An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1374


Filed: 15 July 2003


         v.                        Forsyth County
                                No. 01 CRS 59970

    Appeal by defendant from judgments entered 15 May 2002 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 7 July 2003.

    Attorney General Roy Cooper, by John G. Barnwell, Assistant Attorney General, for the State.

    J. Clark Fischer for defendant appellant.

    STEELMAN, Judge.

    Defendant, Jerry Leon Phifer, appeals convictions of first- degree kidnapping, attempted first-degree rape, and assault with a deadly weapon inflicting serious injury. For the reasons stated herein, we find no error.
    The State's evidence tended to show that the victim, Donnie Small, left her mother's house at 4:30 a.m. on 4 October 2001, and obtained a ride to Watkins Street to look for a friend named John. As she walked down Green Street to use a pay phone, she saw defendant and an unknown female. Small recognized defendant because they bought drugs at the same location and he had previously sold her a “dummy,” or fake crack cocaine. However, shedid not know his name. Defendant asked her if she was looking for drugs, and she said no. Small turned around to walk back to John's house but changed her mind and decided to make the phone call. Defendant, who was now alone, approached her a second time and asked for a cigarette. As Small reached into her purse, defendant grabbed her and dragged her behind the vacant house, saying, “You're going to give me some pussy, Dee.” When Small resisted, defendant picked up a brick, beat her in the head and threatened to kill her. After striking her several times with the brick, defendant stabbed her in the arm with a crack stem, punched her in the face, and removed her pants. Defendant inserted his penis into Small's vagina. Small screamed for help and fought defendant until she lost consciousness.
     Winston-Salem Police Officer Jacqueline Goodwin responded to a radio dispatch at 5:42 a.m. on 4 October 2001. Behind a vacant house at 118 South Green Street, she came upon a man wearing a tan and blue plaid shirt and lying face-down. He was naked from the waist down. Officer Goodwin illuminated the man's face with her flashlight and asked where his pants were. As he raised himself onto his elbows, Officer Goodwin saw that he had blood on his hands and was on top of Small. Officer Goodwin could not discern if Small was male or female “due to the amount of blood on the . . . individual[.]”
    Officer Goodwin drew her revolver and ordered the man to stop, but he “took off” running toward Watkins Street. Officer Goodwin gave chase and saw the male drop a pair of beige pants. In thepocket of these pants, she found a wallet with a North Carolina identification card bearing the name Jerry Leon Phifer. The photograph and physical description on the card matched the suspect she had observed at the scene. Police later found a crack pipe and “dummies” in the pants' pockets.
    After chasing defendant, Officer Goodwin tended to Small, who had “severe lacerations and trauma to her face.” The flesh of Small's forearm had been “scooped out[,]” exposing the bone. Her scalp “was laid open” in several areas such that her skull was visible. Small's right thumbnail was “torn completely off[,]” and she was bleeding from the inside of her mouth and the bridge of her nose. Small's pants and panties were wrapped around her left ankle.
    Small told Officer Goodwin that she had been raped. She said defendant had grabbed her as she turned onto Green Street from Watkins Street. When Small refused to surrender her purse, defendant dragged her behind the vacant house. She struggled with defendant, who hit her in the head with a brick until she lost consciousness. Officer Goodwin found a trail of blood consistent with Small's story. Also at the scene of the assault were numerous areas of blood spatter and a bloody brick.
    Officer Goodwin later identified defendant in court as the man who fled from her on the morning of 4 October 2001. Cuttings taken from a cap and pair of boxer shorts found at the crime scene contained DNA matching that of defendant.
    Dr. Tad Lowdermilk, an expert in emergency medicine whotreated Small at Forsyth Memorial Hospital, testified that she sustained ten to twelve lacerations to the scalp, a broken nose with a laceration, facial contusions, a puncture wound to her left forearm, a broken thumb and evulsed thumbnail, and bruising on other parts of her body. Sexual Assault Nurse Examiner Debbie James administered a rape kit to Small and noted that she had dried blood under all of her fingernails. Small was hospitalized for six to eight days because of her injuries. While in the hospital, she identified defendant from a photographic lineup.
    Small admitted she had been addicted to cocaine for nine and one-half years and had smoked crack cocaine on the evening 3 October 2001. She acknowledged her prior convictions for contributing to the delinquency of a minor and for possession of drugs and drug paraphernalia, and conceded that she had violated her probation by leaving her mother's house at 4:30 a.m.
