{
  "id": 8522933,
  "name": "STATE OF NORTH CAROLINA v. JAMES H. WARD",
  "name_abbreviation": "State v. Ward",
  "decision_date": "1991-11-19",
  "docket_number": "No. 904SC1199",
  "first_page": "550",
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    "name": "North Carolina Court of Appeals"
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      "category": "reporters:state",
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  "analysis": {
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  "last_updated": "2023-07-14T22:39:04.224888+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges COZORT and ORR concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES H. WARD"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nDefendant was indicted on 16 January 1990 for one count of rape and one count of kidnapping. He was tried by a jury ahd found not guilty of kidnapping but convicted of second degree rape and sentenced to forty years.\nAt trial, the State\u2019s evidence tended to show that the alleged victim went to a party with defendant on the night of 2 July 1989. She drove as they left her house at 10:00 p.m. They went to three different clubs where defendant drank alcoholic beverages, and they started home early in the morning. Defendant directed her down a deserted road where she stopped the car and they talked for about twenty minutes. The victim testified that the defendant pulled a knife from under the seat and ordered her to disrobe. The female claimed that defendant raped her and then passed out. She testified that she threw the knife into a field. She tried to start the car but could not do so. She left on foot and eventually got a ride home. Upon returning to the car with a police officer, she found defendant still asleep with his pants down. No knife was found but a knife sheath was found in the car.\nDefendant\u2019s first assignment of error is that the trial court erred in allowing into evidence unfairly prejudicial testimony of an alleged prior rape by the defendant, and in denying defendant\u2019s motion for a mistrial. Defendant argues that he is prejudiced by the victim\u2019s testimony that the defendant told her she would pay because another woman had \u201cdone him wrong.\u201d Defendant did not object to this testimony. Defendant argues that this reference to a previous rape charge was compounded when Deputy Lyndora Perry testified that \u201che told her it didn\u2019t make any difference whether she wanted to or not, he was going to have it, he said he had been accused of rape before.\u201d Defendant objected and made a motion to strike. The court sustained the objection and instructed the jury not to consider the witness\u2019 last statement. Defendant contends that despite the trial court\u2019s limiting instruction, this statement by Deputy Perry resulted in substantial and irreparable prejudice to his case.\nWe conclude from the record that the trial court did not err concerning either of the statements in question. The victim\u2019s statement, to which the defendant did not object, that another woman had \u201cdone (the defendant) wrong,\u201d does not convey any information as to a previous rape and as such is too oblique to be prejudicial. Deputy Perry\u2019s testimony was properly excluded by the court with an adequate curative instruction to the jury. State v. Pruitt, 301 N.C. 683, 688, 273 S.E.2d 264, 267-68 (1981). Defendant has failed to show an error at trial which resulted in \u201csubstantial and irreparable prejudice\u201d such that the trial court should have declared a mistrial. N.C.G.S. \u00a7 15A-1061. See State v. Rogers, 52 N.C. App. 676, 685, 279 S.E.2d 881, 888 (1981). We therefore overrule this assignment of error.\nDefendant next assigns error to the trial court\u2019s finding as an aggravating factor for sentencing that \u201ca deadly weapon was used in the commission of the offense.\u201d Defendant was indicted for first degree rape under N.C.G.S. \u00a714-27.2, which states in relevant part that:\nA person is guilty of rape in the first degree if the person engages in vaginal intercourse:\n(2) With another person by force and against the will of the other person, and\na. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous and deadly weapon.\nThe defendant was convicted of the lesser included offense of second degree rape under N.C.G.S. \u00a7 14-27.3, which states in relevant part:\nA person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:\n(1) By force and against the will of the other person.\nInsofar as the jury found the defendant not guilty of first degree rape but guilty only of second degree rape, the jury clearly rejected the theory that the defendant employed a deadly weapon in commission of the crime. Where defendant was in effect found innocent by the jury of an element of a crime with which he was charged, in this case the use of a deadly weapon, the court cannot then find such as a factor in aggravation. State v. Marley, 321 N.C. 415, 424-25, 364 S.E.2d 133, 138-39 (1988). A new sentencing hearing is therefore required.\nGuilt phase \u2014 no error.\nRemanded for sentencing.\nJudges COZORT and ORR concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Associate Attorney General V. Lori Fuller, for the State.",
      "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES H. WARD\nNo. 904SC1199\n(Filed 19 November 1991)\n1. Evidence and Witnesses \u00a7 315 (NCI4th)\u2014 rape \u2014 prior offenses \u2014 no error\nThere was no error in a rape prosecution from admission of the victim\u2019s testimony that defendant had told her that she would pay because another woman had \u201cdone him wrong\u201d or from a deputy\u2019s stricken testimony that defendant had said that he had been accused of rape before. The victim\u2019s statement does not convey any information as to a previous rape and is too oblique to be prejudicial, and the deputy\u2019s testimony was properly excluded with an adequate curative instruction to the jury.\nAm Jur 2d, Rape \u00a7 71.\n2. Criminal Law \u00a7 1098 (NCI4th)\u2014 second degree rape \u2014 aggravating factor \u2014 use of deadly weapon \u2014 improper\nThe trial court erred when sentencing defendant for second degree rape by finding in aggravation that defendant had used a deadly weapon where defendant had been indicted for first degree rape and the jury had clearly rejected the theory that the defendant employed a deadly weapon in commission of the crime.\nAm Jur 2d, Criminal Law \u00a7 599; Rape \u00a7\u00a7 114, 115.\nAPPEAL by defendant from judgment and sentence for one count of second degree rape entered by Judge William C. Griffin on 29 March 1990 in JONES County Superior Court. Heard in the Court of Appeals 17 September 1991.\nAttorney General Lacy H. Thornburg, by Associate Attorney General V. Lori Fuller, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant."
  },
  "file_name": "0550-01",
  "first_page_order": 578,
  "last_page_order": 581
}