{ "id": 4160121, "name": "STATE OF NORTH CAROLINA v. HERBERT EARL LAWRENCE", "name_abbreviation": "State v. Lawrence", "decision_date": "2008-08-05", "docket_number": "No. COA07-1574", "first_page": "422", "last_page": "438", "citations": [ { "type": "official", "cite": "191 N.C. App. 422" } ], "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": "618 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633849 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0257-01" ] }, { "cite": "656 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640370 ], "year": 2008, "pin_cites": [ { "page": "700", "parenthetical": "quoting State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995)" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0697-01" ] }, { "cite": "347 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1986, "pin_cites": [ { "page": "405" }, { "page": "405-06" }, { "page": "405" } ], "opinion_index": 0 }, { "cite": "318 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731888 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0114-01" ] }, { "cite": "333 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "251" }, { "page": "252" }, { "page": "252" } ], "opinion_index": 0 }, { "cite": "314 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696763 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0232-01" ] }, { "cite": "380 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "386" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 261", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526999 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/94/0261-01" ] }, { "cite": "295 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "416" }, { "page": "416" } ], "opinion_index": 0 }, { "cite": "306 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573622 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0718-01" ] }, { "cite": "283 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1981, "pin_cites": [ { "page": "725" }, { "page": "726" } ], "opinion_index": 0 }, { "cite": "304 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567490 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0293-01" ] }, { "cite": "354 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "525-26", "parenthetical": "citations omitted" }, { "page": "525" } ], "opinion_index": 0 }, { "cite": "319 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739806 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0340-01" ] }, { "cite": "389 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "586" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 559", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522211 ], "year": 1990, "pin_cites": [ { "page": "562-63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0559-01" ] }, { "cite": "443 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "70" } ], "opinion_index": 0 }, { "cite": "336 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535615 ], "year": 1994, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0268-01" ] }, { "cite": "173 N.C. App. 112", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352985 ], "year": 2005, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0112-01" ] }, { "cite": "570 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2002, "pin_cites": [ { "page": "761" }, { "page": "761" }, { "page": "761" }, { "page": "761" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 546", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250832 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/153/0546-01" ] }, { "cite": "213 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "273" } ], "opinion_index": 0 }, { "cite": "286 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570035 ], "year": 1975, "pin_cites": [ { "page": "652-53" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0638-01" ] }, { "cite": "123 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "256 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572114 ], "year": 1962, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0236-01" ] }, { "cite": "342 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "572" }, { "page": "573" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525099 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0549-01" ] }, { "cite": "357 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "320 N.C. 104", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727319 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0104-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 2007, "pin_cites": [ { "page": "(a)(2)" }, { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "410 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "228" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522544 ], "year": 1991, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0498-01" ] }, { "cite": "463 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "342 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796093 ], "year": 1995, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0123-01" ] }, { "cite": "188 N.C. App. 832", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155039 ], "year": 2008, "pin_cites": [ { "page": "836-37", "parenthetical": "quoting State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0832-01" ] }, { "cite": "312 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "481", "parenthetical": "affirming the denial of a motion to dismiss because the evidence showed that the defendant employed or displayed a dangerous