Appeal by defendant from judgments entered 17 February 2000 by
Judge Henry W. Hight, Jr., in Wake County Superior Court. Heard in
the Court of Appeals 29 April 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Sylvia Thibaut, for the State.
John T. Hall for defendant-appellant.
MARTIN, Judge.
Defendant appeals from judgments entered upon his conviction
by a jury of first degree rape, first degree sexual offense, and
two counts of taking indecent liberties with a child. In each of
the cases, the alleged victim was the defendant's minor child.
The State's evidence tends to show that defendant's wife (and
the minor victim's mother) died in 1991. Thereafter, with the
exception of a six-month period during which the victim and her
brother resided with their maternal grandparents, the minor victim
lived with defendant. The two enjoyed a good relationship until
defendant began to inappropriately touch the minor victim when she
was around eight years old (1996). From that time until 17February 1998, defendant would ask the minor victim to touch his
penis when he was undressed; place her hand on his penis and
manipulate her hand until he ejaculated; perform cunnilingus on
her; slightly penetrate her vaginal opening with his penis; force
her to perform fellatio on him; touch her breasts; make her watch
pornographic videos with him on his bed; and show her pornographic
magazines. Defendant cautioned the minor victim not to tell anyone
about these activities because it was a secret.
Despite defendant's warnings, the minor victim told her best
friend about her father molesting her when the two children were in
fourth grade. In addition, the minor victim subsequently wrote two
letters to her maternal grandfather reporting defendant's sexual
abuse of her and physical abuse of her brother. The grandfather
contacted Wake County Department of Human Services (DHS). After an
investigation involving DHS and the Raleigh Police Department,
charges were filed against defendant.
During the presentation of his evidence, defendant sought to
introduce the testimony of Dedra Copeland, another of his children,
regarding whether the minor victim's allegations of abuse were in
response to overhearing Copeland detailing her own rape by another
man in May 1995. Upon the State's objection, and after hearing
Copeland's testimony on voir dire, the trial court excluded the
evidence. Defendant thereafter testified on his own behalf and
denied sexually abusing the minor victim. Defendant, however,
admitted to beating his children with a fifteen-inch-long paddle,
making a pornographic film of himself and a girlfriend, and havingand viewing pornographic videotapes and magazines in his bedroom.
Defendant's step-son, Darvel Rouse, also testified regarding
defendant's use of the large paddle and a belt to discipline the
minor victim's younger brother. Rouse noted that the minor victim
and her brother started to become afraid of defendant in late 1993.
________________________
On appeal, defendant argues that the trial court erred in
sustaining the State's objection to Dedra Copeland's testimony
which was offered to impeach the victim. We disagree.
Only relevant evidence is admissible. N.C.R. Evid. 401. In
State v. Mackey this Court quoted, “Evidence is relevant if it 'has
any logical tendency, however slight, to prove the fact at issue in
the case.'. . . It is relevant if it can assist the jury in
'understanding the evidence.'” 137 N.C. App. 734, 737, 530 S.E.2d
306, 308 (quoting
State v. Huang, 99 N.C. App. 658, 663, 394 S.E.2d
279, 283 (1990)),
affirmed, 352 N.C. 650, 535 S.E.2d 555 (2000).
Even relevant evidence may be excluded, however, if its probative
value is substantially outweighed by the danger of unfair
prejudice. N.C.R. Evid. 403.
Under Rule 701, a lay witness may testify in the form of
opinions or inferences which are “(a) rationally based on the
perception of the witness and (b) helpful to clear understanding of
his testimony or the determination of a fact in issue.” This Court
has referred to such opinion testimony as “shorthand statement[s]
of fact,” which may “encompass[] a witness' conclusion 'as to the
appearance, condition, or mental or physical state of persons,animals, and things, derived from observation of a variety of facts
presented to the senses at one and the same time.'”
State v.
Miller, 142 N.C. App. 435, 443-44, 543 S.E.2d 201, 207 (2001)
(quoting
State v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187
(1975) citations and quotations omitted)). A trial court's
decision regarding the admissibility of evidence of this type is
reviewable upon a showing of an abuse of discretion.
State v.
Handy, 331 N.C. 515, 419 S.E.2d 545 (1992).
In the present case Dedra
Copeland testified on
voir dire,
that the minor victim and two other siblings overheard her talking
to defendant about being raped. Copeland also testified that some
of the trial testimony, which was based upon the minor victim's
statements to a therapist, “reminded” her of when she was raped.
However, when pressed about why she thought the minor victim had
overheard the conversation between her and defendant, Copeland
admitted that she only suspected as much since the door to the room
where she was having the conversation with defendant was closed.
Copeland stated that she heard laughing outside the door, saw the
children running away from the door when she opened the door and
peered outside, and the three children later asked her if she had
been really raped. In truth, Copeland had no idea how long the
children were outside the door, or which of the children had been
listening at the door. Copeland conceded that she never questioned
the minor child about what, if anything, she heard while listening
at the door, and never spoke directly to the minor victim about the
rape. Defense counsel argued that the testimony Copeland heard
“brought up this memory of what ha[d] happened in the past,” and
therefore, it should be allowed into evidence to prove that the
minor victim was merely mimicking Copeland's rape. The State
countered that there was no evidence that the minor victim actually
heard any of the details Copeland told defendant about the rape,
and that defendant should properly lay a foundation for such
testimony by re-calling the minor victim to the witness stand to
testify as to whether she had overheard Copeland's conversation
with defendant about the rape. Otherwise, the State argued, the
testimony was not relevant. After hearing the arguments of
counsel, the trial court sustained the State's objection.
Copeland's testimony was, at best, speculative and of a nature
which would have confused, more than helped, the jury.
See N.C.R.
Evid 403 (providing for the exclusion of relevant evidence if “its
probative value is substantially outweighed by the danger of . . .
confusion of the issues, or misleading the jury”). While the minor
victim's testimony about
her abuse may have reminded Copeland of
her rape, there are few details to support Copeland's opinion
testimony, within the meaning of N.C.R. Evid. 701, that the minor
victim's allegations were based upon her overhearing Copeland's
account of her rape, and therefore, not truthful. Copeland's
testimony was clearly outside of the “shorthand statement of fact”
considered by the Court in
Miller, supra. Indeed, there is
uncertainty as to whether the minor victim even overheard
Copeland's account of her rape. Hence, there was no basis beforethe trial court to admit such speculative opinion testimony and we
discern no abuse of discretion by the trial court in sustaining the
State's objection to the subject testimony. Accordingly, this
assignment of error is overruled.
Defendant has failed to argue, and therefore has abandoned,
his remaining assignments of error.
See N.C.R. App. P. 28(b)(5).
We hold defendant received a fair trial, free from prejudicial
error.
No error.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***