*1 OF COURT Stаte v. Lester that pa- testimony probabilities on statistical their cians based will suffer seizures dura mater penetration tients Both doc- with closed head trauma. than patients more frequently Robinson, tors, probabilities. reliеd on statistical Dr. especially Love, discloses, however, opin- Dr. also based his The record that are to this findings relating plaintiff specific on numerous ion comparisons. statistical on mere not based evi- medical conflicting because of the argue Defendants based on statistical this case must be of dence the determination part We with that agree this assertion. reject We probabilities. statement in dissent Clay’s reasoned Charles Commissioner should be in this case that “the decision Full Commission medical upon ‘medical probabilities’ not on general based . . .” case. specific in this evidence was in- conflicting, evidence albeit competent,
We hold that issue of causation on the and defendants plaintiff troduced sup- are findings disability. The Industrial Commission’s plaintiffs v. Dowdy on appeal, and are conclusive by that evidence ported Mills, the Commission’s findings supрort supra. Fieldcrest Co., conclusions, The decision Furniture Perry supra. v. legal hereby must be and the Industrial Commission Affirmed. concur.
Judges Arnold Hill LESTER MATTHEW DOUGLAS v. NORTH CAROLINA STATE OF No. 8317SC1324 1984) (Filed 16 October of force 5— evidence insufficient Rape Allied Offenses raped his forcibly to show that insufficient The evidence frequently had show that tended to the evidence daughter where divorce, girl friend his had beaten to their his wife beaten children, that defendant son, gun his pointed at that defendant and his cоnfronted daughters when one of his wife and to kill had threatened activity daughter, and knowledge of his sexual his wife’s occasions two on the initially advances refused daughter had OF APPEALS COURT *2 here, question finally perceived gave get- in whеn she that defendant was ting angry. G.S. 14-27.3. Phillips Judge dissenting. Collier,
Appeal by from Judge. Judgments defendant en- Court, July County. 14 1983 in Heard Superior tered in the SURRY 20 1984. Appeals September Court in proper Defendant bills of indictment with two incest, 83CRS1469, of felonious Nоs. counts Case 83CRS645 and and two counts second Case 83CRS1243 and 83CRS1244. as guilty charged,
The defendant was found and a con- years judgment prison solidated a sentence of in the imposing with charging cases defendant felonious incest second 83CRS1244, and rape, Case Nos. 83CRS1469 and from a degree years a judgment prison sentence of imposing consolidated charging the cases the defendant felonious incest and second Case Nos. 83CRS645 degree consecutively, appealed.
to run Edmisten, L. Attorney General Assistant Attorney Rufus Lennon, W. the State. George General for Stem, Adam Assistant Appellate De- Appellate Defender defendant, L. Lorinzo Joyner, appellant. for fender HEDRICK, Judge. to the motions
Defendant error denial of his to dis- assigns him in the he was charges against cases wherein miss The evidence with to the rape. respect rape with second State, considered in the most fаvorable to the tends charges, light Defendant, his daughters, three his son following: to show 1981 and North Carolina in at the time offenses moved to Dobson, North Defendant and the lived in Carolina. question years several and defendant ago, mother were divorced children’s divorce, custody Prior to the the children. obtained Lester, in the children’s once striking beat Mrs. frequently her false were knocked out. with such force that teeth presence by and his son were also beaten Defendant’s friend pointed and on one occasion possessed gun Defendant ant. COURT OF Lester State v. activity at his has in sexual gun engaged children. Defendant all of his in the case was daughters. victim eleven years old when defendant first had relations her. sexual Lester, ex-wife, Mrs. When learned of this con- fronted defendant with her knowledge, placed his hand a Bible and never again. on swore to touch victim kill Mrs. if they then threatened Lеster the victim anyone of actions.
