State v. Brake

865 S.E.2d 716

STATE of North Carolina

v.Jalen Tiwayne BRAKE

No. COA20-476

Court of Appeals of North Carolina.

Filed September 21, 2021

Attorney General Joshua H. Stein, by Special Deputy Attorney General M. Denise Stanford, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel K. Shatz, for defendant-appellant.

TYSON, Judge.

¶ 1 Jalen Tiwayne Brake ("Defendant") appeals a jury's verdict finding him guilty of first-degree forcible rape and second-degree forcible sexual offense and claims the two convictions are inconsistent and contradictory. We find no error.

I. Background

¶ 2 "B.J." traveled to Wilson, North Carolina on 7 October 2017 to attend a trail ride (the parties agree to use of a pseudonym to protect the identity of the complainant). The trail ride included an event with tents, concessions, and dancing. B.J. attended the trail ride with her friends, Kristen Johnson, Tara Beaver, and Tara's daughter. B.J. admittedly consumed "a significant amount" of vodka during the three-hour drive enroute to the trail ride. The four women arrived in Wilson between 9:00 p.m. and 11:00 p.m. B.J. was intoxicated.

¶ 3 The four women went to the dance floor when they arrived. A disc jockey was playing music and some attendees were dancing. The four women met with Darius Tysor, a friend of both Tara and Kristen.

¶ 4 Defendant, who had recently turned sixteen, was attending the trail ride with his family. Defendant testified he had consumed four or five shots of corn liquor and four beers that evening. Defendant was present on the dance floor and testified B.J. was drunk, and "she was falling all up on me, grabbing on me ... and she was just pushing her body up against me and everything."

¶ 5 After some time, Tara, Kristen, and Darius went to their car to get water, leaving B.J. on the dance floor with Defendant. B.J. testified she danced with Defendant and then "walked off with him," but she could not recall "why." Defendant and B.J. walked far enough away that they were not within eyesight of the dance floor.

¶ 6 B.J. testified Defendant became physically forceful with her. He got on top of her, kissed her, and "tr[ied] to do stuff." B.J. testified, "he kept being really forceful so I just remember thinking in my head, [B.J.], just relax, sit back and act like you're going to be okay so you can kind of catch him off guard and I kicked him."

¶ 7 B.J. told Defendant "no" and to "stop," and she kicked him and punched at him. Defendant stood up. B.J. thought the incident was over, so she started to stand up. When B.J. got onto her knees, Defendant hit her in the face and the back of her head.

¶ 8 B.J. testified, "I was on my knees and he was standing over me just like pummeling my head. I was crying. He kept telling me to shut the f**k up, bitch, don't, stop crying."

B.J. continued, "I thought he was going to break my teeth out ... I didn't know if he was going to hit me in just the wrong spot and it was going to kill me."

¶ 9 Defendant stopped hitting B.J., pulled his pants down and inserted his penis into her mouth. Defendant told B.J. if she bit him, he would "f**k**g kill" her. Defendant repeated this warning several times. B.J. testified, "at that point I just decided to stop fighting because I didn't want him to kill me ... I've never experienced anything like it. And I was just terrified." She stated Defendant was not "all the way erected" when his penis was thrust into her mouth.

¶ 10 Defendant pushed B.J. onto the ground upon her back, he removed her pants, boots, and underwear and got on top of her. B.J. was not sure if Defendant fully penetrated her, but testified she could feel the pressure. Defendant then stood up, pulled his pants halfway up, pulled his belt around, and walked away towards the tent area.

¶ 11 B.J. arose from the ground. She put on her pants but left off her boots. She walked to the dance floor to find a law enforcement officer. B.J. found deputies and told them she had been assaulted. She was taken to the hospital in an ambulance.

¶ 12 B.J.’s injuries were photographed at the hospital. These photographs showed her face was swollen and bruised. The photographs also documented redness on the back of her head from being repeatedly hit, a scratch on her right arm, swelling of her left arm from blocking Defendant's blows, scratches on her back and thighs, and redness on her knees. While at the hospital, B.J. was administered a rape kit, samples were collected, and she was examined by a physician.

A. Darius Tysor's Testimony

¶ 13 Darius testified he went to the trail ride to meet with Tara and Kristen. Darius did not drink because he had planned to drive the four women home. Darius met the four women on the dance floor when they arrived. When Tara and Kristen went to the car to get water, Darius went with them. Darius noticed B.J. was dancing with Defendant as the group walked away from the dance floor. When the group returned to the dance floor, B.J. and Defendant were gone.

