{
  "id": 8527106,
  "name": "STATE OF NORTH CAROLINA v. LEWIS M. SCARBOROUGH, JR.",
  "name_abbreviation": "State v. Scarborough",
  "decision_date": "1988-12-30",
  "docket_number": "No. 881SC140",
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    "judges": [
      "Judge Smith concurs.",
      "Judge Greene concurs in part and dissents in part."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LEWIS M. SCARBOROUGH, JR."
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nThe alleged facts are that on 18 January 1987, the prosecu-trix was visiting with her aunt, the mother of defendant. After having been at her aunt\u2019s home all afternoon, the prosecutrix decided to go home and asked defendant for a ride. On the ride home, defendant turned down a road which was described as deserted and dark in a cut-out area of the woods. Defendant told the prosecutrix that he had something to \u201cshow\u201d her.\nThe prosecutrix noticed that defendant was \u201cplaying with his private parts\u201d and that he had taken his penis out. Defendant got out of the jeep and silently walked around to the passenger side where the prosecutrix was. He opened her door and touched her about her vaginal area through her pants and underpants. After unzipping his pants and pulling down the prosecutrix\u2019s pants and underpants, defendant had vaginal intercourse with her.\nThe prosecutrix testified that although she did not scream or fight defendant because she was scared and thought it would be useless, she did tell him that \u201cwe shouldn\u2019t . . . .\u201d Defendant\u2019s response indicated that they would \u201cdo it sometime anyway.\u201d\nDefendant took the prosecutrix home, dropped her off and told her \u201cgood night.\u201d Her father and stepmother were at home and awake but she did not mention the incident. It was not until several days later that she told a girlfriend and defendant\u2019s estranged wife. Months later she told her boyfriend, who is now her husband. At his insistence, the prosecutrix told her family and spoke with a police officer about the occurrence. The prosecu-trix was interviewed by Deputy Cheesman about the incident in March of 1987. Defendant was arrested and charged as previously indicated.\nSeveral articles appeared in a local newspaper about defendant\u2019s various sex related charges and convictions between the period of 10 June 1986 and 15 September 1987. Defendant denied all allegations of wrongdoing. At trial, defendant\u2019s witnesses testified that the prosecutrix was taken home by her father and that defendant stayed at his parents\u2019 home all evening until he went to his home for the night.\nI.\nThe first issue before this Court is whether the trial court erred in denying defendant\u2019s motion for a change of venue due to substantial pretrial publicity that prevented defendant from receiving a fair and impartial trial.\nIn the absence of a showing by the defendant that the lower court \u201cgrossly]\u201d abused its discretion on this matter, there can be no reversal of its decision. State v. Matthews, 295 N.C. 265, 279, 245 S.E. 2d 727, 735 (1978), cert. denied, 439 U.S. 1128 (1979).\nThe test for whether a change of venue should be granted is whether the defendant has established \u201cthat it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed.\u201d State v. Jerrett, 309 N.C. 239, 255, 307 S.E. 2d 339, 347 (1983).\nIn the instant case, defendant has neither alleged nor proven that the information in the media was inaccurate or untrue. Moreover, defendant did not demonstrate that it was likely that the jurors would improperly base their decisions on any pretrial evidence of which they were aware.\nIn addition, defendant produced no evidence on the circulation of newspapers containing articles about him, and there was no evidence of how the articles had impacted on the community\u2019s opinion of him. Defendant offered testimony from one witness stating that in her opinion defendant would not receive a fair trial in the county. This witness also stated, however, that she personally did not know of any talk in the community about the defendant\u2019s circumstances.\nFurthermore, defendant presented no evidence showing how the comments of a prospective jury member tainted the opinions of the other members as alleged. Veniremen were liberally removed by the defense. None of the remaining members indicated that they would have difficulty giving defendant the fair trial to which he was entitled. In the absence of some credible proof of prejudice to defendant we find no ground for reversing the lower court\u2019s decision with respect to this issue.\nII.\nNext, we will address whether the trial court properly permitted a prior statement of the prosecutrix which defendant alleges also included additional, inconsistent and noncorroborating matters.