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STATE OF NORTH CAROLINA v Www Prod M Yamaha Virago 1100

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on January 12, 1982 in Superior Court, Durham County.

DISPOSITION: Case No. 81CRS14691 -- Second degree rape -- reversed and remanded. Case No. 81CRS29047 -- First degree kidnapping -- reversed and remanded.

 COUNSEL: Rufus L. Edmisten, Attorney General, by Lucien Capone III, Assistant Attorney General, for the State.

Adam Stein, Appellate Defender, by Nora B. Henry, Assistant Appellate Defender, for the defendant appellant.

JUDGES: Burley B. Mitchell, Jr., Associate Justice, wrote the opinion.

OPINION:  [*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.
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