{ "id": 4079353, "name": "STATE OF NORTH CAROLINA v. KENNEDY EDMONDS, Defendant", "name_abbreviation": "State v. Edmonds", "decision_date": "2011-06-21", "docket_number": "No. COA10-464", "first_page": "575", "last_page": "585", "citations": [ { "type": "official", "cite": "212 N.C. App. 575" } ], "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": "666 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641889 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "494-95" } ], "opinion_index": 0, "case_paths": [ "/se2d/666/0490-01" ] }, { "cite": "617 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633815 ], "year": 2005, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0097-01" ] }, { "cite": "297 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "396" }, { "page": "393, 396" } ], "opinion_index": 0 }, { "cite": "290 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560772 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "212" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0203-01" ] }, { "cite": "249 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "814", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 213", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551056 ], "year": 1978, "pin_cites": [ { "page": "215", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0213-01" ] }, { "cite": "226 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "640" } ], "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "319 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "252", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "311 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683093 ], "year": 1984, "pin_cites": [ { "page": "738", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0734-01" ] }, { "cite": "192 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160700 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "650-51" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0646-01" ] }, { "cite": "410 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "228" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522544 ], "year": 1992, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0498-01" ] }, { "cite": "364 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "345", "parenthetical": "noting that, because a \"victim's virginity or lack thereof does not fall within any of the four exceptions!,]\" it is an area \"prohibited from cross-examination by Rule 412[,]\" and the rule does not violate a defendant's right to confront an adverse witness" } ], "opinion_index": 0 }, { "cite": "321 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568444 ], "year": 1988, "pin_cites": [ { "parenthetical": "noting that, because a \"victim's virginity or lack thereof does not fall within any of the four exceptions!,]\" it is an area \"prohibited from cross-examination by Rule 412[,]\" and the rule does not violate a defendant's right to confront an adverse witness" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0392-01" ] }, { "cite": "172 N.C. App. 759", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321416 ], "year": 2005, "pin_cites": [ { "page": "766-67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0759-01" ] }, { "cite": "436 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "\"Thus, contrary to defendant's position, Rule 412 may not be utilized as a barrier to prevent inconsistencies in sworn testimony.\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 280", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521295 ], "year": 1993, "pin_cites": [ { "parenthetical": "\"Thus, contrary to defendant's position, Rule 412 may not be utilized as a barrier to prevent inconsistencies in sworn testimony.\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0280-01" ] }, { "cite": "295 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1982, "pin_cites": [ { "page": "457" }, { "page": "456" }, { "page": "456-57" }, { "page": "457" }, { "page": "456" }, { "page": "456-57" } ], "opinion_index": 0 }, { "cite": "306 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573479 ], "weight": 5, "year": 1982, "pin_cites": [ { "page": "698" }, { "page": "698" }, { "page": "696" }, { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0692-01" ] }, { "cite": "465 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "121 N.C. App. 306", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916824 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/121/0306-01" ] }, { "cite": "584 S.E.2d 86", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "87" }, { "page": "87", "parenthetical": "internal citation, quotation marks, and brackets omitted" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 451", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956745 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "454" }, { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0451-01" ] }, { "cite": "548 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "779", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 277", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433837 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0277-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "370 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "370", "parenthetical": "citation omitted" }, { "page": "373", "parenthetical": "citations and quotation marks omitted" }, { "page": "373" } ], "opinion_index": 0 }, { "cite": "322 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518633 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "743", "parenthetical": "citation omitted" }, { "page": "749" }, { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0733-01" ] }, { "cite": "269 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "116" }, { "page": "116" } ], "opinion_index": 0 }, { "cite": "301 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561058 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "42" }, { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0031-01" ] }, { "cite": "513 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "310", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132105 ], "year": 1999, "pin_cites": [ { "page": "175", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0152-01" ] }, { "cite": "154 L. Ed. 2d 165", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "537 U.S. 896", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9242368, 9242593, 9242307, 9242631, 9242668, 9242413, 9242511, 9242287, 9242481, 9242355, 9242453, 9242393, 9242330, 9242558, 9242431 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/537/0896-05", "/us/537/0896-13", "/us/537/0896-02", "/us/537/0896-14", "/us/537/0896-15", "/us/537/0896-07", "/us/537/0896-11", "/us/537/0896-01", "/us/537/0896-10", "/us/537/0896-04", "/us/537/0896-09", "/us/537/0896-06", "/us/537/0896-03", "/us/537/0896-12", "/us/537/0896-08" ] }, { "cite": "558 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "473" } ], "opinion_index": 0 }, { "cite": "355 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220002 ], "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0073-01" ] } ], "analysis": { "cardinality": 985, "char_count": 25678, "ocr_confidence": 0.745, "pagerank": { "raw": 1.5155662805397713e-07, "percentile": 0.668329891047702 }, "sha256": "e927ca003a61a8df13658880de28629f816357c828624c52df6fe9f4d9a7b474", "simhash": "1:8f1a84ea546f24d1", "word_count": 4224 }, "last_updated": "2023-07-14T17:12:23.503415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNEDY EDMONDS, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals from his convictions for statutory rape and indecent liberties with a child. He alleges there were constitutional and statutory errors in his conviction arising from limitations upon his cross-examination of the prosecuting witness, the admission of evidence, and the limitations upon his closing arguments. We disagree and find no error.\nI. Background\nDefendant was indicted for statutory rape of a person who is 13, 14, or 15 years old and indecent liberties with' a child. He was convicted by a jury on 20 November 2009 of statutory rape of a fifteen year old and indecent liberties with a child. Defendant was sentenced to consecutive terms of 336 months to 413 months for the charge of statutory rape of a child and 21 to 26 months for the charge of taking indecent liberties with a child.\nAt trial, the State presented evidence that defendant telephoned Carolyn, a fifteen-year-old girl, to ask her to come to his home to pick up a camera and some money she was owed for babysitting. When she arrived at defendant\u2019s house, he pulled her inside. Carolyn testified that once she was inside, the defendant hit her, ripped her clothes, and penetrated her vaginally with his penis. As she was leaving the house, defendant told her not to tell anyone. When she arrived home, she told her father about the assault and identified defendant as her attacker. Her father called the police. After speaking with police at her home, Carolyn was taken to the hospital where medical personnel examined her and made notes of her explanation of what had happened. At trial, Carolyn identified the clothes that she had been wearing on the night in question. All three items of clothing were damaged. Both she and her father affirmed that they had not been torn when she left for defendant\u2019s house. The State also presented DNA evidence which showed that defendant could \u201cnot be excluded as a contributor\u201d to the samples collected from Carolyn.