{ "id": 8553186, "name": "STATE OF NORTH CAROLINA v. EARL ANDREWS GAINEY, JR.", "name_abbreviation": "State v. Gainey", "decision_date": "1977-04-06", "docket_number": "No. 765SC871", "first_page": "682", "last_page": "688", "citations": [ { "type": "official", "cite": "32 N.C. App. 682" } ], "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": "200 S.E. 2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561787 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0321-01" ] }, { "cite": "215 S.E. 2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562667 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0326-01" ] }, { "cite": "175 S.E. 2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548314, 8548275 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0071-02", "/nc-app/9/0071-01" ] }, { "cite": "176 S.E. 2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563526 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0162-01" ] }, { "cite": "157 S.E. 2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565553 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0576-01" ] }, { "cite": "196 S.E. 2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559413 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0570-01" ] }, { "cite": "193 S.E. 2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565178 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0357-01" ] }, { "cite": "112 S.E. 2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 35", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617151 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0035-01" ] }, { "cite": "50 S.E. 2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "229 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166179 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/229/0386-01" ] }, { "cite": "31 S.E. 2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "224 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608617 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/224/0527-01" ] }, { "cite": "10 S.E. 457", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1889, "opinion_index": 0 }, { "cite": "104 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652042 ], "year": 1889, "opinion_index": 0, "case_paths": [ "/nc/104/0679-01" ] }, { "cite": "164 S.E. 2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "3 N.C. App. 266", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554613 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/3/0266-01" ] }, { "cite": "81 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] }, { "cite": "196 S.E. 2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558855 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0368-01" ] } ], "analysis": { "cardinality": 675, "char_count": 14870, "ocr_confidence": 0.695, "pagerank": { "raw": 1.4544360322927512e-07, "percentile": 0.6556830147240245 }, "sha256": "325d7f20ebdd600757c6339be21a5e6ebb2f7f8d1269fa89f49f6034a35f000f", "simhash": "1:016e00075673bce5", "word_count": 2480 }, "last_updated": "2023-07-14T16:52:52.366891+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Vaughn concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EARL ANDREWS GAINEY, JR." ], "opinions": [ { "text": "MARTIN, Judge.\nDefendant preserves and presents ten assignments of error. He first contends the court erred in overruling his objection to certain testimony regarding crimes allegedly committed by him prior to the alleged commission of the crimes for which he was on trial. In spite of his objection, the State was allowed to introduce testimony that the defendant had committed the crimes of rape, burglary, and crime against nature on the night of 31 January 1976, one week before the alleged commission of the crimes in the instant case.\nIt is well settled in this State that if a criminal defendant has not testified, evidence that he has committed another distinct, independent, separate offense is not admissible if its only relevancy is to show the character of the defendant or his disposition to commit an offense of the nature of the one for which he is presently on trial. State v. Felton, 283 N.C. 368, 196 S.E. 2d 239 (1973); State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). If, however, the evidence in question tends to prove any fact relevant to the charge on which the defendant is presently on trial, it is not inadmissible merely because it also shows him to have been guilty of another, independent crime. State v. Felton, supra; State v. McClain, supra.\nThe decisions in this jurisdiction have been\n. . markedly liberal in holding evidence of similar sex offenses admissible ... [to show knowledge, intent, motive, plan or design, identity, etc.] especially when the sex impulse manifested is of an unusual or \u2018unnatural\u2019 character.