In his second assignment of error, defendant argues that the
trial court committed reversible error when it admitted thetestimony of Dr. Patrick Hanaway, Dr. Lisa Lichtig, and Detective
Jack Fortner that the victim had been sexually assaulted,
kidnapped, and raped. We disagree.
The rule governing testimony by experts is N.C. Gen. Stat.
§ 8C-1, Rule 702 (2001). Rule 702 states that “[i]f scientific,
technical or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an
opinion.” Id. “The subject matter of the expert testimony must
merely be such that it would be helpful to the fact finder.” State
v. Crawford, 329 N.C. 466, 477, 406 S.E.2d 579, 585 (1991). Under
N.C. Gen. Stat. § 8C-1, Rule 704, “[t]estimony in the form of an
opinion or inference is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact.” N.C. Gen.
Stat. § 8C-1, Rule 704 (2001). Expert testimony is not allowed,
however, regarding a “'“legal conclusion . . . at least where the
standard is a legal term of art which carries a specific legal
meaning not readily apparent to the witness.”'” Crawford, 329 N.C.
at 477, 406 S.E.2d at 585 (quoting State v. Rose, 323 N.C. 455,
459, 373 S.E.2d 426, 429 (1988) (quoting State v. Smith, 315 N.C.
76, 100, 337 S.E.2d 833, 849 (1985))).
Dr. Patrick Hanaway testified as an expert for the State. He
is a board-certified family physician. He received his medicaldegree in 1987 and has worked in emergency rooms since 1988. He
has been involved in 32 sexual assault examinations. Dr. Hanaway
was qualified without objection as an expert in emergency medicine
with a speciality dealing with rape victims.
Dr. Hanaway treated the victim in the emergency room and
observed her physical condition. According to Dr. Hanaway, she
described the assault in detail to him. Dr. Hanaway testified at
trial that she seemed visibly shaken and scared. He also performed
a rape kit examination. Dr. Hanaway found that she had multiple
abrasions, bruises and scratches all over her body. Her back was
bruised and scraped, her elbows rubbed raw, and her nipples
bruised. Several of her front teeth were broken. Using a
florescent light to examine the victim's genitals, Dr. Hanaway
observed the lighting up of sperm across the victim's vaginal area.
In addition to her physical condition, Dr. Hanaway noted the
victim's mental state. He described her demeanor as “visibly
shaken,” “scared,” “stunned,” “clearly afraid” and “spontaneously
breaking down in tears at times.”
At trial, Dr. Hanaway testified as follows:
Q. Tell the jury the things that you
explained and the dialogue back and forth
between you and [the victim]?
. . . .
. . . She didn't seem to be able to receive
the information that I was giving her.
It
seemed that her emotional state was consistent
with having been assaulted in some manner, and
then it's my job to determine what the extent
of that assault is.
(Emphasis added.)
Further, the doctor stated:
[Dr. Hanaway]: I've indicated to you that
I've been involved in more than thirty of
these cases. I've definitely been involved in
cases where it was my firm opinion at the end
of the history and physical that there had not
been a sexual assault that had occurred,
because the pieces did not fit together.
In this case it seemed pretty clear that
there had been some type of assault that had
occurred from the history and from -
[Defense Counsel]: Objection, Your Honor.
[Court]: Overruled.
[Prosecutor]: You may continue?
[Dr. Hanaway]: . . .
from the history and
the physical observation that I had made to
that point in time. So, I felt clear that
there was some assault that had happened. I
was not yet clear, based on the gathering of
evidence, of whether any sexual assault had
occurred, though
her emotional state was
consistent with a very severe and significant
assault which happened.
(Emphasis added.)
Later, Dr. Hanaway testified that he had ordered an HIV test
to be done “so that it could be followed up in three to six months
time to determine if [the victim] was exposed to HIV through that
sexual encounter, sexual assault.” Finally, Dr. Hanaway testified
this case was the most “intense and gruesome” of the more than
thirty alleged sexual assault cases he had seen.
