Appeal by defendant from judgment entered 29 July 2004 by
Judge Preston Cornelius in Iredell County Superior Court. Heard in
the Court of Appeals 11 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Joyce S. Rutledge, for the State.
Jarvis John Edgerton, IV for defendant-appellant.
GEER, Judge.
Defendant Kenneth Andrae Parsons appeals from his conviction
for statutory rape of his wife's daughter.
(See footnote 1)
On appeal, defendant
argues that the State failed to present evidence that vaginal
intercourse took place between defendant and Kathy. Because the
evidence, when viewed in the light most favorable to the State,
indicates that such intercourse did, in fact, take place, we
disagree. We further hold, contrary to defendant's arguments on
appeal, that the trial court did not abuse its discretion in
admitting photographs taken by a nurse or in allowing the State to
ask leading questions during the direct examination of Kathy.
Facts
The State's evidence tended to show the following. Defendant
is married to Kathy's mother. In January 2003, the couple was
living in Statesville, North Carolina with the mother's three
children: two sons and a daughter, Kathy. On 14 January 2003,
defendant, Kathy, and the youngest son were at home by themselves.
Kathy was 15 years old, while her brother was 13 or 14 years old.
Defendant told the brother to take a shower before his mother came
home. The brother testified that at one point during his shower,
he became concerned about his sister, and he got out of the shower
and looked under the bathroom door. He saw defendant in his
sister's bedroom, standing over her and masturbating. The brother
finished his shower and left the bathroom. As he did so, he met
defendant coming out of the bedroom that defendant shared with his
wife. The brother stated that he looked for his sister throughout
the rest of the house. When he was unable to find her, he
concluded that she was in defendant's bedroom.
Kathy testified that while her brother was in the shower,
defendant took her by the arm and pulled her into the bedroom he
shared with her mother. According to Kathy, defendant took off her
clothes and forced her to have sex with him. The encounter stopped
when they heard her brother get out of the shower.
The State also offered evidence, over defendant's objection,
from Kathy's cousin. The cousin, who was 20 at the time of trial,
testified to an incident that occurred when she was 15. She stated
that she was babysitting at defendant's house, but had let thechildren go to the park while she stayed at the house. While she
was in the house by herself, defendant touched her, pulled down her
shorts, and tried to have sex with her, but "it wouldn't work."
Based on the incident with Kathy, defendant was indicted for
statutory rape of a person who is 13, 14, or 15 years old in
violation of N.C. Gen. Stat. § 14_27.7A(a) (2005). He was
convicted by a jury on 29 July 2004. The trial court sentenced him
to a presumptive range sentence of 288 to 355 months imprisonment.
I
Defendant first assigns error to the trial court's denial of
his motion to dismiss at the close of all the evidence.
(See footnote 2)
In ruling
on a defendant's motion to dismiss, the trial court must determine
whether the State has presented substantial evidence (1) of each
essential element of the offense and (2) of the defendant's being
the perpetrator.
State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d
245, 255,
cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S.
Ct. 488 (2002). "'Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'"
State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269,
270 (2001) (quoting
State v. Brown, 310 N.C. 563, 566, 313 S.E.2d
585, 587 (1984)). In reviewing a defendant's motion to dismiss,the trial court must view all of the evidence presented "in the
light most favorable to the State, giving the State the benefit of
every reasonable inference and resolving any contradictions in its
favor."
State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994),
cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct.
2565 (1995).
Defendant in this case was convicted of statutory rape under
N.C. Gen. Stat. § 14_27.7A(a), which provides:
A defendant is guilty of a Class B1 felony if
the defendant engages in vaginal intercourse
or a sexual act with another person who is 13,
14, or 15 years old and the defendant is at
least six years older than the person, except
when the defendant is lawfully married to the
person.
On appeal, defendant contends that the record contains insufficient
evidence of penetration to support the jury's finding that vaginal
intercourse occurred.
(See footnote 3)
In the present case, Kathy stated: "My stepfather had sex
with me." More specifically, she testified that after defendant
took her into his bedroom, the following occurred: "[Defendant]
told me to get up on the bed, and he had _ after he did that, he
took my _ he had took my underclothes off and just started having
sex with me." Defendant claims, however, that "it is clear from
the evidence that the term sex did not mean vaginal penetration to
[Kathy.]" Contrary to defendant's contention, when Kathy was askedwhat "sex" meant, she responded: "When two people are doing it . .
. putting their penis in the female's vagina, having sex."
In addition to Kathy's testimony, the State also offered
evidence regarding a social worker's interview of defendant. The
social worker testified:
In interviewing Mr. Parsons for 2-18-03, he
came to our office and admitted that he had
had sex with [Kathy] and that [Kathy] had come
into his _ into he and his wife's bedroom and
got on top of him and was near his mid
section, and he indicated that it was dark in
the room, and he did insert his penis in her
vagina. Stated that he did not realize that
[Kathy] was not his wife. That he didn't
realize that [Kathy] was not his wife until
she made a comment or a statement saying, "Oh
baby." And when she made that comment, . . .
he realized that [Kathy] was not his wife and
then threw [Kathy] off of him onto the floor.
Defendant subsequently testified at trial, consistent with the
social worker's testimony, that he awoke one evening and found
Kathy on top of him, but thought she was his wife. According to
defendant, when he realized her identity, he pushed her off.
In short, defendant did not dispute penetration, but rather
claimed he was mistaken regarding with whom he was having sex.
