STATE OF NORTH CAROLINA
v
.
Chatham County
Nos. 99 CRS 006212-006214,
GEORGE HAMPTON SPIVEY, 050307, 050352, 050355-050357
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Jennie Wilhelm Mau, for the State.
Russell J. Hollers, III, for defendant-appellant.
EAGLES, Chief Judge.
George Hampton Spivey (“defendant”) appeals from judgments
entered on jury verdicts finding him guilty of one count of
statutory rape, three counts of statutory sexual offense and four
counts of indecent liberties with a child. After careful
consideration of the briefs and record, we discern no prejudicial
error.
The State's evidence tended to show that defendant and Edna
Spivey (“Edna”) met in 1990 and were married in 1997. Prior to
their marriage, they had a daughter, B.S., in 1991. Defendant had
two daughters from a previous marriage, J.S. and A.S. Edna had adaughter from a previous relationship, L.T. (“victim”). The victim
was four years old when Edna and defendant met in 1990.
In the early summer of 1999, the victim, approximately
thirteen years old, worked at a store near her home. Defendant
would wake the victim up in the morning and take the victim to work
in his van. On some mornings, defendant would force the victim to
either have sexual intercourse with him or perform oral sex on him.
The victim and her family took a trip to King's Dominion during the
4 July 1999 holiday weekend. Defendant forced the victim to have
sexual intercourse with him in his van at the campground while the
rest of the family was in another area of the park. On the morning
of 13 July 1999, defendant awakened the victim in order for her to
catch the school bus for summer school. On this morning, defendant
asked the victim for oral sex and made the victim perform oral sex
on him. While the victim was attending summer school, defendant
would wake the victim up approximately every other morning between
3:00 a.m. and 5:00 a.m. and have sexual intercourse with her or
make the victim perform oral sex on him.
In the afternoon of 14 July 1999, defendant went to the
bathroom to take a shower and motioned for the victim to come into
the bathroom. Inside the bathroom, defendant told the victim to
perform oral sex on him and the victim complied. Later that
afternoon, the victim and her boyfriend were lying on the victim's
bed in her bedroom. Defendant saw the victim and her boyfriend
kissing. Defendant called the victim a slut, slapped her, threw
her against a wall and choked her. Edna returned home anddefendant left for work. Edna saw that the victim's face and neck
were red. She asked the victim if defendant had ever touched her.
The victim then told her mother about the sexual abuse she suffered
by defendant. At this time, A.S. told Edna she too had been
sexually abused by defendant. Edna notified the police.
With respect to the victim, defendant was charged with one
count of statutory rape, three counts of statutory sexual offense
and four counts of indecent liberties with a child. Defendant was
also charged with one count of statutory sexual offense against his
daughter A.S. and one count of taking indecent liberties with a
minor against another daughter, J.S. The jury returned verdicts of
not guilty of the charges involving A.S. and J.S. but found
defendant guilty of all charges involving the victim. The trial
court sentenced defendant to a minimum term of imprisonment of 460
months and a maximum term of 570 months. Defendant appeals.
On appeal, defendant contends that the trial court erred in:
failing to provide defendant with certain information from
documents sent to the trial court from the Chatham County
Department of Social Services; allowing certain testimony from the
victim and admitting certain exhibits; admitting certain testimony
from Edna Spivey, Etta Foushee and Glen Hackney; allowing the
expert opinion testimony of Dr. Karen St. Claire; instructing the
jury on expert testimony; failing to intervene ex mero motu during
the State's closing argument; and failing to affirmatively exercise
its discretion pursuant to G.S. § 15A-1233. Additionally,
defendant contends that the trial court committed plain error infailing to intervene during “vouching” testimony of Jeanne Arnts.
After careful consideration, we discern no prejudicial error.
Defendant presents arguments relating to 11 of the 16
assignments of error in the record on appeal. Any assignments of
error not argued in defendant's brief are deemed abandoned. N.C.R.