As the transcript excerpt reveals, defendant only objected
once to the testimony he now assigns as error. “[W]hen . . .
evidence is admitted over objection, and the same evidence has beenpreviously admitted or is later admitted without objection, the
benefit of the objection is lost.”
State v. Maccia, 311 N.C. 222,
229, 316 S.E.2d 241, 245 (1984). Thus, defendant's contentions are
reviewable only for plain error. Under this standard, defendant is
entitled to relief if he can show “'(i) that a different result
probably would have been reached but for the error or (ii) that the
error was so fundamental as to result in a miscarriage of justice
or denial of a fair trial.'”
State v. Stanfield, 134 N.C. App.
685, 689, 518 S.E.2d 541, 544 (1999) (quoting
State v. Bishop, 346
N.C. 365, 385, 488 S.E.2d 769, 779 (1997)).
Defendant first contends the trial court erred in admitting
portions of Dr. Hanaway's testimony because he expressed his
opinion that the victim's emotional state was consistent with
sexual assault, and further that a sexual assault actually
occurred.
In the present case, Dr. Hanaway was tendered and accepted as
an expert in emergency medicine with a speciality dealing with rape
victims. A qualified expert may testify, like any other witness,
to his or her own observations.
State v. Wade, 296 N.C. 454, 462,
251 S.E.2d 407, 412 (1979). The challenged testimony summarized
the pattern of injuries and constituted a medical conclusion which
the witness was fully qualified to render. In a similar case the
Supreme Court has held that:
[The expert] used the term “sexual assault,
attack” merely to describe the pattern of
injuries. Again, and to the extent that [the
expert] stated a legal conclusion, “sexual
assault or attack” is not a legal term of artwhich carries a specific meaning not readily
apparent to the witness. Like “torture,”
“sexual assault” does not carry a precise
legal definition involving elements of intent
as well as acts, nor does it have a legal
meaning that varies from the common
understanding of the term.
State v. Jennings, 333 N.C. 579, 601, 430 S.E.2d 188, 198,
cert.
denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993). It is clear from
the record and transcript that there existed ample foundation for
Dr. Hanaway's expertise and his characterization of what happened
to the victim as a sexual assault. In the present case there was
physical evidence to support a diagnosis that the victim had been
sexually assaulted. Dr. Hanaway, who was qualified as an expert,
examined her and noted substantial visible physical injuries
consistent with assault. He testified to her injuries as listed
above. Specifically as to sexual assault, Dr. Hanaway testified
that when he used the florescent light there was “lighting up of
presumably sperm across [the victim]'s vaginal area." Dr.
Hanaway's testimony concerning this issue was in accordance with
N.C.R. Evid. 702 and does not constitute plain error.
Secondly, defendant contends that Dr. Hanaway's testimony
impermissibly bolstered the credibility of the victim.
In
State v. Marine, 135 N.C. App. 279, 520 S.E.2d 65 (1999),
this Court stated:
Rule 608(a) of the North Carolina Rules
of Evidence permits the use of reputation or
opinion testimony in order to bolster another
witness' credibility, so long as it is done in
accordance with Rule 405(a). Rule 405(a) then
explicitly prohibits expert testimony
regarding a witness' character. When readtogether, the Rules of Evidence thus prohibit
an expert witness from commenting on the
credibility of another witness.
State v.
Wise, 326 N.C. 421, 426, 390 S.E.2d 142, 145,
cert. denied, 498 U.S. 853, 112 L. Ed. 2d 113
(1990).
On the other side of the coin, however,
Rule 702 permits expert witnesses to explain
the bases of their opinions. Thus, “a witness
who renders an expert opinion may also testify
as to the reliability of the information upon
which he based his opinion.”
State v. Jones,
339 N.C. 114, 146, 451 S.E.2d 826, 842,
(1994),
cert. denied, 515 U.S. 1169, 132 L.
