IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-496

No. COA20-476

Filed 21 September 2021

Wilson County, No. 17 CRS 53541

STATE OF NORTH CAROLINA

v.

JALEN TIWAYNE BRAKE

Appeal by defendant from judgments entered 2 October 2019 by Judge Marvin 

K. Blount III in Wilson County Superior Court. Heard in the Court of Appeals 25 

August 2021.

Attorney General Joshua H. Stein, by Special Deputy Attorney General M. 

Denise Stanford, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel K. 

Shatz, for defendant-appellant.

TYSON, Judge.

¶ 1 Jalen Tiwayne Brake (“Defendant”) appeals a jury’s verdict finding him guilty 

of first-degree forcible rape and second-degree forcible sexual offense and claims the 

two convictions are inconsistent and contradictory. We find no error. 

I. Background

¶ 2 “B.J.” traveled to Wilson, North Carolina on 7 October 2017 to attend a trail 

ride (the parties agree to use of a pseudonym to protect the identity of the 
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complainant). The trail ride included an event with tents, concessions, and dancing. 

B.J. attended the trail ride with her friends, Kristen Johnson, Tara Beaver, and 

Tara’s daughter. B.J. admittedly consumed “a significant amount” of vodka during 

the three-hour drive enroute to the trail ride. The four women arrived in Wilson 

between 9:00 p.m. and 11:00 p.m. B.J. was intoxicated. 

¶ 3 The four women went to the dance floor when they arrived. A disc jockey was 

playing music and some attendees were dancing. The four women met with Darius 

Tysor, a friend of both Tara and Kristen.

¶ 4 Defendant, who had recently turned sixteen, was attending the trail ride with 

his family. Defendant testified he had consumed four or five shots of corn liquor and 

four beers that evening. Defendant was present on the dance floor and testified B.J. 

was drunk, and “she was falling all up on me, grabbing on me . . . and she was just 

pushing her body up against me and everything.” 

¶ 5 After some time, Tara, Kristen, and Darius went to their car to get water, 

leaving B.J. on the dance floor with Defendant. B.J. testified she danced with 

Defendant and then “walked off with him,” but she could not recall “why.” Defendant 

and B.J. walked far enough away that they were not within eyesight of the dance 

floor.

¶ 6 B.J. testified Defendant became physically forceful with her. He got on top of 

her, kissed her, and “tr[ied] to do stuff.” B.J. testified, “he kept being really forceful 
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so I just remember thinking in my head, [B.J.], just relax, sit back and act like you’re 

going to be okay so you can kind of catch him off guard and I kicked him.” 

¶ 7 B.J. told Defendant “no” and to “stop,” and she kicked him and punched at him. 

Defendant stood up. B.J. thought the incident was over, so she started to stand up. 

When B.J. got onto her knees, Defendant hit her in the face and the back of her head.

¶ 8 B.J. testified, “I was on my knees and he was standing over me just like 

pummeling my head. I was crying. He kept telling me to shut the f**k up, bitch, 

don’t, stop crying.” B.J. continued, “I thought he was going to break my teeth out . . . 

I didn’t know if he was going to hit me in just the wrong spot and it was going to kill 

me.” 

¶ 9 Defendant stopped hitting B.J., pulled his pants down and inserted his penis 

into her mouth. Defendant told B.J. if she bit him, he would “f**k**g kill” her. 

Defendant repeated this warning several times. B.J. testified, “at that point I just 

decided to stop fighting because I didn’t want him to kill me . . . I’ve never experienced 

anything like it. And I was just terrified.” She stated Defendant was not “all the way 

erected” when his penis was thrust into her mouth.

¶ 10 Defendant pushed B.J. onto the ground upon her back, he removed her pants, 

boots, and underwear and got on top of her. B.J. was not sure if Defendant fully

penetrated her, but testified she could feel the pressure. Defendant then stood up, 

pulled his pants halfway up, pulled his belt around, and walked away towards the 
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tent area.

