{ "id": 8375694, "name": "STATE OF NORTH CAROLINA v. ALFRED ALDRIAN ADAMS", "name_abbreviation": "State v. Adams", "decision_date": "2007-12-18", "docket_number": "No. COA07-730", "first_page": "676", "last_page": "684", "citations": [ { "type": "official", "cite": "187 N.C. App. 676" } ], "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": "619 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634037, 12634038, 12634039 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/619/0853-01", "/se2d/619/0853-02", "/se2d/619/0853-03" ] }, { "cite": "615 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633270 ], "weight": 3, "pin_cites": [ { "page": "381" }, { "page": "381" }, { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0373-01" ] }, { "cite": "639 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637517 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "441" }, { "page": "440", "parenthetical": "emphasis supplied" }, { "page": "440" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0437-01" ] }, { "cite": "636 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636986 ], "year": 2006, "pin_cites": [ { "page": "205", "parenthetical": "\"The jury was given the proper standard, as outlined in Lawson. In keeping with its role as finder of fact, the jury came to the conclusion that, in this case, Defendant's hands were deadly weapons.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0202-01" ] }, { "cite": "629 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635728, 12635727 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/629/0276-02", "/se2d/629/0276-01" ] }, { "cite": "619 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633948 ], "year": 2005, "pin_cites": [ { "page": "415-16", "parenthetical": "\"By statute, the essential elements of assault with a deadly weapon with intent to inflict serious injury are (1) an assault; (2) with a deadly weapon; (3) inflicting serious injury; (4" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0410-01" ] }, { "cite": "622 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634478 ], "year": 2005, "pin_cites": [ { "page": "123", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0120-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-51", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "175 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "613", "parenthetical": "Which noted, ex mero moto, that the judgments as entered contained an error and remanded for correction" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 210", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549069 ], "year": 1970, "pin_cites": [ { "page": "212", "parenthetical": "Which noted, ex mero moto, that the judgments as entered contained an error and remanded for correction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0210-01" ] }, { "cite": "553 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "417", "parenthetical": "Which held the jury's verdict of the greater offense contained all the elements of the lesser included' offense and remanded to the trial court for imposition of the lesser included offense" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11359822 ], "year": 2001, "pin_cites": [ { "page": "505", "parenthetical": "Which held the jury's verdict of the greater offense contained all the elements of the lesser included' offense and remanded to the trial court for imposition of the lesser included offense" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0494-01" ] }, { "cite": "359 N.C. 854", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794241, 3795978, 3795640, 3794159, 3804820, 3803221, 3797622, 3804214, 3801560, 3797850, 3798013 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0854-03", "/nc/359/0854-06", "/nc/359/0854-05", "/nc/359/0854-11", "/nc/359/0854-09", "/nc/359/0854-08", "/nc/359/0854-07", "/nc/359/0854-01", "/nc/359/0854-04", "/nc/359/0854-02", "/nc/359/0854-10" ] }, { "cite": "171 N.C. App. 662", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8439048 ], "weight": 3, "pin_cites": [ { "page": "672" }, { "page": "672" }, { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0662-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 }, { "cite": "361 N.C. 207", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3740457 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "212" }, { "page": "211-12" }, { "page": "211-12" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0207-01" ] }, { "cite": "307 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763204, 4760983, 4764155, 4760764, 4759869 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0463-03", "/nc/309/0463-01", "/nc/309/0463-02", "/nc/309/0463-04", "/nc/309/0463-05" ] }, { "cite": "301 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "430" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523179 ], "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0610-01" ] }, { "cite": "530 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "575", "parenthetical": "\"[A] defendant may be convicted of first degree murder despite the lack of premeditation or deliberation if she attempted to or committed a felony with the use of [her hands as] a deadly weapon, causing the victim's death.