weapon \"during the course of the rape\"" } ], "opinion_index": 1 }, { "cite": "310 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400710 ], "year": 1984, "pin_cites": [ { "page": "434-35", "parenthetical": "affirming the denial of a motion to dismiss because the evidence showed that the defendant employed or displayed a dangerous weapon \"during the course of the rape\"" } ], "opinion_index": 1, "case_paths": [ "/nc/310/0428-01" ] }, { "cite": "354 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "525-26", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "319 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739806 ], "year": 1987, "pin_cites": [ { "page": "344", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/319/0340-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1281, "char_count": 36130, "ocr_confidence": 0.725, "pagerank": { "raw": 4.4916476050659184e-08, "percentile": 0.28152548662103466 }, "sha256": "011d812cd4f570c16b68171915bf20804f773e8531ec7480ab317ed82c360031", "simhash": "1:c703f20114fe0958", "word_count": 6065 }, "last_updated": "2023-07-14T16:44:10.260573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge ELMORE dissents by separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. HERBERT EARL LAWRENCE" ], "opinions": [ { "text": "ARROWOOD, Judge.\nDefendant appeals from judgment entered 13 July 2007 convicting him of first-degree rape and felonious larceny. We find no error.\nThe State\u2019s evidence tends to show the following: Jacqueline Brown (Brown) and Herbert Lawrence (Defendant) were neighbors in Durham, North Carolina, having first met in July 2005. Defendant and Brown began dating in August 2005 and continued dating for six weeks. Defendant, however, began to harass Brown with repeated phone calls to Brown at work and home, which concerned her. Defendant and Brown intended to remain friends after Brown ended their relationship, and they communicated with each other frequently until January 2006. At one point, however, Defendant\u2019s harassing calls made Brown so uncomfortable that she and her daughter left home to stay with a friend for three or four days.\nAt approximately 6:10 A.M. on Saturday, 28 January 2006, Brown stepped outside of her house to start her car to travel to a prayer meeting at her church. Unbeknownst to Brown, Defendant was hiding beside her car. Defendant revealed himself as Brown approached, and Defendant said, \u201cJackie, Jackie.\u201d Brown, startled by Defendant, screamed for help and ran back toward the house, tripping on a step in her haste. Defendant then threatened, \u201cYou better get up, or if you don\u2019t I\u2019m going to kill you.\u201d Brown saw that Defendant carried an object in his hand, which she described as \u201csilver... [and i]t reflected because I had my porch light on[.]\u201d Brown \u201cthought it was a knife.\u201d Defendant then dragged Brown into the house.\nOnce inside the house, Defendant began ranting about the termination of their relationship. Defendant lay Brown on her back in the living room, and Brown began pretending to have seizures. Defendant then moved Brown to. the couch; Brown continued pretending to be unconscious and to have seizures, falling off of the couch and urinating on herself. Defendant undressed Brown, washed her and moved her to another place in the house.\nLater that day, Defendant got on top of Brown and penetrated her vagina three times with his penis. Brown heard Defendant tell Brown\u2019s three-year-old daughter to go to her room. Brown remained in the living room Saturday, pretending to be unconscious and to have seizures. Late Saturday night or early Sunday morning, Defendant moved Brown to the bedroom, tied Brown\u2019s hands and feet to the bedposts, and left the room. Defendant said he did not trust her and believed she could be faking.\nEarly Sunday morning, Brown overheard Defendant tell her daughter to get dressed, after which Defendant entered the bedroom and penetrated Brown\u2019s vagina again with his penis while she lay on the bed. Afterwards, Defendant told Brown\u2019s daughter that \u201cmommy [is] sick\u201d and they \u201cmay have to take her to the doctor.\u201d\nDefendant then dressed Brown and moved her first to the living room couch and finally to the. passenger seat in his car. Brown continued pretending to be unconscious and to have seizures. Defendant then drove the car, with Brown and Brown\u2019s daughter as passengers, away from the house. Defendant began driving recklessly, and Brown overheard Defendant making phone calls. In the first call, Defendant said, \u201c[m]an, if anybody come [sic] looking for me, tell them you ain\u2019t [sic] seen me, you don\u2019t know where I\u2019m at.\u201d In the second call, Brown overheard Defendant telling a coworker that his sister was in a coma and he was going to Rocky Mount. In the third call, Brown heard Defendant say, \u201cVicki, Vicki, answer the phone. ... I need to talk to you.\u201d Brown knew that Vicki was Defendant\u2019s ex-wife who lived in Rocky Mount.\nAfter Defendant made the phone calls, Defendant took Brown to a hospital in Rocky Mount. Brown heard Defendant tell the nurse that Brown was his sister and that she may be in a coma. The nurse said, \u201cJackie, open your eyes,\u201d but Brown did not open her eyes; Brown also did not respond to ammonia. When the nursing staff moved Brown inside the hospital, and away from Defendant, Brown opened her eyes and said that her child was in the car with Defendant, who was not her brother, and that Defendant had kidnapped and raped her. Nurses called the police, found numerous bruises on Brown\u2019s arms and thighs, and also bruising, swelling and tearing on and around Brown\u2019s vagina. Nurses also indicated the presence of semen with a Woods lamp.