{
  "id": 8522651,
  "name": "STATE OF NORTH CAROLINA v. ERNEST RAY HOFFMAN",
  "name_abbreviation": "State v. Hoffman",
  "decision_date": "1989-09-19",
  "docket_number": "No. 8820SC1384",
  "first_page": "647",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "316 N.C. 33",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "category": "reporters:state_regional",
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      "year": 1983,
      "opinion_index": 0
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      "cite": "307 N.C. 655",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "reporter": "S.E.2d",
      "year": 1986,
      "opinion_index": 0
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    {
      "cite": "315 N.C. 626",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "year": 1986,
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  "last_updated": "2023-07-14T18:25:49.576177+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges ORR and LEWIS concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ERNEST RAY HOFFMAN"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Chief Judge.\nDefendant assigns as prejudicial error the trial court\u2019s allowance of testimony by the eight-year-old victim regarding prior acts of sexual misconduct. While testimony about prior acts of misconduct is not admissible to show defendant\u2019s propensity to commit the offense in question, Rule 404(b) of the North Carolina Rules of Evidence allows evidence of prior acts of misconduct if relevant for other purposes, including evidence of a common plan or scheme. In the present case, testimony regarding prior sexual misconduct by defendant with the eight-year-old victim is admissible to establish a common plan or scheme on the part of defendant to sexually molest his niece. Defendant\u2019s contention has no merit.\nDefendant also contends that the trial judge erred by not allowing defendant\u2019s witnesses to testify that he had not molested their children and by not allowing several children to testify that he had not molested them. Such testimony was totally irrelevant. We have examined each exception upon which defendant\u2019s assignment of error is based and conclude that the trial court did not err in excluding the testimony.\nDefendant\u2019s third argument, based on Assignments of Error 13 and 14, is set out in his brief as follows: \u201cThe trial court committed plain error in not instructing the jury on pertinent character traits of the defendant.\u201d Plain error arises only where error by the trial court is so fundamental as to deny a defendant a fair trial or result in a miscarriage of justice. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986); State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). Defendant must show, absent the error complained of, the jury would have reached a different result. State v. Walker, 316 N.C. 33, 340 S.E.2d 80 (1986). The failure of the trial court to instruct the jury as contended by defendant does not rise to the level of plain error in this case.\nDefendant also assigns error based on the denial of his request for a jury instruction on the lesser included offense of attempted first degree rape. Whether instruction on a lesser included offense is proper depends solely on whether there is evidence that would permit a jury rationally to find defendant guilty of the lesser offense and acquit him of the greater offense. State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983). The evidence in the record only tends to establish that defendant raped his minor niece. The court did not err in denying defendant\u2019s requested instruction on attempted first degree rape.\nIn his final assignment of error, defendant contends that the trial court improperly admitted into evidence a pair of panties allegedly worn by defendant\u2019s eight-year-old niece and the results of lab tests performed on the panties. Upon consideration of defendant\u2019s argument, we find no conceivable prejudice by admission of the evidence in question.\nDefendant had a fair trial free from prejudicial error.\nNo error.\nJudges ORR and LEWIS concur.",
        "type": "majority",
        "author": "HEDRICK, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Norma S. Harrell, for the State.",
      "Assistant Appellate Defender Mark D. Montgomery for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ERNEST RAY HOFFMAN\nNo. 8820SC1384\n(Filed 19 September 1989)\n1. Criminal Law \u00a7 34.8; Rape and Allied Offenses \u00a7 4.1\u2014 prior sexual misconduct \u2014 admissibility to show common scheme or plan\nTestimony by an eight-year-old rape and sexual offense victim concerning prior acts of sexual misconduct by defendant with the victim was admissible to establish a common scheme or plan by defendant to sexually molest the victim.\n2. Rape and Allied Offenses \u00a7 4\u2014 evidence of failure to molest other children \u2014 irrelevancy\nTestimony by parents that defendant had not molested their children and by children that defendant had not molested them was irrelevant and properly excluded in a prosecution for rape and sexual offense committed against defendant\u2019s eight-year-old niece.\n3. Criminal Law \u00a7 117.5\u2014 character traits of> defendant \u2014 failure to instruct \u2014no plain error\nThe trial court\u2019s failure to instruct the jury in a rape and sexual offense case on certain character traits of the defendant was not plain error.\n4. Rape and Allied Offenses \u00a7 6.1\u2014 rape case \u2014instruction on attempted rape not required\nThe trial court in a first degree rape prosecution did not err in refusing to instruct the jury on attempted first degree rape.\n5. Rape and Allied Offenses \u00a7 4.2\u2014 victim\u2019s panties \u2014 lab tests \u2014 defendant not prejudiced\nDefendant was not prejudiced by the admission of panties allegedly worn by a child rape and sexual offense victim and the results of lab tests performed on the panties.\nAPPEAL by defendant from Boner, Judge. Judgment entered 21 July 1988 in Superior Court, RICHMOND County. Heard in the Court of Appeals 28 August 1989.\nDefendant was charged in a proper bill of indictment with one count of first degree rape in violation of G.S. 14-27.2 and one count of first degree sexual offense in violation of G.S. 14-27.4.\nThe evidence in the record tends to show the following: On 7 November 1987, defendant forced his eight-year-old niece to engage in repeated acts of sexual intercourse with him. On that same day, defendant also forced his five-year-old niece to engage in a sexual act with him. A jury found defendant guilty as charged on both counts. From judgments imposing two life prison terms to be served concurrently, defendant appealed.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Norma S. Harrell, for the State.\nAssistant Appellate Defender Mark D. Montgomery for defendant, appellant."
  },
  "file_name": "0647-01",
  "first_page_order": 675,
  "last_page_order": 677
}