¶ 14 Darius and Kristen looked for B.J. around the campground. The next time they saw B.J., she was walking towards the deputies on the side of the dance floor. Darius testified B.J. looked like she had been beat up and was hysterical. Darius said B.J. was not wearing her boots.

¶ 15 Darius and Kristen looked for B.J.’s boots and found them lying beside a fence about 100 to 150 yards from the dance floor. After they found the boots, they began to look for Defendant.

B. Kristen Johnson's Testimony

¶ 16 Kristen Johnson testified she recalled seeing B.J. dance with Defendant. B.J. asked for water, so the group left B.J. on the dance floor and went to the car. When they returned, B.J. was no longer on the dance floor.

¶ 17 Kristen testified that she and Darius began looking for B.J. and Defendant. Kristen testified the next time she saw B.J. it was about 20-30 minutes from the last time she had seen her. Kristen testified she saw B.J. with some deputies, and Kristen "started freaking out because I could see her face so I went up to her and I said, who did this to you. I thought she had got (sic) jumped, her injuries were so bad." Kristen said B.J. was crying and replied, "He did it." When deputies asked if B.J. had been seen, or had danced with any other men that night, Kristen stated B.J. had not.

¶ 18 Kristen and Darius spoke with Defendant's uncle who took them to the tent where Defendant was located. Kristen observed Defendant was face down in the tent and he appeared to be "passed out." Defendant had dirt and grass on the back of his shirt. Defendant's pants were down around his knees.

C. Deputy Moore's Testimony

¶ 19 Wilson County Sheriff's Deputy Shonday Moore ("Deputy Moore") was working security at the trail ride on 7 October 2017. Deputy Moore was standing near the dance floor with some other officers when he saw B.J. a little after midnight. Deputy Moore testified B.J. was staggering towards them and appeared to have been involved in an altercation. B.J. had swollen facial features and grass stains all over her clothes. B.J. reported she had been assaulted.

¶ 20 Deputy Moore noticed that B.J.’s pants were unzipped, and she was not wearing any shoes. B.J. had grass stains on her socks and clothes and had grass in her hair as well. Deputy Moore asked if "things went further," and B.J. said that she did not know if penetration had taken place, but she told Deputy Moore the subject had tried, but she was unsure of the extent of the assaults. B.J. described her attacker as a black male with short, dreadlock-like style hair.

¶ 21 Deputy Moore testified B.J. was "tore all to pieces," very upset, became hysterical and started to hyperventilate. The prosecutor asked Deputy Moore at trial, "did [B.J.] tell you whether or not she fought back or not?" Deputy Moore replied, "She did tell me that she did fight back. She said she was fighting back but it wasn't working."

D. Detective Jackson's Testimony

¶ 22 Wilson County Sheriff's Detective Julie Jackson ("Detective Jackson") was called to the hospital where B.J. was taken to investigate her assault. Detective Jackson arrived at the hospital shortly after 1:20 a.m. and interviewed B.J.

¶ 23 B.J. told Detective Jackson the "individual that she was on the dance floor with was the subject she walked away with and went to the woods with." B.J. told Detective Jackson about the altercation and the subject had "possibly tried to penetrate her but she was unsure if penetration was made."

¶ 24 Defendant was arrested and transported to the sheriff's department. Detective Jackson went to the sheriff's office and collected an oral DNA swab from Defendant.

E. DNA Evidence

¶ 25 A registered nurse collected various samples from B.J. for the rape kit while B.J. was at the hospital. One sample was a vaginal swab.

¶ 26 April Perry ("Perry"), a forensic scientist and body fluid analyst at the North Carolina State Crime Laboratory, testified at trial. Perry testified she examined the smear associated with the vaginal swabs under a microscope and identified sperm on the slide. Perry stated she forwarded the smear for DNA analysis. Perry noted that the sperm she had observed on the smear were intact with the tails still attached, indicating they had been deposited into the vagina less than 12 to 24 hours prior.

¶ 27 Erin Wolfe ("Wolfe"), a forensic scientist at the North Carolina State Crime Laboratory, testified as an expert in DNA analysis. Wolfe was assigned to perform the DNA analysis for B.J.’s vaginal swabs and Defendant's known blood sample. Wolfe's analysis determined the major contributor profile of the DNA from the swab sample obtained from inside B.J.’s vagina at the hospital matched the Defendant's DNA profile.

F. Detective Rouse's Testimony

¶ 28 Wilson County Sheriff's Detective Michael Rouse ("Detective Rouse") interviewed Defendant around 1:00 a.m. on 8 October 2017. Detective Rouse asked Defendant if there was any reason Defendant's DNA would be anywhere on the victim. Defendant said no,...