\nDefendant testified that he knew Carolyn because she had come to visit his wife. He had arranged for Carolyn to purchase a camera from one of his Mends and said that Carolyn called him to see if she could come to his house to pick up the camera. He claimed that she had attempted to leave without paying for the camera and that her pants had been tom when he tried to stop her from leaving with the camera without paying. Defendant further asserted that after accidentally tearing her pants, he had stopped trying to prevent her from leaving and she left with the camera. Defendant further testified that his nephew had been staying with him through the summer of the incident and that he had seen his nephew and Carolyn talking.\nII. Analysis\nDefendant first asserts that the Mai court committed error in limiting his cross-examination of the prosecuting witness regarding her sexual history. He also asserts that the court erred in not admitting the un-redacted medical records of the prosecuting witness which contained information regarding her prior sexual history. Finally, defendant contends that his closing arguments were improperly limited when the court would not allow him to argue that his nephew or someone else committed the assault on Carolyn. He asserts these errors were prejudicial and in violation of his rights under the constitutions of both North Carolina and the United States as well as in violation of statutory law. For the reasons below, we disagree.\nA. Asserted Constitutional Errors\nWe begin by addressing defendant\u2019s assertion that his constitutional rights were violated by each of his assignments of error. Generally, \u201cerror may not be asserted upon appellate review unless the error has been brought to the attention of the trial court by appropriate and timely objection or motion.\u201d N.C. Gen. Stat. \u00a7 15A-1446(a) (2009); N.C.R. App. P (10) (a)(1). Objections must \u201cstat[e] the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d N.C.R. App. P. (10)(a)(l). \u201cFailure to make an appropriate and timely motion or objection constitutes a waiver of the right to assert the alleged error on appeal . . . .\u201d N.C. Gen. Stat. \u00a7 15A-1446(b). Constitutional errors not raised by objection at trial are deemed waived on appeal. State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (\u201cConstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.\u201d), cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002); State v. Anderson, 350 N.C. 152, 175, 513 S.E.2d 296, 310 (1999) (citations omitted).\nA thorough review of the record in this case gives us no indication that defendant raised any constitutional grounds or argument as to any of the issues which the defendant now argues on appeal. Since those constitutional arguments were not raised by a specific objection at trial, those arguments are waived. Id.\nB. Assertions of Error Based Upon Statutory Grounds\nWe next turn to defendant\u2019s assertions of error under statutory grounds as to (1) the limitations placed upon his cross-examination, (2) the court\u2019s refusal to admit Carolyn\u2019s un-redacted medical records and (3) the limitations placed upon his closing argument.\nDefendant\u2019s first two issues fall under Rule 412, the rape shield law. The North Carolina Rules of Evidence provide for the admission of all relevant evidence absent some constitutional, statutory, or rule-based exception to its admission. N.C. Gen. Stat. \u00a7 8C-1, Rule 402 (2009). Relevant evidence is \u201cevidence 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. Gen. Stat. \u00a7 8C-1, Rule 401 (2009). Relevant evidence \u201cmay be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2009). Rule 412 governs the use of the prior sexual history of the prosecuting witness in a prosecution for sex crimes and provides in relevant part:\n(a) As used in this rule, the term \u201csexual behavior\u201d means sexual activity of the complainant, other than the sexual act which is at issue in the indictment on trial.\n(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:\n(1) Was between the complainant and the defendant; or\n(2) Is evidence of specific instances of sexual behavior offered for the purpose, of showing that the act or acts charged were not committed by the defendant; or\n(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant\u2019s version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or\n(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 412 (2009). Rule 412 also provides for an in camera hearing to determine the relevancy and admissibility of evidence which might be in contravention of the Rule. Id. Our Supreme Court, in defining substantially similar exceptions in the former rape shield law, has said they are meant to \u201cdefine those times when the prior sexual behavior of a complainant is relevant to issues raised in a rape trial, and are not a revolutionary move to exclude evidence generally considered relevant in trials of other crimes.