1. Evidence--child sexual abuse--prior acts against victim--common plan or ongoing
scheme--remoteness
The trial court did not err in a prosecution for first-degree statutory rape, taking indecent
liberties, and other offenses by admitting alleged sexual acts committed against the victim 7 and 2
years before the first offense in this action. The evidence was admissible to show a common plan
or ongoing scheme whereby defendant would wait until the victim's mother was gone, send the
siblings upstairs, and perform sexual acts against the victim. The acts were not too remote in time
in that the evidence reflected a continuous pattern from the time the victim was 5 until the
offenses alleged in this action; a five-year gap in continuity occurred because defendant had no
opportunity to be alone with the victim during this time, not because the common plan or scheme
had ceased.
2. Evidence--child sexual abuse--physical abuse of siblings and pet--victim's state of
mind
The trial court did not err in a prosecution for first-degree statutory rape, indecent
liberties, and other offenses by admitting evidence of defendant's prior physical abuse of the
victim's siblings and the family cat, but only because the abuse was in the victim's presence and
defendant specifically made her state of mind relevant. Evidence of physical abuse or abuse of
animals in cases involving only sexual abuse should be scrutinized carefully by the trial judge.
3. Discovery--exculpatory evidence not disclosed--DSS and medical records--in camera
review by trial court
The trial court did not violate Brady v. Maryland, 373 U.S. 83, in a prosecution for first-
degree statutory rape, indecent liberties, and other offenses by failing to require the State to
disclose to defendant DSS and medical records as exculpatory evidence where the trial court
followed procedural mandates for in camera review and sealing the DSS records, the only
potentially exculpatory information in those records had already been introduced, and, with
respect to the medical records, defendant did not show a substantial basis for claiming materiality
so as to warrant an in camera review. Asking a defendant to affirmatively establish that a piece of
evidence not in his possession is material might be a circular impossibility, but a substantial basis
for believing such evidence is material is required to prevent unwarranted fishing expeditions.
4. Criminal Law--judge's comments--trial not rushed
A defendant in a prosecution for first-degree statutory rape, indecent liberties, and other
offenses was not deprived of a fair trial by the judge rushing the proceedings where the prosecutor
had a personal commitment on the following Monday and any effort to finish the trial by Friday
was to accommodate her, defense counsel agreed that the trial would finish by then, and the trial
judge emphasized to both defendant and the jury on at least two occasions that the Friday
deadline was not rigid and set in stone.
5. Evidence--re-cross examination denied--reading previously admitted evidence
The trial court did not err in a prosecution for first-degree statutory rape, indecent
liberties, and other offenses by not permitting defendant to cross-examine the victim a second timeafter she read on re-direct a story she
had written for her therapist about her abuse where the
story had been admitted during the initial direct examination and defense counsel had cross-
examined her about the story. Simply having her read the evidence on re-direct did not elicit new
matter.
6. Evidence--rape shield statute--medical DSS records--sexual act involved in offense--
accusations
There was no prejudicial error in a prosecution for first-degree statutory rape, indecent
liberties, and other offenses where the trial court erroneously invoked the rape shield statute to
prevent defendant from introducing the victim's medical records, which indicated that defendant's
“partner” had been treated for gonorrhea, and to prevent defendant from questioning whether the
victim's DSS records included any accusations of people other than defendant or false
accusations. The medical records concerned the direct sexual act for which defendant was on
trial, not some other act in defendant's history, and the line of questioning about the DSS records
dealt with accusations, not sexual activity, so that Rule 412 did not operate as a shield; however,
the questions were irrelevant because the medical records did not identify the “partner” and it was
obvious that the victim had a sexual connection, and no evidence at trial suggested that she had
ever made false accusations.
7. Sentencing--consecutive sentences--findings not required
The trial court did not err when sentencing defendant for first-degree statutory rape,
indecent liberties, and other offenses by imposing consecutive sentences without findings as to
why he was using consecutive sentences. The imposition of consecutive sentences is neither
violative of the Eight Amendment nor the state's Fair Sentencing Act, and there was no abuse of
the court's discretion in light of the sheer brutality of the sexual acts committed here. Changing
the statutes to require findings would be a question for the legislature.
