{ "id": 11433790, "name": "STATE OF NORTH CAROLINA v. NELSON VINCENT BIDGOOD", "name_abbreviation": "State v. Bidgood", "decision_date": "2001-06-19", "docket_number": "No. COA00-638", "first_page": "267", "last_page": "276", "citations": [ { "type": "official", "cite": "144 N.C. App. 267" } ], "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": "148 L. Ed. 2d 784", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1120", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9716648, 9716724 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1120-01", "/us/531/1120-02" ] }, { "cite": "148 L. Ed. 2d 498", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9679042, 9678662, 9678761, 9678795, 9678864, 9678962, 9678739, 9678834, 9678903, 9678645, 9678999, 9678940, 9678686, 9678719 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/1018-14", "/us/531/1018-02", "/us/531/1018-06", "/us/531/1018-07", "/us/531/1018-09", "/us/531/1018-12", "/us/531/1018-05", "/us/531/1018-08", "/us/531/1018-10", "/us/531/1018-01", "/us/531/1018-13", "/us/531/1018-11", "/us/531/1018-03", "/us/531/1018-04" ] }, { "cite": "528 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "342", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "351 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155877 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0481-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-144.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "154 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "60-61", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "270 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567155 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0270-01" ] }, { "cite": "335 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524268 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0565-01" ] }, { "cite": "360 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "814", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358460 ], "year": 1987, "pin_cites": [ { "page": "408", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0404-01" ] }, { "cite": "392 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 777", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309817 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0777-01" ] }, { "cite": "384 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "96 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519974 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/96/0001-01" ] }, { "cite": "108 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4836, 5158, 4882, 5207, 5176 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1023-04", "/us/494/1023-03", "/us/494/1023-05", "/us/494/1023-02", "/us/494/1023-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "481" } ], "opinion_index": 0 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "year": 1989, "pin_cites": [ { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "540 S.E.2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "431", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 378", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441388 ], "year": 2000, "pin_cites": [ { "page": "389-90", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0378-01" ] }, { "cite": "351 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "279", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "318 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4733270 ], "year": 1987, "pin_cites": [ { "page": "666", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0663-01" ] }, { "cite": "149 L. Ed. 2d 305", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "533 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684963 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0364-01" ] }, { "cite": "441 S.E.2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531110, 2526795, 2527021, 2530901, 2528511 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0563-01", "/nc/335/0563-05", "/nc/335/0563-04", "/nc/335/0563-03", "/nc/335/0563-02" ] }, { "cite": "436 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 280", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521295 ], "year": 1993, "pin_cites": [ { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0280-01" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting U.S. v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting U.S. v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "511 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "303", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132085 ], "year": 1999, "pin_cites": [ { "page": "80", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0079-01" ] } ], "analysis": { "cardinality": 981, "char_count": 22575, "ocr_confidence": 0.767, "pagerank": { "raw": 5.100796232983905e-07, "percentile": 0.9382925413798257 }, "sha256": "183f83d197b7e6d888a3570fa0329ff1563fefd44190405d634bc81cfa0cc0aa", "simhash": "1:8e6b317f962e0c96", "word_count": 3760 }, "last_updated": "2023-07-14T14:55:44.896074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges THOMAS and BIGGS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. NELSON VINCENT BIDGOOD" ], "opinions": [ { "text": "MARTIN, Judge.\nDefendant was charged with the first degree rape of Andrena Denise McClure, the first degree rape of Candy McDonald, first degree sexual offense against Ms. McDonald, and with feloniously breaking or entering Ms. McDonald\u2019s home. He entered pleas of not guilty. The State\u2019s motion to join the offenses was allowed. At the close of the State\u2019s evidence, the trial court dismissed the charges relating to Ms. McDonald. The jury returned a verdict finding defendant guilty of first degree rape in the case involving Ms. McClure. Defendant appeals from the judgment entered upon the verdict.