¶ 11 B.J. arose from the ground. She put on her pants but left off her boots. She 

walked to the dance floor to find a law enforcement officer. B.J. found deputies and 

told them she had been assaulted. She was taken to the hospital in an ambulance. 

¶ 12 B.J.’s injuries were photographed at the hospital. These photographs showed 

her face was swollen and bruised. The photographs also documented redness on the 

back of her head from being repeatedly hit, a scratch on her right arm, swelling of 

her left arm from blocking Defendant’s blows, scratches on her back and thighs, and 

redness on her knees. While at the hospital, B.J. was administered a rape kit, 

samples were collected, and she was examined by a physician. 

A. Darius Tysor’s Testimony

¶ 13 Darius testified he went to the trail ride to meet with Tara and Kristen. Darius

did not drink because he had planned to drive the four women home. Darius met the 

four women on the dance floor when they arrived. When Tara and Kristen went to 

the car to get water, Darius went with them. Darius noticed B.J. was dancing with 

Defendant as the group walked away from the dance floor. When the group returned

to the dance floor, B.J. and Defendant were gone.

¶ 14 Darius and Kristen looked for B.J. around the campground. The next time 

they saw B.J., she was walking towards the deputies on the side of the dance floor. 

Darius testified B.J. looked like she had been beat up and was hysterical. Darius
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said B.J. was not wearing her boots. 

¶ 15 Darius and Kristen looked for B.J.’s boots and found them lying beside a fence 

about 100 to 150 yards from the dance floor. After they found the boots, they began 

to look for Defendant.

B. Kristen Johnson’s Testimony

¶ 16 Kristen Johnson testified she recalled seeing B.J. dance with Defendant. B.J. 

asked for water, so the group left B.J. on the dance floor and went to the car. When 

they returned, B.J. was no longer on the dance floor.

¶ 17 Kristen testified that she and Darius began looking for B.J. and Defendant.

Kristen testified the next time she saw B.J. it was about 20-30 minutes from the last 

time she had seen her. Kristen testified she saw B.J. with some deputies, and Kristen

“started freaking out because I could see her face so I went up to her and I said, who 

did this to you. I thought she had got (sic) jumped, her injuries were so bad.” Kristen 

said B.J. was crying and replied, “He did it.” When deputies asked if B.J. had been 

seen, or had danced with any other men that night, Kristen stated B.J. had not.

¶ 18 Kristen and Darius spoke with Defendant’s uncle who took them to the tent 

where Defendant was located. Kristen observed Defendant was face down in the tent 

and he appeared to be “passed out.” Defendant had dirt and grass on the back of his 

shirt. Defendant’s pants were down around his knees. 

C. Deputy Moore’s Testimony
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¶ 19 Wilson County Sheriff’s Deputy Shonday Moore (“Deputy Moore”) was working 

security at the trail ride on 7 October 2017. Deputy Moore was standing near the 

dance floor with some other officers when he saw B.J. a little after midnight. Deputy 

Moore testified B.J. was staggering towards them and appeared to have been involved 

in an altercation. B.J. had swollen facial features and grass stains all over her 

clothes. B.J. reported she had been assaulted.

¶ 20 Deputy Moore noticed that B.J.’s pants were unzipped, and she was not 

wearing any shoes. B.J. had grass stains on her socks and clothes and had grass in 

her hair as well. Deputy Moore asked if “things went further,” and B.J. said that she 

did not know if penetration had taken place, but she told Deputy Moore the subject 

had tried, but she was unsure of the extent of the assaults. B.J. described her 

attacker as a black male with short, dreadlock-like style hair. 

¶ 21 Deputy Moore testified B.J. was “tore all to pieces,” very upset, became 

hysterical and started to hyperventilate. The prosecutor asked Deputy Moore at trial, 

“did [B.J.] tell you whether or not she fought back or not?” Deputy Moore replied, 

“She did tell me that she did fight back. She said she was fighting back but it wasn’t 

working.”

