{
  "id": 8527718,
  "name": "STATE OF NORTH CAROLINA v. ROY RHINEHART",
  "name_abbreviation": "State v. Rhinehart",
  "decision_date": "1984-06-05",
  "docket_number": "No. 8330SC1124",
  "first_page": "615",
  "last_page": "620",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    {
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      "reporter": "N.C. App.",
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      "reporter": "So. 2d",
      "case_ids": [
        9555079
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      "year": 1982,
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          "parenthetical": "\"three specific instances of sexual activity\" held \"not so repetitive or frequent as to establish a 'pattern of behavior' \""
        }
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          "parenthetical": "a \"few isolated instances\" of consensual sexual activities between the complainant and other persons held not to present a \"pattern of conduct or behavior\" sufficient to meet test of statute"
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    {
      "cite": "302 S.E. 2d 830",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
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      "year": 1983,
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          "page": "833"
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      "cite": "62 N.C. App. 245",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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      "year": 1983,
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    {
      "cite": "295 S.E. 2d 453",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1982,
      "opinion_index": 0
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    {
      "cite": "306 N.C. 692",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "reporter": "S.E.2d",
      "year": 1980,
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      "category": "reporters:state",
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  "last_updated": "2023-07-14T17:24:21.303361+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Webb and Hill concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ROY RHINEHART"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nDefendant contends the court erred in denying him the opportunity to cross-examine the complainant regarding her prior sexual conduct with her former boyfriend on the night of the alleged rape and sexual offense. Evidence adduced at an in camera hearing pursuant to G.S. 8-58.6 established that earlier in the evening of the alleged offenses the victim had driven her former boyfriend, whom she had dated for four years, from a night spot to his home, and that she had engaged in sexual intercourse with him while there. The court ruled, following the hearing, that the complainant\u2019s consensual intercourse earlier that night was not relevant for any purpose other than to attack her credibility. It thus excluded the evidence pursuant to G.S. 8-58.6(c).\nDefendant cites State v. Fortney, 301 N.C. 31, 269 S.E. 2d 110 (1980), and State v. Younger, 306 N.C. 692, 295 S.E. 2d 453 (1982), in support of his argument that the court erred in excluding this evidence. In Fortney prior sexual conduct of the complainant on the night of the alleged rape was not at issue. In Younger, while such conduct was at issue, the holding that evidence thereof should have been admitted was not based on its relevancy and probativeness, but on its capacity to impeach the complainant\u2019s credibility in light of a prior inconsistent statement. We find neither Fortney nor Younger controlling.\nThe main thrust of defendant\u2019s argument is that the evidence was admissible under the exception to the rape shield statute which allows evidence of the sexual behavior of the complainant if it\n[i]s 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.\nG.S. 8-58.6(b)(3). This Court found evidence of such a pattern, and held that it should have been admitted, in State v. Shoffner, 62 N.C. App. 245, 302 S.E. 2d 830 (1983). The evidence excluded there \u201csuggested] that the prosecuting witness was the initiator, the aggressor, in her sexual encounters.\u201d Id. at 248, 302 S.E. 2d at 832-33. Her \u201cmodus operandi was to accost men at clubs, parties (public places) and make sexual advances by putting her hands \u2018all over their bodies.\u2019 \u201d Id. at 248, 302 S.E. 2d at 833. Seven witnesses, including the defendants, testified \u201cthat on the date of the alleged offense the prosecuting witness came to the residence of defendants and while there made sexual advances [toward one defendant] by putting her hand inside [his] pants, and suggested that the parties present have an orgy.