\nLaw enforcement responded to the call at the hospital and took Brown\u2019s statement. Police also found a damp washcloth in the bathroom sink at Brown\u2019s house and nylon stockings on the bed. Brown and her daughter stayed at a women\u2019s shelter in Rocky Mount for three months and did not return to Durham until April.\nOn Monday, January 30, Defendant did not come to work. Defendant\u2019s employer talked to Defendant and told him that the police were looking for him and that he needed to come to work. Defendant replied that he was in Rocky Mount. Defendant did not contact his employer again after that day. Investigator Charles Britt (Officer Britt) called Defendant and left messages on his cell phone, and Defendant returned his calls in tears and said, \u201cI\u2019m sorry for what I did.\u201d Defendant grew frightened that \u201cI would go to jail for doing something like this\u201d and fled in Brown\u2019s vehicle to Daytona Beach, Florida.\nOn 17 March 2006, Defendant was arrested in New Smyrna Beach, Florida. Defendant was cooperative and spoke freely to the police, giving a statement of the events of 28 and 29 January. When asked if Brown consented to sex, Defendant replied, \u201cNo. She was semi-conscious or almost unconscious.... No, she neither consented or opposed to [sic] having sex with me.\u201d\nIn April 2006, Brown received a letter from Defendant, which had a return address of a county jail in Daytona Beach, Florida; the letter stated: \u201cI\u2019m sorry that I hurt you and Cherish (Brown\u2019s daughter) in any kind of way. I didn\u2019t mean to. I can\u2019t change what has happened, but I definitely regret it. I\u2019m paying for it now[.] ... I do love you and Cherish, and I am indeed sorry for the wrong that I\u2019ve done.\u201d Defendant then asked Brown to sign an affidavit enclosed with the letter, which stated that if called to testify, Brown would invoke her Fifth Amendment right to remain silent, and if given immunity, her testimony would vindicate Defendant. Brown gave the letter to an investigator with the Durham Police Department.\nOn 1 May 2006, Defendant was indicted on counts of first-degree rape, second-degree rape, first-degree kidnapping, second-degree kidnapping and felonious larceny of a motor vehicle. Defendant\u2019s trial began on 10 July 2007, and on 13 July 2007, a jury found Defendant guilty of first-degree rape, first-degree kidnapping, second-degree kidnapping and felonious larceny. Following the verdicts, the trihl court entered judgment, sentencing Defendant consecutively to 288 to 355 months imprisonment on the first-degree rape conviction and 8 to 10 months imprisonment on the larceny conviction. The court continued judgment on the remaining counts. From these judgments, Defendant appeals.\nAdmissibility of Evidence\nIn Defendant\u2019s first argument, Defendant contends that the trial court erred by overruling his objection to Brown\u2019s testimony regarding the shiny object in Defendant\u2019s hand. We conclude the trial court did not err.\n\u201c \u2018Relevant evidence\u2019 means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (2007). \u201cAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2007). \u201c \u2018Whether or not to exclude evidence under Rule 403 of the Rules of Evidence is a matter within the sound discretion of the trial court and its decision will not be disturbed on appeal absent a showing of an abuse of discretion.\u2019 \u201d State v. Cunningham, 188 N.C. App. 832, 836-37, 656 S.E.2d 697, 700 (2008) (quoting State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995)). \u201c[A] trial court\u2019s rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403 [; however] such rulings are given great deference on appeal.\u201d State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991).\nAt trial, Brown gave the following testimony, to which Defendant assigns error on appeal:\nWhen I saw him come from behind my car, my first reaction was, \u201cOh, my God. Oh, my God.\u201d I turned, and I tried to get back to my house. I have one step that I have to step up to get right on my porch. I tried to get there. ... He came around . . . from around the side and jumped right onto the porch. I fell right there at the step in the porch. ... I grabbed the railing, and I kept screaming.\nAnd he grabbed me, and he said, \u201cGet up.\u201d . . . And he said, \u201cI\u2019ll kill you. I\u2019ll kill you.\u201d He reached into his pocket to get something. I didn\u2019t see if it was a knife. I didn\u2019t see if it was a gun. I just saw something shiny. That was all I saw. I had my head down, and I was holding the railing like this. I was holding the railing, and I was still screaming. And he said, \u201cShut up. Shut up. I\u2019m going to kill you.\u201d\nAnd so he grabbed the screen door, and he pulled my body in the door, and then he thought he had me in the door, but my foot got caught between the screen door. . . . And then when he realized that my foot was in the screen door, that\u2019s when he pushed back and then he finished pulling me in the house.\nQ: Okay. Now, when you said he reached in his pocket, which pocket do you remember?