{ "id": 8523809, "name": "MICHELLE MARIE WILSON, by and through her Guardian Ad Litem, Ronald C. Wilson, Plaintiff-Appellant v. DEAN BELLAMY, DOUG MUMMA, DONNIE BAUCOM, CHRIS BARCO, STEVE GHOULIS, EDDIE MEDFORD, JEFF GORDON, LAMBDA CHI ALPHA FRATERNITY, ZETA CHAPTER, an unincorporated association; LAMBDA CHI ALPHA FRATERNITY INCORPORATED, LCA-ALUMNI PROPERTIES, a North Carolina Limited Partnership, Defendants-Appellees", "name_abbreviation": "Wilson ex rel. Wilson v. Bellamy", "decision_date": "1992-03-03", "docket_number": "No. 9130SC245", "first_page": "446", "last_page": "470", "citations": [ { "type": "official", "cite": "105 N.C. App. 446" } ], "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": "38 ALR4th 998", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "79 ALR3d 79", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "93 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "554-56", "parenthetical": "evidence that stock car race officials started a race inadvertent to the fact that intestate's car was stalled on the track was insufficient to establish willful or wanton negligence so as to preclude the defense of contributory negligence" } ], "opinion_index": 0 }, { "cite": "244 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219557 ], "year": 1956, "pin_cites": [ { "page": "341-43", "parenthetical": "evidence that stock car race officials started a race inadvertent to the fact that intestate's car was stalled on the track was insufficient to establish willful or wanton negligence so as to preclude the defense of contributory negligence" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0334-01" ] }, { "cite": "229 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 481", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550250 ], "year": 1976, "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0481-01" ] }, { "cite": "111 S.E. 354", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "pin_cites": [ { "page": "361" } ], "opinion_index": 0 }, { "cite": "183 N.C. 282", "category": "reporters:state", "reporter": "N.C.", "year": 1922, "pin_cites": [ { "page": "314" } ], "opinion_index": 0 }, { "cite": "335 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4692102, 4687718, 4686763, 4692244, 4688249 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0537-05", "/nc/314/0537-04", "/nc/314/0537-01", "/nc/314/0537-03", "/nc/314/0537-02" ] }, { "cite": "328 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "47" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 317", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524386 ], "year": 1985, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0317-01" ] }, { "cite": "103 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "pin_cites": [ { "page": "857" } ], "opinion_index": 0 }, { "cite": "248 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624551 ], "year": 1958, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc/248/0506-01" ] }, { "cite": "388 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "quoting Hogan v. Forsyth Country Club Co., 79 N.C. App. at 491, 340 S.E.2d at 121" } ], "opinion_index": 0 }, { "cite": "326 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307503 ], "year": 1990, "pin_cites": [ { "parenthetical": "quoting Hogan v. Forsyth Country Club Co., 79 N.C. App. at 491, 340 S.E.2d at 121" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0356-01" ] }, { "cite": "378 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "235" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 431", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528074 ], "year": 1989, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0431-01" ] }, { "cite": "346 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4780326, 4777709, 4778478, 4779983, 4776954 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0334-03", "/nc/317/0334-02", "/nc/317/0334-05", "/nc/317/0334-01", "/nc/317/0334-04" ] }, { "cite": "340 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "119-20" }, { "page": "121" }, { "page": "123" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521761 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "487-88" }, { "page": "491" }, { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0483-01" ] }, { "cite": "254 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "622" } ], "opinion_index": 0 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "332 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726019, 4722090, 4724332, 4725677, 4720721 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0604-05", "/nc/313/0604-03", "/nc/313/0604-02", "/nc/313/0604-01", "/nc/313/0604-04" ] }, { "cite": "326 S.E.2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "926" } ], "opinion_index": 0 }, { "cite": "73 N.C. App, 487", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524733 ], "year": 1985, "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0487-01" ] }, { "cite": "358 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "505" } ], "opinion_index": 0 }, { "cite": "320 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731555 ], "year": 1987, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0387-01" ] }, { "cite": "294 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 385", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569668, 8569702, 8569641, 8569742, 8569722 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0385-02", "/nc/306/0385-03", "/nc/306/0385-01", "/nc/306/0385-05", "/nc/306/0385-04" ] }, { "cite": "290 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "736" }, { "page": "736", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 13", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521700 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "19" }, { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0013-01" ] }, { "cite": "407 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "329 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553572, 2553804, 2555695, 2556400, 2555318 ], "year": 1991, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0496-01", "/nc/329/0496-03", "/nc/329/0496-04", "/nc/329/0496-02", "/nc/329/0496-05" ] }, { "cite": "400 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "475", "parenthetical": "citation omitted" }, { "page": "475" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527942 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "533", "parenthetical": "citation omitted" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0529-01" ] }, { "cite": "245 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "\"The ultimate loss [or damage] to the victim ... is an issue which is irrelevant to the purpose of the criminal statute and is an issue properly within the province of the civil courts.\"" } ], "opinion_index": 0 }, { "cite": "295 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562691, 8562664, 8562644, 8562743, 8562718 ], "year": 1978, "pin_cites": [ { "parenthetical": "\"The ultimate loss [or damage] to the victim ... is an issue which is irrelevant to the purpose of the criminal statute and is an issue properly within the province of the civil courts.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0262-03", "/nc/295/0262-02", "/nc/295/0262-01", "/nc/295/0262-05", "/nc/295/0262-04" ] }, { "cite": "243 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "787", "parenthetical": "\"The ultimate loss [or damage] to the victim ... is an issue which is irrelevant to the purpose of the criminal statute and is an issue properly within the province of the civil courts.\"" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550909 ], "year": 1978, "pin_cites": [ { "page": "42", "parenthetical": "\"The ultimate loss [or damage] to the victim ... is an issue which is irrelevant to the purpose of the criminal statute and is an issue properly within the province of the civil courts.