An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-325


Filed: 3 February 2004


v .                         Cherokee County
                            Nos. 01 CRS 050306
MATTHEW DAVID PICON                    01 CRS 050307

    Appeal by defendant from judgments entered 24 May 2002 by Judge James U. Downs in Cherokee County Superior Court. Heard in the Court of Appeals 15 January 2004.

    Attorney General Roy Cooper, by Assistant Attorney General William W. Stewart, Jr., for the State.

    Nancy R. Gaines, for defendant-appellant.

    TYSON, Judge.

    Matthew David Picon (“defendant”) appeals from judgments entered following a jury's verdicts finding him guilty of two counts of second-degree rape.

I. Background
    Defendant, sixteen years old, and L.M., seventeen years old, were high school classmates. On 14 July 2001, both attended a party at the home of another classmate, Troy Wragg (“Wragg”). Wragg purchased alcohol and invited a large number of friends and acquaintances from school.
    L.M. began playing a drinking card game after she arrived and quickly drank three twelve-ounce glasses of alcohol. Defendant arrived after L.M. and joined in the drinking game consuming beer. Around 10:30 p.m., L.M. began feeling ill from the alcohol and stopped playing. L.M. testified that the next thing she remembered was waking up in the hospital with her mother and a nurse standing over her.
    The State's evidence tended to show defendant had nonconsensual sex with L.M. numerous times on the night of 14 July 2001, and in the early morning of 15 July 2001. Joey Allen, Cagney Colbert (“Colbert”), Daniel Kent, Tim Allen, Tyrea Allen, Casey Puccio, and John Nava testified that they were present in the bedroom with defendant and L.M. as the two engaged in sex. All denied seeing anyone other than defendant engaging in sex with L.M. that night or morning. After defendant and L.M. completed intercourse, several individuals in the room urged defendant to engage in sex with L.M. again. Defendant responded, “I already have,” and stated that he previously had sex with L.M. “three or four times.”
    Other attendees at the party, Derrick Gaddis (“Gaddis”), Wragg, Taylor Smith, Adam Earls, Adam Ward, and Glenn Roberts were informed that L.M. was “passed out” and that there were a “bunch of people taking advantage of her.” They ran to the bedroom and found L.M. lying on the bed motionless. L.M. was nude from the waist down, with her shirt pulled up over her bra, which was pulled down on the right side. Everyone else in the room left and Gaddis, Smith, and Wragg dressed L.M. They testified that L.M. felt like “dead weight” and was unresponsive. Smith testified that they tried to wake L.M. unsuccessfully for over an hour and a half. They tried yelling at her, hitting her on her cheeks, patting her hands, putting water in her face, and sitting her up but L.M. never responded. L.M. was taken to her vehicle and was driven to the hospital.
    L.M. was completely unresponsive when she arrived at the hospital sometime before 3:00 a.m. Shortly after arriving, L.M.'s blood pressure dropped significantly. Nurse Sonya Standridge (“Standridge”) removed L.M.'s pants and observed a used condom fall onto the floor. Standridge noticed significant tears and swelling at the bottom of the vagina. Standridge examined L.M.'s anus and discovered rips and abraded skin. Dr. Larry Holder (“Dr. Holder”), an expert in the field of gynecology, examined L.M. around 4:30 a.m. on 15 July 2001. He noticed L.M.'s pelvic region was traumatized with lacerations and swelling of the labia and minor lips of the vagina. Dr. Holder noticed bruises on two spots on L.M.'s left thigh. Additional bruises were found by another nurse in intensive care. Dr. Holder later examined L.M. and found increased swelling of the labia, a tear outside the hymenal ring, three lacerations, and a bruise. During an examination two weeks later, Dr. Holder discovered two tears inside L.M.'s anus that he had previously not noticed. Dr. Holder opined that L.M.'s injuries were not from consensual intercourse.
    Paul Glover (“Glover”), an expert in the field of alcohol testing and alcohol blood physiology and pharmacology, testified that L.M. had a blood alcohol level on the night of the incident of .34 at 11:00 p.m., .32 at midnight, .30 at 1:00 a.m., and .258 at3:00 a.m. Glover opined L.M. would not have been able to resist an unwanted sexual advance between 11:00 p.m. and 3:00 a.m. at these levels of intoxication. Glover stated that L.M. likely would not have been able to even recognize or respond to a sexual advance. Glover testified that with a blood alcohol level between .30 and .34, L.M. would have had no mental capacity. She would either be unconscious or very close to it, but could still move and say words as involuntary responses.
    Defendant's evidence tended to show that the sexual episode between him and L.M. was consensual and that after he had sex with L.M., numerous other people began touching and kissing her. Defendant testified that he and L.M. were laying on the bed in the bedroom on their backs when L.M. kissed him. They began “feeling on each other.” Both removed their shirts and L.M. pulled down her pants. Defendant testified that he applied a condom, laid down on L.M., and asked her if she was sure she wanted to do this. L.M. responded affirmatively. Defendant told her that he would stop if she wanted him to. Defendant and L.M. engaged in sex for fifteen minutes and switched positions four times. Defendant testified that he never touched L.M. when other people were in the room. Defendant also stated that he was not forceful and did not tear, rip, or cause swelling of L.M.'s genitalia.
    After completing intercourse, defendant arose, dressed, and went to the bathroom. Defendant testified that after he returned from the bathroom, he and L.M. fell asleep on the bed fully clothed. Defendant woke up when people came into the room. Defendant testified L.M. talked to everyone in the room and that he left the room at approximately 12:15 a.m. As he was leaving, he saw Tyrea Allen unzipping his pants and Joey Allen and Colbert lying on the bed next to L.M. As defendant closed the bedroom door, he heard L.M. say, “f--k me.”
    Defendant was subsequently charged with rape and found guilty of two counts of second-degree rape. Defendant appeals from the judgments entered after the jury's verdicts.
II. Issues
    The issues are whether the trial court erred in: 1) granting the State's motion in limine and excluding evidence of certain conversations relating to L.M.'s sexual activities, 2) allowing the testimony of Ryan Cowart (“Cowart”) regarding alleged incidences of sexual misconduct by defendant, and 3) excluding evidence regarding L.M.'s prior misconduct.
