NO. COA02-1254

NORTH CAROLINA COURT OF APPEALS

Filed: 04 November 2003

    Appeal by defendant from judgment entered 15 April 2002 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 8 September 2003.

    Roy Cooper, Attorney General, by R. Kirk Randleman, Assistant Attorney General, for the State.

    Russell J. Hollers, III, for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Talmadge Artemus Coley, was found guilty of taking indecent liberties with a minor. He was given a suspended sentence of 21 to 26 months and placed on probation. He appeals his conviction, setting forth one assignment of error. For the reasons discussed herein, we find no error.
    A recitation of the facts is not necessary for the determination of the sole issue presented in this case: whether the trial court erred by refusing to allow defendant to present evidence of prior sexual abuse allegations made by the victim. Wehold that the trial court did not err.
    Defendant argues that the trial court did not allow him to present a defense when it ruled that evidence from three witnesses was inadmissible pursuant to Rules 412 and 403 of the North Carolina Rules of Evidence.
    At trial, defendant cross-examined the victim on voir dire about her early childhood. The victim stated that she did not remember her childhood or speaking with a social worker about previous sexual abuse. Defendant attempted to cross-examine the victim on an issue about the victim's sister being raped. The trial court sustained objections pursuant to Rules 403 and 412.
    Defendant later called Patricia Lutman, a social worker with the Forsyth County Department of Social Services (DSS). Lutman was the victim's social worker from 1992 to 1996. During a voir dire examination, Lutman read notes from 19 October 1994 concerning the victim's statements to her foster parent, Joanne Oxendine, about previous sexual abuse by the victim's father. Lutman never interviewed the victim about these statements. After an investigation, the allegations were not substantiated. Lutman later spoke with Cynthia Stewart, a social worker at Baptist Hospital and told her that the victim had told others that she had fabricated the stories of sexual abuse by her father. The trial court sustained the State's objection to this testimony under Rules412 and 403 of the North Carolina Rules of Evidence.
    The State subsequently called Cynthia Stewart, a social worker at North Carolina Baptist Hospital. Stewart had interviewed the victim in January 2000 because of concerns that she had been sexually abused by defendant. In Stewart's opinion, the victim displayed characteristics consistent with a sexually abused child. When Stewart was approached by Lutman in 1994, Stewart made a note that she did not believe the victim had made a false accusation, even though Lutman told her that the victim had “since told others she made up what she told [Oxendine].” The trial court sustained the cross-examination of Stewart on this issue pursuant to Rule 412.
    North Carolina's Rape Shield Law, under Rule 412 of the North Carolina Rules of Evidence, prohibits the introduction of a complainant's previous sexual activity. Rule 412 provides, in pertinent part:
(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:
    (1) Was between the complainant and the defendant; or
(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or
    (3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of thealleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or
    (4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.
(c) Sexual behavior otherwise admissible under this rule may not be proved by reputation or opinion.
(d) Notwithstanding any other provision of law, unless and until the court determines that evidence of sexual behavior is relevant under subdivision (b), no reference to this behavior may be made in the presence of the jury and no evidence of this behavior may be introduced at any time during the trial of:
(1) A charge of rape or a lesser included offense of rape;
(2) A charge of a sex offense or a lesser included offense of a sex offense; or
(3) An offense being tried jointly with a charge of rape or a sex offense, or with a lesser included offense of rape or a sex offense.

N.C. Gen. Stat. § 8C-1, Rule 412 (2003). A prior allegation of abuse is considered “sexual activity” within the meaning of Rule 412. State v. Bass, 121 N.C. App. 306, 310, 465 S.E.2d 334, 336 (1996) (citing State v. Ollis, 318 N.C. 370, 374, 348 S.E.2d 777, 780 (1986)). “Any 'sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial' is deemed irrelevant unless an exception applies. Id. (quoting State v. Wright, 98 N.C. App. 658, 661, 392 S.E.2d 125, 127 (1990)). Thefour exceptions given in Rule 412(b) do not apply here. Thus, the evidence was irrelevant under Rule 412.
    Rule 403 provides 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.” N.C. Gen. Stat. § 8C-1, Rule 403 (2003). Whether or not to exclude evidence under this rule is a matter within the sound discretion of the trial court, and that ruling may be reversed for an abuse of discretion only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988), overruled in part on other grounds, 351 N.C. 277, 523 S.E.2d 663 (2000). This Court, therefore, will not intervene where the trial court has properly weighed both the probative and prejudicial value of the evidence and made its ruling accordingly. Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 524 S.E.2d 591 (2000).
    In the instant case, there was evidence that Lutman had been told that the victim had told others that she had fabricated prior allegations of sexual abuse. The trial court stated that “the prejudicial effect ... totally outweighs any probative value [theevidence] has. And when you _ especially looking at the allegation of _ the activities are not that similar.... I think the prejudicial effect of inconsistent statements by a four-year-old about sexual activity at some prior time far outweighs any probative value.” Further, the statements involved double and triple hearsay. Neither Lutman nor Stewart spoke with the victim. After a careful review of the record and briefs in this case, we hold that the trial court did not abuse its discretion. Defendant's assignment of error is without merit.
    NO ERROR.
    Chief Judge EAGLES and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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