{ "id": 12126569, "name": "STATE OF NORTH CAROLINA v. JERRY WAYNE ROBERTSON", "name_abbreviation": "State v. Robertson", "decision_date": "1994-06-21", "docket_number": "No. 9318SC743", "first_page": "249", "last_page": "263", "citations": [ { "type": "official", "cite": "115 N.C. App. 249" } ], "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": "20 ALR3d 684", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "25 ALR4th 934", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "298 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "307 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562412 ], "year": 1983, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0370-01" ] }, { "cite": "308 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "258" } ], "opinion_index": 0 }, { "cite": "309 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767980 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0549-01" ] }, { "cite": "345 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1986, "pin_cites": [ { "page": "221" }, { "page": "281" }, { "page": "221" } ], "opinion_index": 0 }, { "cite": "317 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779755 ], "year": 1986, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0275-01" ] }, { "cite": "423 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "739" } ], "opinion_index": 0 }, { "cite": "333 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548865 ], "year": 1992, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0156-01" ] }, { "cite": "337 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "156" }, { "page": "156" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522281 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "495" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0493-01" ] }, { "cite": "297 S.E.2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "307 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561315 ], "year": 1982, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0224-01" ] }, { "cite": "764 F.2d 1493", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 378004 ], "year": 1985, "pin_cites": [ { "page": "1499" } ], "opinion_index": 0, "case_paths": [ "/f2d/764/1493-01" ] }, { "cite": "391 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "174", "parenthetical": "citations omitted" }, { "page": "174", "parenthetical": "quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985" } ], "opinion_index": 0 }, { "cite": "326 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305171 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "548", "parenthetical": "quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0542-01" ] }, { "cite": "413 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "788" }, { "page": "790" } ], "opinion_index": 0 }, { "cite": "331 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499339 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0039-01" ] }, { "cite": "329 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "352" } ], "opinion_index": 0 }, { "cite": "326 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305505 ], "year": 1990, "pin_cites": [ { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0689-01" ] } ], "analysis": { "cardinality": 1020, "char_count": 30618, "ocr_confidence": 0.722, "pagerank": { "raw": 1.1794939180432815e-07, "percentile": 0.5883285087277289 }, "sha256": "5405f6af8c586981c36b3b348f5b37cfac34cab7e9d76bd50d55b1780997251a", "simhash": "1:a51fc22cf36631fa", "word_count": 5021 }, "last_updated": "2023-07-14T22:58:18.676868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and McCRODDEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JERRY WAYNE ROBERTSON" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendant brings forward several assignments of error. After carefully reviewing the record and briefs, we conclude that the trial court committed no error.\nI.\nDefendant first contends that the trial court erred in allowing the victim to testify that defendant threatened her by saying, \u201c [I]f [she] told anybody what he [defendant] was going to do, he was going to hurt [her] like he hurt Koda.\u201d The trial court allowed this testimony despite its previous ruling allowing defendant\u2019s motion in limine to prohibit reference to defendant\u2019s prior arrest, indictment, trial and acquittal of the murder of Koda Smith.\nAt the time of the events alleged here, defendant was under indictment and on pre-trial release for the murder of Aileen Koda Smith. Defendant was subsequently acquitted of that charge. Prior to trial here, defendant filed a motion in limine to exclude any reference to Koda Smith or her death or defendant\u2019s arrest, indictment and trial for her murder. The trial court granted defendant\u2019s motion to prohibit mention of defendant\u2019s arrest, indictment and trial for the alleged murder of Koda Smith, but denied defendant\u2019s motion to prohibit reference to the name Koda Smith. The victim testified at trial that defendant threatened her by saying, \u201c [I]f [she] told anybody what he [defendant] was going to do, he was going to hurt [her] like he hurt Koda.