State v. Lucas
275 S.E.2d 433
N.C.
1981
Check Treatment
HUSKINS, Justice.

Defendant’s motion at the close of the State’s evidence to dismiss the charge of second degree sexual assault was denied. This ruling is the basis for his first assignment of error.

G.S. 14-27.5 provides in pertinent part as follows:
(a) A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:
(1) By force and against the will of the other person;
(b) Any person who commits the offense defined in this section is guilty of a felony and upon conviction shall be punished by imprisonment in the State’s prison for a term of not more than 40 years.

G.S. 14-27.1(4) defines “the penetration, however slight, by any object into the genital or anal opening of another person’s body ...” as a “sexual act.”

The evidence in this case tends to show that defendant penetrated the genital opening of Helen Peele’s body with his fingers. Defendant contends this is not a “sexual act” under the statute because the Legislature only intended the words “any object” in G.S. 14-27.1(4) to mean any object foreign to the human body. Defendant cites no authority in support of his position.

In the interpretation and construction of statutes, the task of the judiciary is to seek the legislative intent. Housing Authority v. Farabee, 284 N.C. 242, 200 S.E.2d 12 (1973). This rule applies not only to civil statutes but to criminal statutes as well. State v. Brown, 221 N.C. 301, 20 S.E.2d 286 (1942); State v. Humphries, 210 N.C. 406, 186 S.E. 473 (1936). Criminal statutes must be strictly, but not stintingly or narrowly, construed. State v. Spencer, 276 N.C. 535, *346 173 S.E.2d 765 (1970). The words and phrases of a statute must be construed as a part of the composite whole and accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit. Where the Legislature defines a word used in a statute, that definition is controlling even though the meaning may be contrary to its ordinary and accepted definition. Vogel v. Supply Co., 277 N.C. 119, 177 S.E.2d 273 (1970).

When the foregoing rules of statutory construction are applied to G.S. 14-27.1(4), we are of the opinion, and so hold, that the Legislature did not intend to limit the meaning of the words “any object” to objects foreign to the human body. The complete definition of “sexual act” contained in the statute reads as follows:

“Sexual act” means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person’s body: Provided, that it shall be an affirmative defense that the penetration was for accepted medical purposes.

It is noted that all sexual acts specifically enumerated in the statute relate to sexual activity involving parts of the human body. The only sexual act excluded from the statutory definition relates to vaginal intercourse, a necessary omission because vaginal intercourse is an element of the crimes of first and second degree rape which are defined in G.S. 14-27.2 and G.S. 14-27.3. The words “sexual act” do not appear in these rape statutes. The words do appear in G.S. 14-27.4 and G.S. 14-27.5 which define the crimes of first and second degree “sexual offense.” The Legislature must have intended “sexual act” as defined in G.S. 14-27.1(4) to encompass every penetration other than vaginal intercourse. We therefore conclude that the Legislature used the words “any object” to embrace parts of the human body as well as inanimate or foreign objects. If the lawmaking body had a different intent, it could have easily expressed it. Defendant’s first assignment of error is overruled.

At trial, Mrs. Peele identified defendant from the witness stand without objection as the man who broke into her home and assaulted her. She was then permitted to testify over objection that she had previously picked defendant out of the crowd in the courtroom at the probable cause hearing and identified him as her *347 assailant at that time. Admission of her testimony as to the previous identification constitutes defendant’s second assignment of error.

There is nothing in the record to suggest that Mrs. Peele’s previous identification of defendant at the probable cause hearing was tainted by impermissibly suggestive procedures. Defendant does not challenge admission of the evidence on that ground. Rather, he contends that Mrs. Peele’s credibility had not been impeached and therefore her testimony as to her previous identification of defendant at the probable cause hearing could not be used to bolster and strengthen the credibility of her in-court identification testimony. For reasons which follow, we think defendant’s position is unsound.

