State v. Cox

269 S.E.2d 297, 48 N.C. App. 470, 1980 N.C. App. LEXIS 3254
CourtCourt of Appeals of North Carolina
DecidedSeptember 2, 1980
DocketNo. 801SC227
StatusPublished
Cited by2 cases

This text of 269 S.E.2d 297 (State v. Cox) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cox, 269 S.E.2d 297, 48 N.C. App. 470, 1980 N.C. App. LEXIS 3254 (N.C. Ct. App. 1980).

Opinion

ERWIN, Judge.

Defendants make several assignments of error common to each defendant. We find no error in the trial as to defendant Cox; however, we are compelled to award a new trial to defendants Covington and Godfrey on the kidnapping charges for the reasons that follow.

Witness Dorothy Newby testified:

“In my capacity as resident director I have had an occasion to become acquainted with the young lady by the name of Angela Pettiford. I did have an occasion from time to time to see Ms. Pettiford at or about the campus during the last school year in 1978-1979.
Q. And I ask you whether or not you had an opportunity and occasion to form some opinion about the character and reputation of Angela Pettiford?
Objection.
Overruled.
Q. You can answer the question. Did you form some opinion?
A. Yes.
Q. And was that opinion based upon the information there on the campus community, or your contact with her on campus?
A. My contact with her on campus.
Q. And what is your opinion as to the character and reputation of Angela Pettiford?
A. My opinion is that she is a very nice young lady, and has a very good character.”

On cross-examination, she testified:

[476]*476“Q. Who have you heard discuss her reputation?
A. I haven’t heard anyone discuss her reputation.
Mr. Rosser: Move to strike her testimony.
Court: I didn’t hear your question.
Mr. Rosser: I asked her who had she heard discuss the reputation of Angela Pettiford, and she said she had heard no one discuss it. And I move to strike the testimony as to her character, and reputation.
Court: I am Denying your Motion.”
Witness Shirley Barnes testified:
“I have particular concern with Bias Hall, the freshman dormitory at Elizabeth City State. I have been employed at Elizabeth City State for five years. At Bias Hall for two years. I have had an opportunity to become personally acquainted with Angela Pettiford during the school year 1978-1979. To my knowledge she was a resident of Bias Hall. I would see her everyday or two possibly, depending on how my schedule was. From my personal observations in and about the campus community I did form an opinion satisfactory to myself as to the character and reputation of Angela Pettiford. As to what my opinion as to her character and reputation is, she is a very nice young lady.”
“Q. Have you heard anyone discuss her character and reputation prior to today?
A. No.
Mr. Rosser: Move to strike.
Court: Denied.
Exception No. 2”

[477]*477Defendants contend that the trial court should have allowed his motions to strike the evidence admitted on direct examinations, and in failing to do so, the court committed prejudicial error. We do not agree'.

Each witness stated that she had formed an opinion as to the character and reputation of the prosecutrix; thereafter, each stated her opinion. This procedure was the correct one. State v. Stegmann, 286 N.C. 638, 213 S.E. 2d 262 (1975), modified, 428 U.S. 902, 49 L.Ed. 2d 1205, 96 S.Ct. 3203 (1976); see Johnson v. Massengill, 280 N.C. 376, 186 S.E. 2d 168 (1972). The evidence was admitted without objection. The character or reputation of the prosecutrix was not a real issue in the case. The answers given by the witnesses on cross-examination explained the foundation upon which the witnesses’ testimony was based. This aided the jury in determining what weight, if any, should be given to the evidence in question. We do not find prejudicial error in the court’s denying defendants’ motion to strike the evidence given on direct examination. Defendants must show that the error was material, prejudicial, and amounted to a denial of some substantial right. State v. Jones, 278 N.C. 259, 179 S.E. 2d 433 (1971); State v. Turner, 268 N.C. 225, 150 S.E. 2d 406 (1966); 4 Strong’s N.C. Index 3d, Criminal Law, § 169.1, p. 866. Defendants have not shown prejudice, and this assignment of error is overruled.

Defendants contend that the trial court erred in allowing a corroborating witness to invade the province of the jury and draw his own conclusion as to whether the in-court testimony of the prosecutrix varied from the statement he had taken from her. Detective O.L. Wise was asked by Mr. Watts:

“Q. And at any point of time in her statement to you did she say anything different from what she testified to here?
Objection.
Overruled.
Exception No. 3
A. No, sir.”

[478]*478A prior, consistent statement of the witness to strengthen her credibility is admissible. “And it makes no difference, in this State at least, whether such evidence appears in a verbal or written statement, nor whether verified or not.” Bowman v. Blankenship, 165 N.C. 519, 522, 81 S.E. 746, 747 (1914). See 1 Stansbury, N.C. Evidence (Brandis rev. 1973), § 51. Defendants did not request an instruction restricting the use of the evidence which corroborates the testimony of the witness. This admission of the evidence and the failure of the trial judge to give a limiting instruction is not error. State v. Sauls, 291 N.C. 253, 230 S.E. 2d 390 (1976), cert. denied, 431 U.S. 916, 53 L.Ed. 2d 226, 97 S.Ct. 2178 (1977); State v. Bryant, 282 N.C. 92, 191 S.E. 2d 745 (1972); State v. Lee, 248 N.C. 327, 103 S.E. 2d 295 (1958). This assignment of error is overruled.

Defendants contend that the trial judge erred in denying their motions to dismiss at the close of all the evidence. This assignment of error is wholly without merit. The evidence presented by the State and taken in the light most favorable to it was sufficient to submit to the jury each offense charged and to support a verdict thereon. The evidence clearly shows that the defendants acted in concert from the very beginning. Defendant Cox gave instructions to defendants Covington and Godfrey, who followed them, and Cox drove his car transporting the prosecutrix against her will. All defendants were present at the scene and appeared to act in a common plan or purpose to commit the crime of kidnapping. See State v. Joyner, 297 N.C. 349, 255 S.E. 2d 390 (1979). The prosecutrix testified without reservation that each defendant raped her. Such evidence was sufficient to overrule defendants’ motion and submit the case to the jury on the charges of rape against each defendant.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Carter
386 S.E.2d 620 (Court of Appeals of North Carolina, 1989)
State v. Bolt
344 S.E.2d 51 (Court of Appeals of North Carolina, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
269 S.E.2d 297, 48 N.C. App. 470, 1980 N.C. App. LEXIS 3254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cox-ncctapp-1980.