{ "id": 3788133, "name": "STATE OF NORTH CAROLINA v. WILLIAM BEACH SMITH", "name_abbreviation": "State v. Smith", "decision_date": "2006-03-03", "docket_number": "No. 346A05", "first_page": "341", "last_page": "349", "citations": [ { "type": "official", "cite": "360 N.C. 341" } ], "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": "613 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632952 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/se2d/613/0304-01" ] }, { "cite": "170 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005903 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/nc-app/170/0461-01" ] }, { "cite": "537 U.S. 1133", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9350848, 9351014, 9351079, 9350664, 9350889, 9350695, 9350953, 9351145, 9350727, 9351342, 9351407, 9351279, 9351220, 9350807 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/537/1133-05", "/us/537/1133-08", "/us/537/1133-09", "/us/537/1133-01", "/us/537/1133-06", "/us/537/1133-02", "/us/537/1133-07", "/us/537/1133-10", "/us/537/1133-03", "/us/537/1133-13", "/us/537/1133-14", "/us/537/1133-12", "/us/537/1133-11", "/us/537/1133-04" ] }, { "cite": "566 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "77" } ], "opinion_index": 0 }, { "cite": "355 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220086 ], "year": 2002, "pin_cites": [ { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0642-01" ] }, { "cite": "499 U.S. 942", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11365027, 11364868, 11365765, 11364958, 11365194, 11364716, 11364527, 11364623, 11365105, 11365267, 11364789, 11365658, 11365438, 11365343 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/us/499/0942-07", "/us/499/0942-05", "/us/499/0942-14", "/us/499/0942-06", "/us/499/0942-09", "/us/499/0942-03", "/us/499/0942-01", "/us/499/0942-02", "/us/499/0942-08", "/us/499/0942-10", "/us/499/0942-04", "/us/499/0942-13", "/us/499/0942-12", "/us/499/0942-11" ] }, { "cite": "414 U.S. 141", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11715366 ], "year": 1973, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/us/414/0141-01" ] }, { "cite": "395 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "109", "parenthetical": "quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)" } ], "opinion_index": 0 }, { "cite": "327 N.C. 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493650 ], "year": 1990, "pin_cites": [ { "page": "392", "parenthetical": "quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0388-01" ] }, { "cite": "510 U.S. 1028", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 231489, 230913, 231364, 234554, 234438, 234126, 232495, 232878, 230190, 230450, 231636, 235834, 230556 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/us/510/1028-01", "/us/510/1028-11", "/us/510/1028-08", "/us/510/1028-06", "/us/510/1028-02", "/us/510/1028-13", "/us/510/1028-04", "/us/510/1028-10", "/us/510/1028-12", "/us/510/1028-05", "/us/510/1028-07", "/us/510/1028-03", "/us/510/1028-09" ] }, { "cite": "502 U.S. 62", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6218248 ], "year": 1991, "pin_cites": [ { "parenthetical": "reaffirming the Boyde reasonable likelihood standard" } ], "opinion_index": 0, "case_paths": [ "/us/502/0062-01" ] }, { "cite": "494 U.S. 370", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4909 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "380" }, { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/us/494/0370-01" ] }, { "cite": "430 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "209" } ], "opinion_index": 0 }, { "cite": "333 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545734 ], "weight": 2, "pin_cites": [ { "page": "621" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0579-01" ] }, { "cite": "270 S.E.2d 117", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552785 ], "year": 1980, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0680-01" ] }, { "cite": "337 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715712, 4720431, 4715122, 4720187, 4718559 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0188-02", "/nc/315/0188-05", "/nc/315/0188-04", "/nc/315/0188-03", "/nc/315/0188-01" ] }, { "cite": "331 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "253" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526305 ], "year": 1985, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0543-01" ] }, { "cite": "184 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "877" } ], "opinion_index": 0 }, { "cite": "280 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570109 ], "year": 1971, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0132-01" ] }, { "cite": "128 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "597" } ], "opinion_index": 0 }, { "cite": "258 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560672 ], "year": 