{ "id": 11435124, "name": "STATE OF NORTH CAROLINA v. VEARL ACKERMAN", "name_abbreviation": "State v. Ackerman", "decision_date": "2001-07-03", "docket_number": "No. COA00-672", "first_page": "452", "last_page": "464", "citations": [ { "type": "official", "cite": "144 N.C. App. 452" } ], "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": "518 U.S. 1024", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1730080, 1729633, 1729791, 1730183, 1729928, 1729611, 1730027, 1730125, 1729681, 1729939, 1730227, 1729596, 1730110, 1730015 ], "year": 1996, "pin_cites": [ { "parenthetical": "no prejudice in opening statement that defendant \"[o]f course . . . has come here and pled not guilty, denies this offense, and by that plea says that he doesn't know anything about these charges or offenses and didn't have anything to do with it.\"" } ], "opinion_index": 0, "case_paths": [ "/us/518/1024-08", "/us/518/1024-11", "/us/518/1024-10", "/us/518/1024-13", "/us/518/1024-02", "/us/518/1024-03", "/us/518/1024-12", "/us/518/1024-01", "/us/518/1024-06", "/us/518/1024-09", "/us/518/1024-14", "/us/518/1024-05", "/us/518/1024-07", "/us/518/1024-04" ] }, { "cite": "332 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505873, 2504894, 2504004, 2507294 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0670-01", "/nc/332/0670-03", "/nc/332/0670-02", "/nc/332/0670-04" ] }, { "cite": "247 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "883-84" } ], "opinion_index": 0 }, { "cite": "295 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566427 ], "year": 1978, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0596-01" ] }, { "cite": "321 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "872" } ], "opinion_index": 0 }, { "cite": "312 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750769 ], "year": 1984, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0198-01" ] }, { "cite": "148 L. Ed. 2d 784", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "148 L. Ed. 2d 498", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "528 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "341" }, { "page": "342" }, { "page": "341-42" } ], "opinion_index": 0 }, { "cite": "351 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155877 ], "year": 2000, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0481-01" ] }, { "cite": "343 S.E.2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "859", "parenthetical": "permissible for counsel in opening statement to state that the defendant \"would rely on the presumption of innocence.\"" } ], "opinion_index": 0 }, { "cite": "316 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695646 ], "year": 1986, "pin_cites": [ { "page": "648", "parenthetical": "permissible for counsel in opening statement to state that the defendant \"would rely on the presumption of innocence.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0630-01" ] }, { "cite": "135 L. Ed. 2d 1080", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "pin_cites": [ { "parenthetical": "no prejudice in opening statement that defendant \"[o]f course . . . has come here and pled not guilty, denies this offense, and by that plea says that he doesn't know anything about these charges or offenses and didn't have anything to do with it.\"" } ], "opinion_index": 0 }, { "cite": "464 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "468" } ], "opinion_index": 0 }, { "cite": "342 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795939 ], "year": 1995, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0249-01" ] }, { "cite": "394 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495744, 2500097, 2496514, 2493066, 2500301 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0143-02", "/nc/327/0143-05", "/nc/327/0143-01", "/nc/327/0143-04", "/nc/327/0143-03" ] }, { "cite": "390 S.E.2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "360" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523391 ], "year": 1990, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0167-01" ] }, { "cite": "505 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "156", "parenthetical": "citation omitted" }, { "parenthetical": "quotation omitted" }, { "page": "156" }, { "page": "156" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 11", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11196773 ], "year": 1998, "pin_cites": [ { "page": "16", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0011-01" ] }, { "cite": "520 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "789" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241095 ], "year": 1999, "pin_cites": [ { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0400-01" ] }, { "cite": "260 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "430", "parenthetical": "element of first degree rape that defendant be more than 16 years old satisfied where \"jury had ample opportunity to view the defendant and estimate his age.''" } ], "opinion_index": 0 }, { "cite": "298 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574147 ], "year": 1979, "pin_cites": [ { "page": "787", "parenthetical": "element of first degree rape that defendant be more than 16 years old satisfied where \"jury had ample opportunity to view the defendant and estimate his age.''" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0783-01" ] }, { "cite": "380 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "324 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485509 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0539-01" ] }, { "cite": "258 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "298 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569948 ], "year": 1979, "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0263-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(c)(2)" } ], "opinion_index": 0 }, { "cite": "457 S.E.2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "393 S.E.2d 903", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 803", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307328, 5308545, 5307673, 5307741, 5304895 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0803-04", "/nc/326/0803-01", "/nc/326/0803-03", "/nc/326/0803-02", "/nc/326/0803-05" ] }, { "cite": "389 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 559", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522211 ], "pin_cites": [ { "page": "563-64" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0559-01" ] }, { "cite": "403 S.E.2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539656, 2543372, 2541266, 2545174, 2539422 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0574-05", "/nc/328/0574-03", "/nc/328/0574-01", "/nc/328/0574-04", "/nc/328/0574-02" ] }, { "cite": "398 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "652", "parenthetical": "serious personal injury where victim suffered from physical pain, appetite loss, severe headaches, nightmares, and difficulty sleeping lasted for at least eight months" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 12", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527206 ], "year": 1990, "pin_cites": [ { "page": "23", "parenthetical": "serious personal injury where victim suffered from physical pain, appetite loss, severe headaches, nightmares, and difficulty sleeping lasted for at least eight months" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0012-01" ] }, { "cite": "441 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "555", "parenthetical": "serious mental injury where rape victim's depression, loss of appetite and weight, counseling, nightmares, and insomnia continued for twelve months after rape" } ], "opinion_index": 0 }, { "cite": "336 N.C. 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539426 ], "year": 1994, "pin_cites": [ { "page": "65", "parenthetical": "serious mental injury where rape victim's depression, loss of appetite and weight, counseling, nightmares, and insomnia continued for twelve months after rape" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0058-01" ] }, { "cite": "461 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793094, 793132, 793170, 793077, 793087 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0422-05", "/nc/341/0422-03", "/nc/341/0422-01", "/nc/341/0422-04", "/nc/341/0422-02" ] }, { "cite": "457 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913511 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0022-01" ] }, { "cite": "235 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "212" } ], "opinion_index": 0 }, { "cite": "293 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561228 ], "year": 1977, "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0001-01" ] }, { "cite": "135 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "628" } ], "opinion_index": 0 }, { "cite": "261 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574609 ], "year": 1964, "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0558-01" ] }, { "cite": "311 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "273" } ], "opinion_index": 0 }, { "cite": "310 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400836 ], "year": 1984, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0157-01" ] }, { "cite": "297 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "589" }, { "page": "589" }, { "page": "590", "parenthetical": "because only evidence of rape victim's condition was that she was hysterical in morning hours of day crime was committed, and no evidence of residual injury after morning of crime, insufficient evidence for serious personal injury" } ], "opinion_index": 0 }, { "cite": "307 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561253 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "204" }, { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0198-01" ] }, { "cite": "464 S.E.2d 42", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "quoting State v. Boone, 307 N.C. 198, 204, 297 S.E.2d 585, 589 (1982)" } ], "opinion_index": 0 }, { "cite": "342 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795910 ], "year": 1995, "pin_cites": [ { "parenthetical": "quoting State v. Boone, 307 N.C. 198, 204, 297 S.E.2d 585, 589 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0409-01" ] }, { "cite": "450 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "548" }, { "page": "548" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 192", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524725 ], "year": 1994, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0192-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "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", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)" }, { "page": "378", "parenthetical": "noting standard of plain error review" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)" }, { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "544 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "255" } ], "opinion_index": 0 }, { "cite": "492 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "51", "parenthetical": "\"the offense of kidnapping under N.C. Gen. Stat. \u00a7 14-39 is a single continuing offense, lasting from the time of the initial unlawful confinement, restraint or removal until the victim regains his or her free will.\"" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798773 ], "year": 1997, "pin_cites": [ { "page": "571", "parenthetical": "\"the offense of kidnapping under N.C. Gen. Stat. \u00a7 14-39 is a single continuing offense, lasting from the time of the initial unlawful confinement, restraint or removal until the victim regains his or her free will.