{
  "id": 8551568,
  "name": "STATE OF NORTH CAROLINA v. GEORGE WILLIAM SPORTS",
  "name_abbreviation": "State v. Sports",
  "decision_date": "1979-06-19",
  "docket_number": "No. 7918SC221",
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    "judges": [
      "Judges Vaughn and Clark concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. GEORGE WILLIAM SPORTS"
    ],
    "opinions": [
      {
        "text": "CARLTON, Judge.\nDefendant first assigns as error the trial court\u2019s overruling of his objections and denial of his motion to strike certain testimony of Virginia Poot. On preliminary and direct examination of Ms. Poot by the assistant district attorney, evidence of Ms. Poot\u2019s orphan status, epileptic history, scholarship assistance and summer employment was admitted over defendant\u2019s objections. Defendant contends that the evidence presented was irrelevant and served only to excite prejudice and sympathy for the prosecuting witness. We disagree.\nIt is elementary that when a witness has been sworn and takes the stand, preliminary questions are properly put to him as to name, residence, knowledge of the case, etc. The purpose of such questions is generally to introduce the witness to the court and the jury and to show why he is there testifying. 1 Stansbury, N.C. Evidence, \u00a7 24, p. 56 (Brandis rev. ed. 1973); Pittman v. Camp, 94 N.C. 283 (1886). Evidence offered for this purpose is relevant at trial, if it does in fact establish an introduction for the witness. See McCormick, Evidence, Relevancy, \u00a7 185, p. 435.\nMoreover, relevant evidence should not be excluded \u201csimply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it.\u201d 1 Stansbury, N.C. Evidence, \u00a7 80, p. 242 (Brandis rev. ed. 1973); see State v. Branch, 288 N.C. 514, 220 S.E. 2d 495 (1975), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed. 2d 1091 (1977); State v. Williams, 17 N.C. App. 39, 193 S.E. 2d 452 (1972), cert. denied, 282 N.C. 675 (1973).\nIn the case sub judice, evidence of Ms. Poot\u2019s background and epilepsy was presented pursuant to preliminary questioning by the assistant district attorney. The evidence was relevant not only for introductory and general purposes, but also to serve as an explanation as to why the witness was working at McDonald\u2019s, living with her aunt in Greensboro, and walking home alone on the night in question. We do not believe the challenged testimony played upon the passions and prejudices of the jury to the extent that it must be considered prejudicial. This assignment of error is overruled.\nThe defendant next argues that the assistant district attorney\u2019s jury argument, which incorporated evidence from the testimony complained of above, was prejudicial and designed solely to arouse the sympathy and emotions of the jury. In his argument, the assistant district attorney referred to the prosecuting witness as \u201ca young twenty-one year old epileptic, half-blind college student,\u201d an \u201cepileptic, virgin orphan,\u201d and an \u201cinnocent young orphan and virgin.\u201d He also briefly recounted Ms. Poot\u2019s testimony concerning her prior summer employment and the fact that after tutoring two children she was never paid. That particular portion of Ms. Poot\u2019s testimony was not in the evidence, as the court had sustained defense counsel\u2019s objection and granted his motion to strike.\nThe argument of counsel is left largely to the control and discretion of the presiding judge and counsel must be allowed wide latitude in the argument of hotly contested cases. State v. Seipel, 252 N.C. 335, 113 S.E. 2d 432 (1960); State v. Barefoot, 241 N.C. 650, 86 S.E. 2d 424 (1955). \u201c[Counsel], may not, however, by argument, insinuating questions, or other means, place before the jury incompetent and prejudicial matters not legally admissible in evidence, and may not \u2018travel outside of the record\u2019 or inject into his argument facts of his own knowledge of other facts not included in the evidence.\u201d State v. Westbrook, 279 N.C. 18, 39, 181 S.E. 2d 572, 584 (1971). \u201cThe fact that the sympathy or prejudice of the jury may be aroused by the argument of counsel does not render the argument improper when it is legitimate and based on competent evidence.\u201d State v. Stegmann, 286 N.C. 638, 656, 213 S.E. 2d 262, 275 (1975).