{ "id": 8522211, "name": "STATE OF NORTH CAROLINA v. DWIGHT WRIGHT MAYSE", "name_abbreviation": "State v. Mayse", "decision_date": "1990-03-20", "docket_number": "No. 8929SC768", "first_page": "559", "last_page": "567", "citations": [ { "type": "official", "cite": "97 N.C. App. 559" } ], "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": "328 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "256" } ], "opinion_index": 0 }, { "cite": "313 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723320 ], "year": 1985, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0266-01" ] }, { "cite": "463 U.S. 277", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6194264 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/463/0277-01" ] }, { "cite": "354 S.E.2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738433 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0392-01" ] }, { "cite": "344 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "574" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 327", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522868 ], "year": 1986, "pin_cites": [ { "page": "335-36" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0327-01" ] }, { "cite": "292 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572551, 8572522, 8572458, 8572502, 8572474 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0590-05", "/nc/305/0590-04", "/nc/305/0590-01", "/nc/305/0590-03", "/nc/305/0590-02" ] }, { "cite": "284 S.E.2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "55 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526776 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/55/0092-01" ] }, { "cite": "302 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "62 N.C. App. 520", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523550 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/62/0520-01" ] }, { "cite": "297 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "589" }, { "page": "590" } ], "opinion_index": 0 }, { "cite": "307 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561253 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0198-01" ] }, { "cite": "347 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "406" } ], "opinion_index": 0 }, { "cite": "318 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731888 ], "year": 1986, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0114-01" ] }, { "cite": "283 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "724-25" } ], "opinion_index": 0 }, { "cite": "304 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567490 ], "year": 1981, "pin_cites": [ { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0293-01" ] } ], "analysis": { "cardinality": 748, "char_count": 16556, "ocr_confidence": 0.768, "pagerank": { "raw": 3.298161834166957e-07, "percentile": 0.8717268844631483 }, "sha256": "f0248fb33c8a30615b1089cbd0b586b009550b8686863ed92832b923feb8e7b2", "simhash": "1:be34e424b46ecfdc", "word_count": 2784 }, "last_updated": "2023-07-14T17:09:00.422652+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and COZORT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DWIGHT WRIGHT MAYSE" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant addresses five assignments of error in his appeal.\nI: Dismissal of the first-degree rape charge.\nThe defendant moved for dismissal of the first-degree rape charge at the close of the State\u2019s case and contends on appeal that the trial court erred in denying that motion. First-degree rape is defined in North Carolina in G.S. \u00a7 14-27.2 in pertinent part as follows:\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; or\nb. Inflicts serious personal injury upon the victim. . . .\nDefendant states that there was insufficient evidence to support either theory of first-degree rape.\nA: Theory I \u2014 Employing a dangerous weapon.\nDefendant first contends that there is no evidence to support a finding that a dangerous or deadly weapon was employed or displayed. The victim indicated that after she was raped inside the shack, she was forced to go to a trailer located nearby where there was a \u201chunting knife laying on the table\u201d which was \u201ctwelve or more inches long.\u201d At trial, the victim testified about that knife.\nQ: [D]id you ever see him touch the knife?\nA: Yes, he picked it up a couple times.\nQ: What was he saying or doing when he picked the knife up?\nA: He told me, he looked me dead in the eye, and he said, \u201cIf you turn colors on me, I\u2019ll kill you.\u201d\nQ: . . . Did he have the knife when he said that?\nA: Yes. He was talking crazy. . . .\nThe North Carolina statute cited above which defines first-degree rape was changed in 1980 so that the State no longer has to show that a deadly weapon was used in a particular manner to procure the victim\u2019s submission. G.S. \u00a7 14-21(l)(b), repealed effective 1980. In its current form, the statute \u201csimply necessitates a showing that a dangerous or deadly weapon was employed or displayed in the course of a rape period.