{ "id": 4731744, "name": "STATE OF NORTH CAROLINA v. PRATHER STRICKLAND", "name_abbreviation": "State v. Strickland", "decision_date": "1987-01-06", "docket_number": "No. 36A86", "first_page": "653", "last_page": "663", "citations": [ { "type": "official", "cite": "318 N.C. 653" } ], "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": "346 S.E. 2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0 }, { "cite": "317 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4780363, 4777906, 4775193, 4775389, 4772575 ], "year": 1986, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0340-02", "/nc/317/0340-05", "/nc/317/0340-01", "/nc/317/0340-03", "/nc/317/0340-04" ] }, { "cite": "339 S.E. 2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 635", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522605 ], "year": 1986, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0635-01" ] }, { "cite": "80 L.Ed. 2d 674", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "693" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "324 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "248" }, { "page": "249" }, { "page": "249" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "561-62" }, { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "337 S.E. 2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695567, 4694192, 4687347, 4697398, 4688025 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0670-05", "/nc/314/0670-02", "/nc/314/0670-01", "/nc/314/0670-03", "/nc/314/0670-04" ] }, { "cite": "335 S.E. 2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "521" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524061 ], "year": 1985, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0540-01" ] }, { "cite": "308 S.E. 2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761304 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0587-01" ] }, { "cite": "307 S.E. 2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766681 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0421-01" ] }, { "cite": "349 S.E. 2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "581-82" } ], "opinion_index": 0 }, { "cite": "318 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737583 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0487-01" ] }, { "cite": "300 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "enunciating plain error rule" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "parenthetical": "enunciating plain error rule" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "321 S.E. 2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "plain error for trial court to have submitted to the jury a theory of kidnapping not alleged in the indictment" } ], "opinion_index": 0 }, { "cite": "312 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753111 ], "year": 1984, "pin_cites": [ { "parenthetical": "plain error for trial court to have submitted to the jury a theory of kidnapping not alleged in the indictment" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0237-01" ] }, { "cite": "95 Yale L.J. 1087", "category": "journals:journal", "reporter": "Yale L.J.", "year": 1986, "pin_cites": [ { "page": "1105-1112", "parenthetical": "discussing force as an element of rape and criticizing the analysis applied in Alston" } ], "opinion_index": 0 }, { "cite": "165 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557779 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0061-01" ] }, { "cite": "211 S.E. 2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566835 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0377-01" ] }, { "cite": "49 L.Ed. 2d 1206", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 902", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180680, 6180844, 6180492, 6180302, 6181071, 6180146 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0902-04", "/us/428/0902-05", "/us/428/0902-03", "/us/428/0902-02", "/us/428/0902-06", "/us/428/0902-01" ] }, { "cite": "212 S.E. 2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561014 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0060-01" ] }, { "cite": "231 S.E. 2d 637", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558898 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0656-01" ] }, { "cite": "312 S.E. 2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "475-76" } ], "opinion_index": 0 }, { "cite": "310 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403286 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0399-01" ] }, { "cite": "313 S.E. 2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "year": 1984, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "265 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "237 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564024 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0321-01" ] }, { "cite": "312 S.E. 2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "310 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403286 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/310/0399-01" ] } ], "analysis": { "cardinality": 871, "char_count": 20176, "ocr_confidence": 0.79, "pagerank": { "raw": 2.281896897660671e-07, "percentile": 0.7852809179222418 }, "sha256": "2c5e6f86080674d1d42eec3d27d7649f26a30290cedad1533e5c1bd04c497b59", "simhash": "1:2963916264262d5a", "word_count": 3417 }, "last_updated": "2023-07-14T18:03:08.889643+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. PRATHER STRICKLAND" ], "opinions": [ { "text": "MARTIN, Justice.