An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-287


Filed: 18 November 2003


    v.                            Wilkes County
                                No. 00 CRS 0838

    Appeal by defendant from judgment entered 6 December 2000 by Judge Judson D. DeRamus, Jr., in Wilkes County Superior Court. Heard in the Court of Appeals 17 November 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State.

    Glover & Petersen, P.A., by Ann B. Petersen, for defendant- appellant.

    EAGLES, Chief Judge.

    Defendant Justin Earl Wesley Spicer was indicted for the second degree rape of Amy Combs. On appeal, defendant argues that the trial court erred by allowing testimony regarding the credibility of the complaining witness. After careful consideration of the record and briefs, we find no error.
    The State's evidence tended to show the following: In February 2000, Amy Combs lived with her fiancé, Tommy Church, and their nine-month-old son. Church's nephew, defendant, lived approximately fifty yards from Church's residence. On 2 February 2000 at 11:30 p.m., defendant went to Church's residence whileChurch was at work. Combs and the baby were there alone when defendant arrived.
    After engaging in “horseplay,” defendant grabbed Combs by her wrists, pulled her into the bedroom, pushed her on the bed, and straddled her. While holding her wrists, defendant rubbed Combs' lower abdomen and did not respond when Combs asked him to stop. Defendant unbuttoned Combs' pants, put his hand down her pants, and inserted his fingers in her vagina. After removing her pants and underpants, defendant penetrated Combs repeatedly, until he ejaculated. Combs called Church and told him about the rape after defendant left her residence.
    Church rushed home from work and found Combs crying. Church went to defendant's home and threatened to kill him. Deciding against killing defendant, Church instead went home to collect the bed sheets, which were stained with blood and semen. Church took Combs to the hospital shortly thereafter.
    Dr. Osvaldo Lumpuy, emergency room physician at the Wilkes Regional Hospital, conducted a physical examination of Combs. Dr. Lumpuy observed bruises and abrasions on Combs' wrists, consistent with someone grabbing her wrists in a forcible manner. Dr. Lumpuy also observed that Combs' genitalia was very irritated, and concluded that Combs' injuries were consistent with forcible rape.
    Special Agent Jed Taub, a forensic serologist with the North Carolina State Bureau of Investigation (SBI), collected vaginal swabs, and took samples from a feminine napkin Combs was wearing. Special Agent Brenda Bissette, an expert in forensic DNA analysis,concluded that the DNA samples of sperm taken from the swabs and napkin matched that of defendant.
    Defendant testified that Combs called defendant on 2 February 2000 and invited him to her residence. After arriving and engaging in horseplay, Combs invited defendant to the bedroom. The two had consensual sex, as they had five or six times in the past.
    Defendant's mother, Debra Church Spicer, testified that she heard telephone messages Combs left on Spicer's answering machine for defendant, inviting him to call or come over on 2 February 2000. Defendant's friend, Keith Shelton, also testified that defendant had confided in him that defendant and Combs had intercourse on several occasions before 2 February 2000.
    Defendant was found guilty as charged and sentenced on 6 December 2000 to a minimum term of 64 months and a maximum term of 86 months. Defendant appeals.
    Defendant argues that the trial court erred by allowing the victim's fiancé, Tommy Church, to testify that he “knew” that Combs was raped. We disagree.
    It is well established in North Carolina that a party will lose the benefit of an objection if identical evidence was otherwise admitted without objection. State v. Hyman, 153 N.C. App. 396, 401, 570 S.E.2d 745, 748 (2002) (citing State v. Jolly, 332 N.C. 351, 420 S.E.2d 661 (1992) (“An objection to the admission of evidence is waived where the same or similar evidence is subsequently admitted without objection.”), cert. denied, 357 N.C. 253, 583 S.E.2d 41 (2003).    The transcript reflects defendant's objection to the following portion of Church's testimony:
    Q.    And, why did you feel it necessary to go to the hospital?

    A.    So, to have proof, go to the hospital right then because it was on the sheets. You could see it. And, I, I knew she was, it had happened to her, and I could go to court and I could stay with my son instead of killing him and going to prison.

        MR. CAMERON: Well, OBJECTION. OBJECTION, Your Honor.


(Emphasis added.)
    Notwithstanding defendant's objection, defendant elicited essentially the same testimony on cross-examination. The transcript reflects the following:
    Q.    When you came back down to the house to get Amy to go to the hospital, did you go back to the bedroom at that time?

    A.    Yes. I seen the stuff on the sheets, and I knew, I thought to myself, the best thing to do, not to call the law, and grab that and take it to the hospital so they could run tests on it so they could prove it was him.

(Emphasis added.)
    By eliciting essentially the same information on cross- examination, defendant lost the benefit of his prior objection. As a result, this Court may only review defendant's conviction to determine whether the trial court committed plain error. Plain error is an error “so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485U.S. 1036, 99 L. Ed. 2d 912 (1988). Here, the evidence tended to show that Combs's wrists were bruised and that a physical examination revealed symptoms consistent with forcible rape. In addition, Church, the medical personnel, and the investigating officer all testified that Combs was shaken, upset, or “frantic” after her encounter with defendant. Defendant did not dispute the State's evidence that his DNA was identified as being present on vaginal swabs taken during Combs's examination. In light of all of this evidence, it is not probable that the jury would have reached a different verdict if the testimony by Church had been excluded. Therefore, we find no error.
    No error.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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