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0565-01" ] }, { "cite": "302 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "447" } ], "opinion_index": 0 }, { "cite": "308 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4706423 ], "year": 1983, "pin_cites": [ { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0339-01" ] }, { "cite": "468 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "824-25" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915306 ], "year": 1996, "pin_cites": [ { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0037-01" ] }, { "cite": "534 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "614" }, { "page": "614" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 471", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497067 ], "year": 2000, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0471-01" ] }, { "cite": "353 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "247", "parenthetical": "while some restraint is inherent in a sexual assault, there must be some separate, independent restraint, confinement, or asportation of the victim in order to constitute kidnapping" }, { "page": "247", "parenthetical": "\"[a]sportation of a rape victim is sufficient to support a charge of kidnapping if the defendant could have perpetuated the offense when he first threatened the victim and instead took the victim to a more secluded area to prevent others from witnessing or hindering the rape.\"" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168908 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "543", "parenthetical": "while some restraint is inherent in a sexual assault, there must be some separate, independent restraint, confinement, or asportation of the victim in order to constitute kidnapping" }, { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0540-01" ] }, { "cite": "403 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "328 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544066, 2543623, 2538005, 2541238, 2542649 ], "year": 1991, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0573-05", "/nc/328/0573-01", "/nc/328/0573-03", "/nc/328/0573-04", "/nc/328/0573-02" ] }, { "cite": "397 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "515-16" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 455", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526992 ], "year": 1990, "pin_cites": [ { "page": "459-60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0455-01" ] }, { "cite": "424 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "418 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "255" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313533 ], "year": 1992, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0516-01" ] }, { "cite": "243 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "352" } ], "opinion_index": 0 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "year": 1978, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0503-01" ] }, { "cite": "546 S.E.2d 122", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135586, 135716, 135621, 135595, 135666 ], "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0271-03", "/nc/353/0271-02", "/nc/353/0271-04", "/nc/353/0271-01", "/nc/353/0271-05" ] }, { "cite": "535 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "617", "parenthetical": "citation omitted" }, { "page": "618" }, { "page": "618" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12124012 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "213", "parenthetical": "citation omitted" }, { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0208-01" ] }, { "cite": "282 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "446" } ], "opinion_index": 0 }, { "cite": "304 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565336 ], "year": 1981, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0093-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1285, "char_count": 31222, "ocr_confidence": 0.742, "pagerank": { "raw": 2.8208377379487575e-07, "percentile": 0.8383349762862623 }, "sha256": "a2a33ecdf3af8be64b6680e315139177392a94051b30e66cb60bac4d0e517423", "simhash": "1:0f29546af62f45de", "word_count": 5189 }, "last_updated": "2023-07-14T14:55:44.896074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. VEARL ACKERMAN" ], "opinions": [ { "text": "TYSON, Judge.\nVearl Ackerman (\u201cdefendant\u201d) appeals a judgment entered upon convictions of first-degree sexual offense, first-degree kidnapping, assault on a female, assault with a deadly weapon, injury to personal property, and communicating threats. The convictions were consolidated for judgment, and the trial court sentenced defendant to a minimum of 307 months and a maximum of 378 months\u2019 imprisonment. We reverse defendant\u2019s conviction for first-degree kidnapping. We find no error in the judgment entered on all other charges.\nFacts\nDefendant and the prosecuting witness, Cathy Hill Cook (\u201cCook\u201d), were involved in a brief romantic relationship from April to June 1998. Defendant and Cook did not see each other from June until September 1998. On 26 September 1998, defendant telephoned Cook to invite her to dinner at his home. Cook arrived at defendant\u2019s apartment around 7:00 p.m. during her work break. Two mutual friends of defendant and Cook were present at defendant\u2019s home. The four had a conversation about a band that was to perform that evening at a local bar, the Comet Grill. Defendant stated that he intended to go. The friends were unsure if they would attend.\nThe friends left defendant\u2019s apartment after Cook finished eating dinner. Cook testified that defendant began to kiss her and make sexual advances toward her when they were alone. Cook rebuked defendant\u2019s advances, upon which defendant told Cook to leave. Cook left, and returned to work.\nAt approximately 11:00 p.m. that evening, Cook arrived at the Comet Grill. She parked her vehicle across the street from the bar, in a parking lot adjacent to defendant\u2019s apartment. Cook entered the bar, and did not see the mutual friends who had been with her and defendant earlier that evening. Defendant was at the bar. Cook ordered a glass of wine, and spoke with defendant for a few minutes.\nSubsequently, Cook went outside to speak with some friends, including a male friend. Cook testified that defendant came outside and told her to \u201cget [her] butt back inside.