STATE OF NORTH CAROLINA
v. Forsyth County
No. 01 CRS 59970
JERRY LEON PHIFER
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).
NO ERROR.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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