{ "id": 8358107, "name": "STATE OF NORTH CAROLINA v. JOSEPH MIDYETTE", "name_abbreviation": "State v. Midyette", "decision_date": "1987-10-06", "docket_number": "No. 8710SC299", "first_page": "199", "last_page": "208", "citations": [ { "type": "official", "cite": "87 N.C. App. 199" } ], "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": "126 S.E. 2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "parenthetical": "emphasis supplied" }, { "page": "133" } ], "opinion_index": 0 }, { "cite": "257 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567591 ], "year": 1962, "pin_cites": [ { "page": "334", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0326-01" ] }, { "cite": "251 S.E. 2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566850, 8566924, 8566892, 8566959, 8567003 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0412-01", "/nc/296/0412-03", "/nc/296/0412-02", "/nc/296/0412-04", "/nc/296/0412-05" ] }, { "cite": "237 S.E. 2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "34 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547243 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0101-01" ] }, { "cite": "246 S.E. 2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553368 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0448-01" ] }, { "cite": "265 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "300 S.E. 2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "358 S.E. 2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "factor not properly found where defendant and victim had met only one and a half days before the murder and decided to take a trip in defendant's car" } ], "opinion_index": 0 }, { "cite": "320 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725313, 4731241, 4724368, 4727574, 4727735 ], "year": 1987, "pin_cites": [ { "parenthetical": "factor not properly found where defendant and victim had met only one and a half days before the murder and decided to take a trip in defendant's car" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0514-03", "/nc/320/0514-05", "/nc/320/0514-02", "/nc/320/0514-04", "/nc/320/0514-01" ] }, { "cite": "355 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "factor not properly found where defendant and victim had met only one and a half days before the murder and decided to take a trip in defendant's car" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 696", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170294 ], "year": 1987, "pin_cites": [ { "parenthetical": "factor not properly found where defendant and victim had met only one and a half days before the murder and decided to take a trip in defendant's car" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0696-01" ] }, { "cite": "335 S.E. 2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "factor properly found where defendant raped a nineteen-year-old retarded girl who lived with defendant's family and who testified that she trusted and obeyed defendant as an authority figure" } ], "opinion_index": 0 }, { "cite": "314 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686530, 4697061, 4693228, 4693904, 4690324 ], "year": 1985, "pin_cites": [ { "parenthetical": "factor properly found where defendant raped a nineteen-year-old retarded girl who lived with defendant's family and who testified that she trusted and obeyed defendant as an authority figure" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0546-02", "/nc/314/0546-05", "/nc/314/0546-04", "/nc/314/0546-01", "/nc/314/0546-03" ] }, { "cite": "327 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "factor properly found where defendant raped a nineteen-year-old retarded girl who lived with defendant's family and who testified that she trusted and obeyed defendant as an authority figure" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523623 ], "year": 1985, "pin_cites": [ { "parenthetical": "factor properly found where defendant raped a nineteen-year-old retarded girl who lived with defendant's family and who testified that she trusted and obeyed defendant as an authority figure" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0178-01" ] }, { "cite": "311 S.E. 2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "factor might be properly found where twenty-one-year-old defendant sodomized his ten-year-old brother" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524555 ], "year": 1984, "pin_cites": [ { "parenthetical": "factor might be properly found where twenty-one-year-old defendant sodomized his ten-year-old brother" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0298-01" ] }, { "cite": "319 S.E. 2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "victim thought of defendant as a brother and stated he knew defendant would not shoot him" } ], "opinion_index": 0 }, { "cite": "311 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687238, 4680845, 4684206, 4682901, 4686333 ], "year": 1984, "pin_cites": [ { "parenthetical": "victim thought of defendant as a brother and stated he knew defendant would not shoot him" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0406-03", "/nc/311/0406-01", "/nc/311/0406-05", "/nc/311/0406-02", "/nc/311/0406-04" ] }, { "cite": "308 