283 S.E.2d 719 (N.C. 1981), 1, State v. Sturdivant

Docket Nº:1.
Citation:283 S.E.2d 719, 304 N.C. 293
Party Name:STATE of North Carolina v. Ardell STURDIVANT.
Case Date:November 03, 1981
Court:Supreme Court of North Carolina
 
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Page 719

283 S.E.2d 719 (N.C. 1981)

304 N.C. 293

STATE of North Carolina

v.

Ardell STURDIVANT.

No. 1.

Supreme Court of North Carolina.

November 3, 1981

Page 720

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       [304 N.C. 298] Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. W. A. Raney, Jr. and Associate Atty. Gen. G. Criston Windham, Raleigh, for the State.

       Asst. Public Defender Malcolm R. Hunter, Jr., Adam Stein, Appellate Defender, Raleigh, for the defendant.

       COPELAND, Justice.

       Defendant has abandoned assignments of error 1, 2, 5, 6 and 12 by failing to

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advance any argument to support them in his brief. Rule 28(a), North Carolina Rules of Appellate Procedure. He does, however, properly raise seven other assignments of error for our review. After carefully considering all of defendant's contentions, we conclude that the record reveals no prejudicial error requiring a new trial and, accordingly, affirm the trial court's due entry of judgment upon his convictions.

       We shall address the assignments of error relating to the legality of defendant's arrest first. Defendant argues that the trial court erroneously admitted evidence of his photograph and fingerprints because these exhibits were obtained pursuant to his unlawful arrest on 15 July 1980. Simply put, defendant contends that the rape warrant issued for his arrest on 12 July 1980 did not meet the requirements of G.S. 15A-304(d). Herein, defendant makes much ado about nothing.

       G.S. 15A-304(d) authorizes a judicial officer to issue an arrest warrant if he has sufficient information to make an independent determination that probable cause exists for believing a crime has been committed by the accused. Probable cause refers to the existence of a reasonable suspicion in the mind of a prudent person, considering the facts and circumstances presently known. State v. Bright, 301 N.C. 243, 255, 271 S.E.2d 368, 376 (1980); State v. Phillips, 300 N.C. 678, 684, 268 S.E.2d 452, 456 (1980). In the instant case, Captain J. R. Riley, of the Hoke County Sheriff's Department, submitted an affidavit to the magistrate, based upon Mrs. Harvey's statements to him, detailing the occurrence of the sexual assaults and describing the assailant. Captain Riley also testified in the affidavit that he had driven the victim around the alleged area of the incident and that she had pointed out defendant's house, the dirt road she had driven on and the tobacco barn where she had been raped. We hold that the magistrate was unquestionably[304 N.C. 299] presented with sufficient information on 12 July 1980 to form a rational belief that defendant had raped Mrs. Harvey several hours earlier and that the magistrate was thereby legitimately empowered to issue a warrant for defendant's arrest under G.S. 15A-304(d), supra. Defendant's contentions to the contrary are frivolous. Since defendant was arrested pursuant to a warrant based upon probable cause, evidence obtained from his person, after he was lawfully taken into custody, was constitutionally admissible. See State v. Allen, 301 N.C. 489, 272 S.E.2d 116 (1980); State v. Accor and Moore, 277 N.C. 65, 175 S.E.2d 583 (1970). Assignments of error three and four are, therefore, overruled.

       We shall now direct our attention to the assignments of error relative to defendant's conviction of first degree rape. Defendant maintains that there was insufficient evidence to convict him of first degree rape upon the theory alleged in the indictment that he "did employ a deadly weapon, to wit: a pocket knife" in the commission thereof. At the outset, we note that defendant was convicted of first degree rape pursuant to G.S. 14-27.2 (Cum.Supp.1979) which became effective 1 January 1980. See Law of May 29, 1979, ch. 682, § 14, 1979 Sess.Laws 729. In pertinent part, G.S. 14-27.2 provides that forcible, non-consensual vaginal intercourse constitutes first degree rape if the perpetrator "employs or displays a dangerous or deadly weapon." By its terms, the new rape statute no longer requires an express showing by the State that a deadly weapon was used in a particular manner to make out a case of the crime in the first degree. In contrast, the prior statute, G.S. 14-21(1)(b) (Cum.Supp.1977), obligated the State to show specifically that the weapon was used to overcome the victim's resistance or to procure her submission. See, e. g., State v. Hunter, 299 N.C. 29, 261 S.E.2d 189 (1980); State v. Brady, 299 N.C. 547, 264 S.E.2d 66 (1980); State v. Thompson, 290 N.C. 431, 226 S.E.2d 487 (1976). The current statute, however, simply necessitates a showing that a dangerous or deadly weapon was employed

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or displayed in the course of a rape period. 1

       [304 N.C. 300] Here, the indictment for first degree rape referred to defendant's employment of a deadly weapon to support the charge. Defendant contends that, although the prosecutrix testified that he took the knife out of his pocket and displayed it to her in the tobacco barn after the completion of the first act of sexual intercourse, her testimony did not tend to show that he employed the knife during any of the illicit sexual deeds. The following excerpt from the victim's testimony refutes any such conclusion:

       He made me lie down on the bench and that is the first time he had sexual intercourse with me against my will. Then he pulled me up and told me to take my clothes off.

