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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 04 December 2007
STATE OF NORTH CAROLINA
No. 05 CRS 2566-83
05 CRS 51055-64
DARRELL WADE BARBEE
Appeal by defendant from judgments entered 21 August 2006 by
Judge Christopher M. Collier in Stanly County Superior Court.
Heard in the Court of Appeals 30 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Laura E. Crumpler, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating
Wiles, for defendant-appellant.
Defendant's allegations of error in the trial court's
evidentiary rulings fail to demonstrate prejudice from those
rulings as required by N.C. Gen. Stat. § 15A-1443(a).
Defendant was indicted on thirty counts of statutory rape and
thirteen counts of indecent liberties, involving his fifteen-year-
old stepdaughter, S.M., one count of statutory rape and one count
of indecent liberties with an eleven-year-old girl, M.G., and three
counts of statutory sexual offense with M.G. M.G. is unrelated to
The State's evidence at trial tended to show that over a four-
month period between December 2004 and March 2005, the defendantengaged in sexual activities with the two child victims in the
family home. The victims were his stepdaughter, S.M., age fifteen,
and a classmate, M.G., age eleven, who often stayed overnight with
the Barbee family while her father was working. School authorities
made a referral to the Department of Social Services (DSS) on 22
March 2005 when M.G. disclosed to her teacher that Mr. Barbee was
having sex with the two girls. DSS investigator Jennifer Burden
and Detective Carla Eudy interviewed S.M., defendant's
stepdaughter, who disclosed a pattern of sexual abuse. S.M.
reported that the defendant had had sex with her the previous
night. The investigators took her to the hospital, where a rape
kit was completed.
The sexual assault nurse examiner (SANE nurse) observed that
S.M.'s cervix was reddened, indicating trauma, and that
fluorescence under a Woods light suggested the presence of semen
at the top of the vagina, above the clitoris[.] Sperm
fractions recovered from S.M.'s underwear and vaginal smears
showed a DNA mixture with the predominant profile on the
underwear matching the defendant's DNA sample. At trial, S.M.'s
mother explained the presence of defendant's semen on her
daughter's underwear as the result of her own and her daughter's
hygiene routines and the fluorescence of her vagina as the result
of a medical ointment.
The two girls were interviewed on 5 April 2005 during medical
examinations at the Children's Advocacy Center (CAC), NortheastMedical Center, in Concord, North Carolina. SANE nurses conducted
the medical evaluations.
The State presented testimony from the two child victims and
various professionals. The two investigators testified to the
initial interviews that were conducted with the girls. Nurse Gina
Smith testified to the Emergency Room report, including statements
made by S.M. to hospital personnel. Northeast Medical Center SANE
nurses and State Bureau of Investigation forensic specialists
provided expert testimony regarding the evaluations and the rape
The defendant's motions to dismiss were denied. The jury
returned a guilty verdict on all charges and also found an
aggravating factor to be present. The trial court consolidated the
offenses into four judgments and sentenced defendant from the
presumptive range to three consecutive active sentences of 240-297
months and a fourth consecutive sentence of 16-20 months for the
indecent liberties charges. Defendant appeals.
In his only argument, defendant contends that the trial
court's evidentiary rulings constituted an abuse of discretion in
that one ruling allowed the State to elicit hearsay harmful to the
defendant in regards to M.G. and two other rulings prevented
defense counsel from eliciting evidence that tended to undermine
the trustworthiness of his stepdaughter's accusations, and that he
was prejudiced by such rulings.
We disagree. Because defendant alleges non-Constitutional errors, we
analyze his argument under N.C.G.S. § 15A-1443(a), which reads, in
A defendant is prejudiced by errors relating
to rights arising other than under the
Constitution of the United States when there
is a reasonable possibility that, had the
error in question not been committed, a
different result would have been reached at
the trial out of which the appeal arises. The
burden of showing such prejudice under this
subsection is upon the defendant.
N.C.G.S. § 15A-1443(a) (2005). A trial court's ruling on an
evidentiary issue is presumed correct; even if the complaining
party can demonstrate error, relief is ordinarily not granted
without a showing of prejudice. State v. Herring, 322 N.C. 733,
749, 370 S.E.2d 363, 373 (1988). Evidentiary rulings are reviewed
for abuse of discretion. See State v. McNeil, 47 N.C. App. 30, 36,
266 S.E.2d 824, 827-828 (1980). Thus, we utilize a two-pronged
analysis. First, we examine, under an abuse of discretion
standard, whether the court committed error. If error exists, we
then determine whether defendant has shown prejudice.
I. Parent/Caregiver Assessment Testimony
Defendant first contends that the trial court abused its
discretion by overruling his hearsay objection to Nurse Steele's
testimony regarding information provided by M.G.'s father during
the CME process and that he was prejudiced thereby. We disagree.
