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State v. Ruff11/4/1997
degree rape conviction and therefore, an improper factor to be used in aggravating his kidnaping conviction.
In response, the state argues that the "gravamen" of first-degree rape is the same as that of common law rape - non-consensual sexual intercourse, not the use of a firearm. Therefore, the state contends, the trial court did not use the "gravamen" of first-degree rape to aggravate defendant's kidnaping conviction; rather, it argues, it merely used an element of the first-degree rape offense to aggravate defendant's conviction. Where the state's argument falls short, however, is in its assumption that non-consensual sexual intercourse alone is the gravamen of the offense of first-degree rape. It is not.
N.C. Gen. Stat. ยง 14-27.2 defines first-degree rape as follows:
(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:
(2) With another person by force and against the will of the other person, and :
a. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon; or
b. Inflicts serious personal injury upon the victim or another person; or
c. The person commits the offense aided and abetted by one or more other persons.
(emphasis added). This statute establishes that proof of non-consensual sexual intercourse is not all that is needed for a defendant to be properly convicted of first-degree rape. If the alleged rape was committed by force and against the will of the victim, then the State must also prove, beyond a reasonable doubt, that the defendant either employed or displayed a dangerous weapon, inflicted serious bodily injury on the victim, or was aided and abetted by another. Proof, therefore, of either of these three elements is essential to a conviction of first degree rape based upon forcible intercourse, otherwise, a defendant can only be convicted of rape in the second-degree.
Here, the State relied only upon evidence showing that the forcible rape occurred with the aid of a dangerous weapon to establish proof of first-degree rape. Use of a firearm, therefore, was a "gravamen" of defendant's first-degree rape conviction, and as such, under Westmoreland, could not then be used by the trial court to aggravate defendant's second-degree kidnaping conviction. As such, we must vacate that part of defendant's sentence which was enhanced by the firearm enhancement statute. With that part of defendant's sentence vacated, the remaining parts of defendant's sentence as set by the trial court stand as: For the Class E felony of second-degree kidnaping, a minimum sentence of 32 months and a maximum sentence of 60 months and for the Class B1 felony of first-degree rape, a consecutive minimum term of 320 months and a maximum term of 393 months.
VACATED and REMANDED for imposition of judgment in accordance with this opinion.
Judges WALKER and SMITH concur.
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