S.E. 2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "65 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522267 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0101-01" ] }, { "cite": "354 S.E. 2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "218", "parenthetical": "mother's relationship to newborn child supports finding of the factor" } ], "opinion_index": 0 }, { "cite": "319 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4743588 ], "year": 1987, "pin_cites": [ { "page": "311", "parenthetical": "mother's relationship to newborn child supports finding of the factor" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0308-01" ] }, { "cite": "232 S.E. 2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559365, 8559344, 8559377, 8559352, 8559389 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0715-03", "/nc/291/0715-01", "/nc/291/0715-04", "/nc/291/0715-02", "/nc/291/0715-05" ] }, { "cite": "230 S.E. 2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 556", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550967 ], "year": 1976, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0556-01" ] }, { "cite": "356 S.E. 2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "363" } ], "opinion_index": 0 }, { "cite": "319 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741061 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0656-01" ] }, { "cite": "41 S.E. 789", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1902, "opinion_index": 0 }, { "cite": "130 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274961 ], "year": 1902, "opinion_index": 0, "case_paths": [ "/nc/130/0697-01" ] }, { "cite": "164 S.E. 2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560773 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0498-01" ] }, { "cite": "321 S.E. 2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753111 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0237-01" ] }, { "cite": "333 S.E. 2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "718" } ], "opinion_index": 0 }, { "cite": "314 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695126 ], "year": 1985, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0337-01" ] }, { "cite": "231 S.E. 2d 637", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558898 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0656-01" ] }, { "cite": "348 S.E. 2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735317 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0330-01" ] }, { "cite": "339 S.E. 2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "79 N.C. App. 196", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519940 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/79/0196-01" ] }, { "cite": "88 Wis. 2d 546", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8673311 ], "weight": 6, "year": 1979, "pin_cites": [ { "page": "572-574" }, { "page": "472-474" }, { "page": "572" }, { "page": "473" } ], "opinion_index": 1, "case_paths": [ "/wis-2d/88/0546-01" ] }, { "cite": "94 Okla. Cr. 353", "category": "reporters:state", "reporter": "Okla. Crim.", "case_ids": [ 8741597 ], "weight": 2, "year": 1951, "opinion_index": 1, "case_paths": [ "/okla-crim/94/0353-01" ] }, { "cite": "347 S.E. 2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "18" } ], "opinion_index": 1 }, { "cite": "317 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4773087 ], "year": 1986, "pin_cites": [ { "page": "435" } ], "opinion_index": 1, "case_paths": [ "/nc/317/0417-01" ] }, { "cite": "232 S.E. 2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 1 }, { "cite": "291 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559365, 8559344, 8559377, 8559352, 8559389 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/nc/291/0715-03", "/nc/291/0715-01", "/nc/291/0715-04", "/nc/291/0715-02", "/nc/291/0715-05" ] }, { "cite": "230 S.E. 2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 1 }, { "cite": "31 N.C. App. 556", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550967 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/nc-app/31/0556-01" ] }, { "cite": "356 S.E. 2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 1 }, { "cite": "319 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741061 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/nc/319/0656-01" ] } ], "analysis": { "cardinality": 932, "char_count": 20390, "ocr_confidence": 0.816, "pagerank": { "raw": 5.200324078909863e-07, "percentile": 0.9403608086803517 }, "sha256": "2494f88181bdd96030c7743d9f9cd89030ca0830825fdce073ad8921ec6f3f16", "simhash": "1:0525145416335eb3", "word_count": 3418 }, "last_updated": "2023-07-14T18:10:55.356094+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WELLS concurs.", "Judge Eagles dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. JOSEPH MIDYETTE" ], "opinions": [ { "text": "MARTIN, Judge.