Before Judge Robert D. Rouse, Jr., presiding at the 22 September 1980 Session of Onslow Superior Court defendant was tried on an indictment charging him with a first degree sexual offense.*fn1 He was convicted of first degree sexual offense and sentenced to life imprisonment. He appeals.
Exum, Justice. Justice Mitchell took no part in the consideration or decision of this case.
The question dispositive of this appeal is whether the evidence was sufficient to be submitted to the jury on the question of defendant's guilt of a first degree sexual offense. We conclude that it was not.
The state's evidence consisted almost entirely of the testimony of Timothy Moore. According to Moore, he first met defendant on 30 May 1980 at a "Welcome Aboard" meeting upon Moore's arrival at Camp Lejeune. At the time of trial Moore was a twenty-one-year-old sergeant in the Marine Corps with three years and two months' service in the Corps. During the Welcome
Aboard meeting, defendant invited Moore out that evening to drink beer and shoot pool. Moore agreed, and the two spent the evening together. They both returned to defendant's home where defendant grabbed Moore and bit him on the neck. Upset, Moore left defendant's home on foot. Shortly thereafter, defendant approached Moore in defendant's vehicle and gave Moore a ride to Moore's vehicle. During the ride Moore expressed concern about the bite on his neck and wondered out loud what he would tell his wife. When Moore arrived home he explained to his wife what had happened with defendant.
On 1 July 1980, Moore saw Booher again on base and Booher apologized for what had happened earlier. On 16 July 1980, two days after Moore's wife had given birth to a child and was still hospitalized, defendant called Moore and invited him out. Upon defendant's assurance that "there would be no funny business," Moore agreed to go. They rode around, drank beer, smoked marijuana, got together with other friends of defendant and finally arrived at defendant's home. Defendant asked Moore to remove his clothes, and Moore refused. Defendant told Moore that if he didn't disrobe, defendant would report Moore to military officials as being a homosexual. Moore left, arriving at his home at approximately 1 a.m.
After Moore arrived home, defendant drove up. Moore turned on his tape recorder. Defendant came to the door and Moore invited him inside "for two reasons. Number one, I wanted documentation that I was not having an affair with him, and two, I just, you know, wanted to talk with him and maybe try to straighten things out a little bit. When he came in the tape recorder was playing."
A transcription of the tape-recorded conversation that ensued between Moore and defendant was offered into evidence. According to the transcription, much of what defendant said in response to Moore's statements was inaudible. In essence, the transcription shows that Moore invited defendant into his home by saying, "Let's rap man, let's talk. Hey, come here. I wanna see what I can do for ya, man. . . . I'd like to talk with ya, I'd like to talk with ya." Defendant replied, "You want to hurt me." Moore assured defendant that he did not want to hurt him but only wanted to talk. The two talked at length. The conversation dealt
with: defendant's concern that Moore was going to hurt him and Moore's protestations to the contrary; the prior encounters of the two men; homosexual relationships in general; defendant's expressions of affection for and attempts at physical contact with Moore and Moore's verbal protestations; the relationship between love and hate; and the introduction of a knife belonging to Moore. According to Moore, the conversation took place while the men "were sitting on . . . a small couch, called a loveseat." During it, defendant "was trying to slide his hands and arms . . . above my waist and on my shoulders."
The transcript shows that the first discussion regarding the knife proceeded as follows:
M If you need me, kill me.
M Jerry Booher, are you gonna kill me with that knife ?
B Are you gonna give me what I want?
B Are you gonna give me what I want?
M I can't give you what you want, whether you're holding that knife or not.