\nUpon indictments proper in form defendant was convicted of burglary in the first degree and rape in the second degree. The state\u2019s evidence shows that defendant and the victim were neighbors, that they had known each other for about nine years, and that prior to the rape they had never had sexual intercourse with one another. On the evening of 23 April 1985, instead of going to a party with her daughter, the prosecuting witness stayed at home because she was sick. Sometime after dark defendant came to the victim\u2019s house, stood outside of the locked screen door, and asked her if he could come inside. The victim, who had been getting ready to go to bed, told defendant to leave her alone, that she was sick, and that she didn\u2019t want him there. She got up and tried to close the wooden door which adjoined the screen door, but defendant \u201cbroke the latch off the screen door and pushed the wooden door open. Then he grabbed me from behind and put his-hand over my mouth . . . .\u201d Defendant dragged the victim into her daughter\u2019s bedroom and forced her to submit to vaginal intercourse against her will.\nAt trial defendant did not testify although he presented witnesses whose testimony tended to support a defense based on alibi.\nDefendant\u2019s first assignment of error is that the trial court erroneously denied his motion to dismiss at the close of all the evidence. As Chief Justice Branch stated for the Court in State v. Brown:\nIt is well settled that upon a motion to dismiss in a criminal action, all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. Any contradictions or discrepancies in the evidence are for resolution by the jury. State v. Witherspoon, 293 N.C. 321, 237 S.E. 2d 822 (1977). The trial judge must decide whether there is substantial evidence of each element of the offense charged. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 78, 265 S.E. 2d 164, 169 (1980).\n310 N.C. 563, 566, 313 S.E. 2d 585, 587 (1984).\nIn the instant case defendant contends that the state failed to present substantial evidence of force to sustain his conviction of rape in the second degree under N.C.G.S. \u00a7 14-27.3(a)(1), which provides:\n\u00a7 14-27.3. Second-degree rape.\n(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:\n(1) By force and against the will of the other person;\nDefendant argues that the state\u2019s evidence showed nothing more than that the victim had a mere \u201cgeneral fear\u201d of the defendant, which, under State v. Alston, 310 N.C. 399, 312 S.E. 2d 470 (1984), would be insufficient to establish that the defendant used force within the meaning of N.C.G.S. \u00a7 14-27.3(a)(l). We find no merit in this argument.\nThe force necessary to sustain a conviction of rape under N.C.G.S. \u00a7 14-27.3(a)(l) need not be actual physical force, but may be constructive force such as fear, fright, or coercion. E.g., State v. Yancey, 291 N.C. 656, 231 S.E. 2d 637 (1977); State v. Armstrong, 287 N.C. 60, 212 S.E. 2d 894 (1975), vacated in part, 428 U.S. 902, 49 L.Ed. 2d 1206 (1976); State v. Hines, 286 N.C. 377, 211 S.E. 2d 201 (1975); State v. Primes, 275 N.C. 61, 165 S.E. 2d 225 (1969). In State v. Alston, 310 N.C. 399, 312 S.E. 2d 470, though holding that \u201c[ejvidence of physical resistance is not necessary to prove lack of consent in a rape case in this jurisdiction\u201d and that the victim\u2019s testimony \u201cprovided substantial evidence that the act of sexual intercourse was against her will,\u201d this Court stated that although the victim\u2019s\ngeneral fear of the defendant may have been justified by his conduct on prior occasions, absent evidence that the defendant used force or threats to overcome the will of the victim to resist the sexual intercourse alleged to have been rape, such general fear was not sufficient to show that the defendant used the force required to support a conviction of rape.\n310 N.C. at 408-09, 312 S.E. 2d at 475-76. This \u201cgeneral fear\u201d theory is applicable only to fact situations similar to those in Alston. But see generally Estrich, Rape, 95 Yale L.J. 1087, 1105-1112 (1986) (discussing force as an element of rape and criticizing the analysis applied in Alston). Defendant\u2019s reliance upon Alston is inappropriate.\nIn the instant case, not only had the victim and defendant had no prior sexual relationship, but the state submitted substantial evidence that defendant used both actual physical force and constructive force against the victim during the course of the offense. The victim testified that after defendant learned she was not feeling well, he refused to leave her premises, broke the latch off her screen door, forced his way into her home, and \u201cgrabbed [her] from behind and put his hand over [her] mouth.\u201d The victim also testified as follows:\nQ. And he pulled you into the bedroom?