{ "id": 8521064, "name": "STATE OF NORTH CAROLINA v. CHARLES EDWARD HARDY", "name_abbreviation": "State v. Hardy", "decision_date": "1991-10-15", "docket_number": "No. 903SC1184", "first_page": "226", "last_page": "240", "citations": [ { "type": "official", "cite": "104 N.C. App. 226" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "42 ALR4th 879", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "342 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696899, 4705096, 4700622, 4693330, 4702804 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0380-01", "/nc/316/0380-03", "/nc/316/0380-02", "/nc/316/0380-05", "/nc/316/0380-04" ] }, { "cite": "338 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "907" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 35", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519339 ], "year": 1986, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0035-01" ] }, { "cite": "364 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568087, 2570387, 2567927, 2571128, 2568991 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0478-03", "/nc/321/0478-01", "/nc/321/0478-02", "/nc/321/0478-05", "/nc/321/0478-04" ] }, { "cite": "360 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "498" }, { "page": "498" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358128 ], "year": 1987, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0217-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "one panel of the Court of Appeals is bound by a prior decision of another panel of the Court addressing the same issue, although in a different case, unless the prior decision has been overturned by a higher court" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "one panel of the Court of Appeals is bound by a prior decision of another panel of the Court addressing the same issue, although in a different case, unless the prior decision has been overturned by a higher court" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "397 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499557, 2494055, 2496181, 2498685, 2494975 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0486-03", "/nc/327/0486-05", "/nc/327/0486-01", "/nc/327/0486-02", "/nc/327/0486-04" ] }, { "cite": "390 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "98 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522269 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/98/0001-01" ] }, { "cite": "392 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308416, 5304771, 5309702, 5307243, 5304989 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0486-04", "/nc/326/0486-03", "/nc/326/0486-01", "/nc/326/0486-05", "/nc/326/0486-02" ] }, { "cite": "387 S.E.2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "96 N.C. App. 642", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524136 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/96/0642-01" ] }, { "cite": "165 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555095 ], "year": 1969, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0390-01" ] }, { "cite": "360 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "686" } ], "opinion_index": 0 }, { "cite": "320 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727239 ], "year": 1987, "pin_cites": [ { "page": "761-762" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0754-01" ] }, { "cite": "238 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565412 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0532-01" ] }, { "cite": "370 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1988, "pin_cites": [ { "page": "669" }, { "page": "535" }, { "page": "674" }, { "page": "538" }, { "page": "674-675" }, { "page": "538" }, { "page": "675" }, { "page": "538" } ], "opinion_index": 0 }, { "cite": "322 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513005 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0666-01" ] }, { "cite": "317 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683223 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0370-01" ] }, { "cite": "123 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "256 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572114 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/256/0236-01" ] }, { "cite": "309 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 742", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760895 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0742-01" ] }, { "cite": "319 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1984, "pin_cites": [ { "page": "247" }, { "page": "249" }, { "page": "249" } ], "opinion_index": 0 }, { "cite": "311 N.C. 739", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681076 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0739-01" ] }, { "cite": "95 Yale L.J. 1087", "category": "journals:journal", "reporter": "Yale L.J.", "year": 1986, "pin_cites": [ { "page": "1115" } ], "opinion_index": 0 }, { "cite": "284 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569083 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0447-01" ] }, { "cite": "46 L.Ed.2d 264", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1975, "pin_cites": [ { "parenthetical": "threat