{
  "id": 8358943,
  "name": "STATE OF NORTH CAROLINA v. THOMAS WALL",
  "name_abbreviation": "State v. Wall",
  "decision_date": "1987-11-17",
  "docket_number": "No. 8719SC220",
  "first_page": "621",
  "last_page": "624",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    {
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      "category": "reporters:state_regional",
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      "year": 1984,
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      "cite": "307 N.C. 584",
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    {
      "cite": "307 N.C. 655",
      "category": "reporters:state",
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    {
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    {
      "cite": "200 N.C. 69",
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      "cite": "233 N.C. 519",
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      "cite": "312 N.C. 613",
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      "year": 1985,
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  ],
  "analysis": {
    "cardinality": 399,
    "char_count": 6358,
    "ocr_confidence": 0.802,
    "pagerank": {
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      "percentile": 0.8918386747644361
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  "last_updated": "2023-07-14T18:10:55.356094+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges COZORT and GREENE concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. THOMAS WALL"
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\nUpon sharply conflicting evidence defendant was convicted of incest with his sixteen-year-old daughter. In substance, the daughter testified that defendant had intercourse with her on 2 September 1985, the time alleged in the indictment, and that the abuse began three years earlier, while defendant denied all wrongdoing. In appealing he makes four contentions concerning the trial and one as to sentencing. None of the contentions has merit and we overrule all of them.\nAs to the trial defendant first contends that the court erred in refusing to receive into evidence a small volume alleged to be the daughter\u2019s \u201cdiary\u201d; but we have no basis for determining that the document contained relevant evidence beneficial to defendant because the record does not show what it contains. Carter v. Carr, 312 N.C. 613, 324 S.E. 2d 222 (1985). The record does indicate, though, that defendant was not mentioned in the document, which is proof, so he argues, that the forbidden acts did not occur; but the validity of this argument, along with the relevancy and materiality of the proffered evidence, depends upon the contents of the document, about which the record is silent. Defendant\u2019s next two contentions are that the prosecutor\u2019s cross-examination of two of his character witnesses was improper in that he was permitted to question them about a purported rumor that he had an affair with a certain eighteen-year-old girl and about defendant\u2019s wife purportedly stating that she had \u201cexpected something was going on\u201d between defendant and their daughter. Though the inquiries concerned hearsay statements they were not banned by the general rule against hearsay. G.S. 8C-1, Rule 803(21), N.C. Rules of Evidence. Each witness had testified on direct examination that he knew defendant\u2019s general reputation and on cross-examination each denied having heard about the wife\u2019s purported statement, but one admitted hearing about the rumored affair with the eighteen-year-old girl. On cross-examination counsel has wide latitude. Maddox v. Brown, 233 N.C. 519, 64 S.E. 2d 864 (1951). The witnesses having testified that they knew defendant\u2019s reputation, which is what people in the community say about a person, counsel had a right to test the basis for their claimed knowledge. State v. Nelson, 200 N.C. 69, 156 S.E. 154 (1930). The other error asserted concerning the trial is that in instructing the jury about the reputation testimony the court stated that one witness testified that \u201cthere may have been some talk about the defendant being involved with some other girl.\u201d The instruction was not objected to and the error, if any, was waived, Rule 10(b)(2), N.C. Rules of Appellate Procedure, unless it was \u201cplain error\u201d as laid down in State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). In our opinion the statement was not such an error; it was an accurate part of the court\u2019s summary of the evidence, both favorable and unfavorable to defendant, and it could not have caused defendant any legal prejudice.\nFinally, defendant contends that in sentencing him the court erred in finding as a factor in aggravation that the victim \u201cwas and is of tender years.\u201d G.S. 15A-1340.4. This finding was made in connection with findings that defendant had no criminal record and was of good reputation, and that the aggravating and mitigating factors were of equal weight. Defendant correctly recognizes that he is not entitled to appeal on this issue because he was sentenced to the presumptive term, G.S. 15A-1444(al), and the judge was not required to find factors in aggravation and mitigation, G.S. 15A-1340.4(b), and he asks that his contention be accepted as a petition for certiorari, which we have done. Even so, the contention has no merit because the record shows that the finding in aggravation was properly made. The aggravating factor as to a victim of crime being \u201cvery young or very old,\u201d G.S. 15A-1340.4(a)(l)j, concerns the vulnerability of the victim to the particular crime involved, State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983), and it is too obvious for debate that a girl thirteen years old, the age of the victim when defendant\u2019s abuse began according to the evidence, is more vulnerable than an adult both to the sexual advances of her father and to the baleful effects of such abuse. State v. Jackson, 70 N.C. App. 782, 321 S.E. 2d 169 (1984), involved similar facts and we made the same holding.\nNo error.\nJudges COZORT and GREENE concur.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Thornburg, by Associate Attorney General Rodney S. Maddox, for the State.",
      "Appellate Defender Hunter, by Assistant Appellate Defender Gayle L. Moses, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. THOMAS WALL\nNo. 8719SC220\n(Filed 17 November 1987)\n1. Criminal Law \u00a7 158.1\u2014 diary omitted from record \u2014 court unable to determine admissibility\nIn a prosecution for incest, the record failed to show the contents of a volume alleged to be the victim\u2019s diary, and it was therefore impossible for the court on appeal to determine if the document was relevant or material and therefore admissible.\n2. Criminal Law \u00a7 85.1\u2014 character witnesses \u2014 cross-examination as to rumors about defendant\nIn an incest prosecution, the prosecutor did not improperly cross-examine two of defendant\u2019s character witnesses as to whether they had heard rumors that defendant had had an affair with an 18-year-old girl and that defendant\u2019s wife had made a statement that she had \u201cexpected something was going on\u201d between defendant and their daughter, since the witnesses had testified that they knew defendant\u2019s reputation, and counsel had a right to test the basis for their claimed knowledge.\n3. Incest \u00a7 1\u2014 instructions proper summary of evidence\nIn an incest prosecution, the trial court\u2019s instruction concerning reputation testimony was an accurate summary of the evidence.\n4. Criminal Law \u00a7 138.24\u2014 tender age of victim \u2014 finding of aggravating circumstance proper\nThe trial court in an incest prosecution did not err in finding as a factor in aggravation that the victim was and is of tender years where the evidence indicated that defendant began his abuse when his daughter was 13 years old. N.C.G.S. \u00a7 15A-1340.4(a)(l)j.\nAPPEAL by defendant from Walker, Judge. Judgment entered 23 July 1986 in Superior Court, RANDOLPH County. Heard in the Court of Appeals 23 September 1987.\nAttorney General Thornburg, by Associate Attorney General Rodney S. Maddox, for the State.\nAppellate Defender Hunter, by Assistant Appellate Defender Gayle L. Moses, for defendant appellant."
  },
  "file_name": "0621-01",
  "first_page_order": 649,
  "last_page_order": 652
}