{ "id": 8550881, "name": "STATE OF NORTH CAROLINA v. JESSIE VIRGIL PATTON", "name_abbreviation": "State v. Patton", "decision_date": "1980-03-18", "docket_number": "No. 7928SC913", "first_page": "676", "last_page": "681", "citations": [ { "type": "official", "cite": "45 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": "249 S.E. 2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568467 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0655-01" ] }, { "cite": "201 S.E. 2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "857" } ], "opinion_index": 0 }, { "cite": "284 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563323 ], "year": 1974, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0568-01" ] }, { "cite": "165 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557806 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0077-01" ] }, { "cite": "234 S.E. 2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571496 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0580-01" ] }, { "cite": "91 S.Ct. 2290", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "29 L.Ed. 2d 680", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "403 U.S. 948", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12043280, 12043226 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/403/0948-02", "/us/403/0948-01" ] }, { "cite": "174 S.E. 2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563091 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0598-01" ] }, { "cite": "179 S.E. 2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560097 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0259-01" ] }, { "cite": "88 S.Ct. 133", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1967, "opinion_index": 0 }, { "cite": "19 L.Ed. 2d 139", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "389 U.S. 866", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11375840, 11375520, 11375588, 11375461, 11375909, 11375796, 11375644, 11375966, 11375743 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/389/0866-07", "/us/389/0866-02", "/us/389/0866-03", "/us/389/0866-01", "/us/389/0866-08", "/us/389/0866-06", "/us/389/0866-04", "/us/389/0866-09", "/us/389/0866-05" ] }, { "cite": "153 S.E. 2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "270 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565805 ], "year": 1967, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0122-01" ] }, { "cite": "177 S.E. 2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565485 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0380-01" ] }, { "cite": "241 S.E. 2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549121 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0335-01" ] }, { "cite": "183 S.E. 2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569832 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0477-01" ] }, { "cite": "201 S.E. 2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562970 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0515-01" ] } ], "analysis": { "cardinality": 620, "char_count": 11322, "ocr_confidence": 0.816, "pagerank": { "raw": 1.2551519271218134e-07, "percentile": 0.6111323478704743 }, "sha256": "316a404de407f1e883a61622231d05894f569c42e63ccd9e93d1aaa4b28aa33d", "simhash": "1:93f1f621277bbcdf", "word_count": 1905 }, "last_updated": "2023-07-14T22:44:38.339487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN (Robert M.) and WELLS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JESSIE VIRGIL PATTON" ], "opinions": [ { "text": "ERWIN, Judge.\nOn appeal, defendant presents six assignments of error. We do not find error.\nDefendant contends: \u201cThe court committed error in allowing the in-court identification of the defendant by the State\u2019s witness Mabel Ramsey.\u201d\nBased upon competent evidence, the trial court found that the witness had ample opportunity to observe the person (defendant) at or about 4:00 a.m. on 19 December 1978 and that there was sufficient light to permit the witness to make an identification or the person (defendant) she observed. The trial court also found that there is nothing in the photographic identification procedures suggestive or conducive to mistaken identification and that the in-court identification is of independent origin based solely on what the witness saw at the time and does not result from any out-of-court confrontation. The evidence presented supports the findings of fact and conclusions drawn therefrom and are conclusive and binding upon appeal. State v. Tuggle, 284 N.C. 515, 201 S.E. 2d 884 (1974); State v. Morris, 279 N.C. 477, 183 S.E. 2d 634 (1971); State v. Stephens, 35 N.C. App. 335, 241 S.E. 2d 382 (1978). This assignment of error is without merit.\nDefendant next contends that the trial court erred by allowing the State to introduce photographs into evidence which had been altered since the voir dire hearing. The trial court found,\n\u201c1. That most of the photographs contain an identification number on the chest or lower portion of each subject\u2019s body.\n2. That the prosecuting witness did not use such identification numbers to identify either the Defendant or the Exhibit itself.