of serious bodily injury sufficient to constitute constructive force" } ], "opinion_index": 0 }, { "cite": "423 U.S. 933", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6419227, 6419586, 6418564, 6418758, 6419465, 6418953, 6418666, 6419340, 6419792, 6419669, 6419099, 6418847 ], "year": 1975, "pin_cites": [ { "parenthetical": "threat of serious bodily injury sufficient to constitute constructive force" } ], "opinion_index": 0, "case_paths": [ "/us/423/0933-07", "/us/423/0933-10", "/us/423/0933-01", "/us/423/0933-03", "/us/423/0933-09", "/us/423/0933-05", "/us/423/0933-02", "/us/423/0933-08", "/us/423/0933-12", "/us/423/0933-11", "/us/423/0933-06", "/us/423/0933-04" ] }, { "cite": "214 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "parenthetical": "threat of serious bodily injury sufficient to constitute constructive force" } ], "opinion_index": 0 }, { "cite": "287 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561106 ], "year": 1975, "pin_cites": [ { "parenthetical": "threat of serious bodily injury sufficient to constitute constructive force" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0102-01" ] }, { "cite": "211 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566835 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0377-01" ] }, { "cite": "284 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569411 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0534-01" ] }, { "cite": "352 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1987, "pin_cites": [ { "page": "680" }, { "page": "680" }, { "page": "681" }, { "page": "681" }, { "page": "681" }, { "page": "681-682" }, { "page": "681" } ], "opinion_index": 0 }, { "cite": "319 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741158 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0034-01" ] }, { "cite": "237 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564024 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0321-01" ] }, { "cite": "313 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "587", "parenthetical": "citing State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977)" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "year": 1984, "pin_cites": [ { "page": "566", "parenthetical": "citing State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] } ], "analysis": { "cardinality": 1150, "char_count": 27697, "ocr_confidence": 0.773, "pagerank": { "raw": 1.8736648585147616e-07, "percentile": 0.7266479628735112 }, "sha256": "cedfcc1ddc042fa833d071e5bc717968adbbd8c311702e7652f57c4567e92a44", "simhash": "1:1762c418e33a0fff", "word_count": 4668 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLES EDWARD HARDY" ], "opinions": [ { "text": "EAGLES, Judge.\nI\nThe defendant first argues that the trial court erred by denying defendant\u2019s motion to dismiss the charges because of insufficient evidence. We disagree.\nIt is well settled that upon a motion to dismiss in a criminal action, all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. Any contradictions or discrepancies in the evidence are for resolution by the jury.\nState v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citing State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977)).\nA\nDefendant argues that the State failed to show that the alleged sexual intercourse was by force and against the victim\u2019s will. This argument is controlled by State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987). In Etheridge, the Supreme Court addressed the proof necessary to support a conviction for second-degree sexual offense. Specifically, the court addressed the requirements of the phrase \u201c[b]y force and against the will of the other person.\u201d The language construed is identical to the phrase found in the definition of second-degree rape. Id. at 44, 352 S.E.2d at 680; G.S. \u00a7 14-27.3. The Court stated:\nThe phrase \u201cby force and against the will of the other person\u201d means the same as it did at common law when it was used to describe an element of rape. State v. Locklear, 304 N.C. 534, 284 S.E.2d 500 (1981). The requisite force may be established either by actual, physical force or by constructive force in the form of fear, fright, or coercion. State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975). Constructive force is demonstrated by proof of threats or other actions by the defendant which compel the victim\u2019s submission to sexual acts. See State v. Barnes, 287 N.C. 102, 214 S.E.2d 56, cert. denied, 423 U.S. 933, 46 L.Ed.2d 264 (1975) (threat of serious bodily injury sufficient to constitute constructive force). Threats need not be explicit so long as the totality of circumstances allows a reasonable inference that such compulsion was the unspoken purpose of the threat. State v. Barnette, 304 N.C. 447, 284 S.E.2d 298 (1981).