{ "id": 8527385, "name": "STATE OF NORTH CAROLINA v. THOMAS WADE NORRIS", "name_abbreviation": "State v. Norris", "decision_date": "1990-12-18", "docket_number": "No. 9018SC102", "first_page": "144", "last_page": "152", "citations": [ { "type": "official", "cite": "101 N.C. App. 144" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "88 ALR3d 8", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "169 S.E.2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "851" } ], "opinion_index": 0 }, { "cite": "275 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559259 ], "year": 1969, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0584-01" ] }, { "cite": "122 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "403" } ], "opinion_index": 0 }, { "cite": "255 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571608 ], "year": 1961, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0583-01" ] }, { "cite": "309 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "207" } ], "opinion_index": 0 }, { "cite": "309 N.C. 742", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760895 ], "year": 1983, "pin_cites": [ { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0742-01" ] }, { "cite": "354 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169578 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0001-01" ] }, { "cite": "340 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "340 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720164 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0724-01" ] }, { "cite": "321 N.C. 648", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "365 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "649" } ], "opinion_index": 0 }, { "cite": "365 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "648" } ], "opinion_index": 0 }, { "cite": "321 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569966 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0633-01" ] }, { "cite": "334 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "338 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719370, 4715770, 4718701, 4719994, 4718878 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0393-05", "/nc/315/0393-04", "/nc/315/0393-01", "/nc/315/0393-03", "/nc/315/0393-02" ] }, { "cite": "334 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C. App. 192", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521163 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0192-01" ] } ], "analysis": { "cardinality": 753, "char_count": 19818, "ocr_confidence": 0.786, "pagerank": { "raw": 3.604988957924334e-07, "percentile": 0.8879201065390299 }, "sha256": "baffc667c9d0d24c574302fca14a4b5c309fb12423b0eea81c79fc08ce101804", "simhash": "1:87efc12b22efb125", "word_count": 3268 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and COZORT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. THOMAS WADE NORRIS" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant was convicted of raping his nine year old stepdaughter. Evidence at trial established that the rape occurred in the master bedroom of the victim\u2019s house while the child\u2019s mother was gone. The defendant positioned the child on the edge of the bed, and he stood while performing intercourse.\nI. Admissibility of a Fourteen Year Old Conviction\nDefendant first argues that the trial court committed prejudicial error when it denied his motion in limine to prohibit the State from introducing evidence of his 1975 incest conviction. The 1975 conviction involved the defendant\u2019s eight and nine year old natural daughters. The evidence in that case was that while their mother was gone, he sat his daughters down on a commode top and stood while performing intercourse. Like the victim in the case at bar, both girls had abnormally large vaginal areas and were about the age of the alleged victim here.\nThe district attorney gave notice he intended to introduce evidence of the 1975 conviction under Rules of Evidence 404 and 609. G.S. \u00a7 8C-1, Rules 404, 609. The defendant objected and the trial judge heard the matter in the absence of the jury. The trial judge granted the defendant\u2019s motion as to Rule 404(b), finding the conviction too remote to show a common scheme or plan and holding that the probative value was substantially outweighed by the prejudicial effect. However, the judge denied the objection as to Rule 609(b) indicating he would admit the evidence if presented, specifically finding that the similarity in the crimes showed a \u201cpattern of behavior\u201d and that the probative value substantially outweighed any prejudicial effect. The defendant did not testify and therefore there was no cross-examination and the conviction never came before the jury.