\nA: It was his left pocket, because he was turned \u2014 he reached in his left pocket.\nQ: Was it a shirt pocket, a coat pocket?\nA: No, he had on a jacket because it was cold that morning. It was a short jacket.\nQ: Now, you said you saw something shiny. Do you remember what color shiny?\nA: It was just like \u2014 it was silver. It was just something silver. It reflected because I had my porch light on, because I flipped the porch light. It was dark.\nQ:' Could you tell what the size was of the object?\nA: Honestly, no.\nQ: What did you think it was?\nA: I thought it was a knife.\n[Defense Attorney]: Objection.\nThe Court: Overruled.\nDefendant specifically contends that the foregoing portion of Brown\u2019s testimony was incorrectly admitted because her testimony was contradictory and speculative. Defendant argues that because Brown first testified that she \u201cdidn\u2019t see what [Defendant] had in his hand[,]\u201d the trial court should not have admitted Brown\u2019s testimony that she \u201cthought it was a knife.\u201d We disagree.\nN.C. Gen. Stat. \u00a7 14-27.2(a)(2) (2007) states:\n(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:\n(2) With another person by force and against the will of the other person, and:\na. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon[.]\nThe pertinent question on appeal is (1) whether the trial court abused its discretion by overruling Defendant\u2019s objection to the foregoing testimony under Rule 403 and (2) whether the trial court erred in its determination that the foregoing evidence was relevant pursuant to Rule 401. Defendant relies on State v. Baker, 320 N.C. 104, 357 S.E.2d 340 (1987), and State v. Allen, 80 N.C. App. 549, 342 S.E.2d 571 (1986), for the proposition that Brown\u2019s testimony was inadmissible due to its contradictory and speculative nature. In Baker, the Court stated that a grandmother\u2019s statements that the grandfather \u201cstayed in \u2018the bathroom a long time[,]\u2019 \u201d and that \u201cthe grandfather did not come immediately to let her in when she was locked out of the house[,]\u201d were not relevant to the question of whether the grandfather was guilty of sexual assault. Baker, 320 N.C. at 108, 357 S.E.2d at 342. The Court further stated, \u201c [i]f the grandmother had testified to these facts her conclusion that the grandfather had engaged in sexual relations with the granddaughter would have been too speculative to be admissible.\u201d Id.\nIn Allen, the Court concluded that the Defendant\u2019s proffered evidence that \u201canother [unrelated] robbery [was] perpetrated by a man resembling defendant [who] utiliz[ed] an almost identical modus operandi [as Defendant,]\u201d was irrelevant and inadmissible. Allen, 80 N.C. App. at 550, 342 S.E.2d at 572. The Court explained that \u201c[e]vidence is relevant if it has any logical tendency, however slight, to prove the fact in issue[,]\u201d and that the Defendant\u2019s proffered evidence was \u201cso weak, so speculative and uncertain, that it did not possess sufficient probative value to justify receiving it in evidence.\u201d Id. at 551, 342 S.E.2d at 573.\nThe instant case is\u2019readily distinguished from Allen and Baker. Here, the trial court did not err by concluding that Brown\u2019s testimony that she thought Defendant held a knife, a dangerous weapon, had a logical tendency to prove the fact in issue \u2014 that Defendant \u201cdisplayed] ... an article which [Brown] reasonably believe[d] to be a dangerous or deadly weapon[.]\u201d N.C. Gen. Stat. \u00a7 14-27.2. Unlike the Defendant\u2019s proffered irrelevant evidence in Allen and Baker, Brown\u2019s statement, \u201cI thought it was a knife[,]\u201d is probative to the question of whether Brown reasonably believed that Defendant \u201cdisplay[ed] a dangerous or deadly weapon[.]\u201d The trial court did not err. by admitting this evidence.\nWe believe the facts of this case are more closely analogous to State v. King, 256 N.C. 236, 239, 123 S.E.2d 486, 488 (1962), in which our Supreme Court reasoned that the \u201cvague\u201d testimony of the victim regarding \u201cthe time the alleged crime was committed by the defendant ... goes to [the] weight [of the evidence] rather than to its admissibility.\u201d Id. As in King, we conclude that even though Brown\u2019s statement, \u201cI thought it was a knife[,]\u201d may have been speculative, this goes to the weight of the evidence, rather than its admissibility. The trial court did not err by concluding that the statement was relevant to the question of whether Defendant \u201cdisplay[ed] a dangerous or deadly weapon or an article which [Brown] reasonably believe[d] to be a dangerous or deadly weapon[.]\u201d N.C. Gen. Stat. \u00a7 14-27.2. Furthermore, the trial court did not abuse its discretion in determining under Rule 403 that the \u201cprobative value [of the evidence was not] substantially outweighed by the danger of unfair prejudice^]\u201d Rule 403. This assignment of error is overruled.\nIn Defendant\u2019s second argument, he contends that the trial court erred by overruling his objection to the testimony of various witnesses regarding the prosecutor\u2019s question: \u201c[was] there ever any question as to who committed this incident?\u201d\nSpecifically, Defendant challenges the testimony of Officer Britt and Investigator Donna Jackson of the Durham Police Department (Officer Jackson) who were questioned about why certain procedures were not completed in their investigation. Specifically, when asked about SBI requirements, Officer Jackson stated:\nA: The SBI has certain criteria that must be met before they will examine ... a victim\u2019s sexual assault kit. . . .