\nEtheridge at 45, 352 S.E.2d at 680. The Etheridge Court then applied the constructive force doctrine to the defendant\u2019s acts. In Etheridge, the defendant, the minor child\u2019s father, had made illicit sexual advances toward his son beginning when the son was eight years old. Id. at 47, 352 S.E.2d at 681. The abuse occurred while the child lived as an unemancipated minor in the defendant\u2019s household, subject to the defendant\u2019s parental authority and discipline. Id. at 47-48, 352 S.E.2d at 681. In the incident charged the defendant instructed his son \u201c[d]o it anyway\u201d when his son initially refused to disrobe. Id. at 48, 352 S.E.2d at 681. Finding constructive force to be present the Court stated:\nIt is nonetheless reasonable to conclude that these words carried a great deal more menace than is apparent on the surface, .... The child\u2019s knowledge of his [parent\u2019s] power may alone induce fear sufficient to overcome his will to resist, and the child may acquiesce rather than risk his [parent\u2019s] wrath. As one commentator observes, force can be understood in some contexts as the power one need not use. Estrich, Rape, 95 Yale L.J. 1087, 1115 (1986).\nIn such cases the parent wields authority as another assailant might wield a weapon. The authority itself intimidates; the implicit threat to exercise it coerces. Coercion, as stated above, is a form of constructive force.\nEtheridge at 48, 352 S.E.2d at 681-682.\nHere, constructive force can be reasonably inferred from the circumstances surrounding the parent-child relationship. The defendant, the victim\u2019s step-father, began abusing the victim when she was only fifteen years old. Each episode of abuse occurred while the victim lived with the defendant as an unemancipated minor in the defendant\u2019s trailer and subject to his parental authority. In each incident the defendant was either silent or at most said \u201cShh\u201d while climbing on top of his step-daughter and engaging in sexual intercourse with her. She never gave her consent and the defendant never asked for it. When considered with the totality of the circumstances of this case, it is reasonable to conclude that by removing her underwear and physically climbing in on top of the victim, either silently or with a \u201cShh,\u201d the defendant\u2019s actions \u201ccarried a great deal more menace than is apparent on the surface . . . .\u201d Etheridge at 48, 352 S.E.2d at 681. \u201c[W]e hold that the state presented sufficient evidence from which a jury could reasonably infer that the defendant used his position of power to force his [step-daughter] to participate] in sexual [intercourse].\u201d Id.\nB\nDefendant next argues that two of the second degree rape charges (90 CRS 1786 and 90 CRS 1787) should have been dismissed \u201cbecause of a lack of speci[f]icity and proof as to when the charges occurred.\u201d This argument is without merit.\nIn State v. Wood, 311 N.C. 739, 319 S.E.2d 247 (1984), the defendant was convicted of first degree rape and two counts of taking indecent liberties with a minor. Id. at 740, 319 S.E.2d at 247. On appeal the defendant argued that the evidence was insufficient to convict him of rape because the State failed to prove the specific date of the rape as alleged in the indictment. Id. at 742, 319 S.E.2d at 249. The victim had testified that the offense occurred on a weekend sometime prior to Memorial Day and that she was still in school. Id. The court rejected the defendant\u2019s argument:\nWe have stated repeatedly that in the interest of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child\u2019s uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of evidence. State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983); State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962). See: State v. Sills, 311 N.C. 370, 317 S.E.2d 379 (1984). Nonsuit may not be allowed on the ground that the State\u2019s evidence fails to fix any definite time for the offense where there is sufficient evidence that defendant committed each essential act of the offense. Id.\nId. at 742, 319 S.E.2d at 249.\nState v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988), is also instructive. In Swann, the defendant sexually assaulted an eleven year old child. Id. at 669, 370 S.E.2d at 535. The child was unable to remember the exact date of the assaults. However, he was able to identify a specific event around which the assaults occurred. The child testified that the incidents occurred shortly after his brother was born. Id. at 674, 370 S.E.2d at 538. The victim\u2019s mother testified that the first incident occurred three to four weeks after the victim\u2019s brother\u2019s birth and stated the date of that birth. Id. at 674-675, 370 S.E.2d at 538. The Court held that the testimony was sufficient to submit the charges to the jury. Id. at 675, 370 S.E.2d at 538.\nHere, both indictments attacked by the defendant state the date of offense as \u201c[b]etween\u201d July 1989 and 22 October 1989. Lisa was unable to identify a specific date on which each of the offenses occurred. However, Lisa was able to relate the assaults to specific events in her life. Lisa testified, \u201c[w]ell, nothing really started until we moved to the new trailer.\u201d She also testified that she moved into the new trailer \u201cin the middle of July [or] early August.\u201d This testimony was sufficiently precise to submit the charges to the jury.