\nRule 609(b) admits evidence of \u201cstale\u201d convictions, i.e., more than ten years old for the purpose of impeachment if the court makes findings supported by specific facts that show that the probative value of the conviction substantially outweighs its prejudicial effect. G.S. \u00a7 8C-1, Rule 609; State v. Hensley, 77 N.C. App. 192, 334 S.E.2d 783 (1985), disc. rev. denied, 315 N.C. 393, 338 S.E.2d 882 (1986). It is relevant if the old conviction involves \u201ca continuous pattern of behavior.\u201d Id. 77 N.C. App. at 195, 334 S.E.2d 785.\nIn the present case, the trial judge found that the 1975 conviction demonstrated a \u201cpattern of behavior\u201d which was probative for impeachment purposes. We disagree. The circumstances surrounding his 1975 incest conviction and the present allegations are so similar that admitting the old conviction would have so prejudiced the defendant with such little corresponding probative value that it should have been excluded. However, because the defendant never took the stand, the State never offered the stale conviction into evidence to impeach the defendant. Our Supreme Court has previously addressed this same situation in State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988). In Lamb, the defendant\u2019s motions in limine were denied and the defendant did not testify. On appeal the defendant argued that the erroneous ruling imper-missibly chilled her constitutional right to testify on her own behalf. The court held that the defendant was prejudiced because it was clear that had the judge granted her motions, she would have testified. Id. at 648, 365 S.E.2d 608. However, the court also held that, \u201c[n]ot every denial of a defendant\u2019s motion in limine results in a chilling of defendant\u2019s right to testify. Whether this result occurs depends on the peculiar facts of each case.\u201d 321 N.C. 648, 365 S.E.2d 608. In Lamb the court focused on the fact that the State\u2019s case was comprised solely of testimony from the defendant\u2019s relatives that proved to be equivocal and arguably weak. Based on that circumstance, the court held that the defendant\u2019s failure to take the stand because of fear of impeachment was \u201cfraught with prejudice.\u201d Id. at 649, 365 S.E.2d at 608.\nHere, while it does appear from the record that the defendant chose not to testify at least in part because he feared being impeached with his 1975 conviction, there was such overwhelming evidence of his guilt that his failure to take the stand did not rise to the level of prejudicial error. The prosecuting witness testified that her stepfather had raped her. The victim\u2019s mother and brother corroborated her testimony. Furthermore, there was physical evidence that the child had been sexually active in a manner consistent with her testimony. We find, based upon the evidence in this case, no prejudicial error occurred. We cannot speculate why the defendant elected to remain silent or whether this conviction would have even been offered by the State had the defendant taken the stand and testified under these circumstances.\nII. Admissibility of Results of a Medical Examination Conducted More than Two Years After the Alleged Offense\nThe defendant also made a motion in limine to exclude the testimony of Dr. McCormick, the physician who examined the victim in October, 1988. The trial court conducted a voir dire which tended to show that the physical examination she performed corroborated the victim\u2019s testimony that she was sexually abused over a long period of time. The results of the examination were also consistent with the victim\u2019s testimony that her vagina had been penetrated by either a penis or finger.\nThe defendant challenges the admissibility of this evidence because the examination was conducted at least two years after the alleged rape. We hold that the trial court did not err in allowing the jury to hear this testimony.\nWe find that this evidence was both relevant and admissible. G.S. \u00a7 8C-1, Rules 401, 403. The physician\u2019s testimony tended to prove that the child had been sexually active, which is clearly relevant. The fact that her examination occurred months or even two years after the alleged abuse does not in this case render the evidence inadmissible under Rule 403. Defense counsel was able to bring this fact, and others affecting the weight to be assigned this testimony, before the jury. Whether or not the stretching in the victim\u2019s vaginal area was abnormal, or was caused by the defendant rather than by something else, was for the jury. The examination was not so remote as to be unfairly prejudicial to the defendant.