\nInitially, it must be noted that \u201c[t]rial judges are granted broad discretion in admitting evidence which goes to the credibility of witnesses.\u201d State v. Covington, 290 N.C. 313, 337, 226 S.E. 2d 629, 645 (1976). (Citation omitted.) Reversal of a decision, therefore, may be had only upon a sufficient showing of an abuse of discretion. Our Supreme Court considered a similar. issue in State v. Ramey, 318 N.C. 457, 469, 349 S.E. 2d 566, 573 (1986). In Ramey, the Court stated that:\n[i]n order to be corroborative and therefore properly admissible, the prior statement of the witness need not merely relate to specific facts brought out in the witness\u2019s testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony.\nFurthermore, \u201c[t]o be admissible as corroborative evidence, testimony of a prior statement by the witness sought to be corroborated does not have to be precisely identical to such prior testimony of that witness.\u201d State v. Madden, 292 N.C. 114, 128, 232 S.E. 2d 656, 665 (1977).\nDeputy Cheesman\u2019s testimony did corroborate the prosecu-trix\u2019s statements. He testified that the prosecutrix told defendant \u201cI don\u2019t really want to do this.\u201d Defendant claims that statement is inconsistent with the prosecutrix\u2019s testimony that they shouldn\u2019t have sex. The two statements are not so dissimilar as to establish an abuse of discretion by the trial court in allowing the former statement into evidence as corroborative testimony. Based upon the foregoing facts, we conclude that there was no error as to this issue.\nHH I \u2014 1 I \u2014 1\nLikewise, we find that there is little merit in defendant\u2019s challenge to the jury instructions. In those instructions the trial court stated that:\n[AJnything that the witness, Linda Beasley, might have said to this officer at another time is not to be considered as evidence as what was said .... If you find that it was, in fact, said, then you may consider it. If you find it corroborates her testimony at this trial or if it conflicts her testimony at this trial, then you may consider this ....\nDefendant argues that the instruction allows the jury to consider the statement as substantive. However, we find that in considering the entire instruction contextually, the trial court made it clear that the evidence was not to be considered for substantive purposes. See State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976).\nIV.\nNext, we are asked to consider whether defendant\u2019s motion to dismiss should have been granted as to the second-degree rape charge due to an insufficiency of the evidence.\nIn considering defendant\u2019s motion to dismiss, the trial court was required to \u201cconsider all the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference of fact arising from the evidence.\u201d State v. Easterling, 300 N.C. 594, 604, 268 S.E. 2d 800, 807 (1980).\nDefendant contends that there was no evidence that he used or threatened to use force so as to overcome the prosecutrix\u2019s will as contemplated by G.S. 14-27.3(a)(1). Defendant bases his argument on the case of State v. Alston, 310 N.C. 399, 312 S.E. 2d 470 (1984). The Alston court found that the victim\u2019s general fear of her attacker was insufficient where she had previously engaged in consensual intercourse with him. However, State v. Etheridge, 319 N.C. 34, 352 S.E. 2d 673 (1987) limited Alston to \u201cthose situations which are factually similar to Alston.\u201d 319 N.C. at 47, 352 S.E. 2d at 681. Here, defendant made no allegations that he and the prosecutrix had ever engaged in consensual intercourse. Consequently, the facts in Alston are distinguishable.\nDefendant introduced evidence which tended to imply that the prosecutrix\u2019s love for him exceeded the realm of healthy family concern and bordered on a romantic type attraction.\nOn the other hand, the State produced evidence which tended to show that the prosecutrix was only 15 years old and the defendant, her cousin, was 35 years old. The State\u2019s evidence indicated that the alleged attack took place in a dark remote wooded area and that the prosecutrix was scared.\nBased upon the evidence which was presented, the court was correct in submitting the charge of second-degree rape to the jury. When there is conflicting evidence, it is the jury\u2019s duty to determine what the facts are and reconcile any differences between the State\u2019s evidence and the defense\u2019s evidence. See State v. Spangler, 314 N.C. 374, 333 S.E. 2d 722 (1985). This assignment of error is overruled.\nV.\nFinally, defendant contends it was error for the trial court to allow the prosecutrix to testify as to defendant\u2019s reputation in the community and as to what she believed defendant would do to her to establish her fearful state of mind and her lack of consent to the alleged rape.