State v. Torain, 284A85

• Decision Date: 05 March 1986
• Docket Number: No. 284A85,284A85
• Citation: 316 N.C. 111,340 S.E.2d 465
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Nathaniel Lee TORAIN.

Page 465

340 S.E.2d 465

316 N.C. 111

STATE of North Carolina v. Nathaniel Lee TORAIN.

No. 284A85.

Supreme Court of North Carolina.

March 5, 1986.

Lacy H. Thornburg, Atty. Gen. by Evelyn M. Coman, Asst. Atty. Gen., Raleigh, for State.

Malcolm Ray Hunter, Jr., Appellate Defender by Louis D. Bilionis, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

Defendant raises two issues for resolution by this Court. He first contends that he was deprived of his constitutional rights to due process and a fair trial by jury when the trial court, in its charge to the jury on the offense of first-degree rape, removed from the case an essential element of the crime--that the defendant employed or displayed a dangerous or deadly weapon. Second, defendant argues that it was error for the trial judge to allow the State to recall the victim, following the close of defendant's case, to testify that after hearing defendant's voice in court, she recognized it as being the voice of the man who attacked her eight months earlier.

I.

Defendant argues that, by instructing the jury that "a utility knife is a dangerous or deadly weapon," the trial judge erroneously created a mandatory presumption, removing a question of fact from the jury, and thereby relieving the State of its burden of proving an essential element of first-degree rape beyond a reasonable doubt.

Defendant admits that by his failure to object at trial to the contested instruction, he has waived his right to assign it as error on appeal. N.C.R.App.P. Rule 10(b)(2). However, defendant urges this Court to find that the trial judge committed "plain error" in charging that "a utility knife is a dangerous or deadly weapon." See State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).

The State's evidence tended to show that on 18 June 1984, after completing her shift at North Carolina Memorial Hospital, Kimberly Brock Ashworth drove to the Homestead Community Center in Orange County at approximately 1:00 p.m. to relax, read, and sunbathe. She set up a lounge chair by the swimming pool and spent several hours reading, listening to music, and napping. She had stopped by her boyfriend's mother's home on the way to the Community Center and had been planning her wedding; "I was tired of that, and I just wanted to relax; and that's what I did that day most of the day." At approximately 3:30 p.m., Ms. Ashworth got out of her lounge chair to rinse off and had just sat back down in the chair when she heard a creaking noise she recognized as one of the doors to the pool house which was behind her. While still seated, she stretched around in the chair to see who was coming through the door into the fenced pool area and saw a man running toward her, crouched down, and wearing a stocking over his face. She thought someone was playing a joke on her until he grabbed her from behind; she tried to get up before he reached her but could not do so because the chair was so low. The man was wearing a green, short-sleeved shirt with an orange patch on the pocket, and darker colored pants. Ms. Ashworth was unable to describe his facial features because the stocking mask obscured his face, but she testified that her assailant smelled of oil or kerosene and had rough hands.

The man grabbed Ms. Ashworth's face with one hand and put his other arm around her, pulling her out of the chair. He kept repeating, "I've got a knife. I'm going to kill you. Get up. Get up." The man put a knife in front of Ms. Ashworth's face "enough so I could see it." She recognized the type of knife the man was showing her and described it at trial as follows:

A. It was a, had a long gray handle on it. And it was a razor type edge. The knife was, it was something that you would use to cut carpet or sheetrock or something like that. My stepfather is a carpenter. So I've seen him use several things, several types of knives like that; and so I realized what it was; and I realized that it was very sharp.

Q. Was this, this knife that this man had, was it a rather plain article or was there anything distinctive about it or unusual about it?

A. It had a little switch where you could flick the blade in and out; and around that switch, it was worn pretty much where the thumb had been put there; and the blade was not a new blade. It had been used I could tell that. It had some articles on it, some types of marks on it that I could tell that it was not a knew [sic] blade?

Q. Now, how was he holding this knife relative to you?

A. He had it like this; and it was this close to my throat; but at first he put it up where I could see it; and then it was down closer to my throat.