D. Detective Jackson’s Testimony

¶ 22 Wilson County Sheriff’s Detective Julie Jackson (“Detective Jackson”) was 

called to the hospital where B.J. was taken to investigate her assault. Detective 
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Jackson arrived at the hospital shortly after 1:20 a.m. and interviewed B.J. 

¶ 23 B.J. told Detective Jackson the “individual that she was on the dance floor with 

was the subject she walked away with and went to the woods with.” B.J. told 

Detective Jackson about the altercation and the subject had “possibly tried to 

penetrate her but she was unsure if penetration was made.” 

¶ 24 Defendant was arrested and transported to the sheriff’s department. Detective 

Jackson went to the sheriff’s office and collected an oral DNA swab from Defendant. 

E. DNA Evidence

¶ 25 A registered nurse collected various samples from B.J. for the rape kit while 

B.J. was at the hospital. One sample was a vaginal swab.

¶ 26 April Perry (“Perry”), a forensic scientist and body fluid analyst at the North 

Carolina State Crime Laboratory, testified at trial. Perry testified she examined the 

smear associated with the vaginal swabs under a microscope and identified sperm on 

the slide. Perry stated she forwarded the smear for DNA analysis. Perry noted that 

the sperm she had observed on the smear were intact with the tails still attached, 

indicating they had been deposited into the vagina less than 12 to 24 hours prior. 

¶ 27 Erin Wolfe (“Wolfe”), a forensic scientist at the North Carolina State Crime 

Laboratory, testified as an expert in DNA analysis. Wolfe was assigned to perform 

the DNA analysis for B.J.’s vaginal swabs and Defendant’s known blood sample. 

Wolfe’s analysis determined the major contributor profile of the DNA from the swab 
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sample obtained from inside B.J.’s vagina at the hospital matched the Defendant’s 

DNA profile.

F. Detective Rouse’s Testimony

¶ 28 Wilson County Sheriff’s Detective Michael Rouse (“Detective Rouse”) 

interviewed Defendant around 1:00 a.m. on 8 October 2017. Detective Rouse asked 

Defendant if there was any reason Defendant’s DNA would be anywhere on the 

victim. Defendant said no, and he denied having sexual intercourse with anyone that 

night. 

G. Defendant’s Testimony

¶ 29 Defendant testified he had danced with B.J. on the dance floor. He stopped 

dancing with her and walked away. Defendant claims B.J. returned and started 

dancing with him again. Defendant and his friends discussed how B.J. was pressing 

against him on the dance floor. Defendant testified he left the dance floor by himself

and went to his tent. 

¶ 30 Defendant further testified B.J. subsequently went into Defendant’s tent with 

his friend, Stephon. Defendant claims he and B.J. had consensual sex. B.J. left the 

tent and walked off with Stephon. Defendant then went to sleep. Stephon did not 

testify at trial.

II. Procedural history

¶ 31 Defendant was indicted for one count of first-degree forcible rape under N.C. 
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Gen. Stat. § 14-27.21, one count of first-degree forcible sexual offense under N.C. Gen. 

Stat. § 14-27.26, and one count of misdemeanor assault inflicting serious injury under 

N.C. Gen. Stat. § 14-33(c)(1). Prior to trial, the State dismissed the misdemeanor

charge. 

¶ 32 At trial, after the conclusion of the State’s evidence, defense counsel moved to 

dismiss Defendant’s charge of first-degree forcible rape. This motion was denied. 

Counsel renewed this motion at the conclusion of all evidence. This motion was also 

denied.

¶ 33 The jury returned verdicts and found Defendant guilty of first-degree forcible 

rape and second-degree forcible sexual offense. The trial judge sentenced Defendant 

to a term of active imprisonment of 240 to 348 months for the first-degree forcible 

rape conviction and 73 to 148 months imprisonment for the second-degree forcible 

sexual offense, with the sentences to run concurrently. Defendant appealed. 

III. Jurisdiction

¶ 34 This appeal is properly before this Court pursuant to N.C. Gen. Stat. §§ 7A27(b)(1), 15A-1444(a) (2019). 