Attorney General Michael F. Easley, by Assistant Attorney
General, Sylvia Thibaut, for the State.
Eagan & Eagan, by Thomas H. Eagan, for defendant-appellant.
LEWIS, Judge.
Defendant was tried at the 23 February 1998 session of Durham
County Superior Court on two counts of first-degree statutory rape,
one count of statutory rape of a person fourteen years of age, one
count of first-degree statutory sex offense, and three counts of
taking indecent liberties with a minor. The alleged offensesoccurred in December 1993, January 1994, and February 1996. The
jury returned a verdict of guilty as to all charges, and defendant
now appeals.
At trial, the State presented several witnesses who testified
defendant sexually abused N beginning when she was five years old.
N herself specifically testified that defendant sometimes forced
her to perform fellatio upon him up to three times a week. At that
time, defendant was living in the same household with N, N's
mother, and N's siblings. Sometime shortly thereafter, N moved to
live with defendant's mother. When N was ten years old, she moved
back in with her mother, her siblings, and defendant. N testified
that, upon her moving back, defendant immediately began physically
abusing her; his sexual abuse of her resumed a few months later.
Other witnesses for the State testified defendant beat N with
boxing gloves, twisted and broke her arm, fractured her ribs, put
a knife to her throat, put a gun to her head, and even threatened
to kill her. When the Department of Social Services initially
investigated, N did not report defendant for fear of being beaten.
The State's evidence further established that, in December of
1993, when N was twelve years old, defendant showed her a
pornographic video, assaulted her with a dildo, and then engaged in
intercourse with her. Defendant and N again had intercourse in
January of 1994. N ran away from home in February of 1996, butlater got into defendant's cab, went to a hotel, and had
intercourse with him, after which he gave her money. A Durham
police officer located a receipt, introduced at trial, that
indicated defendant and N had stayed at the hotel on 16 February
1996.
Several witnesses at trial, including N and one of her
brothers, testified that defendant also physically abused N's
siblings and the family cat. Specifically, the evidence showed
that defendant hit the siblings with boxing gloves, forced them to
fight each other with boxing gloves, beat one brother with a cane,
burned the leg of another brother by igniting lighter fluid on it,
and strangled and drowned the family cat. This abuse occurred in
N's presence.
[1]In his first four assignments of error, defendant contends
the trial court admitted improper evidence in violation of Rule
404(b). Specifically, he contests admission of the alleged sexual
acts committed on N when she was five years old, some seven years
before the first charged offense here, and sexual acts committed on
N when she was ten years old, some two years before the first
charged offense. Defendant also contests the evidentiary basis for
admitting his alleged physical abuse of N's siblings and his
alleged abuse of the family cat.
Our Supreme Court has clarified that Rule 404(b) is "a clear
general rule of inclusion of relevant evidence of other crimes,
wrongs or acts by a defendant, subject to but one exception
requiring its exclusion if its only probative value is to show thatthe defendant has the propensity or disposition to commit an
offense of the nature of the crime charged." State v. Coffey, 326
N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). We conclude the
contested evidence here was admissible for purposes other than
merely to show defendant's propensity to commit sex crimes of the
type charged.
We begin with the evidence of defendant's prior sexual abuse
of N. Our state is quite liberal with respect to the admission of
evidence of other sex offenses when those offenses involve the same
victim as the victim of the offense for which defendant is being
charged. State v. Miller, 321 N.C. 445, 454, 364 S.E.2d 387, 392
(1988). Here, we hold that the evidence was admissible to show a
common plan or ongoing scheme by defendant of sexually abusing N.
"When evidence of the defendant's prior sex offenses is
offered for the proper purpose of showing plan, scheme, system, or
design . . . the 'ultimate test' for admissibility has two parts:
First, whether the incidents are sufficiently similar; and second,
whether the incidents are too remote in time." State v. Davis, 101
N.C. App. 12, 18-19, 398 S.E.2d 645, 649 (1990). As to the first
part of that test, the evidence at trial demonstrated an ongoing
pattern whereby defendant would wait until N's mother was gone,
send N's siblings upstairs, and then proceed to perform sexual acts
on N, or force her to perform sexual acts upon him. N even
testified that she recognized this pattern:
Q: Did you have any
sense or feeling, did
you know before the sexual abuse would
happen that it was about to happen?
