in the Court of Appeals 7 February 2018.
by defendant from judgment and order entered 6 October 2016
by Judge Lindsay R. Davis in Randolph County Nos. 15 CRS
53927-28; 15 CRS 54128 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Joseph E. Elder, for the State.
Richard J. Costanza, for defendant-appellant.
Wayne Gentle ("defendant") appeals from the trial
court's judgment entered upon jury verdicts finding him
guilty of first-degree forcible rape, first-degree forcible
sexual offense, second-degree kidnapping, and committing a
crime against nature. After careful review, we conclude that
defendant received a fair trial, free from prejudicial error.
Defendant has also filed a petition for writ of certiorari
requesting review of the trial court's order requiring
him to enroll in satellite-based monitoring ("SBM")
for the remainder of his natural life. However, defendant
failed to preserve his constitutional challenge to the SBM
order by raising the argument at trial. Accordingly, we deny
defendant's petition for writ of certiorari and dismiss
his appeal of the issue for lack of jurisdiction.
Factual and Procedural Background
August 2015, Jane Smith ("Smith"),  age 25, was
approximately seven months pregnant and living with her
boyfriend at his mother's house in Asheboro, North
Carolina. At around 4:00 p.m. on 28 August 2015, Smith had an
argument with her boyfriend's mother and left the
residence. She walked to a gas station to purchase
cigarettes. However, when Smith arrived to the gas station at
5:00 p.m., the clerk refused to sell cigarettes to her
because she did not have identification. Smith saw defendant
staring at her and asked him to purchase cigarettes for her;
he agreed. Defendant invited Smith to purchase crack cocaine,
and she did so. Smith and defendant met with a drug dealer,
purchased crack cocaine, and then walked to a shed at
defendant's parents' house, which contained a bed,
chairs, and a television. At the shed, Smith injected crack
cocaine, while defendant smoked it and some marijuana. After
using the drugs, Smith walked back to the gas station to meet
a friend. defendant subsequently returned to the gas station
and invited Smith to use more drugs; she agreed. They walked
to a parking lot surrounded by a dark, wooded area.
they were in the parking lot, defendant approached Smith from
behind and threatened her. Smith resisted and attempted to
flee, but defendant caught up to her near the stairs of the
parking lot. As Smith struggled to protect her stomach,
defendant dragged her down the stairs, forced her into the
woods, and removed her clothing. Defendant disrobed and
inserted his fingers into Smith's anus and vagina. She
told him to stop, but he did not. He then placed his penis in
her anus and vagina. Smith did not consent to these acts.
Afterwards, defendant repeatedly expressed concern that Smith
would contact law enforcement, but she assured him that she
would not, due to outstanding warrants for her arrest.
Instead, she asked if they could return to defendant's
shed. Defendant led Smith back to the shed, where they both
Smith awoke, defendant prevented her from leaving. She told
defendant that she needed to get to a hospital to receive
treatment for the scrapes she incurred during the struggle.
She changed clothes, and defendant allowed her to leave the
shed. He invited her back into the woods, but she declined.
Smith saw a neighbor, and as she approached him, defendant
fled into the woods. Smith asked the neighbor for something
to drink and contacted her father. Smith's father arrived
and took her to the hospital.
hospital, Smith informed medical staff that she had been
raped. She denied having used drugs. Smith also spoke with a
detective, who photographed her injuries. The next day, she
turned herself in for her outstanding warrants.
March 2016, defendant was indicted for first-degree rape,
kidnapping, crime against nature, and first-degree sexual
offense. Trial commenced on 4 October 2016 in Randolph County
Superior Court. Defendant did not present evidence but moved
to dismiss all charges at the close of the State's
evidence and at the close of all the evidence. The trial
court denied both motions.
October 2016, the jury returned verdicts finding defendant
guilty of first-degree rape, second-degree kidnapping, crime
against nature, and first-degree sexual offense. The trial
court arrested judgment on the kidnapping charge. The trial
court then consolidated judgments on the remaining charges,
and sentenced defendant to a minimum of 365 months and a
maximum of 498 months in the custody of the North Carolina
Division of Adult Correction. The court further ordered that
defendant register as a sex offender and, upon his release
from prison, be enrolled in SBM for the remainder of his
first argument, defendant contends that the trial court erred
by instructing the jury that it could find that the victim
suffered a "serious personal injury" in the form of
a mental injury, because the State presented no evidence to
support such instruction. Because he failed to object to the
allegedly erroneous instruction at trial, defendant requests
plain error review of this issue.