\nIII. Right to Recall the Prosecuting Witness and Examine Her About Specific Instances of Sexual Behavior\nOn the first day of trial, defense counsel filed several motions in limine. In conjunction with the motion to exclude the medical testimony of Dr. McCormick, the defendant indicated that if the court allowed the testimony, he would seek to cross-examine the victim about specific sexual behavior to show that the medical findings were caused by someone other than the defendant. State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986), discusses what the defense must do before making such an offer of proof under G.S. \u00a7 8C-1, Rule 412:\nBefore any questions pertaining to such evidence are asked of any witness, the proponent of such evidence shall first apply to the court for a determination of the relevance of the sexual behavior to which it relates. The proponent of such evidence may make application either prior to trial pursuant to G.S. 15A-952, or during the trial at the time when the proponent desires to introduce such evidence. When application is made, the court shall conduct an in camera hearing, which shall be transcribed, to consider the proponent\u2019s offer of proof and the argument of counsel, including any counsel for the complainant, to determine the extent to which such behavior is relevant. In the hearing, the proponent of the evidence shall establish the basis of admissibility of such evidence. . . .\nId. at 728-29, 340 S.E.2d 433. The defense, as proponent of the evidence of specific sexual acts, carries the burden of establishing the admissibility of the evidence. Here, the defendant never made a request for an in camera hearing, and he made no offer of proof to establish the admissibility of this evidence. He never requested the court to recall the victim. The failure of the trial court to initiate this process ex mero motu was not plain error. This assignment of error is overruled.\nIV. Failure to Allow a Bill of Particulars and Failure to Dismiss the Indictment for Vagueness\nDefendant\u2019s indictment alleges that Mr. Norris committed the offense of first degree rape in \u201cJune 1986 or July 1986.\u201d On 24 April 1989, the defendant filed a Motion for a Bill of Particulars stating that without a more specific allegation as to date and time, the defendant could not adequately prepare his defense. On 7 September 1989, defendant filed a motion to dismiss stating that because the indictment covered a possible sixty day period occurring more than three years ago, such vagueness of allegation as to time had deprived him of an opportunity to adequately present his defense. Both of these motions were denied.\nDefendant concedes that indictments are not defective because they allege a period of time rather than a specific date. See State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527 (1987). Instead he argues that the combined effect of an unspecified offense date and a three year time lapse between the date of the alleged event and the date of trial deprived him of an opportunity to adequately present a defense. We disagree.\nThe indictment charged that the defendant raped the prosecuting witness between June and July 1986. The child\u2019s uncertainty as to when the offense was committed goes to the weight of her testimony. Where there is sufficient evidence that the defendant committed each essential act of the offense, nonsuit may not be allowed on the ground that the State\u2019s evidence fails to fix any definite time when the offense was committed. State v. Effler, 309 N.C. 742, 749, 309 S.E.2d 203, 207 (1983). This assignment of error is overruled.\nV. Variance Between the Time of the Offense and the Time Established by the Evidence\nThe victim testified that she was \u201ceight or nine years old\u201d when the rape occurred and the defendant suggests that based upon the testimony the date of the rape would have been 1984 or 1985. Defendant argues that the variance of one to two years in the indictment and the time established by the victim is fatal and requires dismissal of the charge. We disagree. First, the victim\u2019s mother fixed the date of the incident as June or July 1986, the time contained in the indictment. Furthermore, the date given in the bill of indictment is not an essential element of the crime charged and the fact that the crime was in fact committed on some other date is not fatal. State v. Whittemore, 255 N.C. 583, 592, 122 S.E.2d 396, 403 (1961). We reject this assignment of error.\nVI. Defendant\u2019s Motion for Mistrial\nDefendant argues that the following statement made by the State in its closing argument was so egregious that the defendant was entitled to a mistrial:\nThe law was written so he will never ever do this to anybody\u2019s daughter or to his own daughter again.