North Carolina does not recognize the maxim
falsum in uno, falsum
in omnibus, or "false in one, false in all," but rather allows a
jury to believe all, or part, or none of the testimony of a
witness.
State v. Foster, 293 N.C. 674, 682, 239 S.E.2d 449, 455
(1977). The jury was thus entitled to disbelieve defendant's claim
of mistake while still believing his admission of penetration.
Defendant's statements and testimony provided ample evidence to
support the charge of statutory rape even apart from Kathy'stestimony. Defendant's first assignment of error is, therefore,
overruled.
II
Defendant next contends that the trial court erred in
admitting three close-up photographs of Kathy's hymen and vaginal
area, which were taken on 15 January 2003, the day after the
alleged crime. Although the State asked to admit eight
photographs, the trial court allowed only three to be used to
illustrate the testimony of the State's expert witness. According
to the State's expert, the photographs depicted the rim of the
victim's hymen and evidenced what the expert described as a deep
notch and irregularity, indicating blunt force trauma. The expert,
however, confirmed that the trauma had not occurred within 24 hours
and thus did not occur during the time period in which the
statutory rape allegedly took place, namely the night of 14 January
2003.
Although defendant argues on appeal that the photos were not
relevant, he did not object at trial to the expert's testimony
regarding the notches in the hymen. Nor does he challenge on
appeal the relevancy of the expert's testimony. In addition, the
State also presented evidence, without any objection by defendant,
that defendant had intercourse with Kathy one or two times prior to
the occasion for which he was charged.
(See footnote 4)
The expert testified thatthe notches, as illustrated by the photographs, were consistent
with Kathy's history of prior intercourse with her stepfather.
"When objections to evidence . . . are waived by the admission of
other evidence of similar import, evidence so admitted is not the
proper subject for assignment of error on appeal."
State v. Hunt,
80 N.C. App. 190, 194, 341 S.E.2d 350, 353 (1986). Here,
defendant's failure to object on the grounds of relevance to the
expert's testimony and the evidence of other earlier instances of
intercourse waives any objection he may have regarding the
relevance of the photographs.
The sole issue to be examined on appeal is, therefore, whether
any prejudice that may have resulted from the introduction of the
three photographs outweighs the probative value under N.C.R. Evid.
403. A trial court's decision under Rule 403 will not be
overturned on appeal absent an abuse of discretion.
State v.
Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005). In assessing
the potentially prejudicial effect of the photographs in the
present case, we note that one of defendant's principal arguments
in his defense was his contention that Kathy made false allegations
because defendant had caught her having sex with someone else. As
indicated above, defendant also was relying upon his claim that
Kathy has initiated sex with him without his knowledge. The three
photographs and the expert's testimony confirmed that Kathy was not
a virgin, but could not distinguish between sexual intercourse with
defendant or with others. The photos, consistent with prior sexual activity, were
equally supportive of defendant's defense as of the State's theory
of other instances of statutory rape. Based on the fact the
photographs were helpful to the defense and upon our review of the
photographs, we cannot say that the trial court abused its
discretion in determining that the photographs were not unduly
prejudicial under Rule 403. This assignment of error is overruled.
III
Defendant's final argument on appeal is that the trial court
abused its discretion by allowing the State to ask leading
questions of the victim. "[I]t is within the sound discretion of
the trial judge to determine whether counsel shall be permitted to
ask leading questions, and in the absence of abuse the exercise of
such discretion will not be disturbed on appeal."
State v. Greene,
285 N.C. 482, 492, 206 S.E.2d 229, 235 (1974).
The general prohibition on leading questions during direct
examination, N.C.R. Evid. 611(c), may be relaxed in instances where
"the witness has difficulty in understanding the question because
of age or immaturity or where inquiry is made into a subject of
delicate nature such as sexual matters."
State v. Oliver, 85 N.C.
App. 1, 9, 354 S.E.2d 527, 532,
disc. review denied, 320 N.C. 174,
358 S.E.2d 57, 64 (1987). In such cases, "leading questions are
necessary to develop the witness's testimony."
Id.
A number of previous cases have allowed leading questions to
be asked of teenagers, especially in cases involving matters of a
sexual nature.
See State v. Pearson, 258 N.C. 188, 190, 128 S.E.2d251, 253 (1962) (listing cases in which 16- and 17-year-olds were
properly asked leading questions in statutory rape cases).
Moreover, it is also well established that "[l]eading questions may
be used during direct examination when a party calls a hostile or
unwilling witness."
State v. Maddox, 159 N.C. App. 127, 130, 583
S.E.2d 601, 603 (2003).
In this case, the "unwilling witness" was (1) a 17-year-old
being asked to testify about sexual intercourse with her
stepfather; (2) when her mother still loved the stepfather, wanted
to be able to live with him, and testified in his defense; (3) who,
according to her mother's testimony, had requested that the State
not proceed with criminal charges against defendant; and (4) who
purported to have trouble remembering the details of the encounter.
We hold that, under these circumstances, the trial court's decision
to allow the State "some leeway" in asking leading questions of
Kathy was not an abuse of discretion. "[W]e must be advertent to
the fact that because of his opportunity to observe the witnesses
and because of his knowledge of the circumstances of the particular
case, the trial judge is in better position than an appellate court
to decide the proper course of a trial so as to establish the truth
and protect the rights of an accused."
Greene, 285 N.C. at 493,
206 S.E.2d at 236.
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
Footnote: 1