State v Miller, 149 NC App 233 (00-1373) 03/05/2002

Appeal by defendant from judgment entered 27 August 1999 by Judge W. Douglas Albright in Union County Superior Court. Heard in the Court of Appeals 17 October 2001.

    Attorney General Roy Cooper, by Assistant Attorney General John F. Maddrey, for the State.

    Clark, Griffin & McCollum, L.L.P., by Joe P. McCollum, Jr., for defendant.


    BIGGS, Judge.

    Defendant appeals his conviction for second-degree rape. For the reasons herein, we hold that defendant received a fair trial free of prejudicial error.
    The evidence in this case tended to show the following: On 23 March 1999, the victim (T.P.) was living with her boyfriend when she decided to move out. Larry Dean Miller (defendant) offered to give T.P. a ride, which she accepted, packed her belongings and loaded them into defendant's car.
    Around 9:30 p.m. defendant said he had to “take a leak” and proceeded to pull to the side of a dark road. Defendant got out of the car, walked around to the passenger's side, opened the door and
proceeded to make sexual advances toward T.P. Though she refused defendant's advances, defendant told her, “[w]ell, I'm going to anyway, . . . whether you like it or not.” Defendant then got into the car through the passenger side, and started rubbing T.P.'s legs. He told her to take her clothes off because he was going to “make love” to her. Defendant locked the car door, pulled his pants down and forced T.P. to perform fellatio. According to T.P.'s testimony, defendant then pulled her on top of him and forced her to have sexual intercourse with him. Defendant ejaculated after pulling his penis out of T.P.'s vagina and used her shirt from her luggage in the back seat to wipe himself off. Afterwards, they both dressed and proceeded to her uncle's house. After defendant dropped T.P. off at her uncle's house, she told her uncle what transpired. He took her to the hospital where she was examined by a staff nurse and a rape kit was administered for an investigation. T.P. gave a statement of the alleged sexual assault to a police officer and defendant was subsequently charged with second-degree rape in violation of N.C.G.S. § 14-27.3 (1999) and second-degree sexual offense in violation of N.C.G.S. § 14-27.5 (1999).
    At trial, the State offered the testimony of several witnesses including: Mary Russ, a Rape Crisis Coordinator and Counselor with United Family Services Victim Assistance in Charlotte; Detective Ron Honeycutt of the Union County Sheriff's Department; and an expert in forensic analyses.
    The jury found defendant guilty of second-degree rape and not

guilty of second-degree sexual offense. Defendant gave notice of appeal.

    Defendant first assigns as error the trial court's decision allowing Mary Russ to testify as an expert in rape crisis management. We disagree.
    Whether a witness qualifies to give expert testimony on a matter is within the sound discretion of the trial court and will not be reversed on appeal unless there is a complete lack of evidence to support the decision. Pelzer v. United Parcel Service 126 N.C. App. 305, 484 S.E.2d 849, disc. review denied, 346 N.C. 549, 488 S.E.2d 808 (1997). If 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. State v. Bower, 135 N.C. App. 682, 522 S.E.2d. 332 (1999).
    In the case sub judice, Ms. Russ testified regarding her study and experience in rape crisis management as follows: that her professional background as a rape crisis coordinator and counselor included a Masters Degree in Education with several courses in sexual assault, child abuse and rape; that she worked exclusively within the past four years counseling victims of rape, sexual assault and child abuse; that she has nearly twenty years of

course work in these areas; and that she has, in the course of her employment, counseled approximately four hundred rape victims.
We hold that the trial court's determination that this witness possessed the requisite skills to testify as an expert to be supported by the evidence and therefore not an abuse of discretion. Accordingly, this assignment of error is overruled.

    Defendant's next two assignments are related. Defendant contests the trial court's decision to allow Ms. Russ' testimony to the following: (1) that the reaction and statements she observed from the alleged victim were “typical”; and (2) that she did not observe any behavior by the victim that was inconsistent with the events concerning the sexual assault. We disagree.
    This Court has held in State v. Marine, 135 N.C. App. 279, 520 S.E.2d 65 (1999), that
        Rule 608(a) of the North Carolina Rules of Evidence permits the use of . . . 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 read together, the Rules of Evidence thus prohibit an expert witness from commenting on the credibility of another witness.

Id. at 280-81, 520 S.E.2d at 66 (citation omitted).
    In addition, Rule 702 permits expert witnesses to explain the

basis of their opinions. Id. Thus, “a witness who renders an expert opinion may also testify as to the reliability of the information upon which he based his opinion.” Id. at 281, 520 S.E.2d at 67. 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 this case the jury, in understanding the basis of that expert's opinion. State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987).
    Further, a qualified expert may testify, like any other witness, to his or her own observations. State v. Wade, 296 N.C. 454, 251 S.E.2d 407 (1979). In addition, a medical expert offering testimony in a case involving sexual abuse may testify as to whether his observations are “consistent with” sexual abuse. State v. Aguallo, 322 N.C. 818, 370 S.E.2d 676 (1988) (holding that doctor's testimony that physical examination was “consistent with” victim's earlier statements is “vastly different from” comments on victim's credibility). An analysis of our case law illustrates the fine line between properly explaining the basis of an expert's opinion and improperly commenting on a witness' credibility.
    In State v. Wise, our Supreme Court held that the following line of questioning was proper:
        Q: Now, ma'am, could you describe her emotionally when she was telling you these things during these counseling sessions?