\u201d When Cook re-entered the bar, defendant \u201cgrabbed [her] by the collar\u201d and told her that she had \u201cembarrassed him\u201d and that she needed to \u201csit down and shut up or else.\u201d\nShortly thereafter, Cook attempted to leave the bar. Cook testified that defendant physically grabbed her, pushed her into the bar, and ordered her to pay the bill. Cook testified she just \u201cgrabbed a handful of money out of [her] pocket and handed it to [defendant] and left.\u201d Cook testified that she left the bar alone, and went to her vehicle, parked across the street. Cook entered her vehicle and began to drive out of the parking lot.\nCook testified that defendant ran towards her vehicle and jumped inside through the open driver\u2019s side window. While inside the vehicle, defendant kicked the key until it broke off in the ignition. Defendant also kicked the gear shift into the park position. Cook testified that she reached for the door handle to exit the vehicle, but that defendant \u201cgrabbed [her] hand and ... bit [her] really hard\u201d and \u201cwouldn\u2019t let go.\u201d Cook further testified that defendant then beat her with a full beer bottle about the head, face, chest, side, knees, and back.\nCook further testified that defendant held the beer bottle at her throat and told her he was \u201cgoing to kill [her],\u201d and that she was \u201cgoing to die tonight.\u201d Defendant continued to choke Cook and beat her with the bottle, stating that she was going to die \u201cfor everything that [she\u2019d] done,\u201d and that she would \u201cnever see [her] kids again.\u201d Cook testified that she tried to exit the vehicle, but that defendant was physically restraining her. She stated, \u201cif I fought him, it got worse.\u201d\nCook stated that she pretended to pass out so that defendant would cease beating her. She testified that she let her head fall over into defendant\u2019s lap as though she were unconscious. Defendant unzipped his pants and forced his penis into Cook\u2019s mouth. Cook testified that defendant then slammed his hand onto her ear so hard that she sat upright. Defendant then began to choke Cook with both hands, pushing her back between the vehicle seats. Cook testified that when she was at the point where she could no longer breathe, defendant stopped choking her and stated, \u201cI\u2019m not going to kill you now. First I\u2019m going to beat you some more and I\u2019m going to break this bottle and cut your face up; and, I\u2019m going to rape you ... tonight we\u2019re going to die together.\u201d\nCook testified that defendant picked her up and put her on top of him, stating that he was going to rape her. At this point, Cook opened the driver\u2019s side door and \u201cfell out\u201d of the vehicle. She ran towards the Comet Grill. Defendant continued to shout \u201cI will kill you ... I know where you live.\u201d\nCook ran into the bar screaming that defendant had beat her and tried to kill her. The bar owner, Jenny Wicker (\u201cWicker\u201d), estimated that 45 minutes had lapsed between the time Cook initially left the bar and when she returned. Wicker testified that Cook was \u201chysterical and disheveled\u201d and \u201casked if someone would take her home.\u201d Either Wicker or her husband called 911. The fire department was the first to respond to the call. Cook testified that the fire department wanted her to go to the hospital, but she told them that she wanted to talk to the police first.\nCook waited at the bar for the police to arrive, whereupon she told the officers what had transpired. Cook\u2019s daughter also arrived at the scene. The officers were able to start Cook\u2019s car with a pair of pliers. Cook\u2019s daughter then drove Cook to the hospital. The two waited in the hospital emergency room approximately two hours. Cook testified that at 5:00 a.m., she \u201chad enough and just wanted to go home.\u201d She left the hospital without seeing a doctor and visited her physician the next day.\nThe State introduced several photographs of bite marks, scars, swelling, and bruises Cook sustained in the struggle with defendant. Cook testified that she continues to think about the incident \u201ceveryday of [her] life and every night.\u201d Cook stated that she is in therapy to help her deal with the incident.\nDefendant moved to dismiss all charges at the close of the State\u2019s evidence. The trial court denied the motions. Defendant did not present any evidence. Defendant renewed his motions to dismiss at the close of all evidence, which motions were denied.\nOn 8 December 1999, the jury returned guilty verdicts as to all charges: first-degree sexual offense; first-degree kidnapping; assault on a female; assault with a deadly weapon; injury to personal property; and communicating threats. The trial court entered judgment thereon on 8 December 1999. Defendant appeals.\nDefendant argues that the trial court erred: (1) in denying his motion to dismiss the charge of first-degree kidnapping; (2) by instructing the jury on first-degree sexual offense based on the infliction of serious personal injury; (3) by denying defendant\u2019s motion to dismiss the charge of assault on a female; (4) in allowing the prosecution to make a statement in its opening argument about defendant\u2019s evidence; and (5) in denying defendant\u2019s motion to dismiss the charge of first-degree sexual offense for insufficiency of the short-form indictment. We agree with defendant that failure to dismiss the charge of first-degree kidnapping was error. We find no error as to all other issues.\nA. First-degree kidnapping\nDefendant argues that the trial court erred in denying his motion to dismiss the charge of first-degree kidnapping. Specifically, defendant argues the evidence failed to show confinement or restraint beyond that required to establish the crime of first-degree sexual offense. We agree.