A: Yes, I did. Q:&nbs
p; Was there a pattern or some signals?
A: Yes.
Q: What were the pat
terns or indications
that would let you know that you were
about to have to perform oral sex with
him again?
A: Would send my mot
her away and if the
children were downstairs he'd send them
upstairs, vice versa.
(1 Tr. at 78-79.) See also State v. Spaugh, 321 N.C. 550, 556, 364
S.E.2d 368, 372 (1988) ("[T]he victim's testimony clearly tended to
establish the relevant fact that the defendant took sexual
advantage of the availability and susceptibility of his young
victim at times when she was left in his care."); State v. Arnold,
314 N.C. 301, 305, 333 S.E.2d 34, 37 (1985) ("This testimony
clearly tended to prove that the defendant engaged in a scheme
whereby he took sexual advantage of the availability and
susceptibility of his young nephews each time they were left in his
custody."); State v. Summers, 92 N.C. App. 453, 460, 374 S.E.2d
631, 635 (1988) ("[The evidence] tends to establish a plan or
scheme by defendant to sexually abuse the victim when the victim's
mother went to work . . . .").
With regard to the second part of the test, defendant contends
the alleged prior acts were too remote in time. We disagree.
"When similar acts have been performed continuously over a period
of years, the passage of time serves to prove, rather than
disprove, the existence of a plan." State v. Shamsid-Deen, 324
N.C. 437, 445, 379 S.E.2d 842, 847 (1989). The evidence at trial
reflects a continuous pattern of sexual abuse, beginning when N was
five years old and continuing until the date of the allegedoffenses here. Although there was a five-year gap in this
continuity (from the time N was five years old until the time she
was ten years old), the evidence at trial suggests this gap was not
because defendant's common plan or scheme had ceased, but because
he had no opportunity to be alone with N during this period of
time. As this Court has previously stated, "When there is a period
of time during which there is no evidence of sexual abuse, the
lapse does not require exclusion of the evidence if the defendant
did not have access to the victim[] during the lapse." State v.
Frazier, 121 N.C. App. 1, 11, 464 S.E.2d 490, 495 (1995), aff'd,
344 N.C. 611, 476 S.E.2d 297 (1996). Once N moved back in with
defendant, the pattern of sexual abuse upon her almost immediately
resumed. Accordingly, we hold that the evidence of prior sexual
abuse was not too remote in time as to warrant its exclusion. See
also State v. Riddick, 316 N.C. 127, 134, 340 S.E.2d 422, 427
(1986) (allowing evidence despite six-year gap because the gap was
due to defendant's incarceration); State v. Jacobs, 113 N.C. App.
605, 611-12, 439 S.E.2d 812, 815-16 (1994) (allowing evidence
despite gap when the gap was due to defendant's lack of access to
the victims); State v. Davis, 101 N.C. App. 12, 20, 398 S.E.2d 645,
650 (1990) (allowing evidence despite ten-and-a-half year gap
because defendant spent most of this time in prison).
[2]We next consider whether the trial court improperly
admitted the evidence of defendant's prior physical abuse of N's
siblings and his physical violence against the cat. We again
emphasize that "evidence of other offenses is admissible so long asit is relevant to any fact or issue other than the character of the
accused." State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793
(1986). Significantly, although this alleged abuse was committed
on N's siblings and pet (as opposed to N herself), it occurred in
N's presence. N testified that she saw defendant beat her siblings
several times with a cane and with boxing gloves. She also
testified that defendant strangled and drowned their cat in her
presence.
