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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-634

NORTH CAROLINA COURT OF APPEALS

Filed: 15 May 2007

STATE OF NORTH CAROLINA

v .                         Buncombe County
                            Nos. 03 CRS 7065; 7066
ALDEN ROLAND,                     03 CRS 53538; 53539

    Defendant.

    Appeal by defendant from judgment entered 3 October by Judge Zoro J. Guice, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 10 January 2007.

    Staples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellant.

    Roy Cooper, Attorney General, by Melissa L. Trippe, Special Deputy Attorney General, for the State.

    ELMORE, Judge.

    On 3 October 2005, defendant was convicted of first-degree sexual offense, first-degree burglary, felony larceny, and first- degree rape. He was sentenced to two consecutive terms of 433 months to 529 months for first-degree rape and first-degree sexual offense, and two consecutive terms of 133 months to 169 months for first-degree burglary and felony larceny. It is from these convictions that defendant appeals.
    The State's evidence tended to show that on 23 March 2003, D.D., then sixty-eight years old, was alone in her Asheville apartment. At approximately 8:00 pm, she heard the doorbell ring, went to the door, and looked out the peephole. She did not seeanybody through the peephole, but realizing that her door was unlocked, moved to lock it. D.D. testified that as she reached for the lock, defendant “pushed the door open and he put his hand over [her] mouth and told [her] to be quiet.” D.D. “tried to push him back out the door,” but “[h]e pushed the door back open and he came in and he put his hand over [her] mouth and he told [her] to be quiet and he put a little knife to [her] throat.” He repeatedly told her to be quiet, and asked where the bedroom was. They started to the bedroom, but D.D., who suffers from rheumatoid arthritis and walks with the assistance of a cane or walker, slipped and fell on the kitchen floor. She bruised her knees and fingers in the fall.
    D.D. testified that she was frightened and thought defendant was going to hurt her. He had her sit on the love seat, “and he pulled his zipper down and took his penis out.” Defendant told D.D. to suck on his member, which she did “[b]ecause [she] was afraid if [she] didn't he would force [her] to do it.” D.D. stated that as this was occurring, “I was scared and frightened, and my heart was beating fast as anything, and I was thinking there was no way I could get away because I couldn't walk that good or run that good.” Defendant, although experiencing some performance difficulties, “took off [D.D.'s] under panties, and then he took off his pants and that.” He attempted to penetrate her vagina, but was unable. Spying some Crisco in the kitchen, he then applied the oil to his flaccid penis and attempted penetration again. Defendant was able to enter D.D. partially. At some point duringthis chain of events, defendant smoked a crack pipe and drank from an alcoholic beverage, both of which he had brought with him.
    At the conclusion of the sexual activity, defendant held a pair of scissors to D.D.'s throat and demanded money. She “told him there was five dollars in [her] wallet . . . and that [she] had some quarters in a piggy bank.” These quarters were state quarters that D.D. kept “in case [her] son and daughter-in-law had a baby.” Some of the quarters were loose, but D.D. had wrapped others in plastic wrap. Defendant removed the piggy bank from D.D.'s bedroom and “took it over to the kitchen sink . . . and tried to wipe his fingerprints off of it. Then he took out the quarters out of it and whatever other change was in there.”
    As defendant was leaving, he told D.D., “Don't say anything to anybody or I'll know and I'll come back and kill you.” D.D. then locked her door and telephoned her son and 911. She was treated at the emergency room, and a rape kit revealed a vaginal laceration and a single pubic hair.
    D.D. identified defendant from a photographic lineup without difficulty. At trial, she said, “I can't forget a face that's looking you in the face.”
    Defendant's first two arguments on appeal are based on his defense at trial that the sexual activity occurred consensually. Defendant argued at trial, as he argues now, that D.D. invited him into her home, requested sexual contact with defendant, smoked a crack pipe with defendant, and voluntarily gave defendant the five dollar bill and her state coin collection so that defendant couldpurchase more crack rocks for the unlikely couple to smoke together. The jury, presented with these two conflicting accounts, apparently found D.D.'s account to be more believable. Defendant maintains that the jury was presented with an inaccurate picture of D.D., and that he is entitled to a new trial as a result.
    Defendant first argues that the trial court erred by denying his motion for mistrial upon defense counsel's discovery that D.D. was able to walk unassisted. D.D. was presented to the jury in a wheelchair and, because she could not climb into the witness box, testified while seated in her wheelchair in front of the jury. During the trial, the State asked about D.D.'s medical history and the physical limitations created by her rheumatoid arthritis, and during cross-examination, defense counsel did the same. Someone known to defense counsel apparently observed D.D. walk on the sidewalk near the courthouse on 3 October 2005. This person relayed to defense counsel that D.D. had her cane in hand, but was only touching it on occasion. Defendant contends that the jurors “decided the case based on a false impression of D.D.'s physical limitations,” and that the trial court committed reversible error by denying defendant's motion for a new trial based on this false impression. We disagree.
    This Court recently held that “[t]he standard of review for denial of a mistrial is whether the trial court abused its discretion. . . . [The] defendant must show the trial court's ruling 'was so arbitrary that it could not have been the result of a reasoned decision' to warrant a new trial.” State v. Hagans, ___N.C. App. ___, 628 S.E.2d 776, 782 (2006) (quoting State v. Upchurch, 332 N.C. 439, 453, 421 S.E.2d 577, 585 (1992)). By statute, “[t]he judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” N.C. Gen. Stat. § 15A-1061 (2005).
        The decision to grant or deny a mistrial rests within the sound discretion of the trial court and will be reversed on appeal only upon a clear showing that the trial court abused its discretion. Thus, a mistrial should not be allowed unless there are improprieties in the trial so serious that they substantially and irreparably prejudice the defendant's case and make it impossible for the defendant to receive a fair and impartial verdict.