\n[Defense Counsel]: Well, Your Honor, this item was never sent for testing, so I\u2019d object to relevance to that. ...\nQ: Okay. And with regard to this particular crime, was there, to your knowledge and based on what the criteria that were given to you in terms of collecting evidence \u2014 was the identity of this suspect in question?\nA: No.\n[Defense Counsel]: Well, objection, Your Honor. . . .\nThe Court: Sustained. Motion to strike allowed.\nDefense counsel requested a curative jury instruction, but the court did not give this instruction to the jury.\nDuring the examination of Officer Britt, the State asked whether there was \u201cever any question as to who committed this incident,\u201d to which defense counsel objected. The court sustained defense counsel\u2019s objection, and the State then rephrased the question, asking whether \u201c[i]n the course of your investigation, . . . the identity of the perpetrator [was] ever in question?\u201d Defense counsel again objected, and the court overruled the objection, allowing Officer Britt to answer, \u201cno[.]\u201d\nDefendant argues that because the State used the word \u201cperpetrator\u201d instead of \u201csuspect\u201d that Defendant was \u201cdeprived ... of the full effect of his not guilty plea[.]\u201d Defendant cites State v. Stegmann, 286 N.C. 638, 652-53, 213 S.E.2d 262, 273 (1975), for the proposition that a plea of not guilty puts at issue not only whether the crimes charged were committed, but also whether the Defendant committed the crimes. We believe that Defendant\u2019s argument is misplaced, and conclude that State v. O\u2019Hanlan, 153 N.C. App. 546, 570 S.E.2d 751 (2002), is controlling here. In O\u2019Hanlan, a Deputy offered the following testimony:\nQ. Did you find any [evidence]?\nA. Any evidence of\u2014\nQ. Or were you looking for any?\nA. I didn\u2019t need much evidence, sir, because I have a victim that had told me who her attacker was and from the look that her physical person was and the way she described the attack and her bruising and her scars, she told me who the attacker was and she gave me a name and a description. That\u2019s what I needed because I was fortunate I had an eye witness [sic] victim that survived.\nId. at 561-62, 570 S.E.2d at 761. On redirect, the State revisited the earlier testimony:\nQ. There was a lot of questions here from counsel for the defendant about the fact that you didn\u2019t send [evidence] off [for scientific tests], you didn\u2019t send that off, you didn\u2019t do this or that check. What can you tell this jury about why you didn\u2019t have these things checked?\nA. I had a victim that survived her attack. She could positively identify her assailant, the person that kidnapped, raped, and brutally beat her. If she had died\u2014\n[Defense Counsel]: Objection, Your Honor, speculative.\nThe Court: Overruled.\nQ. Go ahead?\nA. ... I would have done more fingerprinting, more checking under fingernails, more fiber transfer, because I wouldn\u2019t have known who done it. But she positively told me who done it and I arrested him.\nId. at 562, 570 S.E.2d at 761. In upholding the trial court\u2019s admission of the foregoing testimony, the Court in O\u2019Hanlan explained:\nThe context in which this testimony was given makes it clear [the Investigator] was not offering his opinion that the victim had been assaulted, kidnapped, and raped by defendant, but was explaining why he did not pursue as much scientific testing of physical evidence in this case as he would a murder case because the victim in this case survived and was able to identify her assailant.\nId. at 562, 570 S.E.2d at 761. Further, this Court explained, \u201c[h]is testimony was helpful to the fact-finder in presenting a clear understanding of his investigative process.\u201d Id. at 562-63, 570 S.E.2d at 761.\nAs in O\u2019Hanlan, Officer Britt and Officer Jackson\u2019s testimony was not offered as an opinion that Defendant raped and kidnapped Brown; rather, Officer Britt and Officer Jackson explained why the SBI protocol with regard to examining the victim\u2019s sexual assault kit was not followed in this case. Here, Brown provided eyewitness testimony identifying Defendant. Moreover, Defendant freely made statements to the police that \u201c[Brown] was semi-conscious or almost unconscious... . [and] she neither consented or opposed to [sic] having sex with me[.]\u201d\nEven assuming arguendo that the foregoing testimony was inadmissible, defendant has failed to demonstrate prejudice. To establish prejudicial error, a defendant must show there was a reasonable possibility that a different result would have been reached had the evidence been excluded. N.C. Gen. Stat. \u00a7 15A-1443(a) (2007). This assignment of error is overruled.\nMotion to Dismiss\nIn Defendant\u2019s third argument, Defendant contends that the trial court erred by denying Defendant\u2019s motion to dismiss the charge of first degree rape for insufficient evidence. We disagree.\n\u201cThe standard of review on a motion to dismiss for insufficient evidence is whether the State has offered substantial evidence of each required element of the offense charged.\u201d State v. Goblet, 173 N.C. App. 112, 118, 618 S.E.2d 257, 262 (2005). \u201cEvidence is substantial if it is relevant and is sufficient to persuade a rational juror to accept a particular conclusion.