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Docket Number

No. 8330SC1124

Attorney(S)

Attorney General Edmisten, by Associate Attorney Newton G. Pritchett, Jr., for the State. Noland, Holt, Bonfoey Davis, P.A., by J. Lynn Noland, for defendant appellant.

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State of North Carolina v. Roy Rhinehart, No. 8330SC1124 (N.C. Ct. App. filed June 5, 1984)

Court: North Carolina Court of Appeals. Judgment below entered 9 June 1983 in Superior Court, Haywood County (Judge Kirby). Appeal heard 8 May 1984. Opinion by Judge Whichard; Judges Webb and Hill concur.

Factual and Procedural Background

Defendant Roy Rhinehart was convicted by a jury of second-degree rape and second-degree sexual offense. The conviction led to a judgment of imprisonment entered 9 June 1983 in Haywood County Superior Court. Defendant appealed to the North Carolina Court of Appeals. The appeal was heard on 8 May 1984 and the Court filed its opinion on 5 June 1984.

At an in camera hearing under G.S. 8-58.6, evidence was developed that earlier on the night of the alleged offenses the complainant drove her former boyfriend (whom she had dated for four years) home and engaged in consensual intercourse with him. Evidence at trial additionally showed that, earlier that evening, defendant and the complainant danced together in a public bar two or three times and conversed; the complainant laughed and joked with defendant. Defendant was unaware of the prior intercourse between the complainant and her former boyfriend. After the alleged offenses and upon being informed that the complainant "was going to get [him] for rape," defendant hitchhiked from Canton to Asheville, remained there until the next day, returned home voluntarily, was advised that a warrant awaited him and that he should call a number, but instead went to bed and remained until the sheriff arrested him.

Legal Issues Presented

Whether evidence of the complainant's prior consensual intercourse earlier the same evening (with her former boyfriend) was admissible under the "closely resembling pattern" exception of G.S. 8-58.6(b)(3) and therefore whether the trial court erred in excluding such evidence from cross-examination under G.S. 8-58.6(c).
Whether the trial court's instructions to the jury regarding consent were sufficient in substance to convey defendant's requested instruction that consent is a defense to the crime of rape.
Whether the trial court erred in refusing to give a requested instruction allowing the jury to consider cessation of flight and return in determining whether flight (and related circumstances) amounted to an admission or showed a consciousness of guilt.
Whether the trial court erred in excising from the complainant's written statement the sentence that she and Charles Sutton had intercourse when she took him home.

Arguments of the Parties

Defendant's Arguments

Defendant argued that the complainant's earlier consensual intercourse with her former boyfriend should have been admitted under the closely resembling pattern exception of G.S. 8-58.6(b)(3) because it tended to show consent or behavior that would lead defendant to reasonably believe the complainant consented.
Defendant challenged the excision from the complainant's written statement of the sentence: "Charles Sutton and I had intercourse when I took him home," contending it should have been presented to the jury.
Defendant requested a jury instruction stating in substance that consent is a defense to the crime charged and that if the complainant's behavior led the defendant to reasonably believe she consented, the jury should find him not guilty.
Defendant also requested an instruction that, in assessing flight as evidence of consciousness of guilt, the jury could also consider cessation of flight and return in determining whether the combined circumstances amounted to an admission or showed consciousness of guilt.