Ed. 2d 873 (1995). Furthermore, the mental
and emotional state of the victim before,
during, and after a rape or sexual assault is
relevant testimony that can help assist the
trier of fact in understanding the basis of
that expert's opinion.
State v. Kennedy, 320
N.C. 20, 30-31, 357 S.E.2d 359, 366 (1987).
Id. at 281, 520 S.E.2d at 66-67.
As
Marine noted, the cases dealing with the line between
discussing one's expert opinion and improperly commenting on a
witness' credibility have made it a thin one.
See State v.
Jenkins, 83 N.C. App. 616, 623-25, 351 S.E.2d 299, 303-04 (1986),
cert. denied, 319 N.C. 675, 356 S.E.2d 791 (1987);
State v. Heath,
316 N.C. 337, 339-44, 341 S.E.2d 565, 567-69 (1986);
State v. Wise,
326 N.C. at 425-28, 390 S.E.2d at 145-47 (1990);
and
State v.
Bright, 131 N.C. App. 57, 60-61, 505 S.E.2d 317, 319-20,
disc.
review allowed, cert. allowed, 349 N.C. 366, 525 S.E.2d 179 (1998),
disc. review dismissed as improvidently allowed, 350 N.C. 82, 511
S.E.2d 639 (1999)
. However, in the case
sub judice, Dr. Hanaway's
testimony did not improperly bolster the believability of the
victim. His testimony, as set forth above, was that the victim'semotional state was consistent with someone who had been sexually
assaulted; indeed, a severe sexual assault. We note that the doctor
was never asked whether he believed the victim was sincere. Dr.
Hanaway explained how he concluded that she had been sexually
assaulted through the physical evidence, the victim's statements,
and her emotional condition. While his testimony may in some way
have bolstered the victim's claim that she had been sexually
assaulted, this is incidental to the doctor's testimony. He was
the treating physician when she came to the hospital and is
permitted to give the background reasons and basis for his
diagnosis. Thus, defendant's assignment of error, as it pertains
to Dr. Hanaway, is overruled.
Dr. Lichtig
Dr. Lisa Lichtig also testified as an expert for the State.
Dr. Lichtig has been a physician for ten years and is a board-
certified family physician. She has extensive prior experience in
treating sexual assault victims. Dr. Lichtig was tendered and
admitted as an expert in the fields of family practice, emergency
room practice, and the treatment of sexually abused patients.
She saw and treated the victim in this case in the emergency
room, as she took over for Dr. Hanaway when his shift ended. In
the emergency room, Dr. Lichtig observed the victim's emotional and
physical state. She testified that the victim was “quite
frightened” and “crying intermittently.” Dr. Lichtig also noted
that the victim had bruising and abrasions all over her body. The
bruising was so severe according to the doctor, she ordered a CATscan to rule out the possibility of a skull fracture.
At trial, Dr. Lichtig testified as follows:
Q. . . . did you have an opportunity to form
an opinion as to whether or not all of those
findings, psychological, physical, medical,
whether or not all of those findings
were
consistent with a woman who had been sexually
assaulted, that is raped, based on your
experience?
A. Yes.
Q. What was your opinion?
[Defense Counsel]: Objection, Your Honor.
[Court]: Overruled.
A.
My opinion is that [the victim] was
sexually assaulted, she was kidnapped, she was
sexually raped and abused on multiple
occasions in an eighteen hour period of time.
. . .
[I]t was the worst sexual assault case
that I had ever been involved with in my
career.
Q. In your ten-year career?
A. Yes,
it was the worst one I had ever
seen.
(Emphasis added.)
The trial court then gave the jury the following limiting
instruction:
[Court]: Members of the jury, the Court
has allowed this witness to express opinions
in the field of family medicine, emergency
room practice and the treatment of sexually
abused patients. You ladies and gentlemen are
the fact finders in this case. The
credibility and the weight of this evidence is
a matter for you the jury to determine and to
decide.
As was the case with the testimony of Dr. Hanaway, defendanthas lost the benefit of his objection by allowing the evidence to
be introduced without objection. Therefore, we address his
arguments here, as above, under the plain error standard.
