Defendant appeals from his convictions for statutory rape and indecent liberties with a child. He alleges there were constitutional and statutory errors in his conviction arising from limitations upon his cross-examination of the prosecuting witness, the admission of evidence, and the limitations upon his closing arguments. We disagree and find no error.
I. Background
Defendant was indicted for statutory rape of a person who is 13, 14, or 15 years old and indecent liberties with' a child. He was convicted by a jury on 20 November 2009 of statutory rape of a fifteen year old and indecent liberties with a child. Defendant was sentenced to consecutive terms of 336 months to 413 months for the charge of statutory rape of a child and 21 to 26 months for the charge of taking indecent liberties with a child.
At trial, the State presented evidence that defendant telephoned Carolyn, a fifteen-year-old girl, to ask her to come to his home to pick up a camera and some money she was owed for babysitting. When she arrived at defendant’s house, he pulled her inside. Carolyn testified that once she was inside, the defendant hit her, ripped her clothes, and penetrated her vaginally with his penis. As she was leaving the house, defendant told her not to tell anyone. When she arrived home, she told her father about the assault and identified defendant as her attacker. Her father called the police. After speaking with police at her home, Carolyn was taken to the hospital where medical personnel examined her and made notes of her explanation of what had happened. At trial, Carolyn identified the clothes that she had been wearing on the night in question. All three items of clothing were damaged. Both she and her father affirmed that they had not been torn when she left for defendant’s house. The State also presented DNA evidence which showed that defendant could “not be excluded as a contributor” to the samples collected from Carolyn.
*577 Defendant testified that he knew Carolyn because she had come to visit his wife. He had arranged for Carolyn to purchase a camera from one of his Mends and said that Carolyn called him to see if she could come to his house to pick up the camera. He claimed that she had attempted to leave without paying for the camera and that her pants had been tom when he tried to stop her from leaving with the camera without paying. Defendant further asserted that after accidentally tearing her pants, he had stopped trying to prevent her from leaving and she left with the camera. Defendant further testified that his nephew had been staying with him through the summer of the incident and that he had seen his nephew and Carolyn talking.
II. Analysis
Defendant first asserts that the Mai court committed error in limiting his cross-examination of the prosecuting witness regarding her sexual history. He also asserts that the court erred in not admitting the un-redacted medical records of the prosecuting witness which contained information regarding her prior sexual history. Finally, defendant contends that his closing arguments were improperly limited when the court would not allow him to argue that his nephew or someone else committed the assault on Carolyn. He asserts these errors were prejudicial and in violation of his rights under the constitutions of both North Carolina and the United States as well as in violation of statutory law. For the reasons below, we disagree.
A. Asserted Constitutional Errors
We begin by addressing defendant’s assertion that his constitutional rights were violated by each of his assignments of error. Generally, “error may not be asserted upon appellate review unless the error has been brought to the attention of the trial court by appropriate and timely objection or motion.” N.C. Gen. Stat. § 15A-1446(a) (2009); N.C.R. App. P (10) (a)(1). Objections must “stat[e] the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R. App. P. (10)(a)(l). “Failure to make an appropriate and timely motion or objection constitutes a waiver of the right to assert the alleged error on appeal . . . .” N.C. Gen. Stat. § 15A-1446(b). Constitutional errors not raised by objection at trial are deemed waived on appeal.
State v. Gainey,
*578 A thorough review of the record in this case gives us no indication that defendant raised any constitutional grounds or argument as to any of the issues which the defendant now argues on appeal. Since those constitutional arguments were not raised by a specific objection at trial, those arguments are waived. Id.
B. Assertions of Error Based Upon Statutory Grounds
We next turn to defendant’s assertions of error under statutory grounds as to (1) the limitations placed upon his cross-examination, (2) the court’s refusal to admit Carolyn’s un-redacted medical records and (3) the limitations placed upon his closing argument.
