State v. Alston

In State v. Alston, 111 N.C. App. 416, 432 S.E.2d 385 (1993), the defendant was charged in separate indictments for the sale of cocaine on school property, felonious possession of cocaine, possession of cocaine with intent to sell and deliver, and sale of cocaine. Id., 111 N.C. App. at 421, 432 S.E.2d at 388. The trial court submitted separate verdicts for sale of cocaine and sale of cocaine within 300 feet of school property, and this Court, ex mero moto, said this was error and arrested defendant's conviction for the sale of cocaine. Id. In determining the separate verdicts were error, this Court held, "the sale on school property constituted an aggravated sale pursuant to G.S. 90-95(e)(8). Since that was the only sale made, defendant could be punished for but one sale." Id. In State v. Alston, 310 N.C. 399, 312 S.E.2d 470 (1984), the Court stated: 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. Id. at 407-08, 312 S.E.2d at 475. In Alston, the victim "gave no physical resistance to the defendant," and the Court held that there was no evidence of force. Id. at 408, 312 S.E.2d at 475.