Standard of Review
criminal cases, an issue that was not preserved by objection
noted at trial and that is not deemed preserved by rule or
law without any such action nevertheless may be made the
basis of an issue presented on appeal when the judicial
action questioned is specifically and distinctly contended to
amount to plain error." N.C. R. App. P. 10(a)(4). The
plain error standard of review applies "to unpreserved
instructional or evidentiary error. For error to constitute
plain error, a defendant must demonstrate that a fundamental
error occurred at trial." State v. Lawrence,
365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). "To show
that an error was fundamental, a defendant must establish
prejudice-that, after examination of the entire record, the
error had a probable impact on the jury's finding that
the defendant was guilty." Id. (citation and
internal quotation marks omitted). Plain error arises when
the error is "so basic, so prejudicial, so lacking in
its elements that justice cannot have been done[.]"
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,
378 (1983) (citation and quotation marks omitted).
several decades, our appellate courts consistently held
"that it was per se plain error for a trial
court to instruct the jury on a theory of the defendant's
guilt that was not supported by the evidence." State
v. Robinson, ___ N.C.App. ___, ___ 805 S.E.2d 309, 318
(2017) (citation omitted). However, in State v.
Boyd, 366 N.C. 548, 742 S.E.2d 798 (2013) (per curiam),
our Supreme Court adopted a dissent from this Court which
advocated a "shift away from the per se rule .
. . that a reviewing court 'must assume' that the
jury relied on the improper theory." State v.
Martinez, ___ N.C.App. ___, ___ 801 S.E.2d 356, 361
(2017) (citation omitted); see also State v. Boyd,
366 N.C. 548, 742 S.E.2d 798 (2013) (reversing per curiam for
the reasons stated in State v. Boyd, 222 N.C.App.
160, 730 S.E.2d 193 (2012) (Stroud, J., dissenting)).
"Rather, under Boyd, a reviewing court is to
determine whether a disjunctive jury instruction constituted
reversible error, without being required in every case to
assume that the jury relied on the inappropriate
theory." Martinez, ___ N.C.App. at ___, 801
S.E.2d at 361 (concluding that the defendant "failed to
meet his burden of showing that the trial court's
inclusion of 'analingus' in the jury instruction had
any probable impact on the jury's verdict[,
]" because the victim "was clear in her testimony
regarding the occasions where fellatio and anal intercourse
North Carolina, the offenses of forcible rape and forcible
sexual offense may be elevated to the first degree when the
offender "[i]nflicts serious personal injury upon the
victim . . . ." N.C. Gen. Stat. § 14-27.21(a)(2)
(2017); id. § 14-27.26(a)(2). The State may
offer evidence of bodily or mental injuries to prove that the
victim suffered a "serious personal injury."
State v. Boone, 307 N.C. 198, 204, 297 S.E.2d 585,
589 (1982), overruled on other grounds by State v.
Richmond, 347 N.C. 412, 495 S.E.2d 677, cert.
denied, 525 U.S. 843, 142 L.Ed.2d 88 (1998). "In
determining whether serious personal injury has been
inflicted, the court must consider the particular facts of
each case." State v. Herring, 322 N.C. 733,
739, 370 S.E.2d 363, 367 (1988). The element may be
established through evidence of
a series of incidents forming one continuous transaction
between the rape or sexual offense and the infliction of the
serious personal injury. Such incidents include injury
inflicted on the victim to overcome resistance or to obtain
submission, injury inflicted upon the victim or another in an
attempt to commit the crimes or in furtherance of the crimes
of rape or sexual offense, or injury inflicted upon the
victim or another for the purpose of concealing the crimes or
to aid in the assailant's escape.
Id. (citation omitted).
order to prove a serious personal injury based on mental or
emotional harm, the State must show that (1) the defendant
caused the harm; (2) the harm extended for some appreciable
period of time beyond the incidents surrounding the crime;
and (3) the harm was more than the res gestae
results that are inherent to every forcible rape or sexual
offense. State v. Finney, 358 N.C. 79, 90, 591
S.E.2d 863, 869 (2004). "Res gestae results are
those so closely connected to an occurrence or event in both
time and substance as to be a part of the happening."
Id. (citation, quotation marks, and brackets
instant case, the State presented substantial evidence that
defendant inflicted bodily harm upon Smith as he attempted to
overcome her resistance. See Herring, 322 N.C. at
739, 370 S.E.2d at 367. Although she attempted to fight,
Smith was approximately seven months pregnant, and she
struggled to protect her stomach while defendant forcibly
dragged her down 33 concrete stairs and into the nearby
woods. Smith sustained extensive bruises and abrasions to
most of the left side of her body, including her leg,
abdomen, back, side, arm, and shoulder. Although some of her
wounds were superficial, others were "much, much
deeper" abrasions that stripped off the first layer of
skin and exposed the dermis. At trial, Jennifer Whitley, the
Sexual Assault Nurse Examiner who treated Smith at the
hospital, compared her injuries to the ...