\nC\nDefendant also assigns as error the trial court\u2019s denial of the defendant\u2019s motion to dismiss the charges of taking indecent liberties with a child. However, the defendant has failed to support his assignment with reason, argument or authority. Accordingly, this assignment of error has been abandoned. N.C.R. App. P. 28(c).\nII\nDefendant next argues the trial court committed reversible error by allowing into evidence out of court statements made by the victim. We find no reversible error here.\nA\nFirst, the defendant claims the letter that the victim gave to the pastor\u2019s wife of the Community Christian Church in Winter-ville was inadmissible hearsay and was not corroborative of the victim\u2019s prior testimony. Specifically, the defendant objects to that part of the. letter which states, \u201cmy step-father forces my [sic] to have sexual intercourse with me [sic] but I don\u2019t want that. . . .\u201d This contention is without merit.\nOne of the most widfely used and well-recognized methods of strengthening the credibility of a witness is by the admission of prior consistent statements. State v. Carter, 293 N.C. 532, 238 S.E.2d 493 (1977). If previous statements offered in corroboration are generally consistent with the witness\u2019s testimony, slight variations between them will not render the statements inadmissible. Such variations only affect the credibility of the evidence which is always for the jury. [Citations omitted.]\nState v. Locklear, 320 N.C. 754, 761-762, 360 S.E.2d 682, 686 (1987).\nUpon direct examination the victim testified as follows:\nQ: What would happen when he would come in your room? A: Well, he\u2019ll get \u2014 he\u2019ll get on me.\nQ: Now, would you have any clothes on or would he have any clothes on?\nA: I had my night clothes on.\nQ: What would happen to your night clothes?\nA: They still be on.\nQ: And what would the defendant do?\nA: Take off my underwear.\nQ: Would he say anything to you?\nA: No.\nQ: And what would he do to you?\nA: Get on top of me.\nQ: What would happen then?\nA: He put his penis inside me,\nQ: Now.was this with your permission?\nA: No.\nQ: Something you wanted him to do?\nA: No.\nThe letter corroborates the victim\u2019s testimony and was therefore properly admitted into evidence.\nB\nDefendant also argues that it was prejudicial error for the trial court to deny the defendant\u2019s motion to strike the testimony of the victim\u2019s aunt, Irene Harris. This contention is also without merit. Ms. Harris testified as follows:\nQ: Did Lisa ever express any fear of the defendant to you?\nMr. McGLAUFLIN: Objection, Your Honor.\nTHE COURT: Overruled.\nBy Mrs. Aycock:\nQ: You may answer.\nA: Yes, she did.\nQ: What did she say about it as far as the fear or as far as her fear of the defendant?\nA: She said that she was scared that he would kill her. MR. McGLAUFLIN: Objection, Your Honor, move to strike. THE COURT: Overruled, motion denied.\nBy Mrs. Aycock:\nQ: What else did she say about this?\nA: And I asked her\u2014\nThe COURT: Well, she asked you what else she said about that.\nQ: You may answer.\nA: I asked her\u2014\nTHE COURT: All right. Objection sustained.\nBy Mrs. Aycock:\nQ: Ms. Harris, have you ever been a witness before?\nA: No, I have not.\nQ: Did you ask [the victim] why she was afraid of him? A: Yes, I did.\nQ: What did she tell you?\nA: She said with him smoking reefer and with the films that she have seen at school\u2014\nThe COURT: Well, I am going to sustain the objection. If you are offering this to corroborate the witness, the witness has not testified to any of these things this lady has said, and I am going to sustain the defendant\u2019s objection. If you want to corroborate her, you have to corroborate what the girl said in the courtroom.\n\u201c \u2018A party may not take exception to a ruling of the court in his favor. . . .\u2019 \u201d In re McCraw, 3 N.C. App. 390, 394, 165 S.E.2d 1, 4 (1969). Here, the defendant\u2019s objection was sustained. This assignment of error is overruled.\nC\nDefendant also objects to the trial court allowing the investigating officer to read into evidence the victim\u2019s statement as corroborative evidence. This argument fails as well.\nThe statement, in pertinent part, reads as follows: \u201cSo about a week later he came into my bedroom and was taking off his clothes but I know [sic] idea what happen until I really woke up. So when I finally woke up he had his hand over my mouth.\u201d Assuming arguendo that this portion of the statement was not corroborative, the trial court gave a curative instruction to the jury which cured any error:\nThe Court wants to instruct you that when evidence has been received tending to show that at an earlier time a witness made a statement which may be consistent or may conflict with her testimony at this trial, you must not consider such earlier statement as evidence of the truth of what was said at that earlier time because it was not made under oath at this trial.\nIf you believe that such earlier statement was made and that it is consistent or does conflict with the testimony of [the victim] at this trial, then you may consider this together with all other facts and circumstances bearing upon the witness\u2019 truthfulness in deciding whether you will believe or disbelieve her testimony at this trial. You may not consider it for any other purpose.