An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-522


Filed: 4 May 2004


v .                         Rutherford County
                            No. 01 CRS 51669
                             01 CRS 51670
                             01 CRS 7303

    Appeal by defendant from judgment entered 6 June 2002 by Judge Loto Caviness in Rutherford County Superior Court. Heard in the Court of Appeals 26 February 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Susan R. Lundberg for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen for the defendant-appellant.

    ELMORE, Judge.

    Defendant appeals from his convictions of Second Degree Rape, Second Degree Sexual Assault, and Felonious Incest with a Near Relative, involving his sixteen-year-old daughter. Defendant had been estranged from his wife, the victim's mother, and had not lived in the same residence with the victim, for over a year when the incident occurred.

    Defendant first assigns error to the trial court's limitation of his cross-examination of the victim on the witness stand at trial. Defendant was allowed to cross-examine the victim, butquestioning concerning a prior abortion was determined to be more prejudicial than probative, and disallowed by the trial court. We agree with the trial court's ruling.
    Counsel for defendant questioned the witness first about her answers to questions during her medical examination about the last sexual intercourse she had prior to the incident. Counsel for the defense then sought to impeach the witness by questioning her about a conversation with the assistant district attorney (ADA) in which she stated that she had not had sex before. The witness tried to explain that she did not want her mother, who was present at the ADA's office, to know of her prior activity. Counsel then sought to further impeach her with proof that her mother had prior knowledge of the victim's sexual activity. Several objections were made by the State, and two bench conferences were held.
    The cross-examination of the victim went as follows, beginning with questioning about her examination at the hospital:
        Q     [Mr. Brown, counsel for the defense] Wasn't one of the questions, When is the last [time you had sexual] intercourse prior to the assault? Didn't they ask you that?
            [Assistant District Attorney] MR. SAUVE: Objection. Rape shield.
            THE COURT: At this point, counsel, approach the bench.
        (A bench conference was held.)
            THE COURT: As to this, court will overrule the objection. Proceed.
        Q    (By Mr. Brown): Did they ask you when was the last intercourse you had prior to the assault?
        A    [victim as witness] Yes.
        Q    What did you tell the people at the hospital?
        A    I don't remember.        Q    Didn't you tell them in fact it was two months ago?
        A    I guess. It's been a while.
        Q    It had been a while?
        A    Yes.
        Q    So you told them it was two months ago?
        A    Yes.
        Q    You have had some opportunity to meet with the district attorney's office, haven't you?    
        A    Yes, I have.
        Q    And, in fact, Brenda Brewer is one of the assistant district attorneys, and you have had a chance to meet with her, haven't you?
        A    Yes, I have.
        Q    In talking about the case?
        A    Yes, I have.
        Q    She asked you about that question that you answered at the hospital, didn't she?
        A    Yes, she did.
        Q    She said, “Did you tell the hospital that you had had sex two months ago?” Didn't she ask that?
        A    Yes. I told Brenda that I didn't. The reason why I told Brenda that is because I was -- my mom was there and I was -- being a teenager, you have so much peer pressure on you, and I didn't want my mom to know that I had had intercourse before. And I did tell Brenda no. But Brenda knows now that I have.
        Q    Well, so you -- when Ms. Brewer asked you, Did you tell the hospital you had sexual intercourse two months ago --
        A    Yes.
        Q    -- you told her, No, I didn't.
        A    I told the hospital that, and I told Brenda that I didn't.
        Q    So you said you hadn't had sex before?
        A    Yes.
        Q    You told Ms. Brewer that, No, I have never had sex before?
        A    Correct.
        Q    Now, you had to come back to the district attorney's office after that meeting, didn't you?
        A    I've had to come back to the district attorney's office a lot of times throughout the procedure of this trial.
        Q    How many time[s] have you met with the district attorney's office?        A    I met with Brenda _
            MR. SAUVE: Objection. Now, we are getting into protection.
            THE COURT: Sustained as to their work product as to how many times. Proceed on.
        Q    (By Mr. Brown): So you went back again to meet with Ms. Brewer, right?
            MR. SAUVE: Objection. He's getting into meetings between our witnesses and ourselves and our victims and ourselves. It's crossing the line.
            THE COURT: At this point, she has indicated that she's been there many times. Proceed on.    
        Q    (By Mr. Brown): Next time Ms. Brewer said that she had been looking at your records from the health department, didn't she?
            MR. SAUVE: Objection. This is confidential information. It is not supposed to go to the jury. They should not know it. It has nothing to do with the statement. Should be excluded. We'd ask for a limited instruction to the jury.
            THE COURT: And the jury is to disregard this testimony except in the event you find it bears on the truthfulness of the witness. You are to consider this line of questions for no other purpose.    
                Does anyone have any questions about that? You're not to consider any of the responses other than as to whether or not they bear on truthfulness at this time.
                Please respond to the question if you can, ma'am. Can you answer that question? You need it repeated?
            THE WITNESS: Please.
            THE COURT: Could you please repeat it, Mr. Brown.
        Q    (By Mr. Brown): You went back again and Ms. Brewer said she had looked at your records from the health department?
            MR. SAUVE: Objection.
            THE COURT: Sustained as to health department records. Please rephrase your question.
        Q    (By Mr. Brown): Ms. Brewer said she had looked at records, and in fact when you told her you had not had sex before, you had had sex before?
            MR. SAUVE: Objection. He's exceeding the scope of what he's allowed to get in onstatement. If we could address the matter outside the presence of the jury.
            THE COURT: At this point counsel will approach the bench, please.
        (A bench conference was held.)
            THE COURT: Members of the jury, as to this next question, it is not to be considered by you as to the truth of the matter it asserts, but only as to whether or not it bears on the credibility of the witness. If indeed you find it does bear on the credibility of this witness. Do you understand what I said? Any questions? Thank you.
                Proceed, Mr. Brown.
        Q    (By Mr. Brown): After Ms. Brewer looked at health department records, she asked you, “In fact, isn't it true you have had sexual intercourse?”
        A    Yes, it is.
        Q    And you answered her at that time, “Yes, I have”?
        A    Well, when she did not -- I don't recall her even saying, like, having the health department records with her. What are you --
        Q    The second time Ms. Brewer asked -- the second time you went to the office and she asked you a question about this topic, you told her, “Yes, I have had sexual intercourse.”
        A    Right.
        Q    Who was there?
        A    I don't know. I mean --
        Q    Was your mother there?
        A    Yes.
            MR. BROWN: Those [are] my questions.