\u201d State v. Fortney, 301 N.C. 31, 42, 269 S.E.2d 110, 116 (1980).\n(1) Limitations on Cross-examination\nDefendant asserts that it was reversible error for the trial court not to allow him to question Carolyn regarding her inconsistent statements about her sexual history to the police at her home and to the medical personnel at the hospital. We disagree.\n\u201cThe scope of cross-examination is . . . within the sound discretion of the trial court, and its ruling thereon will not be disturbed absent a showing of abuse of discretion.\u201d State v. Herring, 322 N.C. 733, 743, 370 S.E.2d 363, 370 (1988) (citation omitted). This Court has characterized the proper limitations on defendant\u2019s right to cross-examination as follows:\n[A] defendant\u2019s right to cross-examination is subject to the sound discretion of the court and is therefore not absolute. See State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990); State v. Pallas, 144 N.C. App. 277, 548 S.E.2d 773 (2001). The testimony sought to be elicited on cross-examination \u201c \u2018must be relevant to some defense or relevant to impeach the witness []\u2019 \u201d and, in certain instances, may \u201c \u2018bow to accommodate other legitimate interests in the criminal trial process[]\u2019 \u201d such as the rules of evidence. Pallas, 144 N.C. App. at 283, 548 S.E.2d at 779 (citations omitted).\nState v. Oliver, 159 N.C. App. 451, 454, 584 S.E.2d 86, 87 (2003).\nThe limitations on cross-examination in this case were based upon inadmissibility under Rule 412, as one of those instances as referenced in Oliver, in which the right to cross-examination must \u201cbow to accommodate other legitimate interests in the criminal trial process[,]\u201d Oliver, 159 N.C. App. at 454, 584 S.E.2d at 87 (internal citation, quotation marks, and brackets omitted). There is no evidence presented in the record that defendant intended the evidence he proposed on cross-examination to fit within any of the exceptions to Rule 412\u2019s exclusionary mandate. Though defendant\u2019s apparent theory of the defendant\u2019s nephew \u201cor someone else\u201d having committed the crime would most closely align with the second exception, as there are no \u201cspecific instances of sexual behavior\u201d to which defendant points, we must conclude that it does not fit therein. N.C. Gen. Stat. \u00a7 8C-1, Rule 412 (2009).\nThe lack of a specific basis under Rule 412 for admission of the evidence does not end our analysis. As we have noted, our Supreme Court has made clear that the Rule does not \u201cexclude evidence generally considered relevant in trials of other crimes.\u201d Fortney, 301 N.C. at 42, 269 S.E.2d at 116. Following that rationale, \u201ca victim\u2019s statements about prior specific sexual activity are sometimes admissible for impeachment purposes even though the statements do not fall within one of the Rule 412(b) exceptions.\u201d State v. Bass, 121 N.C. App. 306, 465 S.E.2d 334 (1996); see also State v. Younger, 306 N.C. 692, 295 S.E.2d 453 (1982); State v. Najewicz, 112 N.C. App. 280, 436 S.E.2d 132 (1993) (\u201cThus, contrary to defendant\u2019s position, Rule 412 may not be utilized as a barrier to prevent inconsistencies in sworn testimony.\u201d (emphasis added)). But even when such testimony has been admitted, it has been with the realization that, \u201cabsent some factor which ties [the proposed testimony] to the specific act which is the subject of the trial, [it] is irrelevant due to its low probative value and high prejudicial effect.\u201d Younger, 306 N.C. at 698, 295 S.E.2d at 457. Therefore, \u201cthe relevance and probative value of such an inconsistent statement must be weighed against its prejudicial effect.\u201d Id. at 697, 295 S.E.2d at 456.\nAs defendant asserts Younger supports his position that his questioning regarding Carolyn\u2019s disparate statements to the police at her home and to medical personnel at the hospital regarding her prior sexual activity should have been allowed, we turn now to that case. In Younger, our Supreme Court held that not allowing the defendant to cross-examine the prosecuting witness regarding inconsistent statements she made in sworn testimony and to her treating physician regarding her sexual activity on the day of her supposed rape was reversible error. Younger, 306 N.C. at 698, 295 S.E.2d at 456-57. In its ruling, the Court observed that, \u201cthe fact that [a] question includes previous sexual behavior does not prevent its admission into evidence, instead the sexual conduct reference goes to the degree of prejudice which must be balanced against the question\u2019s probative value.