In sex abuse cases, the victim's state of mind can be
relevant. State v. Bynum, 111 N.C. App. 845, 849, 433 S.E.2d 778,
780-81 (1993). When it is relevant, any evidence tending to show
the victim is afraid of her abuser, or evidence explaining why the
victim never reported the sexual incidents to anyone, is
admissible. Id. at 849, 778 S.E.2d at 781; State v. Barnes, 77
N.C. App. 212, 216, 334 S.E.2d 456, 458 (1985). At trial,
defendant relied heavily on N's failure to report the sexual abuse
in suggesting that such abuse never in fact occurred. By bringing
forth this defense, defendant thereby specifically made N's state
of mind relevant. The State could therefore introduce any evidence
tending to explain N's state of mind. The evidence of physical
abuse and animal abuse here did just that: it tended to explain N's
fear of defendant and why she never reported all the incidents of
sexual abuse. N even specifically testified that she never
reported the sexual abuse because, in light of all the other abuse
that she witnessed, she knew he would beat her if she did report
it. We do express caution with a trial court's admitting evidence
of animal abuse and/or physical abuse in cases only involving sex
abuse. Such evidence must be relevant, and being lewd and
despicable does not necessarily make it relevant. Furthermore,
such evidence has the potential of being highly prejudicial to a
defendant and thus should be scrutinized carefully by the trial
judge. We emphasize that the only reason the evidence is
admissible here is because the physical and animal abuse was done
in N's presence and because defendant specifically made N's state
of mind relevant. To the extent evidence of physical and/or animal
abuse not done in N's presence was admitted, such admission was
error, but would not have changed the outcome so as to require a
new trial. We therefore reject defendant's first argument.
[3]In his next assignment of error, defendant claims the
State failed to turn over certain exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963). In
particular, he points to a portion of N's medical records and her
Department of Social Service ("DSS") records. We find no error.
"[S]uppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution. Id. at 87, 10 L. Ed. 2d at
218. Evidence is material if there is "a reasonable probability
that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different. A 'reasonable
probability' is a probability sufficient to undermine confidence inthe outcome." U.S. v. Bagley, 473 U.S. 667, 682, 87 L. Ed.
2d 481,
494 (1985). When a defendant makes a specific request for certain
evidence that is material and exculpatory, the trial judge must
perform an in camera inspection of this evidence to determine
whether it in fact should be turned over to the defendant. State
v. Hardy, 293 N.C. 105, 127-28, 235 S.E.2d 828, 842 (1977). If the
trial judge rules against defendant after making this inspection,
he should then seal the evidence so it can be placed in the record
for appellate review. Id. at 128, 235 S.E.2d at 842.
Here, the trial judge viewed N's DSS records in camera and
concluded they contained no exculpatory evidence that was material
to defendant at trial. He then sealed these records for our
appellate review. He thus complied with the procedural mandates of
Hardy. We have reviewed the DSS records ourselves and agree with
the trial judge. The only potentially exculpatory information
contained in the records involves N's mother's denial that her
children were being abused by defendant and N's own initial denial
that she was being abused by him. As evidence of these denials was
already introduced by defendant at trial, the DSS records contained
no "new" material evidence that warranted their being turned over
to defendant.
With respect to N's medical records, however, the trial judge
never performed an in camera inspection nor sealed the records for
appellate review. But just because defendant asks for an in camera
inspection does not automatically entitle him to one. Defendantstill must demonstrate that the evidence sought to be disclosed
might be material and favorable to his defense. See State v.
Phillips, 328 N.C. 1, 18, 399 S.E.2d 293, 301 (1991) (“A judge is
required to order an in camera inspection and make findings of fact
concerning the evidence at issue only if there is a possibility
that such evidence might be material to guilt or punishment and
favorable to the defense.”); see also U.S. v. Agurs, 427 U.S. 97,
106, 49 L. Ed. 2d 342, 351 (1976) (stating that an in camera
inspection is required if the evidence is material, or "if a
substantial basis for claiming materiality exists"). Thus,
although asking defendant to affirmatively establish that a piece
of evidence not in his possession is material might be a circular
impossibility, we at least require him to have a substantial basis
for believing such evidence is material. Otherwise, defendant
would be able to waste the time and resources of our judicial
system by forcing unwarranted fishing expeditions. Here, in
referring to the medical records sought, defense counsel admitted
to the trial judge, "[W]e are not specifically aware of any basis
to say that there is exculpatory information there." (1 Tr. at
10.) Given this admission, defendant has not shown a substantial
basis for claiming materiality so as to warrant in camera review of
N's medical records.