       When I unzipped my dress it fell to the ground. I felt something under my feet and I picked it up, and it was a tobacco stick, and I came up and I hit him with it. Then he hit me back in the face. He hit me with his fist. He told me now I had done it, I had hurt him and he was going to kill me. He reached in his pocket and got out his knife and I grabbed his hand, the hand I had free and begged him not to kill me. He told me I had hurt him and I asked him what did he think he had done to me. He pushed me over to the quilt and I was sort of leaning over the bench. At that time he undid my bra and the strap was broken, and then he cut my slip off of me from behind.

       I picked up the slip and I wiped my face with it and there was blood all over it. He had intercourse with me repeatedly and I continued begging him to let me go.

       The plain meaning of the word "employ" is "to use in some process or effort" or "to make use of." The American Heritage Dictionary of the English Language 428 (1969); Webster's Third New International Dictionary 743 (1964). Viewing the foregoing statements of the victim in the light most favorable to the State, with the benefit of every reasonable inference arising therefrom, we hold that there was an adequate evidentiary basis for the jury to conclude that defendant had employed a deadly weapon by using the pocketknife in at least two ways: (1) to threaten the victim with death, whereby he effectively discouraged any further resistance to his demands, and (2) to remove an article of her underclothing, whereby he expedited the execution of additional [304 N.C. 301] sexual assaults. Such evidence clearly satisfied the requirements of G.S. 14-27.2(a)(1)(a). See note 1, supra.

       Defendant also argues, however, that the State did not demonstrate that his pocketknife was a deadly weapon. A deadly weapon is generally defined as any article, instrument or substance which is likely to produce death or great bodily harm. See State v. Cauley, 244 N.C. 701, 94 S.E.2d 915 (1956); State v. Perry, 226 N.C. 530, 39 S.E.2d 460 (1946). 2 Accord, Black's Law Dictionary 359 (5th ed. 1979); 79 Am.Jur.2d Weapons and Firearms § 1 (1975); 1 A.L.I. Model Penal Code and Commentaries § 210.0(4) (1980). The definition of a deadly weapon clearly encompasses a wide variety of knives. For instance, a hunting knife, a kitchen knife and a steak knife have been denominated deadly weapons per se. State v. Brady, 299 N.C. 547, 264 S.E.2d 66 (1980);

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State v. Lednum, 51 N.C.App. 387, 276 S.E.2d 920 (1981); State v. Parker, 7 N.C.App. 191, 171 S.E.2d 665 (1970). A pocketknife is also unquestionably capable of causing serious bodily injury or death. See generally 79 Am.Jur.2d Weapons and Firearms § 2 (1975); Annot., 100 A.L.R.3d 287 (1980); see also note 2, supra. In State v. Collins, the Court opined that a pocketknife, having a blade two and a half inches long, was a deadly weapon as a matter of law. 30 N.C. 407, 409, 412 (1848). Accord, State v. Roper, 39 N.C.App. 256, 257, 249 S.E.2d 870, 871 (1978) ("keen bladed pocketknife"). Nevertheless, the evidence in each case determines whether a certain kind of knife is properly characterized as a lethal device as a matter of law or whether its nature and manner of use merely raises a factual issue about its potential for producing death. See State v. Watkins, 200 N.C. 692, 158 S.E. 393 (1931); State v. West, 51 N.C. 505 (1859).

       In the instant case, the trial court submitted the issue concerning the "deadly" character of defendant's pocketknife to the [304 N.C. 302] jury. Defendant contends that the evidence was insufficient for the court to do so since the knife itself was not offered into evidence, and the victim failed to describe the length of the knife's blade. We disagree. The absence of such evidence was indeed a factor to be considered by the jury in its evaluation of the overall weight and worth of the State's case on this point. The omission was not, however, fatal as the State presented other evidence which permitted a rational trier of fact to conclude that the pocketknife was a deadly weapon. The victim's uncontroverted testimony revealed that, prior to the kidnapping and rape, defendant had used the pocketknife to open a can of oil. He later used this same knife to cut off the victim's slip. Defendant was a large man, approximately six...

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