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North Carolina v. Berkley

Filed: March 2, 1982.

STATE OF NORTH CAROLINA
v.
REGINAL CORNELIUS BERKLEY



Appeal by defendant from Tillery, Judge. Judgments entered 11 March 1981 in Superior Court, Columbus County. Heard in the Court of Appeals 5 January 1982.

Whichard, Judge. Judges Clark and Becton concur.

Whichard

By his first and second assignments of error, defendant argues the court erred in refusing to dismiss all charges at the close of the State's evidence and the close of all the evidence. Only the ruling made at the close of all evidence is subject to review. State v. Hough, 299 N.C. 245, 262 S.E.2d 268 (1980).

As to armed robbery and first-degree sexual offense, defendant was acquitted of these crimes. He was convicted of the lesser crimes of common law robbery and second-degree sexual offense; and these convictions render harmless any error with respect to the greater crimes, absent some showing that the verdicts of guilty as to the lesser crimes were affected thereby. State v. Casper,

256 N.C. 99, 122 S.E.2d 805 (1961), cert. denied, 376 U.S. 927, 11 L. Ed. 2d 622, 84 S. Ct. 691 (1964); State v. DeMai, 227 N.C. 657, 44 S.E.2d 218 (1947); State v. Wynn, 25 N.C. App. 625, 214 S.E.2d 274, cert. denied, 288 N.C. 252, 217 S.E.2d 677 (1975); State v. Sallie, 13 N.C. App. 499, 186 S.E.2d 667, cert. denied, 281 N.C. 316, 188 S.E.2d 900 (1972); State v. Keyes, 8 N.C. App. 677, 175 S.E.2d 357, cert. denied, 277 N.C. 116 (1970). No such showing has been made.

As to common law robbery, defendant contends the evidence is insufficient because it failed to establish that he subjected Memory to threats of harm if Memory did not part with his money. He relies on his testimony and Memory's testimony that defendant said he took the money "for insurance that [Memory] would show up the next day" to prove that (1) he did not threaten or intend to harm Memory if Memory refused to part with the money, and (2) Memory did not part with the money as a result of his threats or from fear of harm.

Memory's testimony, however, indicated that he feared for his life and safety throughout the incident with defendant. Memory testified that defendant left him with two dollars, but that "he could have had it if he had wanted to." The entirety of Memory's testimony clearly permitted the inference that he parted with the $25 because of fear for his life and safety. "Intent must . . . be determined from all the facts and circumstances. Absent direct evidence, specific intent is 'ordinarily to be proved by facts and circumstances from which it may be inferred and . . . the jury may consider the acts and conduct of the defendant and the general circumstances existing at the time. . . .'" State v. Whitaker, 55 N.C. App. 666, 286 S.E.2d 640, 641-42 (1982). The acts and conduct of defendant, considered in light the general circumstances existing at the time, permitted the jury to infer that defendant took money from Memory "against his will, by . . . putting him in fear." State v. Moore, 279 N.C. 455, 457, 183 S.E.2d 546, 547 (1971). The evidence thus was sufficient to sustain the conviction for common law robbery.

As to second-degree sexual offense, the evidence is sufficient to sustain the conviction. Defendant argues there is no evidence as to the use of force, a necessary element of the offense; but the evidence refutes his contention. Memory testified that defendant

kidnapped and threatened to kill him, that a knife and a shotgun were in defendant's car, and that he ran away at one point but the defendant caught him. Memory further testified:

And he took me back to the car. He had hold of both my arms, and walked me back to the car. I was still scared. We got in the car, and I looked at him, and he looked at me. I told him that if he wouldn't kill me that I would do anything he wanted me to do. He started kissing me and I scrunched away. And then he kept on. After I had just went ahead and let him do what he wanted to. . . .

I never consented to the oral sex where I told him to go ahead and do what he had to do, to let me live. I did not want him to perform the act on me. The gun and ...


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