\u201d Id. In that case, where the prosecuting witness had testified in sworn testimony regarding her sexual activity on the day of the alleged rape and defendant argued the prosecuting witness had consented to their sexual encounter, the Supreme Court found that, in \u201clight of the extreme importance of an eyewitness\u2019s credibility,\u201d \u201cthe denial of an opportunity to impeach the prosecuting witness with prior inconsistent statements was highly prejudicial to defendant\u2019s case.\u201d Id. at 698, 295 S.E.2d at 457.\nThree relevant factors reduce the probative value of the evidence in the case sub judice and distinguish the value of that evidence offered in Younger from the evidence offered here. The first is that the prosecuting witness in this case offered no testimony regarding her previous sexual history. The second is that the testimony defendant sought to elicit from Carolyn was regarding sexual activity that occurred months before the incident in this case and as best we can tell bore no direct relationship to the incident in question here. Finally, there is no issue as to the consent of the prosecuting witness in this case. We fail to see, given the lack of an issue of consent, the apparent lack of any developed temporal or causative link between the proposed impeachment and the incident in question and particularly the lack of in-court testimony to form a strong basis for impeachment of the witness, how \u201cthe probative value\u201d of the proposed impeachment in any way balances in the positive against its prejudicial effect, even in \u201clight of the extreme importance of eyewitness credibility.\u201d Id.; State v. Dorton, 172 N.C. App. 759, 766-67, 617 S.E.2d 97, 102 (2005) (\u201cRather, defendant asserts he \u201csimply wanted to attack [the victim\u2019s] credibility as a witness . . . .\u201d The evidence defendant sought to present does not fall within any of the four exceptions to the Rape Shield Statute and is inadmissible under our Supreme Court\u2019s holding in State v. Autry, 321 N.C. 392, 364 S.E.2d 341, 345 (1988) (noting that, because a \u201cvictim\u2019s virginity or lack thereof does not fall within any of the four exceptions!,]\u201d it is an area \u201cprohibited from cross-examination by Rule 412[,]\u201d and the rule does not violate a defendant\u2019s right to confront an adverse witness))\u201d). In essence, defendant asked the trial court to do what our Supreme Court said it should not in Younger, to admit \u201csome distant sexual encounter which has no relevance to this case other than showing that the witness [was] sexually active.\u201d Younger, 306 N.C. at 696, 295 S.E.2d at 456. The trial court properly sustained the State\u2019s objections to this evidence.\n(2) Court\u2019s Refusal to Admit Carolyn\u2019s Un-redacted Medical Records\nDefendant next asserts that the trial court erred in not admitting Carolyn\u2019s un-redacted medical records which contained statements regarding her prior sexual history. We disagree.\nThe redacted portions of the medical records in this case indicated that Carolyn had told hospital personnel that she was \u201cpreviously sexually active,\u201d and provided details regarding that previous sexual experience, including specific details of the type of sexual acts and whether or not a condom was used. These prior sexual experiences occurred at least months prior to the incident which is the subject of this case.\nThough review of relevancy determinations is de novo, State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1992), \u201c[a] trial court\u2019s ruling on an evidentiary point will be presumed to be correct unless the complaining party can demonstrate that the particular ruling was in fact incorrect.\u201d Herring, 322 N.C. at 749, 370 S.E.2d at 373 (citations and quotation marks omitted). \u201cEven if the complaining party can show that the trial court erred in its ruling, relief will not ordinarily be granted absent a showing of prejudice.\u201d Id.