\nApplying these principles to the present case, we find that the State\u2019s argument was in substantial compliance with case authority. References to Ms. Poot\u2019s virginity, epileptic condition and visionary problems were all permissible, such references being consistent with the facts in evidence. Granted, the assistant district attorney at one point did travel outside the record by referring to Ms. Poot\u2019s noncompensated summer employment. However, we believe that this error was of relatively little importance, particularly in light of the facts that were in evidence. We do not believe it was prejudicial. Moreover, during the assistant district attorney\u2019s argument, defense counsel made no objections to the portions of the argument that he now complains of. An impropriety in the argument should be brought to the attention of the trial court in time for the impropriety to be corrected in the charge unless the impropriety is gross, in which case the error can be corrected ex mero mo tu. 4 Strong, N.C. Index 3d, Criminal Law, \u00a7 102.3, p. 520; State v. Miller, 271 N.C. 646, 157 S.E. 2d 335 (1967). This assignment of error is overruled.\nThe defendant next contends that the trial court erred in overruling his objection and denying his motion to strike the testimony of defendant\u2019s character witness, regarding a specific act of misconduct on the part of the defendant. We disagree.\nDuring cross-examination of defendant\u2019s character witness, the assistant district attorney asked the witness whether he knew the defendant had been convicted of armed robbery.\nThe defendant relies on the case of State v. Chapman, 294 N.C. 407, 241 S.E. 2d 667 (1978) in support of his argument. In Chapman, our Supreme Court stated the well established rule in our jurisdiction that it is error for the State to cross-examine the defendant\u2019s character witness as to particular acts of misconduct on the part of the defendant. A character witness may be cross-examined as to the general reputation of the defendant as to particular vices or virtues, but not as to specific acts of misconduct. See also State v. Green, 238 N.C. 257, 77 S.E. 2d 614 (1953).\nAny error here was harmless in that the defendant had previously testified himself that he had been convicted of armed robbery. In Chapman, the situation presented was strikingly similar to the case at bar in that the prosecutor asked the defendant\u2019s character witnesses whether they were aware that defendant \u201cgot his gun and went after some black people in Charlotte.\u201d The error was acknowledged, but declared to be harmless. The test for harmless error was stated in Chapman as being the absence of a \u201creasonable possibility that a different verdict would be reached at a new and error free trial.\u201d Chapman, supra, at 417, 241 S.E. 2d at 674. This assignment of error is overruled.\nDefendant next assigns as error the denial of his motion for mistrial and for a new trial on the ground that the State improperly and prejudicially argued the defendant\u2019s prior armed robbery conviction for purposes other than to attack defendant\u2019s credibility. He argues that these remarks by the assistant district attorney might have been considered by the jury as substantive evidence of defendant\u2019s guilt rather than mere impeachment evidence.\nDuring his argument, the assistant district attorney characterized the defendant as an \u201cadmitted armed robber.\u201d At another point in the argument, he juxtaposed the credibility of Ms. Poot against the defendant. He also referred to defendant as one who has \u201ccommitted armed robbery,\u201d and one who is a \u201cconfessed armed robber.\u201d\nWhen the assistant district attorney used the defendant\u2019s armed robbery conviction as part of his effort to undermine the defendant\u2019s credibility, he was acting within the bounds of proper jury arguments. See State v. Currie, 293 N.C. 523, 238 S.E. 2d 477 (1977); State v. Westbrook, supra. Furthermore, when the assistant district attorney used the defendant\u2019s conviction for the purpose of characterization of the defendant, his actions were not improper. In Westbrook, our Supreme Court held that as long as the prosecuting attorney does not go outside of the record and his characterizations of the defendant are supported by evidence, the defendant is not entitled to a new trial by reason of being characterized in noncomplimentary terms in the argument. By defendant\u2019s own testimony, he was convicted of armed robbery. Clearly, the assistant district attorney did not go outside the record in this case and his use of the description \u201carmed robber\u201d as part of the characterization of defendant was supported by the evidence.