{ "id": 8523188, "name": "STATE OF NORTH CAROLINA v. WILLIE JAMES GRIMES", "name_abbreviation": "State v. Grimes", "decision_date": "1989-12-05", "docket_number": "No. 8925SC119", "first_page": "489", "last_page": "494", "citations": [ { "type": "official", "cite": "96 N.C. App. 489" } ], "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": "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": "361 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "321 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2572499 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0019-01" ] }, { "cite": "232 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559365, 8559344, 8559377, 8559352, 8559389 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0715-03", "/nc/291/0715-01", "/nc/291/0715-04", "/nc/291/0715-02", "/nc/291/0715-05" ] }, { "cite": "230 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "31 N.C. App. 556", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550967 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/31/0556-01" ] }, { "cite": "356 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741061 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0656-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "Citations omitted." } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "opinion_index": 0 }, { "cite": "330 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "460" }, { "page": "460" } ], "opinion_index": 0 }, { "cite": "313 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719603 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "529" }, { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0516-01" ] } ], "analysis": { "cardinality": 500, "char_count": 11469, "ocr_confidence": 0.767, "pagerank": { "raw": 3.6856254361847664e-07, "percentile": 0.8916979329682927 }, "sha256": "c60e0a93d1a52290e2e49221f1f76a35146d9ce23d2e021b4d281db0a473ab06", "simhash": "1:affea6afa04d09de", "word_count": 1845 }, "last_updated": "2023-07-14T18:28:35.242103+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Phillips and Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIE JAMES GRIMES" ], "opinions": [ { "text": "WELLS, Judge.\nIn one of his assignments of error, defendant contends that the in-court identification of defendant by Ms. Elliott was so tainted by \u201cthe pretrial identification procedure\u201d as to deny defendant due process. \u201cIdentification evidence must be suppressed on due process grounds where the facts show that the pretrial identification procedure was so suggestive as to create a very substantial likelihood of irreparable misidentification.\u201d State v. Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985). (Citations omitted.)\nThe factors to be examined to determine the likelihood of irreparable misidentification include: (1) the opportunity of the witness to view the individual at the time of the event; (2) the witness\u2019 degree of attention; (3) the accuracy of the witness\u2019 prior description of the individual; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the event and the confrontation. Wilson, 313 N.C. at 529, 330 S.E.2d at 460. (Citations omitted.)\nAt the trial, upon defendant\u2019s objection to allowing Ms. Elliott to testify as to her pretrial identification of defendant\u2019s photograph, the trial court sustained the objection, however, at the State\u2019s request allowed a voir dire examination of Ms. Elliott on the question of identification. This examination extended into the general area of the testimony of Ms. Elliott as to identification of the defendant as her attacker. Following the voir dire examination, the trial court entered extensive findings of fact which invoked and covered all of the factors set out in Wilson, and, after ordering that the photo identification be excluded, found and concluded that Ms. Elliott\u2019s in-court identification of defendant was of independent origin based solely upon her observation of defendant at the time of the crime and was not tainted by any pretrial identification procedure that was so impermissibly suggestive as to lead to a mistaken identification.\nWhere findings of the trial court are supported by substantial competent evidence, they are binding on the appellate court. Wilson, 313 N.C. at 529, 330 S.E.2d at 460. (Citations omitted.)\nDefendant does not argue to us that the trial court\u2019s findings in this case were not supported by substantial competent evidence, but suggests that Ms. Elliott\u2019s identification testimony was contradictory. Such contradictions as may have appeared were properly resolved by the trial court in its findings and conclusions. This assignment is overruled.\nIn another assignment of error, defendant contends that the trial court erred in denying his motion to dismiss the first-degree rape charges. Defendant contends that the State failed to prove that vaginal intercourse had taken place or that defendant had employed or displayed a dangerous or deadly weapon as required by the statute. N.C. Gen. Stat. \u00a7 14-27.2 (1986) provides in pertinent part that:\n(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:\n(2)With another person by force and against the will of the other person, and:\na. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon.\nUpon defendant\u2019s motion for dismissal, the question for the trial court is whether there is substantial evidence of each element of the offense charged and of the defendant\u2019s being the perpetrator of the offense. If so, the motion is properly denied. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). (Citations omitted.) The evidence is to be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. Id. (Citations omitted.)\nIn this case, the victim testified that defendant had sexual intercourse with her on the couch and later in the bedroom. This testimony was sufficient to allow the jury to draw the reasonable inference that defendant had vaginal intercourse with the victim. The evidence was clear that the intercourse was by force and against the will of the victim. Ms. Elliott\u2019s testimony that defendant threatened her with an open knife which she saw was sufficient to establish that defendant employed or displayed a dangerous or deadly weapon.\nThe trial court properly denied defendant\u2019s motion to dismiss the rape charges. This assignment is overruled.\nIn a related assignment, defendant contends that the trial court erred in refusing to \u201cconsolidate\u201d the rape charges. The evidence in this case showed two distinct acts of intercourse, both accomplished by force and over the repeated resistance of the victim. This was sufficient to support separate charges and convictions. See State v. Dudley, 319 N.C. 656, 356 S.E.2d 361 (1987) and State v. Small, 31 N.C. App. 556, 230 S.E.2d 425, cert. denied, 291 N.C. 715, 232 S.E.2d 207 (1977). This assignment is overruled.