Appeal by respondent-father from an order entered 20 December
2007 by Judge Hugh B. Lewis in Mecklenburg County District Court.
Heard in the Court of Appeals 25 August 2008.
Mecklenburg County Attorney's Office, by Tyrone C. Wade, for
petitioner-appellee Mecklenburg County Youth and Family
Brannon Burroughs for appellee Guardian ad Litem.
Christian Hoel for respondent-appellee mother.
Rebekah W. Davis for respondent-appellant.
Respondent-father (respondent) appeals from the order
adjudicating his minor child abused, neglected, and dependent.
After careful review, we affirm.
K.W., a thirteen-year-old minor, notified her school counselor
on 27 September 2006 that she was being raped by her father, A.W.
The counselor called the police, and K.W. provided a statement in
which she accused her father of raping her multiple times since 20
September 2005. K.W. stated that she was unsure whether her mother
was aware of the rape. Mecklenburg County Youth and Family
Services (YFS) became involved with this case on 27 September2006. On that same date, A.W. signed a Safety Assessment Plan
whereby he agreed to cease all contact with his daughter. K.W.
testified that her father moved back into the family home
approximately one week after the rape allegation, which was a
violation of the Safety Assessment Plan. On 3 October 2006, K.W.
was examined by a physician who later testified that K.W.'s
physical condition was consistent with child sexual abuse. YFS
filed a Juvenile Petition on 14 December 2006 alleging K.W. to be
an abused, neglected, and dependent juvenile and obtained an
immediate Non-Secure Custody Order. After a hearing, the trial
court entered an Adjudicatory and Disposition Hearing Order,
adjudicating K.W. abused, neglected, and dependent on 20 December
2007. Respondent appealed the trial court's adjudication.
Respondent first argues that the trial court erred in refusing
to admit into evidence a Concord police report and portions of
K.W.'s Myspace website. Respondent intended to introduce this
evidence to impeach K.W.'s credibility. The trial court excluded
the evidence pursuant to N.C. Gen. Stat. § 8C-1, Rule 412 (2007).
To determine if the evidence was properly excluded, we must first
ascertain the applicability of Rule 412 in a civil hearing.
On its face, Rule 412 applies only to criminal trials where a
defendant is charged with rape, a sex offense, or a lesser included
offense of rape or a sex offense. The rule is one of relevancy and
it holds that:
(b) Notwithstanding any other provision
of law, the sexual behavior of the complainantis irrelevant to any issue in the prosecution
unless such behavior:
(1) Was between the complainant and the
(2) Is 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; or
(3) Is evidence of a pattern of sexual
behavior so distinctive and so
closely resembling the defendant's
version of the alleged encounter
with the complainant as to tend to
prove that such complainant
consented to the act or acts charged
or behaved in such a manner as to
lead the defendant reasonably to
believe that the complainant
(4) Is evidence of sexual behavior
offered as the basis of expert
psychological or psychiatric opinion
that the complainant fantasized or
invented the act or acts charged.
N.C. Gen. Stat. § 8C-1, Rule 412(b).
The purpose of Rule 412 is 'to protect the witness from
unnecessary humiliation and embarrassment while shielding the jury
from unwanted prejudice that might result from evidence of sexual
conduct which has little relevance to the case and has a low
probative value.' State v. Ginyard
, 122 N.C. App. 25, 31, 468
S.E.2d 525, 529 (1996) (quoting State v. Younger
, 306 N.C. 692,
696, 295 S.E.2d 453, 456 (1982)).
While this rule was promulgated for use in criminal
prosecution trials, this Court has found the rule to be applicable
in civil cases. Wilson v. Bellamy
, 105 N.C. App. 446, 414 S.E.2d347 (1992). In Bellamy
, the plaintiff was suing members of a
fraternity for raping her at a party. Id
. at 450, 414 S.E.2d at
349. By applying Rule 412 this Court found in Bellamy
trial court erred in requiring the plaintiff to answer defense
questions regarding her prior sexual activity and questions
pertaining to her intoxicated condition after the party where she
was allegedly raped. Id
. at 460, 414 S.E.2d at 355. In justifying
its reliance on Rule 412, this Court stated:
We also note that our research reveals that,
to date, Rule 412 has only been applied in
criminal cases. However, the logic applied
behind the law . . . is of similar import in
the civil arena. Nothing elicited by the
defense through the objected to questions
above would tend to indicate that the
plaintiff gave her consent to the acts
allegedly performed by the individual
Therefore, we find that it is permissible for a trial judge in
a civil case to use Rule 412 as a basis for excluding irrelevant
evidence about a plaintiff's prior sexual behavior. Pursuant to
Rule 412, evidence of the prior sexual history of the victim is
irrelevant in most instances. However, upon a finding by the trial
court that certain evidence is relevant because it falls into one
of the exceptions under Rule 412, or if the evidence falls outside
of the rule, a Rule 403 balancing of probative value versus unfair
prejudice should be utilized in the court's discretion. See
Gen. Stat. § 8C-1, Rule 403 (2007).
