State v. Kariuki

877 S.E.2d 478 (Table)

STATE of North Carolina

v.Joseph Ngigi KARIUKI, Defendant.

No. COA22-11

Court of Appeals of North Carolina.

Filed September 20, 2022

GORE, Judge.

¶ 1 Defendant, Joseph Ngigi Kariuki, appeals from his conviction for first-degree forcible rape. He raises two issues on appeal: (i) whether the trial court erred in denying his motion to dismiss for insufficiency of the evidence and (ii) whether the trial court erred in giving the State's requested jury instruction on constructive force because such instruction was either unsupported by the evidence, or alternatively, because it impermissibly expanded the definition of constructive force. This Court has jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444 as an appeal of right from a final judgment of a superior court. Upon careful review, we discern no error.

I.

¶ 2 Defendant, a certified nursing assistant ("CNA") in the Alzheimer's ward of an assisted nursing facility, was observed having forcible vaginal sex with a 79-year-old resident suffering from late-stage Alzheimer's disease in December 2019. The victim was immobile, non-verbal, unable to feed herself, and unable to care for herself. Consequently, she had to be placed in a special wheelchair, which was equipped with devices that held her neck and entire body. To prevent injury, the assisted nursing facility designated her as a "two-person assist" patient. This mandatory protocol required two nursing staff members to provide care, which included rolling her over in her bed, changing her diaper and clothing, and getting her up from her bed and wheelchair. Due to her condition, the victim was more susceptible to bruising and bacterial infections. Despite complications related to her mental disease, before the incident giving rise to this appeal, the victim was attentive and a generally happy person.

¶ 3 Dana Oliver Webb, another CNA in the Alzheimer's ward, testified at trial that she and defendant were working together on the day the events transpired. Ms. Webb testified she had been working with defendant as a two-person team for a few weeks after the facility instituted the "two-person assist" protocol. She also testified that defendant would frequently "go missing" during their shifts together and that she would have to go looking for him in various rooms in the facility. Ms. Webb stated defendant would not respond when she called for him, and he would remain missing for as long as 45 minutes at a time. She was also concerned about his interaction with patients after she noticed they were becoming fearful or volatile when defendant entered their rooms.

¶ 4 Ms. Webb testified that, on the day of the alleged rape, defendant once again disappeared during their shift, and she was unable to find him for two and a half hours. She eventually found him in the victim's room. She stated defendant had his hands under the victim's thighs, with her legs wrapped around him, and he was "thrusting" into her. Ms. Webb saw the victim's exposed bottom and defendant's pants down, but noticed his underwear was still on. She let out an audible gasp, which prompted defendant to flip the victim over and pull up his pants. When Ms. Webb returned to the room with another CNA, they found that defendant had cleaned and repositioned the victim. He had rolled up a pad, the victim's diaper, trash, and wipes into a bag. Ms. Webb later retrieved these items.

¶ 5 After the police arrived, the victim was transported to a hospital for examination and treatment. The victim sustained vaginal irritation and two small tears, as well as bruising and tearing on her arms. A DNA analyst testified a sample taken from the victim's vaginal swab was consistent with DNA taken from defendant, although no matching DNA was found on the victim's skin tears. When interviewed by the police, defendant claimed his pants had come down, and the victim was wrapped around his waist, because he had been assisting the victim alone.

¶ 6 After the alleged rape, the victim became noticeably withdrawn, was "petrified" of male nurses, and developed a series of urinary tract infections that caused her health to significantly decline. The victim refused to take food from anyone other than her daughter and became so afraid of being touched that she had to be bathed in bed. Although she had not developed urinary tract infections before the alleged rape, these infections became chronic occurrences that required frequent care. With each subsequent infection, the victim's health deteriorated, and she passed away 5 months after the assault as a result of two particularly severe infections.

