{ "id": 8560750, "name": "STATE OF NORTH CAROLINA v. JOE LEE BARNES", "name_abbreviation": "State v. Barnes", "decision_date": "1982-11-03", "docket_number": "No. 268A82", "first_page": "104", "last_page": "110", "citations": [ { "type": "official", "cite": "307 N.C. 104" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "230 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 667", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551961 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0667-01" ] }, { "cite": "272 S.E. 2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568187 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0512-01" ] }, { "cite": "428 U.S. 902", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180680, 6180844, 6180492, 6180302, 6181071, 6180146 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0902-04", "/us/428/0902-05", "/us/428/0902-03", "/us/428/0902-02", "/us/428/0902-06", "/us/428/0902-01" ] }, { "cite": "215 S.E. 2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562667 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0326-01" ] }, { "cite": "240 S.E. 2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572465 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0231-01" ] }, { "cite": "271 S.E. 2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566259 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0348-01" ] }, { "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": "200 S.E. 2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560673 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0174-01" ] } ], "analysis": { "cardinality": 581, "char_count": 12635, "ocr_confidence": 0.813, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.3392404344809292 }, "sha256": "62e0f19f4d340a005afef1e20f9739855a1d3df6d7bf1a5294654a2188b5bf6f", "simhash": "1:95b7a30e3dfdb8cd", "word_count": 2196 }, "last_updated": "2023-07-14T20:07:32.557624+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOE LEE BARNES" ], "opinions": [ { "text": "MEYER, Justice.\nDefendant assigns as error the trial court\u2019s failure to properly instruct on an element of second degree rape, and its failure to submit the lesser included offense of simple assault. For error in the charge on an essential element of the crime of second degree rape defendant is entitled to a new trial.\nThe victim of the alleged rape was 89 year old Anna Newkirk. We glean from her testimony in the record that on 28 March 1981, the defendant entered Ms. Newkirk\u2019s home, pushed a pillow against her mouth, \u201cravished\u201d her, and left with approximately $2,000 of her money. Her testimony included the following: \u201c[H]e got my pillow, he took and smothered me and I was under-conscious. I didn\u2019t know nothing. I was near about gone.\u201d \u201cI\u2019m not over it yet. My mouth is out of shape.\u201d When questioned about the alleged rape, Ms. Newkirk testified that defendant \u201cjust done what he wanted and I was under conscious then,\u201d and when pressed further, she stated that defendant \u201cravished\u201d her.\nFollowing the incident, Ms. Newkirk was taken to a hospital where she was examined by a physician. The physical evidence of rape was inconclusive. At trial, Dr. Coraz\u00f3n Ngo Simpson testified:\nI discovered a vaginal tear. There was no blood. If this was done on younger lady, it would have \u2014I\u2019m sure it would have blood in it. But being in a woman that age and being \u2014 the vagina being atrophic, there may be some atrophy in the blood vessels producing no blood after the tear. In other words, the being \u2014 the fact that there was no blood after it was torn could be due to her atrophic vagina \u2014 old age \u2014vagina. There being no blood I can\u2019t say whether the tear was recent or not. I can\u2019t tell exactly the time. I can\u2019t be sure about that.\nIt is my opinion that there had been some kind of penetration in the vagina. I don\u2019t know if the penetration was by a male organ or not. We took some specimen from the vagina and the specimen was turned over to the State and I don\u2019t have the result of it. I am not able to say what made the penetration. All I know is there was a tear in there. This penetration could have been made by some object or by a finger or hand or something like that.\nThe State did not introduce into evidence the results of specimens taken from the vagina or pubic hair combings.\nThe defendant testified on his own behalf. He admitted going to Ms. Newkirk\u2019s home on the afternoon of 28 March 1981, as he had done on prior occasions, to assist in lighting her heater or take care of small chores. On this afternoon he noticed a little black bag with two stacks of money in it. According to defendant, it \u201cseem like it was just sitting there for me,\u201d and in response to this singularly unique opportunity, he \u201csnatched the money and . . . cuffed it down.\u201d Ms. Newkirk objected and began \u201cto holler.\u201d Defendant picked up a pillow with which to quiet the woman. However, he got nervous, threw it \u201cdown just like that right in her face and took off\u2019 as Ms. Newkirk called after him, \u201cBring me my money back you strumpet.