\nIn the only assignment of error directed to the guilt-innocence phase of his trial, defendant contends that the same evidence was used by the State to obtain his conviction of each of the three charges of second degree rape. He argues that the three instances in which he penetrated Ms. Still\u2019s vagina with his penis constituted but a single continuous incident and \u201cmerge\u201d into one criminal act, so that he can be convicted of only one rape. Therefore, he asserts, his conviction and punishment for three separate rapes is a violation of the double jeopardy provisions of the North Carolina and United States constitutions. We disagree.\nSecond degree rape is \u201cvaginal intercourse with another person (1) [b]y force and against the will of the other person.\u201d G.S. 14-27.3(a)(1). State v. Hosey, 79 N.C. App. 196, 339 S.E. 2d 414, modified and aff\u2019d, 318 N.C. 330, 348 S.E. 2d 805 (1986). The force necessary to constitute an element of the crime of rape need not be actual physical force. The use of force may be established by evidence that submission was induced by fear, duress or coercion. State v. Yancey, 291 N.C. 656, 231 S.E. 2d 637 (1977). \u201cEvidence of the slightest penetration of the female sex organ by the male sex organ is sufficient for vaginal intercourse and the emission of semen need not be shown.\u201d State v. Williams, 314 N.C. 337, 351, 333 S.E. 2d 708, 718 (1985). State v. Brown, 312 N.C. 237, 321 S.E. 2d 856 (1984); State v. Sneeden, 274 N.C. 498, 164 S.E. 2d 190 (1968); State v. Monds, 130 N.C. 697, 41 S.E. 789 (1902). Each act of forcible vaginal intercourse constitutes a separate rape. State v. Dudley, 319 N.C. 656, 356 S.E. 2d 361 (1987). \u201cGenerally rape is not a continuous offense, but each act of intercourse constitutes a distinct and separate offense.\u201d Id. at 659, 356 S.E. 2d at 363, quoting 75 C.J.S. Rape \u00a7 4; State v. Small, 31 N.C. App. 556, 559, 230 S.E. 2d 425, 427 (1976), disc. rev. denied, 291 N.C. 715, 232 S.E. 2d 207 (1977).\nIn the present case, the evidence showed that defendant penetrated the victim\u2019s vagina with his penis on three distinct occasions and that on each occasion he accomplished the vaginal intercourse by the use of actual and constructive force against the will of the victim. The evidence as to each separate act of forcible intercourse was complete and sufficient to sustain a conviction of second degree rape without resort to the evidence necessary to prove either of the other rape charges. Therefore, under Dudley, each of the three acts of forcible vaginal intercourse with the victim was a separate rape and defendant was properly convicted and sentenced for all three offenses. This assignment of error is overruled.\nDefendant\u2019s remaining assignments of error relate to sentencing. In each of the four cases, the trial court found as aggravating factors that defendant had a prior record of convictions for criminal offenses, that he was on parole at the time of the offenses against Ms. Still, and that he took advantage of a position of trust or confidence to commit the offenses against Ms. Still. Defendant assigns error to the latter finding, contending that there was insufficient evidence to show the existence of any relationship of trust or confidence between him and the victim. We agree.\nA finding of a relationship of trust or confidence \u201cdepends . . . upon the existence of a relationship between the defendant and the victim generally conducive to reliance of one upon the other.\u201d State v. Daniel, 319 N.C. 308, 311, 354 S.E. 2d 216, 218 (1987) (mother\u2019s relationship to newborn child supports finding of the factor). See also State v. Potts, 65 N.C. App. 101, 308 S.E. 2d 754 (1983) disc. rev. denied, 311 N.C. 406, 319 S.E. 2d 278 (1984) (victim thought of defendant as a brother and stated he knew defendant would not shoot him); State v. Baucom, 66 N.C. App. 298, 311 S.E. 2d 73 (1984) (factor might be properly found where twenty-one-year-old defendant sodomized his ten-year-old brother); State v. Stanley, 74 N.C. App. 178, 327 S.E. 2d 902, disc. rev. denied, 314 N.C. 546, 335 S.E. 2d 318 (1985) (factor properly found where defendant raped a nineteen-year-old retarded girl who lived with defendant\u2019s family and who testified that she trusted and obeyed defendant as an authority figure). But see State v. Carroll, 85 N.C. App. 696, 355 S.E. 2d 844, disc. rev. denied, 320 N.C. 514, 358 S.E. 2d 523 (1987) (factor not properly found where defendant and victim had met only one and a half days before the murder and decided to take a trip in defendant\u2019s car).\nIn the present case, the evidence showed that Ms. Still had met defendant approximately one month before the events which gave rise to these charges. On that occasion, she had invited him to join her and her sister for an early morning New Year\u2019s breakfast at her apartment. After the breakfast, Ms. Still had permitted defendant to sleep on the sofa in her living room because he said that he had consumed too much alcohol to drive home. She had locked her bedroom door and had instructed her sister to do so. Defendant left the apartment without incident the next morning. He had called her on another occasion to invite her to lunch; she had declined his invitation. The evidence shows merely that the victim was acquainted with defendant; it does not show the existence of a relationship between them through which the defendant would occupy a position of trust and confidence. The trial court\u2019s error in finding this aggravating factor entitles defendant to a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983).