        A: Genuine.

Wise, 326 N.C. 421, 425, 390 S.E.2d 142, 145 (1990). The Court in Wise reasoned that the expert was merely describing her observations as to the victim's emotions, not the credibility of the victim herself. Id. at 427, 390 S.E.2d at 146.
    However, our Supreme Court in State v. Heath concluded that the following inquiry constituted improper comments as to the victim's credibility:
        Q: Ms. Broadwell, do you have an opinion satisfactory to yourself as to whether or not [V] was suffering from any type of mental condition in early June of 1983, or a mutual condition which could or might have caused her to make up a story about the sexual assault?

        [Objection; overruled.]

        A: There is nothing in the record or current behavior that indicates that she has a record of lying.

State v. Heath, 316 N.C. 337, 340, 341 S.E.2d 565, 567 (1986). The Court in Heath reasoned that, although couched in terms of a mental condition, the question was actually intended to elicit an opinion as to whether or not the victim had been lying. Id. at 342, 341 S.E.2d at 568.
    It is clear that “the line between proper and improper questioning can be quite narrow, especially in the context of sexual assault and rape cases.” State v. Marine, 135 N.C. App. at 283, 520 S.E.2d at 68. While we acknowledge this premise, we do not find that Ms. Russ' testimony in the case sub judice crossed

that line into commenting on T.P.'s credibility.
    Defendant challenges the following testimony by Ms. Russ:
        Q: Based on your experience and your training, Ms. Russ, and your working with all of these hundreds of rape victims, were the reactions and statements that you observed from [T.P.] and saw from her typical?

        [Objection; Overruled.]

        A: Absolutely.

        Q: Could you elaborate please?

        [Objection; Overruled.]

        A: With a survivor of rape or sexual assault, there is no specific reaction that one may have. They could be crying, they could --she could be crying, could be very quiet, can be hysterical, could be very talkative, could not be talkative, could be very angry. There is no set standards in which one would react or act during a time like this, especially in such a traumatized situation.

        Q: I guess the bottom line is, Ms. Russ, that I'm after, did you observe any behavior or anything in her demeanor that would [be] inconsistent with the story that she had related [to] you?

        [Objection; Overruled.]

        A: No, sir.

    We reject defendant's contention that Ms. Russ' testimony was offered to assess whether T.P. was telling the truth and hold that

Ms. Russ' testimony went to the reliability of her opinion, not to T.P.'s credibility. Recognizing that trial judges are accorded wide discretion in determining the admissibility of expert testimony, we conclude that this was a permissive use of expert testimony under Rule 702. Accordingly, this assignment of error is overruled.

    Defendant next contends that the trial court committed error by allowing the State to offer testimony of one statement made by the defendant; yet it sustained the State's objection during cross examination to the admission of subsequent statements made later that day. We disagree that it was error for the trial court to exclude the later statement.
    It is well settled that if the state submits a defendant's confession, the defendant may then introduce other statements made by him if they involve a specific issue related to the inculpatory statements put forth by the State, even though they are self- serving. State v. Fowler, 353 N.C. 599, 548 S.E.2d 684 (2001) (citations omitted); see also State v. Lovin, 339 N.C. 695, 454 S.E.2d 229 (1995). Our Supreme Court in State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 50 L. Ed. 2d 69 (1976) has held, however, that
        Where the State introduces testimony of statements made by defendant on a particular date, but introduces no evidence in regard to

        statements made by him on a subsequent date, defendant is not entitled to elicit from the State's witness testimony as to self-serving declarations made by defendant on the latter date, the State not having 'opened the door' to such testimony.

Davis, 289 N.C. at 506, 223 S.E.2d at 300; see also, Lovin, 339 N.C. at 709, 454 S.E.2d at 237 (holding “that if the State introduces into evidence a statement made by a defendant, this does not open the door for the introduction of another statement made by the defendant later in the day”).
    Moreover, statements may be admitted under this rule only if they were made during the same “verbal transaction” as the confession. State v. Vick, 341 N.C. 569, 579, 461 S.E.2d 655, 660 (1995) (holding admission of earlier statements by defendant did not mean later statements by defendant in a different room were admissible); State v. Jackson, 340 N.C. 301, 457 S.E.2d 862 (1995) (holding a statement was inadmissible where it was made the same day but at a different time as a confession).
    In the case sub judice, we are faced with two distinct, separate and contradictory statements made on the same day. The first statement was made at 2:24 a.m. on 25 March 1999, at which time defendant told law enforcement that he did not have sex with T.P. Some thirteen hours later, defendant made a second statement at 3:29 p.m. in which he explained that he did have sex with T.P. but that it was consensual. We conclude first, that these statements were not a part of the same verbal transaction as

discussed in State v. Vick since thirteen hours lapsed between the first and second statements; and second, that the State did not 'open the door' to the subsequent statement such that further examination by defendant would be required. Therefore, the trial court properly excluded defendant's subsequent statement. Having determined that the trial court did not commit error, we overrule this assignment of error.