\u201d Defendant denied having any kind of sexual relations with Anna Newkirk and stated that he \u201cdidn\u2019t even get that close to her to choke her.\u201d\nDefendant was apprehended by law enforcement officers the next day and the money was recovered. After his arrest he made a statement which included the following: \u201cI saw the big money. I had part of it. I took a pillow and held it over her face until she passed out, then I took the money and Freddie Lee came in and he was having sex with her.\u201d When defendant was confronted with this statement at trial, he stated that he did not recall making the statement because he was drunk at the time it was made.\nAfter summarizing the evidence presented at trial, Judge Barefoot erroneously instructed the jury on second degree sex offense, rather than on second degree rape, as follows:\nAnd I charge for you to find the defendant guilty of second degree sex offense, the State must prove three things to you beyond a reasonable doubt: First, that the defendant engaged in sexual act with Anna Newkirk. Sexual act means any penetration however slight by an object into the genital opening of the person\u2019s body; second, that the defendant used or threatened to use force sufficient to overcome any resistance Anna Newkirk might have or might make; third, that Anna Newkirk did not consent and it was against her will. So, I charge that if you find from the evidence beyond a reasonable doubt that on or about March 28, 1981, Joe Lee Barnes engaged in sexual intercourse with Anna Newkirk and he did so by placing a pillow over her face and choking her and that was sufficient to overcome any resistance which Anna Newkirk might make and Anna Newkirk did not consent and it was against her will, it would be your duty to return a verdict of second degree sexual offense. (Emphasis added.)\nThus, as evident from the underlined portions of the instruction, the trial court equated \u201csexual intercourse\u201d with \u201cpenetration however slight by an object.\u201d\nFollowing a discussion at the bench, the trial court then stated:\nMembers of the jury, I am informed by the District Attorney that it should be second degree rape and I am going to charge you to that. Now, you will disregard what I have said to you with reference to second degree sexual offense. This is what you will be guided by:\n[Defendant has been accused of second degree rape, which is forcible sexual intercourse with a woman against her will. Now, I charge that for you to find the defendant guilty of second degree rape, the State must prove three things to you beyond a reasonable doubt. First, that the defendant had sexual intercourse with Anna Newkirk. Second, that the defendant used or threatened to use force sufficient to overcome any resistance that she might make. Third, that Anna Newkirk did not consent and it was against her will. So I charge that if you find from the evidence beyond a reasonable doubt that on or about March 28, 1981, Joe Lee Barnes by the use of force \u2014 a pillow and choking had sexual intercourse with Anna Newkirk without her consent and against her will, it would be your duty to return a verdict of guilty of second degree rape.]\nDefendant first assigns as error the trial court\u2019s failure to instruct the jury that in order to convict him of second degree rape, it must find beyond a reasonable doubt that the defendant penetrated Ms. Newkirk\u2019s sex organ with his sex organ. By failing to do so, argues defendant, the trial judge left open an inference in the minds of the jurors, who had earlier heard the instruction on second degree sex offense, that the \u201csexual intercourse\u201d required under the second degree rape instruction could consist of \u201cany penetration however slight by an object into the genital opening of the person\u2019s body.\u201d In light of the total absence of any direct testimony at trial that defendant did, in fact, penetrate Ms. Newkirk\u2019s sex organ with his sex organ, we agree that the failure of the trial judge to include the explicit language of this element of the offense was prejudicial error.\nIn order to satisfy the requirement of vaginal intercourse, as defined at the time of the alleged offense, G.S. \u00a7 14-27.3 (Cum. Supp. 1979), it was necessary to establish penetration by the male sex organ of the female sex organ. State v. Cross, 284 N.C. 174, 200 S.E. 2d 27 (1973); State v. Sneeden, 274 N.C. 498, 164 S.E. 2d 190 (1968). However, as the State correctly points out in its brief, the failure of the trial court to define \u201csexual intercourse\u201d in its instructions to the jury is not usually error. State v. Thacker, 301 N.C. 348, 271 S.E. 2d 252 (1980); State v. Hensley, 294 N.C. 231, 240 S.E. 2d 332 (1978); State v. Vinson, 287 N.C. 326, 215 S.E. 2d 60 (1975), death sentence vacated, 428 U.S. 902 (1976).