The incident described in No. 83CRS1244 occurred 25 November 1982. The victim testified on that date she and *3 family her went to the home of defendant’s mother for Thanksgiv- dinner, dinner. asked to ing go After her him to store, agreed daughter local and she Defendant and his did go. store, however, to the go not but returned instead to the trailer they which lived. Defendant then the victim remove her refused, initially She complied clothes. with a secоnd request she tell on face that he was getting angrier.” because “could his then removed clothes and had intercourse with the victim. No. described in occurred on incident the victim and defendant stopped
18 December 1982. On date De- way shopping. their home Christmas gravel on a road on or twice” if she “to do daughter asked his “once wanted fendant it,” not. He told her to take and she answered she did then When per- and the victim refused. she pants panties, off her however, “finally victim father was angry, ceived her in,” undressed, lay in the of the car in com- down seat gave directions. Defendant then had inter- with her father’s pliance act, defendant accused the viсtim Following with her. course boys,” angry, slapped her. “messing with other became 734, Ricks, Defendant, 34 239 S.E. App. citing State v. N.C. 363, (1977), denied, 242 S.E. 633 294 N.C. 2d rev. 2d 602 disc. (1978), sufficient any is devoid evidence the record argues with the vic- he sexual intercourse an inference that to raise force,” 14-27.3 Stat. Sec. N.C. Gen. “by required as tim authority no rape. Citing a conviction of second giving facts and circumstances elaborating without conclusion, cavalierly State dismisses to its fallacious rise statement: following contentions with “[T]he defendant’s OF APPEALS COURT many is so and stems from so different overwhelming evidence sources, that the State is this issue was even raised on surprised appeal.” clearly from the distinguishable
State v. Riсks is on its facts 399, Alston, v. 312 S.E. 2d but we find State N.C. (1984), party, controlling not cited either to be on the issue that defendant had sexual inter- of whether there was evidence “[b]y will.” against course with the victim force and G.S. [her] 14-27.3.
In friend had been involved girl Alston the defendant and relationship approximately in a consensual sexual for six months. had struck her on several occasions. During this period offense, alleged one month to the Approximately friend, Brown, out of aрartment ant’s Ms. moved her with the defendant. relationship and decided to terminate On the school she 15 June defendant met Ms. Brown outside arm, going and stated that she was attending, grabbed with him. Brown if he re- agreed accompany Ms. arm, he Ms. Brown testified that she did leased her did so. away she was afraid of the defendant. Defendant not run because the school and talked about and Ms. Brown then walked around in the conversation the defendant their At one rеlationship. point *4 then Ms. to “fix” Ms. Brown’s face. Defendant threatened again, to make love to her and the right Brown that he had the friend, they of where had had sexual two went to the house a Ms. Brown if then asked prior relations оccasions. “ready.” She that she did not want to have sex- she was answered defendant, but did not resist his physically ual relations with the while she and defendant had inter- advances. Ms. Brown cried degree rape, In defendant’s conviсtion of second reversing course. Supreme our Court stated: was sufficient to show think that the State’s evidence
[W]e
against
of
intercourse
in
was
question
the act
sexual
sufficient, however, to show that the
Brown’s will. It was not
threаt
use
by actual force or
a
accomplished
act was
to sexual intercourse.
force unless she submitted
409,
ruling
its
in
explained
Id. original.) (Emphasis
In there case is evidence that the acts of sexual between fifteen-year-old intercourse defendant and his daughter December, on 25 November against were her will. evidence, hоwever, There is no defendant used either actual or constructive force to the acts with which he is accomplish clear, defendant, As charged. Alston makes the victim’s fear of conduct, by his justified previous however is insufficient to show raped daughter on 25 forcibly November December. entered Consequently, Casé was wherein defendant convicted of second must be vacated. two counts so disposed the cases wherein defendant Having we re- with second consider defendant’s only of error in connection with the maining assignments cases carefully We have wherein he was incest. examined error, or all of which relate to admission assignments these evidence, find each to be without merit. exclusion of *5 83CRS1244, and The result is: In Case Nos. 83CRS1243 or- second the charged wherein defendant was reversed, dismiss are denying defendant’s motions to and ders vacated; will be in entered the verdicts thereon COURT OF 83CRS1469, wherein was Nos. and 83CRS645 incest, defend- guilty with and found felonious we hold charged trial, error. trial prejudicial free from Since the ant had fair 83CRS1243, Nos. wherein court consolidated Case 83CRS645 and with incest and second and dеfendant was 83CRS1244, Nos. wherein de- 83CRS1469 consolidated Case second was in additional cases incest and fendant de- charging degree rape, Case incest, without a resentencing must be remanded for fendant hearing. sentenсing new for resen- no error in and remanded part, part,
Vacated in tencing. concurs.
Judge BeCTON Phillips dissents.
Judge Phillips dissenting.
Judge
majority that
the evidence
I
holding
dissent from the
conviction on
support
was not sufficient
presented
which
Two
circumstances
rape charge.
significant
Alstоn, 310