\"" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078470 ], "year": 2000, "pin_cites": [ { "page": "46-47", "parenthetical": "\"[A] defendant may be convicted of first degree murder despite the lack of premeditation or deliberation if she attempted to or committed a felony with the use of [her hands as] a deadly weapon, causing the victim's death.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0037-01" ] }, { "cite": "581 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491396, 491752, 491593, 491723, 491412, 491647, 491485, 491839 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0168-04", "/nc/357/0168-08", "/nc/357/0168-01", "/nc/357/0168-07", "/nc/357/0168-05", "/nc/357/0168-06", "/nc/357/0168-03", "/nc/357/0168-02" ] }, { "cite": "569 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "663", "parenthetical": "\"[W]e hold that a single hand may be considered a deadly weapon, based on the manner in which it is used and the relative size and condition of the parties involved\" for the charge of assault with a deadly weapon with intent to kill or inflict serious bodily injury" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249135 ], "year": 2002, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0203-01" ] }, { "cite": "180 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8240467 ], "year": 2006, "pin_cites": [ { "page": "193", "parenthetical": "\"The jury was given the proper standard, as outlined in Lawson. In keeping with its role as finder of fact, the jury came to the conclusion that, in this case, Defendant's hands were deadly weapons.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0188-01" ] }, { "cite": "360 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788898, 3788997, 3787498, 3794954, 3794412, 3796880, 3788340, 3786168, 3795771 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0293-01", "/nc/360/0293-03", "/nc/360/0293-02", "/nc/360/0293-09", "/nc/360/0293-07", "/nc/360/0293-04", "/nc/360/0293-05", "/nc/360/0293-06", "/nc/360/0293-08" ] }, { "cite": "173 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353346 ], "year": 2005, "pin_cites": [ { "page": "279-80", "parenthetical": "\"By statute, the essential elements of assault with a deadly weapon with intent to inflict serious injury are (1) an assault; (2) with a deadly weapon; (3) inflicting serious injury; (4" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0270-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-27.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)(1)" }, { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "174 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353318 ], "year": 2005, "pin_cites": [ { "page": "795", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0790-01" ] }, { "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": "N.C. Gen. Stat. \u00a7 14-277.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-54", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "page": "(a)" }, { "page": "(a)(2)" }, { "page": "(a)(2)" }, { "page": "(a)(2)" }, { "page": "(a)(2)" }, { "page": "(a)(2)" }, { "page": "(a)(2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 773, "char_count": 19147, "ocr_confidence": 0.721, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20320779319566507 }, "sha256": "a77b1b3883e84f24206e88c76e0fc7787732dbb56026402e76706adece3654a5", "simhash": "1:5b285326a22bd5d8", "word_count": 3133 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and ARROWOOD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ALFRED ALDRIAN ADAMS" ], "opinions": [ { "text": "TYSON, Judge.\nAlfred Aldrian Adams (\u201cdefendant\u201d) appeals from judgment entered after a jury found him to be guilty of: (1) first-degree rape pursuant to N.C. Gen. Stat. \u00a7 14-27.2(a); (2) first-degree kidnapping pursuant to N.C. Gen. Stat. \u00a7 14-39; (3) felonious breaking or entering pursuant to N.C. Gen. Stat. \u00a7 14-54(a); (4) two counts of first-degree sexual offense pursuant to N.C. Gen. Stat. \u00a7 14-27.4(a); (5) communicating threats pursuant to N.C. Gen. Stat. \u00a7 14-277.1; and (6) assault on a female pursuant to N.C. Gen. Stat. \u00a7 14-33(c)(2). We find no error in part, reverse in part, and remand for resentencing and correction of error in judgment.