State v. Nelson , 114 N.C. App. 341 ( 1994 )

EAGLES, Judge.

Defendant contends that'the trial court erred in 1) refusing to submit to the jury the charge of attempted second degree rape as a lesser included offense of second degree rape, 2) responding to a jury request to review evidence without all of the jurors present in the courtroom, and 3) entering judgment on first degree kidnapping. After careful review of the record and briefs, we remand to the trial court for a new trial on both charges.

I.

Defendant first contends that the trial court erred in refusing to instruct the jury on the lesser included offense of attempted rape. We agree.

The trial court must instruct the jury upon a lesser included offense when there is evidence to support it. State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). However, “when the State’s evidence is clear and positive with respect to each element of the offense charged, and there is no evidence showing the commission of a lesser included offense,” the trial court may refuse to instruct the jury on the lesser included offense. State v. Hardy, 299 N.C. 445, 456, 263 S.E.2d 711, 718-19 (1980). Instructions on the lesser included offenses of rape are required only when there is some conflict or doubt concerning the crucial element of penetration. See State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981).

Here, the victim testified that defendant “put his penis inside me, and he began to have sex with me.” Defendant, however, testified as follows:

Q. Did you ever insert your penis, or did your penis ever get into any part of her body, her vagina or anything else?

A. No, sir. I —she had my penis in her hand, and no, she never — she never got it inside her vagina.

Q. Did you ever have intercourse with her?

A. No, sir.

Defendant contends that his testimony was an unequivocal denial of penetration entitling him to an instruction on attempted rape under State v. Williams, 314 N.C. 337, 333 S.E.2d 708 (1985). We agree.

In Williams, supra, the prosecuting witness testified unequivocally that the defendant inserted “his penis . . . into my vagina.” Id. at 352, 333 S.E.2d at 718. The defendant’s written statement, however, stated that:

I [defendant] embarrassingly removed my pants to my knees, and without touching her elsewhere, struggled to penetrate without an erection. At this the girl began a muffled laugh, so I got up and dressed as Shannone was going through her purse.

Id. at 351, 333 S.E.2d at 718 (emphasis in original). The defendant in Williams contended that this portion of his written statement was essentially a denial of penetration. The Supreme Court held that the defendant’s statement was not an unequivocal denial of penetration and that “[h]ad the defendant unequivocally denied the essential element of penetration, it would have been incumbent upon the trial judge to have placed that issue before the jury.” Id. at 353, 333 S.E.2d at 719.

Since defendant here unequivocally denied the essential element of penetration, we conclude that defendant was entitled to an instruction on attempted rape. Accordingly, we hold that defendant must be given a new trial on the charge of second degree rape.

II.

Defendant further contends that the trial court erred in responding to the jury’s written request to review evidence when the trial judge orally addressed the jury foreman without all of the jurors being present in the courtroom. We agree and conclude that defendant must also be awarded a new trial on both charges.

During deliberations, the jury sent a note to the court through the bailiff requesting to review certain pieces of evidence introduced at trial. The note read as follows: “One, photos. Two, underwear. Three, medical reports. Four, rose.” In order to determine which exhibits to send back to the jury, the trial court brought only the jury foreman back into the courtroom to clarify which exhibits the jury was referring to in the note. The other jurors remained in the jury room. The relevant parts of the conversation are as follows:

THE COURT.- — I want to just clarify one thing. Mr. Farley, [foreman] I have a note given me by the bailiff which lists four items that the jury wishes to see. One is photographs.

JUROR NO. 9: —[Foreman] Yes, sir.

THE COURT: — Two says underwear, three says medical reports, and four says rose.

Juror NO. 9: — Yes.

The COURT: — Do you — does the jury wish to see all of the photographs?

JUROR NO. 9: — I think they more meant the photographs that were laying out right in front of us just before we went in.

THE COURT: —Okay.

Mr. Cahoon and Mr. Panosh, I’m going to send back all of the photographs.

I don’t know which ones were laying out there, but I’ll let you have all of the photographs.

When you say “underwear,” are you referring to a particular item?

JUROR NO. 9: —Ms. Shavers’ underwear

The COURT: You will be allowed to get that.

Medical reports, you’re referring to all of the medical reports, that is, both the defendant’s exhibits —and I don’t know if the State had any marked or not.

