NORTH CAROLINA COURT OF APPEALS
Filed: 2 October 2007
STATE OF NORTH CAROLINA
v. Orange County
No. 05 CRS 52318
DONALD IVAN McCRAY,
Appeal by defendant from judgment dated 6 July 2006 by Judge
Ripley E. Rand in Orange County Superior Court. Heard in the Court
of Appeals 24 September 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Lars F. Nance, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
Donald Ivan McCray (defendant) was charged with second degree
rape, first degree kidnapping and two counts of second degree sex
offense. The State's evidence tended to show that on the evening
of 10 March 2005, the victim was working as a temporary, cleaning
classrooms at North Carolina Central University. The victim smoked
crack cocaine while on her break from 8:00 to 9:00 p.m. After she
finished work around 12:30 a.m., the victim, wearing a man's pea
coat, walked up Fayetteville Street and purchased marijuana. The
victim testified at trial that she had previously traded sex for
drugs or money in her home with people she knew.
As the victim walked down Fayetteville Street to return home,
a white car that had been circling the block, pulled up beside her. The driver, defendant, asked the victim if she wanted a ride. When
the victim said, No, defendant pushed her into the car and
slapped her. Defendant asked the victim if she wanted to make $200
dollars. The victim replied, No. Defendant then drove up
Highway 15-501 to Chapel Hill and turned onto a dark road.
Defendant demanded oral sex. Upon her refusal, defendant slapped
the victim and forced her to give him oral sex. Defendant then
demanded anal sex. The victim pleaded with defendant to use a
condom. Defendant then forced the victim to give him oral sex
again and then vaginally penetrated the victim.
Defendant drove the car a short distance, then stopped and
let the victim out of the car to use the bathroom. Defendant fled
the scene. The victim then walked to a convenience store and called
911. The victim was transported to UNC Hospital for a rape
examination. As part of the examination, the victim gave medical
history information to the assault nurse.
On 6 July 2006, a jury found defendant guilty of second degree
rape. The trial court sentenced defendant to 133 to 169 months
imprisonment. Defendant appeals.
In his sole argument on appeal, defendant contends the trial
court improperly denied him the right to inquire into the victim's
history of sexually transmitted diseases for the purpose of
attacking her credibility as a witness. We disagree.
Prior to trial, the State moved to exclude the victim's prior
sexual history and part of the assault nurse examiner's reportwhich listed the victim's prior sexually transmitted diseases.
Defendant sought to question the victim concerning her prior sexual
history in terms of prostitution. Defendant asserted the evidence
of the victim's medical history was relevant to his defense that
the victim was a prostitute who consented to have sex with him.
Pursuant to Rule 412, the trial court granted the State's motion in
limine to prevent the defense from cross-examining the victim
concerning her prior sexual history and prior history of sexually
At trial, the victim testified on direct examination that when
she asked defendant to use a condom, defendant replied, [O]h, it
ain't nothing wrong with me. I don't need no condom. The victim
then said, Sir, it could be something wrong with me. After the
victim's testimony, defense counsel asked that it be put on the
record that defendant had asked the trial court to revisit its
ruling. Defendant specifically asserted that the trial court did
not consider that [the victim] had opened the door to the idea of
having Hepatitis B when she talked about 'maybe you want to use a
condom because I may have something.' Defense counsel informed
the trial court that defendant had intended to cross-examine the
victim regarding her Hepatitis B. The trial judge stated for the
record that he had sustained defendant's objection at a bench
conference; that the testimony was not relevant; that the potential
for unfair prejudice outweighed the probative value; and noted
defendant's objection for the record.
On appeal, defendant asserts that the excluded evidence of[the victim's] history of sexually transmitted diseases undermined
her testimony that she was selective about her customers, and made
more probable the disputed fact that she consented to sex as part
of a prostitution transaction with defendant, a stranger to her.
Defendant argues the victim's history of sexually transmitted
diseases was relevant and its exclusion was prejudicial.
It is a well-established principle that an accused is assured
of the right to cross-examine adverse witnesses. State v. Newman
308 N.C. 231, 254, 302 S.E.2d 174, 187 (1983). However,
cross-examination concerning a victim's sexual history is limited
by the Rape Shield Statute. N.C. Gen. Stat. § 8C-1, Rule 412
(2005). Rule 412 provides, in pertinent part, that
[n]otwithstanding any other provision of law
, the sexual behavior
of the complainant is irrelevant to any issue in the prosecution
unless such behavior . . . [i]s evidence of specific instances of
sexual behavior offered for the purpose of showing that the act or
acts charged were not committed by the defendant[.] N.C. Gen.
Stat. § 8C-1, Rule 412(b) (2005) (emphasis added). Ultimately, the
scope of cross-examination is within the sound discretion of the
trial court, and its rulings thereon will not be disturbed absent
a showing of abuse of discretion. State v. Hinson
, 310 N.C. 245,
254, 311 S.E.2d 256, 263, cert. denied,
469 U.S. 839, 83 L. Ed. 2d
78 (1984). An [a]buse of discretion results where the [trial]
court's ruling is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned
decision. State v. Roache
, 358 N.C. 243, 284, 595 S.E.2d 381, 408(2004) (citation and quotations omitted).
In this case, where consent is the defense, evidence of prior
sexual activity is precisely the type of evidence the rape shield
statute is intended to proscribe. The medical records of the
victim's Hepatitis B did not relate to the exact sexual act for
which defendant was on trial and, therefore, the medical records
concerned some other act in the victim's sexual history. On this
record, given the purpose of the rape shield statute, we hold that
evidence of the victim's medical history of sexually transmitted
diseases is not probative on the issue of whether she consented to
sexual activity with defendant, and the trial court properly
excluded it pursuant to N.C.G.S. § 8C-1, Rule 412. See State v.
, 301 N.C. 31, 44, 269 S.E.2d 110, 117 (1980) (Naked
inferences of prior sexual activity by a rape victim with third
persons, without more, are irrelevant to the defense of consent in
a rape trial.).
Further, defendant's questioning of the victim's medical
history was not relevant for the purpose for which it was offered,
i.e. to impeach the victim's credibility. See State v. Thompson
139 N.C. App. 299, 309-10, 533 S.E.2d 834, 842 (2000) (upholding
trial court's denial of the introduction of medical records where
they did not contradict victim's testimony nor suggest anything
useful for impeachment purposes). The medical records did not
contribute anything to defendant's case: they did not contradict
anything testified to by the victim, nor did they suggest anything
else that could be used to impeach her. The medical records simplystated the victim's past sexually transmitted diseases. It was
apparent from the victim's testimony that she had been sexually
active before the rape, as the victim had testified that she had
exchanged sex for drugs or money.
Finally, we cannot say the trial court committed prejudicial
error by preventing this line of questioning. Rule 403 of the
North Carolina Rules of Evidence provides that [a]lthough
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 cumulative evidence. N.C. Gen. Stat. § 8C-1, Rule
403 (2005). We conclude that the probative value, if any, to
defendant was substantially outweighed by the danger of unfair
prejudice to the State and the prosecuting witness.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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