\nI. Background\nOn 23 August 2004, S.M. (\u201cthe victim\u201d) awoke to a \u201cshadowy affect\u201d [sic] coming from her living room. The victim initially thought she may have forgotten to turn off her television. The victim arose from her bed and walked into the hallway to see if her television had been left on. The victim saw defendant standing in her living room. Defendant\u2019s face was not hidden in any way.\nThe victim asked defendant to leave her apartment. Defendant backed the victim into her bedroom and pushed her onto her bed. The victim screamed. Defendant hit the victim on the face and yelled, \u201c[s]hut up or I\u2019ll shoot you. Do what I say and I won\u2019t shoot you . . . .\u201d The victim never saw a gun. The victim has been a grade school teacher for the past thirty years and is five foot three inches tall. Defendant is a muscular 22 year-old male, 4 to 5 inches taller than the victim, and weighs approximately 150 pounds.\nDefendant removed the victim\u2019s panties and began licking and inserting his fingers into her vagina. Defendant then licked the victim\u2019s right breast. The victim told defendant his actions were very painful because she had recently undergone \u201ccancer surgery and radiation ... .\u201d Defendant asked the victim for a condom. The victim told defendant she did not have a condom. Defendant asked the victim for \u201cSaran Wrap.\u201d The victim told defendant the \u201cSaran Wrap\u201d was located in the kitchen.\nDefendant pulled the victim from the bed and took her into the kitchen. The victim gave defendant the \u201cSaran Wrap.\u201d Defendant led the victim into the living room and told her to bend over a chair. Defendant wrapped his penis in \u201cSaran Wrap\u201d and told the victim to insert his penis into her rectum. After pleading with defendant not to enter her rectum, defendant told the victim to lie on the floor and to remove her sweatshirt. Defendant again licked the victim\u2019s breast. Defendant tried to insert his penis into the victim\u2019s vagina. Defendant was able to \u201csomewhat\u201d penetrate the victim. After defendant ejaculated, the victim asked him if he was going to let her live. Defendant told the victim that she had seen him and that she \u201cwould tell the police.\u201d While defendant fumbled with the \u201cSaran Wrap,\u201d the victim ran out the open patio door and dove over the railing.\nThe victim heard someone in a neighboring apartment yell that they were calling the police. The victim waited until she thought defendant had left and crawled back over the railing. The victim re-entered her apartment, grabbed a blanket, and went upstairs to her neighbor\u2019s door to wait for the police to arrive. Police officers arrived on the scene and searched the victim\u2019s apartment. Defendant was not located.\nOfficer Eric G. McClary met with the victim a few days after the incident and presented her with a photo line-up. The victim identified defendant as her attacker. Defendant was arrested and indicted for first-degree rape, first-degree kidnapping, first-degree burglary, two counts of first-degree sexual offense, communicating threats, and assault on a female. Defendant did not testify at trial nor offer any evidence.\nA jury found defendant to be guilty of first-degree rape, first-degree kidnapping, felonious breaking or entering, first-degree sexual offense by digital penetration, first-degree sexual offense by cunnilingus, communicating threats, and assault on a female. The trial court consolidated the first-degree rape, first-degree kidnapping, and felonious breaking or entering convictions and sentenced defendant to a minimum of 384 to a maximum of 470 months imprisonment. Upon entering this judgment, the trial court erroneously indicated that the jury found defendant to be guilty of first-degree burglary. The trial court also consolidated defendant\u2019s remaining convictions and sentenced him to an active consecutive term of a minimum of 384 to a maximum of 470 months imprisonment. Defendant appeals.\nII. Issue\nDefendant argues the trial court erred by denying his motions to dismiss and instructing the jury- on the charges of first-degree rape and first-degree sexual offense.\nIII. Motions to Dismiss\nDefendant argues the trial court erred by denying his motions to dismiss and instructing the jury on the charges of first-degree rape and first-degree sexual offense \u201cwhen, on the question of. . . defendant\u2019s employment or display of a dangerous or deadly weapon, the [trial] court had determined that \u2018there was no evidence of it whatsoever.