\nThis assignment is overruled.\nIll\nBy his next assignment of error, the defendant asks this Court to reconsider the admissibility of testimony on post traumatic stress syndrome. As the defendant concedes, this issue has been resolved. We are bound by State v. Strickland, 96 N.C. App. 642, 387 S.E.2d 62, disc. rev. denied, 326 N.C. 486, 392 S.E.2d 100 (1990), and State v. Hall, 98 N.C. App. 1, 390 S.E.2d 169, disc. rev. allowed, 327 N.C. 486, 397 S.E.2d 228 (1990). In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (one panel of the Court of Appeals is bound by a prior decision of another panel of the Court addressing the same issue, although in a different case, unless the prior decision has been overturned by a higher court).\nIV\nDefendant also argues that the trial court erred by not allowing the defendant to present evidence of the victim\u2019s school disciplinary records including suspension reports. \u201cAn error is not prejudicial unless a different result would have been reached at the trial if the error in question had not been committed. N.C. Gen. Stat. \u00a7 15A-1443.\u201d State v. Smith, 87 N.C. App. 217, 222, 360 S.E.2d 495, 498 (1987), disc. review denied, 321 N.C. 478, 364 S.E.2d 667 (1988). Assuming, arguendo, that the evidence was relevant, \u201cthe defendant here has riot persuaded us that there exists any reasonable possibility that the outcome of the trial would have been any different had the testimony . . . been allowed.\u201d Id. at 222, 360 S.E.2d at 498. This assignment of error is overruled.\nV\nDefendant next argues the trial court incorrectly instructed the jury on the offense of second degree rape. We disagree. The trial judge, in part, instructed the jury:\nFor you to find the defendant guilty of second-degree rape, the State must prove three things beyond a reasonable doubt.\n* * =H\nSecond, that the defendant used or threatened to use force sufficient to overcome any resistance the victim might make. The force necessary to constitute rape need not be actual physical force. Fear or coercion may take the place of physical force. And when you come to consider the force sufficient to overcome any resistance the victim might make, you may consider that sexual activity between' a parent and a minor child is not comparable to sexual activity between two adults. The youth and vulnerability of children coupled with the power inherent in a parent\u2019s position of authority creates a unique situation of dominance and control, in which explicit threats and displays of force are not necessary to effect the abuser\u2019s purpose.\nIn his brief, \u201c[t]he defendant readily admits that this is a correct statement of the law\u201d as found in State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987). However, the defendant requested the following additional instruction:\nHowever, the totality of the circumstances concerning the relationship between a parent and a child must be considered in determining whether the parent\u2019s position of authority was sufficient in and of itself to overcome any resistance made by the child to the sexual activity. Such circumstances would include the age of the child; when sexual activity between the parent and child first began; the nature and extent of discipline and punishment of the child by the parent prior to the sexual activity; the presence or the absence of other parental figures in the household, and any commands uttered toward the child by the parent at the time of the sexual activity which would tend to indicate punishment was imminent if the child did not engage in sexual activity with the parent.\nUnder the facts and circumstances of this case the instruction given by the trial court adequately presented the law in compliance with Etheridge. This assignment of error is overruled.\nVI\nFinally, the defendant claims the trial court committed revers-ible error in sentencing the defendant to the presumptive prison terms provided by the Fair' Sentencing Act. G.S. \u00a7 15A-1444(al) provides:\nA defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his sentence is supported by the evidence introduced at the trial and sentencing hearing only if the prison term of the sentence exceeds the presumptive term set by G.S. 15A-1340.4, and if the judge was required to make findings as to aggravating or mitigating factors pursuant to this Article. Otherwise, he is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.\nSimply stated, \u201c[t]he [Fair Sentencing] Act does not allow appeal of a presumptive sentence as of right.\u201d State v. Cain, 79 N.C. App. 35, 49, 338 S.E.2d 898, 907, disc. review denied, 316 N.C. 380, 342 S.E.2d 899 (1986). Here, the trial judge imposed the presumptive sentence for each of the convictions. Accordingly, this assignment of error is overruled.\nNo error.