\nA. He pulled me into the bedroom by my arm.\nQ. Did you scream or holler?\nA. I couldn\u2019t, I was scared of what would happen.\nQ. How did you get on the bed?\nA. He pushed me on the bed.\nQ. Did you fight with him, at the time?\nA. I couldn\u2019t fight with him.\nQ. Did he have a hold of you at that time?\nA. Yes, sir.\nQ. What happened when he pushed you onto the bed?\nA. He pulled my panties off and had sex with me.\nQ. Did he have power over you the entire time?\nA. Yes, sir.\nThe investigating officer who interviewed the victim also testified that the victim stated to him the day after the rape that defendant had \u201cput his hand on her mouth and dragged her into the bedroom and had sex with her.\u201d\nWe hold that the evidence is sufficient to show that defendant used physical force as well as the victim\u2019s fear and fright to commit the crime. See, e.g., State v. Yancey, 291 N.C. 656, 231 S.E. 2d 637 (\u201cforce\u201d used when defendant put his hand over the victim\u2019s mouth, took off her pants, and had vaginal intercourse with her; victim testified that she was afraid for her life during the assault); State v. Armstrong, 287 N.C. 60, 212 S.E. 2d 894 (similar). Considering the evidence in the light most favorable to the state, it is clear that upon learning she was sick, ignoring her demand that he leave her alone, and breaking through a locked door to enter her home, defendant used force to make the victim submit to vaginal intercourse. We reject defendant\u2019s assignment of error.\nDefendant next assigns as error the trial judge\u2019s statement during his charge to the jury that \u201cif you find from the evidence beyond a reasonable doubt that on or about April 23, 1985, Prather Strickland opened a closed screen door and basically went into [the victim\u2019s home] without her consent, intending at that time to commit second degree rape, it would be your duty to return a verdict of guilty of felonious breaking or entering.\u201d Although during trial defendant did not object to this charge to the jury, and in fact answered \u201cno\u201d when asked by the court if there were \u201cany requests for correction to the charge,\u201d defendant now contends on appeal that the court\u2019s use of the word \u201cbasically\u201d in the portion of the charge just quoted amounted to plain error. See, e.g., State v. Brown, 312 N.C. 237, 321 S.E. 2d 856 (1984) (plain error for trial court to have submitted to the jury a theory of kidnapping not alleged in the indictment).\nDefendant correctly concedes that because of his failure to object to the court\u2019s charge during trial, he has waived his right to appellate review of this assignment of error. N.C.R. App. P. 10(b)(2). Only in those instances where upon a review of the entire record an alleged error is so fundamental, so basic, so prejudicial, so lacking in its elements that justice cannot have been done, and the alleged error amounts to a denial of a fundamental right of the accused or to a miscarriage of justice, will an assignment of error which defendant has already waived be considered by the appellate courts. See State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983) (enunciating plain error rule). Upon the record in this case, the charge by the trial court does not reveal error, much less plain error. Defendant\u2019s assignment of error is meritless.\nDefendant\u2019s third contention on appeal is that the trial court erred during sentencing in finding as a factor in aggravation that defendant had a prior conviction or convictions for criminal offenses punishable by more than sixty days\u2019 confinement. N.C.G.S. \u00a7 15A-1340.4(a)(l)(o) (1983). Defendant contends that the following testimony of Detective Oxendine constituted all of the evidence of this aggravating factor, and that this evidence was insufficient as a matter of law to support a finding under N.C.G.S. \u00a7 15A-1340.4(a)(l)(o):\nQ. Are you aware of the record the defendant has?\nA. I have seen a copy, yes.\nQ. Are you aware of the convictions he has for counter-fitting [sic]?\nA. Yes, sir.\nQ. I believe he received an active sentence on that?\nA. Yes, sir.\nQ. I believe he also has a conviction of armed robbery?\nA. Yes, sir.\nQ. Did he receive an active sentence on that?\nA. Yes, sir.\nQ. I believe he has other driving offenses, is that right?\nA. Yes, sir.\nMr. Townsend: That\u2019s all Judge.\nDefendant entered no objection to this testimony at trial. We find that this assignment of error is governed by State v. Carter, 318 N.C. 487, 349 S.E. 2d 580 (1986), in which we stated:\nIn his first assignment of error defendant contends that the trial judge improperly considered as an aggravating factor his prior conviction for delivery of a malt beverage to a minor. N.C.G.S. \u00a7 18B-302 (Cum. Supp. 1985). Evidence establishing the conviction consisted solely of the following testimony of Detective C. L. Hardy at the sentencing hearing:\nQ. Has the defendant, Barry Carter, a prior record of convictions?\nA. Yes.\nQ. What has he previously been convicted of?\nA. Delivering a malt beverage to a minor.\nQ. In what year was that conviction?