STATE OF NORTH CAROLINA v. XAY VANG

Xay Vang (“Defendant”) appeals from judgments entered upon jury verdicts

finding him guilty of second-degree rape, second-degree sexual offense, second-degree

kidnapping, assault with a deadly weapon, and assault with a deadly weapon

inflicting serious injury. We find no error.

The evidence, in the light most favorable to the State, tended to show the

following: In the summer of 2013, Defendant had been married to Wife1 for twenty

four years, and Defendant and Wife had three sons and two daughters together. At

that time, Wife worked the third shift and was the sole income provider for the family.

Defendant was unemployed and had been since 2010.

Wife testified that, during the summer of 2013, her relationship with

Defendant became “horrible.” In June 2013, sometime after Father’s Day, Defendant

“just totally changed” and began “acting weird.” Defendant accused Wife of having

an affair with the husband of Wife’s best friend. Defendant took Wife’s keys and

phone and “kept [her] in the house.” Defendant insisted on driving Wife whenever

she went to work. Wife denied having ever “cheated on” Defendant. Wife testified

her sexual relations with Defendant changed from consensual to non-consensual, and

that Defendant was “constantly having sex with me. He don’t let me rest. He done

one and he need another.” Defendant’s behavior took a decided change for the worse

during the time period between the middle of June 2013 and 19 July 2013. Wife

testified that her “husband [had] sex with [her] against [her] will.” When Defendant

was unable to maintain an erection, Defendant would force Wife to perform oral sex

on him.

Defendant drove Wife to Charlotte on or around 28 June 2013 to purchase

“crystal meth . . . because it was good for their sex.” At some point during the drive,



Defendant threatened to kill Wife and their children if Wife did not tell him the name

of her alleged lover. Defendant began hitting Wife, forcing her to jump out of the car.

Wife was injured and taken to the hospital. Following this incident, Wife took out a

domestic violence protective order against Defendant, which required Defendant to

leave their house. However, on 10 July 2013, Wife allowed Defendant to move back

into the house “[b]ecause he cry, he begging me; he try to make phone call and let the

kids give it to me and talking to me, and then he have an agree with me. He said

that he would never hurt me again, so I give him another chance.” However,

Defendant subsequently told Wife that “if [she] ever put him in jail when he ever get

out he’s going to finish [her] and the kids.”

Wife was then asked specifically about the dates of “July 15th and then July

18th” of 2013. Wife was asked: “On those two occasions . . . did [Defendant] force you

to have intercourse with him?” Wife answered: “Yes[,]” and stated that it happened

“all the time.” Defendant told Wife that Wife’s alleged lover “must be having black

magic on [her,]” which Defendant believed caused Wife to “cheat[ ] on him” and was

the reason “why [Wife did not] like [Defendant] anymore[.]” Wife testified that

Defendant forced her to perform various acts in an effort to cleanse her of “evil

spirits.”

Wife testified that these acts included forcing her to twice “bathe” in a large

container filled with cow manure and water. Wife testified that these baths were

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“nasty” and made her “feel really weird.” Defendant also forced Wife to drink “chicken

poo” because it was a “cure” for the black magic with which Defendant believed Wife

had been afflicted. Subsequent to twice having been forced to soak in the container

filled with cow manure and water, Wife testified that Defendant forced her to make

a choice:

A . . . . He say that if I rather take the cow poo or have sex with him.

Q And what did you choose to do?

A I rather choose sleep with him instead of soak with that for a couple hours.

Q When you did those things, or when you had sex with your husband instead of taking a cow poo bath, did you want to have sex with your husband then?

A Well, because I have no choice.

Q Okay.

A I rather do the intimate and then not soaking for a few hours. It’s, you know, like, it’s nasty all over me and it probably get into my skin too.

Wife further testified concerning this event: “He have – he give me no choice. He just

made me a choice that rather I take the cow poo or have sex with him.”

On or about 18 July 2013, Defendant drove Wife to an auto parts store. Wife

waited in the car while Defendant purchased some razor blades and then they

returned to their house. After returning to their house, Defendant took Wife to the

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bedroom, told her to undress, and told her that he was “going to put his name on [her]

chest because [she] belong[ed] to him.” Two of Defendant’s and Wife’s sons, and both

of their daughters, were home at the time. Wife told Defendant “no,” to which

Defendant responded by locking the bedroom door and removing Wife’s shirt. After

removing Wife’s shirt, Defendant began carving each letter of his full name into

Wife’s chest with a razor blade.

