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North Carolina v. Thomas11/19/1992
riving a white truck. Defendant told the woman that he was not. After unloading, defendant got in his truck and headed for New Jersey. Upon arriving in Dunn,
North Carolina, defendant stopped at Robinhood Truck Stop on Interstate 95, where he telephoned a minister. The minister and Deputy McLean met defendant at the truck stop, and eventually McLean took defendant to Lillington.
During defendant's statement to Detective Lamm, he further related that he and his wife had separated in September 1989. He had been having financial problems, and he had just started work three weeks prior to the assault and murder.
An autopsy of the victim's body revealed multiple bruises and lacerations to the victim's jaw, eyes, right cheek, lip, right hand, left upper arm, and breasts. The peritoneal wall between the victim's vagina and rectum was torn, revealing an opening of approximately four to five inches in diameter. Approximately twenty inches of the victim's small intestine was hanging from between the victim's legs. The victim's right kidney, instead of resting in what is known as the kidney bed, had been pulled and torn, brought forward, and the blood vessels supplying it had been partially torn. The pathologist who performed the autopsy opined that the tearing between the vaginal and anal openings occurred either by the use of fingers or hands grasping tissue and tearing downward, causing a hole through the top of the vagina into the rectum, and ultimately tearing out the rectovaginal septum, or by putting part of the hand or fingers into the rectum and some fingers in the vagina and tearing it out, going upward from the outside in. The pathologist also testified that it would not have been possible for a hand to reach inside the victim and grab, at one time, the right kidney and the portion of the colon that was torn loose. Based upon the examination and the autopsy, the pathologist testified that the victim bled to death from the lacerated blood vessels leading to the kidney and to the colon. It was also determined that the victim would have remained conscious for ten to twenty minutes, during which time she would have experienced considerable pain.
Defendant presented no evidence at the guilt phase.
By his first assignment of error, defendant contends that to be punished for both first-degree sexual offense and first-degree murder violates the double jeopardy clause prohibition against multiple punishments for the same offense. Defendant argues that a first-degree sexual offense conviction based solely upon the theory that the victim was seriously injured merges with the first-degree murder offense, where the serious injury committed during the
sexual offense results in the victim's death. The scope of appellate review is limited to those issues presented by assignment of error set out in the record on appeal. N.C. R. App. P. 10(a); Koufman v. Koufman, 330 N.C. 93, 97-98, 408 S.E.2d 729, 731 (1991). No assignment of error corresponds to the issue presented, and therefore, this matter is not properly presented for our consideration.
Defendant next assigns as error the failure of the trial Judge to dismiss the charge of first-degree sexual offense because the State failed to present substantial evidence of "serious personal injury " as that phrase is used in the definition of first-degree sexual offense under N.C.G.S. ยง 14-27.4. It is defendant's position that because there was no "serious personal injury" to the victim other than the fatal one, his conviction for first-degree sexual offense cannot stand, and his conviction must be either set aside
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