{ "id": 8525928, "name": "STATE OF NORTH CAROLINA v. BENNIE CARSELL WILHITE; STATE OF NORTH CAROLINA v. JOHN EDGAR RANKIN; STATE OF NORTH CAROLINA v. RALPH WAYNE RANKIN", "name_abbreviation": "State v. Wilhite", "decision_date": "1982-09-07", "docket_number": "No. 8118SC1236", "first_page": "654", "last_page": "666", "citations": [ { "type": "official", "cite": "58 N.C. App. 654" } ], "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": "215 S.E. 2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562576 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0266-01" ] }, { "cite": "260 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "640" } ], "opinion_index": 0 }, { "cite": "298 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573777 ], "year": 1979, "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0573-01" ] }, { "cite": "24 S.E. 495", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1896, "pin_cites": [ { "page": "496" } ], "opinion_index": 0 }, { "cite": "118 N.C. 1162", "category": "reporters:state", "reporter": "N.C.", "year": 1896, "pin_cites": [ { "page": "1163" } ], "opinion_index": 0 }, { "cite": "99 S.Ct. 1797", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1979, "opinion_index": 0 }, { "cite": "60 L.Ed. 2d 249", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "440 U.S. 984", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6391168, 6390656, 6390370, 6391013, 6391685, 6390058, 6391562, 6389934, 6390513, 6390196, 6391383, 6390844 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/440/0984-09", "/us/440/0984-06", "/us/440/0984-04", "/us/440/0984-08", "/us/440/0984-12", "/us/440/0984-02", "/us/440/0984-11", "/us/440/0984-01", "/us/440/0984-05", "/us/440/0984-03", "/us/440/0984-10", "/us/440/0984-07" ] }, { "cite": "248 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566359 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0584-01" ] }, { "cite": "212 S.E. 2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "132" } ], "opinion_index": 0 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "year": 1975, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0509-01" ] }, { "cite": "269 S.E. 2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561058 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0031-01" ] }, { "cite": "242 S.E. 2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "820" } ], "opinion_index": 0 }, { "cite": "294 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574161 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0623-01" ] }, { "cite": "301 N.C. 104", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563936, 8563911, 8563818, 8563852, 8563889 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0104-05", "/nc/301/0104-04", "/nc/301/0104-01", "/nc/301/0104-02", "/nc/301/0104-03" ] }, { "cite": "263 S.E. 2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 501", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549594 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0501-01" ] }, { "cite": "269 S.E. 2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "48 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552008 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/48/0589-01" ] }, { "cite": "272 S.E. 2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "112" } ], "opinion_index": 0 }, { "cite": "301 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567885 ], "year": 1980, "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0437-01" ] } ], "analysis": { "cardinality": 896, "char_count": 27923, "ocr_confidence": 0.781, "pagerank": { "raw": 4.733464359899852e-07, "percentile": 0.9295578622537453 }, "sha256": "b45472d5fa5219c29e1326a80172c3251c3bfabaebc995044f4affe7b8c427dd", "simhash": "1:c63f1428760b96c1", "word_count": 4574 }, "last_updated": "2023-07-14T18:20:52.636886+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HILL concurs.", "Judge Hedrick concurs in part and dissents in part." ], "parties": [ "STATE OF NORTH CAROLINA v. BENNIE CARSELL WILHITE STATE OF NORTH CAROLINA v. JOHN EDGAR RANKIN STATE OF NORTH CAROLINA v. RALPH WAYNE RANKIN" ], "opinions": [ { "text": "BECTON, Judge.\nState\u2019s Evidence\nOn the evening of 30 November 1980, the prosecuting witness, age 16, was accompanied by Deborah Wilson, Kenny Birch and a man named Greg to the H & H Grill in Greensboro. The three defendants later entered the Grill. As the prosecuting witness was returning from the restroom, the defendant John Rankin touched her private parts. Defendant Ralph Rankin then grabbed her, kissed her, pulled a gun out, and asked if he could go home with her. The prosecuting witness said: \u201cI told him I didn\u2019t care.