State v. HallState v. Hall
- Reporters:
- Before:
- Eagles, Wells, Greene
EAGLES, Judge.
At the outset, we note that this appeal is subject to dismissal for failure to follow the Rules of Apрellate Procedure. See Marsico v. Adams, 47 N.C.App. 196, 266 S.E.2d 696 (1980). Rule 9 requires that exceptions appear in the record in the manner provided for in Rule 10. Rule 10(b)(1) states that exceptions “shall be set out immediately following the record of judicial action to which it is addressed.” The purpose of the rule is to make appellate review more effective by narrowing the scope of inquiry to, and providing a visible reference point in the record for, the particular judiciаl action which the appellant assigns as error. See Darden v. Bone, 254 N.C. 599, 119 S.E.2d 634 (1961); Commentary to Rule 10(b)(1). In all but one of his assignments of error, defendant has failed to make clear reference in the record or transcript of the particular actiоn complained of. Nevertheless, pursuant to Rule 2, we elect to address the merits of his appeal.
After carefully examining and considering each of defendant‘s assignments of error, we hold that he received a fair triаl free of prejudicial error.
I
Defendant‘s first assigns as error the trial court‘s admission of evidence of his 1977 conviction for assault with intent to rape.
It is well established that extrinsic evidence of another offense is not admissible tо show the character of the accused or his propensity to commit the crime with which he is charged. State v. Searles, 304 N.C. 149, 282 S.E.2d 430 (1981);
In cases involving sexual offenses, our courts have been liberal in construing the exceptions to the general rule that evidence that defendant committed another, separate offense is inadmissible. State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987). Whether a defendant‘s previous conviction for a sexual offense is pertinent in his prosecution for an independent sexual crime depends on the facts in each case, State v. Shane, 304 N.C. 643, 285 S.E.2d 813 (1982), and, among other things, the availability of other forms of proof. See State v. May, supra;
Defendant admits that his identity and the fact of the assault were not seriously in issue. Therefore, his intent was the central question during trial. Because it involves a determination of the defendant‘s state of mind, the question of intent usually must be inferred from circumstantial evidence. State v. Riggsbee, 72 N.C.App. 167, 323 S.E.2d 502 (1984). Since the victim managed to escape before the offense was completed, evidence of defendant‘s intent was necessarily limited. Therefore, the evidence of defendant‘s prior conviction was probative оf his intent in assaulting Ms. Midyette. See State v. Searles, supra; State v. May, supra; State v. Moser, 74 N.C.App. 216, 328 S.E.2d 315 (1985); State v. Bagley, 39 N.C.App. 328, 250 S.E.2d 87 (1979); 77 A.L.R.2d 841 (1961) and Later Case Service. But cf., State v. Gammons, 258 N.C. 522, 128 S.E.2d 860 (1963), overruled on other grounds, State v. Hunt, 283 N.C. 617, 197 S.E.2d 513 (1973); State v. Alston, 74 N.C.App. 320, 327 S.E.2d 927 (1985).
Defendant also argues that the age of his prior conviction makes it too remote to be admissible under Rule 404(b). While remoteness of another offense is relevant to its admissibility to show modus operandi or a common scheme or plan, see State v. Riddick, 316 N.C. 127, 340 S.E.2d 422 (1986), remoteness usually goes to the weight of the evidence, not its admissibility. State v. Brown, 280 N.C. 588, 187 S.E.2d 85, cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed.2d 121 (1972). Under these facts, we believe the age of defendant‘s prior conviction affects only its weight, not its admissibility.
Even if evidence of another offense is admissible under Rule 404(b), the trial court must nevertheless exclude it if it determines that its probative value is substantially outweighed by the danger of unfair prejudice. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986);
II
Defendant also argues that the evidence of his intent to rape was insufficient as a matter of law and that the trial court should have granted his motion to dismiss. We disagree. In ruling on a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference which can be drawn from the evidence. State v. Covington, 315 N.C. 352, 338 S.E.2d 310 (1986). If, in so doing, there is substantial evidence on each element of the charged offense, the case should be submitted to the jury. State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973). There is substantial evidence in the record here that defendant intended to rape his victim.