\nFirst-degree kidnapping requires the unlawful restraint or confinement of a person for the purpose of committing a felony. N.C. Gen. Stat. \u00a7 14-39(a)(2). It was not the legislature\u2019s intent, however, \u201cto make a restraint which was an inherent, inevitable element of another felony, such as armed robbery or rape, a distinct offense of kidnapping thus permitting conviction and punishment for both crimes.\u201d State v. Irwin, 304 N.C. 93, 102, 282 S.E.2d 439, 446 (1981). The restraint required for kidnapping must be an act independent of the intended felony. State v. Harris, 140 N.C. App. 208, 213, 535 S.E.2d 614, 617, appeal dismissed, disc. review denied, 353 N.C. 271, 546 S.E.2d 122 (2000) (citation omitted); State v. Fulcher, 294 N.C. 503, 524, 243 S.E.2d 338, 352 (1978).\n\u201cThe test of the independence of the act is \u2018whether there was substantial evidence that the defendantf ] restrained or confined the victim separate and apart from any restraint necessary to accomplish the acts of rape [, statutory sex offense, or crime against nature].\u2019 \u201d Harris at 213, 535 S.E.2d at 618 (quoting State v. Mebane, 106 N.C. App. 516, 532, 418 S.E.2d 245, 255, disc. review denied, 332 N.C. 670, 424 S.E.2d 414 (1992)). The restraint or asportation of the victim must be a complete act, separate from the sexual assault. State v. Coats, 100 N.C. App. 455, 459-60, 397 S.E.2d 512, 515-16 (1990), disc. review denied, 328 N.C. 573, 403 S.E.2d 515 (1991) (citation omitted); see also State v. Walker, 84 N.C. App. 540, 543, 353 S.E.2d 245, 247 (1987) (while some restraint is inherent in a sexual assault, there must be some separate, independent restraint, confinement, or asportation of the victim in order to constitute kidnapping).\nThus, in Harris, we held that restraint independent of the underlying felony was present where the defendant fraudulently coerced the victim into remaining with him in a car so that he could drive her to a secluded place and sexually assault her. Harris, 140 N.C. App. at 213, 535 S.E.2d at 618.\nIn State v. Hill, 139 N.C. App. 471, 482, 534 S.E.2d 606, 614 (2000), we recently held that independent restraint supporting a conviction for kidnapping was present where, after completing the restraint necessary to rob the victim, the defendant then drove the victim to an isolated area. We stated,\n[Defendant forced his way into, and took control of, T.H.A.\u2019s car by threatening her with a pistol, completing the force necessary to commit the robbery. By further restraining her in the car and driving her to an isolated park, he exposed her to greater danger than that inherent in the robbery. Such additional restraint and removal is sufficient to support the element of restraint necessary for his conviction of the separate crime of kidnapping.\nId. at 483, 534 S.E.2d at 614; see also State v. McKenzie, 122 N.C. App. 37, 46, 468 S.E.2d 817, 824-25 (1996) (separate and independent restraint found where defendant grabbed victim in front hallway, took victim to bedroom, bound her hands, covered her head with a pillowcase, shut blinds, and rummaged through apartment prior to rape: \u201c [i]t is apparent then that the asportation of the victim from the hallway to the bedroom and her confinement prior to the rape, was an effort on the part of defendant to conceal his identity and facilitate the commission of the independent acts of larceny and robbery.\u201d); Walker, 84 N.C. App. at 543, 353 S.E.2d at 247 (\u201c[a]sportation of a rape victim is sufficient to support a charge of kidnapping if the defendant could have perpetuated the offense when he first threatened the victim and instead took the victim to a more secluded area to prevent others from witnessing or hindering the rape.\u201d).\nIn contrast, in the present case, there was no restraint \u201cseparate and apart\u201d from Cook\u2019s confinement in the vehicle, and that required for defendant to commit the sexual offense. There was no asportation of Cook, all events having taken place in the front seat of Cook\u2019s vehicle, and across the street from the Comet Grill. Cook voluntarily entered her vehicle. Defendant entered the vehicle by jumping through the open window while Cook was seated in the vehicle. The evidence does not show confinement beyond defendant\u2019s preventing Cook from escaping the vehicle. Cook\u2019s restraint in the vehicle was necessary for defendant to commit the sexual offense. The restraint was an inherent part of the commission of the sexual offense, and cannot be used to convict defendant of kidnapping.\nWe note that the sexual assault comprised only a small portion of the total time that Cook and defendant were in the vehicle. However, there was no evidence that defendant took any additional steps to move Cook to another location or otherwise further restrain her. Absent such evidence, defendant\u2019s actions do not rise to the level required for first-degree kidnapping. \u201cThe test... does not look at the restraint necessary to commit an offense, rather the restraint that is inherent in the actual commission of the offense.\u201d State v. Williams, 308 N.C. 339, 347, 302 S.E.2d 441, 447 (1983). The Williams court determined that the defendant restrained the victim beyond what was inherent in the crime of rape:\nThe evidence in this case reveals that the defendant restrained the victim for a period of several hours in her home. During that time the defendant forced the victim to sit in the living room and to accompany him to the kitchen so that the defendant could get something to drink. Neither of these restraints is inherent in the crime of rape. As a result, there was substantial evidence of restraint to support the conviction of kidnapping separate and apart from the restraint inherent in the crime of rape.\nId,.; see also State v. White, 127 N.C. App. 565, 571, 492 S.E.2d 48, 51 (1997) (\u201cthe offense of kidnapping under N.C. Gen. Stat. \u00a7 14-39 is a single continuing offense, lasting from the time of the initial unlawful confinement, restraint or removal until the victim regains his or her free will.