App. P. 28(b)(6).
Defendant first contends that the trial court erred in failing
to provide defendant with certain information from documents sent
to the trial court from the Chatham County Department of Social
Services.
First, we note that counsel for the defendant apparently
unsealed and reviewed documents sealed by the trial court after an
in camera review.
A defendant who is charged with sexual
abuse of a minor has a constitutional right to
have the records of the child abuse agency
that is charged with investigating cases of
suspected child abuse, as they pertain to the
prosecuting witness, turned over to the trial
court for an in camera review to determine
whether the records contain information
favorable to the accused and material to guilt
or punishment. If the trial court conducts an
in camera inspection but denies the
defendant's request for the evidence, the
evidence should be sealed and “placed in the
record for appellate review.” On appeal, this
Court is required to examine the sealed
records . . . .
State v. McGill, 141 N.C. App. 98, 101, 539 S.E.2d 351, 355 (2000)
(citations omitted) (emphasis added). This Court does not condone
counsel's unilateral unsealing and reviewing of sealed documents
without an appropriate court order authorizing access. Our records
do not reflect a request by defense counsel or an order allowingcounsel to review these sealed records. Counsel's conduct is
sanctionable.
Defendant argues that these records contained exculpatory,
relevant and material information relevant to his defense.
Defendant specifically argues that an intake report for the victim
from Holly-Hill Charter Behavioral Health System is exculpatory.
This report states that the victim was depressed about “sexual
abuse that her uncle did to her.” Defendant also contends that
this information could have been used to impeach the victim “with
prior inconsistent statements wherein she named another person as
the perpetrator.”
“On appeal, this Court is required to examine the sealed
records to determine if they contain information that is 'both
favorable to the accused and material to [either his] guilt or
punishment.'” McGill, 141 N.C. App. at 101, 539 S.E.2d at 355
(citations omitted). “'Favorable' evidence includes evidence which
tends to exculpate the accused, as well as 'any evidence adversely
affecting the credibility of the government's witnesses.'” Id. at
102, 539 S.E.2d at 355 (citations omitted). “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 in the outcome.'” State v.
Thompson, 139 N.C. App. 299, 306, 533 S.E.2d 834, 839-40 (2000)
(quoting United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d
481, 494 (1985)). Here, the one statement from the victim is neither favorable
to defendant nor material.
“Evidence which tends to show nothing more
than that someone other than the accused had
an opportunity to commit the offense, without
tending to show that such person actually did
commit the offense and that therefore the
defendant did not do so, is too remote to be
relevant and should be excluded.”
State v. Brewer, 325 N.C. 550, 564, 386 S.E.2d 569, 576 (1989)
(quoting State v. Britt, 42 N.C. App. 637, 641, 257 S.E.2d 468, 471
(1979)), cert. denied, 495 U.S. 951, 109 L. Ed. 2d 541 (1990). The
victim's statement was merely that she was depressed because of
“sexual abuse that her uncle did to her.” This statement does not
show that the “uncle” committed the offenses charged here or that
defendant did not commit the charged offenses. Also, based on the
evidence here, there is no reasonable probability that the outcome
would have been different had this statement been disclosed. In
addition, defendant was also tried on charges of abusing the
victim's sister, A.S. Defendant was aware of A.S.'s allegation
about abuse by her “Uncle Pete.” This assignment of error is
overruled.
Defendant next argues that the trial court erred in allowing
certain testimony from the victim and admitting certain exhibits in
evidence. We do not agree.
At trial, the victim testified about other incidents of sexual
abuse by defendant that were not the subject of the indictments.
