{ "id": 8558855, "name": "STATE OF NORTH CAROLINA v. DAVID FELTON", "name_abbreviation": "State v. Felton", "decision_date": "1973-05-09", "docket_number": "No. 52", "first_page": "368", "last_page": "373", "citations": [ { "type": "official", "cite": "283 N.C. 368" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "180 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561152 ], "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0561-01" ] }, { "cite": "187 S.E. 2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "281 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573795 ], "opinion_index": 0, "case_paths": [ "/nc/281/0081-01" ] }, { "cite": "160 S.E. 2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "273 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575701 ], "opinion_index": 0, "case_paths": [ "/nc/273/0509-01" ] }, { "cite": "144 S.E. 2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576565 ], "opinion_index": 0, "case_paths": [ "/nc/265/0626-01" ] }, { "cite": "165 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557779 ], "opinion_index": 0, "case_paths": [ "/nc/275/0061-01" ] }, { "cite": "186 S.E. 2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573320 ], "opinion_index": 0, "case_paths": [ "/nc/280/0682-01" ] }, { "cite": "36 S.E. 2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612948 ], "opinion_index": 0, "case_paths": [ "/nc/226/0078-01" ] }, { "cite": "53 S.E. 2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629973 ], "opinion_index": 0, "case_paths": [ "/nc/230/0345-01" ] }, { "cite": "167 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558608 ], "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0288-01" ] }, { "cite": "168 S.E. 2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558852 ], "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0411-01" ] }, { "cite": "53 S.E. 2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630568 ], "opinion_index": 0, "case_paths": [ "/nc/230/0470-01" ] }, { "cite": "81 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] }, { "cite": "171 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560350 ], "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0123-01" ] }, { "cite": "64 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683304 ], "opinion_index": 0, "case_paths": [ "/nc/64/0601-01" ] }, { "cite": "187 S.E. 2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573153 ], "opinion_index": 0, "case_paths": [ "/nc/280/0642-01" ] }, { "cite": "174 S.E. 2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563176 ], "opinion_index": 0, "case_paths": [ "/nc/276/0641-01" ] }, { "cite": "180 S.E. 2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560496 ], "opinion_index": 0, "case_paths": [ "/nc/278/0351-01" ] }, { "cite": "180 S.E. 2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561269 ], "opinion_index": 0, "case_paths": [ "/nc/278/0649-01" ] }, { "cite": "180 S.E. 2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561403 ], "opinion_index": 0, "case_paths": [ "/nc/278/0682-01" ] } ], "analysis": { "cardinality": 590, "char_count": 12833, "ocr_confidence": 0.519, "pagerank": { "raw": 5.432957251770237e-07, "percentile": 0.9449502654401859 }, "sha256": "ac02c1dd964ba0d30cc622241e0e0631d15d6ec7883575f8eb53c9f1d3bab10d", "simhash": "1:2741b122f77c4c7a", "word_count": 2276 }, "last_updated": "2023-07-14T22:42:12.699050+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. DAVID FELTON" ], "opinions": [ { "text": "LAKE, Justice.\nThe defendant\u2019s statement of his case on appeal includes seven assignments of error. Assignments 1 and 7 are not brought forward into his brief and no argument or citation of authorities was made in support of either. These assignments are, therefore, deemed abandoned. Rule 28, Rules of Practice in the Supreme Court of North Carolina; State v. Boyd, 278 N.C. 682, 180 S.E. 2d 794; State v. Greene, 278 N.C. 649, 180 S.E. 2d 789; State v. Dawson, 278 N.C. 351, 180 S.E. 2d 140; State v. Benton, 276 N.C. 641, 174 S.E. 2d 793.\nIn any event, these two assignments have no merit. Assignment No. 1 was that the trial court denied the defendant\u2019s motion, prior to the commencement of trial, to sequester the witnesses. This motion is directed to the discretion of the trial court and his ruling thereon is not reviewable on appeal except in cases of abuse of discretion, of which there is no indication in the present record. State v. Cook, 280 N.C. 642, 187 S.E. 2d 104; State v. Manuel, 64 N.C. 601; Stansbury, North Carolina Evidence, 2d Ed., \u00a7 20. Assignment No. 7 is directed to the statement by the trial judge, at the time of imposing sentence, which, of course, was after the verdict was rendered and accepted, that he \u201cwith a great deal of pleasure\u201d sentenced the defendant to imprisonment for life. While this remark was unwise, it is not ground for a new trial and the defendant was well advised to abandon this assignment of error. The question for the appellate court, upon an appeal from a judgment sentencing a defendant to prison, is not whether the trial judge approves or disapproves of the law declaring certain conduct a criminal offense and prescribing the punishment therefor, but whether he has followed it and correctly applied it and other applicable rules of law in the trial of the defendant.\nAssignment of Error No. 2 is directed to the court\u2019s sustaining an objection by the State to the defendant\u2019s question to the arresting officer on cross-examination, \u201cDid you explain to her [the prosecuting witness] what could happen to her if she did not press charges?