\n3. That the Defendant does not contend that the photographs were not a true likeness of the Defendant.\u201d\nand concluded the following:\n\u201cBased Upon The Foregoing Findings Of Fact the Court concludes as a matter of law that the numbers on the photographs have been obliterated for the reason that they contain identification numbers, including a photograph of a change [sic] board or something of this nature around the persons depicted in the photographs body, and that the obliteration of these identification numbers could in no way prejudice the Defendant; and that the alteration of the photographs is not of sufficient character to justify their exclusion from this trial.\nBased Upon The foregoing findings Of fact And CONCLUSIONS the objection of the Defendant to the admissibility of the photographic albums is overruled.\u201d\nWe do not find a distinction in the case sub judice from State v. Hatcher, 277 N.C. 380, 177 S.E. 2d 892 (1970), wherein our Supreme Court, when faced with a similar situation, held that the photograph, with inscription and date deleted, was properly admitted for illustrative purposes on the question of identity. We find no error.\nNext, defendant contends that the court committed error in allowing into evidence a photographic reconstruction of the alleged crime. The record shows that State Exhibits Nos. 6, 7, and 8 were introduced into evidence without objection. Defendant did object to the introduction of State Exhibit No. 9. This picture shows a man standing in the door facing Mrs. Ramsey with a top of a chair showing in the lounge of the rest home. The picture was admitted into evidence followed by appropriate instructions from the court that the picture was not substantive evidence and that it was to be considered for the limited purpose of illustrating the testimony. Mrs. Ramsey testified that she was present when the picture was made by Mr. Smith of the Asheville Police Department and that she was standing where she was \u201cstanding at the time I have been testifying to.\u201d\n\u201cQ. Mr. Smith I believe you said was standing at the door, is that correct?\nA. In the \u2014 partly in the hallway. Just a little in the door, just like the Defendant was.\u201d\n\u201cA witness may use a photograph to illustrate his testimony and make it more intelligible to the court and jury.\u201d State v. Lentz, 270 N.C. 122, 125, 153 S.E. 2d 864, 867 (1967), cert. denied, 389 U.S. 866, 19 L.Ed. 2d 139, 88 S.Ct. 133 (1967). The record does not reveal whether or not State Exhibit No. 9 was shown to the jury after it was admitted into evidence during the course of the trial.\nTo warrant a new trial, defendant must show the ruling complained of was material and prejudicial to his rights, State v. Jones, 278 N.C. 259, 179 S.E. 2d 433 (1971), and that a different result would likely have ensued. State v. Sanders, 276 N.C. 598, 174 S.E. 2d 487 (1970), reversed on other grounds, 403 U.S. 948, 29 L.Ed. 2d 680, 91 S.Ct. 2290 (1971). Defendant has not shown prejudicial error.\nWe do not find any error in the charge of the court in failing to instruct the jury on the lesser included offense of assault with intent to commit rape. It is the duty of the trial court in instructing the jury to \u201cdeclare and explain the law arising on the evidence.\u201d G.S. 15A-1232; State v. Hopper, 292 N.C. 580, 234 S.E. 2d 580 (1977). It is also well settled in this State that the trial court is not required to submit lesser included offenses to the jury unless there is evidence before the jury to support them. State v. Williams, 275 N.C. 77, 165 S.E. 2d 481 (1969); 4 Strong\u2019s N.C. Index 3d, Criminal Law, \u00a7 115, pp. 610-11. The prosecutrix testified that defendant \u201cproceeded to rape me. His private parts entered my private parts.\u201d Defendant\u2019s evidence was that he was not present at the rest home. There was not any evidence to support an instruction on the lesser offense.\nA pretrial court order provided \u201cthat . . . defendant . . . subject his person to further identification procedures, namely submission of his head hair, pubic hair, blood, saliva, fingernail scrapings . . .\u201d Defendant contends that his attorney had a right to argue that had the results of the order been positive, then the results would have been presented to the jury. The order was a part of the record in the case, although it was not introduced into evidence. This argument was not allowed.\n\u201cThe general rule is that counsel may argue all the evidence to the jury, with such inferences as may be drawn therefrom; but he may not \u2018travel outside of the record\u2019 and inject into his argument facts of his own knowledge or other facts not inlcuded in the evidence.\u201d (Citations omitted.) Crutcher v. Noel, 284 N.C. 568, 572, 201 S.E. 2d 855, 857 (1974). In the instant case, neither the court order nor the results argued by counsel were introduced into evidence at trial and therefore, were not proper subjects of argument. Thus, this case is distinguishable from State v. Williams, 295 N.C. 655, 249 S.E. 2d 709 (1978), where the court order had been introduc\u00e9d into evidence. We find no error.