\nBecause it is necessary to remand this case for resentencing, we deem it appropriate to briefly discuss defendant\u2019s other assignment of error relating to the sentencing hearing. After hearing evidence and the arguments of counsel at the sentencing hearing, the trial judge conducted an in camera \u201cvictim input session\u201d in his chambers before pronouncing judgment. Only the trial judge, the victim, the prosecutor, defense counsel and the court reporter were permitted to be present. The victim was permitted to make a statement expressing her views concerning the appropriate punishment to be imposed and the reasons therefor. Neither the prosecutor nor defendant\u2019s counsel were permitted to examine the victim. From the record, it appears that the trial judge pronounced judgment immediately after returning to the courtroom without affording the defendant an opportunity to refute any of the matters urged by the victim in her statement.\nTrial judges in North Carolina are allowed wide latitude in conducting sentencing hearings, State v. Smith, 300 N.C. 71, 265 S.E. 2d 164 (1980), and are encouraged to seek all relevant information which may be of assistance in determining an appropriate sentence. State v. Hester, 37 N.C. App. 448, 246 S.E. 2d 83 (1978). Formal rules of evidence do not apply. G.S. 15A-1334(b). The trial court may properly consider a victim\u2019s statement relating to a defendant\u2019s sentence. State v. Clemmons, 34 N.C. App. 101, 237 S.E. 2d 298 (1977), disc. rev. denied, 296 N.C. 412, 251 S.E. 2d 471 (1979). See G.S. 15A-825(9) (providing for preparation of victim impact statement for consideration by court).\nThe latitude and discretion accorded trial judges in the conduct of the sentencing hearing are not, however, without limits. Our Supreme Court has stated:\nSentencing is not an exact science, but there are some well established principles which apply to the sentencing procedure. The accused has the undeniable right to be personally present when sentence is imposed. Oral testimony, as such, relating to punishment is not to be heard in his absence. He shall be given full opportunity to rebut defamatory and condemnatory matters urged against him, and to give his version of the offense charged, and to introduce any relevant facts in mitigation.\nState v. Pope, 257 N.C. 326, 334, 126 S.E. 2d 132-33 (1962) (emphasis supplied). \u201cAll information coming to the notice of the court which tends to defame and condemn the defendant and to aggravate punishment should be brought to his attention before sentencing, and he should be given full opportunity to refute or explain it.\u201d Id. at 335, 126 S.E. 2d at 133.\nThe trial judge\u2019s action in conducting the in camera \u201cvictim input session\u201d in the absence of defendant may have been prompted by a desire to spare the victim further confrontation with defendant, an understandable and laudable motive. Nevertheless, the trial courts should exercise extreme caution in conducting such in camera hearings and insure that all information received by the court relating to punishment is made known to the defendant and his counsel and that he be given the opportunity to explain or refute it.\nWe conclude that defendant received a fair trial, free from prejudicial error. For the reasons stated, however, we remand these cases to the Superior Court of Wake County for a new sentencing hearing.\nNo error in the trial, remanded for resentencing.\nJudge WELLS concurs.\nJudge Eagles dissents.", "type": "majority", "author": "MARTIN, Judge." }, { "text": "Judge EAGLES\ndissenting.\nI respectfully dissent from that portion of the majority opinion which holds that three separate convictions and punishments for second degree rape may be sustained on the evidence before us. The majority finds no merit in defendant\u2019s claims that the double jeopardy clause of the Constitution of the United States and the Constitution of North Carolina prevents all three convictions being upheld. I disagree with the majority and would vote to vacate one of the three second degree rape convictions.\nDefendant argues that the sexual misconduct here consisted of one incident of forced oral sex and one second degree rape, the three vaginal penetrations constituting parts of one occurrence of forced vaginal sexual intercourse. In his brief defendant argues that withdrawal of his penis and his forcible removal of the victim from the living room to the adjoining bedroom where he again vaginally penetrated her twice more were all part of one transaction of sexual misconduct and could be punished only as one rape. Likewise defendant argues that his acts in the bedroom of forcibly vaginally penetrating the victim from the rear and upon her protest withdrawing and immediately re-penetrating her vaginally from the front was but part of a single continuing transaction begun in the living room.