    It is within the trial court's discretion to allow or disallow cross-examination of a witness about her specific acts if the acts are relevant to her character for truthfulness or untruthfulness. A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision. State v. Hunt, 339 N.C. 622, 658-59, 457 S.E.2d 276, 297 (1995). The trial court is alsoguided by section 8C-1, Rule 412 of our General Statutes which further limits the cross-examination of a victim in a rape case about her prior sexual history.
    Defendant argues on appeal that this line of questioning was too limited by the trial court. Defendant argues that the questions went only to credibility, and were no more prejudicial than if the witness was being asked about lying to her mother about drug use. The North Carolina Rape Shield Statute, Rule of Evidence 412, tends to show otherwise. N.C. Gen. Stat. § 8C-1, Rule 412 (2003). That section of our General Statutes provides for four very specific instances in which a rape victim who is on the witness stand may be asked about her prior sexual activity:
        (a) As used in this rule, the term “sexual behavior” means sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.
        (b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:
         (1) Was between the complainant and the defendant; or
         (2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or
         (3) Is 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; or
         (4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.        (c) Sexual behavior otherwise admissible under this rule may not be proved by reputation or opinion.

N.C. Gen. Stat. § 8C-1, Rule 412 (2003).
    Under the reasoning of the Court in State v. Autry, 321 N.C. 392, 397-98, 364 S.E.2d 341, 344-45 (1988), any questions about the victim's virginity or lack thereof for any reason but the four outlined in Rule 412 are inappropriate. A witness may be questioned about a prior inconsistent statement for purposes of impeachment, even when related to prior sexual activity. State v. Degree, 322 N.C. 302, 367 S.E.2d 679 (1988); State v. Younger, 306 N.C. 692, 295 S.E.2d 453 (1982). In this case, the trial court properly limited the cross-examination to allow for impeachment while limiting the scope in harmony with Rule 412.
    In the case at bar, the trial court was well within its discretion. We therefore overrule this assignment of error.
    Defendant next assigns error to the trial court's instruction to the jury on flight.
    A trial judge may instruct a jury on a defendant's flight if “there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.” State v. Thompson, 328 N.C. 477, 489, 402 S.E.2d 386, 392 (1991) (quoting State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433- 34 (1990)). “Mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. Theremust also be some evidence that defendant took steps to avoid apprehension.” Thompson, 328 N.C. at 490, 402 S.E.2d at 392.
    The entire instruction on flight given to the jury by the trial court is as follows:
            Members of the jury, the State contends and the defendant denies that the defendant fled. Evidence of flight may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or show a consciousness of guilt. However, proof of this circumstance is not sufficient in itself to establish the defendant's guilt.

