An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1131


Filed: 20 July 2004


    v .                             Gaston County
                                Nos. 02 CRS 62197-98

    Appeal by defendant from judgments dated 21 March 2003 by Judge J. Gentry Caudill in Gaston County Superior Court. Heard in the Court of Appeals 19 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for the State.

    Moser, Schmidly & Roose, by Richard G. Roose, for defendant- appellant.

    BRYANT, Judge.

    Gregory S. Hay (defendant) appeals judgments dated 21 March 2003 entered consistent with jury verdicts finding him guilty of first-degree rape and first-degree sexual offense.

State's Evidence

    On 24 July 2002, Tami Carter (the victim) walked to a Food Lion store to use a payphone. While standing at the payphone, a red pickup truck pulled beside her and the driver, later identified as defendant, offered Carter a ride home. Accepting the defendant's offer, Carter got in the truck, however, defendant unexpectedly drove the truck in a different direction, explaining he needed to stop by his house to let his brother know that he was taking Carter home.    When they arrived at defendant's house, defendant jumped the fence, entered through a rear door, opened the front door, and invited Carter to enter. Carter entered the house and sat down in the living room. Carter then heard a gun being pumped, and upon looking up, saw defendant was holding a 12-gauge shotgun.
    While pointing the gun toward Carter, defendant ordered her to undress. After Carter undressed, defendant forced her to perform oral sex on him. When Carter attempted to struggle with defendant, the shotgun discharged. Defendant then forced Carter into a bedroom where he forcefully engaged in vaginal intercourse with her.
    When Carter attempted to redress herself, defendant placed her hand in his, telling her he was going to put her out of her misery. Something then caught defendant's attention that enabled Carter to run to a neighbor's house for help. Thereafter, defendant was arrested and charged with first-degree rape and first-degree sexual offense.
Defendant's Evidence

    On 24 July 2002, defendant saw Carter standing on a street corner near a Food Lion. She was not talking to anyone, so he drove toward her to ask what she was doing. When Carter asked defendant what he was doing he told her that he was going home. Defendant then asked Carter if she wanted to go with him, saying he would bring her back in a little while. Carter thereafter got in defendant's truck and he drove them to his house. Defendant had a shotgun in his truck, which he took in the house.    At the house, and while walking toward the bedroom, the gun discharged. Defendant put on some music and Carter asked defendant what he wanted to do. Carter stated she would perform oral sex for $15.00 and engage in vaginal intercourse for $45.00. Carter performed oral sex on defendant, and thereafter the two engaged in vaginal intercourse. When Carter asked for money, defendant told her he was not going to pay and she needed to leave. Carter became very angry and left the house.

    The issues on appeal are whether the trial court erred in: (I) denying defendant's motion to prohibit the State from proceeding on short-form indictments which failed to allege the necessary elements of the offenses charged; (II) overruling defendant's objection to testimony that emotional trauma was evidence of forcible assault; (III) overruling defendant's objection to hearsay testimony regarding statements made by defendant; (IV) overruling defendant's objection to cross-examination of defendant regarding prior contacts with prostitutes; and (V) overruling defendant's objection to the State's closing argument.

    First, defendant argues the trial court erred in denying his motion to prohibit the State from proceeding on short-form indictments that failed to allege the necessary elements of first- degree rape and first-degree sexual offense.
    N.C. Gen. Stat. §§ 15-144.1 to .2 specifically authorizes the State to proceed on short-form indictments alleging first-degreerape and first-degree sexual offense. N.C.G.S. §§ 15-144.1 to .2 (2003). Our Court has previously held that indictments prosecuted pursuant to these statutes are sufficient to pass constitutional muster. See State v. Owen, 159 N.C. App. 204, 208, 582 S.E.2d 689, 692 (2003). This assignment of error is overruled.

    Second, defendant argues the trial court erred in allowing emergency room nurse Kelly Helfenberger to testify that emotional trauma is an indicator of forcible assault.
    On cross-examination, defense counsel questioned the witness as follows:
Q.    In light of the medical exam, Miss Carter, as it took place there, other than the statement which Miss Carter told you about the sexual assault, is there any evidence in those medical records or file that would indicate that a forceful nonsexual encounter took place as opposed to one that was consensual other than her testimony to you?

A.     Yes, sir.

Q.     What's that?

A.     Emotional trauma. Emotional - -

Q.     I asked you about the - - not what she told you and not what you observed in terms of how she appeared. You stated she was nervous, anxious, and upset. But in terms of the actual examination of her pelvic area, the rape kit, if you will.

A.     No, sir.

(Emphasis added).
    On redirect by the State:

Q.     Okay. And you said emotional trauma would indicate forcible assault?    [DEFENSE COUNSEL]: Objection, your Honor.
    THE COURT: Overruled.

Q.     Isn't that what you said?

A.     Yes, sir.

    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 . . . admitted without objection.”), cert. denied, 357 N.C. 253, 583 S.E.2d 41 (2003). Here, substantially identical evidence was elicited from defendant on cross-examination, and defendant failed to move to strike the answer or otherwise object to the admissibility of the statement. Moreover, testimony concerning a person's emotional state on a given occasion is a proper subject for lay witness opinion. See State v. Childers, 131 N.C. App. 465, 469, 508 S.E.2d 323, 327 (1998). This assignment of error is overruled.


