Appeal by defendant from judgments entered 29 April 2005 by
Judge Robert H. Hobgood in Durham County Superior Court. Heard in
the Court of Appeals 16 May 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth J. Weese, for the State.
Terry W. Alford for defendant-appellant.
Defendant Anthony Michele Lofton appeals from his convictions
for second degree rape, second degree sexual offense, sexual
offense by one in a parental role, and incest. Defendant first
contends that the trial court erred by failing to grant him a
mistrial after a witness reported a statement by defendant during
the State's direct examination that had not been disclosed to
defendant during pre-trial discovery. We find no abuse of
discretion in the trial court's decision to sanction the discovery
violation by excluding the statement, giving a curative instruction
to the jury, and polling the juror to ensure they could abide by
the instruction. Defendant also argues that a sexual assault nurse
who testified for the State was improperly allowed to testify tothe victim's credibility. We disagree because the nurse was
describing characteristics of sexual assault victims, rather than
expressing an expert opinion as to the victim's credibility. We
likewise find defendant's remaining arguments unpersuasive and,
therefore, uphold defendant's convictions and sentences.
Facts and Procedural History
The State's evidence tended to show the following facts.
Defendant is the stepfather of the victim, N.D.L., and has been a
father figure in N.D.L.'s life since she was less than a year old.
(See footnote 1)
On 22 November 2003, N.D.L.'s mother picked N.D.L. up at her high
school at around 9:00 or 10:00 p.m., after N.D.L.'s basketball
game. When they got home, N.D.L. had something to eat and went to
a bedroom that she shared with her younger brother. She fell
asleep on her bed in her clothes.
N.D.L. woke up coughing. She sat up in bed for a while until
her coughing stopped and then lay down and went back to sleep.
Soon after, defendant awakened her to ask if she was all right and
told her to come into the kitchen to take some medicine. After
defendant gave her a pill in the kitchen, he followed her down the
hallway back to her bedroom, asked her again if she was all right,
and inquired about her basketball game. He also asked her if she
would like to go lie
in bed with him. N.D.L. answered "no," went
into her room, shut the door, and went back to bed. A few seconds later, defendant opened the door, lay down in
N.D.L.'s bed with her, and began to massage her shoulders and back.
N.D.L. tried to get off the bed, but defendant pulled her to him
and, although she resisted, pulled her pants and shorts down.
N.D.L. was still wearing a gray T-shirt over a tank top. After
inserting his finger into her vagina for a few seconds, defendant
pulled his shorts down and inserted his penis into her vagina.
N.D.L. testified that, at this point, the medicine defendant had
given her was starting to take effect. She felt very drowsy and
drained. She also testified that although she told defendant to
stop and continued to try to get away, there "wasn't much I could
do because he had his arms around my stomach. He had his hands _
he had the palm of his hand on my stomach."
N.D.L. testified that defendant reinserted his fingers into
her vagina, licked her vagina, again inserted his fingers, and
finally ejaculated onto her stomach and onto her shirt up near her
shoulder. Defendant attempted to wipe N.D.L. off with his
underwear. He then put his shorts back on and left, closing the
door behind him. N.D.L. put her pants back on and remained in her
N.D.L.'s mother, who had been asleep in the living room, got
up at the sound of the bedroom door closing. She went down the
hallway toward the bedrooms. The mother testified that, when she
looked into the bedroom she shared with defendant, he "turned
around and asked me, what the F was my problem. I said nothing, I
had to go to the bathroom." The mother entered N.D.L.'s room. Shenoticed that N.D.L. was awake and had a strange look on her face
and asked her what was wrong. N.D.L. sat up and, without speaking,
pointed to the wet stain on her shirt near her shoulder. The
mother asked, "[W]as he in here?" When N.D.L. nodded, the mother
asked, "[I]s that what I think it is?" N.D.L. nodded again.
N.D.L.'s mother immediately took her to the hospital, where
evidence was collected from her body and clothing. She was also
interviewed by the police and a sexual assault nurse examiner. It
was ultimately determined that the semen on N.D.L.'s shirt matched
defendant's DNA and that DNA analysis of other semen stains on
N.D.L.'s panties and genital swabs could not exclude defendant.