    In this case, there was evidence that when police and emergency medical assistance arrived the victim was still crying and upset, and wearing only a sheet. By that time, defendant had left the scene. After looking for defendant at the residence where the incident occurred, police remained in the area, looking for defendant. Police issued a “be-on-the-lookout” (BOLO) for defendant, including a description and other information, to both Rutherford and Burke Counties' police departments. The police followed up leads as to where the defendant had stayed, and found that he had not returned after the incident. Defendant was finally apprehended by police three and one half months after the incident.     These facts distinguish this case from State v. Lee, 287 N.C. 536, 215 S.E.2d 146 (1975), in which our Supreme Court remanded a case in which a flight instruction was found to be prejudicial. In that case, the evidence showed that the police conducted a very cursory search which would not support an inference of flight, andthat defendant's identity was in question which heightened the prejudice potentially inflicted by a flight instruction. The facts in Lee did not support a flight instruction and the jury was therefore prejudiced by such instruction. Whereas in the instant case, there was sufficient evidence from which the jury could find that defendant left the scene and took steps to avoid apprehension. Police officers responded immediately to the crime scene and defendant was gone. Thereafter police looked diligently for defendant and asked others to do so by issuing a BOLO in two counties. Defendant was finally apprehended three and one half months later. This is sufficient evidence of flight to warrant an instruction to the jury. Moreover, based on the victim's clear identification of defendant, defendant can show no prejudice in the court's instructions pursuant to Lee.
    Defendant's last assignment of error is that the trial court erred by denying his motion to dismiss after finding that he was never accorded a first appearance as required by N.C. Gen. Stat. § 15A-601. That statute provides in pertinent part as follows: “Unless the defendant is released pursuant to Article 26 of this Chapter, Bail, first appearance before a district court judge must be held within 96 hours after the defendant is taken into custody or at the first regular session of the district court in the county, whichever occurs first.” N.C. Gen. Stat. § 15A-601(c) (2003).    Defendant was arrested on 6 December 2001, and the same day was taken to the Rutherford County District Court for a first appearance. Apparently the district court judge denied defendant a first appearance because he had already been served with an indictment and there was a current term in superior court. Defendant did not receive his first appearance until the first session of the January term. In the interim, he was visited by his wife, the mother of the victim, but did not make any statements to law enforcement officers.
    This Court has previously ruled on this issue in the case of State v. Pruitt, 42 N.C. App. 240, 256 S.E.2d 249 (1979). In that armed robbery case, a similar time period had passed before the defendant was allowed a first appearance, but in that time he had made two written confessions and other incriminating statements to law enforcement officers who had interviewed him without counsel being present. The Court held that
        [D]efendant was not prejudiced by the denial of his first appearance rights.... We note also the proviso in G.S. 15A-601 that, “[t]his first appearance before a district court judge is not a critical stage of the proceedings against the defendant.”

        While we hold that G.S. 15A-601 is not a mandatory procedure affecting the validity of a trial in the absence of a showing of prejudice, we do not approve the practice followed here. This statute was designed not only to ensure the protection of defendant's constitutional rights, but also to ensure the orderly progression of a criminal proceeding. The first appearance is a clear and specific directive of our General Statutes and the appropriate officials would be well advised to abide by the prescribed procedures. Indeed, the State runs the risk, in failing to providethe first appearance, of being forced to trial again for an obviously guilty, but prejudiced, defendant.

State v. Pruitt, 42 N.C. App. 240, 242, 256 S.E.2d 249, 251 (1979).
    We reiterate the concerns expressed by the Pruitt decision, and hold likewise. While the practice of omitting a first appearance is not advisable, and district courts should be more diligent to protect the statutory rights of defendants, we do not think the defendant here was prejudiced to the extent of requiring a new trial.
    Defendant's remaining assignments of error were not argued in his brief and are therefore deemed waived under the North Carolina Rules of Appellate Procedure, Rule 28(a).
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

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