State v. JonesAnnotate this Case
283 S.E.2d 483 (1981)
STATE of North Carolina v. Anthony Dwayne JONES.
Supreme Court of North Carolina.
November 3, 1981.
*485 Rufus L. Edmisten, Atty. Gen. by Guy A. Hamlin, Asst. Atty. Gen., Raleigh, for the State.
*486 James R. Parish, Asst. Public Defender, Fayetteville, for defendant-appellant.
Defendant's first three assignments of error are based on the search of his car and the introduction into evidence of a shotgun seized during that search. These assignments will be considered together.
Defendant contends the shotgun was inadmissible on grounds it was seized in violation of the Fourth Amendment to the United States Constitution. The Fourth Amendment, as one of the original eight substantive amendments forming the Bill of Rights, does not limit any power or prohibit any action of the State of North Carolina, or any of its agents. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672 (1833). The assignments of error more properly pose an alleged violation of the due process clause of the Fourteenth Amendment, which does prohibit states from participating in searches and seizures which violate the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
The initial question is whether the Fourth Amendment, as incorporated by the due process clause of the Fourteenth Amendment, applies to the actions of Sergeant Welch in instructing defendant to halt and step back from the Toyota with his hands in plain view. Defendant was not free to leave when Sergeant Welch directed him to stop. "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 903 (1968). We hold the actions of Sergeant Welch constituted a seizure within the ambit of the Fourth Amendment.
The Fourth Amendment requires seizures to be reasonable. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 2578, 45 L. Ed. 2d 607, 614 (1975). The reasonableness of seizures less intrusive than traditional arrests depends on a balance between the public interest and the individual's right to personal security. Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S. Ct. 330, 332, 54 L. Ed. 2d 331, 336 (1977). Brief detention for questioning need not be based on probable cause to believe an individual is involved in criminal activitythe standard for a traditional arrest. Instead, the detention may be grounded on "a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357, 362 (1979).
Sergeant Welch's initial stopping of the defendant satisfied this constitutional requisite. His action was based on several factors. He observed an unoccupied vehicle parked in the travel lane of a public road at 11:45 p. m. with its lights off and motor running. While turning to investigate, he noticed a man running from a closed business toward the car. The man opened the car door and placed something on the back seat. These objective facts support a reasonable suspicion that the individual was involved in criminal activity. Where the totality of circumstances affords an officer reasonable grounds to believe criminal activity is afoot, he may temporarily detain a suspect. State v. Buie, 297 N.C. 159, 162, 254 S.E.2d 26, 28, cert. denied, 444 U.S. 971, 100 S. Ct. 464, 62 L. Ed. 2d 386 (1979); State v. Streeter, 283 N.C. 203, 210, 195 S.E.2d 502, 507 (1973). See State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973), for detention of suspects based on grounds similar to those in the case sub judice. Therefore, Sergeant Welch did not violate defendant's constitutional rights by instructing him to halt and step away from his car.
Since our analysis is based on the initial detention of defendant and whether there was a reasonable suspicion he was involved in criminal activity, we find it unnecessary to determine whether Sergeant Welch had probable cause to arrest him. We therefore have no occasion to consider whether Sergeant Welch searched the interior of defendant's vehicle incident to a lawful arrest within the scope of the recent decision of New York v. Belton, ___ U.S. ___, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).
*487 After Sergeant Welch approached defendant's car, he shined his flashlight into the back seat. He observed the sawed-off butt of a shotgun protruding from a brown paper bag wedged between the seat cushions. Possession of such a weapon is unlawful. G.S. 14-288.8(c)(3). The shotgun thus constituted contraband, which may be seized by an officer who has observed it in plain view from a vantage point he has legally obtained. Harris v. United States, 390 U.S. 234, 236, 88 S. Ct. 992, 993, 19 L. Ed. 2d 1067, 1069 (1968); State v. Smith, 289 N.C. 143, 150, 221 S.E.2d 247, 252 (1976). Since Sergeant Welch had the authority to detain defendant temporarily, he violated no constitutional rights in seizing an illegal weapon he observed upon approaching defendant.
The trial court's conclusions of law were thus supported by the evidence, and the court did not err in denying defendant's motion to suppress the shotgun.
Defendant abandoned his fourth and fifth assignments of error.
Defendant's sixth and seventh assignments are based on the failure of the trial court to submit second degree rape and second degree sexual offense as permissible verdicts. These issues will be consolidated for discussion.
The elements of first degree rape as applicable to this case are as follows: (1) vaginal intercourse, (2) against the will and without the consent of the victim, (3) using force sufficient to overcome any resistance of the victim, (4) effected through the employment or display of a dangerous or deadly weapon. G.S. 14-27.2(a)(2)a. Second degree rape includes the first three of these elements, but there is no requirement of use of a dangerous or deadly weapon. G.S. 14-27.3(a)(1). The elements of first degree sexual offense are (1) a sexual act, (2) against the will and without the consent of the victim, (3) using force sufficient to overcome any resistance of the victim, (4) effected through the employment or display of a dangerous or deadly weapon. G.S. 14-27.4(a)(2)a. Second degree sexual offense includes the first three of these elements, but there is no requirement of use of a dangerous or deadly weapon. G.S. 14-27.5(a)(1).