\u201d Defendant contends that the trial court should have excluded the reference to \u201cKoda\u201d in the victim\u2019s testimony under Rule 403 of the North Carolina Rules of Evidence. We disagree.\nRule 403 provides:\nRule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.\nAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\nWhether evidence should be excluded under Rule 403 is ordinarily a decision within the trial court\u2019s discretion. State v. Meekins, 326 N.C. 689, 700, 329 S.E.2d 346, 352 (1990). Defendant relies on State v. Scott, 331 N.C. 39, 413 S.E.2d 787 (1992), in which the Supreme Court held that:\n[E]vidence that defendant committed a prior alleged offense for which he has been tried and acquitted may not be admitted in a subsequent trial for a different offense when its probative value depends, as it did here, upon the proposition that defendant in fact committed the prior crime. To admit such evidence violates, as a matter of law, Evidence Rule 403.\nId. at 42, 413 S.E.2d at 788. We find Scott distinguishable.\nIn Scott, supra, the defendant was indicted on charges of second degree kidnapping, crime against nature, and three counts of second degree rape. The State\u2019s evidence at trial tended to show that defendant approached the victim at a convenience store and asked her for a ride home. The victim was already acquainted with the defendant and agreed to take him home. When they left the parking lot, the defendant threatened the victim with a knife and raped her.\nAt issue in Scott was the testimony of Wanda Freeman, a past acquaintance of defendant, who testified that defendant had raped her two years earlier under similar circumstances. Defendant objected on the grounds that he had been tried and acquitted of Freeman\u2019s rape by a jury. In holding that Freeman\u2019s testimony violated Rule 403 as a matter of law, the Supreme Court stated:\nWhen the probative value of evidence of this other conduct depends upon the proposition that defendant committed the prior crime, his earlier acquittal of that crime so erodes the probative value of the evidence that its potential for prejudice, which is great, must perforce outweigh its probative value under Rule 403.\nScott, 331 N.C. at 44, 413 S.E.2d at 790. The Scott court concluded that the probative value- of Freeman\u2019s testimony depended upon the proposition that defendant had actually raped Freeman two years earlier. Defendant\u2019s acquittal of Freeman\u2019s rape so eroded its probative value that it was \u201csubstantially outweighed by the danger of unfair prejudice\u201d as a matter of law.\nHere, the probative value of defendant\u2019s statement does not depend on the proposition that defendant in fact hurt Koda. The victim testified that she did not scream or make any loud noises because defendant had threatened to hurt her. The probative value of defendant\u2019s statement was to show that the victim was scared of defendant as well as why she did not scream or make any noise. Accordingly, we conclude that Scott does not control here.\nThe State contends that defendant\u2019s statement is admissible under State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990), as part of the \u201cchain of circumstances\u201d establishing the context of the crime charged. We agree. \u201c[Ajdmission of evidence of a criminal defendant\u2019s prior bad acts, received to establish the circumstances of the crime on trial by describing its immediate context,.... is admissible if it \u2018forms part of the history of the event or serves to enhance the natural development of the facts.\u2019 \u201d Id. at 547, 391 S.E.2d at 174 (citations omitted). In Agee, defendant was on trial for felonious possession of LSD. The arresting officer testified that he stopped defendant\u2019s vehicle for weaving on the road. When the officer approached the car, defendant made a threatening remark. The officer called for backup and when backup arrived, the officer searched defendant\u2019s person for weapons. During the search, the officer found a bag of marijuana in defendant\u2019s pocket. After finding the marijuana, the officer searched the vehicle and found the LSD. Defendant objected to the officer\u2019s testimony about finding the marijuana in defendant\u2019s pocket because defendant had previously been acquitted of possessing that marijuana in another trial. In holding that the officer\u2019s testimony was admissible, the Supreme Court stated:\nEvidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, is properly admitted if linked in time and circumstances with the charged crime, or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.\nAgee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990) (quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985).