Wife cried out for help and was heard by her oldest daughter, who began

banging on the bedroom door. Defendant told his daughter to “stay away, don’t come

inside.” Defendant then opened the door, ran to the kitchen, and grabbed a knife.

Wife rushed out of the bedroom and pleaded with Defendant not to harm their

daughter, telling him: “[I]f you’re going to do anything just hurt me, don’t hurt my

kids.” Wife grabbed the knife from Defendant, returned it to the kitchen, and then

went with Defendant back to the bedroom, where Defendant “start[ed] carving”

again. Once Defendant finished carving his name into Wife’s chest, he carved her

name onto his own chest. These events lasted at least two hours. Wife testified that

Defendant had done the same thing, carve his name into her chest, in 2004 as well.

The following day, Defendant’s cousin arrived at the house for a visit. While

Defendant was outside with his cousin, Wife jumped out of a window near the front

door of their house, ran across the street to a neighbor’s house, and asked the

neighbor to call the police. Shortly thereafter, the police arrived at the neighbor’s

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house and Wife was taken to the hospital to receive treatment for her chest wound.

Defendant was indicted for second-degree rape, second-degree sexual offense,

first-degree kidnapping, assault with a deadly weapon, and assault with a deadly

weapon inflicting serious injury. Defendant moved to dismiss the charges at the close

of the State’s evidence, which the trial court denied. Defendant did not present

evidence at trial. The jury found Defendant guilty of one count of second-degree rape,

one count of second-degree sexual offense, one count of second-degree kidnapping, one

count of assault with a deadly weapon, and one count of assault with a deadly weapon

inflicting serious injury. The jury found Defendant not guilty of one count of second

degree rape and one count of second-degree sexual offense. The trial court imposed

two terms of twenty-five to forty-two months’ imprisonment and two terms of 73 to

148 months’ imprisonment, each to run consecutively, and ordered Defendant to

enroll in lifetime satellite-based monitoring. Defendant appeals.

II. Analysis

Defendant’s only contention on appeal is that the trial court erred by denying

his motion to dismiss the charges of second-degree rape and second-degree sexual

offense. We disagree.

Upon the defendant’s motion to dismiss, the question for the court is whether substantial evidence was introduced of each element of the offense charged and that the defendant was the perpetrator. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” The issue of

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substantiality is a question of law for the court. If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the perpetrator, the motion to dismiss should be allowed. This is true even though the suspicion is strong.

The court is to consider the evidence in the light most favorable to the State in ruling on a motion to dismiss The State is entitled to every reasonable intendment and inference to be drawn from the evidence; contradictions and discrepancies do not warrant dismissal—they are for the jury to resolve.

State v. Alston, 310 N.C. 399, 404, 312 S.E.2d 470, 473 (1984) (citations omitted).

Defendant specifically argues that there was insufficient evidence to prove that

the sexual acts were against Wife’s will, or that Defendant forced Wife to engage in

the sexual acts. Both second-degree rape and second-degree sex offense require that

the State prove lack of consent and force. N.C. Gen. Stat. § 14-27.22 (a) (2015) (“A

person is guilty of second-degree forcible rape if the person engages in vaginal

intercourse with another person: (1) By force and against the will of the other

person[.]”); N.C. Gen. Stat. § 14-27.27(a) (2015) (“A person is guilty of second[-]degree

forcible sexual offense if the person engages in a sexual act with another person: (1)

By force and against the will of the other person[.]”). “Second degree rape involves

vaginal intercourse with the victim both by force and against the victim’s will.

Consent by the victim is a complete defense, but consent which is induced by fear of

violence is void and is no legal consent.” Alston, 310 N.C. at 407, 312 S.E.2d at 475

(citations omitted). “If the particular act of intercourse for which the defendant is

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charged was both by force and against the victim’s will, the offense is rape without

regard to the victim’s consent given to the defendant for prior acts of intercourse.” Id.