\nThough defendant\u2019s conduct is reprehensible and deserving of serious punishment, the question here is whether defendant has committed but one second degree rape, as he argues on appeal, or three separate second degree rapes as the majority finds. I agree with the majority that the forcible vaginal penetration of the victim in the living room constitutes a separate offense from the bedroom acts. It was separated from the bedroom acts both as to place (in another room, some 20 to 25 feet away) and as to time (several minutes, the time to walk the 20-25 feet from the living room to the bedroom). However, as to the last two penetrations, I believe that they constitute but one sexual act, and must be punished as one second degree rape.\nOur law is clear that second degree rape is \u201cvaginal intercourse with another by force and against the will of the other person.\u201d G.S. 14-27.3(a)(l). Equally clear is the rule that to show vaginal intercourse in a rape prosecution there need be proof only of \u201cthe slightest penetration.\u201d State v. Johnson, 317 N.C. 417, 435, 347 S.E. 2d 7, 18 (1986). Nevertheless, each re-penetration, when part of the same act of vaginal intercourse, should not be punished as a separate rape. Beasley v. State, 94 Okla. Cr. 353, 236 P. 2d 263 (1951). The majority opinion here would tend to establish a rule that in a rape case where a defendant makes more than one penetration, no matter how close in time and place, each re-penetration automatically would support a separate rape charge and punishment.\nThe law contemplates that for each act of forcible vaginal intercourse there should be criminal prosecution and imposition of a punishment within the legislatively approved maximum. In the absence of legislative action, punishment for a single act of forcible sexual intercourse should not be increased solely because the act involves re-penetration after the initial forcible penetration, so long as it is part of the same act or transaction and there is no intervening activity.\nHarrell v. State, 88 Wis. 2d 546, 277 N.W. 2d 462 (1979), discusses some helpful criteria for determining when sexually assaultive conduct with multiple penetrations should constitute one or more punishable offenses for double jeopardy purposes. Among the factors considered by the Wisconsin court are:\n(a) the nature of the act;\n(b) time elapsed;\n(c) place, meaning the site of the acts as well as \u201cthe intimate parts of the victim\u2019s body invaded by the sexually as-saultive behavior\u201d;\n(d) intent and whether the lapse of time may indicate a newly formed intent to again seek sexual gratification or inflict abuse;\n(e) cumulative punishment; and\n(f) number of victims.\nId. at 572-574, 277 N.W. 2d at 472-474. They observed that: \u201c[t]he presence and absence of a single factor or a combination of factors other than the nature of the act is not conclusive of the issue.\u201d Id. at 572, 277 N.W. 2d at 473.\nWhile there was a separation in time and place of the forcible penetration of the victim in the living room from the later acts in the bedroom, the two vaginal penetrations in the bedroom occurred in close proximity of time, at the same place and with the same intent, i.e. gratification of defendant\u2019s sexual desires. In the bedroom, defendant withdrew from the penetration from the rear and after changing the victim\u2019s position on the bed immediately re-penetrated her from the front and completed the act of intercourse.\nIn considering the two bedroom penetrations, the nature of the act was the same, the time elapsed between them was apparently negligible, and the place was the same in both respects. Likewise the intent, defendant\u2019s sexual gratification, was the same in both penetrations and so little time elapsed as to negate the likelihood of any newly found intent. Utilizing the Harrell evaluation of factors, it is clear that there was but one punishable offense.\nThe majority relies on State v. Dudley, 319 N.C. 656, 356 S.E. 2d 361 (1987) to support the proposition that each act of forcible vaginal penetration constitutes a separate rape. In Dudley there were two completed acts of sexual intercourse with one victim. The two completed acts were separated by an unspecified period of time during which the defendant unsuccessfully attempted sexual intercourse with a second victim. Because there were two separate completed acts of intercourse which were separated in time and by intervening circumstances (the attempted forcible intercourse with the second victim), Dudley is distinguishable on its facts.\nThe majority also cites State v. Small, 31 N.C. App. 556, 230 S.E. 2d 425 (1976), disc. review denied, 291 N.C. 715, 232 S.E. 2d 207 (1977). In Small there were two separate incidents of forcible intercourse with the same victim on the same evening. The first occurred when defendant accosted the victim on the street, threw her on the ground into some bushes, and raped her. The second incident of forcible intercourse occurred between the same defendant and victim on the way from the scene of the first rape to the victim\u2019s friend\u2019s apartment. The victim was attempting to lure her attacker to her friend\u2019s apartment after the first rape so she could get help. Unlike the instant case, the two rapes in Small were completed acts of forcible intercourse, substantially separated both in time and place.