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0033-01" ] }, { "cite": "388 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "620" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 381", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521231 ], "year": 1990, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0381-01" ] }, { "cite": "298 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "194", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519692 ], "year": 1982, "pin_cites": [ { "page": "146", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0145-01" ] }, { "cite": "204 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "180" }, { "page": "180" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555853 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "328-29" }, { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0326-01" ] }, { "cite": "246 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "789" } ], "opinion_index": 0 }, { "cite": "295 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564899 ], "year": 1978, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0543-01" ] }, { "cite": "233 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "584" } ], "opinion_index": 0 }, { "cite": "292 N.C. 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570116 ], "year": 1977, "pin_cites": [ { "page": "452-53" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0451-01" ] }, { "cite": "339 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "801", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 585", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522212 ], "year": 1986, "pin_cites": [ { "page": "587", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0585-01" ] }, { "cite": "391 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "523" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525062 ], "year": 1990, "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0472-01" ] }, { "cite": "403 S.E.2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544066, 2543623, 2538005, 2541238, 2542649 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0573-05", "/nc/328/0573-01", "/nc/328/0573-03", "/nc/328/0573-04", "/nc/328/0573-02" ] }, { "cite": "397 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "764" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 641", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527378 ], "year": 1990, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0641-01" ] }, { "cite": "269 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "114" } ], "opinion_index": 0 }, { "cite": "301 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561058 ], "year": 1980, "pin_cites": [ { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0031-01" ] }, { "cite": "295 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "455" }, { "page": "455" } ], "opinion_index": 0 }, { "cite": "306 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573479 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0692-01" ] }, { "cite": "346 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "700" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359222 ], "year": 1986, "pin_cites": [ { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0470-01" ] }, { "cite": "334 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "314 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694660 ], "year": 1985, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0359-01" ] }, { "cite": "382 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "851", "parenthetical": "citing State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985) and N.C. Gen. Stat. Sec. 8C-1, R. Evid. 103 (1988)" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 442", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521391 ], "year": 1989, "pin_cites": [ { "page": "446", "parenthetical": "citing State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985) and N.C. Gen. Stat. Sec. 8C-1, R. Evid. 103 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0442-01" ] } ], "analysis": { "cardinality": 1731, "char_count": 53314, "ocr_confidence": 0.763, "pagerank": { "raw": 3.4242932615251555e-07, "percentile": 0.8787884930743066 }, "sha256": "1e2f6a4d068a050a751f1197455f80dbbedf31c9c6d451591d57f8cde2a97731", "simhash": "1:913bfea86f8f2c5a", "word_count": 8990 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and ORR concur." ], "parties": [ "MICHELLE MARIE WILSON, by and through her Guardian Ad Litem, Ronald C. Wilson, Plaintiff-Appellant v. DEAN BELLAMY, DOUG MUMMA, DONNIE BAUCOM, CHRIS BARCO, STEVE GHOULIS, EDDIE MEDFORD, JEFF GORDON, LAMBDA CHI ALPHA FRATERNITY, ZETA CHAPTER, an unincorporated association; LAMBDA CHI ALPHA FRATERNITY INCORPORATED, LCA-ALUMNI PROPERTIES, a North Carolina Limited Partnership, Defendants-Appellees" ], "opinions": [ { "text": "EAGLES, Judge.\nI\nWe note initially that the appellant did not include a copy of the court reporter\u2019s certification of delivery of transcript or a copy of the appellant\u2019s certification of service of the proposed record on appeal to the appellee in the record on appeal. (The record does include a certificate of service dated 7 March 1991 which is incorrectly designated as being for the proposed record on appeal. This certification could not have been for the proposed record on appeal as the appellee served its objections to the appellant\u2019s proposed record on appeal on 21 February 1991.) Thus, we are unable to determine from the record before us whether the proposed record on appeal or the record on appeal was timely filed. However, in our discretion, we choose to address this appeal on its merits. N.C.R. App. Pro. 2.\nII\nPlaintiff raises seventeen assignments of error. Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure provides that: \u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d Here, the plaintiff\u2019s brief fails to both set out and offer support for assignments of error numbers 5, 6, 7, 8, 9, 10, 11 and 15. Accordingly, each has been abandoned.\nIII\nIn her first, second, third and fourth assignments of error the plaintiff alleges that the trial court erred by sustaining objections of the defendant to plaintiff\u2019s questions of Mr. Ghoulis and Mr. Barco concerning alcohol use and instructions from defendant\u2019s national fraternity advisor regarding alcohol use. \u201c \u2018It is well established that an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness\u2019 testimony would have been had he been permitted to testify.\u2019 \u201d River Hills Country Club, Inc. v. Queen City Automatic Sprinkler Corp., 95 N.C. App. 442, 446, 382 S.E.2d 849, 851 (1989) (citing State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985) and N.C. Gen. Stat. Sec. 8C-1, R. Evid. 103 (1988)). Because the record before us does not disclose what the witnesses\u2019 testimony would have been had they been permitted to testify, this assignment is overruled.\nIV\nIn her twelfth and fourteenth assignments of error, plaintiff argues that the trial court erred by allowing the defense to elicit testimony from the plaintiff concerning her prior sexual experiences. Our disposition does not require that we reach the merits of this assignment. However, because this issue is likely to arise on remand we choose to address it here. Lowder v. All Star Mills, Inc., 82 N.C. App. 470, 478, 346 S.E.2d 695, 700 (1986).\nDuring defense counsel\u2019s cross-examination of the plaintiff the following exchange took place:\nQ. How long have you been having sexual relations prior to the 8th day of October, 1988 \u20147?\nMr. SmatherS: Objection.\nTHE Court: Overruled.\nMr. SMATHERS: Your Honor, he didn\u2019t ask for a specific answer. He said, \u201cHow long prior to.\u201d\nTHE COURT: Overruled.\nA. About two and a half years.\nQ. Pardon?\nA. Two and a half years.\nQ. You started when you were fourteen, I believe?\nA. Right.\nUpon further cross-examination the following exchange occurred:\nQ. LINE 21. \u201cBefore the date of October 8, 1987, had you ever before passed out because of drinking?\u201d Did I ask you that question?\nMr. SMATHERS: Objection. Relevancy.\nTHE Court: Overruled.\nA. Yes.\nQ. And did you not answer and say, \u201cOnce before\u201d?\nA. Yes.\nQ. And didn\u2019t I ask you, \u201cWhen was that?\u201d And you said, \u201cThe night that I went to the Delta Sig party after I got home.\u201d Wasn\u2019t that your question and answer you gave?\nA. Yes.\nQ. And then I asked you, \u201cThat happened after you got back to your dormitory?\u201d And your answer was, \u201cYeah, like I came home and my boyfriend had called me on the phone and I had answered the phone. But like after he called me I guess I passed out because when he got there\u201d\u2014\nMr. SmatherS: Objection.\nQ. \u2014\u201che said that he\u201d\u2014\nMR. SMATHERS: Relevance.\nTHE COURT: Overruled.