It seems that most jurisdictions will not receive evidence to support the credibility of a witness unless that witness has been directly impeached. See 4 Wigmore, Evidence, § 1124 (Chadbourn rev. 1972). The necessity for some kind of impeachment or attack on the credibility of the witness is recognized in some of our earlier cases. See State v. Cope, 240 N.C. 244, 81 S.E.2d 773 (1954); Gibson v. Whitton, 239 N.C. 11, 79 S.E.2d 196 (1953); State v. Melvin, 194 N.C. 394, 139 S.E. 762 (1927); Bowman v. Blankenship, 165 N.C. 519, 81 S.E. 746 (1914); State v. Parish, 79 N.C. 610 (1878). As these and other cases reveal, however, we have recognized that impeachment may arise from proof of bad character, contradictory statements, vigorous cross-examination, contradiction by other witnesses, or the varied position of the witness in reference to the cause and its parties. As a result, “the necessity of impeachment as a prerequisite to corroboration would seem to be more theoretical than real. Indeed, the more recent cases tend to ignore the requirement of impeachment altogether.” 1 Stansbury’s North Carolina Evidence § 50, p. 144 (Brandis rev. 1973). See State v. Carter, 293 N.C. 532, 238 S.E.2d 493 (1977); State v. Cook, 280 N.C. 642, 187 S.E.2d 104(1972); State v. Best, 280 N.C. 413, 186 S.E.2d 1 (1972); State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970); State v. Primes, 275 N.C. 61, 165 S.E.2d 225 (1969); State v. Paige, 272 N.C. 417, 158 S.E.2d 522 (1968); State v. Rose, 270 N.C. 406, 154 S.E.2d 492 (1967); State v. Case, 253 N.C. 130, 116 S.E.2d 429 (1960), cert. den., 365 U.S. 830, 5 L.Ed.2d 707, 81 S.Ct. 717 (1961); State v. Rose, 251 N.C. 281, 111 S.E.2d 311 (1959). In fact, the admissibility of prior consistent statements of a witness to strengthen his credibility has been reaffirmed by this Court in scores of cases where the credibility of the *348 witness has been impugned in any way. See, e.g., State v. Brodie, 190 N.C. 554, 130 S.E.2d 205 (1925). If the previous statement of the witness was substantially consistent with the testimony of the witness at trial, it has been held to be admissible for corroborative purposes. If the prior statement is substantially inconsistent with the testimony of the witness at trial, it is admissible for impeachment purposes. Such is the rule with us. It is grounded upon the obvious principle that the consistent statements sustain and strengthen, while conflicting statements impair the credibility of the witness before the jury.

For the reasons stated, we hold that the challenged evidence was competent and properly admitted. Defendant’s second assignment of error is overruled.

Officer Curtis Johnson was permitted to testify over objection that when he removed defendant from the vehicle driven by Willie Hart and took him to the police station, defendant had what appeared to be slivers of glass in his hair and in his pants as well as embedded into his leather jacket. Admission of this testimony constitutes defendant’s third assignment of error.

Defendant argues the testimony challenged by this assignment violates the opinion rule of evidence and is therefore inadmissible; that the witness could have described the substance to the jury and allowed it to form its own opinion as to whether it was glass or some other material; that the court’s ruling permitted the witness to testify in an area requiring the testimony of experts. This prompts a brief examination of the opinion rule.

Opinion evidence is inadmissible if the witness can relate the facts “so that the jury will have an adequate understanding of them and the jury is as well qualified as the witness to draw inferences and conclusions from the facts.” 1 Stansbury’s North Carolina Evidence § 124, p. 388 (Brandis rev. 1973); Beanblossom v. Thomas, 266 N.C. 181, 146 S.E.2d 36 (1966). The evidence is admissible if either of these conditions is absent. Moreover, when the facts cannot be so described that the jury will understand them sufficiently to be able to draw its own inferences, the admissibility of opinion evidence is thoroughly established and is often characterized as a shorthand statement of fact, or the instantaneous conclusions of the mind, or natural and instinctive inferences, or the evidence of common observers testifying to the results of their observation. See 1 Stans- *349 bury’s North Carolina Evidence § 125 (Brandis rev. 1973), and cases cited therein.