[4]Next, defendant argues he was deprived of his right to a
fair trial because the judge unnecessarily rushed the proceedings.
"Court proceedings should not be hurried in such a manner as to
deprive a litigant of his rights, but the court should see that thepublic time is not uselessly consumed." State v. Davis, 294
N.C.
397, 402, 241 S.E.2d 656, 659 (1978). Here, defendant points to
three remarks made by the trial judge allegedly illustrating his
intent to finish the trial by Friday of the first week at all
costs. First, immediately after the jury was empaneled, the judge
stated, "I'm going to try to get this case done by Friday. I don't
know if I can, do the best I can." (1 Tr. at 49.) Second, the
following dialogue occurred between the trial judge and the
alternate juror regarding being able to finish by Friday:
JUROR: With all due
respect my concern is
if we're all planning our Fridays I'm not
sure that the defendant is going to get a
fair discussion and that concerns me.
COURT: He will. He
will. That's what my
job is.
JUROR: I'm concerned
we're all planning
Friday out. That just concerns me.
COURT: Believe me, [
defendant] was the
first person I talked to. Somebody else
have a concern?
(No response.)
(2 Tr. at 52-53.) Third, during the charge conference (and thus
outside the presence of the jury), the trial judge stated, "I want
a reason why we're doing it [giving the jury a certain
instruction]. We've got to finish this trial sometime today. I
got to go through and pull all these instructions and put them
together." (3 Tr. at 66).
We do not believe the above comments illustrate any intent on
the part of the trial judge to unfairly rush through defendant's
trial. The prosecutor had a personal commitment on the following
Monday; any effort to finish the trial by that Friday were
seemingly to accommodate her. Defense counsel even agreed that thetrial would finish by then. More important, however, the trial
judge emphasized to both defendant and the jury on at least two
occasions that the Friday deadline was not rigid and set in stone,
but would depend on several factors. We therefore conclude that
the trial judge did not act inappropriately in his time management
of the trial.
[5]Defendant also contends the trial court erred by refusing
to allow him to cross-examine N a second time. On re-direct, N
read to the jury "My Nightmare," a story she wrote for her
therapist that recounted the sexual abuse she had experienced.
Defendant then sought to re-cross-examine N about some particulars
of this story. The trial court denied defendant's request.
Once a witness has been cross-examined and reexamined, counsel
does not have the right to a second cross-examination unless the
re-direct examination brings forth new matter. State v. Moorman,
82 N.C. App. 594, 600, 347 S.E.2d 857, 860 (1986). Here, although
"My Nightmare" was not actually read by N until re-direct, it was
introduced by the State into evidence during N's initial direct
examination. By simply having her read already-admitted evidence
on re-direct, the State thus did not elicit any "new matter." When
no new matters have been introduced, allowance for any re-cross-
examination is left to the sound discretion of the trial court.
Id. Here, defense counsel had the opportunity to, and did in fact,
cross-examine N about several things in her story, as well as
certain things noticeably absent from it. By refusing to allow a
second such cross-examination, we cannot say the trial court abused
its discretion.. [6]Next, defendant claims the trial court erred by invoking
the rape shield statute to prevent him from attacking N's
credibility. N testified that defendant gave her gonorrhea through
unprotected sex. On cross-examination, defendant sought to
introduce certain medical records of N that stated her "partner"
had been treated for gonorrhea as well. Defendant tried to use
these records to suggest N's "partner" was someone other than
defendant. The trial court refused this request, concluding that
the records were inadmissible under Rule 412. Defendant also tried
to question Willie Gibson, a DSS social worker, as to whether N's
DSS records included any accusations by her of people other than
defendant abusing her, or included any accusations that turned out
to be false. The trial court prohibited this line of questioning
as well, again invoking Rule 412.