See
State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984).
Defendant contends that the trial court erred in admitting Dr.
Lichtig's expert opinion that the victim had been sexually
assaulted, kidnapped, and raped as it impermissibly goes beyond the
scope of expert opinion.
We have already held with the testimony of Dr. Hanaway that a
conclusion of sexual abuse is permitted if concluded upon proper
foundation. Likewise, Dr. Lichtig's opinion regarding sexual
assault was based on her expertise in treating sexually abused
patients, the victim's emotional state in the emergency room, her
physical appearance and from what the victim had told her during
the course of treatment. This is a proper foundation for her
expert opinion that the victim was sexually assaulted in accordance
with N.C.R. Evid. 702.
However, Dr. Lichtig's opinion that the victim was kidnapped
and raped was improper. “An expert may not testify regarding
whether a legal standard or conclusion has been met 'at least where
the standard is a legal term of art which carries a specific legal
meaning not readily apparent to the witness.'”
State v. Parker,
354 N.C. 268, 289, 553 S.E.2d 885, 900 (2001),
cert. denied, ___
U.S. ___, 153 L. Ed. 2d 162 (2002) (quoting
State v. Ledford, 315
N.C. 599, 617, 340 S.E.2d 309, 321 (1986);
State v. Smith, 315 N.C.
76, 100, 337 S.E.2d 833, 849 (1985)). “'Rape' is a legal term ofart . . ..”
State v. Najewicz, 112 N.C. App. 280, 293, 436 S.E.2d
132, 140 (1993),
disc. review denied, 335 N.C. 563, 441 S.E.2d 130
(1994);
see also State v. Galloway, 304 N.C. 485, 489, 284 S.E.2d
509, 512 (1981) (“Clearly, a medical expert may not testify that
the defendant raped the prosecuting witness.”);
Smith, 315 N.C. at
100, 337 S.E.2d at 849 (The medical witness could testify that
injuries were caused by a male sex organ, an ultimate issue, noting
that witness “did not testify that [victim] had been raped, nor
that the defendant raped her.”).
Like the term “rape,” the term “kidnap” has its own meaning in
the eyes of the law that is not readily apparent to the witness.
Thus, it was also improper for Dr. Lichtig to render such an
opinion, especially since it is clearly outside of her expertise.
It is clear that the jury is solely responsible for
determining if one was kidnapped or raped. Dr. Lichtig's testimony
goes beyond the scope of her permissible expert opinion as she was
in no better position than the jury in concluding those facts.
Nevertheless, we do not believe that the error rises to the
level of plain error. There was overwhelming evidence of
defendant's guilt; and following the testimony, the trial court
gave a limiting instruction reminding the jurors that Dr. Lichtig's
opinion is limited in certain areas and that they are the fact-
finder. Any error in the admission of this testimony is harmless
and does not rise to the level of plain error.
Briefly, defendant also contends, as he did in reference to
Dr. Hanaway's testimony, that Dr. Lichtig's testimony aboveimproperly bolstered the victim's credibility. We find that this
situation is indistinguishable from Dr. Hanaway's, and refer to the
above discussion.
Defendant next contends that the trial court erred when it
admitted Dr. Lichtig's testimony that she told the victim at the
hospital
A. That she was safe, that this person was
behind bars right now ---
[Defense counsel]: Objection, Your Honor.
[Court]: Overruled.
A. That they had him in custody, and that
she was going to get better from this.
Defendant argues this implies not only that the victim had in fact
been assaulted, but that defendant was guilty of the assault
constituting prejudicial error. We disagree.
The State points out that Dr. Lichtig did not identify
defendant as being the person who was in custody as she referred
only to “this person” and “him.” Dr. Lichtig was concerned about
the victim's emotional well-being and was attempting to reassure
her that she was safe. It was a generalized statement made as a
part of the victim's treatment. The doctor had a very emotional
patient she believed may have been suicidal. Dr. Lichtig said that
she was trying to “plant the seeds of hope” in the victim that she
could begin to recover. Furthermore, there was also other evidence
of defendant being behind bars, as the jury heard without objection
the testimony of Detective Fortner that he arrested defendant and
told the victim that defendant was in jail. Thus, this evidence iscumulative, and its admission could not have prejudiced defendant.