We would first like to address the admissibility of the
Concord police report. The report is dated 23 February 2001 andwas filed by K.W.'s mother. K.W. was eight at the time. The
incident is listed as a sexual assault, but there is no further
description. In the narrative portion, the officer states that
there is doubt as to whether the victim, K.W., is telling the
truth, but there is no indication as to who possessed the doubt or
why. The report lists the case status as [f]urther
[i]nvestigation, but the supplemental investigation report lists
the status as [i]nactive.
At the in-camera hearing to determine admissibility of this
report, respondent's attorney informed the judge that K.W. alleged
she was raped while the attorney for YFS said that K.W. claimed
that a boy inappropriately touched her on the school bus. In
making his determination, the judge relied on YSF's explanation of
the alleged assault. K.W. did not testify at the in-camera hearing
as the judge did not want K.W. to feel intimidated; therefore, the
record does not contain her version of the incident cited in the
At the adjudication hearing, respondent sought to introduce
the report as a false accusation used to impeach, and on appeal he
argues that it should have been admitted as such. Respondent is
correct in asserting that a false accusation is not excluded under
Rule 412. This Court has held that the rape shield statute . . .
is only concerned with the sexual activity
of the complainant.
Accordingly, the rule only excludes evidence of the actual sexual
history of the complainant; it does not apply to false accusations,
or to language or conversations whose topic might be sexualbehavior[.] State v. Thompson
, 139 N.C. App. 299, 309, 533 S.E.2d
834, 841 (2000) (citations omitted). Therefore, false accusations
do not fall under the ambit of Rule 412 and are admissible if
We find that the police report is not equivalent to a false
accusation by complainant. The fact that the report mentions some
doubt by an unnamed party as to the truthfulness of the allegation,
and the fact that no one was charged with an offense does not mean
that K.W. made a false accusation. Seeing as there is no evidence
other than the police report itself, we cannot say that the report
qualifies as a false accusation.
In sum, we agree with respondent that the report is not
evidence of prior sexual history. However, since we have
determined that it is not a false accusation that could be used to
impeach, the report has no probative value. A claim made by K.W.,
in an unrelated matter, approximately five years prior to the rape
allegations against her father does not bear on any material issue
in the case. We find that the police report was properly excluded
by the trial court.
Next, we will address the admissibility of the Myspace
website. The record shows that YFS objected under Rule 412 when
respondent attempted to introduce the Myspace page. Respondent
argues that Rule 412 does not apply to impeachment via use of an
inconsistent statement. We agree and find that the Myspace page
was admissible as impeachment evidence, but conclude that the
exclusion was harmless error. In her statement to police and in her hearing testimony, K.W.
claimed she was a virgin prior to the rape. She also asserted at
the hearing that during the time her father was raping her, she did
not have any boyfriends with whom she was intimate nor had she ever
been on a date.
The Myspace page contains suggestive photos of K.W. to which
she captions, '[I] may not be a virgin but I still gotta innocent
face.' Also, she answers in the affirmative to the question 'had
sex?' During the in-camera questioning, K.W. testified that the
website was hers, but that her friend filled in the answers. Based
on the record, the content of the Myspace page is inconsistent with
K.W.'s hearing testimony and statement to police.
Our Supreme Court stated in State v. Younger
, 306 N.C. 692,
295 S.E.2d 453, [w]e have repeatedly held that prior inconsistent
statements made by a prosecuting witness may be used to impeach his
or her testimony when such statements bear directly on issues in
the case. Id
. at 697, 295 S.E.2d at 456 (defense counsel was
entitled to impeach a rape victim because a statement she made to
her examining physician concerning her prior sexual activity was
inconsistent with her trial testimony). K.W.'s inconsistent
statements bear directly on the case as her veracity is at issue.
She is the only person with direct knowledge of the alleged rape.
Respondent asserts that the Myspace page serves as evidence
that someone else could have caused the hymeneal transection found
by the examining physician, which supported the physician's
conclusion that K.W. had been forcibly penetrated. We do notagree. We find that the Myspace page serves as impeachment
evidence, but not as substantive evidence that someone else caused
the trauma. Admitting the evidence for that purpose would place it
under the purview of Rule 412, and there is no evidence in the
Myspace page of specific instances
of sexual behavior offered for
the purpose of showing that the act or acts charged were not
committed by respondent.