\nHere the only evidence from which penetration could even be inferred was Ms. Newkirk\u2019s characterization of defendant\u2019s act, \u201che ravished me,\u201d and Dr. Simpson\u2019s testimony that upon physical examination of Ms. Newkirk, he found a vaginal tear resulting from some kind of penetration. Dr. Simpson testified that he couldn\u2019t say whether the tear was recent or not and that the \u201cpenetration could have been made by some object or by a finger or hand or something like that.\u201d This Court and the North Carolina Court of Appeals have refused to require special instructions beyond the phrase \u201csexual intercourse\u201d as to this element of rape when there is plenary evidence before the jury that the female sex organ had been penetrated by the male sex organ. State v. Ashford, 301 N.C. 512, 272 S.E. 2d 126 (1980); State v. Thacker, 301 N.C. 348, 271 S.E. 2d 252; State v. Hensley, 294 N.C. 231, 240 S.E. 2d 332; State v. Vinson, 287 N.C. 326, 215 S.E. 2d 60; State v. Banks, 31 N.C. App. 667, 230 S.E. 2d 429 (1976). But where, as in the case at bar, (1) the evidence of penetration by a male sex organ is weak, (2) there is a suggestion from the examining physician that penetration could have been by some other object, and (3) a prior erroneous instruction on second degree sex offense, equating sexual intercourse with penetration of an object might have misled the jury, the failure to instruct on the penetration element of the offense is prejudicial error. Under these circumstances it was necessary for the trial judge to have included, in his instruction on second degree rape, language sufficient to establish that penetration must be of the female sex organ by the male sex organ.\nDefendant next contends that the trial court committed reversible error by failing to submit the lesser included offense of assault where the State\u2019s evidence was not positive as to every element of second degree rape and where there was sufficient evidence of assault to support a conviction of that crime. Our decision to grant defendant a new trial on the first issue renders a resolution of this issue unnecessary as it is unlikely to recur at trial.\nThe decision of the Court of Appeals is reversed. For error in the court\u2019s instructions to the jury, defendant is entitled to a new trial.\nReversed.\n. The record on appeal in Ashford discloses that both his victims and the defendant testified that there had been \u201cintercourse\u201d and \u201csexual intercourse.\u201d In Thacker, medical tests established that the complaining witness had rope burns and had recently engaged in vaginal intercourse; in Hensley, medical tests revealed spermatozoa in the victim\u2019s vagina, a medical expert testified that the victim had been penetrated by a male sex organ, and both the victim and an eyewitness testified that the defendant\u2019s penis was in the victim\u2019s vagina; in Vinson, the complaining witness testified that the defendant \u201cactually penetrated\u201d her and raped her twice and medical tests revealed recent intercourse and active spermatozoa in her vagina; and in Banks, medical tests revealed a white secretion in the vagina, the complaining witness testified explicitly about the forced vaginal intercourse, and the defendant confessed to the offense.", "type": "majority", "author": "MEYER, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Wilson Hayman, Associate Attorney, and William F. Briley, Assistant Attorney General, for the State.", "Malcolm R. Hunter, Jr., Assistant Appellate Defender, Adam Stein, Appellate Defender, Attorneys for Defendant-Appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOE LEE BARNES\nNo. 268A82\n(Filed 3 November 1982)\nRape and Allied Offenses \u00a7 6\u2014 second degree rape \u2014 penetration with sex organ\u2014 erroneous failure to instruct\nWhere, in a prosecution for second degree rape, the evidence of penetration by a male sex organ was weak, there was a suggestion from the examining physician that penetration could have been by some other object, and a prior erroneous instruction on second degree sexual offense which equated sexual intercourse with penetration of an object might have misled the jury, the trial court erred in failing to instruct the jury that in order to convict defendant of second degree rape, it must find beyond a reasonable doubt that defendant penetrated the sex organ of the prosecutrix with his sex organ.\nDefendant appeals pursuant to G.S. \u00a7 7A-30(2) from a decision of a divided panel of the Court of Appeals affirming his conviction of second degree rape, judgment entered 20 May 1981 in Superior Court, Duplin County, by Barefoot, J.\nDefendant was indicted on charges of second degree rape, common law robbery, and assault with a deadly weapon with intent to kill. He pled guilty to common law robbery. A jury found him not guilty on the assault charge and guilty of second degree rape. He was sentenced to not more than forty nor less than thirty years imprisonment.\nRufus L. Edmisten, Attorney General, by Wilson Hayman, Associate Attorney, and William F. Briley, Assistant Attorney General, for the State.\nMalcolm R. Hunter, Jr., Assistant Appellate Defender, Adam Stein, Appellate Defender, Attorneys for Defendant-Appellant." }, "file_name": "0104-01", "first_page_order": 132, "last_page_order": 138 }