See State v. Taylor, 344 N.C. 31, 47, 473 S.E.2d 596, 605 (1996).
Defendant next contends that the trial court erroneously
admitted Dr. Lichtig's testimony that the victim's psychiatric
history was relevant because “when people recover from traumatic
events in their life, it's important to know what other kinds of
things they have been through.” We disagree. The testimony
complained of is as follows:
Q. Any of this stuff the defense has brought
up about the fact of anything about her past
when she was a baby, does any of that have any
impact whatsoever on the opinion that you gave
this jury that this woman was raped?
A. Absolutely not, it's totally irrelevant.
The only relevance it has ---
[Defense Counsel]: Objection, Your Honor.
[Court]: Overruled.
A. ...in my opinion is in terms of her
recovery. When people recover from traumatic
events in their life it's important to know
what other kinds of things they have been
through so we can offer our compassion, we can
offer medications when appropriate, we can
offer them the kind of guidance they need in
going on to live a normal healthy life . . ..
Defendant has not shown this testimony, which was general in
nature, to be prejudicial. This testimony was relevant in showing
the type of information Dr. Lichtig relies upon in forming her
opinions and was helpful to the jury in determining how much weight
to give her testimony. This testimony was within the scope of
permissible expert opinion under N.C.R. Evid. 702 and was not
prejudicial in any way. N.C. Gen. Stat. § 8C-1, Rule 702 (2001). Finally, defendant contends that the trial court erred in
allowing Dr. Lichtig's testimony concerning the contents of a
psychiatric evaluation of the victim after the alleged rape, which
included a diagnosis of post-traumatic stress disorder (PTSD) as a
result of severe trauma from kidnapping and rape by a co-worker at
the Nantahala Outdoor Center. Defendant argues that no limiting
instruction was given as required by
State v. Hall, 330 N.C. 808,
412 S.E.2d 833 (1992), and the testimony was admitted for
substantive purposes which was also error. We disagree.
Evidence from an expert that a
prosecuting witness is suffering from PTSD is
admissible, for corroborative purposes to
assist the jury in understanding the
behavioral patterns of sexual assault victims.
The expert witness may not, however,
explicitly or implicitly indicate the PTSD was
caused or contributed to by the actions of the
defendant that are the subject of the trial.
On this factual question, whether a defendant
actually committed the act with which he is
charged, the expert is “in no better position
to have an opinion than the jury.”
State v. Chavis, 141 N.C. App. 553, 565-66, 540 S.E.2d 404, 413-14
(2000) (citations omitted). “If admitted, the trial judge should
take pains to explain to the jurors the limited uses for which the
evidence is admitted. In no case may the evidence be admitted
substantively for the sole purpose of proving that a rape or sexual
abuse has in fact occurred.”
Hall, 330 N.C. at 822, 412 S.E.2d at
891.
In the present case, Dr. Lichtig testified that the victim
suffered from PTSD as a result of the events that took place in
November of 1999 while on redirect examination by the State. Nolimiting instruction followed. Thus, defendant contends that this
was admitted for the sole purpose that the rape took place.
The State argues that defendant opened the door to the PTSD
testimony. While cross-examining Dr. Lichtig, defendant asked
questions pertaining to the victim's mental treatment, in
particular, a psychiatric evaluation of the victim. This line of
questioning elicited responses that could have given the jury the
impression that the victim was mentally unstable prior to the time
of the assault. On redirect examination, the State introduced the
rest of the report to put the evidence introduced by defendant into
context, namely that the victim only began suffering such mental
problems after that attack. It was here that evidence of PTSD was
admitted.