Despite the fact that Rule 412 does not apply to inconsistent
statements and therefore the Myspace page should have been admitted
for impeachment purposes, we find that the error was harmless as
respondent has not offered a persuasive argument that the outcome
of the hearing would have been different had the website been
admitted. A general statement by K.W. that she is sexually active
does not negate the physician's findings that the trauma she
observed in K.W.'s exam is more likely to be seen in young
children who are penetrated pre-puberty and is more likely to be
seen where there is forced penetration. Statements that may or
may not have been written by K.W. regarding general sexual behavior
may have impacted her veracity, but it would not have changed the
outcome of the case. Therefore, the error in failing to admit the
Myspace page was harmless.
Respondent next assigns as error the trial court's findings of
fact eight through twelve and fifteen as they are not supported by
clear and convincing evidence. These findings are as follows:
8. K.W.'s father regularly punished K.W. and
her brother C.B. by whipping them ontheir buttocks with a belt. K.W.'s
father would have her strip naked prior
to whipping her with the belt. On or
about September 20, 2005, [A.W.] was
about to punish K.W. and had her remove
all of her clothing. Instead of whipping
her, he had sexual intercourse with her.
A.W. kept promising K.W. that that [sic]
particular incident would be the last
time he would have sex with her and it
would not happen again.
9. A.W. continued to forcibly have sexual
intercourse with K.W. intermittently,
between 7-15 times over the course of the
year. On one occasion, he utilized a
vibrator to get her wet.
10. K.W. was twelve years of age at the time
of the first sexual assault. She had
never had sexual relations with any other
individual. A.W. kept pornographic
materials in a suitcase under his bed.
C.B. was punished on one occasion for
removing pornographic materials from the
suitcase. K.W. assumed that is where her
father kept the vibrator that he utilized
11. K.W. told her brother, C.B., of her
father's sexual assault, but he did not
initially believe her. K.W. described
one occasion where her father sent C.B.
out to rake the lawn and then sexually
assaulted her. C.B. recalled his father
sending him out to rake and recalled that
K.W. appeared sad following the incident.
He noticed that K.W. spent a lot of time
alone with [A.W.] and she would appear
12. Stanley County Department of Social
Services substantiated physical abuse and
inappropriate discipline of the children
with a belt in the past. C.B. has scars
on his back from where A.W. has whipped
him with a belt in the past. There was
also a history of domestic violence
between the parents. [A.W.] has criminal
convictions for assault on a female.
In reviewing the findings of fact of the trial court, this
Court has held:
A proper review of a trial court's finding of
[abuse and] neglect entails a determination of
(1) whether the findings of fact are supported
by 'clear and convincing evidence,' and (2)
whether the legal conclusions are supported by
the findings of fact. In a non-jury [abuse
and] neglect adjudication, the trial court's
findings of fact supported by clear and
convincing competent evidence are deemed
conclusive, even where some evidence supports
In re Pittman
, 149 N.C. App. 756, 763-64, 561 S.E.2d 560, 566
(2002) (alterations in original; citations omitted).
We hold that these findings of fact are supported by clear and
convincing evidence. Respondent's only argument with regard to
findings eight through twelve is that they are based solely on
K.W.'s allegations and testimony and respondent was denied the
opportunity to impeach K.W. through use of the police report and
the Myspace page. We find that K.W.'s testimony supported each
finding of fact and her testimony was not incompetent because
respondent was unable to question her regarding testimony that was
either properly excluded (the police report) or harmlessly excluded
(the Myspace website).
We have held that with regard to a judge's discretion in a
juvenile adjudication hearing, it is that judge's duty to weigh
and consider all competent evidence, and pass upon the credibility
of the witnesses, the weight to be given their testimony and the
reasonable inferences to be drawn therefrom. In re Whisnant
N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (citation omitted). We find that the trial court adhered to that principle in these
findings of fact and made no error.
With regard to finding fifteen, respondent argues that the
trial court misinterpreted the physician's testimony. The trial
court found, [t]he findings were not consistent with masturbation
and are not customarily observed with consensual sex. The
physician did say on cross-examination that the trauma could have
been caused by a vibrator and that another teenager could have
caused K.W. to lose her virginity. However, the physician clearly
believed that the full hymeneal transection was the result of
forced penetration. On redirect, she also stated that she would
not expect to see that type of trauma due to the use of a vibrator.
Respondent contends that use of the word forced does not
necessarily mean that the sex was nonconsensual. Respondent also
argues that, in effect, the physician's testimony was that K.W.'s
hymeneal transection could have been caused by consensual sex.
