{ "id": 8555387, "name": "STATE OF NORTH CAROLINA v. CHARLES W. MARKHAM", "name_abbreviation": "State v. Markham", "decision_date": "1974-02-20", "docket_number": "No. 7414SC167", "first_page": "736", "last_page": "738", "citations": [ { "type": "official", "cite": "20 N.C. App. 736" } ], "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": "84 S.E. 2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604316 ], "opinion_index": 0, "case_paths": [ "/nc/241/0156-01" ] }, { "cite": "186 S.E. 2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "13 N.C. App. 619", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554920 ], "opinion_index": 0, "case_paths": [ "/nc-app/13/0619-01" ] }, { "cite": "197 S.E. 2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "18 N.C. App. 388", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550127 ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0388-01" ] }, { "cite": "158 S.E. 2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573490 ], "opinion_index": 0, "case_paths": [ "/nc/272/0481-01" ] }, { "cite": "179 S.E. 2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560186 ], "opinion_index": 0, "case_paths": [ "/nc/278/0288-01" ] } ], "analysis": { "cardinality": 297, "char_count": 4940, "ocr_confidence": 0.575, "pagerank": { "raw": 2.2269389344706595e-07, "percentile": 0.7785025304564088 }, "sha256": "1848052b8b64130ec3841aa9e5e1204188ba52fe9deeca6377d179b085806e31", "simhash": "1:025907683095d0d4", "word_count": 821 }, "last_updated": "2023-07-14T15:39:00.958655+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Vaughn concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLES W. MARKHAM" ], "opinions": [ { "text": "PARKER, Judge.\nThere was no error in the trial court\u2019s ruling finding the nine-year-old victim of the assault competent to testify. This was a matter resting within the sound discretion of the trial court, State v. Cooke, 278 N.C. 288, 179 S.E. 2d 365; State v. Bowden, 272 N.C. 481, 158 S.E. 2d 493; State v. Roberts, 18 N.C. App. 388, 197 S.E. 2d 54; State v. Williams, 13 N.C. App. 619, 186 S.E. 2d 628; and no abuse of discretion has been shown. Prior to making its ruling, the trial court dismissed the jury and the child was examined and cross-examined with reference to her schooling, general understanding, and her religious belief concerning the telling of a falsehood. Her responses support the court\u2019s finding that she was intelligent, had an understanding of the sanctity of an oath, and that she was competent to testify. The trial judge, through his personal observation of the child while she was being questioned, was in the best position to make an accurate determination of these matters, and his ruling thereon will not be disturbed on this appeal.\nWhile the child was testifying concerning defendant\u2019s conduct at the time of assault, the solicitor asked her, \u201cWhat was he trying to do?\u201d Defendant\u2019s objection to this question was overruled, which he now assigns as error. He contends that by answering the question the witness was permitted to invade the province of the jury and to express an opinion as to defendant\u2019s intent, an essential element of the offense charged. This contention is without merit. The witness answered the question in a straightforward factual manner by relating to the jury the physical events, which, according to her testimony, occurred. The jury was free to believe or to reject this testimony, as they might any other part of her testimony, and to make their own determination from such portions of the testimony as they found to be true as to what defendant\u2019s intent had been. This assignment of error is overruled.\nFinally, defendant contends that the court committed error in instructing the jury that they could return one of two verdicts, guilty as charged or not guilty, and in failing to submit issues as to defendant\u2019s guilt or innocence of lesser included offenses. \u201cThe necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.\u201d State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545. In the present case, the State\u2019s evidence, if believed, showed that defendant gave his nine-year-old stepdaughter wine to drink until she became dizzy, then took her into his bedroom, partially disrobed her, and attempted to have sexual intercourse with her. Defendant\u2019s evidence, if believed, showed that none of these events occurred. There being no evidence from which the jury could find that any lesser included offense might have been committed, the court\u2019s instruction to the jury was without error.\nNo error.\nJudges Britt and Vaughn concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Attorney General Robert Morgan by Associate Attorney Norman L. Sloan for the State.", "Loflin, Anderson & Loflin by Thomas B. Anderson, Jr. for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLES W. MARKHAM\nNo. 7414SC167\n(Filed 20 February 1974)\n1. Witnesses \u00a7 1; Rape \u00a7 18\u2014 assault with intent to commit rape \u2014 competency of nine-year-old to testify\nThe trial court in a prosecution for assault with intent to commit rape did not err in finding the nine-year-old victim of the assault competent to testify.\n2. Rape \u00a7 18\u2014 assault with intent to commit rape \u2014 examination of victim \u2014 testimony admissible\nThe solicitor\u2019s question, \u201cWhat was he trying to do?\u201d put to the victim while she was testifying concerning defendant\u2019s conduct at the time of the assault did not call for an answer which constituted an invasion of the province of the jury or require the witness to express an opinion as to defendant\u2019s intent, an essential element of the offense charged.\n3. Rape \u00a7 18\u2014 assault with intent to commit rape \u2014 failure to submit lesser included offenses\nIn a prosecution for assault with intent to commit rape where the State\u2019s evidence, if believed, showed that defendant gave his nirie-year-old stepdaughter wine to drink until she became dizzy, then took her into his bedroom, partially disrobed her, and attempted to have sexual intercourse with her, and where the defendant\u2019s evidence, if believed, showed that none of these events occurred, the trial court did not err in failing to submit any lesser included offense to the jury.\nAppeal by defendant from Clark, Judge, 1 October 1973 Session of Superior Court held in Durham County.\nDefendant, indicted for assault with intent to commit rape on a nine-year-old girl, pled not guilty, was found guilty by the jury, and from judgment imposing a prison sentence, appealed.\nAttorney General Robert Morgan by Associate Attorney Norman L. Sloan for the State.\nLoflin, Anderson & Loflin by Thomas B. Anderson, Jr. for defendant appellant." }, "file_name": "0736-01", "first_page_order": 764, "last_page_order": 766 }