Volume 316 — North Carolina Reports

1. Criminal Law 89.1 — mother of rape victim — character evidence improperly admitted — no prejudice Though the trial court in a rape case erred in allowing the seven-year-old victim's mother to give opinion testimony vouching for the veracity of her daughter and to testify to specific acts by the victim as indicative of her character, defendant failed to show that there was a reasonable possibility that, had the evidence been excluded, a different result would have been reached at trial, and admission of the evidence was therefore not prejudicial, since the victim gave a detailed and accurate description of defendant, corroborated by her father; she gave clear and consistent testimony at trial; and defendant failed to impeach her credibility in any way.<page_number>Page 14</page_number> 2. Constitutional Law 76; Criminal Law 48.1 — evidence of defendant's post-arrest silence — prejudice cured by instruction The trial court's curative instruction was sufficient to cure the prejudicial effect of testimony by a detective that defendant requested a lawyer and asserted his right to silence after being arrested and informed of his constitutional rights, since the prosecutor was not attempting to capitalize on defendant's silence or his request for counsel when the detective made his statements but was instead merely attempting to elicit from the detective the facts and circumstances surrounding a tape-recorded interview the detective had had with the victim on the night of the assault; immediately after the statements concerning defendant's exercise of his constitutional rights, defendant's counsel objected and moved to strike; the trial court immediately sustained defendant's objection and instructed the jury to disregard the statements and not to consider them in their deliberations; the jurors indicated by raising their hands that they could follow the instruction; and the evidence of defendant's guilt was very strong. 3. Constitutional Law 34; Criminal Law 26.5 — conviction for first degree kidnapping and first degree rape — double jeopardy Defendant was placed in double jeopardy by being convicted of first degree kidnapping based on removal of the victim to facilitate a sexual assault as well as being convicted of first degree rape and first degree sexual offense. 4. Constitutional Law 34; Criminal Law 26.5 — same conduct violating two statutes — double jeopardy — amount of punishment — intent of legislature When a defendant is tried in a single trial for violations of two statutes which punish the same conduct, the amount of punishment allowable under the double jeopardy clause of the Federal Constitution and the law of the land clause of the N.C. Constitution is determined by the intent of the legislature; therefore, if the legislature has specifically authorized cumulative punishment for the same conduct under two statutes, the prosecutor may seek and the trial court may impose cumulative punishment under such statutes in a single trial, but if cumulative punishment is not so authorized, a defendant may be punished under only one statute.

1. Criminal Law 138.13 — court's comments on good time and gain time when setting sentence — no error The trial court did not improperly consider the effect of good time and gain time on the length of the sentence in imposing a sentence in excess of the presumptive term for obtaining property by false pretenses where a close reading of the judge's remarks reveals that they were not an expression of dissatisfaction with the length of time convicted criminals must serve in prison, but were a response to defense counsel's argument concerning the fact that defendant would be required to serve other sentences at the expiration of the false pretense sentence. Furthermore, the trial judge's comments were an accurate statement of the law. 2. Criminal Law 138.14 — proper sentencing consideration A trial judge may consider defendant's conduct while in prison between his initial incarceration and resentencing in setting the new term of imprisonment; good behavior may constitute a mitigating factor which would support a sentence less than that originally imposed, while bad behavior may be found as an aggravating factor to be utilized in determining whether to impose a sentence no greater than that originally imposed. Conduct while incarcerated prior to the original trial or sentencing may be considered as a nonstatutory mitigating or aggravating factor by the trial judge at the initial sentencing hearing. N.C.G.S. <cross_reference>15A-1335</cross_reference>, N.C.G.S. 15A-1340.4(a), N.C.G.S. 15A-1340.7(b).<page_number>Page 25</page_number> 3. Criminal Law 138.42 — prison behavior — mitigating factor on resentencing — evidence insufficient The trial court did not err when resentencing defendant for obtaining property by false pretenses by failing to consider as a nonstatutory mitigating factor defendant's good conduct in prison where the only evidence presented in support of the factor was defense counsel's statement that he had been informed that defendant had not incurred any infractions for violations of prison conduct rules.

Eminent Domain 7.1; Rules of Civil Procedure 1 — condemnation proceeding by private condemnor — Rules of Civil Procedure applicable N.C.G.S. <cross_reference>40A-12</cross_reference> and N.C.G.S. <cross_reference>1-393</cross_reference> give trial courts clear authority to apply the Rules of Civil Procedure in private condemnation proceedings instituted pursuant to N.C.G.S. Ch. 40A, at least to the extent that those rules do not directly conflict with procedures specifically mandated by Ch. 40A.

