{ "id": 8527157, "name": "STATE OF NORTH CAROLINA v. CALVIN SUMMERS", "name_abbreviation": "State v. Summers", "decision_date": "1988-12-30", "docket_number": "No. 8826SC177", "first_page": "453", "last_page": "460", "citations": [ { "type": "official", "cite": "92 N.C. App. 453" } ], "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": "369 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "excluding proof of seven-to-twelve-year-old incidents" } ], "opinion_index": 0 }, { "cite": "322 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514083 ], "year": 1988, "pin_cites": [ { "parenthetical": "excluding proof of seven-to-twelve-year-old incidents" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0585-01" ] }, { "cite": "364 S.E. 2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "119" }, { "page": "120" } ], "opinion_index": 0 }, { "cite": "321 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569213 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "577" }, { "page": "577-78" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0574-01" ] }, { "cite": "279 S.E. 2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "303 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574100 ], "year": 1981, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0507-01" ] }, { "cite": "350 S.E. 2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "81" } ], "opinion_index": 0 }, { "cite": "318 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732149 ], "year": 1986, "pin_cites": [ { "page": "596-97" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0590-01" ] }, { "cite": "303 S.E. 2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "806-07", "parenthetical": "applying \"plain error\" review to failure to object under Rule 10(b)(1)" }, { "page": "807" } ], "opinion_index": 0 }, { "cite": "308 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710863 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "741", "parenthetical": "applying \"plain error\" review to failure to object under Rule 10(b)(1)" }, { "page": "741" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0736-01" ] }, { "cite": "252 S.E. 2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "724" } ], "opinion_index": 0 }, { "cite": "296 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569846 ], "year": 1979, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0623-01" ] }, { "cite": "352 S.E. 2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "425", "parenthetical": "substantial evidence for rape charge where victim testified defendant put his \"privacy\" into, her \"privacy\"" } ], "opinion_index": 0 }, { "cite": "319 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4745368 ], "year": 1987, "pin_cites": [ { "page": "86", "parenthetical": "substantial evidence for rape charge where victim testified defendant put his \"privacy\" into, her \"privacy\"" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0084-01" ] }, { "cite": "239 S.E. 2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "443" }, { "page": "413" } ], "opinion_index": 0 }, { "cite": "293 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566719 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "622" }, { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0616-01" ] }, { "cite": "321 S.E. 2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "861", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "312 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753111 ], "year": 1984, "pin_cites": [ { "page": "244-45", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0237-01" ] }, { "cite": "92 S.E. 2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "205", "parenthetical": "appellate court considers even evidence determined on appeal to have been erroneously admitted" } ], "opinion_index": 0 }, { "cite": "243 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627281 ], "year": 1956, "pin_cites": [ { "page": "774", "parenthetical": "appellate court considers even evidence determined on appeal to have been erroneously admitted" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0771-01" ] }, { "cite": "372 S.E. 2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "323 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560790 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0350-01" ] }, { "cite": "337 S.E. 2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "315 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714446 ], "year": 1985, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0273-01" ] } ], "analysis": { "cardinality": 707, "char_count": 15816, "ocr_confidence": 0.816, "pagerank": { "raw": 2.828092056892744e-07, "percentile": 0.8389465949559222 }, "sha256": "d2df94007bcb7c7a6868c808840626555819922f7d82c6111b76efa6e72a57c6", "simhash": "1:8a8ee93267f685fa", "word_count": 2617 }, "last_updated": "2023-07-14T21:55:11.858082+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and SMITH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CALVIN SUMMERS" ], "opinions": [ { "text": "GREENE, Judge.\nDefendant was convicted of first-degree rape under Section 14-27.2(a)(l) and of taking indecent liberties with children under Section 14-202.1. N.C.G.S. Sec. 14-27.2(a)(l) (1986); N.C.G.S. Sec. 14-202.1 (1986). The trial court arrested the indecent liberties verdict and sentenced defendant to life imprisonment. Defendant appeals.\nThe State\u2019s evidence tended to show that the eleven-year old victim lived with her mother and defendant. On or about 1 December 1986, defendant entered the victim\u2019s bedroom after her mother left for work, removed the victim\u2019s panties, got on top of her and put his \u201cprivate\u201d inside her \u201cprivate.\u201d The next day, the victim told her mother what had happened and the mother took her to a hospital where a physical examination by Dr. Nadel revealed the victim\u2019s hymen was not intact. The examining physician further testified that the victim stated that defendant had put his penis inside her and touched her between her legs and on her breasts. An investigating officer testified the victim stated to him that the defendant had gotten into her bed, fondled her breasts and legs and put his \u201cthing\u201d inside her.\nDefendant\u2019s own testimony and other evidence tended to show that he had lived with the victim\u2019s mother for approximately eight years and on the evening in question the victim had asked him to put some salve on her leg rash. He stated he had never fondled her or had sexual intercourse with her.\nThe dispositive issues presented are: I) whether the trial court erroneously denied defendant\u2019s motion to dismiss the charge of first-degree rape; II) whether the trial court erroneously required defendant to object to the examining physician\u2019s testimony as it occurred rather than grant defendant\u2019s motion in limine to exclude certain statements allegedly made by the victim during her physical examination; and III) whether evidence of defendant\u2019s prior sexual contact with the victim was properly admitted.