\u201d Ralph then pointed the gun at her and threatened to harm her and her friends if she told any of them about their conversation. Fearing for the safety of her friends, the prosecuting witness returned to the booth and told her friends to leave. She then left the Grill with Ralph because he had threatened her with the gun.\nThe three defendants placed the prosecuting witness in the back of a car and drove to an apartment. Ralph took her into the apartment and told John to return in thirty minutes. Ralph then had sexual intercourse with her. When John Rankin returned to the apartment, he had intercourse with the prosecuting witness. Later defendant Wilhite knocked on the door of the bedroom at the apartment. He ordered the prosecuting witness into the living room and had sexual intercourse with her. John, who was still in the bedroom, then called the prosecuting witness. He threatened to shoot her in the head if she did not stop crying. John then had intercourse with her a second time in the bedroom.\nAfterwards, the prosecuting witness either passed out or fell asleep. She was awakened when Gwendolyn Boswell entered the room and demanded to know what she was doing there. Ms. Boswell lunged toward the prosecuting witness with what appeared to be a razor. The prosecuting witness fled from the room to a nearby store where Ms. Boswell cut the prosecuting witness on her arm and legs. The prosecuting witness was taken to the hospital by the police, treated for her wounds, and released the same day. She testified that she did not consent to having sex with any of the defendants.\nDefendant\u2019s Evidence\nThe defendants John Rankin and Bennie Wilhite did not testify. Defendant Ralph Rankin testified that he saw the prosecuting witness at the H & H Grill during the early morning hours of 1 December 1980. He was acquainted with her prior to this date. Ralph further testified that he gave the prosecuting witness, his brother, John, and Bennie Wilhite a ride to the apartment on Asheboro Street. Ralph went home after dropping them off. He denied having sexual intercourse with the prosecuting witness or threatening her in any way.\nThe three defendants were represented by separate counsel, both at trial and on appeal. Their assignments of error are not the same in all respects, and each has filed a separate brief. We shall therefore discuss their appeals separately.\nDefendant Wilhite\u2019s Appeal\nI\nDuring the presentation of the State\u2019s evidence, the trial court allowed the jury to view three photographs of the prosecuting witness. Defendant Wilhite argues in Assignment of Error No. 2 that these photographs were prejudicial and irrelevant since the wounds depicted therein were not inflicted by the defendants, but were rather inflicted by Gwendolyn Boswell. Assuming for purposes of discussion that the photographs were irrelevant, we conclude that their admission was harmless error. Further, the Court has examined these photographs and disagrees with defendant\u2019s contentions that they are highly inflammatory and prejudicial. These photographs depict only minor cuts. Pursuant to G.S. 15A-1443(a), defendant is required to show prejudice by proving that there is a \u201creasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d Without the photographs, there was still sufficient evidence of each and every element of the crimes charged to support the jury\u2019s verdict. Defendant Wilhite\u2019s Assignment of Error No. 2 is without merit.\n(The two co-defendants have also assigned error to the admission of these photographs. Our rationale for rejecting defendant Wilhite\u2019s assignment of error applies equally to the two co-defendants.)\nII\nBy Assignment of Error No. 3, defendant Wilhite argues that the trial court erred in failing to admit evidence of the prosecuting witness\u2019 living conditions, past conduct, and general reputation and character. By this evidence, the defendant sought to attack the prosecuting witness\u2019 credibility and character. A close examination of the exceptions noted under this assignment of error reveals no error in the exclusion of such evidence.\nWe first examine the cross-examination of the prosecuting witness during which the trial court sustained objections to the following questions: \u201cDo you live with your mother, . . . ? When did you leave Deborah Wilson\u2019s house, . . . ? Did the State take you away from Miss Wilson\u2019s house, . . . ? Is your mother in court with you today?\u201d The trial court also sustained an objection to the question posed to Detective Powell concerning whether the prosecuting witness worked. After each of these questions, the defendant failed to request that the prosecuting witness be allowed to answer for the record in the absence of the jury. \u201cWhen an objection to a specific question asked on cross-examination is sustained, the answer the witness would have given must be made part of the record or the propriety of the objection will not be considered on appeal.