\u201d).\nNo such independent, separate restraint occurred in this case. Defendant\u2019s continuous confinement of Cook in the vehicle was the restraint inherent in his commission of the sexual offense. Defendant\u2019s conviction for first-degree kidnapping must be reversed.\nB. Instruction on first-degree sexual offense\nDefendant next argues that the trial court erred in instructing the jury on first-degree sexual offense based either on the employment of a dangerous weapon, or the infliction of serious personal injury upon Cook. Defendant alleges that the evidence was insufficient to support an instruction based on the infliction of serious personal injury. In so arguing, defendant notes that Cook initially declined to go to the hospital, stating that she wanted to first speak to the police; that Cook left the hospital at 5:00 a.m. that morning without having seen a doctor; and that the prosecutor took a dismissal on the charge of assault inflicting serious injury at the close of the evidence.\nDefendant acknowledges in his brief that he failed to object to the trial court\u2019s instruction at trial. A defendant who fails to object at trial bears the burden of proving that the trial court committed \u201cplain error.\u201d State v. Reaves, 142 N.C. App.-,-, 544 S.E.2d 253, 255 (2001). A ruling of the trial court will be found to be plain error \u201conly in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u2018fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u2019 or where [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u2019 or the error has \u2018resulted in a miscarriage of justice or in the denial to appellant of a fair trial.\u2019 \u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). We find no such error in this case.\nOur General Assembly has determined that a second-degree sexual offense is elevated to first degree if serious personal injury is inflicted on the victim. N.C. Gen. Stat. \u00a7 14-27.4; 14-27.5. \u201cOur courts have \u2018declined to attempt to define the substance of the phrase \u2018serious [personal] injury\u2019 and [have instead] adopted the rule . . . \u2018[w]hether such serious injury has been inflicted must be determined according to the particular facts of each case.\u2019 \u201d State v. Lilly, 117 N.C. App. 192, 194, 450 S.E.2d 546, 548 (1994), affirmed, 342 N.C. 409, 464 S.E.2d 42 (1995) (quoting State v. Boone, 307 N.C. 198, 204, 297 S.E.2d 585, 589 (1982)).\nInjuries sufficient to constitute \u201cserious personal injury\u201d have been held to include: \u201ca bruised and swollen cheek, a cut lip, and two broken teeth,\u201d State v. Jean, 310 N.C. 157, 170, 311 S.E.2d 266, 273 (1984); bruises to a victim\u2019s rectal area, Lilly at 195, 450 S.E.2d at 548; a whiplash injury resulting in leg cramps and requiring two visits to a doctor, State v. Ferguson, 261 N.C. 558, 560, 135 S.E.2d 626, 628 (1964); and blows resulting in five teeth being knocked out of alignment and a broken tooth root, State v. Roberts, 293 N.C. 1, 15, 235 S.E.2d 203, 212 (1977). Moreover, our Supreme Court has held that \u201cserious personal injury\u201d in this context may also include mental injury. Boone, 307 N.C. at 204, 297 S.E.2d at 589.\nIn State v. Easterling, 119 N.C. App. 22, 457 S.E.2d 913, disc. review denied, 341 N.C. 422, 461 S.E.2d 762 (1995), we interpreted Boone:\nWe do not read Boone as placing an additional burden on the State to show a mental injury must be more than that normally experienced in every forcible rape in addition to showing the mental injury extended for some appreciable time, as defendant suggests. Rather, we read Boone as holding that if a mental injury extends for some appreciable time, it is therefore a mental injury beyond that normally experienced in every forcible rape. See id, 307 N.C. at 205, 297 S.E.2d at 590 (because only evidence of rape victim\u2019s condition was that she was hysterical in morning hours of day crime was committed, and no evidence of residual injury after morning of crime, insufficient evidence for serious personal injury); State v. Baker, 336 N.C. 58, 65, 441 S.E.2d 551, 555 (1994) (serious mental injury where rape victim\u2019s depression, loss of appetite and weight, counseling, nightmares, and insomnia continued for twelve months after rape); State v. Davis, 101 N.C. App. 12, 23, 398 S.E.2d 645, 652 (1990) (serious personal injury where victim suffered from physical pain, appetite loss, severe headaches, nightmares, and difficulty sleeping lasted for at least eight months), appeal dismissed & disc. rev. denied, 328 N.C. 574, 403 S.E.2d 516 (1991); State v. Mayse, 97 N.C. App. 559, 563-64, 389 S.E.2d 585, 587 (serious mental injury where victim\u2019s mental and emotional injuries continued for at least seven months after rape; victim quit work, quit school, moved from home, sought professional help), disc. rev. denied, 326 N.C. 803, 393 S.E.2d 903 (1990).\nId. at 40-41, 457 S.E.2d 923-24.\nIn this case, the State introduced several photographs illustrating the injuries Cook sustained in the struggle with defendant. The photographs depicted three bite marks, a thumb print, scab, and swelling on Cook\u2019s neck as a result of being choked, and many bruises and swelling about Cook\u2019s face, head, neck, chest and knees resulting from blows from a full beer bottle and defendant\u2019s hands. Cook testified that when she attempted to exit the vehicle, defendant \u201cbit [her] really hard\u201d and \u201cwouldn\u2019t let go.\u201d Cook showed the jury scars on her arm left by defendant\u2019s bites.\nCook further testified that a blow by defendant\u2019s hand on her ear was \u201cso hard\u201d that now \u201cwhen [she] hear[s] the radio or anything, [her] ear goes .. . like a broken record \u2014 broken speaker.