Before a defendant may be convicted of attempted rape, the State must prove, beyond a reasonablе doubt, that the defendant: (1) had the specific intent to rape the victim, and (2) committed an act which goes beyond mere preparation but falls short of the actual commission of the rape. State v. Boone, 307 N.C. 198, 297 S.E.2d 585 (1982). Since defendant‘s assault clearly goes beyond mere preparation, the only remaining question is whether the evidence is sufficient to show the requisite intent. To show an intent to rape, the State must prove that defendant intended to have sexual interсourse with the victim notwithstanding any resistance on her part. State v. Edmondson, 302 N.C. 169, 273 S.E.2d 659 (1981). It is sufficient if defendant has the intent at any point during the assault and it need not be shown that he made an actual, physical attempt to have intercourse. State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971), cert. denied, 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed.2d 112 (1974).
Defendant cоntends, however, that the evidence can equally support a finding that he intended to rob Ms. Midyette or commit a sexual offense other than rape. Our courts have rejected similar arguments before, holding that sexually motivated assaults may give rise to an inference that
The evidence here shows that defendant, who had just been released from prison after serving a sentence for assаult with intent to rape, wrapped his arm around the victim‘s neck, pulled her shirt down, touched her breasts with his hands, and physically abused her. In addition, defendant‘s lack of interest in her wallet, her car or its contents, indicate that robbery was nоt his objective. We hold that this evidence is sufficient to allow a jury to infer that defendant intended to rape his victim.
III
Next, defendant contends that the trial court committed reversible error when questioning the jurors about a newspaрer article. Before the jury retired to deliberate, the court, at the request of defendant‘s counsel, addressed the jury as follows:
It‘s been called to my attention, ladies and gentlemen, that in yesterday afternoon‘s Raleigh Timеs there was a story concerning the fact that I did not permit the alleged victim in a previous rape case from testifying as to whatever went down in that occurrence.
Did any of you all read that article? Real sure?
None of the jurors indicated that they had read the article and the court admonished them that, even if they had, they should not consider it in determining the case. Defendant contends that the trial court‘s questioning amounted to a comment on the weight of the evidence, informed the jury of the article‘s contents to his prejudice, and damaged his credibility. We disagree.
By his failure to object to the questioning or move for a mistrial, defendant has failed to preserve this issue for appeal. Even had he done so, this аrgument would be without merit. While a new trial may be required when information from newspaper accounts reaches the jurors, see State v. Reid, 53 N.C.App. 130, 280 S.E.2d 46 (1981), there is no evidence that any of the jurors read the article. The court‘s statements imparted very littlе information and did not relate it to this particular trial or the defendant. Moreover, we see no possible form of prejudice from the questioning nor do we see how it can be construed as a comment on the evidence.
IV
Defendant‘s last assignment of error is the trial court‘s failure to find certain statutory mitigating factors in sentencing. At the sentencing hearing, defendant submitted the results of a psychological evaluation which stated that defendant‘s IQ was 79 аnd that he was “functioning at a below average level in terms of intelligence.” The report also stated that “he is below average in his ability to see causes and consequences of behaviors.” Defendant argues that the report required the trial court to find the mitigating factors provided for in
Where the evidence in support of a mitigating factor is substantial, uncontradicted, and credible, the trial court must find it. State v. Milam, 65 N.C.App. 788, 310 S.E.2d 141 (1984). The defendant, however, bears the burden of showing that the evidence regarding the existence of the factor “so clearly establishes the fact in issue that no reasonable inference to the contrary can be drawn.” State v. Jones, 309 N.C. 214, 219-20, 306 S.E.2d 451, 455 (1983). The trial court‘s determination under
We find that defendant‘s remaining argument regarding the admissibility of his prior conviction under
No error.
WELLS and GREENE, JJ., concur.