1962, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0333-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "year": 1970, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "471 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6202354 ], "year": 1985, "pin_cites": [ { "page": "313", "parenthetical": "quoting In re Winship, 397 U.S. 358, 364 (1970)" } ], "opinion_index": 0, "case_paths": [ "/us/471/0307-01" ] }, { "cite": "358 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "506" }, { "page": "506" } ], "opinion_index": 0 }, { "cite": "320 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731555 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "392" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0387-01" ] } ], "analysis": { "cardinality": 801, "char_count": 18065, "ocr_confidence": 0.739, "pagerank": { "raw": 1.4125926969123146e-07, "percentile": 0.6472520212568378 }, "sha256": "399bb512fe03005abf518142440ffa06e2322f0b878cd337778ab269f62b12f5", "simhash": "1:8376936c5b3cc458", "word_count": 2971 }, "last_updated": "2023-07-14T22:28:24.883894+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Timmons-Goodson did not participate in the consideration or decision of this case.", "Justice TIMMONS-GOODSON did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM BEACH SMITH" ], "opinions": [ { "text": "BRADY, Justice.\nThe sole question presented is whether there is a reasonable likelihood that the trial court\u2019s instruction to the jury on second-degree rape impermissibly lessened the State\u2019s burden to prove the elements of force and lack of consent beyond a reasonable doubt. Because the trial court failed to instruct the jurors that they must find the dispositive fact in this case beyond a reasonable doubt, we hold that the jury instructions were flawed and affirm the Court of Appeals order granting defendant a new trial.\nAfter being indicted by a grand jury on 21 October 2002, defendant William Beach Smith was tried and convicted of second-degree rape in Wake County Superior Court on 15 January 2004. Evidence presented at trial showed defendant, a certified flight instructor, met the alleged victim and became friends with her during flight lessons in 2000. After the victim completed high school in the spring of 2001, a dispute erupted with her mother which forced the victim to move out of the family home and into defendant\u2019s residence for six weeks during the summer of 2001. Subsequently, the victim enrolled at the University of Illinois at Urbana-Champaign, where she relocated in the fall of 2001.\nThe victim returned to North Carolina for a brief visit during the weekend of 20 October 2001. On Saturday of that weekend, the victim, although under the age of twenty-one, consumed a large amount of alcohol at a friend\u2019s residence. That same evening defendant celebrated a friend\u2019s birthday at a local bar and later invited the group to continue the festivities at his residence.\nIn the early morning hours of Sunday, 21 October 2001, the victim arrived at defendant\u2019s residence. Not surprisingly, defendant and the victim differ as to the events which unfolded between them from Saturday evening to Sunday morning. Defendant testified that the victim initiated contact with him by calling his cell phone and leaving a message around 4:30 a.m. Defendant returned the victim\u2019s phone call and told her everyone at his house was going to bed. According to defendant, the victim called back stating she was on her way to defendant\u2019s residence. Defendant testified that the victim let herself into defendant\u2019s residence, climbed into defendant\u2019s bed with him, and the two began kissing. Defendant testified the victim never fell asleep while their physical interaction became more intense. Defendant did not deny having vaginal intercourse with the victim, but contended the kissing, fondling, and intercourse were consensual.\nThe victim, however, testified that beginning late Saturday evening defendant repeatedly called her cell phone and invited her to his residence. She then drove to defendant\u2019s residence at approximately 4:00 a.m. on Sunday morning. Upon arriving, the victim was greeted by defendant and defendant\u2019s friend, John Yancy (Yancy). Defendant told the victim the party had ended; however, she was too tired to drive home and decided to sleep at defendant\u2019s residence. The only available bed was defendant\u2019s, so defendant, the victim, and Yancy all climbed into defendant\u2019s bed, with the victim between defendant and Yancy. Defendant began rubbing the victim\u2019s arm and kissing her, but she told defendant \u201cno\u201d and that she was only going to sleep. The victim testified she fell asleep, but awoke with defendant on top of her, pinning her down by her wrists and having vaginal intercourse with her. The victim continually told defendant to stop, but he persisted. She then positioned her legs under defendant and pushed him off of her. Defendant left the room. Yancy, having left the room prior to the alleged rape, then re-entered the room and made sexual advances toward the victim, which she rebuffed. At that point, the victim began crying and Yancy left the room, again. The victim testified she felt \u201cparalyzed\u201d but went back to sleep. She awoke at approximately 9:45 a.m. and left defendant\u2019s residence to pack her belongings and return to her college campus in Illinois. Before leaving the state, the victim did not report the incident to law enforcement or inform anyone in North Carolina of her encounter with defendant.