\u201d The record does not show what the answer of the witness would have been had he been permitted to answer. We have repeatedly held that the sustaining of an objection to a question directed to a witness will not be held prejudicial when the record does not show what the answer would have been had the objection not been sustained. State v. Kirby, 276 N.C. 123, 133, 171 S.E. 2d 416, and cases there cited.\nThe' defendant\u2019s Assignment of Error No. 3 is to the overruling of the defendant\u2019s objection to the testimony of the prosecuting witness concerning the statement by the defendant to her, while he was in the process of overcoming her resistance, to the effect that it did not matter if he killed her since he had tried to rape another woman that night and she was going to tell on him. It is well settled in this State that in the trial of a defendant upon a criminal charge, he not having testified as a witness, evidence that he has committed another distinct, independent, separate offense is not admissible when such evi-denee has no relevancy to the matter on trial other than to show the bad character of the defendant or his disposition to commit an offense of the nature of the one for which he is presently on trial. State v. McClain, 240 N.C. 171, 81 S.E. 2d 364; Stansbury, North Carolina Evidence, 2d Ed., \u00a7 91. If, however, the evidence in question tends to prove any fact relevant to the charge on which the defendant is presently on trial, it is not inadmissible merely because it also shows him to have been guilty of another, independent crime. State v. McClain, supra, at page 177; Stansbury, North Carolina Evidence, 2d Ed., \u00a7 92. As was said by Chief Justice Stacy, speaking for the Court in State v. Fowler, 230 N.C. 470, 53 S.E. 2d 853, \u201cThe touchstone is logical relevancy as distinguished from certain distraction.\u201d The evidence here in question was clearly relevant on the material question of whether the prosecuting witness\u2019 will to resist was overcome by fear due to the threat of the defendant to kill her if she did not submit. In this ruling of the trial court there was no error.\nThe defendant\u2019s Assignment of Error No. 4 is to the admission in evidence over his objection of Exhibits 3, 4, 5 and 6 introduced by the State. The record shows that Exhibits 5 and 6 were articles of clothing worn by the prosecuting witness at the time of the occurrence. Exhibits 3 and 4 are not described in the record but it appears likely that they also were articles of clothing worn by her at that time. Torn and soiled clothing of the victim, such as Exhibits 5 and 6, are clearly admissible in evidence in a case of this nature, being relevant to the question of the use of force to overcome the resistance of the victim of the assault. \u201cSo far as the North Carolina decisions go, any object which has a relevant connection with the case is admissible in evidence, in both civil and criminal trials. * * * In cases of homicide or other crimes against the person, clothing worn by the defendant or by the victim is admissible if its appearance throws any light on the circumstances of the crime * * * . \u201d Stansbury, North Carolina Evidence, 2d Ed., \u00a7 118; State v. Rogers, 275 N.C. 411, 430, 168 S.E. 2d 345; State v. Atkinson, 275 N.C. 288, 310, 167 S.E. 2d 241; State v. Speller, 230 N.C. 345, 53 S.E. 2d 294; State v. Petry, 226 N.C. 78, 36 S.E. 2d 653.\nThe defendant\u2019s Assignments of Error 5 and 6 are to the denial of his motion for judgment of nonsuit and to the denial of his motion to set aside the verdict as being contrary to the greater weight of the evidence. In support of each of these assignments of error, it is the defendant\u2019s contention that' the evidence for the State was not sufficient to establish the, use of force by the defendant and the absence of consent by the prosecuting witness. It is perfectly apparent that the evidence for the State shows sexual penetration of the prosecuting witness by the defendant and is ample to support the finding' that this was by force and without the consent of'the prosecuting witness. The evidence is sufficient to support a finding that she resisted and that such limitation upon her resistance as there may have been was due to her fear for her life as the result of the defendant\u2019s choking her and threatening to kill her. Thus, the evidence is ample to support a finding of each element of the crime of rape. State v. Flippin, 280 N.C. 682, 186 S.E. 2d 917; State v. Primes, 275 N.C. 61, 165 S.E. 2d 225; State v. Carter, 265 N.C. 626, 144 S.E. 2d 826. It is elementary that upon a motion for judgment of nonsuit in a criminal action the Court must consider the evidence offered by the State as true and give the State the benefit of every reasonable inference to be drawn therefrom. State v. Goines, 273 N.C. 509, 160 S.E. 2d 469. The credibility of the evidence and its sufficiency to remove any reasonable doubt of guilt are for the consideration of the jury. State v. Jenerett, 281 N.C. 81, 187 S.E. 2d 735; State v. Vestal, 278 N.C. 561, 567, 180 S.E. 2d 755; State v. Primes, supra. The evidence in the record before us is ample to sustain the verdict.\nNo error.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Attorney General Morgan and Assistant Attorney General Wood for the State.", "J erry B. Clayton for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID FELTON\nNo. 52\n(Filed 9 May 1973)\n1. Criminal Law \u00a7 166\u2014 assignments of error not in brief \u2014 abandonment\nAssignments of error not brought forward in defendant\u2019s brief or argued on appeal are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court.