The opinion
ELMORE, Judge,
dissenting in part.
I respectfully dissent from that part of the majority opinion holding that the trial court did not err by denying defendant’s motion to dismiss because I would vacate defendant’s first-degree rape conviction and remand for entry of judgment on second-degree rape and resentencing.
As explained in the majority opinion, defendant was indicted and convicted under the theory that he “[e]mploy[ed] or displayed] a dangerous or deadly weapon or an article which the other person reasonably believe[d] to be a dangerous or deadly weapon . . . .” N.C. Gen. Stat. § 14-27.2 (a)(2)a (2007). However, the record only shows *438 that when defendant forced Ms. Brown into his house, he displayed a shiny, silver object that Ms. Brown thought was a knife. Even if her testimony were sufficient to show that Ms. Brown reasonably believed that defendant displayed a dangerous weapon at this time, which I do not believe is the case, there was no evidence that defendant displayed the alleged weapon during the rapes.
Our Supreme Court has explained that although § 14-27.2 “does not require a showing that a dangerous or deadly weapon was used in a particular manner in order to sustain a conviction for first-degree rape,” the defendant must have the weapon “in his possession at the time of the rape.” State v. Langford, 319 N.C. 340, 344 , 354 S.E.2d 523, 525-26 (1987) (citations omitted) (emphasis added); see also State v. Roberts, 310 N.C. 428, 434-35 , 312 S.E.2d 477, 481 (1984) (affirming the denial of a motion to dismiss because the evidence showed that the defendant employed or displayed a dangerous weapon “during the course of the rape”).
Here, there was no evidence that defendant had the alleged knife in his possession at the time of the rapes. Ms. Brown testified that she had her eyes closed and was feigning a seizure at the time of the rapes. She testified that she closed her eyes on Saturday morning after defendant dragged her into her house and did not open them again until Sunday afternoon when she arrived at the hospital and could no longer hear defendant. During her cross-examination, she confirmed that she “never saw that silver object again” after defendant initially displayed it. Her testimony strongly suggests that a significant period of time passed between when defendant forced her into the house and when he raped her. She testified that she started seizing on the floor, and “eventually” defendant moved her from the floor to her couch, where she continued seizing. She said, “And I stayed there, and I did that for I don’t know how long. I did it until the point, because it was so long in the day that I had to go to the bathroom.”
Accordingly, I would hold that the trial court erred by denying defendant’s motion to dismiss because the State did not present sufficient evidence to support a finding that defendant employed or displayed a dangerous weapon during the rape. In all other respects, I concur with the majority opinion.