Criminal Practice — Constitutional – Double Jeopardy Argument – Attorneys – Ineffective Assistance of Counsel Claim – Statutory Rape & Second-Degree Rape

State v. Banks (Lawyers Weekly No. 14-06-1200, 11 pp.) (Cheri Beasley, J.) (Barbara Jackson & Robert Hunter, JJ., not participating) Appealed from Rowan County Superior Court (Anna Mills Wagoner, J.) On discretionary review from the Court of Appeals. N.C. S. Ct.

Holding: Even though defendant’s convictions of second-degree rape and statutory rape are based on a single instance of sexual intercourse, since the state had to prove different elements for each crime (i.e., mental incapacity for second-degree rape and age factors for statutory rape), defendant was not placed in double jeopardy when he was punished for both crimes. Accordingly, he has failed to prove that he received ineffective assistance of counsel based on defense counsel’s failure to argue the double jeopardy issue.

We reverse the decision of the Court of Appeals.

Given the elements of second-degree rape and statutory rape, it is clear that the legislature intended to separately punish the act of intercourse with a victim who, because of her age, is unable to consent to the act, and the act of intercourse with a victim who, because of a mental disability or mental incapacity, is unable to consent to the act.