This testimony also provided a foundation for the introduction in
evidence of nine exhibits by the State. These exhibits includedphotographs of the victim partially dressed, two vibrators and a
book entitled “Magic of Sex.” The victim testified that defendant
took photographs of her with her towel pulled down while she was
getting out of the shower. Other photographs were of the victim's
breasts and of the victim while defendant put his arms on her
breasts. The victim also testified about incidents where defendant
would insert a vibrator into her vagina. Further, the victim
testified that defendant told her to watch an “adult” movie on the
television. After the movie finished, defendant asked the victim
for a “quickie” and then defendant had sexual intercourse with the
victim.
Defendant contends that the testimonial and exhibit evidence
should have been excluded because they were inadmissible character
evidence and that any probative value was outweighed by their
prejudicial effect. Defendant argues that the trial court did not
make specific findings regarding any similarities or remoteness in
time between the Rule 404(b) evidence and the crimes charged, so as
to explain the trial court's reasoning or that show the exercise of
its discretion. We are not persuaded.
Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
G.S. § 8C-1, Rule 404(b) (2001). Our courts have held that Rule
404(b) is a rule of inclusion. State v. Golphin, 352 N.C. 364,443, 533 S.E.2d 168, 221 (2000), cert. denied, 532 U.S. 931, 149 L.
Ed. 2d 305 (2001).
Thus, “even though evidence may tend to show
other crimes, wrongs, or acts by the defendant
and his propensity to commit them, it is
admissible under Rule 404(b) so long as it
also 'is relevant for some purpose other than
to show that defendant has the propensity for
the type of conduct for which he is being
tried.'”
State v. Frazier, 344 N.C. 611, 615, 476 S.E.2d 297, 299 (1996)
(citations omitted) (emphasis in original). Our courts have “been
liberal in allowing evidence of similar offenses in trials on
sexual crime charges.” Id. at 615, 476 S.E.2d at 300.
In denying defendant's motion in limine to exclude this Rule
404(b) evidence, the trial court stated that the evidence tends to
show “plan, scheme, or design, or purpose on the part of the
defendant.” The trial court also stated that he had not heard
anything that “would be objectionable.” The trial court also ruled
on the remoteness of time issue by stating that “the time of the
offenses and the time of the 404(b) evidence, they are not so
remote as to be inapplicable to this circumstance.” Here, the
evidence shows a pattern of sexual incidents between defendant and
the victim which is indicative of a plan, scheme, design, and
purpose. The evidence is not too remote in time. The testimony
showed that the abuse began when the victim was approximately four
or five years old. “[A] ten-year gap between incidents is not
sufficiently remote in time to preclude admission under 404(b).”
State v. Williamson, 146 N.C. App. 325, 334, 553 S.E.2d 54, 60
(2001), disc. review denied, 355 N.C. 222, 560 S.E.2d 366 (2002). Further, “[w]hen 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 majority of the
testimony and exhibits related to incidents that occurred
contemporaneously or within months of the misconduct charged here.
Further, Rule 403 does not prohibit this evidence. Rule 403
states that “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” G.S. § 8C-1, Rule 403
(2001). The decision to admit or exclude evidence pursuant to Rule
403 is within the trial court's discretion. State v. Wallace, 351
N.C. 481, 523, 528 S.E.2d 326, 352-53, cert. denied, 531 U.S. 1018,
148 L. Ed. 2d 498 (2000), reh'g denied, 531 U.S. 1120, 148 L. Ed.
2d 784 (2001). “A trial court may be reversed for abuse of
discretion only upon a showing that its ruling was manifestly
unsupported by reason and could not have been the result of a
reasoned decision.” State v. Riddick, 315 N.C. 749, 756, 340
S.E.2d 55, 59 (1986). Here, defendant has not shown an abuse of
discretion by the trial court. This assignment of error is
overruled.
Defendant also contends that the trial court erred in
admitting certain testimony from Edna Spivey (“Edna”), Etta Foushee
(“Foushee”), and Glen Hackney (“Hackney”). Defendant argues thatthe testimony of these three witnesses was inadmissible since it
corroborated the Rule 404(b) evidence that should not have been
admitted. We do not agree.