\nAs we have noted above, the North Carolina Rules of Evidence provide for the admission of all relevant evidence absent some constitutional, statutory, or rule-based exception to its admission, but evidence of prior sexual behavior of the victim is limited by Rule 412. Defendant points to In re: K.W., 192 N.C. App. 646, 666 S.E.2d 490 (2008), to justify introduction of the prosecuting witness\u2019s unredacted medical records in this case. In that case, this Court considered whether the Myspace page of a prosecuting \"witness in an abuse and neglect proceeding which called the witness\u2019s testimony regarding her virginity into question could be used for impeachment purposes, where her sworn testimony and statements to police regarding her prior sexual activity were in conflict. In re: K.W., 192 N.C. App. at 650-51, 666 S.E.2d at 494-95. This Court found, following the reasoning in Younger, that failure to admit the Myspace page in question was harmless error. Id. Again, In re: K. W. is distinguished by its factual underpinnings. The probative value of the evidence here is reduced by the lack of sworn testimony regarding sexual history in this case. As we look to \u201cthe degree of prejudice which must be balanced against the question\u2019s probative value],]\u201d Younger, 306 N.C. at 698, 295 S.E.2d at 456-57, and in light of our thorough review of the record in this case, we do not see how admission of the medical records of the prosecuting witness, with no sworn testimony developed at trial regarding the prior sexual history of the victim and with the proposed impeachment\u2019s having no discernible relationship to the alleged crime, particularly when consent to sexual conduct is not at issue, has any but salacious value at trial. Though we are mindful of the strong interest of defendant in cross-examination on prior inconsistent statements in trials of this type, we find little or no probative value in the admission of the redacted portion of the medical records and therefore find that it was properly excluded.\nEven were we to accept that defendant\u2019s questioning had some measure of probative value and should have been allowed, there is no evidence that the ability to question Carolyn regarding her prior sexual history would have had any effect on the outcome of the trial. It is evident on the face of the record that defendant was allowed ample cross-examination of Carolyn regarding the events of the day in question as well as ample opportunity to examine her veracity with respect to that testimony. Given the lack of an offer of proof of any evidence to support defendant\u2019s apparent theory that Carolyn engaged in another sexual encounter which might explain the DNA findings and her physical examination, it is evident that the questioning intended by the defendant was not likely to have caused the jury to change its verdict. As any supposed error is not prejudicial, it will not yield a new trial. Herring, 322 N.C. at 749, 370 S.E.2d at 373.\n(3) Limitation on Defendant\u2019s Closing Arguments\nDefendant contends that he was improperly limited in his closing arguments by the trial court\u2019s rulings that he could not argue that his nephew or someone else had committed the sexual assault against Carolyn. We disagree.\na. Standard of Review\nIt is established law in this state that whether closing arguments are proper \u201cis a matter ordinarily left to the sound discretion of the trial judge, and [appellate courts] will not review the exercise of this discretion unless there is such gross impropriety in the argument as would be likely to influence the verdict of the jury.\u201d State v. Riddle, 311 N.C. 734, 738, 319 S.E.2d 250, 252 (1984) (citation omitted) (\u201cArgument of counsel must be left largely to the control and discretion of the trial judge, and counsel must be allowed wide latitude in their arguments which are warranted by the evidence and are not calculated to mislead or prejudice the jury.\u201d); State v. Covington, 290 N.C. 313, 328, 226 S.E.2d 629, 640 (1976).\nAppellate review is to be made \u201csolely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to Rule 9.\u201d N.C.R. App. P. Rule 9(a). \u201cThe defendant. . . has the duty to see that the record on appeal is properly made up.\u201d State v. McCain, 39 N.C. App. 213, 215, 249 S.E.2d 812, 814 (1978) (citations omitted). \u201cAn appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court.\u201d State v. Phifer, 290 N.C. 203, 212, 297 S.E.2d 393, 396 (1982).\nb. Substantive Law\nClosing arguments of counsel are governed by N.C. Gen. Stat. \u00a7 15A-1230(a):\n(a) During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of the analysis of the evidence, argue any position or conclusion with respect to the matter at issue.\nN.C. Gen. Stat. \u00a7 15A-1230(a)(2009).\nc. Application\nDefendant points to the following exchange with the trial court as supporting his contention that the trial court\u2019s limitations on his closing arguments constitute reversible error:\nTHE COURT: You can argue that it wasn\u2019t him, but you can\u2019t argue that it was somebody else. Are we clear on my ruling?