\nThough the majority is correct that \u201cgenerally rape is not a continuous offense,\u201d citing 75 C.J.S., Rape section 4, the facts and circumstances of the two penetrations in the bedroom show they were very close in time, at the same place, pursuant to the same intent and constitute one offense of rape. Accordingly, I dissent and vote to vacate the third conviction of second degree rape. In all other respects, I concur fully with the majority opinion.", "type": "dissent", "author": "Judge EAGLES" } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General William P. Hart, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Leland Q. Towns, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOSEPH MIDYETTE\nNo. 8710SC299\n(Filed 6 October 1987)\n1. Rape and Allied Offenses \u00a7\u00a7 1, 5\u2014 three acts with one victim \u2014separate offenses\nDefendant was properly convicted of three charges of second degree rape where the evidence showed that defendant penetrated the victim\u2019s vagina with his penis on three distinct occasions and that on each occasion he accomplished the vaginal intercourse by the use of actual and constructive force against the will of the victim. The evidence as to each separate act of forcible intercourse was complete and sufficient to sustain a conviction of second degree rape without resort to the evidence necessary to prove either of the other rape charges.\n2. Criminal Law \u00a7 138.27\u2014 rape \u2014 position of trust or confidence \u2014 evidence not sufficient\nThe trial court erred when sentencing defendant for second degree rape by finding that he had taken advantage of a position of trust or confidence where the evidence merely showed that the victim was acquainted with defendant and did not show the existence of a relationship between them through which defendant would occupy a position of trust and confidence.\n3. Criminal Law g 138.S\u2014 sentencing \u2014 victim input session \u2014 no confrontation with defendant\nTrial courts should exercise extreme caution in conducting in camera \u201cvictim input sessions\u201d and insure that all information received by the court relating to punishment is made known to the defendant and his counsel and that he is given the opportunity to explain or refute it.\nJudge Eagles dissenting.\nAPPEAL by defendant from Farmer, Judge. Judgment entered 24 July 1986 in Superior Court, WAKE County. Heard in the Court of Appeals 24 September 1987.\nDefendant was charged with second degree sexual offense and three counts of second degree rape, all allegedly committed upon Joyce Still on 29 January 1985. He entered pleas of not guilty. The evidence at trial tended to show that on 29 January 1985 Ms. Still, who was then separated from her husband, was at her Raleigh apartment with her two-year-old son. Shortly after midnight, Ms. Still heard a knock at her door and looked through the peephole, but did not recognize the man she saw. She stepped back from the door without opening it. About a minute later, there was another knock and the man said, \u201cJoyce, this is Joe. Remember me.\u201d She looked again and recognized the defendant as a man she and her sister had met on the preceding New Year\u2019s Eve and had invited to join them for breakfast at Ms. Still\u2019s apartment. Defendant told Ms. Still that he needed to use her telephone. Because it was snowing, Ms. Still admitted defendant and he used the telephone, but told her that he was unable to get an answer. Then defendant walked up behind the chair where Ms. Still was sitting, put his arm around her and his hand over her mouth and forced her to stand. Defendant told Ms. Still not to make any noise and to do as he said if she did not want him to hurt her or her son. He pushed her over to a couch, undressed her, and forced her to perform fellatio upon him. He then forced her to lie down on the sofa and had sexual intercourse with her, penetrating her vagina with his penis. Defendant said that he was uncomfortable and pulled Ms. Still up from the sofa and pushed her down the hall into her bedroom. He pushed her face down onto the bed and inserted his penis into her vagina from the rear. Ms. Still complained that defendant was hurting her; he pushed her onto her back, got on top of her and forcibly penetrated her vagina with his penis a third time. Ms. Still testified that throughout the commission of these acts, defendant threatened to harm her and her son if she did not do as he wanted.\nDefendant presented no evidence. The jury found defendant guilty of second degree sexual offense and three counts of second degree rape. The trial judge sentenced defendant to four consecutive fifteen year terms of imprisonment. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General William P. Hart, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Leland Q. Towns, for defendant appellant." }, "file_name": "0199-01", "first_page_order": 227, "last_page_order": 236 }