\nUpon returning to Illinois, the victim shared her experience with three friends, sought medical treatment, and spoke to Officer Ronald Weiss, a law enforcement officer employed by the University of Illinois. Officer Weiss encouraged the victim to file an official report, which she eventually did. Officer Weiss also informed her that, with proper court authorization, she could tape record her phone conversations with defendant. Officer Weiss obtained the proper documentation allowing the recording, and the victim recorded two conversations with defendant regarding the sexual intercourse that took place between them. These recorded conversations were introduced at trial over defendant\u2019s objections. During the conversations, defendant expressed a fear of being arrested and remorse for his actions, but maintained he thought the sexual intercourse was consensual.\nDuring the charge conference, as required by N.C.G.S. \u00a7 15A-1231(b), the State requested an instruction on second-degree forcible rape in accordance with the North Carolina Pattern Jury Instructions, which explain the elements of second-degree rape, codified in N.C.G.S. \u00a7 14-27.3(a)(l), as follows:'\nFor you to find the defendant guilty of this offense, the state must prove three things beyond a reasonable doubt:\nFirst, that the defendant engaged in vaginal intercourse with the victim. Vaginal intercourse is penetration, however slight, of the female sex organ by the male sex organ. (The actual emission of semen is not necessary.)\nSecond, that the defendant used or threatened to use force sufficient to overcome any resistance the victim might make. (The force necessary to constitute rape need not be actual physical force. Fear or coercion may take the place of physical force.)\nAnd Third, that the victim did not consent and it was against her will. (Consent induced by fear is not consent in law.)\nIf you find from the evidence beyond a reasonable doubt that on or about the alleged date, the Defendant engaged in vaginal intercourse with the victim and that he did so by force . . . and that this was sufficient to overcome any resistence which the victim might make, and that the victim did not consent and it was against her will... it would be your duty to return a verdict of guilty. If you do not so find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.\n1 N.C.P.I. \u2014 Crim. 207.20 (2002). Further, the State requested that additional language from this Court\u2019s holding in State v. Moorman be included with the pattern jury instruction. 320 N.C. 387, 358 S.E.2d 502 (1987). Over defendant\u2019s objection, the trial court granted the State\u2019s request and gave the following instruction to the jury regarding the elements of second-degree rape:\nThe Defendant has been charged with second degree rape. For you to find the Defendant guilty of this offense, the State must prove three things beyond a reasonable doubt.\nFirst, that the Defendant engaged in vaginal intercourse with the victim. Vaginal intercourse is penetration, however slight, of the female sex organ by the male sex organ. The actual emission of semen is not necessary.\nSecond, that the Defendant used or threatened to use force sufficient to overcome any resistance the victim might make.\nAnd third, that the victim did not consent and it was against her will. Force and lack of consent are implied in law if at. the time of the vaginal intercourse the victim is sleeping or similarly incapacitated.\nIf you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant engaged in vaginal intercourse with the victim and that he did so by force and that this was sufficient to overcome any resistence which the victim might make, and that the victim did not consent and it was against her will, it would be your duty to return a verdict of guilty.\nIf you do not so find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.\n(Emphasis added).