STATE OF NORTH CAROLINA
v. Wake County
No. 94 CRS 85399
PATRICK KENNETH LEE
Attorney General Roy Cooper, by Assistant Attorney General
Anita LeVeaux, for the State.
Ligon and Hinton, by Lemuel W. Hinton, for defendant
appellant.
McCULLOUGH, Judge.
Defendant Patrick Kenneth Lee was tried before a jury at the
22 April 1996 Criminal Session of Wake County Superior Court after
being indicted on one count of statutory rape and one count of
taking indecent liberties with a minor. The State's evidence showed
that SB, aged nine at trial, had an older brother, Alvin, and a
younger half-sister, Arille. The three children and their mother
lived with many of their mother's boyfriends after SB's mother
divorced SB's father. The family first lived with Arille's father
and then with defendant from June of 1993 until March of 1994.
While SB's mother worked her evening job, defendant watched the
children. In February of 1994, SB's school phoned SB's mother andtold her that SB was complaining about pain between her legs. SB's
mother immediately took her to Kaiser Permanente where she was
examined by pediatrician Dr. Allen Bell.
Dr. Bell's examination revealed SB had a small tear in her
vaginal area and a brown frothy discharge. Tests indicated that SB
was infected with herpes simplex type two. Dr. Bell reported the
suspected sexual abuse to the Department of Social Services (DSS).
Dr. Bell testified at trial that a person can contract herpes only
by sexual contact. He further testified that in his medical
opinion, SB “had penetrating trauma to her vaginal area resulting
in a sexually transmitted disease.” On cross-examination, Dr. Bell
testified that SB had been seen at Kaiser in November of 1992 for
complaints of pain in her private area and blood in her underpants.
Unlike the 1994 exam, SB did not have vaginal discharge nor an
abnormal genital exam in 1992.
DSS referred SB to the Child Sexual Abuse Team at Wake Medical
Center. Dr. Denise Everett, the Director of the Team, examined SB
on 15 March 1994. Dr. Everett noted that SB's vaginal area
displayed abnormalities and that she tested positive for herpes.
At trial, Dr. Everett testified that, in her medical opinion, SB
had been sexually abused.
SB testified that she liked it when defendant played
basketball with her and her brother, but did not like it when
defendant put his penis in her “private part.” On one occasion,
defendant came into her room while she was making her bed and told
her to take off her underwear. Defendant sat down on the bed, tookhis penis out of his pants, pulled SB on top of him and “stuck his
penis in [her].” Defendant wiped “something gooey and stuff” off
the bed. Defendant then told SB that if she told anybody, he was
going to beat her mother. In the past, defendant had slapped SB's
mother and had thrown her down on the couch. On another occasion,
defendant entered SB's room while she was sleeping and pulled the
covers off her. SB stated that defendant took off his blue robe and
stuck his penis in her. After defendant moved out of the house,
she wrote notes to her mother and Michael (her mother's boyfriend
at the time) stating that defendant had molested her and that she
was afraid of dying. SB's mother positively identified SB's
handwriting in the notes. SB further testified that Michael did
not put his penis inside of her.
Detective Holly Rinaldo of the Raleigh Police Department
interviewed SB. SB described three separate events of sexual
abuse, which occurred in her bedroom. Detective Rinaldo secured a
search warrant for a test of defendant's blood. Dr. Peter Leone,
an expert in infectious disease, testified that tests of
defendant's blood indicated he was infected with herpes simplex one
and two.
Defendant presented evidence as follows: Defendant testified
that he began living with SB and her family in October 1993, not in
the summer of 1993. He denied sexually abusing SB. Defendant
admitted that he was on federal probation for driving while
impaired at Fort Bragg. Durwood Matheny, a forensic document
examiner testified that he was unable to identify or eliminate SBor her brother as the author of the notes which indicated defendant
sexually abused SB. Beatrice McKenney, SB's paternal great aunt,
testified that Michael's conduct with SB was overly friendly and
inappropriate. Dr. Moses Elam, a dermatologist, testified that
SB's complaints in 1992 were compatible with a herpes episode.
After deliberating, the jury found defendant guilty of first-
degree rape and taking indecent liberties with a minor. The trial
court sentenced defendant to life imprisonment. Defendant appealed
to this Court, arguing that the trial court committed plain error
in permitting the State to elicit evidence of his character. Upon
careful review of the proceedings below, we disagree with
defendant's arguments and conclude he received a fair trial free
from error.
Defendant contends the trial court erroneously admitted
testimony of his character from Detective Rinaldo and SB's mother.
Detective Rinaldo testified, without objection, that she “had
information that [defendant] was on parole, so [she] contacted the
parole officer” in an attempt to locate defendant. Also without
objection, SB's mother testified that, approximately three months
into her relationship with defendant, she tested positive for
syphilis and defendant tested “weakly positive” for syphilis. SB's
mother further testified, without objection, that she suspected
defendant was seeing other women, that women used to call the
house, and that defendant had brought a woman to the house.
Defendant argues the admission of evidence that (1) he was on
parole, (2) he had relationships with other women while he wasdating SB's mother, and (3) he had tested positive for syphilis,
violated N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001). Rule 404(b)
provides that:
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.
Defendant argues the aforementioned evidence convinced the jury he
was a person of bad character who must have committed the charged
offenses.
Defendant did not object to the trial court's instructions,
and therefore, asks this Court to review for plain error. Plain
error arises when the error is “'so basic, so prejudicial, so
lacking in its elements that justice cannot have been done[.]'”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).
“'Before deciding that an error by the trial court amounts to
“plain error,” the appellate court must be convinced that absent
the error the jury probably would have reached a different
verdict.'” State v. Gardner, 315 N.C. 444, 450, 340 S.E.2d 701, 706
(1986) (quoting Odom, 307 N.C. at 661, 300 S.E.2d at 378-79).
Assuming arguendo that the evidence of defendant's parole,
unfaithfulness and weakly positive syphilis test were improperly
admitted, we cannot say the trial court committed "plain error," oreven prejudicial error under N.C. Gen. Stat. § 15A-1443 (2001). We
do not believe there is a reasonable possibility the trial would
have had a different outcome if the jury had not known that
defendant was on parole, that he was unfaithful to SB's mother, and
that he had contracted syphilis. SB testified that defendant came
into her room on more than one occasion and stuck his penis in her
“private part.” SB told her mother, her mother's previous
boyfriend, and Detective Rinaldo that defendant had sexually
molested her. Both defendant and SB tested positive for herpes
simplex type two. We hold that there was substantial evidence that
defendant committed the crimes of which he was convicted,
irrespective of the testimony elicited from SB's mother and
Detective Rinaldo. Accordingly, the trial court did not commit
plain error by allowing the testimony into evidence.
No error.
Chief Judge EAGLES and Judge HUDSON concur.
Report per Rule 30(e).
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