              IN THE SUPREME COURT OF NORTH CAROLINA
                                   No. 90PA13
                             Filed 19 December 2014

STATE OF NORTH CAROLINA

             v.
EDY CHARLES BANKS, JR.



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous

decision of the Court of Appeals, ___ N.C. App. ___, 736 S.E.2d 843 (2013), reversing

and remanding an order denying defendant’s motion for appropriate relief entered

on 5 December 2011 by Judge Anna Mills Wagoner in Superior Court, Rowan

County. Heard in the Supreme Court on 17 February 2014.


      Roy Cooper, Attorney General, by Amy Kunstling Irene, Assistant Attorney
      General, for the State-appellant.

      Allison Standard for defendant-appellee.


      BEASLEY, Justice.


      Petitioner Edy Charles Banks, Jr., in his motion for appropriate relief (MAR),

claims that he received ineffective assistance of counsel (IAC) when his trial counsel

failed to object on double jeopardy grounds to his being sentenced by the trial court

for both statutory rape and second-degree rape when the convictions were

predicated on a single act of sexual intercourse with the victim. We conclude that

defendant was properly convicted of both statutory rape and second-degree rape
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                                 Opinion of the Court



committed during a single act of sexual intercourse and that separate punishments

for each offense are appropriate.    Consequently, defendant could not have been

prejudiced by ineffective assistance of counsel when a double jeopardy argument

would have been unsuccessful at trial. We, therefore, reverse the decision of the

Court of Appeals.


      In 2007 Banks was convicted of statutory rape of a fifteen-year-old child,

second-degree rape of a mentally disabled person, and taking indecent liberties with

a child. The evidence presented in support of these convictions tended to show that

on 4 May 2005, Banks engaged in a single act of vaginal intercourse with J.L., a

juvenile who suffers from various mental disorders and is mildly to moderately

mentally disabled. At the time of the incident, Banks was twenty-nine years old

and J.L. was fifteen years old. The trial court sentenced Banks to a presumptive-

range term of 240 to 297 months of imprisonment for the statutory rape conviction.

The trial court consolidated the second-degree rape and indecent liberties

convictions into one judgment and sentenced Banks to a consecutive, presumptive-

range term of 73 to 97 months of imprisonment.           Banks’s convictions were

subsequently upheld on direct appeal. See State v. Banks, 201 N.C. App. 591, 689

S.E.2d 245, 2009 WL 4931757 (unpublished).


      On 2 September 2011, Banks filed an MAR in Superior Court, Rowan

County, asserting that his


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             convictions of statutory rape and second degree rape for
             the same act violate the protection against double
             jeopardy in the Fifth Amendment to the United States
             Constitution and the North Carolina Constitution’s law of
             the land provision in Article 1, Section 19. Trial counsel’s
             failure to raise this claim at trial constitutes ineffective
             assistance of counsel in violation of the Fifth, Sixth, and
             Fourteenth Amendments to the United States
             Constitution and the North Carolina Constitution, Article
             1, Sections 19 and 23.

The trial court, without conducting an evidentiary hearing on Banks’s IAC claim,

entered an order on 5 December 2011 denying Banks’s MAR. The court applied the

test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180,

182, 76 L. Ed. 306, 309 (1932).      The test, established as a means to identify “

‘congressional intent to impose separate sanctions for . . . offenses arising in the

course of a single act or transaction,’ ” Albernaz v. United States, 450 U.S. 333, 337,

101 S. Ct. 1137, 1141, 67 L. Ed. 2d 275, 281 (1981) (citations omitted), requires the

trial court to consider “whether each provision requires proof of a fact which the

other does not,” Blockburger, 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309

(citations omitted). Applying this test, the trial court determined that statutory

rape and second-degree rape “constitute separate and distinct crimes” and that

“there is no clear legislative intent to prohibit multiple convictions for the same

conduct in the [applicable criminal] statutes.” Accordingly, the trial court found

that “[Banks]’s rights against double jeopardy were not violated” and thus, “trial

counsel was not ineffective in failing to raise the claim.”



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                                  Opinion of the Court



      Banks petitioned the Court of Appeals for a writ of certiorari to review the

trial court’s denial of his MAR. The Court of Appeals allowed Banks’s petition,

reversed the trial court’s order, and remanded for further proceedings consistent

with its opinion. State v. Banks, ___ N.C. App. ___, ___, ___, 736 S.E.2d 843, 845,

847 (2013). In its opinion the Court of Appeals held that the General Assembly did

not intend for Banks to be punished separately for both statutory rape and second-

degree rape based upon a single act of sexual intercourse, and thus Banks had been

improperly sentenced. Id. at ___, 736 S.E.2d at 847. The Court of Appeals based its

holding exclusively upon its prior decision in State v. Ridgeway, 185 N.C. App. 423,

648 S.E.2d 886 (2007), in which the court concluded that the General Assembly did

not intend cumulative punishment for statutory rape and sexual offense when the

convictions were based on a single act. Id. at 434-35, 648 S.E.2d at 894-95.