\nDefendant argues that G.S. 8C-1, Rule 403 and Rule 404 precluded the admission of the prosecutrix\u2019s statements. He claims that he was unduly prejudiced before the jury and that he is therefore entitled to a new trial. G.S. 8C-1, Rule 403 excludes evidence which is otherwise admissible if the probative value of such testimony is substantially outweighed by its prejudicial effect. Rule 404, with limited exceptions, will preclude character evidence which is offered to show that defendant acted in conformity with such character traits on the particular occasion involved. Such exceptions include admitting character evidence to prove \u201cmotive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake, entrapment or accident.\u201d State v. McKoy, 317 N.C. 519, 530, 347 S.E. 2d 374, 381 (1986) (emphasis in original). (Mitchell, J., concurring.)\nAt the trial, prosecutrix testified that she was scared of defendant and that she did not scream or fight him because she knew \u201cwhat he had done to other girls.\u201d This testimony introduced evidence of defendant\u2019s prior bad conduct. In essence, the State sought to introduce through the back door what it clearly could not introduce through the front door \u2014 an attack on defendant\u2019s character by showing a disposition to commit offenses similar to those for which the defendant was on trial.\nThis Court is aware of the inherent dangers of allowing the jury to consider such evidence. We have stated on numerous occasions that \u201c[e]ven if evidence is admissible under Rule 404(b), the trial court still must determine whether its probative value outweighs the danger of undue prejudice to the defendant.\u201d State v. Frazier, 319 N.C. 388, 390, 354 S.E. 2d 475, 477 (1987).\nThe evidence which was admitted could have conceivably misled the jury, confused the issues and caused the jury to decide this case on improper grounds. In light of other evidence which implied that the prosecutrix had more than a mere healthy familial love for defendant, as evidenced by her letter to defendant stating \u201cyou [defendant] need all the love and tenderness you can hold and if it comes right down to it, I will give it all to you myself,\u201d reasonable minds may have differed on whether or not the intercourse was consensual. The giving of consent would have vitiated any allegation of forced intercourse. Therefore, we cannot say that there is no reasonable possibility that another result would not have been reached if this testimony had not . been admitted in error.\nWe conclude that even if the purpose for which the State introduced the testimony was a permissible one, the probative value of that testimony was substantially outweighed by its prejudicial effect. Therefore, we reverse the judgment entered below and order a new trial.\nReversed and remanded.\nJudge Smith concurs.\nJudge Greene concurs in part and dissents in part.",
        "type": "majority",
        "author": "ORR, Judge."
      },
      {
        "text": "Judge GREENE\nconcurring in part and dissenting in part.\nI join with the majority except to the extent that the majority holds the prosecutrix\u2019s testimony that she did not scream or fight the defendant because she knew \u201cwhat he had done to other girls\u201d is inadmissible under N.C.G.S. Sec. 8C-1, Rule 404(b) (1986) and N.C.G.S. Sec. 8C-1, Rule 403 (1986). I find no error in the defendant\u2019s trial and would not grant him a new one.\nI cannot agree that the only relevance of the prosecutrix\u2019s statement is to show the character of the accused and that he acted in conformity therewith. State v. Young, 317 N.C. 396, 412, 346 S.E. 2d 626, 635 (1986) (evidence of other offenses is admissible if it tends to prove any other relevant fact); State v. Emery, 91 N.C. App. 24, 33, 370 S.E. 2d 456, 461 (1988) (\u201cevidence of other offenses is admissible so long as it is relevant to any issue other than the character of the accused\u201d). Here the defendant was charged and convicted of second-degree rape, which offense requires proof that the offense was committed \u201cagainst the will\u201d of the victim. N.C.G.S. Sec. 14-27.3 (1986). Accordingly, the prosecu-trix\u2019s evidence of her awareness of the prior conduct of the defendant is admissible to show that her \u201cwill had been overcome by her fears for her safety.\u201d Young, 317 N.C. at 413, 346 S.E. 2d at 636. Therefore, the prosecutrix\u2019s testimony was competent to explain her unusual defensive behavior and was probative on the issue of whether her will had been overcome in part by her fears for her safety.