\u201d 1 Stansbury, N. C. Evidence, \u00a7 92 (Brandis rev. 1973). See also State v. Spain, 3 N.C. App. 266, 164 S.E. 2d 486 (1968).\nOur courts have repeatedly held other or repeated sex acts to be admissible to show: lack of consent, State v. Parish, 104 N.C. 679, 10 S.E. 457 (1889); the \u201cunnatural\u201d lust of the defendant, State v. Edwards, 224 N.C. 527, 31 S.E. 2d 516 (1944); the defendant\u2019s attitude, animus, and purpose, State v. Davis, 229 N.C. 386, 50 S.E. 2d 37 (1948); intent, design or guilt on the grounds of being in corroboration, State v. Browder, 252 N.C. 35, 112 S.E. 2d 728 (1960); modus operandi or common plan and identity of defendant, State v. McClain, 282 N.C. 357, 193 S.E. 2d 108 (1972); and quo animo or state of mind, State v. Humphrey, 283 N.C. 570, 196 S.E. 2d 516 (1973).\nThe evidence here in question was clearly relevant to show lack of consent, defendant\u2019s unnatural lust, identity as the perpetrator, and defendant\u2019s intent or state of mind. The evidence was therefore admissible.\nDefendant next contends the court erred in denying his motion to strike Patricia Gainey\u2019s testimony relating to the fact that defendant had previously been in prison. On cross-examination the defendant elicited the following testimony from Patricia Gainey: \u201cI do have a telephone in my apartment, but I did not call the police after he left.\u201d Defendant\u2019s counsel then asked: \u201cOther than asking him to stop, you didn\u2019t resist him on this occasion, did you?\u201d The response was: \u201cNo, sir. When I came back, I didn\u2019t call the Police because he had just gotten home from prison. He was on his way to Florida for trial.\u201d The defendant moved to strike this answer as unresponsive but the court denied the motion by asserting that defendant had \u201copened the door.\u201d Immediately after the court\u2019s ruling, Mrs. Gainey continued her testimony: \u201cHe just came home the day before. He was on bond from Florida. I wanted to give him a chance to be with his daughter. She loves him. I didn\u2019t want to see him back in jail, and he still had Sarah Jean too.\u201d\nWe hold that there was no abuse of discretion on the part of the trial judge in refusing to strike what appeared to be a full answer to defendant\u2019s question concerning her failure to call the police. Moreover, the prosecuting witness subsequently testified, without objection or a motion to strike, that defendant had just gotten out of prison and was going to Florida in a week \u201cfor armed robbery.\u201d Consequently, defendant\u2019s original objection to the evidence was lost since evidence of like import was admitted after the admission of the challenged testimony. State v. Jarrett, 271 N.C. 576, 157 S.E. 2d 4 (1967). This assignment of error is therefore overruled.\nDefendant\u2019s fourth assignment of error relates to the admission over objection of a physician\u2019s testimony concerning a microscopic examination of a slide and the results thereof. He contends the testimony about the examination of the vaginal fluid of the prosecuting witness failed to identify the sperma-tozoons which were found as being \u201chuman spermatozoon.\u201d This contention is untenable. Nowhere is there even a scintilla of evidence that the sperm could have been other than human. The State does not have the burden of offering scientific evidence to prove that the specific sperm found came from a specific individual. Prosecutrix testified to the completed act of intercourse. There is no question of mistaken identity. The challenged evidence tended to show penetration, one of the essential elements of rape, and was corroborative of prosecuting witness. It was properly admitted. See State v. McNeil, 277 N.C. 162, 176 S.E. 2d 732 (1970).\nDefendant contends, in his fifth assignment of error, that the court erred in allowing the pathologist to testify regarding his analysis of a slide because the State failed to establish a complete chain of custody of the slide from the time it was prepared until the time it was analyzed by the pathologist. State\u2019s testimony tended to show, however, that when the slide was prepared the prosecuting witness\u2019s name was placed on it; that the slide was then placed in a \u201crape box\u201d; that the box was then locked; that the box always remains in the emergency room until the pathology department comes to get it; and that the pathology department did in fact receive the slide two days later for pathological examination. We find that this evidence establishes a chain of custody sufficient to support allowance of the challenged testimony. See State v. Preston, 9 N.C. App. 71, 175 S.E. 2d 705 (1970). In any event, there was additional evidence of penetration from the prosecuting witness who testified in much detail on cross-examination concerning the sexual assault upon her by the defendant on 6 February 1976. She testified: \u201cHe got on the bed and had intercourse with me. . . . After we had intercourse I went to the bathroom to clean up.