\n[DEFENSE]: I can argue that it wasn\u2019t this defendant?\nTHE COURT: Correct, but you can\u2019t argue it was X.\n[DEFENSE]: Can I argue it must\u2019ve been someone else?\nTHE COURT: No. Must have been somebody else is even more speculative. I mean, it does not cast more than a suspicion on another or raise more than a mere conjectural inference. That is the law that is here.\nTHE COURT: Well, you can argue that he didn\u2019t have sex with her. You can argue that he didn\u2019t do what she said. But you can\u2019t say that somebody else did it.\nTHE COURT: I understand what you are saying. But, understand what my ruling is, that you can\u2019t say somebody else. You are not allowed \u2014 you will not be permitted to argue that somebody else, John Doe, Jane Doe \u2014 that someone else did it.\n[DEFENSE]: I can say it wasn\u2019t his DNA evidence?\nTHE COURT: You can. You can stand up there and say \u201cnot him.\u201d You cannot say \u201csomebody else.\u201d Now, they can infer from whatever argument you make that it was somebody else, but you can\u2019t say it. You can imply so that they can infer, but you can\u2019t say it.\nAlthough defendant argues that he was improperly prevented from arguing that someone else raped the victim, defendant is unable to point to specific portions of his closing argument which were limited by the trial court\u2019s ruling, as closing arguments in this case were not recorded. Therefore, defendant has not met his burden of establishing the trial court\u2019s alleged error within the record on appeal. This court will not \u201cassume error by the trial judge when none appears on the record before [it].\u201d State v. Phifer, 290 N.C. at 212, 297 S.E.2d at 393, 396 (1982). Therefore, the arguments are properly dismissed. Id.\nIII. Conclusion\nFor the reasons stated above, we find no error in the rulings of the trial court in this case as to the limitations placed on defendant\u2019s cross-examination, admission of redacted medical records excluding statements regarding prior sexual activity of the victim, and limitations upon defendant\u2019s closing arguments.\nNO ERROR.\nChief Judge MARTIN and Judge STEPHENS concur.\n. We will refer to the minor child by the pseudonym Carolyn to protect the child\u2019s identity and for ease of reading.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III by Assistant Attorney General Sonya M. Calloway-Durham, for the State.", "Paul F. Herzog, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNEDY EDMONDS, Defendant\nNo. COA10-464\n(Filed 21 June 2011)\n1. Appeal and Error\u2014 preservation of constitutional issues\u2014 no specific objection \u2014 waiver\nConstitutional arguments not raised by a specific objection at trial were waived.\n2. Evidence\u2014 rape shield law \u2014 victim\u2019s inconsistent statements \u2014 not admissible\nEvidence in an indecent liberties and statutory rape prosecution concerning the victim\u2019s inconsistent statements about her sexual history did not fit within any of the exceptions to the exclusionary mandate of the rape shield law.\n3. Evidence\u2014 impeachment \u2014 victim\u2019s prior sexual history\u2014 not admissible\nThe trial court did not err in a prosecution for indecent liberties and statutory rape by not admitting evidence of the victim\u2019s prior sexual activity for impeachment purposes. The prosecuting witness offered no testimony about her previous sexual activity, the testimony defendant sought to elicit involved activity months earlier that had no direct relationship to this incident, and there was no issue of consent.\n4. Evidence\u2014 statutory rape \u2014 victim\u2019s unredacted medical records \u2014 not admissible\nThe trial court did not err in a prosecution for indecent liberties and statutory rape by excluding the victim\u2019s unredacted medical records, which contained statements about her sexual history.\n5. Appeal and Error\u2014 record on appeal-closing argument not recorded \u2014 contention dismissed\nAn argument on appeal concerning the limitation of defendant\u2019s closing argument was dismissed where closing arguments were not recorded.\nAppeal by defendant from judgments entered on or about 20 November 2009 by Judge Alma L. Hinton in Superior Court, Halifax County. Heard in the Court of Appeals 11 October 2010.\nAttorney General Roy A. Cooper, III by Assistant Attorney General Sonya M. Calloway-Durham, for the State.\nPaul F. Herzog, for defendant-appellant." }, "file_name": "0575-01", "first_page_order": 585, "last_page_order": 595 }