\u201d State v. Price, 301 N.C. 437, 450, 272 S.E. 2d 103, 112 (1980). We do not speculate as to what the prosecuting witness\u2019 answers would have been. Nor do we perceive any error in the trial court\u2019s decision to sustain objections to the questions asked.\nThe remaining exceptions under Assignment of Error No. 3 relate to evidence of the prosecuting witness\u2019 sexual behavior. Pursuant to G.S. 8-58.6, North Carolina\u2019s rape victim shield statute, the sexual behavior of the victim of a rape or other sex offense is generally irrelevant and therefore inadmissible. The statute, however, lists four exceptions to this general rule. The third exception allows the admission of sexual behavior which\n[i]s evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant\u2019s version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented.\nG.S. 8-58.6(b)(3). Evidence of sexual behavior cannot be introduced at trial until the trial court determines its relevancy. G.S. 8-58.6(c).\nDefendant Wilhite sought to present evidence which he contends falls under this third exception to the rape victim shield statute. First, defendant sought to question the prosecuting witness about her alleged relationship with a Mr. Marshall as his prostitute. Second, Deborah Wilson was cross-examined and asked about a statement she had allegedly made that, at one time, 18 men were seen waiting on the stairwell to visit the prosecuting witness in her room. The trial court sustained the State\u2019s objections to both questions. The defense later sought to present the testimony of Thomas Braswell. His testimony would have allegedly shown that he met the prosecuting witness at a bar, and\n[t]hat on the occasion he met this young lady, she left with a perfect stranger at 2:00 or 3:00 a.m. and that at a later point he had sex with the lady, and she made statements to him that she had sex for hire.\nAccording to Braswell, the prosecuting witness also allegedly said \u201cthat she was put out of the house by her mother and had to live with Deborah Wilson for having sex with her stepfather.\u201d The trial court refused to allow Braswell to testify.\nWe find no error in the exclusion of this evidence of the prosecuting witness\u2019 sexual behavior, because such evidence does not satisfy the requirements of G.S. 8-58.6(b)(3). Further, Braswell\u2019s statement that he had seen the prosecuting witness at a bar around 2:00 a.m. and that she left the bar with a \u201cperfect stranger,\u201d is not evidence of behavior so distinctive and so closely resembling the defendants\u2019 version of the prosecuting witness\u2019 encounter with them as to prove consent. The defendants sought to persuade the jury that she met them at a bar early on the morning of 1 December 1980; and that she willingly left with them. However, there was uncontroverted evidence that the prosecuting witness was acquainted with at least two of the three defendants, and that at least one of them threatened her with a gun at the Grill. That the prosecuting witness may have been a prostitute or easy prey for Mr. Braswell does not prove she consented or that defendant Wilhite could have reasonably believed she consented to the encounter with him. In other cases this Court has upheld the trial court\u2019s exclusion of testimony showing a pattern of the prosecuting witness\u2019 sexual behavior which was merely similar to the defendant\u2019s alleged encounter with the prosecuting witness. See State v. White, 48 N.C. App. 589, 269 S.E. 2d 323 (1980), State v. Smith, 45 N.C. App. 501, 263 S.E. 2d 371, disc. rev. denied, 301 N.C. 104, --- S.E. 2d --- (1980). We find no error in the exclusion of the testimony assigned as error in Assignment of Error No. 3.\nIll\nDetective Powell testified from a statement taken during an interview of the prosecuting witness. The statement was initially taken in longhand by Detective Powell and was later typed. Detective Powell used the typed statement at trial. Defendant Wilhite requested to see the handwritten statement, and the trial court denied the request. He now assigns error to the trial court\u2019s action denying his request and cites State v. McLean, 294 N.C. 623, 242 S.E. 2d 814 (1978) as supporting authority. The McLean Court held that the trial court\u2019s refusal to allow the defendant to examine the rape victim\u2019s handwritten statement was harmless error. In the case sub judice we can only speculate whether the trial court\u2019s refusal to allow defendant to examine Detective Powell\u2019s handwritten statement was prejudicial error, since defendant failed to have this statement placed in the record for appellate review. Therefore, we shall not consider this assignment of error.