\nDefendant argues that this statement impermissibly referenced the defendant\u2019s incest conviction. We disagree. The victim testified that she sometimes called the defendant \u201cDad\u201d and that the defendant treated her like his daughter. Although the trial court ruled that the defendant\u2019s prior conviction for incest would be admissible to impeach the defendant, the conviction was never introduced into evidence and was never alluded to at trial. The jury could not have leapt to the conclusion that the references to \u201chis own daughter\u201d meant that he was previously convicted of incest with his natural children. We reject this assignment of error.\nVII. Evidence that the Defendant Purchased Lace Underwear for the Victim\nDefendant objected to the introduction of testimony by the victim\u2019s mother that the victim was the defendant\u2019s favorite of the children and that he purchased fancy lace underwear for the child. He argues that the evidence is irrelevant or unduly prejudicial. We disagree. The trial court did not abuse its discretion in allowing this testimony. If evidence has any logical tendency, however slight, to prove a fact in issue, it is relevant. G.S. \u00a7 8C-1, Rule 401. He has failed to show how this evidence was unduly prejudicial. We reject this assignment of error.\nVIII. Reference to the Defendant\u2019s Acquittal of First Degree Sexual Offense in Robeson County\nThe trial court excluded as substantive evidence the 1975 incest conviction and an acquittal in 1988 of first degree sexual offense in Robeson County involving the prosecuting witness. The defendant argues that the jury should have been instructed about the allegations and the interrelationship between his 1988 acquittal and his rape charge \u201cto clear up confusion.\u201d However, a review of the record reveals that there were no references to the alleged sex offenses in Robeson County. Finding no possible confusion on this point, we reject this assignment of error.\nIX. Instruction on Mandatory Life Sentence\nFinally, the defendant contends that he was entitled to an instruction from the judge to the jury regarding the mandatory life sentence for first degree rape. We disagree. \u201cIn the absence of some compelling reason which makes disclosure as to punishment necessary in order \u2018to keep the trial on an even keel\u2019 and to insure complete fairness to all parties, the trial judge should not inform the jurors as to punishment in noncapital cases.\u201d State v. Rhodes, 275 N.C. 584, 592, 169 S.E.2d 846, 851 (1969); we reject this assignment of error.\nX.Conclusion\nDefendant received a fair trial, free of prejudicial error.\nAffirmed.\nJudges WELLS and COZORT concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Lorinzo L. Joyner, for the State.", "Assistant Public Defender John Bryson for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. THOMAS WADE NORRIS\nNo. 9018SC102\n(Filed 18 December 1990)\n1. Criminal Law \u00a7 86.3 (NCI3d) \u2014 finding that fourteen-year-old conviction was admissible erroneous \u2014 failure of defendant to take stand \u2014 defendant not prejudiced by finding\nIn a prosecution of defendant for rape of his nine-year-old stepdaughter, the trial court erred in finding that a fourteen-year-old conviction of defendant for incest involving his eight- and nine-year-old natural daughters demonstrated a \u201cpattern of behavior\u201d which was probative for impeachment purposes, since the circumstances surrounding the 1975 incest conviction and the present allegations were so similar that admitting the old conviction would have prejudiced defendant with such little corresponding probative value that it should have been excluded; however, because defendant did not take the stand and the State did not use the stale conviction to impeach him, and because defendant\u2019s failure to take the stand had little bearing on the outcome of the case in light of the overwhelming evidence against him, the trial court\u2019s error was not prejudicial. N.C.G.S. \u00a7 8C-1, Rules 404, 609.\nAm Jur 2d, Rape \u00a7 71.\nRemoteness in time of other similar offenses committed by accused as affecting admissibility of evidence thereof in prosecution for sex offenses. 88 ALR3d 8.\n2. Rape and Allied Offenses \u00a7 4.2 (NCI3d)\u2014 physical examination of rape victim two years after offense \u2014admissibility of evidence\nIn a prosecution of defendant for rape of his stepdaughter, the trial court did not err in admitting into evidence testimony by a physician who examined the victim two years after the alleged offense where the testimony corroborated the victim\u2019s testimony that she was sexually abused over a long period of time, and defense counsel was able to bring the fact of the remoteness of the exam and other factors affecting the weight to be assigned to the testimony before the jury. N.C.G.S. \u00a7 8C-1, Rules 401, 403.