\u201d Cook testified that \u201ceveryday of [her] life and every night\u201d she still thinks of the incident. Cook testified she has dreams every night about the incident, and is still receiving therapy as a result of the incident, some 15 months after its occurrence.\nIn light of the combination .of evidence of Cook\u2019s physical and mental injuries, we hold that her injuries were \u201cserious personal injuries\u201d and the trial court\u2019s instruction was proper. This assignment of error is overruled.\nC. Assault on a female\nDefendant assigns error to the trial court\u2019s denial of his motion to dismiss the charge of assault against a female. Defendant argues that the State failed to present evidence that defendant was over the age of 18, a required element of the offense. N.C. Gen. Stat. \u00a7 14-33(c)(2).\nIn State v. Evans, 298 N.C. 263, 267, 258 S.E.2d 354, 356, (1979), overruled on other grounds, State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989), our Supreme Court noted that \u201c[w]hile it is true that one of the elements of assault on a female is that the defendant be more than 18 years old, the jury may look upon a person and estimate his age .... The jury had ample opportunity to view the defendant in this case and estimate his age.\u201d Id. (citations omitted); see also, State v. Samuels, 298 N.C. 783, 787, 260 S.E.2d 427, 430 (1979) (element of first degree rape that defendant be more than 16 years old satisfied where \u201cjury had ample opportunity to view the defendant and estimate his age.\u2019\u2019).\nMore recently, this Court distinguished such prior cases, and held that a jury should not \u201cdetermine the age of a criminal defendant beyond a reasonable doubt merely by observing him in the courtroom without having the benefit of other evidence, whether circumstantial or direct.\u201d In re Jones, 135 N.C. App. 400, 405, 520 S.E.2d 787, 789 (1999).\nHere, the jury had ample opportunity to observe defendant in the courtroom for the duration of the trial. In addition, the jury was presented with circumstantial evidence from which, in addition to observing defendant, they could conclude that defendant was over 18 years of age. The State introduced evidence that defendant had been involved in a romantic relationship with Cook, age 43; that defendant \u201cwas a regular\u201d at the Comet Grill bar; that Wicker, the bar owner, knew defendant as a customer in her bar; and that defendant purchased and drank alcoholic beverages at the bar on the evening in question.\nA person must be 21 years of age to purchase or consume alcohol in this State. See N.C. Gen. Stat. \u00a7 18B-302. The circumstantial evidence of defendant\u2019s regular patronage of a bar and consumption of alcohol is sufficient evidence from which a jury, in addition to observing defendant, could conclude defendant was over 18 years of age. We find no error in light of this evidence.\nD. Prosecutor\u2019s opening statement\nDefendant argues that the trial court committed plain error in failing to intervene and prevent statements made by the prosecutor during the State\u2019s opening statement. Defendant argues that the prosecutor inappropriately called \u201cattention to the likelihood that defendant would not testify,\u201d and \u201cattempted to shift the burden of proof to the defense.\u201d We disagree.\nEach party in a criminal jury trial has the opportunity to make a brief opening statement. N.C. Gen. Stat. \u00a7 15A-1221(a)(4). \u201cThe purpose of an opening statement is to set forth a \u2018general forecast\u2019 of the evidence. State v. Allred, 131 N.C. App. 11, 16, 505 S.E.2d 153, 156 (1998) (citation omitted).\n\u201cCounsel for the parties may not, however, \u2018(1) refer to inadmissible evidence, (2) \u2018exaggerate or overstate\u2019 the evidence, or (3) discuss evidence [they] expect[ ] the other party to introduce.\u2019 \u201d Id. (quotation omitted). The parties are generally given \u201cwide latitude\u201d in the scope of an opening statement. State v. Summerlin, 98 N.C. App. 167, 171, 390 S.E.2d 358, 360, disc. review denied, 327 N.C. 143, 394 S.E.2d 183 (1990). Such scope is within the sound discretion of the trial court. Allred at 16, 505 S.E.2d at 156.\nDefendant objects to the following statement made by the prosecutor during opening statements:\nI\u2019ll tell you what you\u2019re not going to hear. You\u2019re not going to hear a plausible, reasonable explanation, given by the defense, as to why this terrible event happened. All you\u2019re going to hear from them is for them to point their finger at [Cook], and blame her and ask her why she was there in the first place.\nDefendant argues that this statement \u201cconstituted not only an improper comment on [defendant\u2019s] expected failure to testify but also an attempt to shift the burden of proof to the defendant.\u201d\nAt no time during the opening argument does the prosecutor affirmatively state, or even infer, that defendant will not testify. The prosecutor merely states that the jury will not hear a plausible explanation for why the incident occurred, other than Cook may have been to blame. Such a statement does not, (1) refer to inadmissible evidence, (2) exaggerate or overstate any evidence, or (3) discuss the evidence that the defense had planned to introduce. Allred at 16, 505 S.E.2d at 156. Nor do we read the prosecutor\u2019s statement as unfairly shifting the burden of proof to defendant.\nDefendant has failed to show that this statement was \u201cso basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d given the \u201cwide latitude\u201d afforded the scope of such opening statements and the trial court\u2019s ample discretion to determine this scope. See Odom, 307 N.C. at 660, 300 S.E.2d at 378 (noting standard of plain error review); see also State v. Jaynes, 342 N.C. 249, 281, 464 S.E.2d 448, 468 (1995), cert. denied, Jaynes v. North Carolina, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996) (no prejudice in opening statement that defendant \u201c[o]f course . . . has come here and pled not guilty, denies this offense, and by that plea says that he doesn\u2019t know anything about these charges or offenses and didn\u2019t have anything to do with it.