\nEven if this evidence is admissible under Rule 404(b), its probative value must still outweigh the danger of undue prejudice to the defendant in order to be admissible under Rule 403. State v. Frazier, 319 N.C. 388, 390, 354 S.E. 2d 475, 477 (1987). Here the majority concludes that the probative value of the testimony was \u201csubstantially outweighed by its prejudicial effect\u201d because the evidence \u201ccould have conceivably misled the jury, confused the issues and caused the jury to decide this case on improper grounds.\u201d I disagree. The issue of whether to exclude the evidence under Rule 403 is a matter \u201cwithin the sound discretion of the trial court, \u2018and his ruling may be reversed for an abuse of discretion only upon a showing that it \u201cwas so arbitrary that it could not have been the result of a reasoned decision.\u201d \u2019 \u201d State v. Jones, 89 N.C. App. 584, 594, 367 S.E. 2d 139, 145 (1988) (citations omitted). Here the record discloses no abuse of discretion by the trial court in admitting this evidence.",
        "type": "concurrence",
        "author": "Judge GREENE"
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Associate Attorney General Robin Perkins Pendergraft, for the State.",
      "John W. Halstead, Jr., for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LEWIS M. SCARBOROUGH, JR.\nNo. 881SC140\n(Filed 30 December 1988)\n1. Criminal Law 8 15.1\u2014 pretrial newspaper publicity \u2014 change o\u00ed venue properly denied\nThe trial court did not err in denying defendant\u2019s motion for a change of venue due to substantial pretrial publicity which prevented defendant from receiving a fair and impartial trial where defendant did not allege or prove that the information in the newspaper concerning defendant\u2019s various sex-related charges and convictions was inaccurate or untrue; defendant did not demonstrate that it was likely that the jurors would improperly base their decisions on any pretrial evidence of which they were aware; defendant produced no evidence on the circulation of newspapers containing articles about him; there was no evidence as to how the articles had affected the community's opinion of defendant; and defendant presented no evidence showing how the comments of a prospective jury member tainted the opinions of the other members as alleged.\n2. Criminal Law \u00a7 89.3\u2014 prior corroborative statement \u2014 statement sufficiently similar to witness\u2019s testimony\nIn a prosecution for second degree rape and taking indecent liberties with a minor, the statement of the prosecutrix to defendant, \u201cI don\u2019t really want to do this,\u201d was not so inconsistent with the prosecutrix\u2019s testimony that she told defendant that they shouldn\u2019t have sex as to establish an abuse of discretion by the trial court in allowing the former statement into evidence as corroborative testimony.\n3. Criminal Law 8 89.3\u2014 witness\u2019s prior statement not treated as substantive evidence\nThe trial court\u2019s instructions did not allow the jury to consider the prose-cutrix\u2019s prior statement as substantive evidence.\n4. Rape and Allied Offenses 8 5\u2014 second degree rape \u2014 use of force \u2014sufficiency of evidence\nIn a prosecution for second degree rape, there was no merit to defendant\u2019s contention that there was no evidence that he used or threatened to use force so as to overcome the prosecutrix\u2019s will as contemplated by N.C.G.S. \u00a7 14-27.3(a)(l), since the State\u2019s evidence tended to show that the prosecutrix was only 15 years old and the defendant, her cousin, was 35 years old; the alleged attack took place in a dark, remote wooded area; and the pros-ecutrix did not scream or fight defendant because she was scared and thought it would be useless.\n5. Criminal Law 8 34.1; Rape and Allied Offenses 8 4.1\u2014 victim\u2019s statement about defendant\u2019s prior acts \u2014 admission prejudicial error\nThe trial court in a second degree rape case erred in allowing the prosecu-trix to testify that she was scared of defendant and that she did not scream or fight him because she knew \u201cwhat he had done to other girls,\u201d even if the State\u2019s purpose in introducing the evidence was a permissible one, since the probative value of that testimony was substantially outweighed by its prejudicial effect. N.C.G.S. \u00a7 8C-1, Rules 403 and 404.\nJudge Gkeene concurring in part and dissenting in part.\nAppeal by defendant from Freeman, Judge. Judgment entered 17 September 1987 in Superior Court, Dare County. Heard in the Court of Appeals 27 September 1988.\nUpon indictment, proper in form, defendant was convicted of second-degree rape and taking indecent liberties with a minor. From that judgment, defendant now appeals.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Robin Perkins Pendergraft, for the State.\nJohn W. Halstead, Jr., for defendant-appellant."
  },
  "file_name": "0422-01",
  "first_page_order": 452,
  "last_page_order": 460
}