\nHere, the victim testified to defendant\u2019s statement during her account of the crime. In describing how she was sexually assaulted, the victim testified that defendant put his hand over her mouth and told her that \u201c [I]f [she] told anybody what he [defendant] was going to do, he was going to hurt [her] like he hurt Koda.\u201d We conclude that defendant\u2019s statement here formed an \u201cintegral and natural part\u201d of the victim\u2019s account of the crime and was \u201cnecessary to complete the story of the crime for the jury.\u201d Cf. Agee, supra. Accordingly, the trial court did not err in allowing defendant\u2019s statement.\nII.\nDefendant next contends that the trial court erred in allowing the State\u2019s medical expert, Dr. Martha K. Sharpless, to testify to statements the victim made to her about the incident during a physical examination of the victim. Defendant contends that Dr. Sharpless\u2019 testimony was inadmissible hearsay because the victim\u2019s statements to Dr. Sharpless were not made for the purposes of medical diagnosis or treatment as required by G.S. 8C-1, Rule 803(4).\nWe need not address whether the victim\u2019s statements to Dr. Sharpless fall within the \u201cStatements for Purposes of Medical Diagnosis\u201d exception to the hearsay rule because the trial court admitted Dr. Sharpless\u2019 testimony only for the limited purpose of corroborating the in-court testimony of the victim. \u201cEvidence which is inadmissible for substantive or illustrative purposes may nevertheless be admitted as corroborative evidence in appropriate cases when it tends to enhance the credibility of a witness.\u201d State v. Burns, 307 N.C. 224, 229, 297 S.E.2d 384, 387 (1982). Dr. Sharpless\u2019 testimony essentially corroborated the earlier testimony of the victim, including the defendant\u2019s threat to the victim. We also note that defendant objected \u201cexcept for purposes of corroboration.\u201d The trial court then properly instructed the jury that Dr. Sharpless\u2019 testimony was only to be received \u201cfor the limited and narrow purpose of corroborating the in-court testimony\u201d of the victim. Accordingly, this assignment of error is overruled.\nIII.\nDefendant next contends that the trial court erred in permitting the State to impeach defendant by asking defendant whether he had a midnight curfew. The following exchange took place between the assistant district attorney and defendant during defendant\u2019s cross-examination:\nQ. At some point Chris [Creed] and Danielle [Johnson] left; is that right?\nA. Yes, sir. I don\u2019t know where they were going.\nQ. What time was it by then?\nA. I couldn\u2019t tell you what time it was. They was getting ready to go somewhere and Chris just said stay here and talk to Donna till we get back.\nQ. It was after midnight by then, wasn\u2019t it?\nA. I don\u2019t know what time it was. I\u2019m not sure.\nQ. Could it have been after midnight?\nMr Jennings: Object. Asked and answered, Your Honor.\nThe Court: Overruled.\nA. It might have been. It might not have been. I do not know.\nQ. You weren\u2019t concerned at all about what time it was?\nA. No, sir. I don\u2019t see what reason there was to be.\nQ. Well, didn\u2019t you have a midnight curfew?\nA. Huh?\nMr. Jennings: Object.\nQ. Didn\u2019t you have a midnight curfew?\nThe Court: Overruled.\nA. Not that I remember. I don\u2019t remember having no midnight curfew.\nAt the time of the incident, defendant was subject to a midnight curfew as a condition of his pre-trial release. Since defendant testified that he did not remember having a midnight curfew, the State threatened, out of the presence of the jury, to impeach defendant with his pre-trial release papers which indicated that defendant was under a \u201c12:00 midnight curfew Friday and Saturday.\u201d The trial court conducted a voir dire out of the presence of the jury and allowed the State to show defendant the pre-trial release papers and refresh defendant\u2019s memory that he was indeed under a midnight curfew at the time of the incident. Defendant contends this constituted improper impeachment under Rule 608(b) of the North Carolina Rules of Evidence. We disagree.\nRule 608(b) provides:\n(b) Specific instances of conduct. \u2014 Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence.\nHere, extrinsic evidence was not used to impeach defendant before the jury. Defendant was shown his pre-trial release papers outside of the presence of the jury. Defendant\u2019s cross-examination in the presence of the jury resumed as follows:\nQ. (By Mr. Neumann) [Defendant], I\u2019ll ask you again if you\u2019ve had some time to reflect on it whether you were under a midnight curfew on this particular night?\nA. Yes, sir. My memory is refreshed.\nQ. I believe you earlier said you weren\u2019t concerned with what time it was?\nA. No, sir. I had no business \u2014\nMr. Jennings: Object.\nA. \u2014 no reason to.\nThe Court: Overruled.\nQ. So, you didn\u2019t care if you missed your midnight curfew or not, did you?\nA. I didn\u2019t remember having one.