State v. Hurst, 360 N.C. 181, 188, 624 S.E.2d 309, 316 (2006) (citations and quotations omitted).
    The alleged impropriety, D.D.'s appearance before the jury in a wheelchair, was not so serious so as to substantially and irreparably prejudice defendant's case. There was no question of D.D.'s infirmity. She has suffered from rheumatoid arthritis since 1965, and had two total knee replacements in 1997. She testified that the rheumatoid arthritis is progressive and that she has good days and bad days. Furthermore, at the time of the trial D.D. was seventy-one years old and suffered from congestive heart failure. The jury was presented with ample evidence of D.D.'s compromised physical condition, and her additional use of the wheelchair, necessary or not, did not cause irreparable prejudice. The trialjudge did not abuse his discretion in denying defendant's motion for mistrial.
    Defendant next contends that the trial court erred by admitting testimony from the treating nurse. Defendant argues that this testimony was irrelevant, speculative, and improperly bolstered D.D.'s credibility. Again, we disagree. Lisa-Marie Quinlan, the emergency room nurse who treated D.D. after the assault, was accepted by the trial court as an expert in nursing. She testified about her recollection of the events of that evening, and made four statements to which defendant objects. We note at the outset that “[i]t is the province of the jury . . . to assess and determine witness credibility.” State v. Smith, 360 N.C. 341, 348, 626 S.E.2d 258, 262 (2006) (citations omitted) (ellipses in original).
    First, when asked if certain of the twenty-five to fifty sexual assault victims she had treated stood out in her mind, Nurse Quinlan stated that D.D. was one of those who stood out because “[i]t was just so horrific that she would have been assaulted in the way she was.” Defendant objected to this statement as irrelevant under Rules of Evidence 401 and 402 because Nurse Quinlan's opinion that the assault was horrific “was not a circumstance calculated to throw light on anything.” See N.C. Gen. Stat. § 8C-1, Rules 401 and 402 (2005). The trial judge properly overruled defendant's objection because this statement provided the basis for Nurse Quinlan's memory of this particular sexual assault examination, and was therefore relevant.    Second, when asked if the radiology report describing the findings from the radiographs taken of D.D.'s hand showed any further evidence of breaking or fractures, Nurse Quinlan testified that “[i]n this particular view from the x-ray they did not find any broken bones or fractures at that time, but that doesn't mean that later on there couldn't be a fracture.” Defendant argues that this “testimony was totally speculative in nature and improperly provided the jury with a basis for conviction” because D.D. had not previously testified that her finger was fractured. However, Nurse Quinlan's statement was made during a series of questions by the prosecutor about D.D.'s radiographs. She was responding to the question, “But they did not find any further evidence of breaking or fractures?” Taken in context, it is apparent that Nurse Quinlan's statement, “that doesn't mean that later on there couldn't be a fracture,” referred to the particular view of D.D.'s hand offered by this particular radiograph, and merely suggested that another radiograph taken from another angle could have revealed a fracture.
    Third, when asked if it was typical for sexual assault victims to be unsure as to whether or not there was actual penetration, as D.D. indicated during her initial exam, Nurse Quinlan responded, “I think when patients are under duress and upset it's very difficult to tell if they've had any kind of ejaculation or penetration or anything along those lines.” Defendant argues that “[n]o foundation had been laid that Ms. Quinlan possessed sufficient expertise to respond to the question.” “Under N.C.G.S. § 8C-1,Rule 702 a witness may be qualified as an expert if the trial court finds that through knowledge, skill, experience, training, or education the witness has acquired such skill that he or she is better qualified than the jury to form an opinion on the particular subject.” State v. Isenberg, 148 N.C. App. 29, 33, 557 S.E.2d 568, 572 (2001) (quoting State v. Goodwin, 320 N.C. 147, 150-151, 357 S.E.2d 639, 641 (1987)) (internal quotations omitted). Here, Nurse Quinlan testified that she had worked as a trauma nurse for the previous five years and that she had treated between twenty-five and fifty victims of sexual assault. This foundation was sufficient to show specialized knowledge that would assist the jury to understand a fact in evidence. See N.C. Gen. Stat. § 8C-1, Rule 702(a) (2005).
    Last, Nurse Quinlan testified that the small laceration on D.D.'s vagina indicated “[t]here would be some penetration there because in order to get to that location there's penetration.” Defendant again argues that Nurse Quinlan lacks the “credentials as an expert in the investigation of sexual assault claims” to make this statement. Again, Nurse Quinlan had specialized knowledge in the subject area of sexual assault and accompanying medical trauma. Given this level of expertise, it was not improper for the trial judge to admit Nurse Quinlan's statement about D.D.'s vaginal injury because it helped the jury understand the evidence.
    In his final argument, defendant contends that the trial court erred by instructing the jury on mental injury as a type of serious personal injury supporting the first-degree rape and first-degreesexual offense charges. These two crimes can be established by showing, in addition to other elements and beyond a reasonable doubt, that the defendant inflicted “serious personal injury upon the victim.” N.C. Gen. Stat. § 14-27.2(a)(2)b and 14-27.4(a)(2)b (2005). Our Supreme Court has held that mental injury is a type of serious personal injury under these statutes, but
        for a mental injury to constitute “serious personal injury,” the mental injury “must be more than the res gestae results present in every forcible rape and sexual offense. . . . [T]he State must ordinarily offer proof that such injury was not only caused by the defendant but that the injury extended for some appreciable time beyond the incidents surrounding the crime itself.”