\nQ. \u2014\u201che said that he undressed me and like put me in bed but I don\u2019t remember him moving me around or anything.\u201d Isn\u2019t that correct?\nA. Yes.\nPlaintiff argues that the questions in each colloquy are irrelevant and therefore inadmissible. The defense, however, argues that \u201c[t]he purpose of evoking these responses from the plaintiff was to demonstrate to the jury that the probabilities were that the plaintiff consented to alleged but unproved sexual overtures rather than rejecting them.\u201d We agree with the plaintiff.\nGenerally, all relevant evidence is admissible and all non-relevant evidence is not admissible. N.C.R. Evid. 402. \u201c \u2018Relevant evidence\u2019 means 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.\u201d N.C.R. Evid. 401.\nIn State v. Younger, 306 N.C. 692, 295 S.E.2d 453 (1982), our Supreme Court noted that at one time evidence of a prosecuting witness\u2019s general reputation for unchastity was admissible during a rape trial to attack her credibility and show her proneness to consent to sexual acts. Id. at 695, 295 S.E.2d at 455. However, the court continued and pointed out that \u201c[t]oday, \u2018common sense and sociological surveys make clear that prior sexual experiences by a woman with one man does not render her more likely to consent to intercourse with an often armed and frequently strange attacker.\u2019 \u201d Id. at 695-96, 295 S.E.2d at 455 (quoting State v. Fortney, 301 N.C. 31, 38, 269 S.E.2d 110, 114 (1980)). We note that this holding was reached only after the enactment of G.S. 8-58.6, the former rape victim shield statute, now codified in N.C.R. Evid. 412. G.S. 8-58.6 (cross-reference). We also note that our research reveals that, to date, Rule 412 has only been applied in criminal cases. However, the logic applied behind the law espoused in Younger under the auspices of G.S. 8-58.6, is of similar import in the civil arena. Nothing elicited by the defense through the objected to questions above would tend to indicate that the plaintiff gave her consent to the acts allegedly performed by the individual defendants. Furthermore, this court has specifically held that \u201ctestimony as to the victim\u2019s alcohol consumption with other people in party settings has no tendency to prove that the victim consented to sexual activity with the defendant on the day in question.\u201d State v. Cronan, 100 N.C. App. 641, 644, 397 S.E.2d 762, 764 (1990), disc. review dismissed, 328 N.C. 573, 403 S.E.2d 516 (1991). Neither the plaintiff\u2019s testimony as to the length of time she has engaged in sexual conduct nor the incident occurring after the Delta Sig party is relevant here.\nV\nIn her thirteenth assignment of error the plaintiff argues that the trial court erred by excluding from evidence the testimony of Mr. Douglas Davis (Mr. Davis), an Assistant Vice Chancellor for Student Development at Western Carolina University, as well as a letter that Mr. Davis wrote to Mr. Matt Barden (Mr. Barden), then president of the local chapter of Lambda Chi Alpha fraternity. Plaintiff argues that this evidence is \u201crelevant in both time and circumstances\u201d because it indicates \u201ca pattern of alcohol abuse and knowledge of such abuse by the fraternity and its officers. . . .\u201d We disagree and hold that the evidence is not relevant as to time or circumstance.\nGenerally, all relevant evidence is admissible and all non-relevant evidence is not admissible. N.C.R. Evid. 402. \u201c \u2018Relevant evidence\u2019 means 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.\u201d N.C.R. Evid. 401. However, \u201c[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .\u201d N.C.R. Evid. 403.\nThe substance of Mr. Davis\u2019 voir dire testimony was devoted to laying a foundation for introduction of the letter which he wrote Mr. Barden on 11 November 1986. Thus, disposition of this assignment turns upon whether the letter itself was properly admissible into evidence. The letter, in pertinent part, reads as follows:\nThis letter is to confirm our conversation of November 11, 1986 concerning recent incidents by the Lambda Chi Alpha Fraternity, i.e., providing alcohol to non-drinking age individuals (this was discussed with the fraternity by the adviser); charging admission and providing alcoholic beverages which constitutes illegal sales; alcohol being sold by the drink; posting public invitations and holding open type parties.\nAfter reciting the above incidents, Mr. Davis imposed various restrictions on the fraternity including, but not limited to, placing the fraternity on probationary status through the school\u2019s 1987 spring break.\nThis letter is neither relevant to time or circumstance. The incidents cited in Mr. Davis\u2019s letter warranting imposition of restrictions on the fraternity must have occurred before the 11 November 1986 date of the letter. The incident at issue in this case occurred on 8 October 1987 almost a full eleven months after the incidents in Mr. Davis\u2019 letter and well after the probationary status was to have terminated. Also, the letter is addressed to the then president, Mr. Matt Barden. However, Mr. Barden\u2019s name does not appear on the Lambda Chi Alpha membership roster (plaintiff\u2019s exhibit 8) purporting to cover the time of the alleged incident. The letter does not indicate whether a copy was sent to the other fraternity officers who are listed on the membership roster;\nMoreover, the incidents recited in the letter leading to the imposition of restrictions are not relevant to the circumstances of the instant case. The incidents alleged in the letter do include \u201cproviding alcohol to non-drinking age individuals.\u201d However, they also include several other activities not involved in the instant case: charging admission to parties where alcohol is sold; selling alcohol by the drink; posting public invitations; and holding open parties. Furthermore, even if the letter was deemed to be relevant, the probative value of the letter\u2019s contents would be substantially outweighed by the danger of unfair prejudice. In short, the letter would unfairly tend to lead jurors to believe that because the fraternity had done things wrong in the past, the fraternity must have done something wrong here. We agree with the trial court and overrule this assignment of error.\nVI\nBy her sixteenth assignment of error plaintiff argues that the trial court committed reversible error by concluding that Mr. Price failed to properly authenticate a voice he heard in a telephone call as that of Mr. Gordon, and then striking Mr. Price\u2019s testimony. We disagree.\n\u201cG.S. \u00a7 8C-1, Rule 901(b)(5) provides for the authentication or identification of a voice where there is \u2018[identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.\u2019 \u201d State v. Mullen, 98 N.C. App. 472, 477, 391 S.E.2d 520, 523 (1990). Here, during direct examination Mr. Price testified:\nQ. Do you know Jeff Gordon?\nA. I\u2019ve known of him. I\u2019ve met him.\nQ. And prior to October 8, 1987, had you occasion to talk with Jeff Gordon?\nA. Yes, I had.\nQ. For what purpose?\nA. I was in a band and we were inquiring if we could of the fraternity \u2014 asking if we could play at a party.\nQ. Okay. Had you occasion to talk to him on the telephone before?\nA. Before what?\nQ. October 8th of \u201987?\nA. No, I don\u2019t think so.\nQ. At the time that you talked to him, did you talk with him face to face?\nA. Yes.\nQ. And approximately how many times have you done that? A. Maybe twice.\nHowever, on cross-examination, Mr. Price testified:\nQ. And you said that the voice on the other end of this telephone call that you got said, \u201cHello, I\u2019m Jeff Gordon.\u201d\nA. I don\u2019t know if that is what he said.\nQ. Is that the substance of what he said?\nA. Yes, he identified himself.\nQ. He identified himself as Jeff Gordon?\nA. Yes.\nQ. Other than that how do you know it was Jeff Gordon?\nA. Other than that?\nQ. Yes.\nA. No.\nQ. You have no other way except for what he said to know that was Jeff Gordon?\nA. Correct.