\nQ. You remember now, don\u2019t you?\nA. Yes, sir.\nNo extrinsic evidence of defendant\u2019s pre-trial release was admitted before the jury. Accordingly, we conclude that defendant was not improperly impeached under Rule 608(b). Defendant also contends that the question \u201cDidn\u2019t you have a midnight curfew,\u201d violated the court\u2019s ruling on defendant\u2019s motion in limine to exclude references to defendant\u2019s prior arrest, indictment, trial and acquittal of the murder of Koda Smith. However, since there is no indication that the jury was aware of defendant\u2019s prior arrest, wfe conclude that the jury could not have reasonably inferred that defendant, at age 17, was under anything other than a traditional parental curfew during the night in question.\nIV.\nDefendant next contends that the trial court erred in excluding the testimony of defendant\u2019s expert psychologist, Dr. John F. Warren, on the suggestibility of child witnesses. We disagree.\nDr. Warren was certified by the trial court as an expert in clinical psychology and human behavior. Defendant offered Dr. Warren\u2019s testimony on the phenomenon of suggestibility. On voir dire, Dr. Warren testified that suggestibility is the \u201caltering or the creation of memories through questions, gestures, other stimuli that happen around the person who is doing the remembering.\u201d Dr. Warren would have also testified that suggestibility is significant in young children or intellectually impaired persons. Defendant offered Dr. Warren\u2019s testimony to show that the victim\u2019s memory may have been created or altered through suggestion.\nUnder Rule 702 of the North Carolina Rules of Evidence, expert testimony is admissible if it will appreciably help the jury. State v. Knox, 78 N.C. App. 493, 495, 337 S.E.2d 154, 156 (1985). In applying this test, the trial court must balance the probative value of the testimony against its potential for prejudice, confusion, or delay. Id.; G.S. 8C-1, Rule 403. The trial court has wide discretion in determining whether expert testimony is admissible. Knox, 78 N.C. App. at 495, 337 S.E.2d at 156.\nHere, Dr. Warren testified that he did not ever examine or evaluate the victim or anyone else connected with this case. On these facts, the trial court could properly conclude that the probative value of Dr. Warren\u2019s testimony was outweighed by its potential to prejudice or confuse the jury. Similarly, we are not persuaded that Dr. Warren\u2019s testimony would have \u201cappreciably aided\u201d the jury since he had never examined or evaluated the victim. Accordingly, we conclude that the trial court did not abuse its discretion in excluding Dr. Warren\u2019s testimony.\nV.\nDefendant\u2019s next three contentions concern the sentencing phase of the trial. Defendant first contends that the trial court erred in failing to find defendant\u2019s immaturity as a mitigating factor. G.S. 15A-1340.4(a)(2)e allows a defendant\u2019s immaturity to be considered as a mitigating factor if the defendant\u2019s immaturity \u201cat the time of commission of the offense significantly reduced his culpability for the offense.\u201d At the time of the offense, defendant was seventeen years old and a high school drop out. In refusing to find defendant\u2019s immaturity as a mitigating factor, the trial court stated, \u201cThis is a man that just went out and got married and took on the responsibilities for a wife and two children. . . . That doesn\u2019t smack of immaturity.\u201d Defendant contends that the trial court erred in evaluating defendant\u2019s immaturity at the time of trial instead of at the time of the commission of the offense. We disagree.\nA trial court has wide discretion in determining the existence of mitigating factors because it \u201cobserves the demeanor of the witness and hears the testimony.\u201d State v. Heatwole, 333 N.C. 156, 163, 423 S.E.2d 735, 739 (1992). Immaturity as a statutory mitigating factor requires two inquiries: One as to immaturity and one as to the effect of that immaturity upon culpability. State v. Moore, 317 N.C. 275, 280, 345 S.E.2d 217, 221 (1986). Age alone is insufficient to support this factor. Id. The fact that defendant is seventeen years old, without more, does not classify defendant as immature under the statute. Id. As to the second inquiry, defendant presented no evidence on the effect of his immaturity upon his culpability for the offense. It is within the trial court\u2019s discretion to assess whether a defendant\u2019s immaturity significantly reduced his culpability for the offense. Id. at 281, 345 S.E.2d at 221. Accordingly, we conclude that the trial court did not abuse its discretion in failing to find defendant\u2019s immaturity as a mitigating factor.