During the five-day jury trial, both girls testified to
tickling episodes by the defendant in S.M.'s bedroom that evolved
to vaginal penetration, digital penetration, and cunnilingus duringthe four-month period when M.G. was spending the night at
defendant's home. M.G. testified that the defendant engaged in
vaginal intercourse on seven or eight occasions and cunnilingus
more frequently. S.M. testified that the defendant first began
touching her sexually when she was thirteen-and-a-half or fourteen,
and that the sexual activity, including intercourse, occurred every
night except when she was menstruating or having a headache. The
girls' testimony regarding the episodes during M.G.'s overnight
visits was consistent. They described contextual detail and how
they felt about what was happening to them.
Nurse Steele testified as an expert witness in SANE practices
and forensic interviewing. After defense counsel adduced testimony
that M.G.'s medical examination showed no physical abnormalities,
the State questioned Nurse Steele on re-direct regarding the CAC
Parent/Caregiver Assessment Form completed by M.G.'s father.
Following defendant's hearsay objection, this exchange took place:
PROSECUTOR: [D]o you recall what
those [stress related]
behaviors were, and if
[M.G.] did exhibit those?
NURSE STEELE: . . . Mr. [G.] actually
noted that [M.G.] had had
an attitude lately, with
increased aggression. He
also noted that she had
been depressed, and that
she had been doing a lot
of crying. Which . . .
was abnormal for her.
PROSECUTOR: And would you
characteristics assimilar to
sexually abused children?
NURSE STEELE: Yes ma'am.
The defense did not object to the characterization question, nor
did defense counsel request a limiting instruction to the jury.
Defendant argues that the court improperly overruled the
hearsay objection because its ruling was based upon the medical
treatment exception, which our Supreme Court has limited to
statements made by the person being diagnosed or treated. State v.
Jones, 339 N.C. 114, 146, 451 S.E.2d 826, 842 (1994). He then
asserts prejudice from the objected-to testimony as the sole
foundation for Nurse Steele's opinion that M.G.'s conduct was
similar to characteristics of sexually-abused children.
Suggesting that defendant's reliance upon Jones is misplaced, the
State responds that, even if such testimony does not fall within
the medical treatment exception, it falls squarely within the
business records exception or, alternatively, was admissible under
N.C.G.S. § 8C-1, Rule 703, which governs the bases of expert
opinion testimony. Moreover, in light of the physical evidence and
the consistency of the girls' accounts, the State argues that the
defendant has failed to establish that such error would have
resulted in a different result at trial.
'Hearsay' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. N.C.G.S. §
8C-1, Rule 801(c) (2005). Hearsay is inadmissible except whereallowed by statute or the Rules of Evidence. N.C.G.S. § 8C-1, Rule
802 (2005). Inherently reliable information is admissible to show
the basis for an expert's opinion, even if the information would
otherwise be inadmissible hearsay. State v. Daughtry, 340 N.C.
488, 511, 459 S.E.2d 747, 758 (1995) (citations omitted).
N.C.G.S. § 8C-1, Rule 703 permits an expert to give an opinion
based on evidence not otherwise admissible at trial, provided the
evidence is of the type reasonably relied upon by other experts in
the field. Id. at 512, 459 S.E.2d at 759.
We find defendant's reliance on State v. Jones, 339 N.C. 114,
451 S.E.2d 826 (1994) to be misplaced. Assuming arguendo that the
court wrongfully admitted the statement under the medical treatment
exception, such error would be harmless because the father's
statements were admissible as the basis of Nurse Steele's expert
medical opinion. The trial court properly allowed Nurse Steele to
testify to the statements made by M.G.'s father from the Caregiver
Assessment Form for the purpose of explaining the basis of her
characterization of the child's behaviors as consistent with those
of a child who has been sexually abused. This argument is without
II. State's Objection to Hypothetical Question
Defendant next contends that the trial court abused its
discretion by denying him the opportunity to pose a hypothetical
question to the SANE expert that was within her field of expertise
and permissible under the rules of evidence, and he was prejudiced
thereby. We disagree. SANE Nurse Bonds testified to findings involving S.M., which
showed no physical abnormalities. Nurse Bonds noted that although
S.M. was fifteen at the time of the interview, she acted younger
and showed slower thinking. On cross-examination, defense
counsel posed the following question:
DEFENSE: If you take [S.M.'s]
statement that Darrell
Barbee started sexually
assaulting her when she
first came there in 2001,
when she weighed 48
pounds, and he had sexual
relations with her every
night except during the
time she either had a
headache or she had her
menstrual cycle, would
you expect that[,] based
upon that statement, that
history - - - -
PROSECUTOR: Objection to that.
DEFENSE: -when you examined the
genital examination, a
hymen that would have had
THE COURT: Sustained.
In order for a party to preserve for appellate review the
exclusion of evidence, the significance of the excluded evidence
must be made to appear in the record and a specific offer of proof
is required unless the significance of the evidence is obvious from
the record. State v. Ray, 125 N.C. App. 721, 726, 482 S.E.2d 755,
758 (1997) (citations omitted). When the defendant objects to the
exclusion of testimony, but does not make an offer of proof for the
record of what the resulting testimony would be, this Court cannotassess the significance of the evidence sought to be elicited[.]