Defendant was indicted for (1) sexual offense through vaginal
intercourse by one who has assumed the position of parent to the
victim, (2) second degree rape, (3) incest between near relatives,
(4) crime against nature by performing cunnilingus, and (5) second
degree sexual offense. The following charges were submitted to the
jury: second degree rape, second degree sexual offense, incest, and
sexual offense by one who has assumed the position of parent to the
victim. On 28 April 2005, the jury convicted defendant of all four
charges, and defendant received a consolidated sentence of 81 to
107 months for the second degree sexual offense and second degree
rape convictions, along with a second consolidated sentence of 24
to 38 months for the convictions for incest and sexual offense by
one in a parental role. The trial judge ordered that the sentences
be served consecutively, but suspended the latter sentence withdefendant to be placed on probation following completion of his
first sentence. Defendant filed a timely appeal to this Court.
In connection with each of the arguments asserted by defendant
on appeal, defendant has contended that his constitutional rights
were violated. At trial, however, defendant raised no
constitutional issues. It is well established that "a
constitutional question which is not raised and passed upon in the
trial court will not ordinarily be considered on appeal." State v.
, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). Defendant
has made no argument explaining why this general rule should not
apply in this case. We, therefore, do not address defendant's
Defendant first argues that the trial court abused its
discretion by failing to grant him a mistrial based on the
following exchange between N.D.L. and the prosecutor:
Q. Did you get yourself together and
get ready to go to the hospital?
A. Yes. As I was getting myself
together, [my mother] had already left and
went into her bathroom. [Defendant] had came
[sic] to the bathroom door.
Q. Which bathroom door?
A. My bathroom door.
A. In the hallway. He looked at me.
The whole time he was looking at me, he was
like talking real loud like, what did you say
to your mother[?] What did you say to yourmother? But, under his breath, while he was
talking, he was like, don't say nothing; don't
Defense counsel immediately objected to this testimony, and the
judge sent the jury out, telling them he had "a procedural matter
[he] must conduct in [its] absence."
Defense counsel requested a mistrial, arguing that defendant's
statement urging N.D.L. not to say anything had not been disclosed
in discovery. The trial judge sustained defendant's objection
based on the failure to disclose the statement, but denied the
motion for a mistrial. When the jury returned, the trial judge
instructed the jurors:
The objection is sustained. Members of the
jury, I do instruct you to totally disregard
and dismiss from your minds the statement of
this witness that the defendant said to her in
a low voice, don't say nothing; don't say
You are to dismiss that from your minds.
It shall take no part in your deliberations in
Can you follow that instruction? If you
can, raise your hand. If you can dismiss that
from your minds and have it take no part in
your deliberations, raise your hand.
The trial judge noted for the record that each juror raised his or
Defendant argues that the statement was so inherently
prejudicial _ as the only statement by defendant implying
acknowledgment of wrongdoing _ that no juror could disregard the
statement. This case does not, however, involve the admission of
otherwise inadmissible evidence. Instead, the trial courtsustained the objection and issued instructions to the jury to
disregard the testimony as a sanction for discovery violations
under N.C. Gen. Stat. § 15A-910 (2005).
N.C. Gen. Stat. § 15A-910 provides:
(a) If at any time during the course of
the proceedings the court determines that a
party has failed to comply with this Article
[governing discovery] or with an order issued
pursuant to this Article, the court in
addition to exercising its contempt powers may
(1) Order the party to permit the
discovery or inspection, or
(2) Grant a continuance or recess, or
(3) Prohibit the party from introducing
evidence not disclosed, or
(3a) Declare a mistrial, or
(3b) Dismiss the charge, with or without
(4) Enter other appropriate orders.
Our Supreme Court has held that while this statute provides for
several possible remedies for discovery violations, "the trial
court is not required to impose any sanctions." State v. Taylor,
311 N.C. 266, 271, 316 S.E.2d 225, 228 (1984). Further, the
decision regarding which sanction, if any, to impose rests entirely
within the discretion of the trial court, and that decision will
not be reversed in the absence of a showing of abuse of discretion.
Id. See also State v. Smith, 135 N.C. App. 649, 658, 522 S.E.2d
321, 328 (1999) ("A trial court is not required to impose sanctions
for late discovery. Instead, it is a matter of discretion for thetrial judge."), disc. review denied, 351 N.C. 367, 543 S.E.2d 143
Here, the trial judge chose not to grant a mistrial, but
rather excluded the evidence by giving a strong instruction to the
jury to disregard the testimony and then polling the jury to ensure
that each juror could do so. Defendant has failed to demonstrate
that the selection of this sanction was manifestly unreasonable.