      The State petitioned this Court for discretionary review, which we allowed on

27 August 2013. The State contends that the Court of Appeals erred in holding that

Banks received ineffective assistance of counsel because of trial counsel’s failure to

argue that Banks could not, consistent with double jeopardy principles, be

sentenced for both statutory rape and second-degree rape when the convictions

stemmed from a single act of sexual intercourse with the same victim. To prevail on

an IAC claim, the defendant must satisfy a two-part test.              Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

             First,   the   defendant    must     show   that   counsel’s

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                                    Opinion of the Court



               performance was deficient. This requires showing that
               counsel made errors so serious that counsel was not
               functioning as the “counsel” guaranteed the defendant by
               the Sixth Amendment. Second, the defendant must show
               that the deficient performance prejudiced the defense.
               This requires showing that counsel’s errors were so
               serious as to deprive the defendant of a fair trial, a trial
               whose result is reliable.

Id. The United States Supreme Court has explained, however, that a reviewing

court need not “address both components of the inquiry if the defendant makes an

insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice, . . . that course should be followed.”

466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699. Because we conclude that

Banks was not prejudiced by trial counsel’s failure to raise the double jeopardy

argument, we need not determine whether counsel’s performance was deficient.


         The State argues that Banks was not prejudiced by counsel’s failure to raise

the argument that defendant could not be punished for both second-degree rape and

statutory rape because any such argument would have been unsuccessful.               We

agree.

                      Where multiple punishment [in a single
               prosecution] is involved, the Double Jeopardy Clause acts
               as a restraint on the prosecutor and the courts, not the
               legislature. The Double Jeopardy Clauses of both the
               United States and North Carolina Constitutions prohibit
               a court from imposing more punishment than that
               intended by the legislature. “[T]he question whether
               punishments imposed by a court after a defendant’s
               conviction upon criminal charges are unconstitutionally
               multiple cannot be resolved without determining what

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             punishments the Legislative Branch has authorized.”

State v. Gardner, 315 N.C. 444, 452-53, 340 S.E.2d 701, 707-08 (1986) (second

alteration in original) (citations omitted). Therefore, the issue here is whether the

General Assembly intended a single act of sexual intercourse to support

punishments for both statutory rape and second-degree rape when the elements of

both offenses are satisfied.


      We first note that the reasoning underlying Ridgeway, the case on which the

Court of Appeals largely relied, is inapplicable. In Ridgeway the issue was whether

the trial court properly allowed the jury to consider both first-degree rape and

statutory sexual offense as grounds for convicting the defendant. 185 N.C. App. at

433-35, 648 S.E.2d at 894-95.        The Court of Appeals concluded that while

submitting both charges to the jury was proper, “judgment must be arrested on one

count of first degree rape and on one count of first degree sexual offense,” id. at 434,

648 S.E.2d at 894, because “the legislative intent was to provide alternate methods

by which the State can prove the crimes of rape or sexual offense,” id. at 435, 648

S.E.2d at 894. The court noted that the 1995 statute criminalizing statutory rape or

statutory sexual offenses involving a thirteen-, fourteen-, or fifteen-year-old

extended the age requirement in “the original statutes for rape and sexual offense”

that criminalized sexual intercourse with a child under thirteen years of age. Id. at

435, 648 S.E.2d at 894-95. Here, by contrast, we do not have any legislative history

indicating an intent by the legislature that the two offenses in question were to be

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“alternate methods” by which the State could prove the offenses. As such, Ridgeway

does not inform our present inquiry.


      To begin our analysis, we first examine whether double jeopardy principles

have been violated by determining whether the “two crimes are considered

identical.” State v. Etheridge, 319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987). This

Court has used the test set out in Blockburger to determine whether two crimes

should be considered identical. See generally State v. Sparks, 362 N.C. 181, 657

S.E.2d 655 (2008); State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350 (1997); State v.

Pipkins, 337 N.C. 431, 446 S.E.2d 360 (1994). This test provides that “ ‘[a] single

act may be an offense against two statutes; and if each statute 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

other.’ ” Blockburger, 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309 (citations

omitted). We have held that “the fact that each crime for which a defendant is

convicted in one trial requires proof of an element the other does not demonstrates

the legislature’s intent that the defendant may be punished for both crimes.” State

v. Swann, 322 N.C. 666, 677, 370 S.E.2d 533, 539 (1988) (citing Etheridge, 319 N.C.

34, 352 S.E.2d 673).       Thus, legislative intent determines whether multiple

punishments may be supported by one act [of sexual intercourse]. Gardner, 315

N.C. at 455, 340 S.E.2d at 709 (explaining that the presumption raised by the

Blockburger test “may be rebutted by a clear indication of legislative intent”).

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                                   Opinion of the Court



      The legislative intent of the statutes defining the offenses in question can be

extrapolated from the provisions of each statute. State v. Davis, 364 N.C. 297, 302,

698 S.E.2d 65, 68 (2010) (“When a statute is unambiguous, this Court will give

effect to the plain meaning of the words without resorting to judicial construction.