\nMoreover, a curative instruction was given to the jury on defendant\u2019s request before the conclusion of the assistant district attorney\u2019s argument. The jury was told to completely disregard any line of argument purporting to characterize the defendant as an armed robber. While we find that such an instruction was unnecessary here, correction by the court would have cured any impropriety had one existed. State v. Bryant, 236 N.C. 745, 73 S.E. 2d 791 (1953).\nDefendant finally contends that the trial court erred in failing to grant his motion to dismiss. Particularly with respect to the charge of assault with intent to commit rape, he argues that there was no evidence of penetration. The argument is meritless.\nChief Justice Sharp stated the North Carolina rule in State v. Hudson, 280 N.C. 74, 77, 185 S.E. 2d 189, 191 (1971), cert. denied, 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed. 2d 112 (1974):\nThe requisites of the crime with which defendant is charged have been stated many times: To convict a defendant on the charge of an assault with an intent to commit rape the State must prove not only an assault but that the defendant intended to gratify his passion on the person of the woman, at all events and notwithstanding any resistance on her part. It is not necessary that defendant retain that intent throughout the assault; if he, at any time during the assault, had an intent to gratify his passion upon the woman, notwithstand-\ning any resistance on her part, the defendant would be guilty of the offense. \u201cIntent is an attitude or emotion of the mind and is seldom, if ever, susceptible of proof by direct evidence, it must ordinarily be proven by circumstantial evidence, ie., by facts and circumstances from which it may be inferred.\u201d State v. Gammons, 260 N.C. 753, 756, 133 S.E. 2d 649, 651. To convict a defendant of an assault with intent to commit rape \u201can actual physical attempt forcibly to have carnal knowledge need not be shown.\u201d 75 C.J.S. Rape \u00a7 77, p. 557 (1952).\nClearly, in the case at bar, sufficient evidence of all elements of the offense were presented to withstand defendant\u2019s motion to dismiss. Ms. Poot\u2019s testimony tended to show that the defendant assaulted her and that the assault was sexually motivated. Moreover, she described circumstances from which the jury could reasonably infer that defendant intended to rape her notwithstanding any resistance on her part.\nWe have reviewed defendant\u2019s remaining assignments of error and find them to be without merit. In the trial below, we find\nNo error.\nJudges Vaughn and Clark concur.",
        "type": "majority",
        "author": "CARLTON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Associate Attorney Rebecca R. Bevacqua, for the State.",
      "Frederick G. Lind, Assistant Public Defender, for the defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. GEORGE WILLIAM SPORTS\nNo. 7918SC221\n(Filed 19 June 1979)\n1. Criminal Law \u00a7\u00a7 33, 87; Rape \u00a7 18.1\u2014 preliminary questions to witness \u2014 introduction of witness \u2014explanation of other evidence\nIn this prosecution for assault with intent to commit rape and crime against nature, the victim\u2019s testimony about her orphan status, epileptic history, scholarship assistance and summer employment was competent to establish an introduction for her as a witness and to explain why the witness was working at a fast-food restaurant and walking home alone on the night in question.\n2. Criminal Law \u00a7 102.7\u2014 district attorney\u2019s jury argument \u2014characterizations of prosecutrix \u2014 supporting evidence \u2014unsupported argument as harmless error\nIn a prosecution for assault with intent to commit rape and crime against nature, the district attorney\u2019s reference to the victim as \u201ca twenty-one year old epileptic, half-blind college student,\u201d and \u201cepileptic, virgin orphan,\u201d were consistent with facts in evidence and not improper. Furthermore, the district attorney\u2019s reference to the victim\u2019s noncompensated summer employment which was not supported by admitted evidence did not constitute prejudicial error.