Before Judge Coy E. Brewer, Jr., presiding at the 6 January 1981 Session of Robeson Superior Court, and a jury, defendants were tried on indictments proper in form*fn1 and were found guilty of first degree sexual offenses. Each defendant received the mandatory sentence of life imprisonment and appeals of right pursuant to G.S. 7A-27(a).
Both defendants in this consolidated appeal challenge the sufficiency of the state's evidence on each element of a first degree sexual offense. We conclude the evidence was sufficient and the trial court properly denied defendants' motions to dismiss for evidentiary insufficiency.
At trial, the victim and the state's principal witness, John Oliver, a 17-year-old resident of Florida, testified as follows:
He was arrested for the larceny of gasoline on I-95 in Robeson County on Tuesday, 16 September 1980. He was placed in a small cell at the Robeson County jail with three other young offenders -- defendant Galbreath, defendant Locklear, and Curtis Malloy. The cell was locked for the night at 9:00 p.m. Galbreath told Oliver to perform fallatio on Galbreath. Oliver refused, and Galbreath yelled to Locklear to "get him." Locklear hit Oliver on the foot with a belt and buckle. Oliver again refused, so Locklear grabbed him around the neck in a "sleeper" hold so that he could not breathe momentarily. Then Locklear released Oliver and asked, "Are you going to do it now?" Oliver replied, "Yes, I guess I have to now, or you're going to kill me." Galbreath had earlier told him, "If you don't do it, I'm going to throw you off this top bunk and make you bust your head in the toilet and everybody will think you died as a result of rolling off the top bunk and busting your neck on the toilet that night."
After Locklear released him, Oliver climbed back on the bunk where he was joined by Galbreath. Oliver performed fellatio on Galbreath. When Galbreath jumped down from the bunk Malloy followed him and Oliver performed fellatio on Malloy. When Locklear jumped on the bunk Oliver refused, and Locklear struck
him with a shoe across his leg. Oliver then performed fellatio on Locklear. Thereafter all three cellmates required Oliver to perform fellatio on them a second time that night.
The following day, Wednesday, 17 September 1980, a fifth person, Christopher McCallum, was added to the cell. Galbreath and Locklear again required Oliver to perform fellatio on them, but Malloy and McCallum did not participate.
On Thursday, 18 September 1980, Oliver was forced to fight with another inmate, "Stoney," for thirty to forty-five minutes. He suffered swelling and abrasions of his face, nose, left eye, and lips. Then he was compelled to wash the clothes of other inmates. Subsequently, while showering after the fight he was attacked by Locklear who pushed him in the corner and turned on the hot water all the way. When Oliver pushed him out of the shower Locklear responded by hitting him in the face five times causing Oliver's eye to swell.
Although trustees were present and jailers came through the cell block three or four times during the days he was in jail, Oliver said nothing to them of the various assaults because he was afraid and because he did not believe the jailer would move him out of the cell. His only contact with the jailers was in the presence of other inmates. He performed the acts of fellatio because "they threatened to kill me."
Oliver was taken from the jail on Friday, 19 September 1980, to go to court. After arriving at the courthouse he called to Kenneth Sealy, an officer with the Robeson County Sheriff's Department, who had him taken out of the jail box. Oliver told Sealy and Deputy Sheriff Lum Edwards about the sexual and other assaults.
Sealy testified that he noted Oliver's swollen nose, black eye, scratched and bruised chest and back. The mark on his chest was "reddish looking." Sealy contacted Chief Jailer ...