{ "id": 8570394, "name": "STATE OF NORTH CAROLINA v. KENNETH DARRELL HAMMONDS", "name_abbreviation": "State v. Hammonds", "decision_date": "1981-01-06", "docket_number": "No. 123", "first_page": "713", "last_page": "717", "citations": [ { "type": "official", "cite": "301 N.C. 713" } ], "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": "194 S.E.2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557615 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0033-01" ] }, { "cite": "61 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1950, "pin_cites": [ { "page": "108" } ], "opinion_index": 0 }, { "cite": "232 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601837 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/232/0374-01" ] }, { "cite": "250 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565526 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0236-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "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": "81 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] }, { "cite": "154 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "270 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567155 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0270-01" ] } ], "analysis": { "cardinality": 526, "char_count": 10912, "ocr_confidence": 0.786, "pagerank": { "raw": 1.4373904624343681e-07, "percentile": 0.6524801252891578 }, "sha256": "83dfdd1469d557ec82457cecd7b07a07424cdcc7138bff766422b522a1f6101d", "simhash": "1:0ff7a734752e84dc", "word_count": 1848 }, "last_updated": "2023-07-14T21:17:56.373032+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice BROCK did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH DARRELL HAMMONDS" ], "opinions": [ { "text": "HUSKINS, Justice.\nBy his first assignment of error defendant contends the trial court erroneously allowed the prosecutrix to identify the defendant by body odor and voice. We find no error here. The truth is that the prosecutrix never identified defendant. She simply testified that she knew four men were involved because her assailants had four different body odors and she heard four different voices. Defendant admitted he was present with three other men. No voir dire was required before Isom\u2019s testimony was admitted because it was not identification evidence. See 1 Stansbury\u2019s North Carolina Evidence \u00a7 57 (Brandis rev. 1973). The evidence was clearly competent and admissible.\nDefendant next assigns error to the refusal of the trial court to strike an answer of a police officer involved in the investigation. Defendant claims that under State v. Aycoth, 270 N.C. 270, 154 S.E.2d 59 (1967), the officer should not have been allowed to testify that he left the room where the defendant was being interrogated \u201cin reference to the rape of Ashford.\u201d Defendant\u2019s reliance on Aycoth is misplaced because Aycoth merely reaffirmed the established rule that \u201cin a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent or separate offense.\u201d Id. at 272, 154 S.E.2d at 60, citing State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954).\nIn the instant case, the officer\u2019s comment was a passing reference to one of the four men who allegedly raped Louise Isom. Even if irrelevant, the statement was clearly not prejudicial. This assignment is therefore without merit.\nBy his third assignment of error defendant challenges the failure of the trial court to dismiss on the grounds that the State had not proved there was penetration of the prosecuting witness by defendant.\nUpon a motion for nonsuit the trial court is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). The evidence is to be viewed in the light most favorable to the State. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978).\nApplying those principles to this case, we find no merit in defendant\u2019s contention. The argument that there was insufficient evidence of penetration because the prosecutrix did not specifically say she was penetrated has previously been answered by this Court in State v. Bowman, 232 N.C. 374, 61 S.E.2d 107 (1950):\nThe law [does] not require the complaining witness to use any particular form of words in stating defendant had carnal knowledge of her .... Her testimony that the defendant had \u201cintercourse\u201d with her or \u201craped\u201d her under the circumstances delineated by her was sufficient to warrant the jury in finding that there was penetration of her private parts by the phallus of the defendant.\nId. at 376, 61 S.E.2d at 108. The testimony of the prosecutrix that she was forced to have sexual intercourse against her will was clearly sufficient to withstand motion for nonsuit.\nThere was also sufficient evidence that defendant was the perpetrator of the offense charged. He admitted he was one of the four men in a car who picked up the prosecutrix. She testified she was taken by the four men to a motel and raped by each of them and eventually driven home, again by the same four men. Defendant admitted being present the entire time but claimed he fell asleep and denied having sexual relations with Isom or seeing anyone else do so. This evidence raises more than a mere suspicion of guilt. It strongly supports the verdict and clearly repels the motion for nonsuit. The motion to dismiss was properly denied.\nIn his final three assignments, defendant asserts error by the trial court in its instructions to the jury. Discussing defendant\u2019s complaints seriatim, we first find no merit in his argument that the trial court erred in instructing that defendant\u2019s admission that he was in the car could be considered by the jury as an admission of a fact relating to the crime charged. That instruction, argues the defendant, could have led the jury to believe mere presence of the defendant was sufficient for conviction and that defendant had therefore admitted the crime.\nWe find the argument unpersuasive because, in his instruction to the jury, the judge made clear what the jury must find in reaching its verdict. In relevant part, the judge instructed:\nA defendant would be aided and abetted by another person if that person or persons was present at the time the rape was committed and knowingly advised, encouraged, instigated or aided him to commit that crime.\nA clear reading of that charge disposes of defendant\u2019s further argument that the trial judge failed to explicitly instruct that presence alone was not sufficient to convict.