Appeal by defendant from judgments dated 9 August 2002 by
Judge J. Gentry Caudill in Superior Court, Mecklenburg County.
Heard in the Court of Appeals 27 January 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Diane Martin Pomper, for the State.
James N. Freeman, Jr. for defendant-appellant.
McGEE, Judge.
Antonio Gaines (defendant) was convicted of second degree
sexual offense, misdemeanor larceny, and second degree rape. He
was sentenced to 130 to 165 months in prison for second degree
sexual offense and misdemeanor larceny and a consecutive term of
130 to 165 months in prison for second degree rape.
The State's evidence at trial tended to show that Linda
Vanlandingham saw defendant around midday on 18 March 2001 at the
boarding house in Charlotte where she shared a room with her adult
son. Defendant was looking for his brother, Hubert Reape (Reape),
a tenant of the boarding house. Vanlandingham informed defendant
that Reape had left for work and she permitted defendant to stay inher room until Reape arrived back at the boarding house. Defendant
entered Vanlandingham's room and asked her where he could purchase
drugs. Vanlandingham, a drug abuser, told defendant that because
it was Sunday, it might be difficult to obtain drugs, but that she
knew a place that might be selling drugs. Vanlandingham had not
used drugs that day; she asked defendant how much he wanted to
spend and invited him to walk with her to purchase drugs. Upon
their arrival at an apartment house specified by Vanlandingham,
defendant gave her the purchase money, she entered the apartment
alone and returned with some crack cocaine.
Defendant asked Vanlandingham if she wanted to return to her
room to smoke the crack cocaine, but she declined since her son was
still at home. At Vanlandingham's suggestion, she and defendant
decided to go to the home of Vanlandingham's friend, Randy Cook
(Cook). Vanlandingham, defendant, and Cook smoked the crack
cocaine at Cook's home. Vanlandingham took one "hit" of the crack
cocaine and told the two men to finish what was left. She
testified she did not feel high or out of control at the time.
After Cook and defendant finished smoking, defendant and
Vanlandingham returned to her room at the boarding house.
While at the boarding house, defendant purchased more crack
cocaine from a tenant and smoked it in Vanlandingham's room.
Defendant complained the crack cocaine was poor quality. He called
his sister and asked her to bring his gun to him at the boarding
house. Vanlandingham allowed defendant to wait in her room until
the gun was delivered, but defendant's sister never arrived at theboarding house.
Around 5:00 p.m., Vanlandingham and her neighbor, Marie Davis,
believing that defendant had left the boarding house, discussed how
pleased they were that defendant was gone. However, defendant
overheard this discussion and was angry. He pushed Vanlandingham
into her room, ordered her to close the curtain, and tried to lock
the door. Defendant turned up the volume on the television. He
ordered Vanlandingham to remove her top and she did as directed.
Defendant threatened her, saying that he could hang her with a coat
hanger and leave her for her son to find when he returned home from
work. Vanlandingham removed her pants and underwear as defendant
ordered her to do, crying as she did so. Defendant directed
Vanlandingham to lay on her stomach and then raped her. Defendant
forced her to perform oral sex on him. She attempted to dress, but
he told her not to because he would "want some more." Defendant
left Vanlandingham's room, taking her keys and telephone.
Vanlandingham went to the home of her neighbor, Tanya Louise
Hamilton (Hamilton). A relative of Hamilton contacted the police.
Laboratory results from a rape kit performed on Vanlandingham
matched defendant's DNA.
I.
Defendant first argues that the trial court erred in
permitting Detective Carol Owens (Detective Owens) to read to the
jury select portions of Vanlandingham's statement to Detective
Owens. Defendant contends the portions Detective Owens read did
not corroborate the testimony of Vanlandingham but instead weresupplemental, and at times contradictory, to Vanlandingham's
testimony, and were therefore inadmissible.
Our Courts have long recognized that
[i]n order to be admissible as corroborative
evidence, a witness's prior consistent
statements merely must tend to add weight or
credibility to the witness's testimony.
Further, it is well established that such
corroborative evidence may contain new or
additional facts when it tends to strengthen
and add credibility to the testimony which it
corroborates.
State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993)
(citations omitted). So long as the prior statement is generally
consistent with the trial testimony, "slight variations will not
render the statement[] inadmissible[.]"
State v. Martin, 309 N.C.
465, 476, 308 S.E.2d 277, 284 (1983). However, those variations
may impact the credibility of the statement.
Id.
Even if evidence
that was inadmissible was erroneously admitted, in order to prevail
on appeal, the defendant must demonstrate "'that a reasonable
possibility exists that a different result would have been reached
absent the error.'"
State v. Smith, 357 N.C. 604, 610, 588 S.E.2d
453, 458 (2003) (quoting
State v. Weeks, 322 N.C. 152, 170, 367
S.E.2d 895, 906 (1988)).
In the case before this Court, defendant objected to Detective
Owen's reading of Vanlandingham's prior statement regarding several
of her recollections of defendant's remarks and actions during the
attack. Defendant argues that those alleged embellishments and
contradictions were essential to the State's case in proving the
use of force by defendant and therefore key to the State's proof ofthe criminal charges against defendant.
After comparing Detective Owen's testimony as to
Vanlandingham's statement with Vanlandingham's trial testimony,
this Court concludes that the trial court did not err.
