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State v. Gentle

Court of Appeals of North Carolina

July 3, 2018


          Heard in the Court of Appeals 7 February 2018.

          Appeal 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.

          CALABRIA, JUDGE.

         Darren 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.

         I. Factual and Procedural Background

         In August 2015, Jane Smith ("Smith"), [1] 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.

         Once 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 fell asleep.

         When 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.

         At the 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.

         On 14 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.

         On 6 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 natural life.

         Defendant appeals.

         II. Jury Instruction

         In 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.

         A. Standard of Review

         "In 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).

         B. Analysis

         For 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 had occurred").

         In 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).

         In 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 omitted).

         In the 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 ...

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