State v. HallAnnotate this Case
238 S.E.2d 473 (1977)
293 N.C. 559
STATE of North Carolina v. Rosco William HALL.
Supreme Court of North Carolina.
November 11, 1977.
*474 Atty. Gen. Rufus L. Edmisten, Senior Deputy Atty. Gen. R. Bruce White, Jr., and Asst. Atty. Gen. Guy A. Hamlin, Raleigh, for the State.
Jim R. Funderburk, Gastonia, for defendant-appellant.
Defendant alleges that the trial court erred in failing to grant defendant's motion for nonsuit at the close of the State's evidence and at the close of all the evidence.
When there is a motion for nonsuit in a criminal case, the evidence is to be *475 considered in the light most favorable to the State, and the State is entitled to every reasonable inference of fact deducible from the evidence. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975); State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971). "[T]he court is not concerned with the weight of the testimony but only with its sufficiency to carry the case to the jury and sustain the indictment. . . ." State v. McNeil, supra, at 162, 185 S.E.2d at 157. See State v. Primes, 275 N.C. 61, 165 S.E.2d 225 (1969). The question for the court is whether there is substantial evidence of each essential element of the crime charged, or of a lesser offense included therein, and of the defendant's being the perpetrator of such offense. If so, the motion is properly denied. State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971); State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971).
Defendant in present case was charged with second degree rape. "Rape is the carnal knowledge of a female person by force and against her will. The force necessary to constitute rape need not be physical force. Fear, fright, or coercion may take the place of force." State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975). See State v. Flippin, 280 N.C. 682, 186 S.E.2d 917 (1972); State v. Primes, supra.
The crime of rape was divided into two degrees by the 1973 amendment to G.S. 14-21, which provides that second degree rape shall be a lesser included offense of first degree rape. The statute says:"Rape; punishment in the first and second degree.Every person who ravishes and carnally knows any female of the age of 12 years or more by force and against her will, or who unlawfully and carnally knows and abuses any female child under the age of 12 years, shall be guilty of rape, and upon conviction, shall be punished as follows: (a) First-Degree Rape (1) If the person guilty of rape is more than 16 years of age, and the rape victim is a virtuous female child under the age of 12 years, the punishment shall be death; or (2) If the person guilty of rape is more than 16 years of age, and the rape victim had her resistance overcome or her submission procured by the use of a deadly weapon, or by the infliction of serious bodily injury to her, the punishment shall be death. (b) Second-Degree RapeAny other offense of rape defined in this section shall be a lesser-included offense of rape in the first degree and shall be punished by imprisonment in the State's prison for life, or for a term of years, in the discretion of the court."
See State v. Goss, 293 N.C. 147, 235 S.E.2d 844 (1977).
Defendant argues that, according to the victim's testimony, no physical force was ever directly used against her, and, secondly, that the victim offered no resistance to defendant's advances.
The victim testified that defendant grabbed her around the neck and choked her. He held her neck while he backed her through the living room, kitchen, and into the bedroom. On cross-examination, the victim said: "When I fell down on the bed, his hand stayed on my neck. I passed out; I couldn't get my breath; and he was choking me; and it was cutting my wind off. I was scared to death." This testimony was sufficient evidence of the force used against the victim.
Defendant further contends that, other then asserting, "I don't want you to do this" several times, the victim offered no additional resistance to defendant's advances. However, not only did the victim say several times, "I don't want you to do this," but she also cried and screamed when defendant's desires became clear to her. In addition, defendant exerted physical force against her from the moment she attempted to escape via the front door. The victim said on direct examination: "I didn't ever try to fight Tracy; I just lay there and looked at the ceiling. I didn't fight him because I was afraid of him"; and, "I passed out because I guess I was just scared *476 to death and I was hurting too. . . . I was just scared and I don't remember."
It is true that the victim offered no physical resistance to defendant's attack. However, evidence of physical resistance is not necessary to prove lack of consent in a rape case. In State v. Primes, 275 N.C. 61, 67, 165 S.E.2d 225, 229 (1969), where a defendant made similar contentions, this Court said: "While consent by the female is a complete defense, consent which is induced by fear of violence is void and is no legal consent. [Citation omitted.]" And in State v. Carter, 265 N.C. 626, 144 S.E.2d 826 (1965), the Court, quoting 1 Wharton's Criminal Law and Procedure (Anderson Ed. 1957), § 311, p. 649, said: "A consent obtained by use of force or fear due to threats of force is void, and the offense then rape." In both Primes and Carter the Court quoted with approval the following language from 44 Am.Jur., Rape, § 13, p. 910:"Consent of the woman from fear of personal violence is void. Even though a man lays no hand on a woman, yet if by an array of physical force he so overpowers her mind that she dares not resist, or she ceases resistance through fear of great harm, the consummation of unlawful intercourse by the man is rape. ."
See also State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969).
In present case, the victim testified that she had intercourse with defendant against her will. She said that she repeatedly told him that she did not want to have intercourse. When he advanced toward her she screamed and began crying. She testified that defendant grabbed her around the neck and choked her, and that this caused her to lose consciousness. Though defendant made no verbal threats to her, and though she offered no physical resistance, this is ample evidence to support the State's contention that the defendant had carnal knowledge of her by force and against her will. Hence, there was sufficient evidence to support the trial court's denial of the motion for nonsuit.
In his charge to the jury, the trial judge submitted the possible verdicts of second degree rape, assault with intent to commit rape, assault on a female and not guilty. Defendant's second assignment of error is based on the contention that the trial court erred in submitting to the jury the lesser offenses included within the charge of rape. He argues that all the State's evidence showed a completed act of intercourse, and thus that the only issues which should have been submitted to the jury were whether defendant was guilty of second degree rape or not guilty.
In State v. Armstrong, 287 N.C. 60, 65, 212 S.E.2d 894, 897-98 (1975), a factually similar case, Justice Huskins, speaking for the Court, said:"It should be noted that all of the evidence in this case reveals a completed act of sexual intercourse. The only dispute between the State and the defendant is whether the act was accomplished by consent or by force. Under those circumstances there was no necessity to submit the lesser included offenses of assault with intent to commit rape and assault on a female. Lesser included offenses must be submitted only when there is evidence to support them. State v. Watson, 283 N.C. 383, 196 S.E.2d 212 (1973); State v. Bryant, 280 N.C. 551, 187 S.E.2d 111 (1972). Submission of the lesser included offenses, however, was error favorable to the defendant and affords him no grounds for relief." (Emphasis added.)
Accord, State v. Jones, 287 N.C. 84, 214 S.E.2d 24 (1975); State v. Accor and State v. Moore, 281 N.C. 287, 188 S.E.2d 332 (1972); State v. Rogers, 273 N.C. 208, 159 S.E.2d 525 (1968). This assignment of error is overruled.
We have carefully examined the entire record and conclude that defendant received a fair trial, free from prejudicial error. The trial, verdict, and judgment must therefore be upheld.