In the case before us, regardless of the characterization given to the statement of Officer Johnson concerning “what appeared to be” glass slivers, we hold the statement was competent and properly admitted because slivers of glass could hardly be described otherwise. To require the witness to describe the location, position, coloration and other minute characteristics so that the jury, who had not seen the slivers, could draw its own conclusions as to whether they were glass places form over substance and is contrary to common sense. The witness was in a better position than the jury to draw the conclusions. Defendant’s third assignment is overruled.

Finally, defendant challenges the seizure of his clothing and admission of the clothing into evidence. This constitutes his fourth and fifth assignments of error.

The record reveals that Officer Johnson questioned defendant shortly after receiving a radio dispatch concerning the burglary but did not arrest him at that time. The officer then went to Mrs. Peele’s residence where he received a description of her assailant. Realizing the description fit the appearance of defendant Lucas, Officer Johnson continued his search and stopped a vehicle in which defendant was a passenger, removed him and took him to the police station. There, Officer Johnson advised defendant of his Miranda rights. Officer Inscoe, after conferring with Officer Johnson, placed defendant under arrest and requested Sergeant Mizell to obtain other clothing for defendant so defendant’s clothing could be removed and retained for further examination. When Sergeant Mizell returned with other clothing, defendant’s clothing was removed and retained. Evidence establishing all these facts was admitted without objection. In fact, the record shows that the clothing itself was also admitted without objection. Failure to object to the introduction of evidence is a waiver of the right to do so, “and its admission, even if incompetent, is not a proper basis for appeal.” State v. Hunter, 297 N.C. 272, 278-79, 254 S.E.2d 521, 525 (1979); see also State v. Nelson, 298 N.C. 573, 260 S.E.2d 629 (1979).

In any event, the clothing was not seized as an incident to an illegal arrest. Defendant was not illegally arrested. He was arrested without a warrant upon probable cause. “An arrest without a warrant is based upon probable cause if the facts and circumstances *350 known to the arresting officer warrant a prudent man in believing that a felony has been committed and the person to be arrested is the felon.” State v. Alexander, 279 N.C. 527, 532, 184 S.E.2d 274, 278 (1971). Here, Officer Johnson had observed defendant and his clothing, had received a description of the burglar’s attire from Mrs. Peele and discovered defendant when he stopped the car of one Willie Hart. The arrest which followed thereafter was based upon probable cause. The officer had visited the crime scene and had reasonable grounds to believe that defendant committed the offense in question. State v. Small, 293 N.C. 646, 239 S.E.2d 429 (1977); State v. Dickens, 278 N.C. 537, 180 S.E.2d 844 (1971).

Defendant’s clothing was lawfully seized and properly allowed into evidence. The authorities hold that handwriting samples, blood samples, fingerprints, clothing, hair, voice demonstrations, even the body itself, are identifying physical characteristics and outside the protection of the Fifth Amendment privilege against self-incrimination. Schme rber v. California, 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826 (1966); State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968), cert. den., 396 U.S. 934, 24 L.Ed.2d 232, 90 S.Ct. 275 (1969); State v. Gaskill, 256 N.C. 652, 124 S.E.2d 873 (1962). “It is well settled in North Carolina that clothing worn by a person while in custody under a valid arrest may be taken from him for examination, and, when otherwise competent, such clothing may be introduced into evidence at his trial.” State v. Dickens, 278 N.C. 537, 543, 180 S.E.2d 844, 848 (1971). Moreover, there is nothing in this record to indicate that the taking of defendant’s clothing was other than with his voluntary cooperation.

We conclude that defendant had a fair trial free from prejudicial error. The verdicts and judgments based thereon must therefore be upheld.

No error.