{ "id": 12170092, "name": "STATE OF NORTH CAROLINA v. KENNETH MORRISON", "name_abbreviation": "State v. Morrison", "decision_date": "1987-05-05", "docket_number": "No. 8614SC1067", "first_page": "511", "last_page": "516", "citations": [ { "type": "official", "cite": "85 N.C. App. 511" } ], "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": "312 S.E. 2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403286 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0399-01" ] }, { "cite": "284 S.E. 2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569083 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0447-01" ] }, { "cite": "279 S.E. 2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "583" } ], "opinion_index": 0 }, { "cite": "303 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574166 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0533-01" ] }, { "cite": "340 S.E. 2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720164 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0724-01" ] }, { "cite": "309 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "207" } ], "opinion_index": 0 }, { "cite": "309 N.C. 742", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760895 ], "year": 1983, "pin_cites": [ { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0742-01" ] }, { "cite": "342 S.E. 2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "513" } ], "opinion_index": 0 }, { "cite": "316 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4702203 ], "year": 1986, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0497-01" ] }, { "cite": "340 S.E. 2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "315 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714140 ], "year": 1986, "pin_cites": [ { "page": "770" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0762-01" ] } ], "analysis": { "cardinality": 578, "char_count": 11824, "ocr_confidence": 0.882, "pagerank": { "raw": 2.850687709173409e-07, "percentile": 0.8406279671131406 }, "sha256": "790b82a518a951f5e6d8d084cc1ca28e2b4d30eb8eda127624bf9462771da0d8", "simhash": "1:c7b3150adc7367fd", "word_count": 2024 }, "last_updated": "2023-07-14T23:00:25.781259+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Phillips and Greene concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH MORRISON" ], "opinions": [ { "text": "ARNOLD, Judge.\nDefendant first contends that the trial court erred in allowing a witness (whose name need not be mentioned) to testify that defendant had attempted to rape her.\nThe witness testified that she met defendant through a mutual friend when she agreed to let defendant borrow her typewriter. Defendant took the witness for \u201cfast-food\u201d to repay her for the use of her typewriter. At that time, defendant tried to get the witness to go home with him but she declined and exited the car abruptly. Defendant called her ten minutes later to apologize for his behavior.\nDefendant called the witness repeatedly to ask her to dinner. On 28 April 1985, she finally agreed. When defendant arrived to take the witness to dinner, he was dressed in sweat clothes. He told her that he had helped a friend fix a car and needed to stop by his apartment to change clothes. The witness went into defendant\u2019s apartment with him and as she was looking for a light switch, defendant locked the door. Just as the witness found a light, defendant pushed her into the bedroom and blocked the entrance so she couldn\u2019t get out. Defendant pushed her back onto the bed and \u201cstarted getting rough.\u201d He rubbed his body against her, and she resisted. In the ensuing struggle, defendant attempted to take her clothes off and choked her to stop her from screaming. Defendant attempted to have intercourse with the witness but she continued to resist and hit him with a hammer. She then escaped and fled his apartment partially disrobed.\nDefendant argues that the witness\u2019s testimony was not properly admissible. We do not agree.\nG.S. 8C-1, Rule 404(b) permits evidence that a defendant committed similar offenses \u201cwhen it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission.\u201d State v. DeLeonardo, 315 N.C. 762, 770, 340 S.E. 2d 350, 356 (1986). In State v. Gordon, 316 N.C. 497, 504, 342 S.E. 2d 509, 513 (1986), our Supreme Court stated:\nThis Court has been quite \u201cliberal in admitting evidence of similar sex crimes\u201d under the common plan or scheme exception. State v. Effler, 309 N.C. 742, 748, 309 S.E. 2d 203, 207 (1983). This position has included allowing the admission of evidence showing sexual assaults by the defendant against people other than the victim in the crime for which he is on trial.