\nBriefly summarized, the State\u2019s evidence relating to the alleged attack upon Ms. McClure tended to show that Ms. McClure encountered defendant on 4 March 1997 near her home. Defendant asked Ms. McClure if she wanted to get high and she replied that she did. Defendant then followed Ms. McClure to her apartment where they smoked crack cocaine. Later that evening, Dennis Bennett, Ms. McClure\u2019s boyfriend, returned home and found defendant in the apartment with her. Bennett became angry and escorted defendant out of the home.\nOn the morning of 5 March 1997, defendant returned to the apartment; Ms. McClure\u2019s son, who was thirteen at the time, answered the door, and defendant asked him if Bennett was in the apartment. Defendant then asked to see Ms. McClure. When she came to the door, defendant asked if she had a stem, which is drug paraphernalia used in smoking crack cocaine. Ms. McClure told her son to go upstairs, then she and defendant went into the kitchen to smoke defendant\u2019s cocaine. While in the kitchen, defendant asked for a knife to cut the drugs. When Ms. McClure turned away to retrieve a glass for water, defendant held the knife to her side and forced her to perform fellatio on him. Defendant, still holding the knife, then instructed Ms. McClure to undress and he had vaginal intercourse with her. Ms. McClure testified that she tried to call to her son for help but defendant said he would stab her if she made noise. Defendant left soon after, but returned five minutes later with crack; Ms. McClure let him in the apartment and they smoked the cocaine. When defendant left about twenty minutes later, Ms. McClure showered and got into bed; she also told her son that defendant had raped her. She testified that she did not call the police because she had been using drugs and feared she might lose custody of her son.\nWhen Bennett came home from work, Ms. McClure told him what had occurred and Bennett advised her to call the police, but she refused. Nevertheless, on 6 March 1997, Bennett approached two officers at a local store and told them about the rape. The officers followed Bennett to Ms. McClure\u2019s apartment. Ms. McClure initially told police that defendant had knocked on the door of her apartment and asked for a glass of water; once in the kitchen, defendant grabbed a knife, held it to her neck and raped her. She did not tell them that she had smoked crack with defendant the night before. Ms. McClure gave the clothes she wore on the day of the attack to the Crime Scene Search Technician Tracy Collins. On 26 March 1997, Ms. McClure picked defendant out of a photographic lineup. On 2 February 1998, she went to Carolinas Medical Center and gave hair and blood samples for DNA testing; at this point she admitted to investigators that she had smoked crack with defendant on the day of the alleged rape.\nMs. McClure\u2019s son testified that on the day in question he had been smoking marijuana and playing video games. He heard a male voice say, \u201cI should cut you.\u201d Thirty or forty minutes later, according to his testimony, he thought he heard someone call for help but thought he was merely \u201ctripping.\u201d He also testified that he was \u201czoned out\u201d from the marijuana. He eventually walked downstairs and saw defendant going to the door; defendant said, \u201cNothing is going on.\u201d After defendant left and Ms. McClure went upstairs, she told her son she had been raped at knife point. Ms. McClure\u2019s son also picked defendant out of a photo lineup.\nElinous Whitlock, a trace evidence analyst with the Charlotte-Mecklenburg Crime Lab, testified that on 11 November 1997 he examined Ms. McClure\u2019s clothing and found semen in the crotch of the panties. He then forwarded the specimen to Jane Burton, Chief Criminalist of the Charlotte-Mecklenburg Crime Lab, who sent defendant\u2019s blood sample, Ms. McClure\u2019s blood sample, and the stain cut off the panties to the State Bureau of Investigation on 25 February 1998. David Freeman, a forensic micro-geneticist for the SBI, testified that DNA samples taken from the stain on the crotch of Ms. McClure\u2019s panties matched the DNA of defendant\u2019s blood sample and did not match the victim\u2019s DNA sample. Freeman testified that it was \u201cscientifically unlikely that the stain originating from the panties would come from anyone else, other than [defendant].\u201d\nThe State also offered, pursuant to G.S. \u00a7 8C-1, Rule 404(b), testimony by Sandra Tate, who testified that on 27 May 1996, she and some friends walked to another friend\u2019s apartment to smoke crack cocaine. Defendant was present and asked Ms. Tate to accompany him while he retrieved some money to pay for more crack cocaine; she agreed to do so. At a deserted area, defendant grabbed Ms. Tate, threw her to the ground and told her to remove her clothing. He threatened to kill her if she did not cooperate. After a struggle, Ms. Tate partially disrobed and defendant had vaginal intercourse with her. After completing the act, defendant ran away when a vehicle approached. Ms. Tate later identified defendant from a photographic lineup. The trial court instructed the jury that Ms. Tate\u2019s testimony was presented for the \u201cvery, very limited\u201d purpose \u201cof showing, if the evidence is believed, that there existed in the mind of the defendant, a plan or a scheme or a system or design involving the crimes that he\u2019s charged with \u2014 that relates to the crimes he is charged with . . . and also, for that purpose of the identity of the person who committed the crime [sic], if any, that are charged in the cases for which he is on trial.