\nA. I\u2019m not sure right off-hand. I believe it was 1980 or 1981.\nQ. Was that in Rowan County?\nA. Yes, sir.\nDefendant claims that this evidence was insufficient to support a finding of the aggravating factor. This contention is meritless.\nDefendant made no objection whatsoever to the introduction of the evidence, nor does his brief present any argument invoking the plain error rule with respect to the challenged testimony. N.C.G.S. \u00a7 15A-1340.4(a) provides that prior convictions may be proved by stipulation of the parties or by a copy of the court record, but it does not purport to limit the methods of proof to these alone. State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983). Recognizing that the statute\u2019s enumerated methods of proof are permissive rather than mandatory, this Court has held that a prior conviction may be proven by a law enforcement officer\u2019s testimony as to his personal knowledge of the conviction. See State v. Graham, 309 N.C. 587, 308 S.E. 2d 311 (1983). Thus, Detective Hardy\u2019s own recollections constituted acceptable evidence of defendant\u2019s conviction, sufficient to allow consideration of the aggravating factor.\nId. at 490-91, 349 S.E. 2d at 581-82. We reject defendant\u2019s assignment of error.\nFinally, defendant contends that he was denied effective assistance of counsel because at his sentencing hearing his attorney offered no evidence in mitigation, \u201cfailed to make any remarks at all . . . [and failed] to oppose the state\u2019s showing in aggravation.\u201d We begin by noting that the sentencing hearing was so brief that it required only two double-spaced typewritten pages of transcription. Secondly, defendant inaccurately contends that his attorney was entirely silent during the hearing, as he did object to the state\u2019s questioning of Detective Oxendine concerning a \u201csimilar offense\u201d in which defendant was involved. In addition, after the trial court announced defendant\u2019s sentence, defendant\u2019s attorney orally made a motion for appropriate relief and gave notice of appeal in open court.\nWe agree with the Court of Appeals that \u201csentencing is a critical stage of a criminal proceeding to which the right to effective assistance of counsel applies.\u201d State v. Davidson, 77 N.C. App. 540, 544, 335 S.E. 2d 518, 521, disc. rev. denied, 314 N.C. 670, 337 S.E. 2d 583 (1985). In State v. Braswell, 312 N.C. 553, 561-62, 324 S.E. 2d 241, 248 (1985), this Court held that:\nWhen a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel\u2019s conduct fell below an objective standard of reasonableness. Strickland v. Washington, [466] U.S. [668], 80 L.Ed. 2d 674, 693 (1984). In order to meet this burden defendant must satisfy a two part test.\nFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s error was so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (Emphasis added.)\nId. at [687], 80 L.Ed. 2d at 693.\nThis Court went on to state that \u201cif a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel\u2019s alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel\u2019s performance was actually deficient.\u201d 312 N.C. at 563, 324 S.E. 2d at 249.\nAs suggested earlier, defendant\u2019s attorney did not err in failing to argue that Detective Oxendine\u2019s testimony was insufficient to support a finding in aggravation under N.C.G.S. \u00a7 15A-1340.4(a) (l)(o). Nor, contrary to what defendant asserts in his brief to this Court, was defendant\u2019s attorney utterly silent during the sentencing hearing. Trial counsel affirmatively acted to protect defendant\u2019s rights twice during the brief hearing. We also reject defendant\u2019s argument that silence is tantamount to a negative comment by counsel. In addition, defendant has not brought forward any evidence of factors in mitigation that he contends should have been presented during the sentencing hearing. His arguments that during the sentencing hearing trial counsel could have highlighted the \u201cpositive\u201d aspects of defendant\u2019s offense and urged the trial judge to impose presumptive sentences concurrently do not convince us that there exists a reasonable probability that had such remarks been made different sentences would have been imposed. State v. Braswell, 312 N.C. at 563, 324 S.E. 2d at 249. The record does not indicate that trial counsel\u2019s minimal remarks were other than part of his litigation strategy during the sentencing phase of trial. We find no prejudice to defendant under these facts and thus find no merit in this assignment of error. See generally State v. Taylor, 79 N.C. App. 635, 339 S.E. 2d 859, disc. rev. denied, 317 N.C. 340, 346 S.E. 2d 146 (1986) (and cases cited therein).\nFor reasons set forth above, we find\nNo error.", "type": "majority", "author": "MARTIN, Justice." }, { "text": "Justice Webb\ndissenting.\nI dissent. I would concur if the majority were willing to overrule State v. Alston, 310 N.C. 399, 312 S.E. 2d 470 (1984) but if Alston is precedent I do not believe the defendant may be convicted of rape in this case. In Alston the evidence showed that on previous occasions the defendant had beaten the prosecuting witness and that she was afraid of him. On the occasion in question he forced the victim to accompany him by twisting her arm and threatening to \u201cfix her face.