STATE OF NORTH CAROLINA
v. Wilkes County
No. 00 CRS 0838
JUSTIN EARL WESLEY SPICER
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.
THE COURT: OVERRULED.
(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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