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State v. Callahan
Citations: 356 S.E.2d 403; 86 N.C. App. 88; 1987 N.C. App. LEXIS 2658Docket: 8616SC1235
Court: Court of Appeals of North Carolina; June 2, 1987; North Carolina; State Appellate Court
In the case of State of North Carolina v. Charles Buford Callahan, the North Carolina Court of Appeals addressed multiple convictions against the defendant, including rape and kidnapping, for which no errors were found. However, the court identified two issues regarding the conviction for second degree sex offense. Firstly, the defendant claimed entitlement to a new trial due to the trial court's refusal to instruct the jury on the lesser included offense of attempt. The court ruled that the evidence did not support this claim. The victim's testimony indicated that the defendant attempted vaginal intercourse but mistakenly engaged in anal intercourse before successfully completing vaginal penetration. The court clarified that for an attempt instruction to be warranted, there must be evidence of intent and actions that go beyond mere preparation but fall short of completion, which was not established in this case. Secondly, the court acknowledged an error in the jury instructions that allowed for a conviction based on disjunctive findings of either fellatio or anal intercourse. This raised concerns about the defendant's right to a unanimous verdict, as it was unclear whether the jury collectively agreed on the specific acts constituting the offense. The court referenced a precedent that similarly highlighted the necessity of a unanimous verdict for conviction. As a result, the court determined that the defendant was denied his constitutional right to a unanimous jury verdict, leading to the reversal of the second degree sexual offense conviction and a remand for a new trial. The court maintained the convictions for the other charges, affirming no errors in those cases.