\u201d'\nI.\nDefendant first argues the trial court committed plain error by admitting testimony, in violation of Rule 403 and 404(b),.regarding defendant\u2019s alleged rape of Sandra Tate. Defense counsel made a pretrial motion in limine to exclude evidence concerning the alleged rape, but concedes he did not object to the introduction of the evidence at the time the testimony was offered at trial. It is well established in this State that a motion in limine \u201cis insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.\u201d State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (citations omitted). We thus review for plain error.\nPlain error is \u201c 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u2019 or \u2018where [the error] is grave error which amounts to a denial of a fundamental right of the accused ....\u2019\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting U.S. v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). In order to prevail under a plain error analysis, the defendant must show that \u201c(1) there was error and (2) without this error, the jury would probably have reached a different verdict.\u201d State v. Najewicz, 112 N.C. App. 280, 294, 436 S.E.2d 132, 141 (1993), disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994).\nEvidence of other crimes or acts is inadmissible for the purpose of showing the character of the accused or for showing his propensity to act in conformity with a prior act. N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b). Such evidence \u201cmay, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident.\u201d Id. The North Carolina Supreme Court has held that Rule 404(b) is a rule of inclusion. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, - U.S. 149 L. Ed. 2d 305 (2001). Indeed, North Carolina\u2019s appellate courts have been \u201cmarkedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in Rule 404(b), such as establishing the defendant\u2019s identity as the perpetrator of the crime charged.\u201d State v. Cotton, 318 N.C. 663, 666, 351 S.E.2d 277, 279 (1987) (citation omitted). The use of evidence under Rule 404(b) is guided by two constraints: \u201csimilarity and temporal proximity.\u201d State v. Barnett, 141 N.C. App. 378, 389-90, 540 S.E.2d 423, 431 (2000) (citation omitted).\nWhen the features of the earlier act are dissimilar from those of the offense with which the defendant is currently charged, such evidence lacks probative value. When otherwise similar offenses are distanced by significant stretches of time, commonalities become less striking, and the probative value of the analogy attaches less to the acts than to the character of the actor.\nState v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990).\nIn the present case, testimony was offered by the State under Rule 404(b) regarding defendant\u2019s alleged rape of Sandra Tate who was, like the victim, a black female drug user. Ms. Tate testified that she was raped by defendant on 27 May 1996, less than ten months before Ms. McClure was raped on 5 March 1997. Both rapes occurred around the time the victims were smoking or preparing to smoke crack cocaine. In both cases defendant instructed his victims to remove their own clothing. In both cases defendant threatened to stab or kill the victims if they did not cooperate.\nFollowing Ms. Tate\u2019s testimony, the trial court instructed the jury that Ms. Tate\u2019s testimony was presented for the \u201cvery, very limited\u201d purpose \u201cof showing . . . that there existed in the mind of the defendant, a plan or a scheme . . . and also, for that purpose of the identity of the person who committed the crime.\u201d Because the rape of Ms. McClure and the alleged rape of Ms. Tate were sufficiently similar and occurred less than ten months apart, we hold Ms. Tate\u2019s testimony was admissible under Rule 404(b).\nOnce the trial court determines evidence is properly admissible under Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. N.C. Gen. Stat. \u00a7 8C-1, Rule 403; State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562 (1989), affirmed, 326 N.C. 777, 392 S.E.2d 391 (1990). That determination is within the sound discretion of the trial court, whose ruling will be reversed on appeal only when it is shown that the ruling was so arbitrary that it could not have resulted from a reasoned decision. Id. In light of the similarities noted above, we hold the trial court did not abuse its discretion by admitting Ms. Tate\u2019s testimony and limiting the jury\u2019s consideration of it for the limited purpose of showing identity and a common plan or scheme.\nII.\nDefendant next assigns error to the trial court\u2019s failure to declare a mistrial ex mero mo tu after dismissing the charges involving Candy McDonald. He contends it was impossible for defendant to receive a fair trial after the jury heard Ms. McDonald\u2019s testimony and other evidence relating to the cases in which she was the alleged victim.\nPursuant to G.S. \u00a7 15A-1063(1), a judge may declare a mistrial ex mero motu if \u201c[i]t is impossible for the trial to proceed in conformity with [the] law.