\nSecond, defendant contends the trial court erred in finding as an aggravating factor that defendant committed the offenses while on pre-trial release for a felony charge. G.S. 15A-1340.4(a)(l)k. Defendant contends that since he has been acquitted of the prior charge, the fact that he was on pre-trial release during the commission of these offenses cannot be used to aggravate his sentence. Based on State v. Webb, 309 N.C. 549, 308 S.E.2d 252 (1983), we disagree.\nThe rationale underlying G.S. 15A-1340.4(a)(l)k is that, \u201c[o]ne demonstrates disdain for the law by committing an offense while on release pending trial of an earlier charge.\u201d Webb, 309 N.C. at 559, 308 S.E.2d at 258.\nWhether or not one [on pre-trial release] is in fact guilty, it is to be expected that he would, while the question of his guilt is pending, be particularly cautious to avoid commission of another criminal offense. If he is not and is convicted of another offense, his status as a pretrial releasee in a pending case is a legitimate circumstance to be considered in imposing sentence.\nId. The fact that defendant was subsequently acquitted of the prior charge does not undermine the rationale for finding as an aggravating factor that defendant committed this offense while on pre-trial release. Accordingly, the trial court did not abuse its discretion in this regard.\nFinally, defendant contends that the trial court erred in imposing a sentence greater than the presumptive term. Defendant contends that the trial court erred in finding that the one aggravating factor of committing the offenses while on pre-trial release outweighed the one mitigating factor that defendant had no prior record of convictions. Defendant\u2019s contention is without merit. The task of weighing aggravating and mitigating factors is discretionary and is not simply a matter of mathematics. State v. Melton, 307 N.C. 370, 380, 298 S.E.2d 673, 680 (1983). The trial court may properly emphasize one factor over another in weighing these factors. Id. We conclude that the trial court did not abuse its discretion in sentencing defendant.\nVI.\nFor the reasons stated, we conclude that defendant received a fair trial free from prejudicial error.\nNo error.\nJudges MARTIN and McCRODDEN concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General George W. Boylan, for the State.", "Neill A. Jennings, Jr. for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JERRY WAYNE ROBERTSON\nNo. 9318SC743\n(Filed 21 June 1994)\n1. Evidence and Witnesses \u00a7 293 (NCI4th)\u2014 attempted statutory rape and sexual offense \u2014 prior offense \u2014 acquittal\u2014 admissible\nThe trial court did not err in a prosecution for attempted first-degree statutory rape and attempted first-degree sexual offense in allowing the victim to testify that defendant threatened her by saying that if she told anyone what he was going to do, he was going to hurt her like he hurt Koda. Defendant was under indictment and on pretrial release for the murder of Koda Smith at the time of these offenses and was acquitted before this trial. The trial court had previously granted a motion in limine to prohibit mention of defendant\u2019s arrest, indictment, and trial for the murder, but had denied defendant\u2019s motion to prohibit reference to the name Koda Smith. The probative value of defendant\u2019s statement was to show that the victim was scared of defendant as well as why she did not scream or make any noise and does not depend on the proposition that defendant in fact hurt Koda. The statement formed an integral and natural part of the victim\u2019s account of the crime and was necessary to complete the story of the crime for the jury. N.C.G.S. \u00a7 8C-1, Rule 403.\nAm Jur 2d, Evidence \u00a7 410.\nAdmissibility of evidence as to other offense as affected by defendant\u2019s acquittal of that offense. 25 ALR4th 934.\n2. Evidence and Witnesses \u00a7 886 (NCI4th)\u2014 attempted statutory rape and attempted sexual offense \u2014 victim\u2019s statements to doctor \u2014 admitted as corroboration\nThe trial court did not err in a prosecution for attempted first-degree statutory rape and attempted first-degree sexual offense by allowing the State\u2019s medical expert to testify about statements the victim made to her during a physical examination. Whether the testimony fell within the medical diagnosis exception to the hearsay rule was not addressed because the statements corroborated the earlier testimony of the victim, defendant objected to the testimony \u201cexcept for purposes of corroboration,\u201d and the trial court properly instructed the jury that the testimony was received only for the purpose of corroboration.\nAm Jur 2d, Evidence \u00a7\u00a7 661 et seq.