\u201d (Emphasis in original.) State v. Sturdivant, 304 N.C. 293, 299, 283 S.E.2d 719, 724-25 (1981).\nIn State v. Whittington, a first-degree sexual offense case, the Court stated that there was \u201ca series of incidents forming a continuous transaction between defendant\u2019s wielding the knife and the, sexual assault. . . . [I]t is of no consequence that defendant was not in possession of the deadly weapon at the precise moment that penetration occurred.\u201d 318 N.C. 114, 120, 347 S.E.2d 403, 406 (1986).\nThe victim testified that defendant also stuck a hard object into her ribs when defendant first jumped into victim\u2019s automobile and that defendant stated: \u201cIf this can\u2019t take care of you, I have a 25 that will,\u201d an apparent reference to a .25 revolver. Since the victim reasonably believed that the defendant had an object which was a dangerous weapon that he would use, the trial court did not err in denying defendant\u2019s motion to dismiss the first-degree rape charge.\nB: Theory II \u2014 Infliction of serious mental injury.\nDefendant contends that there is no evidence to support a finding that he inflicted serious mental injury on the witness. State v. Boone, 307 N.C. 198, 297 S.E.2d 585 (1982), presents the standard for determining whether \u201cthe acts of the accused cause mental upset which could support a finding of \u2018serious personal injury.\u2019 \u201d Id. at 205, 297 S.E.2d at 589.\nWe therefore believe that the legislature intended that ordinarily the mental injury inflicted must be more than the res gestae results present in every forcible rape and sexual offense. In order to support a jury finding of serious personal injury because of injury to the mind or nervous system, the State must ordinarily offer proof that such injury was not only caused by the defendant but that the injury extended for some appreciable time beyond the incidents surrounding the crime itself. Obviously, the question of whether there was such mental injury as to result in \u2018serious personal injury\u2019 must be decided upon the facts of each case.\nId. at 205, 297 S.E.2d at 590. The victim testified at trial about her \u201cmental state\u201d since the time of the alleged crimes. She stated that because of her inability to concentrate, she gave up her course of study at the technical college where she had been enrolled. She also moved from the city where she lived because \u201cwhere [she] was working people treated [her] like [she] had some kind of disease.\u201d She described her reasons for leaving school and her job and moving. \u201cI felt so degraded; I felt so ashamed, like everybody was looking at me and whispering. I was scared; I was afraid. I mean, some people knew what had happened. . . . [People] walked around like they were on eggshells. You know, it was like they\u2019d whisper when I\u2019d come into a room or something.\u201d She received professional help from the Mental Health Center and from the shelter for abused women. Victim indicated that she had never had any problems of this sort before the alleged crimes and that the mental injury continued \u201ceven up to this very moment\u201d which was seven months after the incidents. The State has clearly offered \u201cproof that such injury was not only caused by the defendant but that the injury extended for some appreciable time beyond the incidents surrounding the crime itself\u201d as required by State v. Boone cited above. Therefore, we hold that the victim suffered serious mental injury and that defendant\u2019s motion to dismiss was properly denied.\nII: Jury instructions on the deadly weapon element.\nDefendant contends that \u201cthe trial court\u2019s instructions to the jury on the deadly weapon element of first degree rape denied defendant a unanimous verdict and allowed him to be convicted on a theory not supported by the evidence.\u201d\nThe verdict sheet stated:\nMembers of the Jury, for your unanimous Verdict, do you find the defendant,\n(1) Guilty of First Degree Rape. . .\n(a) That the defendant employed an object that the victim reasonably believed was a dangerous or deadly weapon.\nIn State v. Connard, the Court states:\n[T]here is no requirement that the written verdict contain each and every element of the subject offense. G.S. \u00a7 15A-1237; State v. Sanderson, 62 N.C. App. 520, 302 S.E.2d 899 (1983). It is sufficient if the verdict can be properly understood by reference to the indictment, evidence and jury instructions. Id.; State v. Perez, 55 N.C. App. 92, 284 S.E.2d 560 (1981), disc. rev. denied, 305 N.C. 590, 292 S.E.2d 573 (1982).\n81 N.C. App. 327, 335-36, 344 S.E.2d 568, 574 (1986), aff\u2019d, 319 N.C. 392, 354 S.E.2d 238 (1987). The evidence and the verdict sheet in this case support the conclusion that the jury understood that it must decide unanimously that the defendant employed an object which the victim reasonably believed was a dangerous weapon.\nIll: Dismissal of the kidnapping charge.