\u201d A trial court\u2019s \u201cpower to declare a mistrial must be \u2018exercised with caution and only after careful consideration of all available evidence and only after making the requisite findings of fact on the basis of evidence before the Court at the time judicial inquiry is made.\u2019 \u201d State v. Chriscoe, 87 N.C. App. 404, 408, 360 S.E.2d 812, 814 (1987) (citations omitted). Whether or not to declare a mistrial is a matter within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent a gross abuse of such discretion. State v. Lyons, 77 N.C. App. 565, 335 S.E.2d 532 (1985).\nIn State v. Aycoth, 270 N.C. 270, 154 S.E.2d 59 (1967), a deputy sheriff testified that the defendant had been arrested \u201con another charge\u201d and also that the defendant had been \u201cindicted for murder.\u201d The trial court struck this testimony and instructed the jury not to consider it, but denied the defendant\u2019s motion for a mistrial. The Supreme Court reversed, holding that defendant should have been granted the mistrial. While acknowledging that \u201c[o]rdinarily where the evidence is withdrawn no error is committed,\u201d the Court noted:\nIn some instances because of the serious character and gravity of the incompetent evidence and the obvious difficulty in erasing it from the mind, the Court has held to the opinion that a subsequent withdrawal did not cure the error.\nId. at 272-73, 154 S.E.2d at 60-61 (citation omitted). The Court determined that the prejudicial effect of the deputy\u2019s testimony that Aycoth had previously been under indictment for murder, when considered with other circumstances at the trial, was of such serious prejudice that it could not be cured by the court\u2019s instruction.\nIn the present case, however, the charges against defendant involving allegations of crimes against Candy Lee McDonald were joined for trial with the charge involving the alleged rape of Ms. McClure. Defendant has not brought forward on appeal any assignment of error to the joinder. Ms. McDonald testified that at the time of the alleged incident she was a cocaine addict and that, due to an epileptic condition, she was unable to remember the incident nor could she remember speaking with the investigating officers. Ms. McDonald\u2019s testimony was stricken in its entirety because of her inability to recall the incident. The trial court also excluded testimony by the investigating officers with respect to the statements made by Ms. McDonald and, at the close of the State\u2019s evidence, dismissed the charges relating to her. Thus, the jury was exposed to no substantive evidence concerning the events involving Ms. McDonald. Upon dismissing the charges involving Ms. McDonald, the trial court instructed the jury:\n. . . when we began the trial, the trial related to transactions between two alleged victims. One was Candy Lee McDonald. . . .\nThose [charges] have been taken away from your consideration. . . .\nAnd I\u2019m specifically instructing you that as it relates to the testimony of Candy McDonald during this trial, that that is STRICKEN; and, that you are not to consider that testimony, at all, in your deliberations. Your deliberations will be solely related to the accusation of crime \u2014 the crime of rape committed by the defendant against Andrena Denise McClure.\nYou are not to include any testimony by Ms. McDonald in making your decision or in your deliberations in any way, shape or form.\nWe conclude that under the circumstances of this case, defendant was not so prejudiced by the joinder and subsequent dismissal of the charges involving Ms. McDonald as to render it impossible for the jury to fairly consider the allegations concerning Ms. McClure and make a fair determination of defendant\u2019s guilt or innocence of that charge without regard to the scant evidence, subsequently withdrawn, concerning Ms. McDonald. Therefore, we hold the trial court\u2019s withdrawal of that evidence, dismissal of the McDonald charges, and subsequent instruction to the jury, was sufficient and no abuse of discretion occurred in its failure to declare a mistrial as to the charge of rape of Ms. McClure. This assignment of error is overruled.\nIII.\nDefendant alleges the trial court erred by not dismissing the indictment against him because the \u201cshort-form\u201d indictment did not allege all the essential elements of first degree rape, thereby violating his due process rights. The indictment in the present case identified the crime charged as \u201cFirst Degree Rape G.S. 14-27.2,\u201d and stated:\nTHE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 5th day of March 1997, in Mecklenburg County, Nelson Vincent Bidgood did unlawfully, wilfully and felo-niously with force and arms engage in vaginal intercourse with Andrena Denise McClure, by force and against the victim\u2019s will.\nN.C. Gen. Stat. \u00a7 15-144.1(a) provides:\nIn indictments for rape it is not necessary to allege every matter required to be proved on the trial; but in the body of the indictment, after naming the person accused, the date of the offense, the county in which the offense of rape was allegedly committed, and the averment \u201cwith force and arms,\u201d as is now usual, it is sufficient in describing rape to allege that the accused person unlawfully, willfully, and feloniously did ravish and carnally know the victim, naming her, by force and against her will and concluding as is now required by law. Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for rape in the first degree and will support a verdict of guilty of rape in the first degree, rape in the second degree, attempted rape or assault on a female.\nDefendant nevertheless contends the short-form indictment violates his due process rights under the United States and North Carolina Constitutions. This argument has been considered and rejected by our Supreme Court in State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000), reh\u2019g denied, 531 U.S. 1120, 148 L. Ed. 2d 784 (2001), which held in part that the short form indictments for first degree rape authorized by G.S. \u00a7 15-144.1 \u201chave been held to comport with the requirements of the North Carolina and United States Constitutions.\u201d Id. at 505, 528 S.E.2d at 342 (citations omitted).\nIV.\nFinally, defendant next alleges he is entitled to be re-sentenced because the Prior Record Level found by the trial court was based in part upon a conviction which was subsequently overturned on appeal. The trial court determined that defendant\u2019s Prior Record Level for sentencing purposes was Level V, based in part upon a conviction for uttering a forged instrument and being an habitual felon. However, subsequent to defendant\u2019s sentencing in the instant case, his conviction for uttering a forged instrument was reversed on appeal. State v. Bidgood, No. COA99-134, (unpublished opinion filed 21 December 1999). The reversal of this conviction would result in a Prior Record Level of IV.\nG.S. \u00a7 15A-1340.11(7) provides, in pertinent part:\nA person has a prior conviction when, on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime:\nb. In the superior court, regardless of whether the conviction is on appeal to the appellate division-,\nN.C. Gen. Stat. \u00a7 15A-1340.11(7) (emphasis added). However, we believe, and the State does not disagree, that it would be unjust to permit an enhanced sentence to stand where it is made to appear that the Prior Record Level has been erroneously calculated due to a subsequent reversal of a conviction on appeal, and we do not believe the General Assembly intended such a result. G.S. \u00a7 15A-1442(5b) authorizes the correction of such errors:\nThe following constitute grounds for correction of errors by the appellate division.\n(5b) Violation of Sentencing Structure. \u2014 The sentence imposed:\na. Results from an incorrect finding of the defendant\u2019s prior record level under G.S. 15A-1340.14 ....\nTherefore, we remand this case to the trial court for entry of judgment which accurately reflects defendant\u2019s Prior Record Level.\nNo error; remanded for re-sentencing.\nJudges THOMAS and BIGGS concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Christine M. Ryan, for the State.", "Public Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. NELSON VINCENT BIDGOOD\nNo. COA00-638\n(Filed 19 June 2001)\n1. Evidence\u2014 prior crimes or acts \u2014 rape of another victim\u2014 identity \u2014 common plan or scheme\nThe trial court did not commit plain error in a first-degree rape case by admitting testimony under N.C.G.S. \u00a7 8C-1, Rule 404(b) regarding defendant\u2019s alleged rape of a prior victim less than ten months before the victim in this case, because: (1) both rapes occurred around the time the victims were smoking or preparing to smoke crack cocaine; (2) defendant instructed both victims to remove their own clothing; (3) defendant threatened to stab or kill both victims if they did not cooperate; and (4) the trial court limited the jury\u2019s consideration of the testimony to the purpose of showing identity and a common plan or scheme.\n2. Rape\u2014 first-degree \u2014 dismissal of charges involving second victim \u2014 failure to declare a mistrial ex mero motu not error\nThe trial court did not abuse its discretion in a first-degree murder case by failing to declare a mistrial ex mero motu under N.C.G.S. \u00a7 15A-1063(1) after dismissing the charges involving a second victim which were joined for trial with the charge involving the first victim, because: (1) defendant has not brought forward on appeal any assignment of error relating to the joinder; (2) the jury was not exposed to substantive evidence concerning the events involving the second victim; and (3) the jury was not so prejudiced by the joinder and subsequent dismissal of the charges involving the second victim as to render it impossible for the jury to fairly consider the allegations concerning the first victim.\n3. Rape\u2014 first-degree \u2014 short-form indictment \u2014 constitutional\nThe trial court did not err in a first-degree rape case by failing to dismiss the short-form indictment even though it failed to allege all the essential elements of first-degree rape, because our Supreme Court has already upheld the indictment\u2019s constitutionality.\n4. Sentencing\u2014 prior record level \u2014 subsequent reversal of conviction on appeal\nDefendant is entitled to be resentenced for his conviction of first-degree rape when the prior record level found by the trial court was based in part upon his conviction for uttering a forged instrument and being an habitual felon that was subsequently overturned on appeal.\nAppeal by defendant from judgment entered 12 November 1999 by Judge James E. Lanning in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 April 2001.\nAttorney General Michael F. Easley, by Assistant Attorney General Christine M. Ryan, for the State.\nPublic Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant." }, "file_name": "0267-01", "first_page_order": 295, "last_page_order": 304 }