    Winston Salem Police Officer Larry Snyder corroborated Small's account of the assault by reading from the written statement she gave to him on 11 October 2001. He also confirmed that she selected defendant's photograph from a lineup on 22 October 2001. Small's mother confirmed that Small left her house after 4:00 a.m. on 4 October 2001.
    Defendant's evidence tended to show that Annie Williams met Small on Watkins Street between 2:00 and 2:30 a.m. on 4 October 2001. Small had a “little cut” across her nose, bruises on her face, and “a little bit of blood on the back of her hair.” Williams and Small saw defendant on Green Street and went behind abuilding with him to smoke crack cocaine. Williams stayed with Green and Small just long enough to take “a little hit and that was it.” She left immediately afterward, because Small was preparing to have sex with defendant in exchange for more cocaine. As Williams walked home, she heard a scream from an unknown location and saw a police car, but did not pay any attention.
    Williams reiterated that she had left defendant and Small between 2:00 and 2:30 a.m., and was “not anywhere near 118 South Green Street between 5:00 a.m. and 6:00 a.m.” Williams acknowledged she had not seen Small's condition when she was found by Officer Goodwin. Williams was asked whether she had initially told police that she was with defendant and Small at 5:30 a.m. Williams did not recall making such a statement and insisted, “I know it was between 2:00 and 2:30.”
    The jury found defendant guilty of first-degree kidnapping, attempted first-degree rape, and assault with a deadly weapon inflicting serious injury. He was sentenced to consecutive active terms of 116 to 149 months in prison for the kidnapping conviction; 176 to 221 months for attempted rape; and 34 to 50 months for the assault conviction. Defendant appeals.
     In defendant's first assignment of error, he argues that the trial court abused its discretion by allowing the State to impeach a defense witness with a conviction that was over ten years old and the State's notice did not comply with Rule 609 of the North Carolina Rules of Evidence. We disagree.
    Notice of an intent to impeach a witness with a convictionmore than ten years old is necessary to provide an adverse party with a fair opportunity to contest the use of such evidence. N.C.G.S. § 8C-1, Rule 609(b) (2001). The district attorney provided notice to the defense on 15 May 2002. Defense counsel stipulated that she received the notice. However, the trial judge failed to make the required findings of fact to support its determination that the probative value of the convictions outweighed the prejudicial effect. See N.C. Gen. Stat. § 8C-1, Rule 609(b); State v. Farris, 93 N.C. App. 757, 379 S.E.2d 283 (1989), disc. rev. improv. all'd, 326 N.C. 45, 387 S.E.2d 54 (1990).
    Although the trial court erred in not weighing whether the conviction's probative value outweighed its prejudicial effect, we hold that the error was harmless. Defendant called as his next witness private investigator Kenneth Whatham, for the sole purpose of impeaching Williams with her prior inconsistent statement. Given the weight of other evidence, we find no possibility that defendant was prejudiced by the State's introduction of Williams's prior misdemeanor conviction. See N.C. Gen. Stat. § 15A-1443(a) (2001). This assignment of error is without merit.
    In his second assignment of error, defendant argues that the trial court improperly allowed Dr. Lowdermilk to offer expert testimony regarding Small's credibility. We disagree.
    Dr. Lowdermilk testified that Small's blood alcohol level in the emergency room was “less than .5[,]” which he described as “negligible.” Over defendant's objection, Dr. Lowdermilk opinedthat Small's blood alcohol level did not amount to “enough alcohol to appreciably impair someone.”
    The North Carolina Rules of Evidence “forbid an expert's opinion testimony as to the credibility of a witness.” State v. Jones, 339 N.C. 114, 146, 451 S.E.2d 826, 843 (1994), cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995). Here, however, Dr. Lowdermilk merely assessed whether Small's blood alcohol level was sufficient to appreciably impair her faculties. Cf. State v. Teeter, 85 N.C. App. 624, 629, 355 S.E.2d 804, 807, appeal dismissed and disc. rev. denied, 320 N.C. 175, 358 S.E.2d 67 (1987). His testimony was within the scope of his medical expertise and offered no opinion of Small's truthfulness or of defendant's guilt or innocence. See id. This assignment of error is without merit.
    Defendant's remaining assignments of error are not addressed in his brief to this Court. They are therefore abandoned. See N.C.R. App. P. 28(b)(6).
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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