\nDefendant was convicted of first-degree kidnapping which includes as one of its elements the following as found in G.S. \u00a7 14-39(b); \u201cIf the person kidnapped . . . was not released by the defendant in a safe place. . . , the offense is kidnapping in the first degree. . . According to State\u2019s evidence, when defendant abducted the victim in her own automobile and they went to the trailer, he took the victim\u2019s car keys from the ignition and never returned them to the victim. In order to escape, the victim used a duplicate set of keys which were in her pocketbook and of which the defendant had no knowledge. Defendant never \u201creleased\u201d the victim; she escaped by her wits. The motion to dismiss was properly denied.\nIV: Expert testimony that the victim was \u201cgenuine\u201d and \u201cappropriately upset.\u201d\nThe defendant contends that it was error to allow a medical doctor who examined the victim to testify as to victim\u2019s credibility. Defendant specifically addresses two statements made by the witness. In both instances, we hold that defendant\u2019s counsel failed to make an \u201cappropriate and timely objection\u201d and that he has therefore waived his right to \u201cassert the alleged error on appeal\u201d as required by G.S. \u00a7 15A-1446(a) and (b). Counsel must have \u201cclearly presented the alleged error to the trial court.\u201d Id.\nThe first statement was included in the following exchange.\nQ: How would you describe [the victim\u2019s] emotional and mental state?\nA: Well, she was crying and upset, and found it difficult at first to talk or discuss anything with me. She seemed quite appropriately upset by the history that she gave.\nQ: What do you mean when you say that she was appropriately upset?\nA: With her history of having been injured and/or raped that morning\u2014\n[Counsel for defendant]: Objection\nA: It seemed very appropriate.\nThe COURT: Sustained as to the last statement, as to, \u201cbeing raped earlier that morning.\u201d Do not take that into consideration in your deliberations.\nDefendant challenges the admissibility of the witness\u2019 statement that the victim was \u201cappropriately upset,\u201d stating that such a statement \u201cunfairly assisted the State in this credibility contest between the prosecuting witness and the defendant. Defendant\u2019s counsel did not object until after the witness\u2019 second statement above and the court ruled only on that statement concerning \u2018being raped that morning.\u2019 \u201d Therefore, the objection was neither timely nor did it address the testimony which defendant\u2019s counsel is now discussing on appeal.\nThe second set of questions and answers proceeded as follows:\nQ: Did, did she seem to be, you say that she was upset and crying, did that seem to be genuine in your opinion?\nA: Yes.\nQ: So you didn\u2019t feel that you were dealing with somebody who was play acting at that time?\nA: No.\n[Counsel for defendant]: Objection.\nTHE COURT: Sustained. Do not lead the witness.\n[Counsel for the State]: Yes sir.\nDefendant discusses the alleged error in admitting the testimony concerning the credibility of the victim as indicated by the statements that the victim\u2019s behavior was \u201cgenuine\u201d and that she was not \u201cplay acting.\u201d Once again, the alleged objection to the first question (which included the term \u201cgenuine\u201d) was not timely and the objection to the second question (with the term \u201cplay acting\u201d) did not address \u201cthe alleged error.\u201d In this instance, the Court believed that the objection was to the form instead of the substance of the question, that is, that counsel was leading the witness. No further objection was made by defendant after his objection was sustained.\nSince the objections were neither \u201ctimely\u201d nor did they \u201cclearly [present] the alleged error,\u201d G.S. \u00a7 15A-1446(a) and (b), defendant has waived his right to assert the alleged error on appeal.\nV: Cruel and unusual punishment.\nDefendant was convicted of first-degree rape, a violation of G.S. \u00a7 14-27.2, for which he received the maximum term. In his brief, defendant recognized the facial validity of the statutes; however, he alleged that the sentence constitutes cruel and unusual punishment as applied to him. In presenting his argument, defendant relies on Solem v. Helm, 463 U.S. 277 (1983). The North Carolina Supreme Court has already distinguished Solera from cases in which the offense is first-degree rape. In Solera, the defendant \u201creceived a sentence of life imprisonment without parole after pleading guilty to uttering a \u2018no account\u2019 check for $100, for which the maximum punishment was ordinarily five years imprisonment.\u201d State v. Peek, 313 N.C. 266, 276, 328 S.E.2d 249, 256 (1985). In the instant case, on the other hand, the defendant was convicted of first-degree rape which the North Carolina General Assembly has chosen to punish as a Class B felony with a mandatory life sentence. G.S. \u00a7 14-27.2(b). We hold that the sentence imposed does not constitute cruel and unusual punishment.\nNo error.