\n3. Criminal Law \u00a7 85.2\u2014 cross-examination of character witness \u2014 specific acts of misconduct by defendant \u2014 harmless error\nThe trial court erred in permitting the prosecutor to ask defendant\u2019s character witness whether he knew defendant had been convicted of armed robbery, but such error was harmless where defendant had previously testified about his conviction for armed robbery.\n4. Criminal Law \u00a7 102.10\u2014 jury argument \u2014 characterizations of defendant\nIn this prosecution for assault with intent to commit rape and crime against nature, the district attorney\u2019s characterization of defendant in his jury argument as an \u201cadmitted armed robber\u201d and a \u201cconfessed armed robber\u201d was supported by the record and was not improper.\n5. Rape \u00a7 18.2\u2014 assault with intent to rape \u2014evidence of attempted penetration not necessary\nThe State\u2019s evidence was sufficient for the jury in a prosecution for assault with intent to commit rape although there was no evidence of an attempted penetration.\nAPPEAL by defendant from Albright, Judge. Judgment entered 8 November 1978 in Superior Court, GUILFORD County. Heard in the Court of Appeals 29 May 1979.\nThe defendant was indicted for assault with intent to commit rape and crime against nature. Upon his plea of not guilty, the jury returned a verdict of guilty as charged. From judgment sentencing him to consecutive prison terms of 7 to 10 years and 8 to 10 years, the defendant appealed. The State\u2019s evidence tended to show that Ms. Virginia Poot, the prosecuting witness, worked at McDonald\u2019s restaurant in Greensboro on 30 October 1977. She was a senior at East Carolina University and was living with her aunt and working at McDonald\u2019s to help finance her education. Ms. Poot, an orphan, was the recipient of a scholarship grant under the Vocational Rehabilitation program. She qualified by reason of her epileptic condition. This scholarship helped to finance her education. To supplement the scholarship aid, she worked during the summer months. She had worked during the summer of 1977 and was working at the time of this incident because she could not afford to return to East Carolina in the fall of 1977.\nMs. Poot worked until about 1:00 a.m. on 30 October 1977. The person with whom she was to ride home failed to come to work due to sickness and the prosecutrix was unable to find another ride to her aunt\u2019s house. She began walking home and the defendant offered her a ride. She first declined but later accepted and, after a short drive, the defendant pulled into a service station lot. He told Ms. Poot to \u201ctake off them drawers or I will slit your throat.\u201d She refused and defendant proceeded to remove her clothes. He unzipped his pants and used words indicating he intended to have intercourse with her. Defendant put his mouth and hand on Ms. Poot\u2019s breast and then forced her to perform fellatio. The prosecutrix attempted to crush the defendant\u2019s testicles, but failed and received a slap across her face from the defendant. Defendant then put his tongue in Ms. Poot\u2019s mouth and she bit the tongue causing it to bleed. Defendant then told the prosecutrix to get out of the car.\nAn identification specialist for the county sheriff\u2019s office took photographs of blood and a dental plate at the service station where the assault occurred. He also took photographs of blood in the defendant\u2019s automobile.\nThe defendant\u2019s evidence tended to show that on 30 October 1977 after playing cards with friends from his job, the defendant picked up the prosecutrix on the highway. They pulled over at a service station. The defendant kissed the prosecutrix and she kissed him back. She apparently became scared when he touched her breast and she then bit his tongue, causing it to bleed and causing the defendant to spit out his partial dental plate. He told the prosecutrix to get out of the car and he drove to Wesley Long Hospital for treatment. Defendant testified that he never forced the prosecutrix to perform fellatio and never had any intentions of committing forcible rape on her.\nAttorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Associate Attorney Rebecca R. Bevacqua, for the State.\nFrederick G. Lind, Assistant Public Defender, for the defendant appellant."
  },
  "file_name": "0687-01",
  "first_page_order": 715,
  "last_page_order": 722
}