(See footnote 2)
See Taylor, 311 N.C. at 271, 316 S.E.2d at 228 (upholding trial
court's decision to exclude physical evidence and all but one
photograph as a sanction for failing to disclose evidence); Smith,
135 N.C. App. at 658, 522 S.E.2d at 328 (holding that trial court
did not err in denying a mistrial and imposing a lesser sanction
for the State's failure to disclose statements made by the
Even if this appeal did not involve discovery sanctions, this
Court has previously held that a trial court did not abuse its
discretion in denying a mistrial after the State elicited testimony
previously determined to be inadmissible when the trial court
undertook the same curative actions used by the trial judge in this
case. See State v. Vines, 105 N.C. App. 147, 154, 412 S.E.2d 156,
161 (1992) (trial judge discussed mistrial with counsel, issued
curative instructions to the jury to disregard the testimony,polled the jurors to determine if they could disregard the
testimony, and had each juror raise his or her hand to indicate an
ability to do so). We, therefore, overrule this assignment of
Defendant next objects to the trial court's admission of
testimony from Ella Buchanan, a sexual assault nurse who testified
as follows during the State's redirect examination:
Q. During the time that you [have] . . .
worked as a sexual assault nurse examiner,
examining persons who indicated they were
victims of sexual assault and also during your
training as a sexual assault nurse examiner,
how often would you say, a percentage, do you
run across there being any type of injury to a
female's genitals after being sexually
MR. VANN [defense counsel]: Objection.
THE COURT: Overruled.
THE WITNESS: In my personal experience or
my clinical experience, I rarely have someone
who shows physical trauma.
And percentage, the percentage that is
generally accepted at this time is around 80
percent or so . . . don't show signs of
Defendant contends that this evidence is improper because it
"amounted to a comment on the victim's credibility and was an
opinion that sex had occurred."
Defendant relies upon State v. Grover, 142 N.C. App. 411, 543
S.E.2d 179, aff'd per curiam, 354 N.C. 354, 553 S.E.2d 679 (2001).
In Grover, we noted: "[T]his Court has held that where 'experts
found no clinical evidence that would support a diagnosis of sexualabuse, their opinions that sexual abuse had occurred merely
attested to the truthfulness of the child witness,' and were
inadmissible." Id. at 413, 543 S.E.2d at 181 (quoting State v.
Dick, 126 N.C. App. 312, 315, 485 S.E.2d 88, 90, disc. review
denied, 346 N.C. 551, 488 S.E.2d 813 (1997)). The Court in Grover
went on to explain:
[W]e do not hold that an expert cannot testify
as to characteristics of abused children.
[E]xpert[s] in the field may testify on the
profiles of sexually abused children and
whether a particular complainant has symptoms
or characteristics consistent with this
profile. The nature of the experts' jobs and
the experience which they possess make them
better qualified than the jury to form an
opinion as to the characteristics of abused
children. Thus, while it is impermissible for
an expert, in the absence of physical
evidence, to testify that a child has been
sexually abused, it is permissible for an
expert to testify that a child exhibits
characteristics [consistent with] abused
Id. at 419, 543 S.E.2d at 184 (alterations in original) (internal
citations and quotation marks omitted).
In this case, Nurse Buchanan did not testify that N.D.L. was
in fact the victim of sexual offenses. Instead, her testimony
pertained to the characteristics or profiles of sexual assault
victims and thus came well within Grover's guidelines for
acceptable expert testimony. See also State v. Stancil, 355 N.C.
266, 267, 559 S.E.2d 788, 789 (2002) (holding that "an expert
witness may testify, upon a proper foundation, as to the profiles
of sexually abused children and whether a particular complainant
has symptoms or characteristics consistent therewith"). Further, the State's questioning of Nurse Buchanan on redirect
was a valid response to the defense's extensive questioning during
cross-examination, in which counsel emphasized the lack of evidence
of physical trauma to N.D.L.'s person. "The purpose of redirect
examination is to clarify any questions raised on cross-examination
concerning the subject matter of direct examination and to confront
any new matters which arose during cross-examination." State v.
Baymon, 336 N.C. 748, 754, 446 S.E.2d 1, 4 (1994) (defendant's
cross-examination of doctor, which suggested sexual assault victim
had been coached in her testimony by social workers and family,
rendered admissible testimony on redirect examination to the effect
that doctor did not believe victim had been told what to say).
In the present case, the challenged testimony served to
clarify an issue raised by defendant himself and was aimed at
informing the jury about the percentage of sexual assault victims
who show no signs of physical trauma, a statistic with which the
jury was unlikely to be familiar. As such, we hold that the trial
court properly allowed the challenged testimony.