\u2019 \u201d.We agree.\nA. Standard of Review\nThe standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion. In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.\nState v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005) (internal citations and quotations omitted).\nB. Analysis\n1. Hands as a Dangerous or Deadly Weapon\nThe State contended defendant committed first-degree rape and two first-degree sexual offenses, in which \u201che employed a dangerous weapon . . . .\u201d To convict defendant of first-degree rape and first-degree sexual offense, the State is required to prove defendant engaged in vaginal intercourse and a sexual act, respectively, \u201c[w]ith [the victim] by force and against the will of the [victim], and: a. [e]mploy[ed] or displayed] a dangerous or deadly weapon or an article which the [victim] reasonably believe[d] to be a dangerous or deadly weapon . . . .\u201d N.C. Gen. Stat. \u00a7\u00a7 14-27.2(a)(2)a., -27.4(a)(2)a. (2005).\nSecond-degree rape and second-degree sexual offense require a person to engage in vaginal intercourse and a sexual act, respectively, \u201cWith another person: (1) [b]y force and against the will of the other person . . . .\u201d N.C. Gen. Stat. \u00a7\u00a7 14-27.3(a)(1), -27.5(a)(1) (2005).\nHere, the victim testified that defendant yelled, \u201c[s]hut up or I\u2019ll shoot you. Do what I say and I won\u2019t shoot you . . . .\u201d The victim testified she never saw a gun and no evidence was presented tending to show defendant \u201c[e]mploy[ed] or display[ed] a dangerous or deadly weapon . . . .\u201d during commission of these crimes. N.C. Gen. Stat. \u00a7\u00a7 14-27.2(a)(2)a., -27.4(a)(2)a.\nDuring deliberations, the jury submitted a question to the trial court: \u201c[c]an hands be considered a deadly or dangerous weapon?\u201d In response to the jury\u2019s question, the trial court stated:\nA dangerous or deadly weapon is a weapon, which is likely to cause death or serious bodily injury.\nIn determining whether a particular object is a dangerous or deadly weapon, you should consider its nature, the manner in which it was used, and the size and strength of the Defendant as compared to the victim.\nIn certain cases, this Court has held a defendant\u2019s fists may be considered a deadly weapon depending on the manner in which they are used and the relative size and condition of the parties. See State v. Lawson, 173 N.C. App. 270, 279-80, 619 S.E.2d 410, 415-16 (2005) (\u201cBy statute, the essential elements of assault with a deadly weapon with intent to inflict serious injury are (1) an assault; (2) with a deadly weapon; (3) inflicting serious injury; (4) not resulting in death. . . . [M]ere observation by the jury of the victim and defendant\u2019s strength and size, alone, is not sufficient evidence to support the deadly weapon element for the charge of assault with a deadly weapon with intent to inflict serious injury.\u201d), disc. review denied, 360 N.C. 293, 629 S.E.2d 276 (2006); see also State v. Brunson, 180 N.C. App. 188, 193, 636 S.E.2d 202, 205 (2006) (\u201cThe jury was given the proper standard, as outlined in Lawson. In keeping with its role as finder of fact, the jury came to the conclusion that, in this case, Defendant\u2019s hands were deadly weapons.\u201d), aff\u2019d, No. 623A06 (N.C. Dec. 7, 2007); State v. Rogers, 153 N.C. App. 203, 211, 569 S.E.2d 657, 663 (2002) (\u201c[W]e hold that a single hand may be considered a deadly weapon, based on the manner in which it is used and the relative size and condition of the parties involved\u201d for the charge of assault with a deadly weapon with intent to kill or inflict serious bodily injury), disc. rev. denied, 357 N.C. 168, 581 S.E.2d 442 (2003); State v. Krider, 138 N.C. App. 37, 46-47, 530 S.E.2d 569, 575 (2000) (\u201c[A] defendant may be convicted of first degree murder despite the lack of premeditation or deliberation if she attempted to or committed a felony with the use of [her hands as] a deadly weapon, causing the victim\u2019s death.\u201d); State v. Jacobs, 61 N.C. App. 610, 611, 301 S.E.2d 429, 430 (\u201cSince defendant\u2019s fists could have been a deadly weapon in the circumstances of this assault, the indictment was sufficient.\u201d), disc. rev. denied, 309 N.C. 463, 307 S.E.2d 368 (1983).\n2, Hands are not, a Dangerous or Deadly Weapon\nOur Supreme Court has recently held in State v. Hinton, \u201cthat a defendant\u2019s hands, in and of themselves, cannot be dangerous weapons for purposes of robbery with a dangerous weapon under N.C.G.S. \u00a7 14-87.