Parent and Child 2.2 — child's hands burned — defendant as sole care giver — intentionally inflicting injury on child — sufficiency of evidence In a prosecution of defendant for felonious child abuse the State produced ample evidence from which the jury could reasonably infer that defendant intentionally inflicted injury upon a child which proved to be serious, and the Court of Appeals erred in reversing defendant's conviction on the basis that the State had failed to produce sufficient evidence that defendant intentionally inflicted serious injury on the child, where the evidence tended to show that the uninjured two-year-old was left in defendant's sole custody; the child was unable to put her hands more than approximately two inches below the top of the tub in which defendant contended she accidentally received burns; the child suffered extensive first, second and third degree burns on her hands up<page_number>Page 169</page_number> to the wrists; the burns had clear lines of demarcation separating the burned tissue from healthy skin; there was no evidence of splash burns on any part of the child's body; there was evidence that her hands would have had to be in the water ten to fifteen seconds to cause the extensive burns she suffered; and there were circular bruises under the child's neck and on her right arm which would support a reasonable inference that they resulted from defendant's grasping her so that he could hold her hands under the hot water in the bathtub.

1. Criminal Law 162; Witnesses 1.2 — competency of witness — failure to object By failing to object to the court's implicit finding that a child was competent to testify, the defendant waived his right to assign this as error on appeal, N.C.G.S. <cross_reference>15A-1446</cross_reference>(d)(9) being applicable only where there was an improperly overruled objection to the competency of a witness. 2. Witnesses 1.2 — competency of six-year-old child to testify The trial court did not abuse its discretion in finding that a six-year-old child was competent to testify in a rape trial where the witness did, at certain points in her voir dire testimony, show an understanding of the difference between truth and falsehood and of the importance to tell the truth, notwithstanding some of the witness's answers during voir dire were ambiguous and vague and she was completely unable to answer some of the questions asked her. 3. Criminal Law 34.8 — intercourse with another child — competency to show common scheme or plan In a prosecution of defendant for the rape of his six-year-old stepdaughter, testimony that defendant had told the witness that he had engaged in sexual intercourse with his three-year-old daughter was admissible under N.C.G.S. <cross_reference>8C-1</cross_reference>. Rule 404(b) to show a common scheme or<page_number>Page 498</page_number> plan by defendant to take sexual advantage of the availability and susceptibility of his young daughters. Furthermore, such testimony was not unfairly prejudicial to defendant so as to require exclusion under Rule 403. 4. Criminal Law 85.3 — rape trial — sexual advances toward another — improper cross-examination In a prosecution of defendant for rape of his six-year-old stepdaughter, the prosecutor's cross-examination of defendant about sexual advances which he allegedly made toward his sister-in-law was improper under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 608(b) since extrinsic evidence of sexual misconduct is not probative of a witness's character for truthfulness or untruthfulness. However, such error was not prejudicial where the evidence against defendant was strong, the prosecutor had previously asked defendant without objection whether he had molested another sister-in-law, and there was no reasonable possibility that a different result would have been reached had the error not been committed. N.C.G.S. <cross_reference>15A-1443</cross_reference>(a).

1. Kidnapping 1.2 — removal to facilitate attempted rape — sufficiency of evidence The evidence was sufficient to support defendant's conviction for kidnapping to facilitate attempted second degree rape, although defendant made a statement to the victim alluding to cunnilingus and not vaginal intercourse, where it tended to show that defendant grabbed the victim by the throat, ordered her to drive her taxi to a secluded, deserted church parking lot at 2:00 a.m. and turn off her taxi's lights; defendant commanded the victim to pull her pants down to her knees and inquired about her underclothing; and while driving to another location,<page_number>Page 516</page_number> the victim escaped from defendant when she accelerated rapidly as if to ram the car ahead of her, defendant grabbed the steering wheel, and the taxi ran into a street sign and utility pole. 2. Kidnapping 1.3 — necessity for instruction on false imprisonment In a prosecution for kidnapping to facilitate attempted second degree rape, the trial court erred in refusing to instruct on the lesser-included offense of false imprisonment where a statement by defendant to the victim alluded to cunnilingus and not vaginal intercourse, and the jury could have inferred from defendant's statements and acts that he did not intend to rape the victim but intended only to commit some sexual offense short of attempted rape.

Rules of Civil Procedure 23 — class action — de minimis damages — refusal to certify as class action In a class action against a cable television company based on its failure to provide ESPN television programming during its broadcast of ACC basketball games on ESPN only to subscribers of the "Season Ticket" package, the trial court did not exceed its authority when it established what the legal measure of damages would be if plaintiff prevailed upon the claim alleged and then refused to certify a class action because damages recoverable by any one member of the proposed class would be de minimis. N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 23.