\nJudges Johnson and Parker concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Teresa L. White, for the State.", "Robin L. Fornes for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLES EDWARD HARDY\nNo. 903SC1184\n(Filed 15 October 1991)\n1. Rape and Allied Offenses \u00a7 5 (NCI3d)\u2014 intercourse with stepdaughter \u2014 constructive force\nThe State presented sufficient evidence that defendant\u2019s acts of sexual intercourse with his stepdaughter were by force and against her will because the jury could reasonably infer that defendant used his position of power to constructively force the stepdaughter\u2019s participation in sexual intercourse where it tended to show that defendant began abusing the stepdaughter when she was only fifteen years old; each episode of abuse occurred while the stepdaughter lived with defendant as an unemancipated minor in the defendant\u2019s trailer and subject to his parental authority; in each incident the defendant was either silent or at most said \u201cShh\u201d prior to removing the stepdaughter\u2019s underwear and engaging in sexual intercourse with her; and the stepdaughter never gave her consent and defendant never asked for it.\nAm Jur 2d, Rape \u00a7\u00a7 4-6, 38, 91.\n2. Rape and Allied Offenses \u00a7 5 (NCI3d)\u2014 child victim \u2014date of offenses \u2014 specificity not required\nThe State\u2019s evidence was sufficient to support defendant\u2019s conviction on two charges of second degree rape of his fifteen-year-old stepdaughter, although the victim was unable to identify a specific date on which each of the offenses occurred, where the indictment .alleged that the offenses occurred between July 1989 and 22 October 1989, and the victim testified that defendant\u2019s abuse of her did not start until after they moved into a new trailer and that this move occurred \u201cin the middle of July or early August.\u201d\nAm Jur 2d, Rape \u00a7 88.\n3. Criminal Law \u00a7 89.3 (NCI3d)\u2014 letter admissible for corroboration\nA letter written by an alleged rape and indecent liberties victim to her pastor\u2019s wife in which the victim stated that \u25a0 her stepfather was forcing her to have sexual intercourse with him was properly admitted to corroborate the victim\u2019s prior testimony.\nAm. Jur 2d, Rape \u00a7\u00a7 97-99.\n4. Criminal Law \u00a7 169.2 (NCI3d)\u2014 noncorroborative testimony\u2014 objections sustained \u2014 absence of prejudice\nDefendant was not prejudiced by noncorroborative testimony where the trial court sustained defendant\u2019s objection to the testimony.\nAm Jur 2d, Trial \u00a7 395.\n5. Criminal Law \u00a7 169.2 (NCI3d)\u2014 noncorroborative testimony\u2014 curative instruction\nAssuming that a portion of a rape and indecent liberties victim\u2019s statement to the investigating officer did not corroborate the victim\u2019s testimony, the admission of this portion of the statement for corroborative purposes was rendered harmless by the trial court\u2019s curative instruction to the jury.\nAm Jur 2d, Trial \u00a7\u00a7 1478, 1480.\n6. Rape and Allied Offenses \u00a7 4 (NCI3d)\u2014 post traumatic stress syndrome \u2014 admissibility\nExpert testimony that an alleged rape and indecent liberties victim suffered from post traumatic stress syndrome was properly admitted.\nAm Jur 2d, Rape \u00a7 68.5.\nAdmissibility, at criminal prosecution of expert testimony on rape trauma syndrome. 42 ALR4th 879.\n7. Rape and Allied Offenses \u00a7 4.3 (NCI3d)\u2014 victim\u2019s school disciplinary records \u2014 exclusion as harmless error\nAny error in the trial court\u2019s exclusion of evidence of a rape and indecent liberties victim\u2019s school disciplinary records, including suspension reports, was harmless where no possibility exists that the outcome of the trial would have been any different had the records been admitted.\nAm Jur 2d, Rape \u00a7 55.\n8. Rape and Allied Offenses \u00a7 6 (NCI3d)\u2014 parent-child relationship \u2014 constructive force \u2014 sufficiency of instructions\nThe trial court in a prosecution of defendant, for second degree rape of his stepdaughter sufficiently. instructed the jury on constructive force arising from the parent-child relationship and did not err in refusing to give additional instructions requested by defendant.\nAm Jur 2d, Rape \u00a7 108.\n9. Criminal Law \u00a7 1092 (NCI4th)\u2014 presumptive sentence \u2014no right of appeal\nThe Fair Sentencing Act does not allow appeal of a presumptive sentence as of right.\nAm Jur 2d, Appeal and Error \u00a7 867.\nAPPEAL by defendant from judgments entered 3 March 1990 by Judge Frank R. Brown in PITT County Superior Court. Heard in the Court of Appeals 17 September 1991.\nDefendant was indicted and convicted of three counts of second degree rape and three counts of taking indecent liberties with a child. The defendant was sentenced to twelve years imprisonment for each second degree rape conviction, two of which run consecutively. He was also sentenced to three concurrent terms of three years imprisonment for the convictions of taking indecent liberties with a child to be served at the expiration of the two twelve year consecutive sentences for. the second degree rape conviction.\nDefendant\u2019s fifteen year old step-daughter testified for the State. Because of her young age and the very nature of the offenses charged, we will refer to defendant\u2019s step-daughter as \u201cvictim.