\nIn another assignment of error, defendant contends that the trial court erred in failing to submit to the jury the lesser included offense of second-degree rape in the rape charges. As we have previously noted, the State\u2019s evidence in this case established all the constituent elements of first-degree rape. Defendant\u2019s contention under this assignment is that there was \u201csubstantial doubt\u201d that defendant employed or used a dangerous or deadly weapon. Any \u201cdoubt\u201d on this issue was for the jury to resolve. There being no evidentiary basis on which to submit second-degree rape charges to the jury, the trial court properly denied defendant\u2019s request. This assignment is overruled.\nDefendant has presented other arguments as to his rape convictions. We have carefully examined these arguments and have found them to be without sufficient merit to warrant discussion.\nDefendant has also assigned error to the trial court\u2019s denial of his motion to dismiss the charge of first-degree kidnapping. He correctly contends that a defendant cannot be convicted of both first-degree rape and first-degree kidnapping when the rape is used to prove an element of the kidnapping charge. See, e.g., State v. Fisher, 321 N.C. 19, 361 S.E.2d 551 (1987). The trial court in this case corrected this error by arresting judgment on the first-degree kidnapping conviction and properly entering judgment and sentencing defendant for second-degree kidnapping. See State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986). This assignment is overruled.\nWe note that there has been included as an appendix to defendant\u2019s brief a pro se brief prepared by defendant. We do not condone such practice in cases where a defendant is represented by counsel who has submitted an appropriate brief. We also note that defendant\u2019s pro se brief does not present any questions or arguments not adequately present in the brief filed by his counsel.\nNo error.\nJudges Phillips and Parker concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Grayson G. Kelley and Associate Attorney General E. Burke Haywood, for the State.", "E. X. de Torres for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIE JAMES GRIMES\nNo. 8925SC119\n(Filed 5 December 1989)\n1. Criminal Law \u00a7 66.16 (NCI3d)\u2014 pretrial photographic identification \u2014 independent origin of in-court identification\nEvidence was sufficient to support the trial court\u2019s findings that a rape victim\u2019s in-court identification of defendant was based solely upon her observation of defendant at the time of the crime and was not tainted by any pretrial identification procedure which was so impermissibly suggestive as to lead to a mistaken identification.\nAm Jur 2d, Evidence \u00a7 371.8.\n2. Rape and Allied Offenses \u00a7 5 (NCI3d)\u2014 first degree rape \u2014 sufficiency of evidence of intercourse and use of weapon\nThe trial court did not err in denying defendant\u2019s motion to dismiss first degree rape charges where the victim testified that defendant had sexual intercourse with her on the couch in her living room and later in the bedroom; this testimony was sufficient to allow the jury to draw the reasonable inference that defendant had vaginal intercourse with the victim; the evidence was clear that the intercourse was by force and against the will of the victim; and the victim\u2019s testimony that defendant threatened her with an open knife which she saw was sufficient to establish that defendant employed or displayed a dangerous or deadly weapon.\nAm Jur 2d, Rape \u00a7\u00a7 3-5, 88-92.\n3. Rape and Allied Offenses \u00a7 2 (NCI3d) \u2014 two rapes \u2014 sufficiency of evidence \u2014\u201cconsolidation\u201d not required\nThe trial court did not err in refusing to \u201cconsolidate\u201d rape charges against defendant where the evidence showed two distinct acts of intercourse, both accomplished by force and over the repeated resistance of the victim, and this was sufficient to support separate charges and convictions.\nAm Jur 2d, Rape \u00a7\u00a7 3-5, 88-92.\n4. Rape and Allied Offenses \u00a7 6.1 (NCI3d)\u2014 first degree rape charged \u2014instructions on lesser offense of second degree rape not required\nThe trial court did not err in failing to submit to the jury the lesser included offense of second degree rape where the State\u2019s evidence established all the constituent elements of first degree rape, and any doubt as to whether defendant employed or used a dangerous or deadly weapon was for the jury to resolve.\nAm Jur 2d, Rape \u00a7 110.\n5. Kidnapping \u00a7 2 (NCI3d)\u2014 conviction for first degree rape and first degree kidnapping improper \u2014 error cured\nA defendant cannot be convicted of both first degree rape and first degree kidnapping when the rape is used to prove an element of the kidnapping charge; however, the trial court in this case corrected this error by arresting judgment on the first degree kidnapping conviction and properly entering judgment and sentencing defendant for second degree kidnapping.\nAm Jur 2d, Abduction and Kidnapping \u00a7\u00a7 9, 34.\nAPPEAL by defendant from Griffin, Kenneth A., Judge. Judgment entered 12 July 1988 in CATAWBA County Superior Court. Heard in the Court of Appeals 31 August 1989.\nDefendant was charged with two counts of first-degree rape and with one count of first-degree kidnapping.\nAt trial the State\u2019s evidence tended to show the following: On 24 October 1987, Carrie Lee Elliott, then age 69, was at home alone when she heard a knock on her door. When she opened the door, a man, later identified by her as defendant, forced his way into her living room. The man pushed Ms. Elliott onto the couch, beat her with his hands, threatened her with a knife, and forced her to have sexual intercourse with him. A short time later, the man suggested they go into the bedroom. When Ms. Elliott refused, the man beat her again and proceeded to drag her into the bedroom where he again forced her to have sexual intercourse. After the man left, Ms. Elliott called some family members who contacted the police. She was later treated for her injuries at a local hospital.\nDefendant presented a number of alibi and character witnesses. Defendant testified in his own behalf, denying that he was present at Ms. Elliott\u2019s residence on 24 October 1987, and giving alibi testimony.\nThe jury convicted defendant on all counts. At sentencing, the trial court arrested judgment on the first-degree kidnapping conviction and sentenced defendant for second-degree kidnapping. Defendant received a life sentence for the rape convictions and a nine-year sentence for the kidnapping.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Grayson G. Kelley and Associate Attorney General E. Burke Haywood, for the State.\nE. X. de Torres for defendant-appellant." }, "file_name": "0489-01", "first_page_order": 521, "last_page_order": 526 }