\nIV\nDefendant Wilhite also assigns error to the failure of the court to grant his motion to dismiss the charge of first degree rape. This error is based upon the State\u2019s alleged failure to show two essential elements of first degree rape. Wilhite argues that there was no showing that the prosecuting witness was forced into the act of intercourse or that his display of a gun at the time of the alleged intercourse placed her in fear. The trial court properly denied the motion to dismiss since there was sufficient evidence of these essential elements. The prosecuting witness testified that after she was taken to the apartment and after she had sexual intercourse against her will with defendants Ralph and John Rankin, defendant Wilhite began kissing her. He took her into the living room of the apartment and placed his gun on the window ledge near the couch. Wilhite then pushed her back on the couch and had intercourse with her. The prosecuting witness stated: \u201cI didn\u2019t consent to have intercourse with him. I had intercourse with him at that time because he had a gun and I was scared.\u201d Her testimony compelled submission of the first degree rape charge to the jury.\nDefendant John Rankin\u2019S Appeal\nI\nThe defendant John Rankin also assigned error to the trial court\u2019s failure to admit testimony of alleged acts of misconduct by the prosecuting witness. During the trial the defendant requested the court\u2019s permission to cross-examine the prosecuting witness about alleged acts of prostitution. In response to the trial court\u2019s inquiry about the specific acts of misconduct alleged, defense counsel said \u201cshe used to live with Mr. Marshall and . . . worked for Mr. Marshall as a prostitute.\u201d Defense counsel also told the trial court that \u201cMr. Marshall is in the Department of Corrections and will come and testify that he pimped her.\u201d Defendant later sought, through witness Thomas Braswell, to present other evidence suggesting that the prosecuting witness was a prostitute.\nDefendant conceded that, pursuant to the rape victim shield statute, this evidence was inadmissible in the rape case. He argued, however, that evidence of acts of prostitution would be admissible for the purpose of impeaching the prosecuting witness\u2019 credibility in the kidnapping case. The State argued that this evidence was inadmissible under the rape victim shield statute. In denying the defendant\u2019s request, the trial court noted that the kidnapping was alleged to have been committed for the purpose of facilitating rape. We agree with defendant that he was prejudiced by the trial court\u2019s refusal to allow this cross-examination.\nNorth Carolina\u2019s rape victim shield statute does not exclude evidence that is otherwise admissible. The statute is merely a codification of this jurisdiction\u2019s rule of relevance as it applies to the sexual behavior of rape victims. State v. Fortney, 301 N.C. 31, 269 S.E. 2d 110 (1980). It declares that in a trial on charges of rape or other sex offenses the \u201csexual behavior\u201d of the complainant is irrelevant. A trial on the charge of kidnapping the prosecuting witness for the purpose of committing the felony of rape is not a trial regarding a sex offense and therefore is not subject to the rape victim shield statute.\nEvidence of acts of prostitution allegedly committed by the prosecuting witness was clearly relevant to impeach her credibility as to the kidnapping charge.\nThe law is that a witness, including the defendant, in a criminal case, may be cross-examined for purposes of impeachment with respect to prior convictions of crime. (Citations omitted.) Under the general principle the witness may also be cross-examined about specific acts of misconduct and may be asked disparaging questions concerning collateral matters relating to his criminal and degrading conduct. (Citations omitted.)\nState v. Monk, 286 N.C. 509, 517, 212 S.E. 2d 125, 132 (1975). The fact that the evidence of prostitution was inadmissible as to the rape charge would not prevent its admission for purposes of impeaching the prosecuting witness\u2019 credibility as to the kidnapping charge. The general rule is that \u201cthe incompetency for one purpose will not prevent its admission for other and proper purposes.