STATE OF NORTH CAROLINA v. GREGORY ANTHONY GARDNER

The evidence at trial tended to show the following:

On 14 August 2009, Chelsea Sanders (“Sanders”)1 and her boyfriend Terry

Cress (“Cress”) traveled to Washington, N.C. for a weekend getaway at a hotel. After

drinking at the hotel bar, the couple returned to the hotel room at approximately 2:00

a.m. An hour or two later, Sanders had undressed and was lying in bed when she

heard a knock at the door. Cress got up to answer the door, and Sanders overhead

Cress say, “You don’t have to do that” to someone in the hall.

Two men, Defendant and McMurren, entered the hotel room and McMurren

forced Cress at gunpoint to sit in a chair while both men began rummaging through

Sanders’s and Cress’s personal belongings. Sanders identified one of the men

rummaging through her items as Defendant. Defendant repeatedly asked Sanders

where she was hiding a gun, and in response told Defendant and McMurren she had

nothing because she was naked.

1 Consistent with our practice in cases involving sexual assault, we refer to the victims in this case by pseudonyms to protect their privacy. See, e.g., State v. Gordon, ___ N.C. App. ___, ___, 789 S.E.2d 659, 661 n 1 (2016).

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After learning Sanders was naked, Defendant put his fingers in Sanders’s

vagina several times, despite repeated attempts by Sanders to stop him. Defendant

then asked McMurren for the gun but McMurren did not give him the gun. Defendant

then grabbed Sanders’s throat, pushed her down to the bed, and penetrated her

vagina with his penis. Simultaneously, McMurren inserted his penis in Sanders’s

mouth, which he forced open with his gun. After the sexual assault, Defendant and

McMurren took $300 from Cress and left the hotel room. Cress did not hear

McMurren threaten Defendant and never saw McMurren point the gun at Defendant.

Cress immediately reported the incident to the hotel and called the police, who

arrived minutes later.

Sanders went to the hospital and had a rape kit performed and was examined

and interviewed by a nurse.

Detective Ronald Black (“Detective Black”) interviewed McMurren after he

was arrested for an unrelated probation violation. McMurren confessed to his

involvement and implicated Defendant. Defendant was arrested later that day and

charged with first degree rape, robbery with a dangerous weapon, first degree

burglary, first degree kidnapping, and second degree kidnapping.

Detective Black and Jesse Dickenson interviewed Defendant at the police

station. During the interview, Defendant was crying, shaking, and extremely upset,

and said, “A girl got raped.” Defendant said McMurren had threatened him while

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they were in the hotel room, Defendant was fearful of McMurren, McMurren pointed

the gun at Defendant and McMurren told him to “play with” Sanders. Defendant told

police the reason he initially walked into the room was that McMurren told him to

and he was scared. Defendant stated that when Sanders resisted his sexual advances

he tried to leave, but McMurren pointed the gun at him. Defendant told police that

after he and McMurren left the victims’ hotel room, they took off running back to

Defendant’s hotel room.

Defendant pleaded not guilty to all charges and the case proceeded to trial on

14 November 2011. At the close of all evidence, during a charge conference, counsel

for Defendant requested jury instructions on the defense of coercion and duress; the

trial court denied this request. On 18 November 2011, the jury found Defendant

guilty of two counts of first degree sexual offense, robbery with a dangerous weapon,

and first degree burglary. Defendant gave notice of his appeal in open court.

II. Analysis

Defendant contends that the trial court erred in denying his requested jury

instruction on the affirmative defense of duress or coercion. Specifically, he argues

that because he presented sufficient evidence as to all elements of the defense, the

court’s refusal to provide the instruction violated his constitutional right to due

process and right to establish a defense in criminal cases. We disagree.

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A trial court’s ruling regarding jury instructions is reviewed de novo. State v.

Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). “[A] trial court is required

to comprehensively instruct the jury on a defense to the charged crime when the

evidence viewed in the light most favorable to the defendant reveals substantial

evidence of each element of the defense.” State v. Ferguson, 140 N.C. App. 699, 706,

538 S.E.2d 217, 222 (2000) (internal quotation marks and citation omitted).

“ ‘Substantial evidence’ is that amount of relevant evidence that a reasonable

mind might accept as adequate to support a conclusion.” State v. Gray, 337 N.C. 772,

777–78, 448 S.E.2d 794, 798 (1994). “The issue of whether the evidence presented

constitutes substantial evidence is a question of law for the court.” State v.

Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982).

The defense of coercion or duress requires “a defendant . . . to show that his

actions were caused by a reasonable fear that he would suffer immediate death or

serious bodily injury if he did not so act.” State v. Cheek, 351 N.C. 48, 62, 520 S.E.2d

545, 553 (1999) (internal quotation marks and citation omitted). “Duress, however,

cannot be invoked as an excuse by one who had a reasonable opportunity to avoid

doing the act without undue exposure to death or serious bodily harm.” State v.

Brown, 182 N.C. App. 115, 118, 646 S.E.2d 775, 778 (2007) (internal quotation marks

and citation omitted). Such exposure “must be present, imminent or impending, and

of such a nature as to induce a well-grounded apprehension of death or serious bodily

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harm if the act is not done.” State v. Smith, 152 N.C. App. 29, 39, 566 S.E.2d 793,

800 (2002). Finally, and most significantly in this case, “[w]here [a] defendant begins

to participate in a crime or series of crimes as a willing participant, later threats do

not retroactively allow him a defense of duress.” State v. Sanders, 201 N.C. App. 631,

636, 687 S.E.2d 531, 536 (2010) (emphasis added) (citation omitted).

Defendant and McMurren engaged in a series of crimes, initiating a robbery of

the victims and then sexually assaulting Sanders. Defendant does not argue that he

was coerced into engaging in the robbery, but only that he engaged in the sexual

assault under duress after McMurren pointed a gun at him. Indeed, Defendant

concedes that his argument on appeal “is over whether, having gone along with the

robbery, [Defendant] was then forced to commit a sex act.” (emphasis added).

Because Defendant did not argue that he was coerced into participating in the

robbery, he was not entitled to a retroactive defense of duress, and the trial court did

not err in denying a jury instruction as to the defense.

Because Defendant did not deny voluntarily engaging in the crime of robbery,

the trial court did not err in denying Defendant’s request to instruct the jury on the affirmative defense of duress or coercion related to sexual assaults committed in the

course of the robbery.