginal fluids?\nA. The P.G.M. blood group, Type 1 reaction, which was obtained from the bed sheet and the hospital gown is consistent with both Sarah Grindstaff and Bobby Raines.\nII\nOn appeal, defendant contends that the trial court erred: (1) in failing to grant his motion to dismiss because there is no evidence of physical or constructive force; (2) in failing to instruct the jury that before fear, fright, or duress could replace physical force in satisfying the elements of a forcible sexual offense, such fear, fright or duress must have been reasonably induced; (3) by instructing the jury that the scientific examination of the semen excluded every male except the defendant; and (4) in failing to instruct the jury that defense counsel\u2019s stipulation was merely a chain of custody stipulation and was in no way intended as an admission to the conclusiveness or effectiveness of the scientific tests.\nFor the reasons that follow, we reverse.\nIll\nN.C. Gen. Stat. Sec. 14-27.5 (1981), in pertinent part, provides:\n(a) A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:\n(1) By force and against the will of the other person; or\n(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally defective, mentally incapacitated, or physically helpless.\nPhysical force, as that phrase is generally understood in sexual offense and kindred cases, was absent in this case. And, we decline to accept the State\u2019s invitation to expand the \u201cphysical force\u201d doctrine and bring within its ambit the conduct \u2014 the physical touching \u2014 that constitutes the \u201csexual act\u201d itself in this case. In other words, we reject the argument set forth in the State\u2019s brief that \u201c[a]s to the second-degree sexual offense, the assailant had used the necessary force to complete the act before his victim had an opportunity to resist or even to become frightened . . . [and] should not be heard to say that because he deliberately surprised his victim and attacked her completely without warning\u201d that he is not guilty.\nWhether constructive force, as the phrase has been judicially interpreted, was present in this case is a more difficult question. The \u201cby force and against the will\u201d language in G.S. Sec. 14-27.5 (1981) comes from the common law definition of rape. \u201cThis phrase as used in all these [sexual offense] statutes means the same as it did at common law when it was used to describe some of the elements of rape.\u201d State v. Locklear, 304 N.C. 534, 539, 284 S.E. 2d 500, 503 (1981). At common law, fear, fright, or coercion could take the place of actual physical force, or, as stated by o\u00fcr Supreme Court: \u201cA threat of serious bodily harm, which reasonably induces fear thereof, constitutes the requisite force and negates consent.\u201d State v. Burns, 287 N.C. 102, 116, 214 S.E. 2d 56, 65, cert. denied, 423 U.S. 933, 46 L.Ed. 2d 264, 96 S.Ct. 288 (1975).\nLikewise under our sexual offense statutes, actual physical force is not required to satisfy the statutory requirement that the sexual act be committed \u2018by force and against the will\u2019 of the victim. Fear of serious bodily harm reasonably engendered by threats or other actions of a defendant and which causes the victim to consent to the sexual act takes the place of force and negates the consent. (Emphasis added.)\nState v. Locklear, 304 N.C. at 540, 284 S.E. 2d at 503.\nThis long-revered definition of constructive force may explain why the State, in its brief, sought to characterize this case as one involving \u201cphysical force\u201d and to summarily respond to, or sidestep, defendant\u2019s argument that the evidence of \u201cconstructive force\u201d was insufficient to take the case to the jury. Dealing with defendant\u2019s argument in one sentence, the State, in its brief, states: \u201cAlthough the State disagrees with appellant as to whether the victim was reasonably put in fear and as to the effect of the exclusion of the suggested qualifying phrase from the court\u2019s charge, it suggests that the question of \u2018constructive\u2019 force does not arise.\u201d The State obviously realized that fear, fright, or coercion must be reasonably induced before it can replace actual physical force. Indeed, in every constructive force case cited by the district attorney at trial, there was, at least, a threat of physical force, and, in most of the cases, there was actual physical force which preceded or constituted the threat that further force would follow if the victim would not succumb. State v. Hines, 286 N.C. 377, 211 S.E. 2d 201 (1975); State v. Primes, 275 N.C. 61, 165 S.E. 2d 225 (1969); State v. Overman, 269 N.C. 453, 153 S.E. 2d 44 (1967); State v. Carter, 265 N.C. 626, 144 S.E. 2d 826 (1965); State v. Thompson, 227 N.C. 19, 40 S.E. 2d 620 (1946).\nIn the case before us, there was neither the threat of physical force nor any actual force preceding or constituting a threat. The sexual acts, which the jury found that the defendant committed, were reprehensible and criminal. And, arguably, the legislature intended to include defendant\u2019s conduct within the statutory perimeters, but the facts of this case do not neatly fit the \u201cby fear and against the will\u201d language of G.S. Sec. 14-27.5 (1981). Significantly, the jury, in its special verdict, specifically found that defendant did not commit a sexual act on a person who was physically helpless. Equally important is the recognition that a genuine threat of force with resulting physical and psychological stress can sometimes be more traumatic than the degrading act it precedes. For example, some would be more traumatized and unnerved by a genuine threat of serious bodily injury to them or their children than by a reprehensible touching of the genitals as on a crowded elevator or in a swimming pool. And the legislature has, in sexual offense cases as well as in other areas of the law, made distinctions and, indeed, gradations, depending on the use or threatened use of force. Most important, however, is N.C. Gen. Stat. Sec. 14-27.7 (1981), which covers felonious sexual activity with a person over whom defendant or his employer had assumed custody. Consent is no defense to a charge under this statute, which, in relevant part, provides that\nif a person having custody of a victim of any age or a person who is an agent or employee of any person, or institution, whether such institution is private, charitable, or governmental, having custody of a victim of any age engages in vaginal intercourse or a sexual act with such victim, the defendant is guilty of a class G felony.\nId.\nOn the peculiar facts of this case in which the jury found defendant not guilty of rape and not guilty of second-degree sexual offense on a person who was \u201cphysically helpless,\u201d and in which there is no evidence of actual physical force or of constructive force which could reasonably and understandably generate fear in the prosecuting witness, we have determined that the trial court erred in denying the defendant\u2019s motion for nonsuit.\nIV\nIt is not necessary to address defendant\u2019s remaining assignments of error since they are not likely to arise even if the State elects to proceed against defendant under G.S. Sec. 14-27.7 (1981).\nFor the reasons stated above, we\nReverse.\nJudges Hedrick and Phillips concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Rufus Edmisten, by Assistant Attorney General Alfred N. Salley, for the State.",
      "Elmore & Powell, P.A., by Bruce A. Elmore, Sr. and Ronald W. Mack, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BOBBY ALLEN RAINES\nNo. 8428SC194\n(Filed 15 January 1985)\n1. Rape \u00a7 1\u2014 physical force \u2014 more required than sexual act itself\nPhysical force as that phrase is generally understood in sexual offense and kindred cases requires more than the physical touching which constitutes the sexual act itself.\n2. Rape \u00a7 5\u2014 patient allegedly raped by nurse \u2014insufficient evidence of physical or constructive force\nIn a prosecution of defendant nurse for second degree rape and second degree sexual offense of one of the patients under his care, the trial court erred in denying defendant\u2019s motion to dismiss where there was no evidence of physical force or constructive force which could reasonably and understandably generate fear in the prosecuting witness, nor was she physically helpless.\nAPPEAL by defendant from Lewis, Judge. Judgment entered 31 October 1983 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals 18 October 1984.\nAttorney General Rufus Edmisten, by Assistant Attorney General Alfred N. Salley, for the State.\nElmore & Powell, P.A., by Bruce A. Elmore, Sr. and Ronald W. Mack, for defendant appellant."
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