(citations omitted). “Evidence of physical resistance is not necessary to prove lack of

consent in a rape case in this jurisdiction.” Id. at 408, 312 S.E.2d at 475 (citation

omitted). “[A]ctual physical force need not be shown in order to establish force

sufficient to constitute an element of the crime of rape. Threats of serious bodily

harm which reasonably induce fear thereof are sufficient.” Id., 312 S.E.2d at 476

(citation omitted).

[T]he absence of an explicit threat is not determinative in considering whether there was sufficient force in whatever form to overcome the will of the victim. It is enough if the totality of the circumstances gives rise to a reasonable inference that the unspoken purpose of the threat was to force the victim to submit to unwanted sexual intercourse.

Id. at 409, 312 S.E.2d at 476 (citation omitted).

Defendant primarily argues that our Supreme Court’s opinion in Alston

requires that this Court reverse the trial court’s denial of Defendant’s motions to

dismiss the charges of second-degree rape and second-degree sex offense.

The facts giving rise to Alston were unusual ones. The prosecutrix, one Ms. Brown, had engaged in a consensual, though somewhat turbulent, sexual relationship with the defendant for six months prior to the alleged rape. The relationship involved some violence by the defendant, who struck Ms. Brown when she refused him money, and some passivity by Ms. Brown, who on several occasions remained entirely motionless while the defendant undressed her and had intercourse with her. On the day of the alleged rape,

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the defendant waited outside the school which Ms. Brown attended. He grabbed her arm and told her she was going with him. As they walked away, he threatened to “fix” her face. The two then walked around the neighborhood and discussed their relationship, eventually arriving at the home of the defendant’s friend. The defendant began to undress Ms. Brown and told her to lie down on the bed. She complied, whereupon he pushed her legs apart and had intercourse with her. She cried but attempted no physical resistance.

This Court, recognizing that Ms. Brown’s prior consensual relationship with the defendant rendered any inquiry on the issue of force more difficult, determined that the acts complained of were committed against Ms. Brown’s will but were not committed forcibly. We noted that the defendant’s grabbing of Ms. Brown and his threat to “fix” her face, “although they may have induced fear, appeared to have been unrelated to the act of sexual intercourse between Brown and the defendant.” We thereupon concluded that “absent evidence that the defendant used force or threats to overcome the will of the victim to resist the sexual intercourse alleged to have been rape, such general fear was not sufficient to show that the defendant used the force required to support a conviction of rape.”

State v. Etheridge, 319 N.C. 34, 45-46, 352 S.E.2d 673, 680-81 (1987) (citations

omitted). We find that the facts in the present case are such that Alston does not

control the outcome of this case.

A. Consent

Defendant relies on the following language from Alston in support of his

argument that the State failed to provide substantial evidence of Wife’s lack of

consent:

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Where[,] as here[,] the victim has engaged in a prior continuing consensual sexual relationship with the defendant, however, determining the victim’s state of mind at the time of the alleged rape obviously is made more difficult. Although inquiry in such cases still must be made into the victim’s state of mind at the time of the alleged rape, the State ordinarily will be able to show the victim’s lack of consent to the specific act charged only by evidence of statements or actions by the victim which were clearly communicated to the defendant and which expressly and unequivocally indicated the victim’s withdrawal of any prior consent and lack of consent to the particular act of intercourse.

Alston, 310 N.C. at 407-08, 312 S.E.2d at 475 (emphasis added). “Consent, however,

is not synonymous with submission, for submission due to fear, fright, coercion or

realization that in the particular situation resistance is futile is not consent sufficient

to provide the defense.” State v. Ricks, 34 N.C. App. 734, 735, 239 S.E.2d 602, 603

(1977) (citations omitted). We note that our Supreme Court in Alston held that the

evidence showing a lack of consent by the accuser in that case was sufficient to survive

the defendant’s motion to dismiss the charge of second-degree rape.

In the present case, there was evidence presented that Defendant had

physically assaulted Wife prior to 15 July 2013, once causing Wife to have to go to the

hospital. Defendant had threatened to kill Wife and their children. Subsequent to

those threats, Wife took out a domestic violence protective order against Defendant,

which required that Defendant leave the marital home. After Wife allowed

Defendant to return to their home, Defendant again threatened to kill her and their

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children if Wife ever caused Defendant to be incarcerated. Wife testified that she was

forced to engage in intercourse and fellatio with Defendant following his return to the

home, and that she did not consent to those sexual acts. Wife testified that she

engaged in nonconsensual sexual relations with Defendant based upon coercion –

Defendant told Wife that he would force her to take another “bath” in cow manure if

she did not engage in sexual relations with him. Defendant had forced Wife to engage

in this bizarre ritual twice before.