\u201d Brandis On North Carolina Evidence, \u00a7 79 (Second Revised Edition 1982). We therefore hold that the defendant John Rankin was prejudiced when the trial court deprived him of his right to cross-examine the prosecuting witness about alleged acts of prostitution for Mr. Marshall.\nThe defendant further argues that he should have been allowed to place Thomas Braswell on the stand for purposes of impeaching the prosecuting witness\u2019 credibility. As previously noted, Braswell would have allegedly testified to the following:\nThat on the occasion he met this young lady (the prosecuting witness), she left (the bar) with a perfect stranger at 2:00 or 3:00 a.m. and that at a later point he had sex with the lady, and she made statements to him that she had sex for hire.\nFrom this testimony it is unclear whether Braswell himself paid the prosecuting witness for sex or whether he merely saw her leave the bar with a stranger and was later told that she had sex with this stranger. If the latter is the case, then Braswell\u2019s testimony was properly excluded because part of it is irrelevant and part calls for hearsay. If, however, Braswell\u2019s testimony would have been that he had sex with the prosecuting witness in exchange for money, then his testimony would have been admissible to impeach her credibility in the kidnapping case.\nWe take note of the rule which prohibits a party from contradicting a witness\u2019 prior denial of misconduct by introducing testimony of other witnesses. State v. Monk. The Monk Court, in explaining this rule, emphasized that the purpose of such cross-examination was to impeach the credibility of the witness and not to prove prior offenses.\nFinally the defendant argues that he was deprived of his right to impeach the prosecuting witness\u2019 credibility when he was not allowed to question the witness Deborah Wilson as to whether she had become concerned when the prosecuting witness \u201chad approximately 18 men waiting on the stairwell to visit her in her room.\u201d We hold that the court properly sustained the State\u2019s objection to this question since the question was not directed to, nor did it refer to an act of misconduct by, the prosecuting witness. See State v. Mason, 295 N.C. 584, 248 S.E. 2d 241 (1978), cert. denied 440 U.S. 984, 60 L.Ed. 2d 249, 99 S.Ct. 1797 (1979). The prosecuting witness had previously testified that some men had come to the house. She denied that she was \u201cselling sex\u201d to them.\nFor the failure of the trial court to allow the defendant John Rankin to impeach the prosecuting witness\u2019 credibility, by evidence of acts of prostitution allegedly committed by her, the defendant John Rankin is awarded a new trial on the kidnapping charge. We deem it unnecessary to discuss defendant\u2019s remaining assignments of error.\nDefendant Ralph Rankin\u2019s Appeal\nI\nPrior to trial the defendant Ralph Rankin objected to the joinder of the three defendants\u2019 cases for purposes of trial. He now argues that he was prejudiced by the joinder since his defense was antagonistic to, and different from, that of the other two defendants. At trial Ralph testified that he did not threaten the prosecuting witness nor have sexual intercourse with her on or about 1 December 1980. The other defendants chose not to testify. We disagree with defendant\u2019s contention that he was prejudiced by the other defendants\u2019 failure to take the stand. The defendants\u2019 cases were properly joined for trial in accordance with G.S. 15A-926(b)(2). Each defendant was charged with accountability for the offense of kidnapping, and the separate offenses of rape were part of a common scheme or plan. The fact that Ralph Rankin chose to testify and the other defendants did not, does not amount to antagonistic defenses. Assuming there were antagonistic defenses, severance still was not warranted.\nThe test is whether the conflict in defendants\u2019 respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial. G.S. 15A-927(c)(2). In a case where antagonistic defenses were urged as a ground for severance this Court said long ago, \u201cUnless the accused suffered some apparent and palpable injustice in the trial below, this court will not interfere with the decision of the court on the motion for a severance.\u201d State v. Finley, 118 N.C. 1162, 1163, 24 S.E. 495, 496 (1896).\nState v. Nelson, 298 N.C. 573, 587, 260 S.E. 2d 629, 640 (1979). The defendant has failed to show that he was denied a fair trial because of the consolidation. There was ample evidence offered by the State to support the convictions against all three defendants.