\n3. Evidence and Witnesses \u00a7 3020 (NCI4th)\u2014 attempted statutory rape and attempted sexual offense \u2014 defendant\u2019s curfew \u2014 not improper impeachment\nThe trial court did not err in a prosecution for attempted first-degree statutory rape and attempted first-degree sexual offense by allowing the State to ask defendant whether he had a midnight curfew where defendant initially denied having a curfew, was shown his pretrial release papers for another offense out of the presence of the jury, and testified that he had not remembered having a curfew but remembered now. No extrinsic evidence of defendant\u2019s pretrial release was admitted before the jury and there was no indication that the jury was aware of defendant\u2019s prior arrest, so that the jury could not have reasonably inferred that defendant, age 17, was under anything other than a traditional parental curfew during the night in question. N.C.G.S. \u00a7 8C-1, Rule 608(b).\nAm Jur 2d, Witnesses \u00a7\u00a7 587-590.\n4. Evidence and Witnesses \u00a7 2337 (NCI4th)\u2014 attempted statutory rape and first-degree sexual offense \u2014 expert testimony \u2014 suggestibility of child witnesses \u2014 not admissible\nThe trial court did not err in a prosecution for attempted first-degree statutory rape and attempted first-degree sexual offense by excluding the testimony of defendant\u2019s expert psychologist on the suggestibility of child witnesses where the witness had never examined or evaluated the victim or anyone else connected with this case. On these facts, the trial court could properly conclude that the probative value of the testimony was outweighed by its potential to prejudice or confuse the jury. N.C.G.S. \u00a7 8C-1, Rule 702.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 191.\nNecessity and admissibility of expert testimony as to credibility of witness. 20 ALR3d 684.\n5. Criminal Law \u00a7 1234 (NCI4th)\u2014 attempted statutory rape and attempted sexual offense \u2014 sentencing\u2014immaturity not found as mitigating factor \u2014 no error\nThe trial court did not err when sentencing the seventeen-year-old defendant for attempted first-degree statutory rape and attempted first-degree sexual offense by not finding defendant\u2019s immaturity as a mitigating factor. Age alone is not sufficient to support this factor and defendant presented no evidence on the effect of his immaturity upon his culpability for the offense. Although defendant contended that the court erred by evaluating defendant\u2019s immaturity at the time of trial rather than the time of the offense, the trial court did not abuse its discretion in not finding this factor. N.C.G.S. \u00a7 15A-1340.4(a)(2)e.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n6. Criminal Law \u00a7 1169 (NCI4th)\u2014 attempted statutory rape and attempted sexual offense \u2014 sentencing\u2014aggravating factor \u2014 pretrial release\nThe trial court did not err when sentencing defendant for attempted first-degree statutory rape and attempted first-degree sexual offense by finding in aggravation that defendant committed the offenses while on pretrial release for a felony charge where he was ultimately acquitted of the prior charge. The underlying rationale for the factor involves disdain for the law; the fact that defendant was subsequently acquitted of the prior charge does not undermine that rationale. N.C.G.S. \u00a7 15A-1340.4(a)(l)k.\nAon Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n7. Criminal Law \u00a7 1079 (NCI4th)\u2014 attempted statutory rape and attempted sexual offense \u2014 sentence greater than presumptive \u2014 no abuse of discretion\nThe trial court did not abuse its discretion when sentencing defendant for attempted first-degree statutory rape and attempted first-degree sexual offense by imposing a sentence greater than the statutory norm. The task of weighing aggravating and mitigating factors is discretionary and is not simply a matter of mathematics.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nAppeal by defendant from judgment entered 12 February 1993 by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 8 March 1994.\nOn 12 February 1993, defendant, age seventeen, was convicted of attempted first degree statutory rape in violation of G.S. 14-27.6 and attempted first degree sexual offense in violation of G.S. 14-27.6. The trial court sentenced defendant to two consecutive ten year terms of imprisonment.\nAt trial, the State\u2019s evidence tended to show the following: On 6 June 1992, the victim, a twelve year old girl, was spending the night at the home of her fifteen year old friend, Danielle Johnson. At approximately 11:00 p.m. that night, James Christopher Creed, age nineteen, came over to visit the victim and Johnson. Creed went to the back of Johnson\u2019s house and spoke with Johnson and victim through a screened window in Johnson\u2019s bedroom. After talking with Johnson for about an hour, Creed and Johnson went to get something to eat at Burger King and left the victim in Johnson\u2019s bedroom. On their way home from Burger King, Creed and Johnson saw defendant walking down the street toward defendant\u2019s house. Johnson talked with defendant for about 5 minutes before returning home with Creed.\nWhen Creed and Johnson returned to her house, Johnson crawled back into her bedroom through the screened window and continued talking to Creed. Defendant walked into the yard and introduced himself to Creed. Both Creed and defendant began talking to Johnson through the screened window. Eventually, Johnson and Creed left to go visit a friend of Johnson\u2019s. Creed suggested that defendant \u201cstay and talk to [the victim].