\nDefendant has not shown prejudicial error in his trial, and we find\nNo error.\nJudges MARTIN (Robert M.) and WELLS concur.", "type": "majority", "author": "ERWIN, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney Thomas G. Meacham, Jr., for the State.", "Public Defender Peter L. Roda, Twenty-eighth Judicial District, by Assistant Public Defender Lawrence C. Stoker, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JESSIE VIRGIL PATTON\nNo. 7928SC913\n(Filed 18 March 1980)\n1. Criminal Law \u00a7 66.1\u2014 identification of defendant \u2014 opportunity for observation\nThe trial court did not err in allowing an in-court identification of defendant by a rape victim where the evidence tended to show that the witness had ample opportunity to observe her assailant at the time of the offense; there was sufficient light to permit the witness to make an identification of the person she observed; and there was nothing in a pretrial photographic identification suggestive or conducive to mistaken identification.\n2. Criminal Law \u00a7 43.1\u2014 photographs \u2014 deletion of identification numbers\nThe trial court did not err in allowing the State to introduce photographs into evidence which had been altered since the voir dire hearing to delete identification numbers which had appeared on them.\n3. Criminal Law \u00a7 43\u2014 photographs reconstructing crime \u2014 admissibility for illustration\nDefendant in a rape prosecution was not prejudiced where the trial court allowed into evidence a photographic reconstruction of the alleged crime, since the pictures were admitted for the limited purpose of illustrating a witness\u2019s testimony.\n4. Rape \u00a7 6.1\u2014 second degree rape \u2014 instruction on lesser offense not required\nWhere the prosecutrix testified that defendant raped her and that his private parts entered her private parts, the trial court properly submitted an issue of second degree rape to the jury and did not err in failing to instruct on the lesser included offense of assault with intent to commit rape.\n5. Criminal Law \u00a7 102.1\u2014 matters outside record \u2014 jury argument properly limited\nThere was no merit to defendant\u2019s contention that his attorney had a right to argue that results of tests on defendant\u2019s hair, blood and other body samples would have been presented to the jury if they had been positive, since neither the court order nor the results argued by counsel were introduced into evidence and they were therefore not proper subjects of argument.\nAPPEAL by defendant from Howell, Judge. Judgment entered 6 June 1979 in Superior Court, Buncombe County. Heard in the Court of Appeals 27 February 1980.\nDefendant was charged in a bill of indictment, proper in form, with the offense of first degree rape. The case was submitted to the jury on a charge of second degree rape, and defendant was found guilty of the charge submitted. From an active sentence of imprisonment of no less than 30 years and no more than 30 years, defendant appealed.\nPrior to trial, defendant moved to suppress any in-court identification of prosecutrix of the defendant as the perpetrator of the offense charged on the grounds of defendant\u2019s rights under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.\nThe State\u2019s evidence on voir dire tended to show that at 4:00 a.m., Mabel Ramsey was on duty at a rest home in Asheville making her rounds. She entered the lounge which was completely dark. There were no lights on overhead in the hallway. Two large fluorescent lights were in each nurse\u2019s station, and night lights were located in the baseboard in the hallways. As she started to sit in a recliner in the lounge, she looked up. Defendant was standing very close to her and was right in her face. He was \u201cstanding partly inside the lounge angle ways from the hall.\u201d She looked in his eyes and right in his face for five or ten seconds. Light was coming from the nurses\u2019 station which was three rooms away, and the walls were white. Light was shining on defendant\u2019s face. She testified that she was certain the man she saw was defendant, and she based her identification on what she saw that night. Defendant pointed something at her and told her to get on the couch, which she did. Defendant had intercourse with her.\nLater that morning and the next day, she viewed photographs of men other than defendant which looked like the man or which she thought might be the man who raped her. She picked out defendant\u2019s photograph and said he was the man who raped her. Two or three days later, without pictures or any statement from anyone, she identified defendant in a lineup at the courthouse. The trial court made findings of fact and denied defendant\u2019s motion to suppress.\nAttorney General Edmisten, by Associate Attorney Thomas G. Meacham, Jr., for the State.\nPublic Defender Peter L. Roda, Twenty-eighth Judicial District, by Assistant Public Defender Lawrence C. Stoker, for defendant appellant." }, "file_name": "0676-01", "first_page_order": 704, "last_page_order": 709 }