\nHere, Mr. Price initially indicated that he recognized Mr. Gordon\u2019s voice because of earlier conversations between Mr. Gordon and himself. However, he recanted that testimony when he stated that the only way he knew that the voice he heard was that of Mr. Gordon was identification the voice gave on the telephone. Mr. Price failed to show that he had an opinion as to the identity of the caller based upon hearing the voice at any time under circumstances connecting it with the speaker other than the phone call. \u201c[W]hen there is no other evidence to authenticate the identity of the speaker who placed the call except that he states his name, the evidence is inadmissible as hearsay.\u201d Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 587, 339 S.E.2d 799, 801 (1986) (citation omitted). Accordingly, this assignment is overruled.\nVII\nIn her seventeenth assignment of error the plaintiff argues that the trial court erred in granting a directed verdict in favor of each defendant on each of the plaintiff\u2019s claims for relief.\n\u201cOn a motion by a defendant for a directed verdict at [the] close of [the] plaintiff\u2019s evidence in a jury case, as here, the evidence must be taken as true and considered in the light most favorable to [the] plaintiff.\u201d Farmer v. Chaney, 292 N.C. 451, 452-53, 233 S.E.2d 582, 584 (1977). All evidentiary conflicts must be resolved in favor of the non-movant. Daughtry v. Turnage, 295 N.C. 543, 544, 246 S.E.2d 788, 789 (1978). Credibility of testimony is for the jury, not the court, and a genuine question of fact must be tried by a jury unless that right is waived. Price v. Conley, 21 N.C. App. 326, 328-29, 204 S.E.2d 178, 180 (1974). \u201c[T]he motion should be denied if there is any evidence more than a scintilla to support plaintiff\u2019s prima facie case in all its constituent elements.\u201d Wallace v. Evans, 60 N.C. App. 145, 146, 298 S.E.2d 193, 194 (1982) (citations omitted). However, if a plaintiff fails to present evidence of- each element of her claim for relief she will not survive a directed verdict motion. Felts v. Liberty Emergency Serv., 97 N.C. App. 381, 383, 388 S.E.2d 619, 620 (1990).\nCriminal Battery\nThe plaintiff argues that the individual defendants Mr. Barco, Mr. Baucom, Mr. Bellamy, Mr. Ghoulis and Mr. Mumma violated G.S. 14-33(a) and 14-33(b) and, therefore, the trial court erred in granting the individual defendants a directed verdict. We disagree.\n\u201cThe same wrongful act may constitute both a crime and a tort.\u201d 21 Am. Jur. 2d Criminal Law \u00a7 2 (1981). However, \u201cno civil right can be predicated upon a mere violation of a criminal statute, . . .; the crime is an offense against the public pursued by the sovereign, [and] the tort is a private injury which is pursued by the injured party.\u201d 74 Am. Jur. 2d Torts \u00a7 1 (1974). See, e.g., State v. Hines, 36 N.C. App. 33, 42, 243 S.E.2d 782, 787, disc. review denied and appeal dismissed, 295 N.C. 262, 245 S.E.2d 779 (1978) (\u201cThe ultimate loss [or damage] to the victim ... is an issue which is irrelevant to the purpose of the criminal statute and is an issue properly within the province of the civil courts.\u201d). This argument is without merit.\nCivil Assault\nPlaintiff also argues that the individual defendants Mr. Barco, Mr. Baucom, Mr. Bellamy, Mr. Ghoulis and Mr. Mumma committed a civil assault upon her. The plaintiffs brief states \u201c[t]he undersigned will not insult this [C]ourt with an analysis of the law on assault and battery. . . .\u201d This case, by its very essence, is an assault and battery case. \u201cThe elements of assault are intent, offer of injury, reasonable apprehension, apparent ability, and imminent threat of injury.\u201d Hawkins v. Hawkins, 101 N.C. App. 529, 533, 400 S.E.2d 472, 475, disc. review allowed, 329 N.C. 496, 407 S.E.2d 533 (1991) (citation omitted). \u201cThe gist of an action for assault is apprehension of harmful or offensive contact.\u201d Morrow v. Kings Department Stores, Inc., 57 N.C. App. 13, 19, 290 S.E.2d 732, 736, disc. review denied, 306 N.C. 385, 294 S.E.2d 210 (1982). Here, during cross-examination the plaintiff testified as follows:\nQ. Not that you remember. Now, while we\u2019re on the subject of that, you have no recollection of the happening of any of the things that you\u2019ve accused the members of Al \u2014 of Lambda Chi Alpha do you?\nA. No.\nThis testimony is an admission by the plaintiff that she did not have any apprehension of harmful or offensive contact. This assignment is overruled.\nCivil Battery\nThe plaintiff also alleges that the individual defendants Mr. Barco, Mr. Baucom, Mr. Bellamy, Mr. Ghoulis and Mr. Mumma committed a civil battery upon her. \u201cThe elements of battery are intent, harmful or offensive contact, causation, and lack of privilege.\u201d Hawkins, 101 N.C. App. at 533, 400 S.E.2d at 475. \u201cThe gist of an action for battery is \u2018the absence of consent to . . . contact on the part of the plaintiff.\u2019 \u201d Morrow, 57 N.C. App. at 19, 290 S.E.2d at 736 (citation omitted). However, a person who is unconscious or insensibly drunk cannot give consent to physical contact. See, e.g., State v. Moorman, 320 N.C. 387, 392, 358 S.E.2d 502, 505 (1987); and State v. Aiken, 73 N.C. App, 487, 499, 326 S.E.2d 919, 926, disc. review denied and appeal dismissed, 313 N.C. 604, 332 S.E.2d 180 (1985).\nHere, the plaintiff failed to present any evidence that the individual defendants Mr. Barco, Mr. Bellamy, or Mr. Mumma ever made any physical contact with her. The plaintiff has no personal recollection of being touched by any of the men. The men did not admit touching her, and no one testified that any of them touched her. Accordingly, this assignment is overruled.\nThe plaintiff did, however, present testimony that both Mr. Ghoulis and Mr. Baucom touched her and participated in sexually motivated physical conduct with her. Indeed, during their testimony both men admitted touching the plaintiff. Both men also testified that the plaintiff initiated the touching and that the touching was consensual. The plaintiff, on the other hand, claimed that she was unconscious and that any contact was non-consensual. She testified:\nQ. And what\u2019s the next thing you remember after getting up to the top of the stairs?\nA. I remember that the room was really dark. It was like totally black. I remember I was just lying there or leaning back or something and just shaking my head and saying, \u201cNo, no.\u201d It was just \u2014 I couldn\u2019t see anything, I just remember just, \u201cNo, no.\u201d\nQ. Okay. After saying that, what\u2019s the next thing you remember?\nA. I remember coming to again and seeing like just a picture of guys standing in the doorway, just like I came to and saw them and then like I went right back out.\nQ. When you say, \u201ccame to,\u201d what do you mean by that?\nA. I was unconscious. I was \u2014I didn\u2019t know what was going on. It was just like all the sudden a spot that I can remember, just like I woke up and then went right back to sleep.\nHere, the plaintiff presented evidence of each element of civil battery, including conflicting testimony as to whether the plaintiff was conscious and able to give her consent to the admitted contacts by Mr. Ghoulis and Mr. Baucom. The crux of the matter, then, is the determination of whether the plaintiff consented to the contacts. That determination rests solely on the credibility of the witnesses, and is an issue properly presented to the jury, not the court. See Price, 21 N.C. App. at 329, 204 S.E.2d at 180. Accordingly, it was error for the trial court to direct a verdict in favor of the individual defendants Mr. Ghoulis and Mr. Baucom on the civil battery claim, and we remand for a new trial on these claims.\nIntentional Infliction of Emotional Distress\nThe plaintiff next claims that each of the individual defendants (Mr. Baucom, Mr. Bellamy, Mr. Ghoulis, Mr. Gordon, Mr. Med-ford and Mr. Mumma) intentionally inflicted emotional distress upon her. She also argues that the individual defendants Mr. Medford and Mr. Gordon intentionally inflicted emotional distress upon her \u201con behalf.of the fraternity.\u201d\nThe tort of intentional infliction of mental or emotional distress was formally recognized in North Carolina by the decisions of our Supreme Court in Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). The claim exists \u201cwhen a defendant\u2019s \u2018conduct exceeds all bounds usually tolerated by decent society\u2019 and the conduct \u2018causes mental distress of a very serious kind.\u2019 \u201d Id. at 196, 254 S.E.2d at 622, quoting Prosser, The Law of Torts \u00a7 12, p. 56 (4th Ed. 1971). The elements of the tort consist of: (1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress. Dickens v. Puryear, supra.