Presumably, an instruction by the trial court in accordance
with
Hall and
Chavis would have been required. However, this
testimony is not violative of the
Hall/Chavis principle. The
reference to PTSD was being used to rebut the inference by
defendant that the victim was mentally unstable prior to the
assault and rape rather than to prove the assault and rape
happened. Therefore, the evidence was admissible, but not as
substantive evidence. Defendant would have been entitled to
request the
Hall/Chavis limiting instruction. However, since he
did not, “[t]he admission of evidence which is competent for a
restricted purpose will not be held error in the absence of a
request by the defendant for limiting instructions.”
State v.
Jones, 322 N.C. 406, 414, 368 S.E.2d 844, 848 (1988). In addition, evidence which is otherwise inadmissible is
admissible to explain or rebut evidence introduced by defendant.
State v. Garner, 330 N.C. 273, 290, 410 S.E.2d 861, 870 (1991);
State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981).
This is true even if a defendant admits evidence during cross-
examination of a State's witness, prompting the State to introduce
otherwise inadmissible evidence in rebuttal.
State v. McKinnon,
328 N.C. 668, 673, 403 S.E.2d 474, 477 (1991). Therefore, where a
defendant examines a witness so as to raise an inference favorable
to defendant, which is contrary to the facts, defendant opens the
door to the introduction of the State's rebuttal or explanatory
evidence about the matter.
State v. Bullard, 312 N.C. 129, 157-58,
322 S.E.2d 370, 386 (1984).
Although it was error to admit evidence of PTSD substantively
(or to not give the limiting instruction), defendant nonetheless
opened the door to such evidence being admitted. Defendant's
assignment of error as to Dr. Lichtig is overruled.
Defendant contends Chief Deputy Fortner gave improper opinion
testimony which was tantamount to expert testimony. As with the
previous two witnesses, defendant argues that the trial court erred
in permitting him to bolster the credibility of the complaining
witness, and to testify essentially that she had in fact been
assaulted, raped, and kidnapped.
Defendant heavily cross-examined Deputy Fortner as to his
investigation and why certain procedures were done and not done. Specifically, defendant was asking the deputy why more items were
not sent off for scientific testing. The challenged testimony at
trial is as follows:
Q. You know what evidence --- what it means to
have evidence that shows innocence of the
accused, don't you?
A. Yes sir.
Q. Did you find any?
A. Any evidence of ---
Q. Or were you looking for any?
A. I didn't need much evidence, sir, because
I have a victim that had told me who her
attacker was and from the look that her
physical person was and the way she described
the attack and her bruising and her scars, she
told me who the attacker was and she gave me a
name and a description. That's what I needed
because I was fortunate I had an eye witness
[sic] victim that survived.
The State, on redirect examination touched on the earlier
testimony:
Q. There was a lot of questions here from
counsel for the defendant about the fact that
you didn't send this off, you didn't send that
off, you didn't do this or that check. What
can you tell this jury about why you didn't
have these things checked?
A. I had a victim that survived her attack.
She could positively identify her assailant,
the person that kidnapped, raped, and brutally
beat her. If she had died ---
[Defense Counsel]: Objection, Your Honor,
speculative.
[Court]: Overruled.
Q. Go ahead?
A. ...I would have done more fingerprinting,
more checking under fingernails, more fiber
transfer, because I wouldn't have known who
done it. But she positively told me who done
it and I arrested him.
Defendant notes that Deputy Fortner was not tendered as an
expert at trial. However, defendant contends that he is a
professional law enforcement officer who had extensive experience
investigating crimes over a lengthy career, and that his testimony
was tantamount to expert testimony.
The context in which this testimony was given makes it clear
Fortner was not offering his opinion that the victim had been
assaulted, kidnapped, and raped by defendant, but was explaining
why he did not pursue as much scientific testing of physical
evidence in this case as he would a murder case because the victim
in this case survived and was able to identify her assailant. His
testimony was rationally based on his perception and experience as
a detective investigating an assault, kidnapping, and rape. His
testimony was helpful to the fact-finder in presenting a clear
understanding of his investigative process. Further, defendant
brought out this testimony by attacking the investigation on cross-
examination. His testimony was in accordance with the rule for lay
opinion testimony. N.C. Gen. Stat. § 8C-1, Rule 701 (2001).