\nII\nBy Assignment of Error No. 4 defendant Ralph Rankin argues that the trial court erred in allowing the State\u2019s witness Deborah Wilson to give testimony concerning statements the prosecuting witness allegedly made to her. This evidence was not inadmissible hearsay. It was admitted solely to prove that the statements were made and not to prove the truth of the matters asserted. Ms. Wilson\u2019s testimony was also admissible for the purpose of corroborating the prior testimony of the prosecuting witness. State v. Caddell, 287 N.C. 266, 215 S.E. 2d 348 (1975).\nIII\nDefendant Ralph Rankin next argues, as did defendant Wilhite, that the trial court erroneously excluded the testimony of Thomas Braswell which allegedly tended to show a pattern of sexual behavior so distinctive and so closely resembling the defendants\u2019 version of the alleged encounter with the prosecuting witness as to prove that she consented to intercourse. This testimony was inadmissible for the reasons given in our discussion of defendant Wilhite\u2019s appeal. Furthermore, even had this testimony fallen under an exception to the rape victim shield statute, it would not have been admissible to bolster defendant Ralph Rankin\u2019s case. This defendant specifically denied that any act of intercourse took place. \u201cWhether [the victim] lived in an \u2018environment of sexual immorality\u2019 or in a cloistered convent has no relevance to the issues in a case . . . where defendant denies that any act of intercourse or other assault took place. (Citations omitted.)\u201d State v. McLean, 294 N.C. 623, 632, 242 S.E. 2d 814, 820 (1978).\nIV\nRalph Rankin\u2019s final assignment of error goes to the trial court\u2019s instructions on the elements of first degree rape. We have carefully examined this portion of the charge and find no error.\nDefendant Ralph Rankin does not argue on appeal, as did defendant John Rankin, that the trial court erred in excluding evidence of prior acts of misconduct \u2014 prostitution\u2014as they relate specifically to the kidnapping charge. \u201cTo prevent manifest injustice\u201d to defendant Ralph Rankin, we, pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, suspend Rules 10 and 28 and, for the reasons set forth in our discussion of John Rankin\u2019s pertinent assignment of error, award Ralph Rankin a new trial on the kidnapping charge.\nThe defendant Bennie Carsell Wilhite had a trial free of prejudicial error. The defendants John Rankin and Ralph Rankin are awarded new trials based on the trial court\u2019s failure to allow them to impeach the prosecuting witness\u2019 credibility in the kidnapping case.\nAs to defendant Bennie Carsell Wilhite\nNo error.\nAs to defendants John Rankin and Ralph Rankin\nNew trial on the kidnapping charges.\nNo error on the rape charges.\nJudge HILL concurs.\nJudge Hedrick concurs in part and dissents in part.\n. \u201cAs used in this section, the term \u2018sexual behavior\u2019 means sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.\u201d G.S. 8-58.6(a).\n. The statute, itself, is captioned: \u201cRestrictions on evidence in rape or sex offenses cases.\u201d\n. McLean was decided prior to the effective date of North Carolina\u2019s rape victim shield statute (G.S. 8-58.6), but has been cited with approval in the North Carolina Supreme Court\u2019s decision interpreting the statute. See State v. Fortney, 301 N.C. 31, 269 S.E. 2d 110 (1980).", "type": "majority", "author": "BECTON, Judge." }, { "text": "Judge HEDRICK,\nconcurring in part and dissenting in part.\nAs to the defendant Wilhite, I concur; as to the defendants-John Rankin and Ralph Rankin, with respect to the charge of first degree rape, I concur; however, as to defendants John Rankin and Ralph Rankin, with respect to the charge of kidnapping, I dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge HEDRICK," } ], "attorneys": [ "Attorney General Edmisten, by Michael Rivers Morgan, Associate Attorney; Thomas B. Wood, Assistant Attorney General; John R. B. Matthis, Special Deputy Attorney General; and John F. Maddrey, Associate Attorney, for the State.", "Alexander, Moore, Nicholson & Baynes, by E. Raymond Alexander, Jr., for defendant appellant Wilhite.", "Moses & Murphy, by Pinkney J. Moses, for defendant appellant John Rankin.", "Bowden & Bowden, by Joel G. Bowden, for defendant appellant Ralph Rankin." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BENNIE CARSELL WILHITE STATE OF NORTH CAROLINA v. JOHN EDGAR RANKIN STATE OF NORTH CAROLINA v. RALPH WAYNE RANKIN\nNo. 8118SC1236\n(Filed 7 September 1982)\n1. Criminal Law \u00a7 43.4\u2014 photographs \u2014wounds inflicted by third party \u2014 absence of prejudice\nIn a prosecution for rape and kidnapping, defendants were not prejudiced by the admission of three irrelevant photographs depicting minor cuts inflicted on the prosecutrix by a third party. G.S. 15A-1443(a).