[C]ourts must give [an unambiguous] statute its plain and definite meaning, and

are without power to interpolate, or superimpose, provisions and limitations not

contained therein.” (alterations in original) (internal quotation marks omitted)

(quoting State v. Byrd, 363 N.C. 214, 219, 675 S.E.2d 323, 325 (2009); State v.

Green, 348 N.C. 588, 596, 502 S.E.2d 819, 824 (1998), cert. denied, 525 U.S. 1111,

119 S. Ct. 883, 142 L. Ed. 2d 783 (1999))).


      The second-degree rape statute provides in pertinent part that

                (a) A person is guilty of rape in the second degree if the
             person engages in vaginal intercourse with another
             person:
                      (1) By force and against the will of the other
                          person; or
                      (2) Who      is   mentally    disabled,   mentally
                          incapacitated, or physically helpless, and the
                          person performing the act knows or should
                          reasonably know the other person is mentally
                          disabled, mentally incapacitated, or physically
                          helpless.
                (b) Any person who commits the offense defined in this
             section is guilty of a Class C felony.

N.C.G.S. § 14-27.3(a)(1)-(2) (2013).


      The General Assembly has defined statutory rape as follows:


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                                  Opinion of the Court



                (a) A defendant is guilty of a Class B1 felony if the
             defendant engages in vaginal intercourse or a sexual act
             with another person who is 13, 14, or 15 years old and the
             defendant is at least six years older than the person,
             except when the defendant is lawfully married to the
             person.

Id. § 14-27.7A (2013).


      As the language of N.C.G.S. § 14-27.7A indicates, an element of the offense of

statutory rape is the age of the minor victim, “ ‘under which it should be presumed

. . . that consent [cannot] be given.’ ” State v. Anthony, 351 N.C. 611, 615, 528

S.E.2d 321, 323 (2000) (citation and emphasis omitted). Moreover, the age of the

defendant, “or more specifically the difference in age between the defendant and the

victim, [is] an essential element” of statutory rape. Id. at 617, 538 S.E.2d at 324.

Second-degree rape, however, involves the act of intercourse with a victim who is

mentally disabled or incapacitated.      N.C.G.S. § 14-27.3.     The terms “mentally

disabled” and “mentally incapacitated” have been defined by statute as:

             (1) “Mentally disabled” means (i) a victim who suffers
                 from mental retardation, or (ii) a victim who suffers
                 from a mental disorder, either of which temporarily or
                 permanently renders the victim substantially
                 incapable of appraising the nature of his or her
                 conduct, or of resisting the act of vaginal intercourse or
                 a sexual act, or of communicating unwillingness to
                 submit to the act of vaginal intercourse or a sexual act.
             (2) “Mentally incapacitated” means a victim who due to
                 any act committed upon the victim is rendered
                 substantially incapable of either appraising the nature
                 of his or her conduct, or resisting the act of vaginal
                 intercourse or a sexual act.


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                                  Opinion of the Court



Id. § 27.1(1), (2) (2013).


       Here Banks was convicted and sentenced for both (1) statutory rape of a

person who is thirteen, fourteen, or fifteen years old by a defendant who is at least

six years older than the victim and (2) second-degree rape. Although based on the

same act of sexual intercourse, the two offenses committed by Banks are separate

and distinct under the Blockburger test, each requiring proof of an element where

the other offense does not. Statutory rape involves an age component under which

consent legally cannot be given absent marriage. N.C.G.S. § 14-27.7A; Anthony, 351

N.C. at 616, 528 S.E.2d at 323 (explaining that “[t]he purpose of the statutory rape

law is to protect children under a certain age from sexual acts.” (citation omitted)).

This age component is an essential element of the crime. Id. at 617, 528 S.E.2d at

324. In contrast, second-degree rape involves the act of intercourse with a victim

who suffers from a mental disability or mental incapacity.       N.C.G.S. § 14-27.3.

Based on the separate and distinct elements that must be proved, neither of these

two criminal offenses is a lesser included offense of the other.        Thus, double

jeopardy principles have not been violated. See generally Gardner, 315 N.C. at 463,

340 S.E.2d at 714 (holding “that a defendant may be tried for, convicted of, and

punished separately for the crime of breaking or entering and the crime of felony

larceny” arising from one act or occurrence).


       Given the elements of second-degree rape and statutory rape, it is clear that


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                                   Opinion of the Court



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. See Albernaz, 450 U.S. at 339, 343, 101 S. Ct. at 1142, 1144, 67

L. Ed. 2d at 281-82, 284 (explaining that Congress intended to impose multiple

punishments for two statutes directed at separate evils and thus punishment for

both offenses does not exceed legislative authority).


      Because it is the General Assembly’s intent for defendants to be separately

punished for a violation of the second-degree rape and statutory rape statutes

arising from a single act of sexual intercourse when the elements of each offense are

satisfied, defendant’s argument that he was prejudiced by counsel’s failure to raise

the argument of double jeopardy would fail. We therefore conclude that defendant

was not prejudiced.


      For the reasons stated above, the decision of the Court of Appeals is reversed.


      REVERSED.


      Justices JACKSON and HUNTER did not participate in the

consideration or decision of this case.




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