    Defendant next argues that the trial court erred by instructing the jury on second-degree rape and refusing to instruct the jury on assault on a female and attempted second degree rape as lesser included offenses. This assignment is without merit.
    Defendant has failed to preserve his right to object to the jury's instructions on second-degree rape. North Carolina Rules of Appellate Procedure, Rule 10(b)(2)(2001) mandates that “a party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection.”
    In the case sub judice, at the charge conference, the trial judge denied defendant's request to charge the jury on the lesser included offense of assault on a female. After the jury instructions were given, but before the jury retired to the jury room, the trial court asked defendant “[i]f there [were] specific

requests for corrections, additions, or if there [were] specific objections.” The following exchange occurred in response:
        . . . .

        [Defense Counsel]: No, Your Honor.

        THE COURT: Let the record show that neither side raised any objection of any sort or description to the charge as delivered by the Court. Accordingly, the charge to the jury stands as delivered.

    Therefore, we hold that defendant has not preserved his right to object to the jury's instruction.
    Nevertheless, a trial court must give instructions on all lesser-included offenses that are supported by the evidence, even in the absence of a special request for such an instruction; and the failure to so instruct constitutes reversible error that cannot be cured by a verdict finding the defendant guilty of the greater offense. See State v. Montgomery, 341 N.C. 553, 567, 461 S.E.2d 732, 739 (1995); State v. Whitaker, 316 N.C. 515, 342 S.E.2d 514 (1986). The trial court may refrain from submitting the lesser included offense to the jury only where the “evidence is clear and positive as to each element of the offense charged” and no evidence supports a lesser-included offense. State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985). If there is any evidence that indicates the absence of an important element of the primary offense and the existence of an element of a lesser offense, the

jury must be instructed on the lesser offense as well. See State v. Annadale, 329 N.C. 557, 406 S.E.2d 837 (1991); Peacock, 313 N.C. at 558, 330 S.E.2d at 193. However, “[a] defendant is not entitled to an instruction on a lesser included offense merely because the jury could possibly believe some of the State's evidence but not all of it.” Annadale, 329 N.C. at 568, 406 S.E.2d at 844 (citation omitted).
    In the present case, defendant requested jury instructions on assault on a female and attempted second-egree rape as lesser included offenses of second-degree rape.
    First, defendant improperly requested that the jury be instructed on the charge of assault on a female as a lesser included offense of second-degree rape. This Court has held that assault on a female is not a lesser included offense of second- degree rape. See State v. Hatcher, 117 N.C. App. 78, 450 S.E.2d 19 (1994) (assault on a female is not a lesser included offense of second-degree rape). Thus, defendant was not entitled to such an instruction and the trial court properly denied this request.
    Moreover, we reject defendant's contention that he is entitled to a charge on attempted second-degree rape as a lesser included offense of second degree rape based on the ground that he did not have sexual intercourse with T.P. as required to establish an element of second-degree rape.
    This Court has held that when the defendant denies having

committed the complete offense for which he is being prosecuted, and evidence is presented by the State of every element of the offense, and there is no evidence to negate these elements other than the defendant's denial that he committed the offense, then no lesser included offense need be submitted. State v. Washington, 142 N.C. App. 657, 544 S.E.2d 249 (2001); see also State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988).
In the case sub judice, defendant was charged with second- degree rape. The essential elements of this crime are: (1) vaginal intercourse, (2) by force, and (3) against the will of the other person. State v. Hosey, 79 N.C. App. 196, 339 S.E.2d 414 (1986). In the instant case, defendant challenges the first element: vaginal intercourse. However, there is substantial evidence indicating that defendant had vaginal intercourse with Privette. The medical and scientific results collected by the State Bureau of Investigation from the administration of a rape kit clearly established that there was vaginal intercourse. The blood, pubic hair and semen extracted from samples removed from T.P. clearly indicate that defendant had vaginal intercourse with T.P. in that the samples matched defendant's DNA. In that the only evidence presented by defendant is a blanket denial that he had vaginal intercourse with Privette, we conclude that the trial court was not required to submit a lesser included offense to the jury. Accordingly, we overrule this assignment of error.

     We hold that defendant has received a fair trial, free from prejudicial error.
    No error.
    Judges MCGEE and TIMMONS-GOODSON concur.
    Report per Rule 30(e).

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