\nThe tort may also exist where defendant\u2019s actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress. Recovery may be had for the emotional distress so caused and for any other bodily harm which proximately results from the distress itself. Id. at 452-53, 276 S.E.2d at 355.\nHogan v. Forsyth Country Club Co., 79 N.C. App. 483, 487-88, 340 S.E.2d 116, 119-20, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). The issue, here, is whether the plaintiff presented sufficient evidence of each element of the tort of intentional infliction of emotional distress to withstand the defendants\u2019 directed verdict motions.\nThe standard for determining whether conduct is extreme or outrageous is well settled in this jurisdiction.\nIt is a question of law for the court to determine, from the materials before it, whether the conduct complained of may reasonably be found to be sufficiently outrageous as to permit recovery .... However, once conduct is shown which may be reasonably regarded as extreme and outrageous, it is for the jury to determine, upon proper instructions, whether the conduct complained of is, in fact, sufficiently extreme and outrageous to result in liability.\nBrown v. Burlington Industries, Inc., 93 N.C. App. 431, 436, 378 S.E.2d 232, 235 (1989), review dismissed, 326 N.C. 356, 388 S.E.2d 769 (1990) (quoting Hogan v. Forsyth Country Club Co., 79 N.C. App. at 491, 340 S.E.2d at 121).\nWe first address the claims against the defendants Mr. Ghoulis and Mr. Baucom. The evidence when taken as true and considered in the light most favorable to the plaintiff tends to show the following: that Mr. Ghoulis knew that the plaintiff had been drinking alcoholic beverages and that she \u201ccouldn\u2019t make a judgment call as to what she wanted to do\u201d; that both Mr. Ghoulis and Mr. Baucom engaged in kissing and heavy petting with the plaintiff in the presence of others; and that the plaintiff was unconscious during physical contact. We do not condone the conduct alleged here. However, the record before us does not show conduct \u201cso outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.\u201d Hogan, 79 N.C. App. at 493, 340 S.E.2d at 123 (quoting Restatement of Torts, \u00a7 46 comment (d) (1965)). Rather, the record only presents some evidence of a sexual battery, and we are unwilling to hold on this record that a sexual battery, standing alone, constitutes the required extreme and outrageous conduct. This assignment is overruled.\nSimilarly, the plaintiff claims that Mr. Bellamy, Mr. Gordon, Mr. Medford and Mr. Mumma exhibited extreme and outrageous conduct. However, the plaintiff has failed to present sufficient evidence in the record to show that each exhibited the required extreme and outrageous conduct. This assignment of error is likewise overruled.\n. Negligence\nFinally, the plaintiff argues that the trial court \u00e9rred in directing a verdict against her on the negligence claims she raised against the Zeta Chapter of Lambda Chi Alpha, Lambda Chi Alpha Fraternity, Inc. and LCA Alumni Properties. We disagree.\nAssuming arguendo, but without deciding, that the plaintiff stated valid negligence claims against each of the defendants, we hold that the plaintiff was contributorily negligent as a matter of law.\nContributory negligence is such an act or omission on the part of the plaintiff amounting to a want of ordinary care concurring and cooperating with some negligent act or omission on the part of the defendant as makes the act or omission of the plaintiff a proximate cause or occasion of the injury complained of.\nAdams v. Board of Education, 248 N.C. 506, 511, 103 S.E.2d 854, 857 (1958). Here, the plaintiff admitted that she voluntarily consumed half a bottle of champagne, at least five or six beers and a shot of Southern Comfort liquor. In her own words, she became \u201cextremely intoxicated\u201d and at some point passed into a state of unconsciousness. \u201cPlaintiff\u2019s act of consuming sufficient quantities of intoxicants to [cause her to become unconscious] amounts to \u2018a want of ordinary care\u2019 which proximately caused [any injury she suffered and constitutes] contributory negligence as a matter of law.\u201d Brower v. Robert Chappell & Assocs., Inc., 74 N.C. App. 317, 320, 328 S.E.2d 45, 47, disc. review denied, 314 N.C. 537, 335 S.E.2d 313 (1985).\nHowever, during oral argument the plaintiff argued that even if she was contributorily negligent as a matter of law, the defendants\u2019 actions amounted to willful and wanton negligence and therefore survive the plaintiff\u2019s contributory negligence. It is well established that a party\u2019s contributory negligence will not preclude recovery for injuries proximately caused by other\u2019s willful and wanton negligence. Fry v. Southern Public Utilities Co., 183 N.C. 282, 314, 111 S.E. 354, 361 (1922). \u201c \u2018Wilful and wanton\u2019 negligence is conduct which shows either a deliberate intention to harm, or an utter indifference to, or conscious disregard for, the rights or safety of others.\u201d Siders v. Gibbs, 31 N.C. App. 481, 485, 229 S.E.2d 811, 814 (1976).\nHere, the plaintiff has failed to present sufficient evidence to support a claim of willful or wanton negligence. Rather, at best, the plaintiff has only shown that the defendants may have been inattentive or inadvertent to the fact that alcohol was being served to minors at the Lambda Chi Alpha fraternity house. Evidence of mere inadvertence will not preclude the defense of contributory negligence. See, e.g., Blevins v. France, 244 N.C. 334, 341-43, 93 S.E.2d 549, 554-56 (1956) (evidence that stock car race officials started a race inadvertent to the fact that intestate\u2019s car was stalled on the track was insufficient to establish willful or wanton negligence so as to preclude the defense of contributory negligence). This assignment is overruled.\nRemaining Claims\nThe plaintiff has abandoned any remaining claims for which the trial court directed a verdict in favor of the defendants by failure to offer reason, argument or authority in her brief. N.C.R. App. P. 28(b)(5).\nVIII\nIn conclusion, we hold that the trial court correctly entered directed verdict on each cause of action except the civil battery actions against Mr. Ghoulis and Mr. Baucom. Accordingly, we reverse the trial court\u2019s entry of directed verdict against the plaintiff on those two claims and remand for a new trial. -\nAffirmed in part; reversed and remanded in part.\nJudges JOHNSON and ORR concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Patrick U. Smathers, P.A., by Patrick U. Smothers, for plaintiff-appellant.", "Morris, Bell & Morris, by William C. Morris, Jr. and William C. Morris, III, for defendant-appellees." ], "corrections": "", "head_matter": "MICHELLE MARIE WILSON, by and through her Guardian Ad Litem, Ronald C. Wilson, Plaintiff-Appellant v. DEAN BELLAMY, DOUG MUMMA, DONNIE BAUCOM, CHRIS BARCO, STEVE GHOULIS, EDDIE MEDFORD, JEFF GORDON, LAMBDA CHI ALPHA FRATERNITY, ZETA CHAPTER, an unincorporated association; LAMBDA CHI ALPHA FRATERNITY INCORPORATED, LCA-ALUMNI PROPERTIES, a North Carolina Limited Partnership, Defendants-Appellees\nNo. 9130SC245\n(Filed 3 March 1992)\n1. Appeal and Error \u00a7 322 (NCI4th)\u2014 no certification of delivery of transcript or service of proposed record \u2014no way to determine timeliness\nThe Court of Appeals exercised its discretion to hear an appeal even though appellant did not include a copy of the court reporter\u2019s certification of delivery of transcript or a copy of the certification of service of the proposed record on appeal, so that the court was unable to determine whether the proposed record or record on appeal was timely filed. N.C.R. App. P. 2.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 292, 495.\n2. Appeal and Error \u00a7 418 (NCI4th)\u2014 assignments of error \u2014not set out in brief \u2014 no supporting authority \u2014 abandoned\nAssignments of error which were not set out in the plaintiff\u2019s brief and for which no support was offered were abandoned. N.C.R. App. P. 28(b)(5).\nAm Jur 2d, Appeal and Error \u00a7\u00a7 649, 650.