Defendant’s first two issues fall under Rule 412, the rape shield law. The North Carolina Rules of Evidence provide for the admission of all relevant evidence absent some constitutional, statutory, or rule-based exception to its admission. N.C. Gen. Stat. § 8C-1, Rule 402 (2009). Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2009). 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 . . . .” N.C. Gen. Stat. § 8C-1, Rule 403 (2009). Rule 412 governs the use of the prior sexual history of the prosecuting witness in a prosecution for sex crimes and provides in relevant part:
(a) As used in this rule, the term “sexual behavior” means sexual activity of the complainant, other than the sexual act which is at issue in the indictment on trial.
(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:
(1) Was between the complainant and the defendant; or
(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 *579 such a manner as to lead the defendant reasonably to believe that the complainant consented; or
(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 (2009). Rule 412 also provides for an
in camera
hearing to determine the relevancy and admissibility of evidence which might be in contravention of the Rule.
Id.
Our Supreme Court, in defining substantially similar exceptions in the former rape shield law, has said they are meant to “define those times when the prior sexual behavior of a complainant is relevant to issues raised in a rape trial, and are not a revolutionary move to exclude evidence generally considered relevant in trials of other crimes.”
State v. Fortney,
(1) Limitations on Cross-examination
Defendant asserts that it was reversible error for the trial court not to allow him to question Carolyn regarding her inconsistent statements about her sexual history to the police at her home and to the medical personnel at the hospital. We disagree.
“The scope of cross-examination is . . . within the sound discretion of the trial court, and its ruling thereon will not be disturbed absent a showing of abuse of discretion.”
State v. Herring,
[A] defendant’s right to cross-examination is subject to the sound discretion of the court and is therefore not absolute. See State v. Coffey,326 N.C. 268 ,389 S.E.2d 48 (1990); State v. Pallas,144 N.C. App. 277 ,548 S.E.2d 773 (2001). The testimony sought to be elicited on cross-examination “ ‘must be relevant to some defense or relevant to impeach the witness []’ ” and, in certain instances, may “ ‘bow to accommodate other legitimate interests in the criminal trial process[]’ ” such as the rules of evidence. Pallas,144 N.C. App. at 283 ,548 S.E.2d at 779 (citations omitted).
State v. Oliver,
The limitations on cross-examination in this case were based upon inadmissibility under Rule 412, as one of those instances as referenced in
Oliver,
in which the right to cross-examination must “bow
*580
to accommodate other legitimate interests in the criminal trial process[,]”
Oliver,
The lack of a specific basis under Rule 412 for admission of the evidence does not end our analysis. As we have noted, our Supreme Court has made clear that the Rule does not “exclude evidence generally considered relevant in trials of other crimes.”
Fortney,
As defendant asserts
Younger
supports his position that his questioning regarding Carolyn’s disparate statements to the police at her home and to medical personnel at the hospital regarding her prior sexual activity should have been allowed, we turn now to that case. In
Younger,
our Supreme Court held that not allowing the defendant to cross-examine the prosecuting witness regarding inconsistent statements she made in sworn testimony and to her treating physician regarding her sexual activity on the day of her supposed rape was reversible error.
Younger,
Three relevant factors reduce the probative value of the evidence in the case
sub judice
and distinguish the value of that evidence offered in
Younger
from the evidence offered here. The first is that the prosecuting witness in this case offered no testimony regarding her previous sexual history. The second is that the testimony defendant sought to elicit from Carolyn was regarding sexual activity that occurred months before the incident in this case and as best we can tell bore no direct relationship to the incident in question here. Finally, there is no issue as to the consent of the prosecuting witness in this case. We fail to see, given the lack of an issue of consent, the apparent lack of any developed temporal or causative link between the proposed impeachment and the incident in question and particularly the lack of in-court testimony to form a strong basis for impeachment of the witness, how “the probative value” of the proposed impeachment in any way balances in the positive against its prejudicial effect, even in “light of the extreme importance of eyewitness credibility.”
Id.; State v. Dorton,
(2) Court’s Refusal to Admit Carolyn’s Un-redacted Medical Records
Defendant next asserts that the trial court erred in not admitting Carolyn’s un-redacted medical records which contained statements regarding her prior sexual history. We disagree.