\u201d 361 N.C. 207, 212, 639 S.E.2d 437, 441 (2007). In reaching this holding, our Supreme Court stated:\n[considering the purpose of N.C.G.S. \u00a7 14-87 is to provide for more severe punishment when the robbery is committed with the use or threatened use of firearms or other dangerous weapons, we conclude the General Assembly intended to require the State to prove that a defendant used an external dangerous weapon before conviction under the statute is proper. To hold otherwise would remove the critical distinction between common law robbery and N.C.G.S. \u00a7 14-87 and require us to resolve an ambiguous criminal statute by making a liberal reading in favor of the State.\nHinton, 361 N.C. at 211-12, 639 S.E.2d at 440 (emphasis supplied) (internal quotation omitted).\nThis Court has also stated:\n[c]ommon sense and the clear intent of N.C. Gen. Stat. \u00a7 14-87 lead us to conclude that an individual cannot possess, use, or threaten to use a dangerous weapon during a robbery where that individual is not possessing, using, or threatening to use some external weapon or instrument during the robbery. The critical difference between armed and common law robbery is that the former is accomplished by the use or threatened use of a dangerous weapon whereby the life of a person is endangered or threatened. Were an individual\u2019s bare hands, fists, and feet considered dangerous weapons for the purposes of N.C. Gen. Stat. \u00a7 14-87, that critical difference would be erased, and the crime of common law robbery would in effect merge with the crime of robbery with a dangerous weapon. We are not convinced that this result was contemplated by our legislature in enacting N.C. Gen. Stat. \u00a7 14-87. Therefore, in light of the foregoing, we conclude that an individual\u2019s bare hands, fists, and feet are not considered dangerous weapons for the purposes of N.C. Gen. Stat. \u00a7 14-87.\nState v. Duff, 171 N.C. App. 662, 672, 615 S.E.2d 373, 381 (emphasis supplied) (internal quotation omitted), disc. rev. denied, 359 N.C. 854, 619 S.E.2d 853 (2005).\nOur Supreme Court\u2019s reasoning in Hinton and this Court\u2019s reasoning in Duff are applicable to the first-degree and second-degree rape and first-degree and second-degree sexual offense statutes at issue here. 361 N.C. at 211-12, 639 S.E.2d at 440; 171 N.C. App. at 672, 615 S.E.2d at 381. To elevate the crimes from second-degree rape and second-degree sexual offense to first-degree rape and first-degree sexual offense, the State is\u2019 required to prove defendant \u201c[e]mploy[ed] or display [ed] a dangerous or deadly weapon....\u201d N.C. Gen. Stat. \u00a7\u00a7 14-27.2(a)(2)a., -27.4(a)(2)a. We hold the General Assembly intended to require the State to prove defendant used \u201can external dangerous weapon\u201d based on the additional language of \u201c[ejmploys or displays a dangerous or deadly weapon . . . .\u201d in N.C. Gen. Stat. \u00a7\u00a7 14-27.2(a)(2)a., -27.4(a)(2)a., before defendant\u2019s first-degree convictions would be proper. Hinton, 361 N.C. at 212, 639 S.E.2d at 440; Duff, 171 N.C. App. at 672, 615 S.E.2d at 381.\nThe trial court erred by denying defendant\u2019s motions to dismiss the charges of first-degree rape and first-degree sexual offenses when the State failed to offer any evidence tending to show defendant had \u201c[e]mploy[ed] or displayed] a dangerous or deadly weapon or an article which the [victim] reasonably believe [d] to be a dangerous or deadly weapon . . . .\u201d N.C. Gen. Stat. \u00a7\u00a7 14-27.2(a)(2)a., -27.4(a) (2)a. We reverse the trial court\u2019s denial of defendant\u2019s motions to dismiss the charges of first-degree rape and first-degree sexual offenses, vacate defendant\u2019s convictions on those charges, and remand for resentencing.\n3. Second-Degree Rane and Sexual Offense\nThe jury\u2019s verdict of guilty of first-degree rape and two counts of first-degree sexual offense necessarily contains all the required elements of the lesser included offenses of second-degree rape and second-degree sexual offense: defendant engaged in vaginal intercourse and sexual acts, respectively, \u201c[b]y force and against the will of the [victim] . . . .\u201d N.C. Gen. Stat. \u00a7\u00a7 14-27.3(a)(1), -27.5(a)(1). Defendant does not challenge the sufficiency of the evidence to support either of the lesser included second-degree offenses. We remand to the trial court for resentencing and imposition of judgment on the lesser included offenses of second-degree rape and second-degree sexual offense. See State v. Miller, 146 N.C. App. 494, 505, 553 S.E.2d 410, 417 (2001) (Which held the jury\u2019s verdict of the greater offense contained all the elements of the lesser included' offense and remanded to the trial court for imposition of the lesser included offense).