\u201d Id. at 247, 302 S.E. 2d at 832. The evidence of the prosecuting witness\u2019s sexual behavior on past occasions was held to conform sufficiently to the defendants\u2019 version of what happened on the occasion of their alleged offenses that it should have been admitted under the closely resembling pattern exception of G.S. 8-58.6(b)(3).\nHere, by contrast, there was no such evidence of prior sexually aggressive conduct on the part of the complainant, and defendant offered no evidence of prior sexual advances which the complainant made to him. The evidence showed only that earlier in the evening defendant and the complainant had danced together two or three times at a public bar; that \u201cshe was laughing and cuttin\u2019 up with him, jokin\u2019 and that \u201c[s]he . . . just talked to him a lot.\u201d\nDefendant suggests that the facts that earlier in the evening the complainant had driven her former boyfriend home, and had engaged in consensual intercourse with him, indicate that her sexual encounter with defendant, when she drove him home or to some other location several hours later, also was consensual. Un-controverted evidence established, however, that defendant was unaware of the prior sexual encounter between the complainant and her former boyfriend. He thus could not have inferred consent therefrom. Further, as a Florida court noted in interpreting a statute similar to G.S. 8-58.6(b)(3), \u201cone episode of sexual intercourse . . . before the assault hardly establishes a \u2018pattern of conduct or behavior\u2019 on the part of the victim; and the evidence of having slept with her boyfriend on one occasion bears no relation to the issue of whether the victim consented.\u201d Hodges v. State, 386 So. 2d 888, 889 (Fla. Dist. Ct. App. 1980); see also Winters v. State, 425 So. 2d 203, 204 (Fla. Dist. Ct. App. 1983) (a \u201cfew isolated instances\u201d of consensual sexual activities between the complainant and other persons held not to present a \u201cpattern of conduct or behavior\u201d sufficient to meet test of statute); McElveen v. State, 415 So. 2d 746, 748 (Fla. Dist. Ct. App. 1982) (\u201cthree specific instances of sexual activity\u201d held \u201cnot so repetitive or frequent as to establish a \u2018pattern of behavior\u2019 \u201d). Finally, this Court has held that a complainant\u2019s activity with \u201cother third parties\u201d in \u201cdating-type circumstances\u201d properly was found not material, and that the defendant had failed \u201cto \u2018establish the basis of admissibility of such evidence\u2019 under subsection (b)(3).\u201d State v. Smith, 45 N.C. App. 501, 503-04, 263 S.E. 2d 371, 373 (1980).\nWe hold that evidence of the complainant\u2019s prior consensual intercourse with her former boyfriend earlier in the evening of defendant\u2019s alleged offenses did not qualify for admission under the closely resembling pattern exception of G.S. 8-58.6(b)(3). It was evidence of a single episode, Hodges, supra, of which defendant had no knowledge, in a situation at least closely akin to \u201cdating-type circumstances,\u201d Smith, supra. As such, cross-examination regarding it properly was excluded under G.S. 8-58.6(c) as \u201cirrelevant to any issue in the prosecution.\u201d G.S. 8-58.6(b).\nDefendant contends the court erred in excising from the complainant\u2019s written statement to a deputy sheriff regarding the events of the evening in question the sentence, \u201cCharles Sutton [the former boyfriend] and I had intercourse when I took him home.\u201d For the reasons set forth above, we hold that the court properly withheld this evidence from the jury also.\nDefendant contends the court erred in denying his request that it instruct the jury as follows:\nI further charge you that consent is a defense to the crime of rape. If you should find that the complainant consented to the act or acts as charged or that the complainant behaved in such a manner as to lead the Defendant to reasonably believe that the complainant consented to the acts as charged then it would be your duty to find the Defendant not guilty of the charges herein.\n\u201c[T]he . . . court is not required to give a requested instruction in the exact language of the request. However, when the request is correct in law and supported by the evidence in the case, [it] must give the instruction in substance.\u201d State v. Monk, 291 N.C. 37, 54, 229 S.E. 2d 163, 174 (1976).\nThe court here instructed that before the jury could find defendant guilty, the State had to prove beyond a reasonable doubt, inter alia, \u201c[t]hat [the complainant] did not consent [,] [i]t was against her will.