\u201d Id. \u201cIn ruling on a motion to dismiss for insufficient evidence, the court must view the evidence in the light most favorable to the State and every reasonable inference drawn from the evidence must be afforded to the State.\u201d Id.\nThe statute governing first-degree rape, N.C. Gen. Stat. \u00a7 14-27.2(a)(2) provides:\n(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:\n(2) With another person by force and against the will of the other, person, and:\na. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon[.]\nSee also State v. Worsley, 336 N.C. 268, 275, 443 S.E.2d 68, 70 (1994).\nSpecifically, Defendant argues that \u201cproof was lacking with respect to the use or employment of an object that Ms. Brown reasonably believed was a dangerous or deadly weapon.\u201d Therefore, the pertinent question is whether the State offered substantial evidence that Defendant displayed an article which Brown reasonably believed to be a dangerous or deadly weapon. N.C. Gen. Stat. \u00a7 14-27.2; see also State v. Mayse, 97 N.C. App. 559, 562-63, 389 S.E.2d 585, 586 (1990). Here, Brown testified that Defendant repeatedly stated that he would kill Brown:\nAnd he grabbed me, and he said, \u201cGet up.\u201d . . . And he said, \u201cI\u2019ll kill you. I\u2019ll kill you.\u201d He reached into his pocket to get something. I didn\u2019t see if it was a knife. I didn\u2019t see if it was a gun. I just saw something shiny. . . .\nI was holding the railing, and I was still screaming. And he said, \u201cShut up. Shut up. I\u2019m going to kill you.\u201d\nWhen specifically asked about the \u201cshiny\u201d object, Brown stated:\nA: It was just like \u2014 it was silver. It was just something silver. It reflected because I had my porch light on, because I flipped the porch light. It was dark.\nQ: Could you tell what the size was of the object?\nA: Honestly, no.\nQ: What did you think it was?\nA: I thought it was a knife.\nBrown\u2019s testimony tends to show that she was afraid of Defendant and believed her life was in danger; to protect herself, Brown feigned having seizures and unconsciousness for almost two days. In fact, Brown even urinated on herself to make her unconscious state more believable. We conclude that Brown\u2019s testimony as to Defendant\u2019s possession of a shiny, silver object, which she thought was a knife, together with the circumstances of Defendant\u2019s threatening behavior and statements such as \u201cI\u2019ll kill you[,]\u201d is sufficient evidence that Defendant displayed an article which Brown reasonably believed to be a dangerous or deadly weapon.\nFinally, we examine whether there was sufficient evidence that Defendant \u201cemployed\u201d the dangerous weapon as required by State v. Langford, 319 N.C. 340, 354 S.E.2d 523 (1987):\nThe statute, N.C.G.S. \u00a7 14-27.2, does not require a showing that a dangerous or deadly weapon was used in a particular manner in order to sustain a conviction for first degree rape. Instead it requires a showing only that such a weapon was \u201cemployed or displayed.\u201d Further, such a weapon has been \u201cemployed\u201d within the meaning of N.C.G.S. \u00a7 14-27.2 when the defendant has it in his possession at the time of the rape.\nId. at 344-45, 354 S.E.2d at 525-26 (citations omitted) (emphasis added).\nPrior to the Court\u2019s opinion in Langford, the Court stated in State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719 (1981), that \u201cthe Legislature intended to make implicit in G.S. 14-27.2 a matter of ordinary common sense: that the use of a deadly weapon, in any manner, in the course of a rape offense, always has some tendency to assist, if not entirely enable, the perpetrator to accomplish his evil design upon the victim, who is usually unarmed.\u201d Id. at 299 n.1, 283 S.E.2d at 725 n.1. The statute \u201csimply necessitates a showing that a dangerous or deadly weapon was employed or displayed in the course of a rape period.\u201d Id. at 300, 283 S.E.2d at 725. \u201cThe plain meaning.of the word \u2018employ\u2019 is \u2018to use in some process or effort\u2019 or \u2018to make use of.\u2019 \u201d Id. (citing The American Heritage Dictionary of the English Language 428 (1969); Webster\u2019s Third New International Dictionary 743 (1964)).\nIn State v. Powell, 306 N.C. 718, 295 S.E.2d 413 (1982), the Court interpreted Sturdivant in the context of the following scenario: In Powell, the defendant argued that there was no testimony at trial that defendant \u201cemployed\u201d or \u201cdisplayed\u201d a deadly or dangerous weapon in order to effectuate the rape. In fact, the victim testified on cross-examination that after leaving her kitchen, she did not see the knife and did not know what had happened to it. However, the Court reasoned:\nDefendant. . . [b]randish[ed] a five to six inch knife blade [and] held [the knife] to [the victim\u2019s] throat[.] . . . [Defendant warned [the victim] not to resist. Shortly thereafter, in an upstairs bedroom and without her consent, [the victim] was forced to submit to the sexual act. Under these circumstances, we hold that the State presented sufficient evidence that a dangerous or deadly weapon was employed in a manner consistent with that contemplated by G.S. \u00a7 14-27.2 to accomplish the offense.\nId. at 723, 295 S.E.2d at 416.