IV. Issue

¶ 35 Whether the trial court erred by accepting the jury’s verdicts finding

Defendant guilty of first-degree rape and second-degree sexual offense when the

former verdict requires the jury to find Defendant inflicted serious injury on the 
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prosecuting witness and the latter verdict does not.

V. Standard of Review

¶ 36 Where a defendant asserts an issue of inconsistent verdicts, the standard of 

review is de novo. State v. Blackmon, 208 N.C. App. 397, 403, 702 S.E.2d 833, 837 

(2010).

VI. Analysis

¶ 37 Defendant asserts the jury’s verdicts finding him guilty of first-degree rape and 

second-degree sexual offense are inconsistent and contradictory. “[A] distinction is 

drawn between verdicts that are merely inconsistent and those which are legally 

inconsistent and contradictory.” State v. Mumford, 364 N.C. 394, 398, 699 S.E.2d 911, 

914 (2010). “It is firmly established that when there is sufficient evidence to support 

a verdict, mere inconsistency will not invalidate the verdict.” Id. (citation and internal 

quotation marks omitted). “[W]hen a verdict is inconsistent and contradictory, a 

defendant is entitled to relief.” Id. (citation omitted). 

¶ 38 Our Supreme Court has long held: “If two statutes are violated even by a 

single act and each offense requires proof of an additional fact which the other does 

not, an acquittal or conviction under either statute does not exempt the defendant 

from prosecution and punishment under the one statute.” State v. Birckhead, 256 

N.C. 494, 500, 124 S.E.2d 838, 843 (1962) (alterations, citations and internal 

quotation marks omitted).
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A. Indictments and Jury Verdicts

¶ 39 Defendant was indicted for first-degree forcible rape under N.C. Gen. Stat. §

14-27.21 and for first-degree forcible sexual offense under N.C. Gen. Stat. § 14-27.26. 

¶ 40 The elements of first-degree forcible rape require the jury to find the defendant: 

(1) engaged in vaginal intercourse with another, (2) by force, (3) against the will of 

the other person, and (4) inflicted serious personal injury upon the victim. N.C. Gen. 

Stat. § 14-27.21(a) (2019). The elements of second-degree forcible rape involve the 

first three elements of first-degree rape, but not the fourth element of serious 

personal injury. N.C. Gen. Stat. § 14-27.22(a) (2019).

¶ 41 The elements of first-degree forcible sexual offense are: (1) engaged in a sexual 

act with another, (2) by force, (3) against the will of the other person, and (4) inflicted

serious personal injury upon the victim. N.C. Gen. Stat. § 14-27.26(a) (2019). The 

elements of second-degree forcible sexual offense involve the first three elements of 

first-degree forcible sexual offense, but not the fourth element of serious personal 

injury. N.C. Gen. Stat. § 14-27.27(a) (2019).

¶ 42 Injuries to constitute “serious personal injury” have been held to include: “a 

bruised and swollen cheek, a cut lip, and two broken teeth.” State v. Jean, 310 N.C. 

157, 170, 311 S.E.2d 266, 273 (1984). 

¶ 43 Defendant argues that based upon the jury instructions, if the jury determined 

that Defendant had inflicted serious injury on B.J., the jury should have rendered 
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verdicts of guilty of first-degree forcible rape and first-degree forcible sexual offense. 

¶ 44 Defendant minimizes B.J.’s physical injuries sustained as a result of 

Defendant’s assaults. B.J.’s injuries were photographed and documented by medical 

professionals and testified to by several witnesses and law enforcement. Further, a 

conviction of second-degree forcible sexual offense does not require evidence and a 

finding of inflicting serious injury. See N.C. Gen. Stat. § 14-27.27(a). Defendant’s 

argument has no merit.

B. Two Counts Supported by Two Separate Acts

¶ 45 B.J. testified to the violence of Defendant’s attacks as she tried to stand up 

after Defendant tried to kiss her while laying on top of her upon the ground, “I 

remember like where he was hitting me I thought he was going to break my teeth out 

or something. I didn’t know if he was going to hit me in just the wrong spot and it 

was going to kill me.”