\u201d); State v. Paige, 316 N.C. 630, 648, 343 S.E.2d 848, 859 (1986) (permissible for counsel in opening statement to state that the defendant \u201cwould rely on the presumption of innocence.\u201d). We overrule this assignment of error.\nE. Short-form indictment\nFinally, defendant argues that the trial court erred in failing to dismiss the first-degree sexual offense indictment because the short-form indictment used violated defendant\u2019s Sixth Amendment rights and his right to due process. Defendant failed to object to the form of the indictment at trial. However, where an indictment is alleged to be invalid on its face, depriving the trial court of its jurisdiction, a challenge may be made at any time. State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000), cert. denied, Wallace v. North Carolina,-U.S.-, 148 L. Ed. 2d 498, reh\u2019g denied,-U.S. -, 148 L. Ed. 2d 784 (2001).\nDefendant argues that the sexual offense short-form indictment was constitutionally insufficient in that it failed to allege the elements that distinguish a first-degree sexual offense from a second-degree sexual offense. An identical argument was recently rejected by our Supreme Court. See Wallace at 505, 528 S.E.2d at 342. The short-form indictment used in Wallace contained the exact language as defendant\u2019s indictment here; specifically, that on or about the date alleged, defendant \u201cdid unlawfully, wilfully and feloniously with force and arms engage in a sexual act with [victim\u2019s name], by force and against the victims will.\u201d Id. at 505, 528 S.E.2d at 341-42. Our Supreme Court held that the indictment complied with the statute authorizing short-form indictments for a sexual offense, and that such indictments \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 (citing State v. Randolph, 312 N.C. 198, 210, 321 S.E.2d 864, 872 (1984); State v. Lowe, 295 N.C. 596, 604, 247 S.E.2d 878, 883-84 (1978)). This assignment of error is overruled.\nFor the reasons stated, we hold that defendant\u2019s kidnapping conviction in 99 CRS 109538 must be reversed. The judgment is vacated and remanded for re-sentencing. In all other respects defendant received a fair trial free from prejudicial error. As to the remaining judgments, we find no error.\nNo error in part; reversed in part; judgment vacated in 99 CRS 109538; remanded for re-sentencing.\nJudges WALKER and HUNTER concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Mark J. Pletzke, for the State.", "Assistant Public Defender Marc D. Towlerfor defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. VEARL ACKERMAN\nNo. COA00-672\n(Filed 3 July 2001)\n1. Kidnapping\u2014 first-degree \u2014 motion to dismiss\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of first-degree kidnapping under N.C.G.S. \u00a7 14-39(a)(2), because: (1) the evidence failed to show confinement or restraint in the victim\u2019s vehicle beyond that required to establish the crime of first-degree sexual offense; and (2) there was no asportation of the victim.\n2. Sexual Offenses\u2014 first-degree \u2014 infliction of serious personal injury\nThe trial court did not commit plain error by instructing the jury on first-degree sexual offense based on the employment of a dangerous weapon or the infliction of serious personal injury, because: (1) the photographic evidence revealed three bite marks, a thumb print, scab, and swelling on the victim\u2019s neck as the result of being choked, and many bruises and swelling about the victim\u2019s face, head, neck, chest, and knees resulting from blows from a full beer bottle and defendant\u2019s hands; (2) the victim showed the jury scars on her arm left by defendant\u2019s bites; and (3) the victim testified about a blow by defendant\u2019s hand on her ear and how she still thinks about the incident every day of her life.\n3. Assault\u2014 on a female \u2014 motion to dismiss\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of assault on a female even though defendant contends the State failed to present evidence that defendant was over the age of eighteen as required by N.C.G.S. \u00a7 14-33(c)(2), because: (1) the jury had ample opportunity to observe defendant in the courtroom for the duration of the trial; and (2) the jury was presented circumstantial evidence of defendant\u2019s regular patronage at a bar from which the jury could conclude that defendant was over eighteen years of age.\n4. Criminal Law\u2014 prosecutor\u2019s argument \u2014 explanation for incident\nThe trial court did not commit plain error by allowing the prosecution to make a statement in its opening argument allegedly drawing attention to the likelihood that defendant would not testify and that allegedly attempted to shift the burden of proof to defendant, because: (1) at no time during the opening argument did the prosecutor affirmatively state, or even infer, that defendant will not testify; and (2) the prosecutor merely stated the jury will not hear a plausible explanation for why the incident occurred, other than the defense\u2019s claim that the victim may have been to blame.\n5. Sexual Offenses\u2014 first-degree \u2014 short-form indictment\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of first-degree sexual offense based on an alleged insufficiency of the short-form indictment to distinguish a first-degree sexual offense from a second-degree sexual offense, because the indictment complied with the statute and the North Carolina and United States Constitutions.\nAppeal by defendant from judgment entered 8 December 1999 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 April 2001.\nAttorney General Michael F. Easley, by Assistant Attorney General Mark J. Pletzke, for the State.\nAssistant Public Defender Marc D. Towlerfor defendant." }, "file_name": "0452-01", "first_page_order": 480, "last_page_order": 492 }