\n2. Criminal Law \u00a7 169.6\u2014 failure of record to show excluded testimony\nWhen an objection to a specific question asked on cross-examination is sustained, the answer the witness would have given must be made part of the record or the propriety of the objection will not be considered on appeal.\n3. Rape and Allied Offenses \u00a7 4.3\u2014 rape victim shield statute \u2014 prostitution and other acts by prosecutrix\nEvidence tending to show that the prosecutrix in a rape case had worked as a prostitute and that a witness had made the statement that eighteen men were seen waiting on a stairwell to visit the prosecutrix in her room was inadmissible under the rape victim shield statute, G.S. 8-58.6. Furthermore, testimony by a witness that he had seen the prosecutrix at a bar around 2:00 a.m. and that she left the bar with a \u201cperfect stranger\u201d was not evidence of behavior so distinctive and closely resembling defendants\u2019 version of their encounter with the prosecutrix so as to be admissible under G.S. 8-58.6(3) to prove consent.\n4. Criminal Law \u00a7 158\u2014 omission of matter from record \u2014 assignment of error not considered on appeal\nAn assignment of error to the trial court\u2019s refusal to allow defendant to examine a detective\u2019s handwritten statement taken during an interview of a rape victim will not be considered on appeal where defendant failed to have this statement placed in the record on appeal.\n5. Rape and Allied Offenses \u00a7 5\u2014 first degree rape \u2014 sufficiency of evidence\nThe evidence was sufficient to support defendant\u2019s conviction of first degree rape where the prosecutrix testified that she was taken to an apartment and had sexual intercourse against her will with two codefendants; defendant then took her into the living room of the apartment and placed his gun on the window ledge near the couch; defendant then pushed her back on the couch and had intercourse with her; and she did not consent to have intercourse with defendant but did so because he had a gun and she was scared.\n6. Kidnapping \u00a7 1.1; Rape and Allied Offenses \u00a7 4.3\u2014 rape victim shield statute \u2014 inapplicability in kidnapping case\nA trial on a charge of kidnapping the prosecutrix for the purpose of committing the felony of rape is not a trial regarding a sex offense and therefore is not subject to the rape victim shield statute.\n7. Criminal Law \u00a7 86.8; Kidnapping \u00a7 1.1\u2014 kidnapping case \u2014impeachment of victim \u2014acts of prostitution\nThe defendant in a prosecution for kidnapping for the purpose of committing the felony of rape was prejudiced when the trial court refused to permit defendant to impeach the credibility of the prosecutrix by cross-examining her about alleged acts of prostitution.\n8. Criminal Law \u00a7 92.1\u2014 defenses not antagonistic \u2014 consolidation of charges against multiple defendants\nThe defenses of defendant and his two codefendants were not antagonistic because defendant testified at the trial and the two codefendants did not testify, and charges against the three defendants for kidnapping and rape were properly consolidated for trial in accordance with G.S. 15A-926(b)(2).\n9. Criminal Law \u00a7 73.2\u2014 testimony not hearsay\nA witness\u2019s testimony concerning statements allegedly made to her by the prosecuting witness was not inadmissible hearsay where the testimony was admitted solely to prove that the statements were made and not to prove the truth of the matters asserted.\nJudge Hedrick concurring in part and dissenting in part.\nAPPEAL by defendants from Rousseau, Judge. Judgments entered 2 April 1981 in Superior Court, GUILFORD County. Heard in the Court of Appeals 5 May 1982.\nThe defendants Bennie Carsell Wilhite, John Edgar Rankin and Ralph Wayne Rankin were indicted on charges of first degree rape and kidnapping. From verdicts of guilty of first degree rape and kidnapping, and judgments imposing sixty to seventy year prison sentences, the defendants John and Ralph Rankin appeal. From a verdict of guilty of first degree rape and a judgment of imprisonment, defendant Bennie Wilhite appeals.\nAttorney General Edmisten, by Michael Rivers Morgan, Associate Attorney; Thomas B. Wood, Assistant Attorney General; John R. B. Matthis, Special Deputy Attorney General; and John F. Maddrey, Associate Attorney, for the State.\nAlexander, Moore, Nicholson & Baynes, by E. Raymond Alexander, Jr., for defendant appellant Wilhite.\nMoses & Murphy, by Pinkney J. Moses, for defendant appellant John Rankin.\nBowden & Bowden, by Joel G. Bowden, for defendant appellant Ralph Rankin." }, "file_name": "0654-01", "first_page_order": 686, "last_page_order": 698 }