¶ 46 Defendant thrust his penis into B.J.’s mouth with threats of further violence 

to “kill” her, if she bit him. As B.J. testified, it was apparent to her at the beginning 

of the assault Defendant was unable to insert his penis because he did not have an 

erection. After Defendant removed his penis from B.J.’s mouth, he pushed her onto 

the ground, removed her jeans, boots and underwear, and attempted to thrust his 

penis into her vagina.

¶ 47 The jury could have determined Defendant inflicted these serious personal 
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injuries on B.J. to overcome her resistance to being raped and that he had committed 

the second-degree sexual offense, by forcing his penis into her mouth. Sufficient 

evidence supports the jury’s determination Defendant’s infliction of personal injuries 

on B.J. were all done by Defendant in order to forcibly rape her.

¶ 48 Even if the verdicts are inconsistent, they are not contradictory verdicts barred

by our Supreme Court’s ruling in Mumford. 364 N.C. at 399, 699 S.E.2d at 915. 

Mumford declares that jury verdicts may be influenced by many factors. Id.

[I]nconsistent verdicts─even verdicts that acquit on a 

predicate offense while convicting on the compound 

offense─should not necessarily be interpreted as a windfall 

to the Government at the defendant’s expense. It is equally 

possible that the jury, convinced of guilt, properly reached 

its conclusion on the compound offense, and then through 

mistake, compromise, or lenity, arrived at an inconsistent 

conclusion on the lesser offense.

Id. at 399, 699 S.E.2d at 915.

¶ 49 Our Supreme Court held, “[t]hat the verdict may have been the result of 

compromise, or of a mistake on the part of the jury, is possible . . . . verdicts cannot 

be upset by speculation or inquiry into such matters.” Id. (citation omitted). “[I]f the 

inconsistent verdicts are determined to be merely inconsistent, rather than mutually 

exclusive, then the verdicts will stand so long as the State has presented substantial 

evidence as to each element of the charges.” Blackmon, 208 N.C. App. at 403, 702 

S.E.2d at 838 (citation omitted). 
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¶ 50 “Verdicts are mutually exclusive when a verdict purports to establish that the 

[defendant] is guilty of two separate and distinct criminal offenses, the nature of 

which is such that guilt of one necessarily excludes guilt of the other.” Mumford, 364 

N.C. at 400, 699 S.E.2d at 915 (citation and internal quotation marks omitted). 

¶ 51 Here, the jury reached their conclusion on the first-degree forcible rape and 

rendered a verdict of guilty of second-degree sexual offense. The jury’s verdict could 

also be a demonstration of “lenity” towards Defendant and, the verdict should not be 

disturbed. Id. at 399, 699 S.E.2d at 915. 

¶ 52 These crimes are not mutually exclusive because guilt of one criminal act does 

not exclude guilt of the other. Sufficient evidence supports the guilty verdicts by the 

jury. Defendant has failed to show any prejudicial error and is not entitled to a new 

trial.

¶ 53 “If Defendant required greater specificity, he could have moved for a bill of 

particulars under N.C. Gen. Stat. § 15A-925 (2019) and/or for a special verdict sheet 

under N.C. Gen. Stat. § 15A-1340.16 (2019).” State v. Flow, __ N.C. App. __, __, 2021-

NCCOA-183 ¶ 70, __ S.E.2d __, __ (2021).

VII. Conclusion

¶ 54 The evidence presented at trial supports each conviction under N.C. Gen. Stat. 

§ 14-27.21 and a lesser-included offense under § 14-27.27. Defendant’s actions,

resulting in the two distinct charges, are not inconsistent and mutually exclusive. 
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Defendant received a fair trial, free from prejudicial errors he preserved and argued.

We find no error in the jury’s verdicts or in the judgments entered thereon. It is so 

ordered.

NO ERROR.

Judges CARPENTER and GRIFFIN concur.