Defendant's assignment of error as it pertains to Chief Deputy
Fortner is overruled.
After examining defendant's assignments of error as they
pertain to the above witnesses' testimony, if there was any error,
it does not rise to the level of plain error.
III.
In his next assignment of error, defendant contends that the
trial court committed plain error when it instructed the jury that
the State need only establish “personal injury” for a first-degree
rape conviction. Defendant admits the trial court initially
instructed the jury that the State had to prove defendant inflicted
serious personal injury upon the victim to prove first-degree rape;
however, defendant contends the trial court erred when the
instructions followed with a mandate that required the jury to
convict defendant of first-degree rape upon a finding of “personal
injury,” rather than “serious personal injury” as required by N.C.
Gen. Stat. § 14-27.2(a) (2001). We disagree.
N.C. Gen. Stat. § 14-27.2(a)(2)(b) provides that a person is
guilty of first-degree rape if the person engages in vaginal
intercourse with another person and inflicts “serious personal
injury upon the victim or another person[.]” Id. Defendant did
not object to this aspect of the jury instructions at trial.
Accordingly, the challenged instruction is reviewable only for
plain error. N.C.R. App. P. 10(b)(2); State v. Odom, 307 N.C. 655,
300 S.E.2d 375 (1983). “In deciding whether a defect in the jury
instruction constitutes 'plain error,' the appellate court must
examine the entire record and determine if the instructional error
had a probable impact on the jury's finding of guilt.” Odom, 307
N.C. at 661, 300 S.E.2d at 378-79. In the present case, a review
of the whole record reveals no plain error as the instructional
error had no probable impact on the jury's finding of guilt. The State presented the victim who testified that defendant
raped, kidnapped, and assaulted her. This testimony was
corroborated by witnesses who treated the victim's injuries. The
victim's injuries included extensive bruises, abrasions all over
her body, broken teeth, burst blood vessels in her eye, a shoulder
injury, and psychological effects. These injuries satisfy the
definition of serious personal injury. See, e.g., State v. Jean,
310 N.C. 157, 170, 311 S.E.2d 266, 273 (1984); State v. Herring,
322 N.C. 733, 738-39, 370 S.E.2d 363, 367-68 (1988); State v.
Ackerman, 144 N.C. App. 452, 459-61, 551 S.E.2d 139, 144-45, cert.
denied, 354 N.C. 221, 554 S.E.2d 344 (2001).
In addition, the trial court correctly listed for the jury all
of the elements of first-degree rape in accordance with the
language in the Pattern Jury Instructions. N.C.P.I. Crim. 207.10
(2002). This included telling the jury that they must find that
the State proved beyond a reasonable doubt that “the defendant
inflicted serious personal injury upon the victim.” After listing
the elements in detail, the trial court summarized what the State
must prove and the trial court used the phrase “personal injury”
instead of “serious personal injury.” The trial court's charge to
the jury must be construed contextually and isolated portions of it
will not be held prejudicial error when the charge as a whole is
correct. State v. Boykin, 310 N.C. 118, 124, 310 S.E.2d 315, 319
(1984). “'Where the charge as a whole presents the law fairly and
clearly to the jury, the fact that isolated expressions, standing
alone, might be considered erroneous affords no grounds forreversal.'” Id. at 125, 310 S.E.2d at 319 (quoting State v. Jones,
294 N.C. 642, 653, 243 S.E.2d 118, 125 (1978)).
Applying the foregoing principles to the instant case, we hold
that, although “serious personal injury” was omitted once, when the
entire jury charge is viewed contextually, it reveals no plain
error as the instructional error had no impact on the jury's
finding of guilt. Defendant's assignment of error is overruled.
IV.