¶ 7 Defendant was indicted by a Johnston County Grand Jury for one count of first-degree forcible rape and one count of patient abuse and neglect. The State later dismissed the charge of patient abuse and neglect. The jury returned a verdict of guilty on the charge of first-degree forcible rape. Defendant was sentenced to a term of 240 to 348 months imprisonment and was ordered to register as a sex offender for life. Defendant entered oral notice of appeal.

II.

¶ 8 Defendant argues the trial court erred in denying his motion to dismiss the charge of first-degree rape. Specifically, he contends the State presented insufficient evidence of serious personal injury. We disagree.

¶ 9 Following the State's presentation of evidence, the defense moved to dismiss the charge of first-degree rape for insufficiency of the evidence. The State argued evidence of serious personal injury was presented based on bruising, skin tears, vaginal tears, urinary tract infections, and emotional injury. The trial court denied the motion to dismiss, and the defense renewed the motion at the close of all evidence. Accordingly, this issue is properly preserved for appellate review. See State v. Golder , 374 N.C. 238, 246, 839 S.E.2d 782, 788 (2020) ("Rule 10(a)(3) provides that a defendant preserves all insufficiency of the evidence issues for appellate review simply by making a motion to dismiss the action at the proper time.").

¶ 10 This Court reviews the trial court's denial of a motion to dismiss de novo. State v. McKinnon , 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982). "It is well settled that in ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each essential element of the crime and whether the defendant is the perpetrator of that crime." State v. Everette , 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007) (purgandum ). "As to whether substantial evidence exists, the question for the trial court is not one of weight, but of the sufficiency of the evidence." State v. Harris , 361 N.C. 400, 402, 646 S.E.2d 526, 528 (2007) (citation omitted).

¶ 11 "Substantial evidence is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion." State v. McNeil , 359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005) (quotation marks and citation omitted). "In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose , 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted). "If the evidence adduced at trial gives rise to a reasonable inference of guilt, it is for the members of the jury to decide whether the facts shown satisfy them beyond a reasonable doubt of defendant's guilt." State v. Jones , 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981) (citation omitted).

¶ 12 Defendant was charged with one count of first-degree forcible rape under N.C. Gen. Stat. § 14-27.21. The statute provides in pertinent part:

A person is guilty of first-degree forcible rape if the person engages in vaginal intercourse with another person by force and against the will of the other person, and does any of the following:

(1) Uses, threatens to use, or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon.

(2) Inflicts serious personal injury upon the victim or another person.

(3) The person commits the offense aided and abetted by one or more other persons.

N.C. Gen. Stat. § 14-27.21 (2021) (emphasis added).

¶ 13 Defendant argues the State presented insufficient evidence tending to show he inflicted serious personal injury on the victim, which "may be met by a showing of physical injury as well as mental injury ...." State v. Lilly , 117 N.C. App. 192, 194, 450 S.E.2d 546, 548 (1994) (citation omitted). "[W]hether such serious injury has been inflicted must be determined according to the particular facts of each case." Id. (quotation marks and citation omitted).

¶ 14 Defendant asserts the physical injuries suffered by the victim in this case are unlike the physical injuries this Court has previously held sufficient to survive a motion to dismiss. See State v. Rogers , 153 N.C. App. 203, 210, 569 S.E.2d 657, 662 (2002) ; see also Lilly , 117 N.C. App. at 193, 450 S.E.2d at 547. Defendant further contends the urinary tract infections suffered by the victim after the rape were neither serious personal injuries nor sufficiently shown to have been "inflicted" by defendant.

¶ 15 Defendant also argues the victim did not suffer a serious mental injury. In order to show sufficient evidence of a serious mental injury, "the State must ordinarily offer proof that such injury was not only caused by the defendant but that the injury extended for some appreciable time beyond the incidents surrounding the crime itself." State v. Baker , 336 N.C. 58, 62, 441 S.E.2d 551, 555–56 (1994) (citation omitted). The harm must also be "more than the "res gestae " results present in every forcible rape." Id. at 63, 441 S.E.2d at 554. "Res gestae results are those ‘so closely connected to [an] occurrence or event in both time and substance as to be a part...