\u201d This Court held there was not sufficient evidence of force' to submit a charge of rape to the jury. This Court said, \u201cthere was no substantial evidence that threats or force by the defendant on June 15 were sufficiently related to sexual conduct to cause Brown (the prosecuting victim) to believe that she had to submit to sexual intercourse with him or suffer harm. Although Brown\u2019s general fear of the defendant may have been justified by his conduct on prior occasions, absent evidence that the defendant used force or threats to overcome the will of the victim to resist the sexual intercourse alleged to have been rape, such general fear was not sufficient to show that the defendant used the force required to support a conviction of rape.\u201d\nThe prosecuting victim in Alston, as the prosecuting victim in this case, did not physically resist the defendant. In neither case did the defendant use more force than was necessary to have intercourse. In neither case was there a specific threat by the defendant to harm the victim if she resisted. On this evidence Alston says there is not enough evidence to submit rape to the jury. I believe Alston was decided incorrectly and should be overruled. If it is not to be overruled, however, I believe we are bound to reverse the rape conviction in this case.\nI note that the majority opinion contains the following statement. \u201cThis \u2018general fear\u2019 theory is applicable only to fact situations similar to those in Alston.\u201d If the majority means by this that Alston on its facts has no precedential value I might concur. There are other interpretations however, and I therefore dissent.", "type": "dissent", "author": "Justice Webb" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Thomas H. Davis, Jr., Assistant Attorney General, for the state.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Geoffrey C. Mangum, Assistant Appellate Defender, for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PRATHER STRICKLAND\nNo. 36A86\n(Filed 6 January 1987)\n1. Rape and Allied Offenses \u00a7 5\u2014 physical force in addition to fear \u2014 sufficient evidence of rape\nThe State\u2019s evidence was sufficient to show that defendant used physical force as well as the victim\u2019s fear and fright to have vaginal intercourse with the victim so as to support defendant\u2019s conviction of second degree rape under N.C.G.S. \u00a7 14-27.3(a)(l) where it tended to show that, after defendant learned the victim was not feeling well, he broke the latch off her screen door, forced his way into her home, grabbed her from behind and put his hand over her mouth, pulled her into a bedroom by her arm, pushed her onto the bed, and had sexual intercourse with her without her consent.\n2. Burglary and Unlawful Breakings \u00a7 6\u2014 instructions \u2014use of word \u201cbasically\u201d\nThe trial court did not err in instructing the jury that it should return a verdict of guilty of felonious breaking or entering if it found beyond a reasonable doubt that defendant opened a closed screen door and \u201cbasically\u201d went into the victim\u2019s home without her consent and with the intent to commit second degree rape.\n3. Criminal Law \u00a7 138.28\u2014 prior convictions \u2014 proof by detective\u2019s recollections\nThe trial court could properly find as a factor in aggravation that defendant had prior convictions punishable by more than sixty days\u2019 confinement based upon a detective\u2019s recollections of those convictions.\n4. Constitutional Law \u00a7 48\u2014 sentencing \u2014 right to effective assistance of counsel\nSentencing is a critical stage of a criminal proceeding to which the right to effective assistance of counsel applies.\n5. Constitutional Law \u00a7 48\u2014 sentencing \u2014 effective assistance of counsel not denied\nDefendant was not denied the effective assistance of counsel at his sentencing hearing where an objection to a detective\u2019s testimony concerning defendant\u2019s prior convictions would have been ineffective; trial counsel acted affirmatively to protect defendant\u2019s rights twice during the brief hearing by objecting to testimony and making a motion for appropriate relief; defendant has not brought forward any evidence of factors in mitigation that he contends should have been presented; and the record does not indicate that trial counsel\u2019s minimal remarks were other than part of his litigation strategy during the sentencing phase of the trial.\nJustice Webb dissenting.\nAPPEAL by defendant from a judgment of life imprisonment by Johnson, J., filed at the 12 August 1985 session of Superior Court, ROBESON County. Heard in the Supreme Court 8 December 1986.\nLacy H. Thornburg, Attorney General, by Thomas H. Davis, Jr., Assistant Attorney General, for the state.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Geoffrey C. Mangum, Assistant Appellate Defender, for the defendant." }, "file_name": "0653-01", "first_page_order": 677, "last_page_order": 687 }