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[*400] [**471] The defendant raises [***5]
on appeal the question whether the evidence of his guilt of kidnapping and second
degree rape was
sufficient to support his convictions of those crimes. For reasons discussed
herein, we conclude the evidence was insufficient to support his conviction of
either crime.
The State's evidence tended to show that at the time the incident occurred the
defendant and the prosecuting witness in this case, Cottie Brown, had been
involved for approximately six months in a consensual sexual relationship.
During the six months the two had conflicts at times and Brown would leave the
apartment she shared with the defendant to stay with her mother. She testified
that she would return to the defendant and the apartment they shared when he
called to tell her to return. Brown [*401] testified that she and
the defendant had sexual relations throughout their relationship. Although she
sometimes enjoyed their sexual relations, she often had sex with the defendant
just to accommodate him. On those occasions, she would stand still and remain
entirely passive while the defendant undressed her and had intercourse with
her.
Brown testified that at times their consensual sexual relations involved
[***6] some violence. The defendant had struck her several times
throughout the relationship when she refused to give him money or refused to do
what he wanted. Around May 15, 1981, the defendant struck her after asking for
money that she refused to give him. Brown left the apartment she shared with
the defendant and moved in with her mother. She did not have intercourse with
the defendant after May 15 until the alleged rape on June 15. After Brown left the defendant, he
called her several times and visited her at Durham Technical Institute where
she was enrolled in classes. When he visited her they talked about their
relationship. Brown testified that she did not tell him she wanted to break off
their relationship because she was afraid he would be angry.
On June 15, 1981, Brown arrived at Durham Technical Institute by taxicab to
find the defendant standing close to the school [**472] door. The
defendant blocked her path as she walked toward the door and asked her where
she had moved. Brown refused to tell him, and the defendant grabbed her arm,
saying that she was going with him. Brown testified that it would have taken
some effort to pull away. The two walked toward the [***7] parking
lot and Brown told the defendant she would walk with him if he let her go. The
defendant then released her. She testified that she did not run away from him
because she was afraid of him. She stated that other students were nearby.
Brown stated that she and the defendant then began a casually paced walk in the
neighborhood around the school. They walked, sometimes side by side, sometimes
with Brown slightly behind the defendant. As they walked they talked about
their relationship. Brown said the defendant did not hold her or help her along
in any way as they walked. The defendant talked about Brown's
"dogging" him and making him seem a fool and about Brown's mother's
interference in the relationship. When the [*402] defendant and
Brown left the parking lot, the defendant threatened to "fix" her
face so that her mother could see he was not playing. While they were walking
out of the parking lot, Brown told the defendant she wanted to go to class. He
replied that she was going to miss class that day.
The two continued to walk away from the school. Brown testified that the
defendant continually talked about their relationship as they walked, but that
she paid [***8] little attention to what he said because she was
preoccupied with her own thoughts. They passed several people. They walked
along several streets and went down a path close to a wooded area where they
stopped to talk. The defendant asked again where Brown had moved. She asked him
whether he would let her go if she told him her address. The defendant then
asked whether the relationship was over and Brown told him it was. He then said
that since everyone could see her but him he had a right to make love to her
again. Brown said nothing.
The two turned around at that point and began walking towards a street they had
walked down previously. Changing directions, they walked in the same fashion
they had walked before -- side by side with Brown sometimes slightly behind.
The defendant did not hold or touch Brown as they walked. Brown testified that
the defendant did not say where they were going but that, when he said he
wanted to make love, she knew he was going to the house of a friend. She said
they had gone to the house on prior occasions to have sex. The defendant and Brown
passed the same group of men they had passed previously. Brown did not ask for
assistance because [***9] some of the men were friends of the
defendant, and she assumed they would not help. The defendant and Brown
continued to walk to the house of one of the defendant's friends, Lawrence
Taylor.
When they entered the house, Taylor was inside. Brown sat in the living room
while the defendant and Taylor went to the back of the house and talked. When
asked why she did not try to leave when the defendant and Taylor were in the
back of the house, Brown replied, "It was nowhere to go. I don't know. I
just didn't." The defendant returned to the living room area and turned on
the television. He attempted to fix a broken fan. Brown asked Taylor for a
cigarette, and he gave her one.
[*403] The defendant began talking to Brown about another man she
had been seeing. By that time Taylor had gone out of the room and perhaps the
house. The defendant asked if Brown was "ready." The evidence tended
to show that she told him "no, that I wasn't going to bed with him."
She testified that she did not want to have sex with the defendant and did not
consent to do so at any time on June 15.
After Brown finished her cigarette, the defendant began kissing her neck. He pulled
her up from the chair [***10] in which she had been sitting and
started undressing her. He noticed that she was having her menstrual period,
and she sat down pulling her pants back up. The defendant again took off her
pants and blouse. He told her to [**473] lay down on a bed which
was in the living room. She complied and the defendant pushed apart her legs
and had sexual intercourse with her. Brown testified that she did not try to
push him away. She cried during the intercourse. Afterwards they talked. The
defendant told her he wanted to make sure she was not lying about where she
lived and that he would not let her up unless she told him.
After they dressed they talked again about the man Brown had been seeing. They
left the house and went to the defendant's mother's house. After talking with
the defendant's mother, Brown took a bus home. She talked with her mother about
taking out a complaint against the defendant but did not tell her mother she
and the defendant had had sex. Brown made a complaint to the police the same
day.
The defendant continued to call Brown after June 15, but she refused to see
him. One evening he called from a telephone booth and told her he had to talk.
When he got [***11] to her apartment he threatened to kick her door
down and Brown let him inside. Once inside he said he had intended merely to
talk to her but that he wanted to make love again after seeing her. Brown said
she sat and looked at him, and that he began kissing her. She pulled away and
he picked her up and carried her to the bedroom. He performed oral sex on her
and she testified that she did not try to fight him off because she found she
enjoyed it. The two stayed together until morning and had sexual intercourse
several times that night. Brown did not disclose the incident to the police
immediately because she said she was embarrassed.
[*404] The defendant put on no evidence and moved at the close of
the State's evidence for dismissal of both charges based on insufficiency of
evidence. The trial court denied the motions and the majority in the Court of
Appeals affirmed the trial court.
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