MR. PANOSH: Yes, sir.

The COURT: — All of the reports referring to medical reports, is that correct?

JUROR No. 9: — Yes. I polled the room asking individuals —

The COURT: — Don’t tell me that. Just tell me yes or no what you want. Just all the medical reports, too?

JUROR No. 9:-Yes, sir.

The COURT: — Mr. Farley, I would ask you, of course, when these items are in the jury’s possession back in the jury room, do not alter or change them in anyway. Don’t make any marks on them. Don’t do anything in that regard. You may examine them, but don’t alter or change them in anyway, please.

Defendant contends that the trial court erred in not bringing all the jurors back into the courtroom to hear the jury foreman’s request and the trial court’s response to it. We agree.

G.S. 15A-1233(a) provides that “If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom.” In State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985), the jury foreman returned alone to the courtroom and asked if the jury could review certain portions of the testimony. The trial court responded that there was no transcript available and that the jurors would have to rely upon their own recollections during deliberations. Our Supreme Court held that the trial court committed prejudicial error in violation of G.S. 15A-1233 in not bringing all the jurors into the courtroom to hear both the jury foreman’s request and the trial court’s response to the request. The Court stated that the danger in allowing an individual juror or jury foreman to communicate privately with the trial court was that:

[T]he person, even the jury foreman, having alone made the request of the court and heard the court’s response firsthand, may through misunderstanding, inadvertent editorialization, or an intentional misrepresentation, inaccurately relay the jury’s request or the court’s response, or both, to the defendant’s detriment. Then each juror, rather than determining for himself or herself the import of the request and the court’s response, must instead rely solely upon their spokesperson’s secondhand rendition, however inaccurate it may be.

Id. at 36, 331 S.E.2d at 657.

The State, however, contends that Ashe is distinguishable from the case at hand because the trial court in Ashe essentially gave the jury foreman additional jury instructions in telling him that the jurors would have to recollect the evidence as best they could. The State argues that here, the trial court only asked the jury foreman to clarify which exhibits the jury wanted. However, we think that the trial court’s actions here presented one of the dangers explicitly referred to in Ashe. The jury foreman here may have inaccurately relayed the jury request or the judge’s response. In addition, the trial court’s instruction to the jury foreman not to mark on the exhibits is an instruction required to be given under G.S. 15A-1233(b) when the jury is allowed to take exhibits back into the jury room. Accordingly, we hold that the trial court erred in not bringing all the jurors back into the courtroom to hear the jury foreman’s explanation of the jury’s note and the trial court’s response.

The State also contends that if the trial court committed error it was harmless error under G.S. 15A-1443. We disagree. In concluding that the trial court in Ashe committed prejudicial error in not requiring that all jurors be present to hear the jury foreman’s request and the trial court’s response to it, the Ashe Court stated:

First, as we have already said, all jurors should be present to hear the request itself, for it is only in light of the request, the manner and precision with which it is put, that the court’s response can be accurately assessed and properly understood. Second, the trial court’s response was not a simple “no” as the state contends. Rather, the court explained that it could not grant the foreman’s request because no transcript existed, and that the jurors would have to rely upon their recollection of the evidence as best they could. Although the foreman might have relayed this exact message, he might as easily have conveyed some altered message or phrased the judge’s response in his own words in such a way as to alter its connotation and its import. The manner in which he reported his request and the response might have led the other jurors to believe the trial court thought the evidence which the jury wanted reviewed unimportant or not worthy of further consideration.

State v. Ashe, 314 N.C. 28, 38, 331 S.E.2d 652, 658-59 (1985).

Here, the trial court did not simply grant the jury’s request to review the exhibits, but called only the jury foreman out to explain which exhibits the jury was referring to in the note. Not only did the jury not hear the jury foreman’s request or explanation, they did not hear the trial court’s response or its instruction not to mark on or tamper with the exhibits. We conclude that the trial court’s error here was prejudicial and that defendant is entitled to a new trial on both charges on this ground.

III.

We need not address defendant’s third contention as it is not likely to arise in the new trial. For the reasons stated, we remand to the trial court for a new trial on the charges of second degree rape and first degree kidnapping.

New trial.

Judge JOHNSON concurs. Judge LEWIS concurs in part and dissents in part.