\u201d It necessarily follows that her use of the phrase \u201csexual intercourse\u201d encompasses actual penetration. State v. Vinson, 287 N.C. 326, 215 S.E. 2d 60 (1975). We therefore conclude that there was substantial evidence of penetration even without the expert testimony concerning the analysis of the slide. Hence, any possible error in admitting the slide testimony was harmless.\nIn defendant\u2019s sixth assignment of error he contends the court erred in admitting into evidence a fingerprint card taken when the defendant was arrested on a prior occasion in 1966, because it tends to show that he committed an earlier offense. The card admitted into evidence did not, however, list a single arrest, indictment, or conviction and the only data visible on the card was a right index fingerprint. Moreover, the only evidence admitted before the jury relating the admission of the fingerprint identification card to any e\u00e1rlier criminal offenses was the statement of Captain Turner that he had had occasion to take fingerprints of individuals and place them on fingerprint cards; that he had seen the fingerprint card in question at the identification bureau of the Wilmington Police Department; that he made defendant\u2019s fingerprint impressions from defendant\u2019s right hand index finger; and that he could identify State\u2019s exhibit of the card as being the same card as the one he used in 1966. No inference arising from this testimony could prejudice the jury in their consideration of defendant\u2019s guilt. See State v. Jackson, 284 N.C. 321, 200 S.E. 2d 626 (1973). This assignment of error is without merit.\nIn defendant\u2019s seventh assignment of error he contends the court erred in sustaining the objection of the State to the following question on re-cross examination: \u201cIt is true that you have had intercourse with Clifton Justice, is it not?\u201d If allowed to answer, she would have said \u201cYes, Sir.\u201d Defendant contends the question was relevant to explain the presence of sperm after the alleged rape. Just prior to this question the defense had elicited from the prosecuting witness testimony to the effect that she had not had intercourse with Clifton Justice during the period of time in which the alleged assault by the defendant had occurred, which was between 31 January 1976 and the night of 6 February 1976. Thus, since the prosecuting witness had denied having intercourse with Clifton Justice immediately prior to the time of the alleged crime, the defendant\u2019s contention that the question was relevant is without merit.\nDefendant\u2019s remaining assignments of error are without merit and are overruled.\nNo error.\nJudges Morris and Vaughn concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General William F. Briley, for the State.", "Rountree & Newton, by William B. Harris III, for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EARL ANDREWS GAINEY, JR.\nNo. 765SC871\n(Filed 6 April 1977)\n1. Criminal Law \u00a7 34\u2014 defendant\u2019s commission of other crimes \u2014 admissibility\nIn this prosecution for rape and crime against nature, testimony that defendant committed the crimes of burglary, ' rape and crime against nature against the prosecutrix one week before the commission of the crimes for which he was on trial was properly admitted for the purpose of showing lack of consent and defendant\u2019s unnatural lust, identity as the perpetrator, and intent or state of mind.\n2. Criminal Law \u00a7 34\u2014 defendant\u2019s commission of another crime \u2014 admissibility\nIn a prosecution for rape and crime against nature, the trial court did not err in refusing to strike testimony by the prosecutrix, in response to defendant\u2019s question as to why she failed to call the police when defendant raped her on a previous occasion, that defendant had just gotten home from prison and she didn\u2019t want to see him b\u00e1ck in jail; furthermore, the admission of such testimony was not prejudicial to defendant where similar testimony was thereafter admitted without objection.