III. Exclusion of Victim's Sexual Activities
    Defendant contends that the trial court erred in granting the State's motion in limine and excluding evidence of L.M.'s sexual activities. Defendant failed to preserve this issue for appellate review.
    In order to preserve alleged error for the exclusion of evidence, the party must make an offer of proof to show what the witness's response to the excluded questions would have been. State v. Braxton, 352 N.C. 158, 184, 531 S.E.2d 428, 443 (2000). An offer of proof must be specific and must indicate what testimony the witness would have given. State v. Harris, 139 N.C. App. 153,157, 532 S.E.2d 850, 853 (2000).
    Defendant stated at trial that he wanted to ask two witnesses, L.M. and L.M.'s mother, about certain sexual activities by L.M. that occurred on the night in question. The trial court sustained the State's objection. Defendant failed to make an offer of proof showing what the witnesses' responses to his questions would have been. The trial court specifically asked defense counsel after excluding questions to L.M. about her sexual activities, “Is there anything along those lines under Rule 412 . . . that you want to make by way of an offer of proof?” Defense counsel responded, “I understand, Your Honor. In regards to this witness no.”
    Further, the substance of the excluded testimony was not “apparent from the context within which questions were asked” and therefore an offer of proof was necessary to preserve this issue for appeal. N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2003). L.M.'s mother was not present at the party on 14 July 2001. Nothing in the record suggests that she would have any knowledge of any events that took place at the party. L.M. testified that she could not remember any of the events at issue due to her extreme intoxication. Both witnesses may well have responded to the inquiries that they could not remember or did not know, requiring this Court to speculate regarding their testimony. See Braxton, 352 N.C. at 184-185, 531 S.E.2d at 443; State v. Atkins, 349 N.C. 62, 79, 505 S.E.2d 97, 108 (1998). Defendant made no offers of proof regarding any of the excluded evidence. He has waived his right to appellate review of these issues.    Defendant has also waived his right to a plain error review by not assigning and arguing these issues as plain error. When a defendant fails to specifically and distinctly allege that the trial court's ruling amounts to plain error, defendant waives his right to have the issues reviewed under plain error. State v. Hamilton, 338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994). A defendant also waives plain error review by failing to allege plain error in his assignments of error. State v. Flippen, 349 N.C. 264, 274-275, 506 S.E.2d 702, 710 (1998).
    Defendant failed to make offers of proof concerning the excluded evidence and failed to assign plain error to these issues. Defendant's assignments of error are dismissed.
IV. Testimony Regarding Alleged Incidences of Sexual Misconduct by Defendant
    Defendant contends that the trial court erred in allowing testimony regarding incidences of sexual misconduct by defendant. It is well established that a defendant waives appellate review where the defendant fails to object to testimony at trial and fails to specifically allege plain error on appeal. State v. Scott, 343 N.C. 313, 332, 471 S.E.2d 605, 616-617 (1996). In addition, “[w]here evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.” State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984).
    Cowart testified that she had been drinking with L.M. on the night of the party and began feeling ill. She went and laid downin a bedroom. Cowart testified, without objection, that defendant came into the room and asked her if she wanted to “hook up.” Cowart testified, without objection, that she said, “no,” and that the defendant asked if he could touch her “boob.” She also testified, without objection, that she understood defendant to mean “have sex” when he used the term “hook up.”
    Defendant twice objected to portions of Cowart's testimony. Defendant objected when Cowart was asked what Wragg had said to her. The trial court sustained this objection. Defendant also objected, after Cowart had already answered, when she was asked what happened in the room when Wragg came in. Defendant did not move to strike Cowart's answer.
    On cross-examination, defendant elicited testimony from Cowart that he now assigns as error. Defendant asked Cowart what happened when Wragg came in the room where she and defendant were talking. Cowart again answered the question stating that defendant left the room.
    Further, defendant was asked on direct about this incident with Cowart. Defendant testified that he did not touch her “boob” and that he was trying to comfort her since she was sick. Wragg also testified to this incident.
    Defendant did not object to Cowart's testimony concerning this incident and elicited some of the same testimony on cross- examination and direct examination. Defendant waived his right to have this issue reviewed. Id. Defendant's assignment of error is dismissed.
V. Victim's Prior Misconduct
    Defendant contends that the trial court erred in excluding evidence of L.M.'s prior misconduct. Defendant repeatedly tried to enter into evidence statements regarding L.M.'s conduct on occasions prior to the night in question. Defendant attempted to read into evidence a portion of his statement that described an incident that occurred when defendant, L.M., and a group of friends were camping. The State objected to this portion of the statement. The trial court sustained the objection. Defendant made no offer of proof of what this evidence would have shown, if allowed. As previously stated, a defendant who fails to make an offer of proof of what the evidence would have shown waives his right to appellate review of that issue. Braxton, 352 N.C. at 184, 531 S.E.2d at 443. Defendant has also failed to assign this issue as plain error and has waived his right to have it reviewed under plain error. Hamilton, 338 N.C. at 208, 449 S.E.2d at 411.
    VI. Conclusion
    Defendant failed to make any offers of proof concerning the excluded evidence and failed to assign the exclusion of this evidence as plain error. Defendant further failed to object to the admission of and elicited certain testimony. He waived his right to appellate review of these issues.
    No error.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

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