\nThe witness\u2019s testimony was properly admissible to show that the prior crime involved a common plan or scheme to the present offense charged. In both the present case and the case involving the witness, defendant lured the women into his apartment on the pretext that he needed to change clothes before their dates. Once inside, defendant\u2019s pattern of behavior was nearly identical. His demeanor changed and he became threatening. The witness testified, \u201c[h]e was looking different. He had a very wild and very hateful look in his eye that frightened me.\u201d The victim testified that defendant was \u201closing it\u201d and that she thought he would hurt her because of \u201cthe way he looked and the tone of his voice.\u201d Defendant then pushed the women toward the bed, disrobed them and attempted intercourse. Therefore, the testimony was properly admitted under Rule 404(b).\nDefendant also argues that the admission of the testimony was unfairly prejudicial and violated Rule 403 of the Rules of Evidence. We disagree.\nWhether to exclude evidence under Rule 403 is a matter within the sound discretion of the trial judge. State v. Mason, 315 N.C. 724, 340 S.E. 2d 430 (1986). Defendant has failed to show that the trial judge abused his discretion. Thus, we hold that the testimony was properly admitted.\nDefendant next contends that \u201cthe trial court erred in admitting into evidence a stipulation signed by the defense attorney and the prosecutor establishing an essential element of second degree rape \u2014that is, the act of sexual intercourse or penetration \u2014 without any showing on the record that the defendant himself had personally stipulated to this essential element of the charged crime, and without anything in the record showing that defendant knowingly, voluntarily, and understandingly consented to such a stipulation being entered and read to the jury.\u201d We do not agree.\nIn State v. Watson, 303 N.C. 533, 279 S.E. 2d 580 (1981), defense counsel entered a stipulation regarding an element of the offense with which his client was charged. On appeal, defendant alleged error by its admission since he had not signed it and there was nothing in the record to indicate that he knowingly and intelligently consented to it. The Court found his contention mer-itless and stated:\nIt is well-established that stipulations are acceptable and desirable substitutes for proving a particular act. Statements of an attorney are admissible against his client provided that they have been within the scope of his authority and that the relationship of attorney and client existed at the time. In conducting an individual\u2019s defense an attorney is presumed to have the authority to act on behalf of his client. The burden is upon the client to prove lack of authority to the satisfaction of the court. (Citations omitted.)\nId. at 538, 279 S.E. 2d at 583.\nIn Watson, the record was free of any indication that defense counsel was acting contrary to the wishes of his client. The same is true of the present case. Therefore, we hold that the trial court properly admitted the stipulation.\nDefendant also contends that there was insufficient evidence of the element of force to convict him of second degree rape. We do not agree.\nSecond degree rape is vaginal intercourse by force and against the will of the victim. G.S. 14-27.3(a)(1). State v. Barnette, 304 N.C. 447, 284 S.E. 2d 298 (1981). In the present case, the victim testified that defendant locked the bedroom door and pushed her towards the bed. She stated that defendant was \u201closing it\u201d and yelled at her to sit down. She also stated that she was afraid defendant would hurt her and that she began to cry. When she tried to stop defendant from undressing her, he pushed her hands aside and told her that her crying \u201cwas going to make it worse.\u201d\nThe force required to constitute rape must be actual or constructive force used to achieve the sexual intercourse. Either is sufficient. State v. Alston, 310 N.C. 399, 312 S.E. 2d 470 (1984). In the case sub judice, there is evidence of both actual and constructive force. The actual force occurred when defendant pushed the victim towards the bed and when he pushed her hands aside. Constructive force occurred when defendant locked the door, yelled at the victim and placed her in fear that she would be hurt. See id.\nTherefore, we hold that there was ample evidence of the element of force to withstand defendant\u2019s motion to dismiss.\nWe have reviewed defendant\u2019s remaining assignment of error and find it to be without merit.\nNo error.