    Third, defendant argues the trial court erred in allowing “William Porter, over Defendant's objection . . . to testify that the next morning, Brooke Absher   (See footnote 1)  told him that [defendant] 'wantedher to leave with him, take the baby and leave.'”   (See footnote 2) 
    The transcript reveals the following examination of William Porter by the State:
Q.     Did you talk to Brooke that morning?

A.     Yes.

Q.     Did you - - did she tell you anything about seeing Greg Hay that night?

    [DEFENSE COUNSEL]: Objection, your Honor.

A.     I believe she did.

    THE COURT: Overruled.

Q.     Go ahead, sir.

A.     I said I believe she did.

Q.     What did she tell you?

A.     That he had been there at the carport, and which I observed. And then later on - - and I was unaware of this, of course, because I was sleeping - - that he had come to the bedroom window and [t]apped on the bedroom window, but she wouldn't go out. And he wanted her to leave with him, take the baby and leave, and she refused.

Q.     Okay. And when did Brooke tell you that?

A.     What was that question?

Q.    Sorry, sir. When did Brooke tell youthat, Mr. Porter?

A.     I believe it was the next day.

    Here, Porter's testimony was inadmissible as substantive evidence but was admissible for purposes of corroborating Absher's prior testimony that defendant came, tapped on Brook's window, and talked to her in the early morning hours the day after the offenses at issue were committed. Defendant, however, failed to request an instruction limiting the purposes for which the jury could consider the testimony. “The admission of evidence which is competent for a restricted purpose will not be held error in the absence of a request by the defendant for limiting instructions.” State v. Jones, 322 N.C. 406, 414, 368 S.E.2d 844, 848 (1988). This assignment of error is overruled.


    Fourth, defendant argues that the trial court erred in overruling defendant's objection to the State's cross-examination of defendant regarding how he “normally” negotiated deals with prostitutes.
    Pursuant to N.C. Gen. Stat. § 8C-1, Rule 402, all relevant evidence is admissible. N.C.G.S. § 8C-1, Rule 402 (2003). Here, defendant testified that Carter was a prostitute who negotiated a price of $15.00 for oral sex and $45.00 for vaginal intercourse, but defendant refused to pay her after services were rendered. Defendant testified he had “visited” with prostitutes maybe three times during his life. He also testified that his negotiations did not normally involve shotguns, and prostitutes did not alwaysrequire payment before services were rendered.
    The question of how defendant normally negotiated deals for prostitution was relevant evidence in light of defendant's allegation that the incident at issue was a prostitution deal gone awry. This assignment of error is overruled.

    Last, defendant argues the trial court erred in overruling his objection to the following statements made by the State during closing arguments:
    And then, oh, wait. Oh, you know, my DNA has come back. I know they found some in there. It's going to help them with my sex case, but I don't think they have enough to convict me. . . . [T]hey can't get me. They ain't going to get me. . . . You're not going to convict me, ladies and gentlemen. You're not going to convict me. . . . I can talk my way out of this one.

    In North Carolina, “it is well established that control of counsel's arguments is left to the sound discretion of the trial court. Prosecutors are given wide latitude in the scope of their argument.” State v. Womble, 343 N.C. 667, 692, 473 S.E.2d 291, 306 (1996). Counsel is allowed to argue facts in evidence and any reasonable inferences that can be drawn therefrom. Id. However, counsel may not present “incompetent and prejudicial matters” to the jury by injecting personal opinions that are not supported by the evidence. Id. Further, “for an inappropriate prosecutorial comment to justify a new trial, it 'must be sufficiently grave that it is prejudicial error.'” State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487 (1992) (citing State v. Britt, 291 N.C. 528, 537,231 S.E.2d 644, 651 (1977)).
    Recently, our Supreme Court has articulated the need to “strike a balance between giving appropriate latitude to attorneys who argue heated cases and the need to enforce the proper boundaries of closing argument and maintain professionalism.” State v. Jones, 355 N.C. 117, 135, 558 S.E.2d 97, 108 (2002). The Supreme Court has also found that a party's closing argument must “(1) be devoid of counsel's personal opinion; (2) avoid name-calling and/or references to matters beyond the record; (3) be premised on logical deductions, not on appeals to passion or prejudice; and (4) be constructed from fair inferences drawn only from evidence properly admitted at trial.” Id.
    Despite defendant's contentions, the State was not attempting to attribute the statements as direct narratives taken from defendant. The State's argument contained proper inferences regarding how defendant conducted his defense based on the physical (DNA) evidence against him and his testimony at trial. Moreover, defendant has not shown the closing argument was prejudicial. This assignment of error is overruled.
    No error.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

Footnote: 1
    Brooke Absher is defendant's ex-girlfriend with whom he fathered a child. Absher testified that defendant came to see her in the early morning hours of 24 June 2002. Absher lived with her grandfather, William Porter, and her grandmother.
Footnote: 2
    The State argues defendant has failed to properly pre serve this issue for appellate review as he only assigned as error the admission of Brook Absher's testimony. Defendant cites assignment of error number six as the basis for the argument, which reads: “The Court's overruling of Defendant's objection to hearsay testimony regarding statements made by Defendant to Brook Absher since said testimony was inadmissible hearsay.” Both the argument and assignment of error refer to the section of the trial transcript (page 492) that contains the testimony of William Porter, and not Brook Absher. We therefore conclude defendant's argument has been properly preserved.

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