Respondent has misconstrued the testimony. According to the
physician, the exam results showed that forced penetration likely
caused K.W.'s trauma, not consensual sex. The trial court's
finding of fact fifteen is supported by clear and convincing
Respondent makes the exact same argument with regard to
conclusions of law three through six and nine that he made to
findings of fact eight through twelve above. These conclusions are
as follows: 3. The father's acts over the years of
excessive corporal punishment, multiple
sex partners outside of the marriage and
failure to abide by YFS safety plans
demonstrate the power and control of a
domestic violence perpetrator.
4. The father's continual promise of a last
time he would perpetrate against his
daughter also demonstrates the acute
manipulation of a domestic violence
5. Using forced sexual intercourse as
discipline also placed the child in an
injurious environment such that the child
is a neglected child as defined in North
Carolina Statute 7B-101(15).
6. The forced sexual intercourse by the
father on his daughter in lieu of
disciplinary actions is also a
demonstration of the power and control of
a domestic violence perpetrator.
. . .
9. A.W. subjected K.W. to aggravated
circumstances as defined in North
Carolina General Statutes § 7B-101(2) in
that he sexually abused her for a period
of over a year.
Again, as discussed above, there was clear and convincing
evidence for the trial court to make these conclusions based on
testimony and evidence presented. The fact that respondent was not
able to use the police report and the Myspace page as evidence does
not constitute prejudicial error.
Respondent next argues that the trial court's conclusion that
the minor child was abused is not supported by sufficient, clear,
and convincing evidence. We disagree. N.C. Gen. Stat § 7B-101(1)(d) (2007) defines an abused
juvenile as one who has been raped or subject to other sexual
offenses. The trial court found K.W. to be an abused juvenile as
she was being raped by her father. We have found that a child's
allegations, along with a physician's exam and testimony provide
sufficient evidence for the trial court to make a finding of abuse.
See In re Mashburn
, 162 N.C. App. 386, 388-89, 591 S.E.2d 584, 587
(2004) (the trial court found as a matter of law that a minor
female was sexually abused and neglected based on the child's
allegations and a physician who testified that the minor had a
vagina bacterial infection that was likely caused by a sexual act).
Furthermore, the trial court properly evaluated the
physician's testimony. Unless an appellant provides evidence to
the contrary, this Court has determined that there is a presumption
that a trial court judge is aware of the distinction between an
expert witness' testifying (a) that sexual abuse in fact occurred
or (b) that a victim has symptoms consistent with sexual abuse
. . . . In re Morales
, 159 N.C. App. 429, 433, 583 S.E.2d 692,
695 (2003). Here, K.W. testified that her father raped her
repeatedly over the course of a year, and her testimony was
corroborated by a physician who found that her vaginal trauma was
consistent with forced penetration. The physician was not
presented to endorse K.W.'s testimony but to report clinical
findings that were consistent with K.W.'s allegations. K.W.'s
testimony, along with the physician's findings were sufficient forthe trial judge to find that K.W. was
abused pursuant to N.C. Gen.
Stat § 7B-101(1)(d).
Finally, respondent claims that the trial court's conclusions
that the minor child is neglected and dependent are not supported
by sufficient, clear, and convincing evidence. We disagree.
A neglected juvenile is one who lives in an environment
injurious to the juvenile's welfare[.] N.C. Gen. Stat. § 7B-
101(15). The trial court believed K.W.'s testimony that she was
raped by her father, and thus, the rape constituted sufficient
evidence to find the child neglected as she was living in an
environment injurious to her welfare.
A juvenile is dependent if he or she is in need of assistance
or placement because the juvenile has no parent, guardian, or
custodian responsible for the juvenile's care or supervision or
whose parent, guardian, or custodian is unable to provide for the
care or supervision and lacks an appropriate alternative child care
arrangement. N.C. Gen. Stat. § 7B-101(9). The trial court found
that K.W. was dependent because her parents refused to adhere to
the Safety Plan put in place by YFS. This conclusion was supported
by K.W.'s testimony that A.W. agreed to cease all contact with K.W.
in the Safety Plan, but moved back into the home about one week
later. The trial court concluded as a matter of law that K.W.
should remain in the legal custody of YFS, but to be placed with
her mother on a trial basis. There was no error in the court's decision. K.W. was in an
injurious environment where her father continued to be present
despite his agreement to stay away. K.W.'s mother was not seeking
to enforce the Safety Plan, and therefore, YFS found it necessary
to obtain a Non-Secure Custody Order to protect the child.
Based on the facts presented, there was clear and convincing
evidence for the trial court to find K.W. abused, neglected and
For the foregoing reasons, we find no reversible error.
Chief Judge MARTIN and Judge WYNN concur.
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