The opinion does not contain a detailed account of the State's separate trial or appellate arguments beyond representation by the Attorney General; the Court's analysis focuses principally on the defendant's contentions and statutory and case-law standards.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (1980)	Cited regarding prior sexual conduct evidence; noted that in Fortney prior sexual conduct on the night was not at issue.	The Court found Fortney not controlling on the facts here and distinguished it from the present case.
State v. Younger, 306 N.C. 692, 295 S.E.2d 453 (1982)	Recognizes that prior sexual conduct was at issue in Younger, but the admission there was based on impeachment via a prior inconsistent statement rather than relevancy/probativeness under the pattern exception.	The Court determined Younger was not controlling because its rationale differed from the pattern/admissibility question presented here.
State v. Shoffner, 62 N.C. App. 245, 302 S.E.2d 830 (1983)	Example where evidence established a distinctive pattern of sexual behavior closely resembling the defendant's version, showing the prosecutrix as sexually aggressive/initiator; admissible under G.S. 8-58.6(b)(3).	The Court contrasted Shoffner with the present facts, noting Shoffner showed repetitive, initiating conduct—unlike the single episode here—so Shoffner did not support admission in this case.
State v. Smith, 45 N.C. App. 501, 263 S.E.2d 371 (1980)	Holds that activity with "other third parties" in "dating-type circumstances" is not material under the closely resembling pattern exception; defendant failed to establish admissibility under subsection (b)(3).	The Court relied on Smith to support exclusion here, treating the prior intercourse as at least akin to dating-type circumstances and therefore not a qualifying pattern.
Hodges v. State, 386 So.2d 888 (Fla. Dist. Ct. App. 1980)	Interpreting a statute similar to G.S. 8-58.6(b)(3): one episode of intercourse before an assault does not establish a "pattern of conduct or behavior."	The Court cited Hodges for the proposition that a single episode of consensual intercourse is insufficient to meet the pattern test and thus supported exclusion of the evidence here.
Winters v. State, 425 So.2d 203 (Fla. Dist. Ct. App. 1983)	Holds that a "few isolated instances" of consensual sexual activities do not present the requisite "pattern of conduct or behavior."	The Court cited Winters as additional authority supporting the conclusion that episodic consensual encounters do not satisfy the closely resembling pattern exception.
McElveen v. State, 415 So.2d 746 (Fla. Dist. Ct. App. 1982)	Holds that "three specific instances of sexual activity" were not repetitive/frequent enough to establish a pattern of behavior.	The Court cited McElveen as further support for the conclusion that limited prior sexual episodes do not constitute the pattern required by the statute.
State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976)	Instruction law: trial court not required to give a requested instruction in exact language, but when the request is correct in law and supported by the evidence, the substance must be given.	The Court applied Monk to evaluate the sufficiency of the court's instructions on consent and to determine that the requested cessation-of-flight instruction need not be given where the request was not shown to be correct in law and supported by the evidence.

Court's Reasoning and Analysis

The Court proceeded through a statutory and case-law analysis centered on G.S. 8-58.6 (the rape shield statute) and its closely resembling pattern exception, G.S. 8-58.6(b)(3).

1) Admission of prior consensual intercourse. At the in camera hearing the evidence established that the complainant had driven her former boyfriend home and had consensual intercourse earlier that evening. The trial court excluded evidence of that earlier intercourse, concluding it was relevant only to credibility and therefore inadmissible under G.S. 8-58.6(c). On appeal the Court assessed whether the excluded evidence fit the closely resembling pattern exception under subsection (b)(3).

The Court compared this factual scenario to prior decisions. It distinguished State v. Shoffner, where multiple witnesses and testimony of a recurring sexually aggressive modus operandi supported admission under the pattern exception. By contrast, the present evidence consisted of a single episode of consensual intercourse and evidence that, earlier in the evening, defendant and complainant had danced and conversed in a public bar (facts characterized as akin to "dating-type circumstances"). Because defendant was unaware of the prior intercourse, he could not reasonably have inferred consent from it. The Court also relied on out-of-state precedents (Hodges, Winters, McElveen) and its own State v. Smith to support the proposition that isolated or dating-type sexual encounters do not constitute the requisite pattern of conduct under a closely resembling-pattern test. From these authorities and the facts, the Court concluded the prior intercourse did not qualify for admission under G.S. 8-58.6(b)(3), and that exclusion under G.S. 8-58.6(c) as irrelevant to any issue in the prosecution was proper.

2) Excision of sentence from written statement. The complainant's written statement originally contained the sentence, "Charles Sutton and I had intercourse when I took him home." The Court applied the same reasoning used for excluding live testimony about the prior intercourse and held the trial court properly withheld that sentence from the jury.