State v. Easterling, 119 N.C. App. 22, 40, 457 S.E.2d 913, 923 (1995) (quoting State v. Boone, 307 N.C. 198, 205, 297 S.E.2d 585, 590 (1982)) (alterations in original).
    The trial judge gave the jury instructions on mental injury as a type of personal injury that would satisfy the requiremenets of first-degree rape and first-degree sexual offense, and defendant contends that “the State failed to adduce sufficient evidence to warrant instruction on serious mental injury.” Defendant relies on our Supreme Court's holding in State v. Boone that “[i]t would defy reason and common sense to say that there could be a forcible rape or forcible sexual offense which did not humiliate, terrorize and inflict some degree of mental injury upon the victim.” Boone, 307 N.C. at 205, 297 S.E.2d at 589. However, Boone also states that, “[o]bviously, the question of whether there was such mental injuryas to result in 'serious personal injury' must be decided upon the facts of each case.” Id. at 205, 297 S.E.2d at 590.
    Here, adequate evidence was presented by the State to justify a jury charge on mental injury as a type of serious personal injury: D.D. testified that after the incident, she was scared and moved away from her apartment and the elderly community in which she lived and into the home of her son and daughter-in-law, and continues to keep a knife by her bed and have trouble sleeping. Whether D.D.'s mental injury was “more than the res gestae results present in every forcible rape and sexual offense” was a question of fact properly put before the jury. Again, we overrule defendant's assignment of error.
    Defendant also argues that the trial court erred by instructing the jury that it could find defendant guilty of first- degree rape and first-degree sexual offense upon a showing of either display of a deadly weapon or infliction of serious personal injury. Specifically, “[t]he verdict forms do not reveal which theory or theories the jury based its verdicts on.” As defendant argues,
        Where the trial judge has submitted the case to the jury on alternative theories, one of which is determined to be erroneous and the other properly submitted, and we cannot discern from the record the theory upon which the jury relied, this Court will not assume that the jury based its verdict on the theory for which it received a proper instruction. Instead, we resolve the ambiguity in favor of the defendant.

State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987). However, we have already determined that the infliction of seriouspersonal injury theory was not incorrectly submitted to the jury and therefore need progress no further in this analysis.
    Accordingly, we find no error.
    No error.
    Judges MCGEE and BRYANT concur.
    Report per Rule 30(e).

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