\nAfter receiving the jury instructions and deliberating, the jury returned a verdict finding defendant guilty of second-degree rape. The trial court sentenced defendant, who had a prior record level I, at the high end of the presumptive range to a minimum of seventy-three months and a maximum of ninety-seven months imprisonment. Defendant appealed his conviction to the Court of Appeals, arguing, inter alia, the trial court\u2019s jury instruction shifted the burden of proof from the State to the defendant on the third element of lack of consent for second-degree rape. The Court of Appeals, in a divided decision, agreed with defendant and ordered a new trial. The State filed its appeal of right in this Court based .upon the dissenting opinion pursuant to N.C.G.S. \u00a7 7A-30(2), arguing that the trial court\u2019s jury instructions were proper. We disagree with the State and affirm the Court of Appeals\u2019 determination that the instructions in question were inadequate, albeit for different reasons, as explained below.\nThe elements of second-degree rape are set out in N.C.G.S. \u00a7 14-27.3, which provides in part:\n(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:\n(1) By force and against the will of the other person; or\n(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.\n(b) Any person who commits the offense defined in this section is guilty of a Class C felony.\nN.C.G.S. \u00a7 14-27.3 (2005). Because vaginal intercourse was undisputed in this case, the remaining elements of second-degree rape at issue were force and lack of consent.\n\u201cThe Due Process Clause of the Fourteenth Amendment \u2018protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.\u2019 \u201d Francis v. Franklin, 471 U.S. 307, 313 (1985) (quoting In re Winship, 397 U.S. 358, 364 (1970)).\nA trial court\u2019s jury instruction \u201cis for the guidance of the jury.\u201d Sugg v. Baker, 258 N.C. 333, 335, 128 S.E.2d 595, 597 (1962). Furthermore, the purpose \u201cis to give a clear instruction which applies the law to the evidence in such manner as to assist the jury in understanding the case and in reaching a correct verdict.\u201d State v. Williams, 280 N.C. 132, 136, 184 S.E.2d 875, 877 (1971). \u201cIn a criminal trial the judge has the duty to instruct the jury on the law arising from all the evidence presented.\u201d State v. Moore, 75 N.C. App. 543, 546, 331 S.E.2d 251, 253, disc. rev. denied, 315 N.C. 188, 337 S.E.2d 862-63 (1985). A judge has the obligation \u201cto instruct the jury on every substantive feature of the case.\u201d State v. Mitchell, 48 N.C. App. 680, 682, 270 S.E.2d 117, 118 (1980).\nIn reviewing a jury instruction which may be subject to erroneous interpretation, this Court has stated .that \u201cwe inquire \u2018whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.\u2019 \u201d State v. Jennings, 333 N.C. 579, 621, 430 S.E.2d 188, 209 (emphasis added) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)), quoted in Estelle v. McGuire, 502 U.S. 62, 72 & n.4 (1991) (reaffirming the Boyde reasonable likelihood standard) cert. denied 510 U.S. 1028 (1993). The burden upon the defendant is to \u201cshow more than a \u2018possibility\u2019 that the jury applied the instruction in an unconstitutional manner.\u201d Jennings, 333 N.C. at 621, 430 S.E.2d at 209 (citing Boyde, 494 U.S. at 380). In determining whether the defendant has met the reasonable likelihood standard this Court must review the trial court\u2019s instruction to the jury \u201c \u2018in the context of the overall charge.\u2019 \u201d State v. McNeil, 327 N.C. 388, 392, 395 S.E.2d 106, 109 (1990) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)), cert. denied, 499 U.S. 942 (1991).\nAs stated earlier, the jury instruction in the instant case followed the North Carolina Pattern Jury Instruction on second-degree forcible rape with one exception. The trial court, in an accurate statement of the law as it related to the evidence presented, added language from this Court\u2019s decision in State v. Moorman, namely: \u201cForce and lack of consent are implied in law if at the time of the vaginal intercourse the victim is sleeping or similarly incapacitated.\u201d 320 N.C. at 392, 358 S.E.2d at 506.\nThe term \u201cimplied in law\u201d means \u201c[i]mposed by operation of law and not because of any inferences that can be drawn from the facts of the case.\u201d Black\u2019s Law Dictionary 770 (8th ed. 2004). Thus, in the context of the case at hand, force and lack of consent were established as a matter of law once the State proved beyond a reasonable doubt that the victim was sleeping or similarly incapacitated at the time of the vaginal intercourse.\nBased upon the evidence presented, the jury was called upon to decide who was telling the truth about the victim\u2019s being asleep when vaginal intercourse was initiated. \u201c[I]t is the province of the jury ... to assess and determine witness credibility.