\n3. Evidence and Witnesses \u00a7 694 (NCI4th)\u2014 exclusion of evidence \u2014 no offer of proof \u2014 assignment of error overruled\nAn assignment of error to the exclusion of evidence was overruled where the record did not disclose what the witnesses\u2019 testimony would have been had they been permitted to testify. N.C.G.S. \u00a7 8C-1, Rule 103.\nAm Jur 2d, Appeal and Error \u00a7 604.\n4. Evidence and Witnesses \u00a7 2891 (NCI4th)\u2014 sexual battery\u2014 action for damages \u2014victim\u2019s prior sexual history and prior drinking incident \u2014 not admissible\nIn an action for damages arising from an alleged gang rape at a fraternity party, reversed on other grounds, the trial court should not have allowed the defense on cross examination to elicit testimony from plaintiff concerning her prior sexual experiences and a prior incident of passing out after drinking at a fraternity party. Although N.C.G.S. \u00a7 8C-1, Rule 412 has been applied to date only in criminal cases, the logic is of similar import in the civil arena and nothing elicited by the defense here through these questions would tend to indicate that the plaintiff gave her consent to the acts allegedly performed by the individual defendants. Furthermore, this court has specifically held that testimony as to the victim\u2019s alcohol consumption with other people in party settings has no tendency to prove that the victim consented to sexual activity with the defendant on the day in question.\nAm Jur 2d, Evidence \u00a7 336; Rape \u00a7\u00a7 119, 120.\n5. Evidence and Witnesses \u00a7 1942 (NCI4th)\u2014 sexual assault at fraternity party \u2014letter regarding alcohol abuse at fraternity\u2014 not relevant to time or circumstance\nA letter written to a fraternity president by an Assistant Vice Chancellor reciting various alcohol abuses and placing the fraternity on probationary status was not relevant to time or circumstance in an action for damages arising from an alleged gang rape at the fraternity where the incident at issue in this case occurred almost a full eleven months after the incidents in the letter and well after the probationary status was to have terminated, and, while the incidents alleged in the letter include providing alcohol to non-drinking age individuals, they include several other activities not included in this case. Furthermore, even if the letter was deemed to be relevant, the probative value would be substantially outweighed by the danger of unfair prejudice.\nAm Jur 2d, Evidence \u00a7 298.\n6. Evidence and Witnesses \u00a7 154 (NCI4th)\u2014 telephone conversation-identification of voice \u2014not properly authenticated\nThe trial court did not err by concluding that a witness had failed to properly authenticate a voice he had heard in a telephone call as that of one of the defendants where the witness failed to show that he had an opinion as to the identity of the caller based upon hearing the voice at any other time under circumstances connecting it with the speaker. N.C.G.S. \u00a7 8C-1, Rule 901(b)(5).\nAm Jur 2d, Evidence \u00a7\u00a7 381, 383.\nSufficiency of identification of participants as prerequisite to admissibility of telephone conversation in evidence. 79 ALR3d 79.\n7. Assault and Battery \u00a7 2 (NCI4th)\u2014 criminal battery \u2014 civil action \u2014 directed verdict\nThe trial court did not err in granting a directed verdict for several of the individual defendants in a civil action arising from an alleged gang rape even though plaintiff argued that defendants violated N.C.G.S. \u00a7 14-33(a) and (b). The same act may constitute both a crime and a tort, but no civil right can be predicated upon a mere violation of a criminal statute.\nAm Jur 2d, Assault and Battery \u00a7 119.\n8. Assault and Battery \u00a7 2 (NCI4th)\u2014 civil assault \u2014 unconscious victim \u2014directed verdict for defendants\nThe trial court did not err by granting a directed verdict for defendants on a claim for civil assault arising from an alleged gang rape at a fraternity party where plaintiff admitted that she had no recollection of the happening of the things of which she had accused defendants. That testimony was an admission that plaintiff had no apprehension of harmful or offensive contact, which is the gist of an action for civil assault.\nAm Jur 2d, Assault and Battery \u00a7\u00a7 110, 111, 119, 213.\n9. Assault and Battery \u00a7 2 (NCI4th|\u2014 gang rape \u2014civil battery\u2014 sufficiency of evidence\nThe trial court correctly granted a directed verdict for some of the individual defendants on a claim for civil battery arising from an alleged gang rape at a fraternity where plaintiff failed to present any evidence that those defendants ever made any physical contact with her, and incorrectly granted directed verdict for other defendants who testified that plaintiff initiated their touching and that the touching was consensual, while plaintiff claimed that she was unconscious and that any contact was nonconsensual. The determination of whether plaintiff consented to the contacts rests solely on the credibility of the witnesses and is properly presented to the jury.\nAm Jur 2d, Assault and Battery \u00a7 213; Rape \u00a7 119.\n10. Trespass \u00a7 2 (NCI3d)\u2014 sexual battery \u2014 intentional infliction of emotional distress \u2014 not extreme and outrageous conduct\nThe trial court did not err by granting a directed verdict for defendants on a claim for intentional infliction of emotional distress arising from an alleged gang rape at a fraternity where the evidence showed that one of the defendants knew that plaintiff had been drinking and couldn\u2019t make a judgment as to what she wanted to do and that defendant and one other engaged in kissing and heavy petting with the plaintiff in the presence of others. The record only presents some evidence of a sexual battery, and the Court of Appeals was not willing to hold, on this record, that a sexual battery standing alone constitutes the required extreme and outrageous conduct.\nAm Jur 2d, Negligence \u00a7\u00a7 281, 308.\nModern status of intentional infliction of mental distress as independent tort: \u201coutrage.\u201d 38 ALR4th 998.\n11. Negligence \u00a7 35.1 (NCI3d>\u2014 sexual battery \u2014 negligence of fraternity \u2014 contributory negligence of plaintiff\nThe trial court did not err by granting a directed verdict for a fraternity on negligence claims arising from a sexual battery at a fraternity party where, assuming that plaintiff stated valid negligence claims, plaintiff was contributorily negligent as a matter of law where plaintiff admitted that she voluntarily consumed half a bottle of champagne, at least five or six beers, and a shot of Southern Comfort liquor. Plaintiff failed to present sufficient evidence to support a claim for willful or wanton negligence in that, at best, plaintiff only showed that defendants may have been inattentive or inadvertent to the fact that alcohol was being served to minors.\nAm Jur 2d, Assault and Battery \u00a7 153; Negligence \u00a7\u00a7 859-861, 942, 943.\nAPPEAL by plaintiff from judgment entered 23 August 1990 by Judge J. Marlene Hyatt, JACKSON County Superior Court. Heard in the Court of Appeals 4 December 1991.\nOn 5 May 1988 Michelle Wilson (plaintiff) filed this action against the defendants. She alleged that the individual defendants Chris Barco (Mr. Barco), Donnie Baucom (Mr. Baucom), Dean Bellamy (Mr. Bellamy), Steve Ghoulis (Mr. Ghoulis) and Doug Mumma (Mr. Mumma) committed an assault and battery, sexual assault and battery, and gang rape upon her, and that each intentionally inflicted emotional distress upon her. The plaintiff also alleged that individual defendants Jeff Gordon (Mr. Gordon) and Eddie Medford (Mr. Medford) intentionally inflicted emotional distress upon her. The plaintiff further alleged that the Zeta Chapter of Lambda Chi Alpha Fraternity and Lambda Chi Alpha Fraternity, Inc. were negligent in that they served alcohol to minors; failed to properly govern the Zeta Chapter and those attending a fraternity party on the evening of the 8th and into the morning of the 9th of October 1987; and that the fraternity violated Chapter 18B of the North Carolina General Statutes and the common law. Finally, plaintiff alleged that LCA Alumni Properties negligently failed to prevent the Zeta Chapter from serving alcohol to minors. At the close of the plaintiffs evidence a motion for directed verdict was granted on behalf of each defendant. Plaintiff appeals.