The testimony of Edna Spivey, Foushee, and Hackney was offered
and admitted for the purpose of corroborating the victim's
testimony. “'Corroborative evidence by definition tends to
“strengthen, confirm, or make more certain the testimony of another
witness.”'” State v. Rhue, __ N.C. App. __, __, 563 S.E.2d 72, 77
(2002) (citations omitted). Because we have determined that the
victim's testimony regarding the Rule 404(b) evidence was
admissible, the testimony of these three witnesses is admissible
for the purpose of corroborating the victim's testimony. This
assignment of error is overruled.
Defendant next contends that the trial court erred in allowing
the expert opinion testimony of Dr. Karen St. Claire, M.D. (“Dr.
St. Claire”), in its instructions to the jury on expert testimony,
and in failing to intervene ex mero motu during the State's closing
argument. We do not agree.
Defendant argues that Dr. St. Claire stated that she had an
opinion with respect to whether the victim's injuries were
“consistent with a child who had been sexually abused” but never
actually stated her opinion. Instead, Dr. St. Claire testified as
to the factors that led to her unstated opinion. Defendant also
argues that the trial court's instruction on expert witnesses “told
the jury that [Dr. St. Claire] had given an opinion.” Defendant
further argues that the State took improper advantage of this errorin closing argument by arguing to the jury that Dr. St. Claire
testified that in her opinion the victim's “medical evaluation was
consistent with a sexually abused chid.” Defendant contends that
the trial court should have intervened ex mero motu.
Rule 702(a) of the North Carolina Rules of Evidence 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.” G.S. § 8C-1, Rule 702(a)
(2001). “[A]n expert medical witness may render an opinion
pursuant to Rule 702 that sexual abuse has in fact occurred if the
State establishes a proper foundation, i.e. physical evidence
consistent with sexual abuse.” State v. Dixon, 150 N.C. App. 46,
52, 563 S.E.2d 594, 598, writ and temporary stay allowed, 355 N.C.
752, 565 S.E.2d 185 (2002).
Here, defendant did not object to the State tendering Dr. St.
Claire “as a medical doctor specializing in pediatrics” and “an
expert in the area of medical evaluation and diagnosis of child
sexual abuse.” Dr. St. Claire performed a physical examination of
the victim and testified that she observed a “very broad notch” or
“deep notch which is an absence of hymen.” Dr. St. Claire further
testified that the absence of the hymen in that area is a
“significant finding” and “an abnormal finding.” The State asked
Dr. St. Claire:
Q And based on your years of study in this
field and your practical application ofyour studies and your treatment of
patients in your office over the years,
were you able to form an opinion as to
whether [the victim's] medical
evaluation, the entire medical
evaluation, including your physical
evaluation, was consistent with a child
who had been sexually abused?
The trial court then overruled defendant's objection based on an
inadequate foundation. The questioning continued:
Q Were you able to form an opinion?
A Yes, I was.
Q And what was your opinion?
A If I can add to that broadly, all of the
elements that go into forming that
opinion are in the report that we
prepared. And those consist of the
elements that were obtained in terms of
the medical evaluation, which were
reviewed and the case reviewed, and which
brought us to the conclusion about
whether this child had a history
consistent with having been sexually
abused. And again, that was based on
both her physical exam which was
abnormal, many presenting symptoms during
her own personal interview including her
really sad demeanor during part --
Defendant then objected due to Dr. St. Claire not being present at
the victim's interview. The trial court sustained the objection
but allowed the State to lay a foundation with respect to the
interview. Dr. St. Claire later testified about how she obtained
the information regarding the victim's demeanor and what the victim
indicated in the interview.
A The information is part of the case
review. As we review all of the
information, I provide the part of the
medical evaluation that was the physical
exam that I performed, the informationthey obtained from [the victim] and her
mother. Ms. Arnts, her part of the
medical evaluation is to interview the
child. And she presented that at the
case review. We prepare a report where
all of that information is recorded. And
the two of us are responsible in the
preparation of this report. And that is
the basis of the evaluation that we did,
the medical evaluation.