\nJudges Phillips and Greene concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Daniel F. McLawhorn, for the State.", "Loflin & Loflin, by Thomas F. Loflin III, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH MORRISON\nNo. 8614SC1067\n(Filed 5 May 1987)\n1. Rape and Allied Offenses g 4.1\u2014 defendant\u2019s attempt to rape witness \u2014admissibility of testimony to show common plan or scheme\nThe trial court in a rape case did not err in allowing a witness to testify that defendant had attempted to rape her when the witness\u2019s account was similar to that of the victim in this case, and the witness's testimony was therefore properly admissible to show that the prior crime involved a common plan or scheme.\n2. Rape and Allied Offenses \u00a7 4; Criminal Law 8 78\u2014 stipulation as to penetration \u2014 admissibility\nThere was no merit to defendant\u2019s contention that the trial court erred in admitting into evidence a stipulation signed by the defense attorney and the prosecutor establishing an essential element of second degree rape \u2014that is, the act of sexual intercourse or penetration \u2014without any showing that defendant himself had personally stipulated to this essential element of the charged crime, since the attorney was presumed to have the authority to act on behalf of his client and the record was free of any indication to the contrary.\n3. Rape and Allied Offenses 8 5\u2014 second degree rape \u2014 sufficiency of evidence of force\nThere was sufficient evidence of the element of force to convict defendant of second degree rape where it tended to show that defendant locked his bedroom door and pushed the victim toward the bed; the victim stated that she was afraid defendant would hurt her and that she began to cry; and when the victim tried to stop defendant from undressing her, he pushed her hands aside and told her that her crying \u201cwas going to make it worse.\u201d\nAppeal by defendant from Lee, Judge. Judgment entered 16 May 1986 in Superior Court, DURHAM County. Heard in the Court of Appeals 4 March 1987.\nDefendant was charged in a proper bill of indictment with rape in violation of G.S. 14-27.2(a)(2) and G.S. 14-27.3(a)(l).\nThe State\u2019s evidence tended to show the following: The victim, whose name is not necessary to this opinion, testified that on 28 May 1985, defendant offered her a ride home from the North Carolina Central University campus. Although she did not know defendant, she accepted the ride. Defendant drove the victim to her apartment and they arranged to go to a park later that day. Defendant told the victim that his name was Gary.\nApproximately an hour later, defendant returned to the victim\u2019s apartment. They both waited in the apartment for approximately 15 minutes until the victim\u2019s brother arrived. During that time, the victim changed her clothes. Defendant and the victim left for the park in defendant\u2019s car. On the way to the park, defendant told the victim that he needed to stop by his apartment to change clothes. Defendant warned the victim that his apartment had little furniture. They entered the sparsely furnished apartment, and defendant told the victim that she could watch television in his bedroom. The victim made several phone calls and then sat down on the bed to watch television.\nDefendant sat down next to her and tried to kiss her. She told him \u201cno,\u201d but he moved closer and tried again. She put her knees up to keep him from leaning on her and told defendant that she was ready to go home. Defendant told her that she had plenty of time. The victim repeated her request to go home, and defendant got up and locked the bedroom door. The victim got up and headed for the door but defendant pushed her toward the bed and yelled at her to sit down. The victim testified that defendant was \u201closing it\u201d and that she believed the defendant was going to hurt her.\nDefendant then began to undress the victim and she began to cry. When she tried to stop defendant with her hands, he pushed her hands aside and told her that if she cried, \u201cit was going to make it worse.\u201d The victim testified that she stopped resisting because she had \u201cread too many cases of people resisting or fighting back an attacker or getting beat up or getting killed, and that was the first thing in [her] mind, [her] mom would have to bury [her] because of somebody.\u201d Defendant then had intercourse with the victim.\nAlthough defendant wanted to have intercourse a second time, he let the victim get up and get dressed. Defendant then drove the victim back to her apartment and apologized several times. Upon arriving back at her apartment, the victim told a neighbor what had happened and reported the matter to the Durham Police Department.\nDefendant was convicted of second degree rape and was sentenced to a 12-year term of imprisonment. From the judgment of the trial court, defendant appeals.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Daniel F. McLawhorn, for the State.\nLoflin & Loflin, by Thomas F. Loflin III, for defendant appellant." }, "file_name": "0511-01", "first_page_order": 539, "last_page_order": 544 }