\n2. Criminal Law \u00a7 101\u2014 sequestration of witnesses \u2014 denial \u2014 no abuse of discretion\nThe trial court\u2019s denial of defendant\u2019s motion, made prior to the commencement of trial, to sequester the witnesses is not reviewable on appeal except in case of abuse of discretion, of which there is no indication in the present record.\n3. Criminal Law \u00a7 134\u2014 sentence \u2014 expression of opinion by judge \u2014 no error\nStatement by the trial judge at the time of imposing sentence that he \u201cwith a great deal of pleasure\u201d sentenced the defendant to , life imprisonment, though unwise, was not ground for a new trial, since the verdict had already been rendered and accepted at the time of the statement.\n4. Criminal Law \u00a7 169\u2014 exclusion of testimony \u2014 no prejudicial error shown\nWhere the record does not show what the witness\u2019s answer would have been, defendant in a rape case has shown no prejudice in the court\u2019s sustaining an objection by the State to defendant\u2019s question to the arresting officer on cross-examination as to whether he explained to the prosecuting witness what could happen to her if she did not press charges.\n5. Criminal Law \u00a7 34\u2014 defendant\u2019s guilt of another offense \u2014 admissibility\nTestimony by the victim in a rape case that defendant told her it did not matter if he killed her since he had tried to rape another woman that nig-ht and she was going to tell on him was properly admitted since the testimony was clearly relevant on the material question of whether the prosecuting witness\u2019s will to resist was overcome by fear due to the threat of the defendant to kill her if she did not submit.\n6. Criminal Law \u00a7 42; Rape \u00a7 4\u2014 rape case \u2014 victim\u2019s clothing \u2014 admissibility\nArticles of clothing worn by the victim in a rape case were admissible in evidence as they were relevant to the question of defendant\u2019s use of force to overcome the resistance of the victim of the assault.\n7. Rape \u00a7 5\u2014 sufficiency of evidence\nEvidence in a rape case was sufficient to withstand defendant\u2019s motion for nonsuit where it tended to show sexual penetration of the prosecuting witness by the defendant by force and without the consent of the prosecuting witness and where it tended to show that the victim resisted and such limitation upon her resistance as there may have been was due to her fear for her life as the result of the defendant\u2019s choking her and threatening to kill her.\nAppeal by defendant from Bailey, Jat the 18 September 1972 Session of Durham.\nUpon an indictment, proper in form, the defendant was tried on the charge of rape, the date of the offense being 18 June 1972. He was found guilty and was sentenced to imprisonment for life. The following is a summary of the evidence for the State, the defendant offering no evidence:\nAt approximately 7 a.m. on 18 June 1972, two Duke University campus security officers were patrolling the East Campus of the university on foot. Near the library they observed the defendant, a Negro male, on the ground and in the act of sexual intercourse with a white female, the prosecuting witness. The officers approached to within three or four feet before the defendant observed them, desisted and stood up. The officers observed the penetration of the prosecuting witness by the defendant \"and observed nothing in her actions indicating that this was with her consent. She told the officers that the defendant had seized her, pushed her to the ground and threatened to kill her if she did not submit to his wishes. Her white nurse\u2019s uniform was soiled and disarranged and a button, missing from it, was found at the scene. She \u00e1ppeared to the officers to be \u201cin a daze.\u201d She told the officers that the defendant had raped her and she wanted to press charges against him. The officers arrested the defendant, and both, in the courtroom, identified him as the man they had so observed and arrested.\nThe prosecuting witness testified that at the time of this occurrence she was 19 years of age, a sophomore -at Duke University, and working, during the summer, as a nurse\u2019s aide at the nearby Hillcrest Nursing Home on the night shift.. On the morning in question, she. left the nursing home at 6:30 a.m. and was walking through the university campus to her residence. The defendant, whom she identified in the courtroom but whom she had never seen or heard of before this occurrence, approached her, said, \u201cGood night,\u201d and then grabbed her and knocked her down, stating in vulgar terms that he wanted to have intercourse with her and if she did not do what he wanted he would kill her. She resisted by repeatedly trying to push him away. Each time she did so, he placed his hands around her throat and choked her. As he did so, he said that it did not matter Whether he killed her or not because he had already tried to rape another woman that night who was \u201cgoing to tell on him.\u201d She identified the clothing she was wearing when this occurred and some, or all, of the articles were introduced in evidence. The defendant had intercourse with her without her consent, actually penetrating her. She did not cry out or scream because there was no one in the vicinity and she thought that if she screamed it would increase her danger.\nAttorney General Morgan and Assistant Attorney General Wood for the State.\nJ erry B. Clayton for defendant." }, "file_name": "0368-01", "first_page_order": 396, "last_page_order": 401 }