Defendant contends that since his witness John Danny Sparks testified that he had defendant's shotgun while defendant was with Ms. Whittaker, the court should have given an instruction on second degree rape and second degree sexual offense. This argument is based on State v. Drumgold, 297 N.C. 267, 254 S.E.2d 531 (1979). Defendant's reliance on Drumgold is misplaced.
In Drumgold, we granted a new trial because the trial court had erroneously failed to instruct the jury regarding second degree rape. Drumgold had presented evidence that he did not have a gun on the day in question. This contradicted the evidence of the State's witness that he used a pistol to overcome her resistance. We ruled that although a "trial court need not submit lesser degrees of a crime to the jury `when the State's evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime,'" the lesser included offense should have been submitted because there was conflicting evidence on an essential element of the crime charged. Id. at 271, 254 S.E.2d at 533.
An implicit underlying factor in the decision in Drumgold was that the lesser included offense was supported by the evidence. The defendant had "threatened to kill" the victim, and "she had what appeared to be an abrasion on the left side of her face." Id. at 271-72, 254 S.E.2d at 533. From this evidence the jury could have inferred the victim submitted to Drumgold because of fear or duress. Submission to sexual intercourse because of fear, duress or force other than the display or employment of a dangerous or deadly weapon is second degree rape. G.S. 14-27.3(a)(1).
The rule that no instruction on lesser included offenses is required unless the lesser offense is supported by evidence has long been the law in North Carolina. "The trial court is required to submit lesser included degrees of the crime charged in the *488 indictment when and only when there is evidence of guilt of the lesser degrees." State v. Simpson, 299 N.C. 377, 381, 261 S.E.2d 661, 663 (1980); State v. Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931). The presence of such evidence is the determinative factor. 299 N.C. at 381, 261 S.E.2d at 663; State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954).
The principle articulated in Drumgold is subject to this long-standing rule. Where there is conflicting evidence as to an essential element of the crime charged, the court should instruct the jury with regard to any lesser included offense supported by any version of the evidence. If the lesser included offense is not supported by the evidence, it should not be submitted, regardless of conflicting evidence.
To illustrate, suppose both the State's and defendant's evidence in a first degree rape prosecution shows defendant had a deadly weapon. Defendant's sole defense is that the victim consented. Even though there is conflicting evidence as to an essential element of the crime charged, i. e., consent, the court should not give an instruction on second degree rape. No evidence indicates the defendant used any force other than a deadly weapon to overcome resistance of the victim. See State v. Hunter, 299 N.C. 29, 261 S.E.2d 189 (1980).
The result is no different here. Although evidence conflicts on the issue of the presence of the shotgun, there is no evidence defendant used any force other than the shotgun. "I willingly had oral sex with Mr. Jones in the car knowing that he had a weapon, yes." If the jury found defendant did not have the shotgun, it would have to find him not guilty on grounds the victim consented. There is no evidence of force such as that shown by the abrasions and threats in Drumgold. 297 N.C. at 271-72, 254 S.E.2d at 533.
The proposition that the jury could believe all, part or none of the evidence is of no avail to the appellant here. "[T]he jury need not accept all or none of either the state's or the defendant's evidence. It may believe only part of the evidence on either or both sides." State v. Faircloth, 297 N.C. 388, 398, 255 S.E.2d 366, 372 (1979) (Exum, J., dissenting). No matter how much of either side's evidence the jury believed, it could not arrive at a conclusion that defendant raped the victim using force other than the shotgun. Such a result is neither founded in the evidence nor logically inferable from the evidence. No combination of the evidence offered by both sides allows such a determination. A jury finding that defendant raped the victim using force other than the shotgun could only be reached by conjecture, speculation or surmise. Hence the trial judge was not required to submit lesser included offenses.
Defendant's eighth and final assignment of error is that the convictions of rape and kidnapping merged and he could not be punished for both under the double jeopardy clause of the Fifth Amendment, made applicable to the states by the due process clause of the Fourteenth Amendment. Defendant's contention has no merit. This very question was answered in State v. Williams, 295 N.C. 655, 249 S.E.2d 709 (1978). G.S. 14-39 creates only a single offense of kidnapping, and the absence of a sexual assault is a mitigating rather than aggravating factor and results in a lesser rather than more severe sentence. Id. at 669, 249 S.E.2d at 719. Therefore, there is no violation of the double jeopardy clause in considering rape as part of the crime of kidnapping and as a crime in itself.
Our review of the record impels the conclusion that defendant has had a fair trial free from prejudicial error. The verdicts and judgments must therefore be upheld.