State v. Harris

354 S.E.2d 222 (1987)

319 N.C. 383

STATE of North Carolina v. Alton Eugene HARRIS, Jr.

No. 743A85.

Supreme Court of North Carolina.

April 7, 1987.

*223 Lacy H. Thornburg, Atty. Gen. by William N. Farrell, Jr., Sp. Deputy Atty. Gen., Raleigh, for the State.

Ann B. Petersen, Chapel Hill, for defendant-appellant.

WEBB, Justice.

The defendant first assigns error to the denial of his motion to dismiss made pursuant to N.C.G.S. § 15-173 and N.C.G.S. § 15A-1227(a)(1) on the ground there was not sufficient evidence to sustain a conviction of felony murder. This Court in State v. McDougall, 308 N.C. 1, 301 S.E.2d 308 (1983), dealt with the sufficiency of the evidence to support a conviction of felony murder based on the underlying felony of attempted rape. In McDougall the evidence was that the victim's body was found on its back with the legs spread wide, her feet nearly up to her buttocks, knees raised and apart, and the victim's nightgown drawn up to her upper chest, exposing her left breast. Many of the wounds had been inflicted while the victim was in a prone position. The defendant was arrested shortly after the body was discovered and found to have blood on his clothes which was of the same type as that of the victim. This Court said, "These facts support a reasonable inference that McDougall caught Diane Parker in the yard, knocked or threw her to the ground on her back, pulled her nightgown up over her chest, *224 and parted her legs in an attempt to rape her. She resisted and fought back, and McDougall stabbed her to death. This evidence is sufficient to survive a motion for nonsuit on the theory of murder during an attempted rape."

The salient facts in McDougall are remarkably similar to the facts of this case. The body of each victim was found on its back. The legs of each victim had been spread apart. The nightgown of the victim in McDougall had been pulled up over the body. The sweat pants of Ms. Golkho had been removed. Panties were entwined within the sweat pants as if the sweat pants and panties were removed at the same time. Both victims had multiple stab wounds. The clothes of both defendants had blood on them of the same type as that of the victims. As in McDougall we hold the evidence in this case supports an inference that the defendant knocked or threw Ms. Golkho to the floor, forcibly removed her sweat pants and parted her legs in an attempt to rape her. It further supports the inference that she resisted and the defendant stabbed her to death. This is sufficient evidence to survive a motion to dismiss.

In order for a person to be found guilty of attempted first degree rape the State must prove that the accused had the intent to commit the first degree rape and committed an act that goes beyond mere preparation, but falls short of actual commission of the offense. State v. Boone, 307 N.C. 198, 297 S.E.2d 585 (1982). The defendant argues that there is not sufficient evidence for the jury to find beyond a reasonable doubt that the defendant intended to engage in vaginal intercourse with the victim by force and against her will. He argues that the only evidence of a sexual assault is the fact that the victim was found unclothed below the waist and her legs were sprawled apart at the time she was discovered. He admits that it is possible to infer that her sweat pants and panties were removed by force and that her legs were forced apart, but he argues these are not the only inferences that may be made. He argues further that in order to convict the defendant the jury has to make inferences on an inference which it cannot do. See State v. LeDuc, 306 N.C. 62, 291 S.E.2d 607 (1982) and State v. Fair, 291 N.C. 171, 229 S.E.2d 189 (1976). These contentions by the defendant were answered in McDougall. That case holds that evidence as to the position of the victim's legs and evidence of the removal of clothes from the lower part of the victim's body is sufficient with other evidence to be submitted to the jury on a charge of felony murder when the underlying felony is attempted rape. If we were to sustain this assignment of error we would have to overrule McDougall. The defendant's first assignment of error is overruled.

The defendant next argues that it was error for the superior court not to intervene ex mero motu and stop the prosecuting attorney from making a certain argument to the jury. No objection to the argument was made at the trial. The prosecuting attorney in recounting the evidence said that a male voice was heard saying "I don't want to hurt you. I want to show you something." There was no testimony that any male voice was heard saying "I want to show you something." The prosecutor then argued to the jury what could have happened in the apartment and used the words "I just want to show you something" to argue that the defendant wanted to show the victim sexual intercourse. Wide latitude is given to counsel in the argument of hotly contested cases. What constitutes an improper jury argument is ordinarily left to the sound discretion of the trial judge. State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970), rev'd on other grounds, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860, on remand, 279 N.C. 388, 183 S.E.2d 106 (1971). An argument in capital cases is subject to appellate review for the existence of gross improprieties which make it plain that the trial court abused its discretion in failing to correct the prejudicial matters ex mero motu. State v. Pinch, 306 N.C. 1, 292 S.E.2d 203 (1982).

In this case the prosecutor argued a sentence, "I want to show you something," which was not in evidence. This sentence *225 was not in itself particularly damaging to the defendant but the prosecutor then argued that it was intended to mean the defendant wanted to show the victim sexual intercourse. The prosecutor could just as well have argued from the statement, "I don't want to hurt you," which was in evidence, that the defendant wanted to have sexual intercourse. The jury knew that the prosecutor at this point in his argument was reconstructing what could have happened in the apartment. It was no more prejudicial for the prosecutor to argue as he did from the statement that was not in evidence than it would have been if he had argued from what had been introduced into evidence. We hold it was not such a gross impropriety that it was an abuse of discretion for the court not to intervene ex mero motu and stop this part of the argument. This assignment of error is overruled.

In the judgments of the Superior Court of Orange County we find

NO ERROR.