Based upon his second assignment of error, defendant contends that the court erred in permitting the prosecuting witness to testify regarding prior sexual advances and physical abuses by defendant. Defendant argues that this evidence was “inadmissible under the recognized rules of evidence” and “highly prejudicial to the defendant.” We disagree. It is well-established in this State that when the
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defendant in a criminal trial does not testify, evidence of other offenses is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged. 1 Stansbury, N.C. Evidence, § 91 (Brandis rev. 1973);
State v. Jones,
Defendant’s third assignment of error relates to the court’s permitting an expert witness “to express an opinion that a woman could be raped without there being evidence of trauma about the vulva or vaginal areas.” Defendant contends that “no factual basis or premise for the physician’s opinion was presented to the jury for their evaluation, other than the fact that Doctor Woodall had been a physician since 1956.” We do not agree. Expressions of opinion by an expert witness must be based either upon facts within the personal knowledge of the expert witness, or upon an assumed state of facts supported by evidence and recited in a hypothetical question.
Taylor v. Boger,
While the mother of defendant was testifying in his behalf that she had never seen defendant strike his daughter, the prosecuting witness shouted out from the audience section of the courtoom on two separate occasions that defendant’s mother “was lying.” The trial judge had the prosecuting witness brought before the bench and in the absence of the jury, counsel for defendant moved that the court “declare a mistrial for this outburst.” The trial judge denied the motion, which is the basis for defendant’s fifth assignment of error. G.S. § 15A-1061 in pertinent part provides:
Upon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant’s motion if there occurs during the trial ... conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant’s case . . .
A motion for mistrial in a non-capital case is addressed to the sound discretion of the trial judge, and his ruling on the motion will not be disturbed on appeal absent a gross abuse of that discretion.
State v. Bumgarner,
Based on his sixth assignment of error, defendant contends the court erred in “reading the bills of indictment to the jury.” We disagree. G.S. § 15A-1213 provides:
Prior to selection of jurors, the judge must identify the *177 parties and their counsel and briefly inform the prospective jurors, as to each defendant, of the charge, date of the alleged offense, the name of any victim alleged in the pleading, the defendant’s plea to the charge, and any affirmative defense by which the defendant has given pre-trial notice as required by Article 52, Motions Practice. The Judge may not read the pleadings to the Jury.
Although reading the bill of indictment to the jury at both the beginning of the trial and in the charge to the jury has been held to be a violation of G.S. § 15A-1213 and prejudicial error,
State v. Hill,
Defendant lastly contends, based upon his seventh assignment of error, that the offenses with which he was convicted, incest and second degree rape, are not separate offenses, and since the charges against him arose out of the same transaction and are based on the same facts, the court erred in sentencing defendant on the incest conviction. We disagree. In
State v. Harvell,
Rape requires force, incest does not. Incest requires kinship, rape does not. Obviously, they are different offenses. They have different elements and are therefore distinct offenses even though one crime was committed during the perpetration of another. [Citation omitted.]
Id. at 248,
We hold that defendant had a fair trial free from prejudicial error.
No error.