State v. Baker

106 N.C. App. 687 | N.C. Ct. App. | 1992

EAGLES, Judge.

Defendant argues inter alia that the trial court erred to his prejudice by allowing evidence to be admitted which indicated that the victim had been sexually penetrated. Based on controlling precedent, we agree.

Initially, we note that the State argues that the defendant waived this argument by failing to properly object at trial. However, because we find this evidence was highly prejudicial here and that it affected substantial rights of the defendant, we hold that the interests of justice require us to review its admission for possible error. N.C.R. Evid. 103(d); see, e.g., State v. Fearing, 315 N.C. 167, 172, 337 S.E.2d 551, 554 (1985).

Our decision is controlled by our Supreme Court’s holding in State v. Ollis, 318 N.C. 370, 348 S.E.2d 777 (1986). In Ollis, the defendant was convicted of first-degree rape and first-degree sexual offense (cunnilingus) involving a female child, who was ten years old at the time of trial. Id. at 371, 348 S.E.2d at 777-78. During the trial a physician who examined the victim was allowed to testify concerning physical findings he made during his examination of the victim. Id. at 375, 348 S.E.2d at 780-81. Those findings tended to establish that the victim had been sexually penetrated. On appeal the defendant argued inter alia that he was prejudiced by admission of this evidence because the trial court denied his request to cross-examine the victim about her being raped by another man. Id. at 374, 348 S.E.2d at 780. While the trial court did allow other witnesses to testify that the victim had said that she had been raped by two men, the trial judge limited the jury’s consideration of their testimony to corroboration of the victim. Id. at 375, 348 S.E.2d at 780. No substantive evidence of the rape by the second man was admitted. Id. After determining that the trial court erred by not allowing the defendant to present evidence of the other rape because it would tend to explain the physician’s findings, the Supreme Court addressed the penetration evidence as it related to the defendant’s conviction for first-degree sexual offense. The Court explained:

Although the evidence of an alternative source of the physical condition possibly resulting from rape was irrelevant to the sexual offense charge, we also are not convinced that under the circumstances its exclusion was harmless. If the sexual offense charge had been tried separately, the physician’s testimony would not have been relevant, and the evidence regarding rape of the victim by another man as an alternative explanation for the victim’s physical condition also would have been irrelevant. Because the two offenses were tried together, however, the enhancing character of the doctor’s evidence, appearing as it did to corroborate the victim’s testimony that she was penetrated, in turn enhanced the credibility of the witness regarding a second sexual offense by the defendant. For that reason we also find that the error was prejudicial to the defendant’s defense against the charge of first-degree sexual offense.

Id. at 377-78, 348 S.E.2d at 782 (emphasis added). The Court reversed both convictions and ordered a new trial. Id. at 378, 348 S.E.2d at 782.

In the instant case, as in Ollis, the defendant was charged with an offense which may involve sexual penetration, but does-not require sexual penetration. See State v. Slone, 76 N.C. App. 628, 334 S.E.2d 78 (1985) (defendant guilty of taking indecent liberties where he rubbed the victim’s genitalia); State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119 (1988), cert. denied, 324 N.C. 544, 380 S.E.2d 772 (1989) (defendant guilty of taking indecent liberties where he penetrated the victim’s genitalia); and State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986) (acts constituting sexual offense include: cunnilingus, fellatio, analingus, anal intercourse, and any penetration, however slight, by any object into the genital or anal opening of another person’s body). Likewise, here as in Ollis, the acts testified to by the victim and allegedly committed by the defendant did not include sexual penetration. Rather, here the victim testified only that the defendant “rubbed [her] private part” on the “[o]utside” of her clothing. Accordingly, under the holding of Ollis, the penetration testimony of Dr. Runyan and Ms. Hadler, as well as the photographs of the victim’s genitalia which tended to show that the victim had been penetrated, were not relevant to the crime the defendant allegedly committed. Moreover, we believe that the penetration evidence impermissibly expanded and enhanced the victim’s testimony. The introduction of irrelevant evidence of a second uncharged sexual offense made more plausible the victim’s allegation that the defendant had taken an indecent liberty with her by touching her private parts. Based on the record before us, we are unable to hold that the jury would not have had a reasonable doubt as to the defendant’s guilt if this irrelevant evidence had not been admitted.

We do not reach defendant’s remaining assignments because they are not likely to arise on remand.

Reversed and remanded for a new trial.

Judges Arnold and Wells concur.