Vanlandingham's statement and her trial testimony were consistent
and any variation was inconsequential. In addition, the trial
court properly instructed the jury that in considering the prior
statement:
You will not consider such statement as
evidence of the truth of what was said, at the
earlier time; because, it was not made, under
oath.
If you believe such earlier statement was
made; and, it was consistent or does conflict
with the testimony of the witness at [trial],
you can consider this, together with other
facts and circumstances, bearing upon the
witness' truthfulness. And, for no other
purpose.
There was no error by the trial court in allowing Detective Owen to
read portions of Vanlandingham's statement, and the trial court
appropriately instructed the jury as to the limited use of such
evidence. Finally, even assuming arguendo that Detective Owen's
testimony as to Vanlandingham's statement was inadmissible, the
State presented overwhelming evidence as to the force used by
defendant in the commission of the offenses and thus defendant
failed to demonstrate that the result of the trial would have been
different had the evidence been excluded. Defendant's assignment
of error number four is without merit.
Defendant next argues that the trial court erred in failing to
allow defendant to cross-examine Vanlandingham about the nature ofher relationship with Cook. Defendant's theory at trial was that
the sexual encounter between defendant and Vanlandingham was
consensual and was the outcome of an agreement between
Vanlandingham and defendant to have intercourse in exchange for
drugs purchased by defendant. Defendant maintained that
Vanlandingham's relationship with Cook was based on a similar
agreement and that evidence of her relationship with Cook was
admissible pursuant to N.C. Gen. Stat. § 8C-1, Rule 412(b)(3)
(2003).
N.C.G.S. § 8C-1, Rule 412(b)(3), in pertinent part, provides
that sexual behavior of the victim is regarded as irrelevant to the
prosecution of the defendant, unless that behavior
[i]s evidence of a
pattern of sexual behavior
so distinctive and so closely resembling the
defendant's version of the alleged encounter
with the complainant as to tend to prove that
such complainant consented to the act or acts
charged or behaved in such a manner as to lead
the defendant reasonably to believe that the
complainant consented[.]
N.C.G.S. § 8C-1, Rule 412(b)(3) (emphasis added). The general
purpose of Rule 412 is "'to protect the witness from unnecessary
humiliation and embarrassment while shielding the jury from
unwanted prejudice that might result from evidence of sexual
conduct which has little relevance to the case and has a low
probative value.'"
State v. Ginyard, 122 N.C. App. 25, 31, 468
S.E.2d 525, 529 (1996) (quoting
State v. Younger, 306 N.C. 692,
696, 295 S.E.2d 453, 456 (1982)). To be admissible under Rule
412(b)(3), "[t]he pattern may establish either that (1) the
complainant consented to have sex with this defendant, because ofthe manner in which their sexual encounter took place or (2)
because of the complainant's pattern, this defendant reasonably
believed the complainant consented to have sex with him."
Ginyard,
122 N.C. App. at 32, 468 S.E.2d at 530. However, this Court will
not reverse the decision of a trial court to exclude such evidence
absent an abuse of discretion by which the trial court's decision
was utterly arbitrary and could not be the outcome of a reasoned
decision.
State v. Lloyd, 354 N.C. 76, 90-91, 552 S.E.2d 596, 609
(2001).
During the
voir dire examination of Vanlandingham, she
admitted that she had had a sexual relationship with Cook, that she
had smoked crack cocaine with him, and that the crack cocaine had
been supplied by Cook. Defendant presented no evidence at trial
that he was aware of any alleged pattern of behavior in which
Vanlandingham exchanged intercourse for drugs; he therefore could
not have reasonably inferred consent based on knowledge of any
alleged pattern of behavior. Furthermore, defendant failed to
establish that there was a distinct pattern to Vanlandingham's
behavior that would indicate she consented. Defendant presented
only isolated instances where Vanlandingham had intercourse with
Cook and smoked crack cocaine purchased by Cook. There was no
evidence as to any agreement between Cook and Vanlandingham
regarding an exchange of drugs for intercourse. Defendant's
evidence was insufficient to qualify as an exception to Rule 412
and defendant's assignment of error number two is overruled.
In defendant's final argument, he contends the trial courterred in sustaining the State's objection to defendant's general
question to Vanlandingham about where she went in the neighborhood
to purchase drugs. Defendant alleges the testimony was relevant to
the issue of whether Vanlandingham consented to intercourse with
defendant and was relevant for impeachment purposes.
The question posed by defendant to Vanlandingham had no
bearing on the incidents of 18 March 2001 and we are unable to
discern that an answer would have had "any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence." N.C. Gen. Stat. § 8C_1, Rule 401 (2003)
(defining relevant evidence). An answer would not be relevant as
to whether Vanlandingham had consented to intercourse with
defendant nor would it pertain to her credibility as a witness.
Defendant was free to pursue any discrepancies in Vanlandingham's
testimony as to her drug use in order to impeach her. Thus, we
find defendant's assignment of error number one to be without
merit.
N.C.R. App. P. 28(b)(6) provides that "[a]ssignments of error
not set out in the appellant's brief, or in support of which no
reason or argument is stated or authority is cited, will be taken
as abandoned." Accordingly, defendant's assignments of error
numbers three, five and six are deemed abandoned.
No error.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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