Id., 482 S.E.2d at 758-59.
In the instant case, defense counsel made no proffer in the
record of any opinion Nurse Bonds might have had. We will not
speculate as to what that testimony might have been. See State v.
Barton, 335 N.C. 741, 749, 441 S.E.2d 306, 310-11 (1994). While
defendant argues that the answer is apparent from the context, we
find that there is nothing in the record from which we can deduce
whether Nurse Bonds had an opinion or what that opinion might have
been. This argument is without merit.
III. S.M.'s Statement to Investigators
Next, defendant contends that the trial court misapplied
N.C.G.S. § 8C-1, Rule 412 and violated N.C.G.S. § 8C-1, Rule 106
when it refused to allow Detective Eudy to testify to a statement
whose topic was sexual behavior that was made in the course of
S.M.'s interview. He asserts that he was prejudiced by the error
because had such error not occurred there is 'a reasonable
possibility that . . . a different result would have been reached
at trial.' N.C.G.S. § 15A-1443(a). We disagree. DEFENSE Now did you read the
During the State's direct examination of M.G., wherein she
testified to watching the defendant having sex with S.M., the
prosecutor asked M.G. Did [S.M.] ever talk . . . about this? . . .
What, if anything did she say? M.G. answered:
She told me that he would not do it - which he
did. And she told me that it was her real dad
that did it to her, not her stepdad.
M.G. went on to describe the positions of the defendant and S.M.
while he had sex with her.
During the State's direct examination of Detective Carla Eudy,
the investigator testified about her March 2005 interview with
S.M., during which the child stated that her father did the same
thing to her. On cross-examination, defense counsel adduced
testimony that her notes from the interview contained three
paragraphs, and the following exchange occurred:
COUNSEL: entirety of the interview
PROSECUTOR: Objection. May we
THE COURT: Yes.
[Bench conference off the record]
THE COURT: Sustained.
Counsel later argued the objection outside the presence of the
jury. Defense counsel argued that the child's statement
referencing allegation of some sexual act with someone other than
the defendant fell outside the protective scope of Rule 412 and was
admissible to undermine S.M.'s credibility. The State responded
that the statement fell within the ambit of the rape shield
provisions of Rule 412, and, moreover, it was irrelevant, non-
probative, and would be highly prejudicial. The court sustained
the State's objection but did not state the basis for its ruling.
Defense counsel proffered for the record the statement made by S.M.
to Detective Eudy that [H]er father did the same thing to her when
she lived with him in Midland. Defendant argues that the trial court improperly applied Rule
412 to exclude this statement, which he contends was not evidence
of sexual activity, but rather a statement, the topic of which was
sexual behavior. Even assuming that defendant is correct in his
analysis of Rule 412, we hold that the trial court did not err in
the exclusion of the evidence pursuant to Rule 403, which provides
Although relevant, evidence may be excluded if
its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury, or by considerations of undue delay,
waste of time, or needless presentation of
N.C.G.S. § 8C-1, Rule 403 (2005).
As noted above, our standard of review of evidentiary issues
is abuse of discretion. In order for us to conclude that the trial
court abused its discretion we must find that the judge's decision
is manifestly unsupported by reason and so arbitrary that it
could not have been the result of a reasoned decision. State v.
, 361 N.C. 299, 301-02
; 643 S.E.2d 909, 911 (2007) (quoting
White v. White
, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).
Given that M.G. had already testified that S.M. told me that it
was her real dad that did it to her, not her stepdad[,] the
statement to Detective Eudy was merely cumulative evidence. We
cannot say that the judge's decision was an abuse of discretion.
In addition, given that the substance of the excluded
testimony had already been presented to the jury, defendant cannot
demonstrate prejudice to the extent that there exists anyreasonable possibility that the outcome of the trial would have
been any different had the testimony . . . been allowed. State v.
, 87 N.C. App. 217, 22, 360 S.E.2d 495, 498 (1987), disc. rev.
, 321 N.C. 478, 364 S.E.2d 667 (1988).
Before this Court, defendant argues for the first time that
the court's ruling violated N.C.G.S. § 8C-1, Rule 106 (2005)
(requiring introduction of other parts of a writing which ought in
fairness to be considered contemporaneously with it.). The record
is devoid of any mention of these arguments at trial.
The theory upon which a case is tried in the lower court must
control in construing the record and determining the validity of
the exceptions. State v. Hunter
, 305 N.C. 106, 112, 286 S.E.2d
535, 539 (1982)(citations omitted). To allow defendant to argue a
completely different theory in this Court based upon this argument
would be contrary to our Supreme Court's holding in Hunter
predecessors. Pursuant to N.C. R. App. P. 28(b)(6) and Hunter
deem this argument abandoned.
Defendant's brief addresses only three of six original
assignments of error
Pursuant to N.C.R. App. P. 28(b)(6) (2007),
the other three assignments of error are deemed abandoned.
Judges ELMORE and STROUD concur.
Report per Rule 30(e).
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