\nJudges WELLS and COZORT concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Elisha H. Bunting, Jr., for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DWIGHT WRIGHT MAYSE\nNo. 8929SC768\n(Filed 20 March 1990)\n1. Rape and Allied Offenses \u00a7 5 (NCI3d)\u2014 first degree rape\u2014 evidence of deadly weapon \u2014 sufficient\nThe trial court did not err by denying defendant\u2019s motion to dismiss a charge of first degree rape where the victim testified that there was a hunting knife lying on a table which defendant picked up while he threatened to kill her and that defendant referred to a .25 handgun, so that the victim reasonably believed that defendant had an object which was a dangerous weapon that he would use.\nAm Jur 2d, Rape \u00a7\u00a7 63, 67.\n2. Rape and Allied Offenses \u00a7 5 (NCI3d)\u2014 first degree rape\u2014 evidence of serious mental injury \u2014 sufficient\nThere was sufficient evidence that defendant in a first degree rape prosecution inflicted serious injury on the victim where the victim testified that she had given up her course of study at a technical college because of her inability to concentrate, she had moved from the city where she lived because people at work treated her as if she had some kind of disease, she felt degraded and ashamed, and she felt that people were looking at her and whispering; she had received professional help from the mental health center and from a shelter for abused women; she had never had any problems of this sort before the alleged crimes; and the mental injury continued up to the time of trial seven months after the incidents.\nAm Jur 2d, Rape \u00a7\u00a7 63, 67.\n3. Rape and Allied Offenses \u00a7 6 (NCI3d)\u2014 first degree rape\u2014 instructions on deadly weapon \u2014 no error\nThe trial court in a first degree rape prosecution did not err in its instructions to the jury on the deadly weapon element where the evidence and the verdict sheet support the conclusion that the jury understood that it must unanimously decide that the defendant employed an object which the victim reasonably believed was a dangerous weapon.\nAm Jur 2d, Rape \u00a7 108.\n4. Kidnapping \u00a7 1.2 (NCI3d) \u2014 first degree kidnapping \u2014 victim not released\nThe trial court properly denied defendant\u2019s motion to dismiss the first degree kidnapping charge where defendant abducted the victim in her own automobile, took her car keys from the ignition and never returned them to the victim, and the victim escaped by her own wits rather than by being released by defendant in that she used a duplicate set of keys in her pocketbook of which defendant had no knowledge.\nAm Jur 2d, Abduction and Kidnapping \u00a7\u00a7 11, 12, 13, 15, 16, 18.\n5. Criminal Law \u00a7 162 (NCI3d)\u2014 first degree rape \u2014 doctor\u2019s testimony to victim\u2019s credibility \u2014objections not timely\nThe trial court in a first degree rape prosecution did not err by allowing a medical doctor to testify as to the victim\u2019s credibility where defendant\u2019s objections were neither timely nor did they clearly present the alleged error. N.C.G.S. \u00a7 15A-1446(a) and (b).\nAm Jur 2d, Rape \u00a7\u00a7 65, 68, 68.5.\n6. Constitutional Law \u00a7 78 (NCI3d)\u2014 rape \u2014life sentence \u2014not cruel and unusual\nA sentence of life imprisonment for first degree rape was not cruel and unusual punishment.\nAm Jur 2d, Rape \u00a7\u00a7 112, 113.\nAppeal by defendant from a judgment entered 21 February 1989 by Judge Claude Sitton in RUTHERFORD County Superior Court. Heard in the Court of Appeals 13 February 1990.\nThe State\u2019s evidence tended to show that, as the victim was leaving a convenience store about 2:00 a.m., the defendant came out of the store, jumped into the passenger seat of her car, stuck \u201csomething in [her] ribs,\u201d grabbed her around the neck and told her to drive. The victim testified that, at an isolated area on a dirt road, defendant struck her in the jaw with his fist, threatened to use \u201ca 25\u201d to kill her, and sexually assaulted her. He then drove her car to another location and sexually assaulted her again. At a third location, victim was again raped and forced to go in a trailer where defendant picked up a 12-inch hunting knife twice and threatened to kill her. Victim testified that she escaped when she found additional car keys in her pocketbook and drove away from the trailer. Defendant was arrested at his aunt\u2019s house where victim\u2019s original set of keys were found. Defendant testified at trial in his own behalf, stating that he and the victim had consensual sexual relations after taking cocaine.\nThe jury found the defendant guilty of first-degree rape and first-degree kidnapping. Defendant was sentenced to life imprisonment for first-degree rape and a consecutive forty years in prison for first-degree kidnapping. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Elisha H. Bunting, Jr., for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for the defendant-appellant." }, "file_name": "0559-01", "first_page_order": 587, "last_page_order": 595 }