The redacted portions of the medical records in this case indicated that Carolyn had told hospital personnel that she was “previously sexually active,” and provided details regarding that previous sexual experience, including specific details of the type of sexual acts and whether or not a condom was used. These prior sexual experiences occurred at least months prior to the incident which is the subject of this case.
Though review of relevancy determinations is
de novo, State v. Wallace,
As we have noted above, the North Carolina Rules of Evidence provide for the admission of all relevant evidence absent some constitutional, statutory, or rule-based exception to its admission, but evidence of prior sexual behavior of the victim is limited by Rule 412. Defendant points to
In re: K.W.,
Even were we to accept that defendant’s questioning had some measure of probative value and should have been allowed, there is no evidence that the ability to question Carolyn regarding her prior sexual history would have had any effect on the outcome of the trial. It is evident on the face of the record that defendant was allowed ample cross-examination of Carolyn regarding the events of the day in question as well as ample opportunity to examine her veracity with respect to that testimony. Given the lack of an offer of proof of any evidence to support defendant’s apparent theory that Carolyn engaged in another sexual encounter which might explain the DNA findings and her physical examination, it is evident that the questioning intended by the defendant was not likely to have caused the jury to change its verdict. As any supposed error is not prejudicial, it will not yield a new trial.
Herring,
(3) Limitation on Defendant’s Closing Arguments
Defendant contends that he was improperly limited in his closing arguments by the trial court’s rulings that he could not argue that his nephew or someone else had committed the sexual assault against Carolyn. We disagree.
a. Standard of Review
It is established law in this state that whether closing arguments are proper “is a matter ordinarily left to the sound discretion of the trial judge, and [appellate courts] will not review the exercise of this discretion unless there is such gross impropriety in the argument as would be likely to influence the verdict of the jury.”
State v. Riddle,
Appellate review is to be made “solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to Rule 9.” N.C.R. App. P. Rule 9(a). “The defendant. . . has the duty to see that the record on appeal is properly made up.”
State v. McCain,
b. Substantive Law
Closing arguments of counsel are governed by N.C. Gen. Stat. § 15A-1230(a):
(a) During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of the analysis of the evidence, argue any position or conclusion with respect to the matter at issue.
N.C. Gen. Stat. § 15A-1230(a)(2009).
c. Application
Defendant points to the following exchange with the trial court as supporting his contention that the trial court’s limitations on his closing arguments constitute reversible error:
THE COURT: You can argue that it wasn’t him, but you can’t argue that it was somebody else. Are we clear on my ruling?
[DEFENSE]: I can argue that it wasn’t this defendant?
THE COURT: Correct, but you can’t argue it was X.
[DEFENSE]: Can I argue it must’ve been someone else?
*585 THE COURT: No. Must have been somebody else is even more speculative. I mean, it does not cast more than a suspicion on another or raise more than a mere conjectural inference. That is the law that is here.
THE COURT: Well, you can argue that he didn’t have sex with her. You can argue that he didn’t do what she said. But you can’t say that somebody else did it.
THE COURT: I understand what you are saying. But, understand what my ruling is, that you can’t say somebody else. You are not allowed — you will not be permitted to argue that somebody else, John Doe, Jane Doe — that someone else did it.
[DEFENSE]: I can say it wasn’t his DNA evidence?
THE COURT: You can. You can stand up there and say “not him.” You cannot say “somebody else.” Now, they can infer from whatever argument you make that it was somebody else, but you can’t say it. You can imply so that they can infer, but you can’t say it.
Although defendant argues that he was improperly prevented from arguing that someone else raped the victim, defendant is unable to point to specific portions of his closing argument which were limited by the trial court’s ruling, as closing arguments in this case were not recorded. Therefore, defendant has not met his burden of establishing the trial court’s alleged error within the record on appeal. This court will not “assume error by the trial judge when none appears on the record before [it].”
State v. Phifer,
III. Conclusion
For the reasons stated above, we find no error in the rulings of the trial court in this case as to the limitations placed on defendant’s cross-examination, admission of redacted medical records excluding statements regarding prior sexual activity of the victim, and limitations upon defendant’s closing arguments.
NO ERROR.
. We will refer to the minor child by the pseudonym Carolyn to protect the child’s identity and for ease of reading.