Dr. St. Claire later testified that due to the notch in the
victim's hymen “the conclusion is that there has been penetrating
trauma that has torn the hymen in that area” and that it “indicates
that something has disrupted the hymen in that area.”
A careful review of the transcript reveals that Dr. St. Claire
did not explicitly state her “opinion as to whether [the victim's]
medical evaluation, . . . was consistent with a child who had been
sexually abused.” Dr. St. Claire testified that she performed a
physical examination and reviewed the report prepared by Arnts in
developing her opinion. If Dr. St. Claire had explicitly testified
that in her opinion the victim was sexually abused or the victim's
condition was consistent with a child who had been sexually abused,
that opinion would be admissible. An expert opinion that a victim
has been sexually abused is admissible when that opinion is based
on a physical exam and a medical history of the victim. See State
v. Brothers, __ N.C. App. __, __, 564 S.E.2d 603, 608 (2002).
At trial, defendant objected to the proposed instruction on
expert witnesses. The trial court overruled defendant's objection
and instructed the jury that:
The expert opinion testimony that the
medical evaluation of [the victim] was
consistent with child sexual abuse may beconsidered by you only if you find that it
does corroborate the victim's testimony at
this trial. That is, if you believe this
opinion testimony tends to support the
testimony of the victim, the testimony is
admitted solely for the purpose of
corroboration and not as substantive evidence.
Defendant argues that this instruction told the jury that Dr. St.
Claire had given an opinion.
The basis for defendant's objection to the proposed
instruction at trial was based on the admissibility of the opinion,
not whether Dr. St. Claire actually stated an opinion. Defendant
stated that he “object[ed] to the introduction or -- for the
stating of that opinion at trial. I will similarly object to that
instruction being given.” The proposed instruction conformed to
the pattern jury instructions for expert witnesses. After the
trial court instructed the jury, defendant only stated that “the
only objection I have is the one I have raised previously.”
Defendant did not offer a substitute instruction.
Defendant also argues that the trial court failed to intervene
ex mero motu in the State's closing argument. The State argued
that:
[Dr. St. Claire] had the history of what went
on. She had access to Jeanne Arnts and her
interview. And you have seen the interview
and what [the victim] said, so I'm not going
to go into that. And with all of that
information, she came up still with a medical
diagnosis -- with an opinion -- that the
medical evaluation showed that [the victim]
was consistent with a sexually abused child.
She didn't say: I make no opinion, no findings
of fact because she had sex with somebody
else. I can't do that. She looked at
everything, and she took this witness stand,
and she told you that in her opinion, [thevictim's] medical evaluation was consistent
with a sexually abused child.
“When a defendant fails to object to the arguments at trial,
he must establish that the remarks were so grossly improper that
the trial judge abused his discretion by failing to intervene ex
mero motu.” State v. Castor, 150 N.C. App. 17, 30, 562 S.E.2d 574,
583 (2002). “[T]o warrant a new trial, the prosecutor's remarks
must have perverted or contaminated the trial such that they
rendered the proceedings fundamentally unfair.” State v. Mann, 355
N.C. 294, 307-08, 560 S.E.2d 776, 785 (2002), cert. denied, __ U.S.
__, __ L. Ed. 2d __ (Nov. 4, 2002) (No. 02-6059). “However,
statements contained in closing arguments to the jury are not to be
placed in isolation or taken out of context on appeal. Instead, on
appeal we must give consideration to the context in which the
remarks were made and the overall factual circumstances to which
they referred.” State v. Green, 336 N.C. 142, 188, 443 S.E.2d 14,
41, cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547 (1994).
Dr. St. Claire did testify that she had an opinion. She also
testified that the notch in the victim's hymen was due to a
“penetrating trauma.” While Dr. St. Claire did not specifically
state what her opinion was, her testimony considered in its
entirety would not render the State's closing argument grossly
improper or the proceedings fundamentally unfair. These
assignments of error are overruled.