3) Jury instruction on consent. Defendant had requested an instruction declaring, in substance, that consent is a defense and that if the complainant's behavior led defendant reasonably to believe she consented, he should be found not guilty. Applying State v. Monk, the Court observed that a trial court need not use the exact language of a requested instruction but must give its substance when the request is correct in law and supported by the evidence. The trial court's instructions required the State to prove beyond a reasonable doubt that the complainant did not consent and stated that consent induced by fear is not consent at law. The Court found those instructions clearly sufficient to convey the substance of defendant's requested charge. The Court further explained that the remainder of defendant's requested instruction merely drew upon language from G.S. 8-58.6(b)(3) — a standard for admissibility of evidence — and that subsection (b)(3) was not intended to define legal consent at trial; therefore the trial court properly declined to give that portion of the requested instruction.

4) Instruction regarding cessation of flight. Defendant asked the court to augment the standard flight instruction (that evidence of flight may be considered in determining whether the combined circumstances amount to an admission or show consciousness of guilt) by adding that the jury could consider cessation of flight and return in that same analysis. The Court reiterated Monk's requirement that a requested instruction be correct in law and supported by the evidence. Defendant offered no authority establishing that cessation of flight may be considered as indicated. Even assuming the legal correctness of the proposed instruction, the Court held the evidence did not support it. The record showed defendant left the area (hitchhiked to Asheville), remained there until the next day, then "decided... he'd just come back home and... face up to it," and upon return failed to contact a suggested person but went to bed until arrested. The Court characterized this conduct as indicative of inertia rather than an actual cessation of flight showing an innocent conscience. Accordingly, the court was not required to give the requested instruction.

On the whole, after applying statutory text, analogous authorities, and the evidence developed at the in camera hearing and trial, the Court concluded the trial court's evidentiary rulings and instructions were proper on the issues raised.

Holding and Implications

Holding: The Court affirmed the trial court's rulings and found no error in (1) excluding evidence of the complainant's prior consensual intercourse with her former boyfriend under G.S. 8-58.6(c), (2) excising the corresponding sentence from the complainant's written statement, (3) the court's instructions on consent (which the Court found sufficient in substance), and (4) the refusal to give the requested instruction concerning cessation of flight.

Implications: The direct effect is that the convictions and sentence stand; the trial court's evidentiary exclusions and jury instructions were upheld. The opinion distinguishes prior decisions where repeated or distinctive sexually aggressive conduct supported admission under the closely resembling pattern exception (e.g., State v. Shoffner) and confirms that isolated or dating-type incidents of prior consensual intercourse—particularly those unknown to the defendant—do not meet the statutory "closely resembling pattern" threshold. The Court did not announce a novel rule beyond applying G.S. 8-58.6(b)(3) and existing precedents; it limited admissibility under that exception to situations demonstrating a repetitive or distinctive pattern closely resembling the charged encounter.

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STATE OF NORTH CAROLINA v. ROY RHINEHART

1. Rape and Allied Offenses 4.3 — evidence of prosecutrix's prior consensual intercourse with former boyfriend properly excluded In a prosecution for second-degree rape and second-degree sexual offense, evidence of the complainant's prior consensual intercourse with her former boyfriend earlier in the evening of defendant's alleged offenses did not qualify for admission under the closely resembling pattern exception of G.S. 8-58.6(b)(3). It was evidence of a single episode, of which defendant had no knowledge, in a situation at least closely akin to "dating-type circumstances." As such, cross-examination regarding it properly was excluded under G.S. 8-58.6(c) as "irrelevant to any issue in the prosecution." G.S. 8-58.6(b).

2. Rape and Allied Offenses 6 — second-degree rape — instructions on consent sufficient In a prosecution for second-degree rape and second-degree sexual offense, the trial court's instructions on consent were clearly sufficient to convey the substance of defendant's request for a charge that consent is a defense to the crime of rape.