Defendant next argues that the trial court erred in denying
his motion to dismiss for insufficiency of the evidence. In ruling
upon a motion to dismiss, the trial court must determine if the
State has presented substantial evidence of each essential element
of the offense and of defendant's being the perpetrator. State v.
, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied
U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "'Evidence issubstantial if it is relevant and adequate to convince a reasonable
mind to accept a conclusion.'" Id.
(quoting State v. Parker
N.C. 268, 278, 553 S.E.2d 885, 894 (2001), cert. denied
, 535 U.S.
1114, 153 L. Ed. 2d 162, 122 S. Ct. 2332 (2002)). In considering
the motion, the trial court must view the evidence in the light
most favorable to the State, giving the State the benefit of every
reasonable inference to be drawn from the evidence and resolving
any contradictions in favor of the State. Id.
, 561 S.E.2d at 256.
Defendant argues as to all four charges that his motion to
dismiss should have been granted because (1) N.D.L.'s "statements
are all over the place," (2) N.D.L. had not previously experienced
any problems with defendant, (3) N.D.L.'s mother and brother did
not wake up although she claims that she fought defendant and told
him to stop, (4) N.D.L. experienced no injuries or pain, and (5)
"[t]he DNA issue is completely questionable." In summing up his
argument, defendant states in his brief: "Her story is not
believable. And then, which story? Yes, this was for the jury to
wade through and decide. But sometimes it is proper for the Court
to stop the case."
As defendant acknowledges, he is making arguments regarding
the credibility of witnesses and the weight that should be afforded
various pieces of evidence. Those issues were for the jury to
resolve and do not fall within the province of the trial judge or
the appellate courts. See State v. Hyatt
, 355 N.C. 642, 666, 566
S.E.2d 61, 77 (2002) ("[I]t is the province of the jury . . . to
assess and determine witness credibility."), cert. denied
, 537 U.S.1133, 154 L. Ed. 2d 823, 123 S. Ct. 916 (2003); State v. Powell
299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980) ("The trial court in
considering such motions is concerned only with the sufficiency of
the evidence to carry the case to the jury and not with its
weight."). Contradictions and discrepancies in the testimony or
evidence are for the jury to resolve and cannot warrant dismissal.
, 343 N.C. at 36, 468 S.E.2d at 237. Since defendant offers no
other arguments to justify dismissal, we hold that the trial court
properly denied defendant's motion to dismiss.
Finally, defendant challenges the trial court's response to a
question the jury submitted during deliberations: "Does resignation
or feeling it's futile to resist take the place of physical
force?" Over defendant's objection, the trial judge instructed the
jury as follows:
In response to your question, if the
resignation or feeling that it is futile to
resist is based on a threat of the defendant
to use force, that can take the place of
Also, difference in size and strength can
be considered by the jury on the question of
what force is sufficient to overcome any
resistance. Fear or coercion may take the
place of physical force.
Defendant contends this re-instruction _ which tracked the pattern
jury instructions, see
N.C.P.I.--Crim. 207.20 (2002), and echoed
the trial judge's earlier instruction on the same topic _ placed
undue emphasis on a particular portion of the instructions. N.C. Gen. Stat. § 15A-1234(b) (2005) provides that "[a]t any
time the judge gives additional instructions, he may also give or
repeat other instructions to avoid giving undue prominence to the
additional instructions." Our Supreme Court has cautioned,
however, that "needless repetition is undesirable and has been held
erroneous on occasion." State v. Dawson
, 278 N.C. 351, 365, 180
S.E.2d 140, 149 (1971). In short, "the trial court is in the best
position to determine whether further additional instruction will
aid or confuse the jury in its deliberations, or if further
instruction will prevent or cause in itself an undue emphasis being
placed on a particular portion of the court's instructions." State
, 317 N.C. 148, 164, 345 S.E.2d 159, 169 (1986). Any
challenge that arises solely on the basis of undue emphasis is
reviewed for abuse of discretion only. Id.
(holding that trial
court, in responding to a question from the jury on first degree
murder, did not abuse its discretion in refusing to also reinstruct
as to second degree murder).
Here, we find that the trial court did not abuse its
discretion by issuing the additional instructions. In arguing that
no further instruction should have been given, defendant only
reiterates his contentions regarding the credibility of N.D.L.
Defendant's arguments are not sufficient to demonstrate that the
trial judge's decision to respond to the jury's question with a
correct statement of the law was manifestly unreasonable.
Defendant's final assignment of error is, accordingly, overruled.
Judges WYNN and STEPHENS concur.
Report per Rule 30(e).