\nIV. Resentencing\nAfter a thorough review of the record and transcripts, we, ex mero moto, hold a discrepancy exists between the offenses the jury found defendant to be guilty of and the offenses the trial court listed in its judgment. See State v. Barber, 9 N.C. App. 210, 212, 175 S.E.2d 611, 613 (1970) (Which noted, ex mero moto, that the judgments as entered contained an error and remanded for correction). The trial court\u2019s judgment stated defendant was found guilty of first-degree burglary pursuant to N.C. Gen. Stat. \u00a7 14-51 and sentenced defendant as a class D felon for that conviction. The record indicates the jury found defendant to be not guilty of first-degree burglary, but guilty of the lesser included offense of felonious breaking or entering.\nN.C. Gen. Stat. \u00a7 14-54(a) (2005) states: \u201cAny person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon.\u201d Because the trial court\u2019s judgment incorrectly stated defendant was found guilty of first-degree burglary, we also remand for the trial court to strike and correct this error upon resentencing.\nV. Conclusion\nThe State failed to present any evidence tending to show defendant \u201c[e]mploy[ed] or displayed] a dangerous or deadly weapon . . . .\u201d while engaging in vaginal intercourse and sexual acts with the victim. N.C. Gen. Stat. \u00a7\u00a7 14-27.2(a)(2)a., -27.4(a)(2)a. The trial court erred by denying defendant\u2019s motions to dismiss and instructing the jury on the charges of first-degree rape and first-degree sexual offense. The jury\u2019s convictions necessarily include all elements of second-degree rape and second-degree sexual offense. We remand to the trial court for imposition of judgment on the lesser included offenses of second-degree rape and second-degree sexual offense. We hold no error occurred in the remainder of the jury\u2019s verdicts, and defendant\u2019s remaining convictions are undisturbed. Upon remand the trial court is to correct the judgment entered for first-degree burglary, when the jury\u2019s verdict shows defendant to be not guilty of first-degree burglary but guilty of felonious breaking or entering.\nNo Error in Part, Reversed in Part, and Remanded for Resen-tencing and Correction of Judgment.\nJudges JACKSON and ARROWOOD concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State.", "Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALFRED ALDRIAN ADAMS\nNo. COA07-730\n(Filed 18 December 2007)\n1. Rape; Sexual Offenses\u2014 first-degree \u2014 motion to dismiss\u2014 sufficiency of evidence \u2014 hands alone are not dangerous or deadly weapon\nThe trial court erred by denying defendant\u2019s motions to dismiss and instructing the jury on the charges of first-degree rape and first-degree sexual offense, and the convictions on these charges are vacated and the case is remanded for resentencing on the Iesser-included offenses of second-degree rape and second-degree sexual offense, because: (1) there was no evidence of defendant\u2019s employment or display of a dangerous or deadly weapon during commission of these crimes; and (2) the General Assembly intended to require the State to prove defendant used an external dangerous weapon and not just his hands.\n2. Sentencing\u2014 discrepancy \u2014 resentencing for felonious breaking or entering instead of first-degree burglary\nThe Court of Appeals determined ex mero motu in a first-degree rape, first-degree kidnapping, felonious breaking or entering, first-degree sexual offense by digital penetration, first-degree sexual offense by cunnilingus, communicating threats, and assault on a female case that there was a discrepancy between the offenses the jury found defendant to be guilty of and the offenses the trial court listed in its judgment, and the case is remanded for the trial court to strike and correct the error upon resentencing, because: (1) the trial court\u2019s judgment stated defendant was found guilty of first-degree burglary under N.C.G.S. \u00a7 14-51 and sentenced defendant as a class D felon for that conviction; and (2) the record indicated the jury found defendant to be not guilty of first-degree burglary, but guilty of the lesser-included offense of felonious breaking or entering.\nAppeal by defendant from judgments entered 18 January 2007 by Judge James W. Morgan in Mecklenburg County Superior Court. Heard in the Court of Appeals 29 November 2007.\nAttorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State.\nCheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant-appellant." }, "file_name": "0676-01", "first_page_order": 706, "last_page_order": 714 }