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.
I
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.
II
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.
III
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.
IV
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.
V
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