Defendant further contends that the trial court committed
plain error in not intervening during “vouching” testimony of
Jeanne Arnts (“Arnts”). Arnts, a clinical social worker, conductedan interview of the victim as part of the victim's medical
evaluation. Defendant contends that the following three instances
of testimony by Arnts constitute inadmissible vouching. Arnts
testified that: “[t]hat's the kind of detail that I think it would
be hard for her to come up with otherwise”; “[y]ou know, I think
what she described is very believable context”; and “I felt that
the context in which she gave that was very believable and provided
corroboration. Was it absolute? No; but it provided corroboration
for her validity.” Defendant argues that these statements
constitute testimony about the believability of the victim's
testimony and that it vouched for the victim's credibility.
“In order to prevail under a plain error analysis, a defendant
must show: (1) there was error; and (2) without this error, the
jury would probably have reached a different verdict.” State v.
Hamilton, __ N.C. App. __, __, 563 S.E.2d 292, 296 (2002).
“Reversal for plain error is only appropriate where the error is so
fundamental that it undermines the fairness of the trial, or where
it had a probable impact on the guilty verdict.” State v. Floyd,
148 N.C. App. 290, 295, 558 S.E.2d 237, 240 (2002).
“Expert opinion testimony is not admissible to establish the
credibility of the victim as a witness.” Dixon, 150 N.C. App. at
52, 563 S.E.2d at 598. “[A]n expert witness may testify, upon a
proper foundation, as to the profiles of sexually abused children
and whether a particular complainant has symptoms or
characteristics consistent therewith.” State v. Stancil, 355 N.C.
266, 267, 559 S.E.2d 788, 789 (2002). “The fact that this evidencemay support the credibility of the victim does not alone render it
inadmissible.” State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359,
367 (1987). “However, those cases in which the disputed testimony
concerns the credibility of a witness's accusation of a defendant
must be distinguished from cases in which the expert's testimony
relates to a diagnosis based on the expert's examination of the
witness.” State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651,
655 (1988).
Here, the excerpts complained of by defendant were in response
to questions regarding characteristics of sexually abused children.
On cross examination, defendant asked Arnts the following:
Q Now, when you are conducting your
evaluations and your interviews, doing
your interviews, that you are looking for
certain things to tell you whether or not
in your opinion what's being told you to
actually happened or whether it's a
fabrication or whether it's a fantasy or
whether it's been suggested to a person.
Is that fair?
A Yes.
Q And one of the things that you are
looking for are details --
A Yes.
On redirect, the State asked Arnts:
Q And you had talked about or you were
asked on cross -- about whether or not
you looked for certain things to try
[sic] determine if a child is fantasizing
making it up, telling you. What is it
that you do look for for trying to
determine in your own mind whether or not
a child is fantasizing or making it up or
whatever?
. . . . A We do look for suggestibility of the
child. . . . We look very specifically
for a child to be able to provide
specific contextual details.
. . . .
Q And that's detail, is it not?
A I think so. That's a piece of
information that I don't know how she
would have gotten otherwise. I mean it
wasn't -- she said: This is what he told
me. She described her experiences with
that. That's the kind of detail that I
think it would be hard for her to come up
with otherwise.
On re-cross examination, defendant questioned Arnts again on
details.
A I don't think 14 year olds though were
privy to that medical problem. But she
could have gotten the information
elsewhere. It's possible. You know, I
think what she described is very
believable context. But it's not absolute
that she could have only gotten it from
there.
. . . .
A So, I mean, I felt that the context in
which she gave that was very believable
and provided corroboration. Was it
absolute? No; but it provided
corroboration for her validity.