\u201d\nWhen Johnson and Creed returned about a half hour later, Johnson saw defendant in her bedroom with the victim. Johnson testified that when she looked in the window, she saw defendant \u201cjumping up off of [victim] with his pants \u2014 pulling his pants up.\u201d Johnson asked defendant what he was doing in her bedroom and told him to leave. Creed testified that when defendant came out the window, defendant\u2019s shirt was unbuttoned and defendant was trying to put on his shoes as he climbed out the window.\nOnce defendant came outside, defendant, Johnson and Creed talked in the backyard for approximately 30 to 45 minutes, while the victim remained inside. Defendant told Creed and Johnson that he and the victim had been talking and that somehow their clothes had come off. Defendant told them that he began touching the victim\u2019s leg and inner thigh and then put his finger inside her vagina, but stopped because it had a very unpleasant smell. They discussed the incident very casually and laughed about it.\nThe victim testified that when Johnson and Creed left to visit friends, defendant crawled through the window, put his hand over her mouth and said that \u201c [I]f [she] told anybody what he [defendant] was going to do, he was going to hurt [her] like he hurt Koda.\u201d The victim testified that defendant put his penis inside her vagina two times and inserted his finger into her vagina three times. The victim could not push defendant off of her and she did not scream or make any noise because she was afraid defendant would hurt her.\nDefendant testified that on 6 June 1992, he had been walking to his grandmother\u2019s house when a car pulled up beside him. Johnson got out of the car and invited him to her house. Defendant knew Johnson but did not know Creed who was driving the car. Defendant walked to Johnson\u2019s house and began talking to Johnson and Creed. Defendant testified that Johnson and Creed later left to go visit friends but told him to stay and talk with the victim. Defendant stood on a bicycle under the bedroom window and talked with the victim. Defendant testified that he began to tire and asked the victim ten to twelve times if he could climb in the window. Eventually, the victim said that she did not care and defendant crawled through the window into the bedroom. Defendant testified that he did not intend to have sex with the victim when he climbed in the window and merely sat at the foot of the bed. The victim, however, \u201claid back on the bed and spread her legs.\u201d After talking briefly with the victim, defendant began rubbing the victim\u2019s knees and the inside of her legs. Defendant pulled on the victim\u2019s shorts and asked the victim to help him take them off. The victim lifted her hips and removed her shorts and panties without resisting or saying no. Defendant testified that when the victim removed her panties, he noticed she had \u201can awful odor coming from her.\u201d Defendant testified that after he noticed the victim\u2019s vaginal odor, he did not want to have sex with her anymore and began looking for a way \u201cto get out of the situation.\u201d Defendant testified that he did not touch the victim or insert his finger or his penis into her vagina. Defendant also testified that at no time had he removed his underwear.\nWhen defendant heard Johnson and Creed talking outside, he began dressing and climbed out the window. Defendant testified that he told Johnson and Creed that he had inserted his finger into the victim\u2019s vagina because he thought that Creed and Johnson would \u201cthink a little less of me if I didn\u2019t tell them we did something.\u201d Defendant also testified that during the next week, the victim called defendant ten to twelve times and asked him to be her boyfriend. Defendant also told the investigating officer that he did not have sex with the victim and did not penetrate her in any fashion and that victim\u2019s vagina had a \u201cstrong personal odor.\u201d\nAfter having testified for the State, Creed also testified as a defense witness. Creed expressed an opinion about the victim\u2019s character for truthfulness. Creed testified that \u201cshe tends to get carried away with things that she says at times.\u201d Creed also testified that he talked to Johnson and the victim on the night of the alleged incident before he went over to their house. Creed testified that the victim told him that she would give him oral sex if he would come and visit them.\nFrom judgment entered and sentences imposed, defendant appeals.\nAttorney General Michael F. Easley, by Special Deputy Attorney General George W. Boylan, for the State.\nNeill A. Jennings, Jr. for defendant-appellant." }, "file_name": "0249-01", "first_page_order": 281, "last_page_order": 295 }