\nFinally, although defendant assigns error to the trial court\u2019s summary of the evidence, defendant in his own brief \u201cconcedes that one may read ... the charge ... and conclude that the court fairly summarized the evidence.\u201d Our own examination convinces us that the trial court did properly recapitulate the evidence in the charge to the jury. Moreover, if the court did not do so, the burden was on the defendant to make a proper objection. Failure of the defendant to do so waives objections to the summary of the evidence and statement of contentions. State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973). This assignment is overruled.\nA close examination of the record in this case reveals that the defendant received a fair trial, free of prejudicial error. The judgments appealed from must therefore be upheld.\nNo error.\nJustice BROCK did not participate in the consideration or decision of this case.", "type": "majority", "author": "HUSKINS, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Joan H. Byers, Assistant Attorney General, for the State.", "Robert L. Huffman for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH DARRELL HAMMONDS\nNo. 123\n(Filed 6 January 1981)\n1. Criminal Law \u00a7 68\u2014 identification of assailant by body odor and voice\nThere was no merit to defendant\u2019s contention in a rape case that the trial court erroneously allowed the prosecutrix to identify the defendant by body odor and voice since prosecutrix never identified defendant but simply testified that she knew four men were involved because her assailants had four different body odors and she heard four different voices; defendant admitted he was present with three other men; and no voir dire was required before the prosecutrix\u2019s testimony was admitted because it was not identification evidence.\n2. Criminal Law \u00a7 34\u2014 testimony not reference to another crime by defendant\nThere was no merit to defendant\u2019s contention that an officer involved in the investigation of the crime charged should not have been allowed to testify that he left the room where defendant was being interrogated \u201cin reference to the rape of [an accomplice],\u201d since the officer\u2019s comment was not evidence tending to show that defendant had committed another offense but was simply a passing reference to one of the four men who allegedly raped the victim, and the statement was clearly not prejudicial.\n3. Rape \u00a7 5\u2014 penetration of victim \u2014 sufficiency of evidence\nThe trial court in a rape case did not err in failing to dismiss on the grounds th'at the State had not proved that there was penetration of the prosecuting witness by defendant since the testimony of the prosecutrix that she was forced to have intercourse against her will was clearly sufficient to withstand motion for nonsuit, and there was also sufficient evidence that defendant was the perpetrator of the offense charged where he admitted he was one of the four men in a car who abducted the prosecutrix; she testified that she was taken by the four men to a motel and raped by each of them and eventually driven home by the same four men; and defendant admitted being present the entire time but claimed he fell asleep and denied having sexual relations with the prosecutrix or seeing anyone else do so.\n4. Rape \u00a7 6\u2014 defendant\u2019s presence at crime scene \u2014 instructions proper\nIn a prosecution for first degree rape where the trial court instructed that defendant\u2019s admission that he was in the car with the rape victim could be considered by the jury as an admission of a fact relating to the crime charged, there was no merit to defendant\u2019s contention that such instruction could have led the jury to believe that his mere presence was sufficientfor conviction and that he had therefore committed the crime, since the trial court\u2019s instructions made clear what the jury must find in order to convict defendant.\nJustice Brock did not participate in the consideration or decision of this case.\nON appeal as a matter of right from judgments of Collier, J., entered at the 16 June 1980 Criminal Session, UNION Superior Court, imposing a life sentence for conviction of first degree rape. Defendant was also sentenced to 25-35 years for kidnapping for the purpose of facilitating the first degree rape. Motion to bypass the Court of Appeals for review of that conviction was allowed on 9 September 1980.\nAt trial, evidence offered by the State tends to show that Louise Williams Isom was walking to work at about 5:55 a.m. on 10 March 1980 when she was accosted by four males. One male put a gun to her neck, told her to get in the back seat of the car and not to look at anyone. The prosecutrix was then blindfolded.\nAfter driving for a period of time, the car stopped at a motel where the four men secured a room. The prosecuting witness was taken to the room and forced to have sexual intercourse with each of the four men against her will. She was left alone in the room, without a blindfold, for thirty or forty minutes but was afraid to call for help.\nThe four men subsequently took Isom to a friend\u2019s house to pick up her daughter and then drove her and her small daughter to Isom\u2019s home where one of the four men, not the defendant, forced her to have sex again. Isom\u2019s boyfriend came by to see her, left and called the police. The police arrived and arrested Rayford Ashford, Jr., whom the prosecutrix identified as one of the four men involved.\nThe State introduced, over objection, a statement by defendant to police officers at the time of his arrest wherein defendant admitted being in the car with three other men, one of whom was Ashford, and admitted that they stopped and picked up Louise Isom. Defendant denied knowing anything about the alleged kidnapping and rapes, claiming he fell asleep in the car and also at the motel and that he did not have sex with the prosecutrix nor see anyone else have sex with her.\nTestimony of expert witnesses offered by the State tends to show that lipstick stains on the blindfold allegedly used on the prosecutrix matched the lipstick worn by the prosecutrix.\nWhere relevant, other facts will be discussed in the body of the opinion.\nRufus L. Edmisten, Attorney General, by Joan H. Byers, Assistant Attorney General, for the State.\nRobert L. Huffman for defendant appellant." }, "file_name": "0713-01", "first_page_order": 739, "last_page_order": 743 }