Q. Do you have an opinion as to about how long the blade was on that knife?

A. It was a typical type razor blade, triangular blade. It was no more than an inch long.

Q. Now, did he at any time press this knife so that it was against your person?

A. Only after he got me in the woods, the, the handle of the blade was touching my neck; but the blade itself was not on my neck. It, I didn't feel that, the thin tip. It was the thicker metal of the handle moreso [sic] than the thinner blade, the thinner part of the blade.

After her attacker showed Ms. Ashworth the knife, he began pushing her toward the pool house door. He held her with her back against his body and his arm around her neck, pinning her head to his chest and nudging her along with his knee. The man pushed Ms. Ashworth through the pool house and out another door toward the circular driveway and then into the woods. When she tripped several times, the man threatened again to kill her. Once they got into the woods, the man pushed Ms. Ashworth down to her knees and, with one hand still over her face, put the knife against her back and cut the straps off her bathing suit, causing it to fall down. The man pulled off the bathing suit and tied it around Ms. Ashworth's face. He asked her if she could see him and she said "no." He grabbed her arms and tied them behind her back with "a stocking type binder." The man then engaged in vaginal intercourse with Ms. Ashworth. When he was finished, he told Ms. Ashworth to stay there for fifteen minutes and she volunteered to "count out loud" so that he could hear her and be assured that she would not try to see him. After two or three minutes, Ms. Ashworth was able to free her hands and pull the bathing suit off her face and down around her neck. She got her lab coat from her car and called her boyfriend's mother from the pool house phone.

When law enforcement officers arrived at the Community Center, Ms. Ashworth led them to the place where she'd been assaulted. She was then taken to the emergency room at North Carolina Memorial Hospital where medical personnel removed the bathing suit from around Ms. Ashworth's neck and the stocking from her right wrist. Dr. Arnold Barefoot collected evidence for the standard SBI rape evidence kit.

The State elicited the testimony of several SBI experts regarding results of their comparisons of hair, fiber, and body fluid samples collected from the crime scene and from the victim with known samples collected from the defendant and the utility knife identified by Ms. Ashworth as the weapon employed by her assailant.

The State offered the testimony of defendant's supervisor at D & S International and that of a co-worker to the effect that defendant had been at work on 18 June 1984 and had stayed until approximately 2:00 p.m. The supervisor, Mr. Boone, and co-worker, Bobby Loy, both testified that defendant's job at D & S was a dirty, oily, and greasy one and that D & S employees use a box cutter or carton cutter to open cardboard cartons and to cut yarn off textile beams being prepared for reshipment.

Mr. Loy testified that when he came to work on the morning of 19 June 1984, he found a carton cutter lying on a box outside the office. He returned the cutter to its usual place in Mr. Boone's desk drawer. Defendant had not yet reported to work when Mr. Loy arrived that morning.

Mr. Boone positively identified the carton cutter, previously identified by Ms. Ashworth as the one with which she had been assaulted, as the cutter he normally kept in his office drawer at D & S for use by his employees, including the defendant. The carton cutter was admitted into evidence.

Defendant offered evidence tending to show that he was not at or near the Homestead Community Center on the afternoon of 18 June 1984 and that he was not the perpetrator of the attack. Following defendant's testimony, the State was allowed to call Ms. Ashworth in rebuttal. She testified that she recognized defendant's voice as being that of the man who assaulted her.

Defendant was convicted of first-degree rape and acquitted of second-degree kidnapping.

The record before us contains no indication that any written request for specific jury instructions was submitted to the trial judge. In instructing the jury on the elements of first-degree rape, the trial judge charged that the fourth element the State must prove beyond a reasonable doubt is "that the defendant used or displayed a dangerous or deadly weapon. A utility knife is a dangerous or deadly weapon." The case was not submitted to the jury until the following day. Before the jury retired to begin its deliberations, the trial judge inquired of counsel, "Are there any specific requests for corrections or additions to the charge from the State or the defendant?" Defense counsel responded, "No sir. Your Honor."

In his brief and argument before this Court, defendant now contends that the instruction that "a utility knife is a dangerous or deadly weapon" amounted to a violation of defendant's constitutional rights to due process and a fair trial by jury in that, by charging, in effect, that a utility knife is a dangerous or deadly weapon as a matter of law, the trial judge impermissibly relieved the State of its burden of proving that element beyond a reasonable doubt. Defendant...