Whether to believe Wife’s testimony related to consent was an issue for the

jury to determine. See State v. Davis, 291 N.C. 1, 16, 229 S.E.2d 285, 295 (1976). We

hold, taking into consideration all evidence favorable to the State and within the

relevant context, that the jury could have determined that Defendant knew, or should

have known, that Wife did not consent to the sexual acts.

B. Force

Next, Defendant argues that there was insufficient evidence that the

intercourse and fellatio were the product of force. Our Supreme Court has explained:

The phrase “by force and against the will of the other person” means the same as it did at common law when it was used to describe an element of rape. The requisite force may be established either by actual, physical force or by constructive force in the form of fear, fright, or coercion. Constructive force is demonstrated by proof of threats or other actions by the defendant which compel the victim’s submission to sexual acts. Threats need not be explicit so long as the totality of circumstances allows a reasonable inference that such compulsion was the unspoken purpose

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of the threat.

Etheridge, 319 N.C. at 45, 352 S.E.2d at 680 (citations omitted). Our Supreme Court

explained its reasoning for holding there was insufficient evidence supporting the

element of force in Alston as follows:

[The defendant] stopped and told Brown [the accuser] he was going to “fix” her face so that her mother could see he was not “playing.” This threat by the defendant and his act of grabbing Brown by the arm at the school, although they may have induced fear, appeared to have been unrelated to the act of sexual intercourse between Brown and the defendant. More important, the record is devoid of evidence that Brown was in any way intimidated into having sexual intercourse with the defendant by that threat or any other act of the defendant on June 15. Brown said she did not pay a lot of attention to what the defendant said because she was thinking about other things. She specifically stated that her fear of the defendant was based on an experience with him prior to June 15 and that on June 15 he did not hold her down or threaten her with what would happen if she refused to submit to him. The State failed to offer substantial evidence of force used or threatened by the defendant on June 15 which related to his desire to have sexual intercourse on that date and was sufficient to overcome the will of the victim.

We note that the absence of an explicit threat is not determinative in considering whether there was sufficient force in whatever form to overcome the will of the victim. It is enough if the totality of the circumstances gives rise to a reasonable inference that the unspoken purpose of the threat was to force the victim to submit to unwanted sexual intercourse. The evidence introduced in the present case, however, gave rise to no such inference. Under the peculiar facts of this case, there was no substantial evidence that threats or force by the defendant on June 15 were sufficiently related to sexual conduct to cause Brown to

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believe that she had to submit to sexual intercourse with him or suffer harm.

Alston, 310 N.C. at 408-09, 312 S.E.2d at 476 (emphasis added) (citations omitted).

In the present case, there was evidence that Defendant was consistently

motivated by his desire to engage in sexual intercourse with Wife. Specifically,

Defendant threatened to force Wife back into a tub full of cow manure if she did not

submit to his sexual advances. Wife testified that she chose to submit to Defendant’s

sexual advances solely in order to avoid having to take the manure “bath” for a third

time. At the time she was forced to make this decision, Wife knew that: (1) Defendant

had been violent with her in the past, resulting in her obtaining a domestic violence

protective order against Defendant, and treatment from a hospital; (2) Defendant had

accused her of having an affair and Defendant engaged in bizarre and dangerous

behavior; (3) Defendant monitored and restricted her freedom of movement; (4)

Defendant took, and forced her to take, illegal drugs to enhance his sexual pleasure;

(5) Defendant had threatened to kill her and her children on multiple occasions; (6)

Defendant had forced her to engage in constant unwanted sexual acts; and (7)

Defendant had carved his name into her chest – an act he would repeat just several

days later. We hold that, on these facts, the evidence of constructive force presented

by the State was sufficient to survive Defendant’s motions to dismiss the charges of

second-degree rape and second-degree sex offense.

Because we hold that the State presented substantial evidence in support of

the consent and force elements for the charges of second-degree rape and second degree sex offense, we hold that the trial court did not err in denying Defendant’s motions to dismiss.



NO ERROR.