\nIn State v. Pruitt, 94 N.C. App. 261, 380 S.E.2d 383 (1989), the deadly weapon employed by the defendant lay on a table eight feet away from the place where the sexual act occurred. In Pruit, the Court quoted Langford, stating:\nThe North Carolina Supreme Court has held that the State is not required to prove \u201cthat a dangerous or deadly weapon was used in a particular manner in order to sustain a conviction for first degree rape.\u201d State v. Langford, 319 N.C. 340, 344, 354 S.E.2d 523, 525 (1987). The State is only required to show that defendant possessed a deadly or dangerous weapon at the time of the rape and that the victim was aware of the presence of the weapon, because it had been displayed or employed. See id. Although the trial court\u2019s instruction did not emphasize the victim\u2019s awareness of the weapon, the instruction made clear that the State was required to prove that the weapon was displayed in some fashion. The victim\u2019s testimony indicates that not only did defendant have a knife in his possession during his sexual assault on her, defendant threatened her with this knife, and the knife remained on the bedside table, within eight feet of defendant, throughout the attack.\nId. at 268, 380 S.E.2d at 386.\nThe Court again interpreted Sturdivant in State v. Blackstock, 314 N.C. 232, 333 S.E.2d 245 (1985), stating that Sturdivant \u201cstands for the proposition that if a weapon is employed or displayed in the course of the rape period it is sufficient to support the verdict of guilty upon a charge of first[-]degree rape.\u201d Id. at 241, 333 S.E.2d at 251. The Court defined the time frame encompassing the \u201crape period\u201d with regard to the infliction of serious personal injury under N.C.G.S. \u00a7 14-27.2(a)(2)(b), an element which elevates rape and sexual offense from second to first degree offenses, by saying that \u201cthe element of infliction of serious personal injury upon the victim or another person in the crimes of first[-] degree sexual offense and first[-] degree rape is sufficiently connected in time to the sexual acts when there is a series of incidents forming one continuous transaction between the rape or sexual offense and the infliction of the serious personal injury.\u201d Id. at 242, 333 S.E.2d at 252.\nThe Court in State v. Whittington, 318 N.C. 114, 347 S.E.2d 403 (1986), applied Blackstock to the defendant\u2019s alleged employment of a deadly weapon during the course of a sexual assault, in which the victim wrestled the deadly weapon from the defendant\u2019s hands. The defendant contended that he \u201cdid not employ or display a dangerous or deadly weapon during the commission of the sexual assault since prior to the act the victim managed to take the knife away from him and throw it out of his grasp.\u201d Id. at 118, 347 S.E.2d at 405. In Whittington, the following transpired:\n[T]he victim testified that after engaging in a brief conversation with defendant at the front of the car wash, \u201c[defendant] had a knife pulled on me and he said if I didn\u2019t do what he said \u2014 that I had better do what he said because he had a gun in his back pocket.\u201d Defendant grabbed the victim and began dragging her to the rear of the car wash. During this time, the victim placed both hands on the blade of the knife to keep it from getting close to her. After defendant had dragged the victim about eighty feet, both fell to the ground and the victim \u201ctwisted the knife out of his hand and got it away from him.\u201d During the struggle, the victim lost consciousness. When the victim awakened, she felt defendant penetrate her vagina with his finger.\nId. at 119-20, 347 S.E.2d at 405-06. The Court reasoned that the foregoing testimony revealed \u201ca series of incidents forming a continuous transaction between defendant\u2019s wielding the knife and the sexual assault.\u201d Id. \u201cThe knife was employed during this period of time in an effort to force the victim to give in to defendant\u2019s demands.\u201d Id. Therefore, the Court concluded that \u201c[u]nder the holdings in Sturdivant and Powell, it is of no consequence that defendant was not in possession of the deadly weapon at the precise moment that penetration occurred,\u201d because \u201c[t]he knife had been used during the course of the assault to assist the perpetrator in accomplishing his evil design upon the victim who was unarmed.\u201d Id.\nIn the instant case, viewing the foregoing statements of the victim in the light most favorable to the State, with the benefit of every reasonable inference arising therefrom, we hold that there was an adequate evidentiary basis for the jury to conclude that the victim reasonably believed that Defendant employed a deadly weapon to threaten the victim with death, whereby he effectively discouraged any further resistance. Defendant\u2019s threats were \u201csufficiently connected in time to the sexual acts\u201d such that there was \u201ca series of incidents forming one continuous transaction between the rape\u201d and the employment of what Brown reasonably believed to be a dangerous weapon. Blackstock, 314 N.C. at 242, 333 S.E.2d at 252. Such evidence satisfied the requirements of N.C. Gen. Stat. \u00a7 14-27.2. See Sturdivant, 304 N.C. at 300, 283 S.E.2d at 726; Powell, 306 N.C. at 722, 295 S.E.2d at 416; Whittington, 318 N.C. at 118, 347 S.E.2d at 405.\nThe trial court did not err in denying Defendant\u2019s motion to dismiss the charge of first-degree rape. This assignment of error is overruled.\nNo Error.\nJudge WYNN concurs.