The rape shield statute, codified in Rule 412 of our Rules of
Evidence, is only concerned with the sexual activity of the
complainant. State v. Guthrie, 110 N.C. App. 91, 93, 428 S.E.2d
853, 854 (1993). Accordingly, the rule only excludes evidence of
the actual sexual history of the complainant; it does not apply to
false accusations, State v. McCarroll, 109 N.C. App. 574, 578, 428
S.E.2d 229, 231 (1993), or to language or conversations whose topic
might be sexual behavior, State v. Durham, 74 N.C. App. 159, 167,
327 S.E.2d 920, 926 (1985). Furthermore, the sexual activity
contemplated by the rule is that activity of the victim "other than
the sexual act which is at issue in the indictment on trial."
N.C.R. Evid. 412(a). Neither of the lines of questioning sought bydefendant involved the type of "sexual activity" governed by R
ule
412. The medical records of N's gonorrhea related to the exact
sexual act for which defendant was on trial. Throughout, defendant
has maintained that the sexual acts, if any, committed on N (and
the resultant gonorrhea) were done by someone else. Accordingly,
the medical records concerned the direct sexual act for which
defendant was on trial, not some other act in N's sexual history.
And the line of questioning with respect to the DSS records only
dealt with accusations -- not actual sexual activity. Accordingly,
Rule 412 did not operate as a shield to these questions.
But just because Rule 412 is inapplicable does not mean
defendant may examine or cross-examine at will. His questioning
still must be relevant for the purpose for which it was offered,
i.e. to impeach N's credibility. See id. at 167, 327 S.E.2d at 926
("While we agree that in the present case the child's accusation of
her father, to the extent it is evidence of conversation or
language, is not excluded by the Rape Shield Statute, we still face
the problem of whether this accusation is relevant to the child's
credibility."). We find no such relevance here. The reference to
"partner" in the medical records did not contribute anything to
defendant's case: it did not contradict anything testified to by N,
nor did it suggest anything else that could be used to impeach her.
The medical records simply stated that N's "partner" had gonorrhea
and nothing more. It was apparent that N had a sexual connection
and therefore a "partner"; but said partner was not identified in
the records.
The questions regarding N's DSS records were equallyirrelevant. No evidence at trial was introduced to suggest tha
t N
had ever made any false accusations, and defendant's proffer of
evidence here made no such showing either. Essentially, defendant
was on a fishing expedition. Absent some definitive evidence that
N had previously made false accusations, we cannot say the trial
court committed prejudicial error by preventing this line of
questioning. See generally State v. Anthony, 89 N.C. App. 93, 96-
97, 365 S.E.2d 195, 197 (1988) (distinguishing cases that allowed
evidence of prior accusations with the present case because those
cases involved actual evidence suggesting the accusations were
false, whereas the present case did not).
[7]Finally, defendant asserts error in his sentence.
Following his conviction, the trial court sentenced defendant to
three life sentences plus a term of 288-355 months, all to be
served consecutively. The judge made no findings as to why he was
ordering consecutive, as opposed to concurrent, sentences.
Defendant contends the imposition of consecutive sentences here was
unwarranted. We disagree.
The imposition of consecutive sentences is neither violative
of the Eighth Amendment, State v. Ysaguire, 309 N.C. 780, 786, 309
S.E.2d 436, 441 (1983), nor of our state's Fair Sentencing Act,
State v. Barts, 316 N.C. 666, 697, 343 S.E.2d 828, 847 (1986). In
fact, our legislature has vested the trial judge with broad
discretion in deciding whether multiple sentences should be served
consecutively or concurrently. N.C. Gen. Stat. § 15A-1354(a)
(1999). In light of the sheer brutality of the sexual actscommitted here, we find no abuse of that discretion.
Nonetheless, defendant contends that our statutes give the
trial judge too much discretion and should at least require the
judge to make specific findings with respect to the issue of
consecutive or concurrent sentences. We respond to defendant's
argument the same way we responded to a similar argument recently
made to this Court: "This is, at best, a question for the
legislature to resolve, but for our purposes it is an argument
without merit on appeal." State v. Love, 131 N.C. App. 350, 359,
507 S.E.2d 577, 584 (1998).
No error.
Chief Judge EAGLES and Judge EDMUNDS concur.
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