\u201d In the summer of 1989 the victim lived in Colonial Trailer Park with her mother, her sisters and the defendant. During May, June and July the family resided in a trailer (old trailer) on Rawl Road, and in the middle of July or early August moved to another trailer (new trailer) in the same trailer park. One night while the victim was still living in the old trailer she and her sister walked to the store. The defendant approached the victim and said, \u201cI want you.\u201d He then asked the victim \u201cwould [she] tell\u201d and the victim did not respond. The victim testified, \u201cat that time I didn\u2019t pay it no mind because he was kind of high. . . .\u201d The defendant also walked into the victim\u2019s room one night, \u201cbut he didn\u2019t never do nothing because [the victim\u2019s] mother got up and she came in the room . . .\nThe victim also testified that on five or six different occasions after she moved into the new trailer, the defendant would go into her bedroom while \u201chigh\u201d from alcohol. He would only be wearing his T-shirt and his underwear. The victim testified that the defendant \u201cused to come back there when my mother was asleep, and he would come in there and he\u2019ll want to be getting in \u2014 getting on the bed with me.\u201d The defendant, without speaking except to say \u201cShh,\u201d would then take off the victim\u2019s underwear, \u201cget on top of [the victim],\u201d and \u201cput his penis inside [her].\u201d The victim testified that inside her meant \u201cin [her] vagina.\u201d At no time did the victim want the defendant to have intercourse with her. The defendant told the victim \u201cif [she] told [her] mother would throw [her] out and nobody would believe [her].\u201d The victim did not fight the defendant because she was afraid of him and \u201c[she] figured he would hurt [her].\u201d The defendant also told her, \u201cthat if he wasn\u2019t married to [the victim\u2019s] mother he\u2019ll be all mines [sic].\u201d In addition, the defendant gave \u201c[the victim] money to keep [her] mouth shut . . . and said if [her] mother asked [her] where did [she] get the money from don\u2019t tell her.\u201d The victim also testified that while the defendant never threatened her, she was afraid of him \u201cbecause [she] figure [sic] if [she] told it something would happen to [her].\u201d\nThe victim further testified that she had seen the defendant fight with her mother and that at times she had feared for her mother\u2019s life. The victim never told her mother what the defendant had done to her because \u201c[she] thought maybe something would happen to me.\u201d\nIn October 1989 the victim told Mrs. Bright, one of her teachers, a little bit about what was happening, \u201cbut wouldn\u2019t really tell her exactly what happened.\u201d Mrs. Bright sent the victim to Mrs. Moore, a guidance counselor. During the same summer the victim began attending the Community Christian Church in Winterville. She wrote the pastor\u2019s wife a letter telling her that \u201c[m]y stepfather forces my [sic] to have sexual intercourse\u201d with him. She wrote the letter because she thought she needed help. The victim also talked with two workers at the Department of Social Services and an employee at the Farmville Mental Health Center.\nNancy Cleghorn, staff psychologist at the Pitt County Mental Health Center and the Lenoir Mental Health Center, testified for the State. Ms. Cleghorn began seeing the victim on 4 January 1990 \u201cto evaluate her need and provide treatment as appropriate.\u201d Ms. Cleghorn testified that the victim suffered from symptoms consistent with a child who had been sexually abused. She stated:\nSymptoms that she reported included fears; easily startled; she had reported some sleep disturbance when she was in the family home; the sleep had improved since living with her maternal aunt, but... she\u2019s continued to report nightmares involving themes of violence, nightmares of her stepfather killing her mother; decreased concentration was reported and this seemed to go along with the decrease in her academic performance at school; her memories about things that had occurred in the family home; the abuse that she reported to me would intrusively come into her mind even when she tried not to think about it. And there was also when I conducted a mental status exam, I felt as though her mood showed evidence of depression and anxiety.\nMs. Cleghorn also testified concerning \u201cchild abuse accommodation syndrome\u201d or delayed reporting.\nThe defendant testified that the victim \u201cain\u2019t never act [sic] like she was scared of me. I ain\u2019t never gave her no reason for her to be scared of me.\u201d He also testified that he never told the victim that he wanted to have sex with her and that he never had any sexual contact with the victim. The defendant admitted smoking \u201creefer\u201d and drinking liquor and beer to get high. From judgment entered on the guilty verdict, defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Teresa L. White, for the State.\nRobin L. Fornes for defendant-appellant." }, "file_name": "0226-01", "first_page_order": 254, "last_page_order": 268 }