The three statements defendant contends are improper vouching
were clarifications or responses to defendant's cross examination
of Arnts. The first section of testimony complained of occurs on
re-direct in response to questions raised on cross examination by
defendant. Arnts testified regarding the procedure and method she
used to evaluate the victim and her story. The other two sections
were on re-cross examination by defendant who continued to questionArnts about the methods she used to evaluate the victim. Arnts
testified about the characteristics of sexually abused children and
their ability to impart detail. Arnts testified about the
procedure she, as a clinical social worker, used to evaluate the
victim's story. Arnts was not testifying about the credibility of
the victim.
Even if admission of this testimony was error, it does not
constitute plain error. “Plain error is error 'so fundamental as
to amount to a miscarriage of justice or which probably resulted in
the jury reaching a different verdict than it otherwise would have
reached.'” State v. Hannah, 149 N.C. App. 713, 720, 563 S.E.2d 1,
6 (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251
(1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)),
disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002). Here, the
victim testified about the instances of sexual abuse. Other
witnesses corroborated the victim's accounts of sexual abuse.
Physical evidence of sexual abuse existed in the form of Dr. St.
Claire's conclusion “that there has been penetrating trauma that
has torn the hymen.” In light of the evidence introduced at trial,
we cannot say that these three statements by Arnts tipped the
scales against defendant.
Next defendant contends that the trial court erred in failing
to exercise its discretion pursuant to G.S. § 15A-1233. Defendant
argues that the trial court did not properly exercise its
discretion in refusing to provide a transcript for the jurors upon
the jury's request. Defendant contends that the trial court'srefusal here is similar to the trial court's refusal in State v.
Barrow, 350 N.C. 640, 517 S.E.2d 374 (1999). We are not persuaded.
In Barrow, a capital case, the jury requested a transcript of
the testimony from four witnesses. Id. at 645, 517 S.E.2d at 377.
The trial court refused the request stating that it did not “have
the ability to” provide a transcript. Id. Barrow went on to state
that “the trial court stated that it did not have the ability to
present the transcript to the jury, indicating a failure to
exercise discretion.” Id. at 648, 517 S.E.2d at 379 (emphasis in
original).
Here, after deliberating for approximately one hour and twenty
minutes, the jury sent a note to the trial court requesting “a
transcript of the trial for our discussion.” The trial court
brought the jury back to the courtroom and stated:
I am sorry to say that I cannot do that.
That's not available. And it would just take
too much time. And everything in the
transcript wouldn't be fitting your
discussions. You are going to have to, as
best you can, rely on your recollection of
what was presented during the course of the
trial. And that's all I can tell you about
that.
The jury returned to its deliberations and reached a verdict
approximately sixty-five minutes later.
Here, the jury did not request certain testimony for review
as in Barrow, but “a transcript of the trial.” G.S. § 15A-1233(a)
(2001) states:
If the jury after retiring for
deliberation requests a review of certain
testimony or other evidence, the jurors must
be conducted to the courtroom. The judge inhis discretion, after notice to the prosecutor
and defendant, may direct that requested parts
of the testimony be read to the jury and may
permit the jury to reexamine in open court the
requested materials admitted into evidence.
(Emphasis added.) The situation here is analogous to State v.
Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994). There, the jury
requested “'copies of the transcripts[.]'” Id. at 354, 451 S.E.2d
at 152. In response, the trial court stated “'[i]t is not possible
for you to have transcripts to take into the jury room. You are
going to have to rely on your individual, and collective
recollection as to what transpired.'” Id. Abraham held that:
While N.C.G.S. § 15A-1233(a) gives the trial
court the discretion to permit the jury to
reexamine writings that have been received
into evidence and to rehear specific parts of
trial testimony, it does not give the trial
court authority, discretionary or otherwise,
to provide copies of trial transcripts to
jurors.
Id. Here the trial court did not have authority to provide a
transcript of the entire trial to the jury. Accordingly, the trial
court did not err in denying this request by the jury.
Accordingly, we discern no prejudicial error.
No prejudicial error.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).
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