An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05_94


Filed: 7 February 2006


v .                         Iredell County
                            No. 03 CRS 50634

    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.


    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.

    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.

    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.

    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
    For purposes of this appeal, we will identify the daughter by the pseudonym "Kathy."
Footnote: 2
    Defendant also moved for dismissal at the close of the State's evidence, but after the denial of that motion, defendant offered evidence. See N.C.R. App. 10(b)(3) ("If a defendant makes [a motion to dismiss] after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.").
Footnote: 3
    The plain language of this statute indicates that either vaginal intercourse or a "sexual act" falls within the range of proscribed conduct. The trial court in this case, however, instructed the jury that, in order to convict, it was required to find that defendant engaged in vaginal intercourse with Kathy.
Footnote: 4
    While defendant objected under Rule 404(b) of the Rules of Evidence to admission of evidence regarding defendant's prior conduct with the babysitter, defendant did not object to evidence of prior conduct with the victim Kathy.

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