State v. Ashford

272 S.E.2d 126 (1980)

STATE of North Carolina v. Rayford ASHFORD, Jr.

No. 75.

Supreme Court of North Carolina.

December 2, 1980.

*127 Rufus L. Edmisten, Atty. Gen. by Myron C. Banks, Sp. Deputy Atty. Gen., Raleigh, for the State.

Bobby H. Griffin, Monroe, for defendant-appellant.

BRANCH, Chief Justice.

Defendant first assigns as error the failure of the trial court to dismiss the charge of rape on the ground that the State never presented evidence of penetration. Defendant contends that the prosecuting witness never testified that he penetrated her, and that there was no other evidence of penetration, such as the presence of semen.

The State points out that Ms. Isom testified that defendant had "intercourse" and "sex" with her and that these terms are sufficient as shorthand statements of fact on the issue of penetration. We agree. As this Court stated in State v. Bowman, 232 N.C. 374, 376, 61 S.E.2d 107, 108 (1950),

The law did not require the complaining witness to use any particular form of words in stating that the defendant had carnal knowledge of her. State v. Hodges, 61 N.C. 231. Her testimony that the defendant had "intercourse" with her and "raped" her under the circumstances delineated by her was sufficient to warrant the jury in finding that there was penetration of her private parts by the phallus of the defendant.

The prosecutrix's testimony here that defendant had "sex" and "intercourse" with her likewise was sufficient to support a finding by the jury that there was penetration. This assignment is overruled.

Defendant's second and final assignment of error relates to the trial court's recapitulation of the evidence. He contends that the judge stated material facts which were not in evidence, in violation of the rule of G.S. 15A-1232 that the judge "must not express an opinion whether a fact has been proved." The challenged portion of the charge reads as follows:

... that all 4 of the individuals engaged in intercourse with her after one had undressed her and a gun was held to her neck; that she was thereafter taken by Rayford Ashford, Jr., to a place to pick up her child who was at a baby sitter's after they located her child. [Emphasis added.]

Defendant argues that the underlined portion was a misstatement of the evidence since Ms. Isom testified as follows:

[W]e went on to my girlfriend's house and got my little girl, and one of them came in the house with me to make sure I came out.... It was not Ashford.

Defendant concedes the general rule that misstatements in summarizing the evidence must be brought to the court's immediate attention, State v. Barbour, 295 N.C. 66, 243 S.E.2d 380 (1978), and that he made no objection to the court's charge here. However, the statement of a material fact not in evidence constitutes reversible error, whether or not called to the court's attention. Id.

It is clear from the evidence that the prosecutrix was taken by all four men, including defendant, to a friend's house to pick up her daughter. One of the men, not defendant, escorted Ms. Isom into the house. The trial judge stated only that "she was thereafter taken by Rayford Ashford, Jr., to a place to pick up her child...." We do not think the trial judge stated a fact not in evidence.

Furthermore, even if the fact were not in evidence, we fail to see how it amounted to a misstatement of material fact. Whether or not defendant escorted Ms. Isom into the house to pick up her child adds little, if anything, inferentially to the question of defendant's guilt. This assignment is without merit.

*128 A review of the record reveals no prejudicial error warranting a new trial.

NO ERROR.

BROCK, J., did not participate in the consideration or decision of this case.