\nJudge ELMORE dissents by separate opinion.", "type": "majority", "author": "ARROWOOD, Judge." }, { "text": "ELMORE, Judge,\ndissenting in part.\nI respectfully dissent from that part of the majority opinion holding that the trial court did not err by denying defendant\u2019s motion to dismiss because I would vacate defendant\u2019s first-degree rape conviction and remand for entry of judgment on second-degree rape and resentencing.\nAs explained in the majority opinion, defendant was indicted and convicted under the theory that he \u201c[e]mploy[ed] or displayed] a dangerous or deadly weapon or an article which the other person reasonably believe[d] to be a dangerous or deadly weapon . . . .\u201d N.C. Gen. Stat. \u00a7 14-27.2(a)(2)a (2007). However, the record only shows that when defendant forced Ms. Brown into his house, he displayed a shiny, silver object that Ms. Brown thought was a knife. Even if her testimony were sufficient to show that Ms. Brown reasonably believed that defendant displayed a dangerous weapon at this time, which I do not believe is the case, there was no evidence that defendant displayed the alleged weapon during the rapes.\nOur Supreme Court has explained that although \u00a7 14-27.2 \u201cdoes not require a showing that a dangerous or deadly weapon was used in a particular manner in order to sustain a conviction for first-degree rape,\u201d the defendant must have the weapon \u201cin his possession at the time of the rape.\u201d State v. Langford, 319 N.C. 340, 344, 354 S.E.2d 523, 525-26 (1987) (citations omitted) (emphasis added); see also State v. Roberts, 310 N.C. 428, 434-35, 312 S.E.2d 477, 481 (1984) (affirming the denial of a motion to dismiss because the evidence showed that the defendant employed or displayed a dangerous weapon \u201cduring the course of the rape\u201d).\nHere, there was no evidence that defendant had the alleged knife in his possession at the time of the rapes. Ms. Brown testified that she had her eyes closed and was feigning a seizure at the time of the rapes. She testified that she closed her eyes on Saturday morning after defendant dragged her into her house and did not open them again until Sunday afternoon when she arrived at the hospital and could no longer hear defendant. During her cross-examination, she confirmed that she \u201cnever saw that silver object again\u201d after defendant initially displayed it. Her testimony strongly suggests that a significant period of time passed between when defendant forced her into the house and when he raped her. She testified that she started seizing on the floor, and \u201ceventually\u201d defendant moved her from the floor to her couch, where she continued seizing. She said, \u201cAnd I stayed there, and I did that for I don\u2019t know how long. I did it until the point, because it was so long in the day that I had to go to the bathroom.\u201d\nAccordingly, I would hold that the trial court erred by denying defendant\u2019s motion to dismiss because the State did not present sufficient evidence to support a finding that defendant employed or displayed a dangerous weapon during the rape. In all other respects, I concur with the majority opinion.", "type": "dissent", "author": "ELMORE, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General, Philip A. Lehman, for the State.", "Cheshire, Parker, Schneider, Bryan and Vitale, by John Keating Wiles for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HERBERT EARL LAWRENCE\nNo. COA07-1574\n(Filed 5 August 2008)\n1. Evidence\u2014 shiny object \u2014 rape victim\u2019s impression of weapon\nThe trial court did not err in a prosecution for first-degree rape and other offenses by admitting the victim\u2019s testimony that she saw a shiny object in defendant\u2019s hand and that she thought it was a knife. The testimony is probative of whether the victim reasonably believed that defendant displayed a dangerous or deadly weapon, one of the statutory elements of the crime.\n2. Evidence\u2014 rape \u2014 opinions of perpetrator\u2019s identity \u2014 not prejudicial\nThere was no prejudice in a prosecution for first-degree rape and other offenses in the admission of testimony from various witnesses about whether there was ever any question as to who committed the crime. The testimony was offered as an explanation of why the SBI protocol for the victim\u2019s sexual assault kit was not followed rather than for the truth of the matter. Moreover, defendant did not show a reasonable possibility of a different result without this evidence.\n3. Rape\u2014 first-degree \u2014 evidence of weapon \u2014 sufficiency\nThe trial court did not err by denying defendant\u2019s motion to dismiss a charge of first-degree rape where there was an adequate evidentiary basis for the jury to conclude that the victim reasonably believed that defendant employed a deadly weapon to threaten the victim with death, whereby he effectively discouraged any further resistance. Defendant\u2019s threats were sufficiently connected in time to the acts for there to be a continuous transaction.\nJudge ELMORE dissenting.\nAppeal by Defendant from judgment entered 13 July 2007 by Judge J.B. Allen in Durham County Superior Court. Heard in the Court of Appeals 10 June 2008.\nAttorney General Roy Cooper, by Assistant Attorney General, Philip A. Lehman, for the State.\nCheshire, Parker, Schneider, Bryan and Vitale, by John Keating Wiles for Defendant." }, "file_name": "0422-01", "first_page_order": 454, "last_page_order": 470 }