{ "id": 8358901, "name": "STATE OF NORTH CAROLINA v. DANA LEMLY COOKE", "name_abbreviation": "State v. Cooke", "decision_date": "1987-11-17", "docket_number": "No. 8721SC285", "first_page": "613", "last_page": "616", "citations": [ { "type": "official", "cite": "87 N.C. App. 613" } ], "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": "171 S.E. 2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "7 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548840 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc-app/7/0191-01" ] }, { "cite": "283 S.E. 2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "726" } ], "opinion_index": 0 }, { "cite": "304 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567490 ], "year": 1981, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0293-01" ] }, { "cite": "249 S.E. 2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564469 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0031-01" ] }, { "cite": "300 S.E. 2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "60 N.C. App. 755", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523986 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/60/0755-01" ] } ], "analysis": { "cardinality": 402, "char_count": 6530, "ocr_confidence": 0.797, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2029626051557446 }, "sha256": "efd60384f1c83210b100e2320e6cf37ce5d96215659eb4c263c428e7e9e808eb", "simhash": "1:a79fd20d343f1576", "word_count": 1097 }, "last_updated": "2023-07-14T18:10:55.356094+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge ARNOLD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DANA LEMLY COOKE" ], "opinions": [ { "text": "ORR, Judge.\nOn appeal defendant contends the trial court erred in finding as a factor in aggravation that he employed a deadly weapon during the commission of the crime.\nAggravating factors which are found must be supported by a preponderance of the evidence. State v. Teague, 60 N.C. App. 755, 300 S.E. 2d 7 (1983). Defendant does not challenge the admissibility or accuracy of the State\u2019s narrative. He neither objected to nor contradicted any portion thereof. His sole contention is that the narrative was insufficient to support the trial court\u2019s finding that the knife was a deadly weapon.\nA knife may be, but is not always, a deadly weapon. See State v. Carson, 296 N.C. 31, 249 S.E. 2d 417 (1978). \u201c[T]he evidence in each case determines whether a certain kind of knife is properly characterized as a lethal device as a matter of law . . . .\u201d State v. Sturdivant, 304 N.C. 293, 301, 283 S.E. 2d 719, 726 (1981). N.C.G.S. \u00a7 15A-1334(b) sets forth the procedure at the sentencing hearing. There defendant and the prosecutor may present witnesses and arguments on facts relevant to the sentencing hearing. However, the \u201cformal rules of evidence do not apply at the hearing.\u201d Id.\nIn the case sub judice, the prosecutor chose to relate to the court a narrative of the testimony that the victim and Kenneth Cox would have given. Defendant chose to introduce three character witnesses. At no time did defendant challenge or question the prosecutor\u2019s description of the knife or its use by defendant to threaten the victim and her companion.\nUnder N.C.G.S. \u00a7 15A-1340.4(a) the trial judge in considering aggravating and mitigating factors, must find that those factors exist \u201cby the preponderance of the evidence . . . .\u201d In this case all the evidence was uncontradicted that defendant used a knife, described by the victim as a \u201csteak knife,\u201d to threaten the victim and to facilitate the act of raping her. The trial court, taking into consideration the everyday use of the term \u201csteak knife\u201d and the utilization of the weapon by defendant, had adequate evidence upon which to base its factual determination that a deadly weapon was used in the commission of the crime.\nThis Court stated in State v. Parker, 7 N.C. App. 191, 171 S.E. 2d 665 (1970) that:\n[t]he deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself.\n7 N.C. App. at 195, 171 S.E. 2d at 667.\nHere the victim was threatened with her life at knife point at 3:30 a.m. in her own apartment by a man acting in what can reasonably be described as a drunken rage. He deliberately placed the knife against her throat to overcome her resistance. As a result, she submitted to his demands. We believe the manner of use, the description of the instrument as a \u201csteak knife,\u201d and the victim\u2019s frightened condition permitted the trial court to reasonably find by a preponderance of the evidence that defendant employed a deadly weapon in the commission of the crime.\nAffirmed.\nChief Judge HEDRICK and Judge ARNOLD concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Elisha H. Bunting, Jr., for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DANA LEMLY COOKE\nNo. 8721SC285\n(Filed 17 November 1987)\nCriminal Law \u00a7 138.23\u2014 aggravating factor for rape \u2014 use of deadly weapon \u2014 steak knife\nThe trial court properly found as an aggravating factor for second degree rape that defendant employed a deadly weapon during the commission of the crime based upon a description of the instrument used by defendant as a \u201csteak knife,\u201d the manner in which the knife was used to threaten the victim, and the victim\u2019s frightened condition.\nAppeal by defendant from Morgan, Judge. Judgment entered 15 December 1986 in Superior Court, FORSYTH County. Heard in the Court of Appeals 23 September 1987.\nDefendant was charged in a proper bill of indictment with first-degree rape. He pleaded guilty to second-degree rape. The testimony offered by the State at the sentencing hearing consisted of a summary of the State\u2019s proposed evidence by the assistant district attorney comprised of the statements made by the victim and Kenneth Cox to police. Although the two statements differed somewhat, the narrative tended to show the following:\nOn or about 2 August 1986, the victim was awakened about 3:30 a.m. by loud noises outside her apartment. She went to her window where she observed Kenneth Cox and a man, later identified as defendant, outside her door. The victim did not open the door because the men appeared to have been drinking. After a period of time, the men started to leave. As they did, they started pushing the victim\u2019s baby stroller up the street. The victim then went outside and told the men to bring back the stroller.\nWhen they returned with the stroller, defendant tried to put his hands on the victim. The men then followed the victim into her apartment. Once in the dwelling, defendant \u201cstarted acting crazy.\u201d He told the victim that he wanted to have sex with her and told her if she refused he would force her.\nDefendant hit the victim\u2019s male companion, Richard Hatcher, in the face. Defendant then grabbed a knife, described by the victim as a \u201csteak knife,\u201d off of the counter, put the knife to Hatch-er\u2019s throat and threatened to kill him unless the victim agreed to have sex with him. Defendant also placed the knife against the victim\u2019s throat and threatened her. He then took her into a bedroom and raped her.\nThe State offered no other description of the knife and the knife was not introduced into evidence. The State also presented evidence of defendant\u2019s criminal record.\nDefendant offered evidence tending to show that he was married and had two children. At the time of the incident, defendant was drinking heavily because he was depressed over his inability to work and support his family. He also offered evidence that when he was not under the influence of alcohol he was a law-abiding citizen with a good reputation.\nAt the sentencing hearing the trial court found factors in aggravation and mitigation. One of the aggravating factors found was that \u201cat the time the defendant employed a deadly weapon in the commission of this crime.\u201d After finding that the aggravating factors outweighed the mitigating factors, the trial court imposed a twenty-year prison sentence, a sentence in excess of the presumptive term. From this judgment, defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Elisha H. Bunting, Jr., for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., for defendant-appellant." }, "file_name": "0613-01", "first_page_order": 641, "last_page_order": 644 }