\u201d It further instructed that \u201c[cjonsent ... induced by fear is not consent at law.\u201d We hold these instructions clearly sufficient to convey the substance of defendant\u2019s request for a charge that consent is a defense to the crime of rape.\nThe remainder of the requested instruction draws upon language of the closely resembling pattern exception of G.S. 8-58.6(b)(3). That provision establishes a standard for determining admissibility of evidence. It was not intended to, and does not, provide a legal definition of consent by the complainant with regard to sexual acts at issue in rape or sexual offense trials. The court thus properly declined to give this portion of the requested instruction.\nDefendant finally contends the court erred, following its instruction that \u201c[ejvidence of flight may be considered ... in determining whether the combined circumstances amount to an admission or show a consciousness of guilt,\u201d in refusing his request that it further instruct that: \u201cLikewise, you may also consider the cessation of flight and return in determining whether the combined circumstances amount to an admission or show a consciousness of guilt.\u201d\nA requested instruction is properly declined unless it is \u201ccorrect in law and supported by the evidence in the case.\u201d Monk, supra. Defendant cites no authority, and we are aware of none, establishing the legal accuracy of his assertion that cessation of flight may be viewed as conduct influenced by an innocent conscience. Assuming such, arguendo, the evidence did not support the requested instruction. It showed that upon being informed that the complainant \u201c[w]as going to get [him] for rape,\u201d defendant hitchhiked from Canton to Asheville, where he remained until the following day. He then \u201cdecided that [he]\u2019d just come back home and . . . face up to it.\u201d Upon his return he was advised that a warrant awaited him and that he should call a certain number. Instead of doing so, he went to bed and remained there until the sheriff came to arrest him. His conduct thus was more indicative of mere inertia than of actual cessation of flight. We hold that the court was not required to give the requested instruction.\nNo error.\nJudges Webb and Hill concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Newton G. Pritchett, Jr., for the State.",
      "Noland, Holt, Bonfoey & Davis, P.A., by J. Lynn Noland, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ROY RHINEHART\nNo. 8330SC1124\n(Filed 5 June 1984)\n1. Rape and Allied Offenses \u00a7 4.3\u2014 evidence of prosecutrix\u2019s prior consensual intercourse with former boyfriend properly excluded\nIn a prosecution for second-degree rape and second-degree sexual offense, evidence of the complainant\u2019s prior consensual intercourse with her former boyfriend earlier in the evening of defendant\u2019s alleged offenses did not qualify for admission under the closely resembling pattern exception of G.S. 8-58.6(b)(3). It was evidence of a single episode, of which defendant had no knowledge, in a situation at least closely akin to \u201cdating-type circumstances.\u201d As such, cross-examination regarding it properly was excluded under G.S. 8-58.6(c) as \u201cirrelevant to any issue in the prosecution.\u201d G.S. 8-58.6(b).\n2. Rape and Allied Offenses g 6\u2014 second-degree rape \u2014 instructions on consent sufficient\nIn a prosecution for second-degree rape and second-degree sexual offense, the trial court\u2019s instructions on consent were clearly sufficient to convey the substance of defendant\u2019s request for a charge that consent is a defense to the crime of rape.\n3. Criminal Law \u00a78 46, 112\u2014 lack of instructions regarding cessation of flight proper\nThere was no error in the trial court refusing to instruct, after its instructions concerning evidence of flight as an admission or showing consciousness of guilt, that the jury could consider the cessation of flight and return in determining whether the combined circumstances amounted to an admission or show of consciousness of guilt.\nAPPEAL by defendant from Kirby, Judge. Judgment entered 9 June 1983 in Superior Court, Haywood County. Heard in the Court of Appeals 8 May 1984.\nDefendant appeals from a judgment of imprisonment entered upon a jury verdict finding him guilty of second degree rape and second degree sexual offense.\nAttorney General Edmisten, by Associate Attorney Newton G. Pritchett, Jr., for the State.\nNoland, Holt, Bonfoey & Davis, P.A., by J. Lynn Noland, for defendant appellant."
  },
  "file_name": "0615-01",
  "first_page_order": 647,
  "last_page_order": 652
}