\nAm Jur 2d, Rape \u00a7 81.\n3. Criminal Law \u00a7 88.1 (NCI3d)\u2014 cross-examination of rape victim \u2014 scope\u2014burden on defendant to show admissibility\nIn a prosecution of defendant for rape of his stepdaughter where defendant indicated that, if certain medical testimony were allowed, he would seek to cross-examine the victim about specific sexual behavior to show that the condition of the victim\u2019s vagina was caused by someone other than defendant, defendant carried the burden of establishing the admissibility of such evidence, and failure of the court to initiate the process outlined in N.C.G.S. \u00a7 8C-1, Rule 412 was not plain error.\nAm Jur 2d, Rape \u00a7\u00a7 65, 100; Witnesses \u00a7\u00a7 520, 568.\n4. Rape and Allied Offenses \u00a7 3 (NCI3d)\u2014 unspecified offense date in indictment \u2014 defendant not prejudiced\nIn a prosecution of defendant for rape of his stepdaughter where the indictment charged that the offense occurred in June or July three years earlier, there was no merit to defendant\u2019s contention that the combined effect of an unspecified offense date and a three-year time lapse between the date of the alleged offense and the date of trial deprived him of an opportunity adequately to present a defense.\nAm Jur 2d, Rape \u00a7 52.\n5. Rape and Allied Offenses \u00a7 3 (NCI3d)\u2014 date of offense \u2014 no variance between indictment and proof\nThere was no merit to defendant\u2019s contention in a rape case that the variance of one to two years in the indictment and the time established by the victim was fatal and required dismissal of. the charge, since the victim\u2019s mother fixed the date of the incident at the time contained in the indictment, and the date given in the bill of indictment was not an essential element of the crime charged.\nAm Jur 2d, Rape \u00a7 52.\n6. Criminal Law \u00a7 434 (NCI4th)\u2014 prosecutor\u2019s statement \u2014no reference to defendant\u2019s prior conviction\nA statement by the prosecutor in a rape case that, \u201cThe law was written so he will never ever do this to anybody\u2019s daughter or to his own daughter again\u201d did not impermissibly reference defendant\u2019s incest conviction and therefore require a mistrial, since the conviction was never introduced into evidence and was never alluded to at trial; the victim testified that she sometimes called defendant \u201cDad\u201d and that defendant treated her like his daughter; and the jury could not have leapt to the conclusion that the references to \u201chis own daughter\u201d meant that he was previously convicted of incest with his natural children.\nAm Jur 2d, Trial \u00a7 269.\n7. Rape and Allied Offenses \u00a7 4 (NCI3d)\u2014 evidence of victim\u2019s and defendant\u2019s relationship \u2014evidence admissible\nIn a prosecution of defendant for rape of his stepdaughter, the trial court did not err in admitting testimony by the victim\u2019s mother that the victim was defendant\u2019s favorite of the children and that he purchased fancy lace underwear for the child.\nAm Jur 2d, Infants \u00a7 17.5; Rape \u00a7 55.\n8. Rape and Allied Offenses \u00a7 6 (NCI3d) \u2014 prior acquittal\u2014 instructions about allegations in earlier case not required\nThere was no merit to defendant\u2019s contention that the jury should have been instructed about the allegations in an earlier first degree sexual offense case in which he was acquitted and the interrelationship between the earlier acquittal and the current rape charge \u201cto clear up confusion\u201d since there were no references to the alleged sex offenses and no possible confusion on this point.\nAm Jur 2d, Rape \u00a7 108.\n9. Criminal Law \u00a7 861 (NCI4th)\u2014 mandatory life sentence \u2014 instruction not required\nDefendant was not entitled to an instruction from the judge to the jury regarding the mandatory life sentence for first degree rape.\nAm Jur 2d, Rape \u00a7 108.\nAppeal by defendant from a judgment entered 27 September 1989 by Judg\u00e9 Thomas W. Ross in Superior Court, GUILFORD County. Heard in the Court of Appeals 23 October 1990.\nThe defendant was convicted of first degree statutory rape. The court imposed a mandatory life sentence. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Lorinzo L. Joyner, for the State.\nAssistant Public Defender John Bryson for the defendant." }, "file_name": "0144-01", "first_page_order": 172, "last_page_order": 180 }