\nThe evidence, taken in the light most favorable to the plaintiff, shows the following: The plaintiff, a seventeen year old freshman at Western Carolina University, participated in a sorority \u201crush\u201d and pledged Alpha Xi Delta Sorority. During the pledge process the plaintiff learned that her \u201cbig sister\u201d from the sorority was Leslie Holshouser (Ms. Holshouser). Ms. Holshouser gave the plaintiff \u201ca bottle of champagne as a gift of celebration.\u201d The plaintiff and other sorority members then \u201cwent over to the Lambda Chi House for a party or celebration.\u201d Prior to arrival at the Lambda Chi House, the plaintiff had not consumed any alcoholic beverages that day.\nUpon arrival at the Lambda Chi House, plaintiff and her sorority sisters went inside. A short while later, plaintiff and Ms. Holshouser went outside to open the bottle of champagne. The two then returned inside, drank the champagne, and began socializing with their sorority sisters and the fraternity members. The plaintiff then engaged in two beer \u201cchugging contests\u201d during which she drank \u201ctwo beers really fast.\u201d After the contests the plaintiff socialized some more, danced, and consumed \u201cabout three or four\u201d more beers. Fraternity members served the beer, which was provided by both the sorority and the fraternity. The plaintiff was never asked to present an I.D. card indicating her age. The plaintiff then noticed people going up and down the fraternity house stairs. She went upstairs where she \u201chad a shot of Southern Comfort\u201d liquor, returned downstairs, socialized, drank more beer, and began dancing with Phillip Brooks (Mr. Brooks). The plaintiff and Mr. Brooks danced for approximately fifteen or twenty minutes, and the two went outside to talk where it was cooler. After a short conversation, Mr. Brooks told the plaintiff that he was engaged and asked if she would mind going upstairs with him so that \u201cpeople wouldn\u2019t bother him about him talking to another girl when he had a girlfriend.\u201d The plaintiff agreed.\nAfter climbing the stairs, the plaintiff had only vague recollections of what transpired. She testified: \u201cI remember the room was really dark. It was like totally black. I remember I was just lying there or leaning back or something and just shaking my head and saying, \u2018No, no.\u2019 It was just \u2014 I couldn\u2019t see anything, I just remember just, \u2018No, no.\u2019 \u201d The plaintiff then remembers \u201ccoming to again and seeing like just a picture of guys standing in the doorway, just like I came to and saw them and then like I went right back out.\u201d The plaintiff also remembers waking up while lying on a couch. She did not have a shirt on, her bra was either fastened or hanging on her, and her panties were missing. Mr. Barco \u201ccame over\u201d and she asked him to take her home. At that time the plaintiff \u201cwas extremely intoxicated. . . .\u201d Mr. Barco gave her a shirt to wear and asked Mr. Bellamy to take her home. Before the plaintiff left, however, Mr. Barco found her shirt, returned it' to her and retrieved his own shirt.\nWhen the plaintiff arrived back at her dorm she was still intoxicated and felt \u201c[v]ery confused, scared, totally helpless. [She] just felt terrible[,]\u201d and she went to bed. When the plaintiff awoke, she was still feeling the effects of alcohol. Her \u201cwhole body ached . . . . like when you have the flu . . . .\u201d The plaintiff got up, dressed and left to go to class. She met Ms. Holshouser in the hallway and the two conversed. Afterwards, the plaintiff \u201cfelt worse. [She] was scared, confused, [and] felt dirty.\u201d She remained in her room for most of the rest of the day.\nMr. Mark Buchanan, then a criminal investigator with the Jackson County Sheriff\u2019s Department, testified over objection that the plaintiff told him that Ms. Holshouser told her that Mr. Ghoulis had told Ms. Holshouser, \u201cthat he and some of his friends at the fraternity had done something at the party that he had not done in a long time. She said that he told her that he and a friend of his named Donnie Baucom and some other boys had gang banged a sorority sister of [hers] that was wearing a pink skirt. . . . [B]oth knew that [the plaintiff] was the girl.\u201d The plaintiff also told her boyfriend that \u201csomething terrible had happened to her. . . . She wasn\u2019t sure what it was, but she was pretty sure she had been raped and she didn\u2019t know to what degree.\u201d However, the plaintiff admitted that she has no personal recollection of any sexual intercourse or other battery which she has accused the defendants of committing upon her.\nPhillip Price (Mr. Price), the plaintiff\u2019s boyfriend, testified that after talking to the plaintiff he confronted Mr. Barco. He asked Mr. Barco \u201cif he heard [the plaintiff] speaking or talking or making any sort of noise. And [Mr. Barco] said all he heard was a few moans and groans and there were no words spoken.\u201d Mr. Price also testified that when he talked to Mr. Baucom, the following colloquy took place.\n\u201cLook, man, I don\u2019t know what happened. You know, I\u2019m confused about the whole thing. I don\u2019t know what happened.\u201d [Mr. Price] said, \u201cWell, what do you know that happened?\u201d And [Mr. Baucom] said he went up [sic] the room where [the plaintiff] was and he walked in the room and there was no one else there but there was a girl lying in [sic] the couch, covered in a blanket. He could not see her face. And he said her panties were lying on the floor. He picked up the panties and went out into the chapter room and swung them around and showed them to his brothers. And then they followed him back into the room. And then he told me that he pulled his pants down a little bit and then he told the other, he said, \u201cWouldn\u2019t it be great if she was awake and (then we could do it.\u201d) And then he pulled his pants back up and he said he went back downstairs to get some more beer and was down there for quite awhile. Came back upstairs and the next thing he saw was [the plaintiff] coming from the rest room and coming back through the chapter room.\nThe plaintiff did not visit a doctor the day after the party to determine whether there was semen or sperm in her vaginal area. However, she did visit a doctor about a week later and found out that she was not pregnant and that she did not have any sexual disease. The plaintiff also sought counseling. Dr. Kevin Roberts, a psychiatrist, diagnosed the plaintiff as having post-traumatic stress disorder, which in his opinion was caused by events that transpired at the fraternity house.\nMr. Ghoulis testified that he was a member of Lambda Chi Alpha and that he lived in the Lambda Chi Alpha fraternity house. He arrived at the party around 10:30 p.m. and drank approximately four beers between 10:30 p.m. and 2:00 a.m. At 2:00 or 2:30 a.m. Mr. Ghoulis decided to go upstairs to his room. He walked upstairs and went into Mr. Bellamy\u2019s and Mr. Barco\u2019s room, because he was told that the plaintiff was there. Mr. Ghoulis did not know the plaintiff personally but had seen her earlier that night and knew who she was. Mr. Ghoulis sat down on the couch beside the plaintiff and began talking with her. The plaintiff was coherent, sitting up and wearing a pink dress and a sweatshirt. Mr. Baucom, Mr. Mumma, Mr. Barco and Mr. Bellamy were also in the room. Mr. Ghoulis asked the plaintiff \u201cif she wanted to go downstairs and have \u2014 continue with the partying, or if she wanted to go home, or what she wanted to do.\u201d She said that she did not want to do either one and began kissing Mr. Ghoulis. The other men continued talking. The kissing became more intense, and \u201c[the plaintiff] proceeded to take her underwear off. [Mr. Ghoulis] gave [a] little assistance, but not much.\u201d The two became \u201cmore involved.\u201d The plaintiff grabbed Mr. Ghoulis\u2019s penis, unbuttoned Mr. Ghoulis\u2019s pants, and helped Mr. Ghoulis partially disrobe. The two lay down side by side on a couch facing each other. While \u201cher skirt was up and [his] pants were loosened down they moved their hips together.