3. Criminal Law 46, 112 — lack of instructions regarding cessation of flight proper There was no error in the trial court refusing to instruct, after its instructions concerning evidence of flight as an admission or showing consciousness of guilt, that the jury could consider the cessation of flight and return in determining whether the combined circumstances amounted to an admission or show of consciousness of guilt.

Defendant appeals from a judgment of imprisonment entered upon a jury verdict finding him guilty of second degree rape and second degree sexual offense.

WHICHARD, Judge.

Defendant contends the court erred in denying him the opportunity to cross-examine the complainant regarding her prior sexual conduct with her former boyfriend on the night of the alleged rape and sexual offense. Evidence adduced at an in camera hearing pursuant to G.S. 8-58.6 established that earlier in the evening of the alleged offenses the victim had driven her former boyfriend, whom she had dated for four years, from a night spot to his home, and that she had engaged in sexual intercourse with him while there. The court ruled, following the hearing, that the complainant's consensual intercourse earlier that night was not relevant for any purpose other than to attack her credibility. It thus excluded the evidence pursuant to G.S. 8-58.6(c).

Defendant cites State v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (1980), and State v. Younger, 306 N.C. 692, 295 S.E.2d 453 (1982), in support of his argument that the court erred in excluding this evidence. In Fortney prior sexual conduct of the complainant on the night of the alleged rape was not at issue. In Younger, while such conduct was at issue, the holding that evidence thereof should have been admitted was not based on its relevancy and probativeness, but on its capacity to impeach the complainant's credibility in light of a prior inconsistent statement. We find neither Fortney nor Younger controlling.

The main thrust of defendant's argument is that the evidence was admissible under the exception to the rape shield statute which allows evidence of the sexual behavior of the complainant if

[i]s evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented.

G.S. 8-58.6(b)(3). This Court found evidence of such a pattern, and held that it should have been admitted, in State v. Shoffner, 62 N.C. App. 245, 302 S.E.2d 830 (1983). The evidence excluded there "suggest[ed] that the prosecuting witness was the initiator, the aggressor, in her sexual encounters." Id. at 248, 302 S.E.2d at 832-33. Her "modus operandi was to accost men at clubs, parties (public places) and make sexual advances by putting her hands `all over their bodies.'" Id. at 248, 302 S.E.2d at 833. Seven witnesses, including the defendants, testified "that on the date of the alleged offense the prosecuting witness came to the residence of defendants and while there made sexual advances [toward one defendant] by putting her hand inside [his] pants, and suggested that the parties present have an orgy." Id. at 247, 302 S.E.2d at 832. The evidence of the prosecuting witness's sexual behavior on past occasions was held to conform sufficiently to the defendants' version of what happened on the occasion of their alleged offenses that it should have been admitted under the closely resembling pattern exception of G.S. 8-58.6(b)(3).

Here, by contrast, there was no such evidence of prior sexually aggressive conduct on the part of the complainant, and defendant offered no evidence of prior sexual advances which the complainant made to him. The evidence showed only that earlier in the evening defendant and the complainant had danced together two or three times at a public bar; that "she was laughing and cuttin' up with him, jokin'"; and that "[s]he . . . just talked to him a lot."

Defendant suggests that the facts that earlier in the evening the complainant had driven her former boyfriend home, and had engaged in consensual intercourse with him, indicate that her sexual encounter with defendant, when she drove him home or to some other location several hours later, also was consensual. Uncontroverted evidence established, however, that defendant was unaware of the prior sexual encounter between the complainant and her former boyfriend. He thus could not have inferred consent therefrom. Further, as a Florida court noted in interpreting a statute similar to G.S. 8-58.6(b)(3), "one episode of sexual intercourse . . . before the assault hardly establishes a `pattern of conduct or behavior' on the part of the victim; and the evidence of having slept with her boyfriend on one occasion bears no relation to the issue of whether the victim consented." Hodges v. State, 386 So.2d 888, 889 (Fla.Dist.Ct.App. 1980); see also Winters v. State, 425 So.2d 203, 204 (Fla.Dist.Ct.App. 1983) (a "few isolated instances" of consensual sexual activities between the complainant and other persons held not to present a "pattern of conduct or behavior" sufficient to meet test of statute); McElveen v. State, 415 So.2d 746, 748 (Fla. Dist. Ct. App. 1982) ("three specific instances of sexual activity" held "not so repetitive or frequent as to establish a `pattern of behavior'"). Finally, this Court has held that a complainant's activity with "other third parties" in "dating-type circumstances" properly was found not material, and that the defendant had failed "to `establish the basis of admissibility of such evidence' under subsection (b)(3)." State v. Smith, 45 N.C. App. 501, 503-04, 263 S.E.2d 371, 373 (1980).