\n3. Rape \u00a7 4\u2014 expert testimony \u2014 presence of spermatozoa\nA physician was properly allowed to testify concerning the presence of spermatozoa in the vaginal fluid of an alleged rape victim although the witness failed to identify them as \u201chuman spermatozoa,\u201d since there was no evidence that the spermatozoa could have been other than human, and the testimony tended to show penetration and to corroborate the victim\u2019s testimony.\n4. Criminal Law \u00a7 50; Rape \u00a7 4\u2014 expert testimony \u2014 chain of custody of slide\nThe State\u2019s evidence in a rape case established a sufficient chain of custody of a slide to permit a pathologist to testify as to his analysis of the slide where it tended to show that the victim\u2019s name was placed on the slide when it was prepared, the slide was then placed in a \u201crape box\u201d and the box was locked, the box always remains in the emergency room until the pathology department comes to get it, and the pathology department did receive the slide two days later for pathological examination; furthermore, any error in admission of testimony about the slide was harmless in view of the victim\u2019s substantial testimony of penetration.\n5. Criminal Law \u00a7\u00a7 34, 60\u2014 fingerprint card\nDefendant in a rape prosecution was not prejudiced by the admission of a fingerprint card made in 1966 where the card did not disclose any arrest, indictment or conviction of defendant, and the only evidence relating the card to another criminal offense was an officer\u2019s testimony that he had made defendant\u2019s fingerprint impressions on the card at the Wilmington Police Department in 1966.\n6. Rape \u00a7 4\u2014 intercourse with third person \u2014 inadmissibility\nIn this rape prosecution, cross-examination of the prosecutrix as to whether she had had sexual intercourse with a third person was not relevant to explain the presence of sperm after the alleged rape where the prosecutrix had previously testified that she had not had intercourse with the other person during the week prior to the alleged rape.\nAppeal by defendant from James, Judge. Judgment entered 23 April 1976 in Superior Court, New Hanover County. Heard in the Court of Appeals 9 March 1977.\nDefendant was charged, in separate bills of indictment, proper in form, with the felonies of second-degree rape and crime against nature. He entered a plea of not guilty as to each charge.\nThe State\u2019s evidence tended to show that the defendant is the ex-husband of Patricia Gainey, the prosecuting witness. On the night of 31 January 1976, the defendant broke into Patricia Gainey\u2019s home and forced her to have intercourse and oral sex with him; prosecutrix did not call the police because defendant had just gotten out of prison and was on his way to Florida for another trial. Moreover, she did not notify the police because she wanted him to have a chance to visit with their daughter, who was staying with defendant\u2019s parents at the time.\nOn 6 February 1976 defendant again broke into Patricia Gainey\u2019s apartment in the nighttime and forced her to have intercourse and oral sex with him. She asked defendant to stop but did not put up any resistance for fear of being assaulted again. After the defendant left, she called the police and reported the incidents of 31 January and 6 February 1976.\nA set of fingerprints on a beer bottle found in the trash in Patricia Gainey\u2019s bathroom shortly after the 6 February incident matched the defendant\u2019s 1966 fingerprint card and revealed that the prints on the beer bottle were those of defendant. When a police officer attempted to arrest defendant on 7 February 1976, defendant jumped out of his truck and ran. He was subsequently arrested on 8 February 1976.\nAnn Godwin testified that she saw Patricia on the morning of 1 February 1976; that Patricia was hysterical; that she had red marks on her breasts; that she had bruises on her arms; and that she had a red mark on her throat which she said was caused by defendant\u2019s knife. Medical evidence tended to show the presence of sperm in the victim\u2019s vagina within a short time after the assault.\nDefendant offered evidence tending to show that he was at his sister-in-law\u2019s house during the hours between 5:00 p.m. on 6 February and 2:30 a.m. on 7 February 1976 when the alleged assaults occurred. His sister testified that on the day defendant was arrested she was driving him to Raeford to turn himself in.\nDefendant was found guilty of each charge and from judgment pronounced imposing imprisonment in each case, the defendant appealed.\nAttorney General Edmisten, by Assistant Attorney General William F. Briley, for the State.\nRountree & Newton, by William B. Harris III, for the defendant." }, "file_name": "0682-01", "first_page_order": 710, "last_page_order": 716 }