\u201d Mr. Ghoulis did not penetrate the plaintiff\u2019s vagina. However, the heavy petting continued until Mr. Ghoulis ejaculated. Mr. Ghoulis did not know where his spermatozoa went and did not attempt to clean any up. The plaintiff\u2019s clothing was later determined to have spermatozoa on it. After he ejaculated Mr. Ghoulis left the room.\nMr. Barco testified that he arrived at the party at approximately 10:00 p.m., and drank about five beers before he left at 2:00 or 3:00 a.m. While there, he saw minors drinking alcoholic beverages. After Mr. Barco left the party, he went upstairs to his room. Mr. Ghoulis, Mr. Baucom, Mr. Mumma, Mr. Bellamy and the plaintiff were already there. The plaintiff was clothed and sitting on a sofa. Mr. Barco \u201csat around and talked for awhile. . . . and [then] noticed [Mr. Ghoulis and the plaintiff] kissing.\u201d Mr. Ghoulis and the plaintiff began \u201ctouching each other pretty heavily.\u201d Mr. Barco and the others \u201cjust sat there and watched them and then they . . . got beside each other on the couch.\u201d \u201cThey began ... to pull each other\u2019s clothes off, started touching each other and everything.\u201d Mr. Ghoulis touched the plaintiff \u201c[o]n the breasts and on her butt and stuff like that.\u201d The petting progressed. The plaintiff\u2019s shirt and skirt came up, her panties came off and Mr. Ghoulis\u2019 pants came down. Both Mr. Ghoulis and the plaintiff took off her panties. The two \u201cwere lying beside each other and just moving against each other.\u201d \u201cAll the sudden [Mr. Ghoulis] sat up and excused himself and he walked out.\u201d Mr. Barco then left. When he left the plaintiff was sitting up on the couch, had her skirt on and her shirt was pulled up. Mr. Barco later saw the plaintiff in the hallway. She was wearing one of his shirts and she asked him where the bathroom was located. Mr. Barco told the plaintiff where that bathroom was and that he would try to find her shirt. Mr. Barco found her shirt in his room, returned it to her and retrieved his own shirt. The plaintiff then asked Mr. Barco for a ride home. He declined because he had been drinking but got Mr. Bellamy to drive her home. Mr. Barco did not kiss or touch the plaintiff and did not see Mr. Baucom kiss or touch the plaintiff. He also did not see anyone ejaculate on her sweatshirt.\nMr. Mumma testified that he attended the party and drank fewer than four beers. After being at the party for about thirty minutes, Mr. Mumma went upstairs to the \u201cChapter room.\u201d Mr. Baucom noticed someone in Mr. Bellamy\u2019s and Mr. Barco\u2019s room. Mr. Mumma followed Mr. Barco, Mr. Bellamy and Mr. Ghoulis into the room. The plaintiff was fully clothed and seated on the sofa. Mr. Ghoulis sat next to the plaintiff. The plaintiff began \u201cmaking advances towards [Mr. Ghoulis] and it was kind of mutual.\u201d \u201c[The plaintiff] took her panties off.\u201d Mr. Mumma did not remember whether the plaintiff\u2019s shirt was pulled up. Mr. Mumma continued talking with his friends and \u201cmaking fun of\u201d Mr. Ghoulis. Mr. Ghoulis then got up and left the room. Mr. Mumma and the others went out into the hall. The plaintiff also left, went to the bathroom and then returned to the same room. Mr. Mumma and the others returned to the room after the plaintiff. Mr. Baucom sat next to the plaintiff on the sofa. The plaintiff \u201cwas wearing a T-shirt or something.\u201d The plaintiff began \u201cmaking moves towards [Mr. Baucom].\u201d \u201cThey were kissing and hugging and touching each other.\u201d The plaintiff then got up and went to the restroom again. Mr. Mumma returned to his room and went to sleep. Mr. Mumma did not touch the plaintiff and did not see anyone ejaculate on her sweatshirt or skirt.\nMr. Bellamy testified that he attended the party but did not drink because he was the designated driver. During the evening, Mr. Baucom told Mr. Bellamy that someone was in his and Mr. Barco\u2019s room. Mr. Bellamy and some other men then went into the room. When he walked in the plaintiff and Mr. Ghoulis were talking to each other. They started kissing and the plaintiff began \u201cputting the moves\u201d on Mr. Ghoulis. The plaintiff pulled Mr. Ghoulis\u2019 pants down and started \u201cplaying with him.\u201d Mr. Ghoulis \u201csuccumbed.\u201d The plaintiff then got up, went to the bathroom, came out, \u201cstopped and looked at [the men,] . . . smiled and then strutted her way back into [Mr. Bellamy\u2019s] room.\u201d Mr. Mumma, Mr. Baucom and Mr. Bellamy followed her. Once inside, Mr. Baucom began talking to the plaintiff, and the two began kissing. The plaintiff then got up and went to the bathroom again. Mr. Bellamy later drove her home. Mr. Bellamy did not see anyone ejaculate on the plaintiff\u2019s shoulder.\nAccording to Mr. Baucom\u2019s answers to the plaintiff\u2019s interrogatories, Mr. Baucom first saw the plaintiff when he walked by a fraternity house room. Because there had been a number of thefts from fraternity rooms, Mr. Baucom was \u201cworried about her being in . . . [the room] by herself.\u201d Mr. Baucom told the people that lived in the room that someone was in their room. Five people then went in the room and one sat beside the plaintiff. Mr. Baucom and some others went to another room. The plaintiff then came out and asked where the bathroom was located. \u201c[W]hen she came out of the bathroom she returned to the room where she had been [before]. The people that lived in the room then told [Mr. Baucom] that they wanted the plaintiff to leave so that they could go to bed. Mr. Baucom volunteered to ask the plaintiff to leave. When [Mr. Baucom] went in the room, [he] sat down beside [the plaintiff] and was trying to ask her to leave. At some point [the plaintiff] started kissing on [his] neck and holding [him]. She was persistent at kissing [him] so a couple of times [he] responded to her kisses. She then pulled up her sweater and lifted up her arms. [Mr. Baucom] understood that she wanted [him] to help her take off her sweater so [he] did. She made no disapproval at any time . . . The plaintiff then got up and went to the bathroom again. When she returned she was ready to leave. Mr. Baucom gave her her sweater and one of the other men took her home.\nMr. James Medlin (Mr. Medlin) testified that he is both a limited partner in LCA Properties, which owned and leased the fraternity house to the Zeta Chapter of Lambda Chi Alpha at Western Carolina University, and an officer of the corporate general partner of LCA Alumni Properties, Lambda Chi Alpha Housing Corporation. Mr. Medlin was also the Lambda Chi Alpha fraternity advisor, the High Pi, at the time of the alleged incident. Because Mr. Medlin was the High Pi, he is a member of the High Zeta, the governing body of the local fraternity chapter. It is the duty of the High Zeta to enforce the laws and policies of the national fraternity including a national fraternity resolution that all local fraternal activities involving alcoholic beverages comply with institutional policies and state and local law.\nMr. Medlin testified that he knew that the local drinking age was twenty-one at the time of the alleged incident. However, he could not say whether he had seen anyone under the legal drinking age drink alcohol at a Lambda Chi Alpha party because he did not know how old everyone was. Mr. Medlin also testified that he did not make it a practice to check every fraternity party to insure that the fraternity complied with state and local liquor laws. However, if he was at a party he would conduct spot checks to see that the fraternity was in compliance. Mr. Medlin also testified that he did \u201cstep[] on a soapbox and explain[] to [the fraternity members] that they must be responsible and be alert and attune to the laws of the State and- the Federal Government, . . . and the National Fraternity.\u201d Mr. Medlin did not know whether other partners of LCA Alumni Properties took any action to check consumption of alcohol. Mr. Barco testified that minors, including himself, drank in front of Mr. Medlin at Lambda Chi Alpha parties.\nAt the conclusion of the plaintiffs evidence, each defendant moved for a directed verdict. Plaintiff appeals from directed verdicts entered in favor of the defendants.\nPatrick U. Smathers, P.A., by Patrick U. Smothers, for plaintiff-appellant.\nMorris, Bell & Morris, by William C. Morris, Jr. and William C. Morris, III, for defendant-appellees." }, "file_name": "0446-01", "first_page_order": 474, "last_page_order": 498 }