We hold that evidence of the complainant's prior consensual intercourse with her former boyfriend earlier in the evening of defendant's alleged offenses did not qualify for admission under the closely resembling pattern exception of G.S. 8-58.6(b)(3). It was evidence of a single episode, Hodges, supra, of which defendant had no knowledge, in a situation at least closely akin to "dating-type circumstances," Smith, supra. As such, cross-examination regarding it properly was excluded under G.S. 8-58.6(c) as "irrelevant to any issue in the prosecution." G.S. 8-58.6(b).

Defendant contends the court erred in excising from the complainant's written statement to a deputy sheriff regarding the events of the evening in question the sentence, "Charles Sutton [the former boyfriend] and I had intercourse when I took him home." For the reasons set forth above, we hold that the court properly withheld this evidence from the jury also.

Defendant contends the court erred in denying his request that it instruct the jury as follows:

I further charge you that consent is a defense to the crime of the act or acts as charged or that the complainant behaved in such a manner as to lead the Defendant to reasonably believe that the complainant consented to the acts as charged then it would be your duty to find the Defendant not guilty of the charges herein.

"[T]he . . . court is not required to give a requested instruction in the exact language of the request. However, when the request is correct in law and supported by the evidence in the case, [it] must give the instruction in substance." State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976).

The court here instructed that before the jury could find defendant guilty, the State had to prove beyond a reasonable doubt, inter alia, "[t]hat [the complainant] did not consent [,] [i]t was against her will." It further instructed that "[c]onsent . . . induced by fear is not consent at law." We hold these instructions clearly sufficient to convey the substance of defendant's request for a charge that consent is a defense to the crime of rape.

The remainder of the requested instruction draws upon language of the closely resembling pattern exception of G.S. 8-58.6(b)(3). That provision establishes a standard for determining admissibility of evidence. It was not intended to, and does not, provide a legal definition of consent by the complainant with regard to sexual acts at issue in rape or sexual offense trials. The court thus properly declined to give this portion of the requested instruction.

Defendant finally contends the court erred, following its instruction that "[e]vidence of flight may be considered .. . in determining whether the combined circumstances amount to an admission or show a consciousness of guilt," in refusing his request that it further instruct that: "Likewise, you may also consider the cessation of flight and return in determining whether the combined circumstances amount to an admission or show a consciousness of guilt."

A requested instruction is properly declined unless it is "correct in law and supported by the evidence in the case." Monk supra. Defendant cites no authority, and we are aware of none, establishing the legal accuracy of his assertion that cessation of flight may be viewed as conduct influenced by an innocent conscience. Assuming such, arguendo, the evidence did not support the requested instruction. It showed that upon being informed that the complainant "[w]as going to get [him] for rape," defendant hitchhiked from Canton to Asheville, where he remained until the following day. He then "decided that [he]'d just come back home and . . . face up to it." Upon his return he was advised that a warrant awaited him and that he should call a certain number. Instead of doing so, he went to bed and remained there until the sheriff came to arrest him. His conduct thus was more indicative of mere inertia than of actual cessation of flight. We hold that the court was not required to give the requested instruction.

No error.

Judges WEBB and HILL concur.

STATE v. RHINEHART