\u201d State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002), cert. denied, 537 U.S. 1133 (2003). We find that there is a reasonable likelihood the jury believed that if they credited the victim\u2019s testimony, then, as a matter of law, force and lack of consent existed. Consequently, the jury would then impermissibly find that the State had proved the elements of second-degree rape and that the defendant was guilty. It is critical that the jury not stop its inquiry upon finding the victim\u2019s version of the events was more believable than defendant\u2019s. A jury in a criminal prosecution finding, by the greater weight of the evidence, that the victim\u2019s account is true is inadequate. Because the burden of proof is beyond a reasonable doubt, if properly instructed, the jury could believe the victim\u2019s version of the events more likely than not transpired, yet still acquit the defendant because of a reasonable doubt.\nForce and lack of consent can only be implied in law if the State proves, beyond a reasonable doubt, that the victim was sleeping at the time of the vaginal intercourse. Because, in the case at hand, the jury\u2019s determination that the victim was sleeping satisfied two elements of the crime, whether the victim was asleep is the determinative fact in question and the crux of the State\u2019s prosecution. Accordingly, when a jury\u2019s role becomes so limited in a criminal prosecution, it is imperative that the jurors be instructed that they must find the solitary fact, which satisfies multiple elements of the crime, beyond a reasonable doubt. Thus, there is a reasonable likelihood that the jury misapplied the instruction in this case because it was not informed it had to find the basic fact of sleeping beyond a reasonable doubt.\nWhen considering the context of the instructions as a whole, we acknowledge that the trial court did instruct the jury that in order to find the defendant guilty, the State must prove the three elements of second-degree rape beyond a reasonable doubt. However, those statements were not specifically tailored to the disputed fact of sleeping.\nThe trial court\u2019s jury instruction did not clearly emphasize the State\u2019s burden to prove beyond a reasonable doubt that the victim was asleep, thus satisfying the force and lack of consent elements of second-degree rape under N.C.G.S. \u00a7 14-27.3(a)(1). There is a reasonable likelihood that the jury applied the instruction in a manner that impermissibly and unconstitutionally lessened the State\u2019s burden of proof. Even if inadvertent, the trial court\u2019s failure to properly instruct the jury constitutes error and warrants a new trial.\nMODIFIED AND AFFIRMED.\nJustice TIMMONS-GOODSON did not participate in the consideration or decision of this case.\n. Our decision today does not call into question this Court\u2019s well-reasoned opinion in Moorman which stated: \u201c[S]exual intercourse with [a sleeping or similarly incapacitated] victim is ipso facto rape.\u201d 320 N.C. at 392, 358 S.E.2d at 506.", "type": "majority", "author": "BRADY, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by John G. Barnwell, Assistant Attorney General, for the State-appellant.", "Bruce T. Cunningham, Jr. and Joseph Blount Cheshire, V, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM BEACH SMITH\nNo. 346A05\n(Filed 3 March 2006)\nRape\u2014 second-degree \u2014 instruction\u2014proof beyond a reasonable doubt that victim was sleeping\nThe Court of Appeals did not err in a second-degree rape case by granting defendant a new trial although the decision should have been based on the trial court\u2019s failure to instruct that the State must prove beyond a reasonable doubt that the victim was sleeping, rather than focusing on the trial court\u2019s additional instruction that force and lack of consent are implied in law if at the time of the vaginal intercourse the victim was sleeping or similarly incapacitated, because: (1) the trial court\u2019s jury instruction did not clearly emphasize the State\u2019s burden to prove beyond a reasonable doubt that the victim was asleep, thus satisfying the force and lack of consent elements of second-degree rape under N.C.G.S. \u00a7 14-27.3(a)(l); and (2) there is a reasonable likelihood that the jury applied the instruction in a manner that impermissibly and unconstitutionally lessened the State\u2019s burden of proof.\nJustice Timmons-Goodson did not participate in the consideration or decision of this case.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 170 N.C. App. 461, 613 S.E.2d 304 (2005), reversing a judgment entered 15 January 2004 by Judge Evelyn W. Hill in Superior Court, Wake County, and remanding for a new trial. Heard in the Supreme Court 14 November 2005.\nRoy Cooper, Attorney General, by John G. Barnwell, Assistant Attorney General, for the State-appellant.\nBruce T. Cunningham, Jr. and Joseph Blount Cheshire, V, for defendant-appellee." }, "file_name": "0341-01", "first_page_order": 413, "last_page_order": 421 }