Volume 74 — North Carolina Court of Appeals Reports

1. Divorce and Alimony 24.4 — enforcement of child support order — contempt — required findings In a civil contempt proceeding to enforce a child support order, the court was not required to make the findings necessary for determining the amount of child support but was required to find only that the delinquent obligor had the means to comply with the order and that she willfully refused to do so. 2. Divorce and Alimony 24.4 — contempt for violation of child support order — willful failure to comply — implicit findings Although the court's order holding plaintiff in contempt for failure to make child support payments contained no explicit finding that plaintiff willfully failed to comply, the order was sufficient where it was implicit in the court's findings that plaintiff both possessed the means to comply and willfully refused to do so. 3. Divorce and Alimony 24.4 — contempt for violation of child support order — sufficient evidence The evidence was sufficient to support the court's order finding plaintiff in contempt for violation of a child support order where the court had found probable cause to believe plaintiff was in contempt based on the verified allegations in defendant's motion, and plaintiff failed to carry her burden of showing why she should not be found in contempt. G.S. <cross_reference>5A-23</cross_reference>.<page_number>Page 83</page_number> 4. Divorce and Alimony 27 — enforcement of child support order — award of attorney fees — sufficiency of findings The trial court's findings were sufficient to support its award of attorney fees to defendant in an action to enforce a child support order where there was no evidence and no allegation of bad faith on the part of defendant; it can be inferred from the facts found that plaintiff refused to provide adequate support under the circumstances existing at the time this action to enforce the support order was instituted; and defendant's allegation in his verified motion that he lacked sufficient means to pay the legal costs of the action was not contradicted. Explicit findings are not required in an order awarding attorney fees where there is no conflicting evidence and the facts are obvious.

1. Criminal Law 148.5 — probation revocation — evidence sufficient In an action to revoke defendant's probation, the evidence clearly supported the court's finding that defendant failed to report to the probation officer at reasonable times and in a reasonable manner as directed by the probation officer, and that was sufficient to support the court's order revoking probation. 2. Criminal Law 134.4 — Committed Youthful Offender designation — applies to women The trial judge erred by refusing to consider whether a defendant whose probation had been revoked should have been committed as a Committed Youthful Offender because he didn't think the youthful offender program applied to women. Defendant met the criteria of G.S. 148-49.14 in that she was less than twenty-one when convicted and less than twenty-five when her probation was revoked.

1. Rape and Allied Offenses 5 — second-degree rape — sufficiency of evidence Defendant's motions to dismiss charges of second-degree rape were properly denied where the State presented evidence that tended to show that defendant told the victim to go home with him when they would be alone in the house, picked her up and carried her into the children's bedroom against her will while she was fighting him, held her so tightly he left a large bruise on her upper arm, took off her clothes, had sexual intercourse with her, dragged her into her bedroom and had sexual intercourse a second time, and warned her not to tell anybody. G.S. <cross_reference>14-27.3</cross_reference>. 2. Criminal Law 181 — second-degree rape — motion for appropriate relief based on contradictions in evidence Defendant's motion for appropriate relief to set aside a verdict of second-degree rape because of inconsistencies and contradictions in the evidence was properly denied. Contradictions and inconsistencies in the evidence are matters for the jury, and there was clearly sufficient evidence to warrant the submission of the case to the jury G.S. <cross_reference>15A-1414</cross_reference>(b)(2).<page_number>Page 179</page_number> 3. Criminal Law 138 — second-degree rape — aggravating factors — victim mentally infirm — defendant abused position of trust Where defendant was convicted of second-degree rape, the trial court properly found as aggravating factors that the victim was mentally infirm and that defendant took advantage of a position of trust or confidence to commit the offense where it was uncontradicted that the victim was a nineteen-year-old mentally retarded girl who was a client at the Davidson County Sheltered Workshop for the Retarded, who had been asked by defendant's wife to stay with them to help with housework, and who testified that she considered defendant a parent or authority figure. 4. Criminal Law 131.1 — second-degree rape — motion for new trial for newly discovered evidence denied In a prosecution for second-degree rape in which defendant testified that the victim made advances to him, there was no error in the denial of defendant's motion for a new trial for newly discovered evidence where a man who had testified at trial that he had gone to a movie with the victim testified that after the movie they had gone to defendant's house where the victim had unbuttoned three buttons of her blouse and asked him to touch various parts of her body. The testimony was not relevant under G.S. <cross_reference>8-58.6</cross_reference> (b)(3) because it did not closely resemble defendant's version of the alleged encounter; furthermore, defendant did not show due diligence in that he had the opportunity to question the witness at trial. G.S. <cross_reference>15A-1415</cross_reference> (b)(6). 5. Criminal Law 89.4 — cross-examination concerning testimony of probable cause hearing — properly limited In a prosecution for second-degree rape, the court did not abuse its discretion by sustaining the State's objection to defendant reading from the probable cause hearing transcript after the victim started to cry during cross-examination. The transcript was admitted into evidence at the close of defendant's evidence with a proper limiting instruction. 6. Rape and Allied Offences 6 — instructions that general reputation of victim should be considered on consent not given — no error In a prosecution for second-degree rape, the court did not err by not instructing the jury that the general reputation and character of the prosecutrix should be considered regarding her consent to sexual intercourse with defendant where defendant did not request such an instruction at trial and the evidence which defendant contended was character evidence was ambiguous. 7. Criminal Law 89.1 — second-degree rape — victim's reputation for truth and veracity — questions limited to general reputation In a prosecution for second-degree rape, the court did not err by not permitting defendant to ask about the victim's reputation for truth and veracity. The established rule in North Carolina permits the impeaching character witness to be asked only whether the witness knows the general reputation and character of the party and what that general reputation or character is. The witness may amplify or qualify the answer to the latter question with regard to specific virtues or vices but counsel offering the witness may not suggest that the witness do so.<page_number>Page 180</page_number> 8. Criminal Law 86.2 — error to exclude defendant's testimony of prior convictions — not sufficient prejudice for a new trial In a prosecution for second-degree rape, the court erred by not permitting defendant to testify on direct examination about his prior convictions, but that error alone was not enough to warrant reversal.