\nI\nDefendant first argues the trial court erroneously denied his motion to dismiss the first-degree rape charge for lack of substantial evidence. Upon a motion to dismiss, the court determines as a matter of law whether there is substantial evidence of each essential element of the charged offense and whether the defendant is the perpetrator of the offense. State v. Bruce, 315 N.C. 273, 281, 337 S.E. 2d 510, 515 (1985). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Scott, 323 N.C. 350, 372 S.E. 2d 572, 575 (1988). In determining whether there is substantial evidence of each element, the court is required to consider all of the evidence \u2014 whether competent or incompetent \u2014 in the light most favorable to the State and allow the State all reasonable inferences that may be drawn from all the evidence so considered. Id.; State v. McMilliam, 243 N.C. 771, 774, 92 S.E. 2d 202, 205 (1956) (appellate court considers even evidence determined on appeal to have been erroneously admitted).\nAn essential element of rape under Section 14.272(a)(1) is vaginal intercourse which is defined as \u201cthe slightest penetration of the female sex organ by the male sex organ.\u201d State v. Brown, 312 N.C. 237, 244-45, 321 S.E. 2d 856, 861 (1984) (emphasis in original); Section 14-27.2(a)(1) (requiring vaginal intercourse). Defendant disputes whether the State presented substantial evidence at trial to permit the conclusion that defendant had vaginal intercourse with the victim. Defendant specifically notes that at no time during the victim\u2019s testimony did she use the words \u201cpenis\u201d or \u201cvagina,\u201d nor was the victim asked to point to her anatomy nor asked to use anatomical dolls to describe what happened. However, the law \u201cdoes not disqualify a little girl, alleged to have been the victim of a sexual assault, to testify as a witness concerning the acts of the defendant, or belittle the significance of her testimony, merely because she does not identify with scientific accuracy the portions of her anatomy and that of the defendant involved in the assault. . . .\u201d State v. Shaw, 293 N.C. 616, 622, 239 S.E. 2d 439, 443 (1977).\nViewed most favorably to the State, the evidence tends to show that the eleven-year-old victim was asleep in her own bed on 1 December 1986 when defendant came into her room and took off her panties. The victim told the defendant to go into his own room but the defendant instead put his \u201cprivate\u201d in her \u201cprivate\u201d between her legs. Doctor Nadel testified his examination revealed a hymen that was not intact and that a hymen does not remain intact during sexual intercourse. Doctor Nadel further testified that from his conversations with the victim he determined to his \u201cown satisfaction\u201d that a penis had penetrated her vagina. Officer Bohn testified the victim stated to him that defendant \u201cgot on top of me and put his \u2018thing\u2019 inside of me.\u201d\nAlthough the victim\u2019s own testimony was perhaps scientifically inaccurate and somewhat ambiguous, it was corroborated by the testimony of numerous other witnesses. Therefore, the victim\u2019s arguably imprecise testimony at worst raises a question for the jury as to her meaning and credibility. See Shaw, 293 N.C. at 623, 239 S.E. 2d at 413. However, the testimony of the victim, Dr. Nadel and Officer Bohn was clearly such that reasonable minds could accept the conclusion beyond a reasonable doubt that defendant\u2019s penis penetrated the victim\u2019s vagina. Cf. State v. Hicks, 319 N.C. 84, 86, 352 S.E. 2d 424, 425 (1987) (substantial evidence for rape charge where victim testified defendant put his \u201cprivacy\u201d into, her \u201cprivacy\u201d). Therefore, the trial court did not err in denying the defendant\u2019s motion to dismiss the charge of first-degree rape.\nII\nDefendant next challenges Dr. Nadel\u2019s testimony in two ways. First, defendant claims the trial court erroneously failed to rule on his motion in limine to bar any testimony by Dr. Nadel that the victim had stated she had been raped by defendant several times during the preceding month and that, during the 1 December 1986 episode, defendant \u201cbegan touching her genitalia [and] about the breasts, pulled down her panties and entered her vaginally while he lay on top of her.\u201d In his motion in limine, defendant contended these statements were inadmissible hearsay which were not the victim\u2019s statements but were merely Dr. Nadel\u2019s interpretation of what the victim told him during the physical examination. However, after Dr. Nadel\u2019s voir dire, the trial court stated it would allow Dr. Nadel to testify and would simply rule on defendant\u2019s specific objections as Dr. Nadel testified. When informed of this decision, defendant\u2019s counsel replied, \u201cFine,\u201d and never objected to the trial court\u2019s procedure for questioning Dr. Nadel. Absent any objection, defendant may not challenge the court\u2019s action on appeal. N.C.R. App. 10(b)(1). We in any event note defendant has failed to show how he was prejudiced by the questioning procedure utilized by the trial court. Under these circumstances, defendant has failed to show the trial judge abused his discretion in requiring defendant to object to Dr. Nadel\u2019s testimony at trial. See State v. Ruof 296 N.C. 623, 628, 252 S.E. 2d 720, 724 (1979). Furthermore, the trial court\u2019s action under these circumstances was not \u201cplain error\u201d as alleged by defendant. State v. Black, 308 N.C. 736, 741, 303 S.E. 2d 804, 806-07 (1983) (applying \u201cplain error\u201d review to failure to object under Rule 10(b)(1)).\nSecond, defendant challenges the trial court\u2019s admission over defendant\u2019s objection of certain other hearsay testimony by Dr. Nadel. Specifically, Dr. Nadel testified he asked the victim if \u201canything\u201d was put inside her and the victim responded, \u201cYes.\u201d This conversation between Dr. Nadel and the victim arose during Dr. Nadel\u2019s physical examination of the victim in the emergency room of Charlotte Memorial Hospital the day after the alleged rape. The victim had been taken to the emergency room for diagnosis and treatment by her mother who suspected rape. We conclude from these facts that the victim\u2019s statements to Dr. Nadel were made for the purposes of diagnosis and treatment and were reasonably pertinent to Dr. Nadel\u2019s diagnosis and treatment. The question and answer were therefore permitted as an exception to the general hearsay rule. N.C.G.S. Sec. 8C-1, Rule 803(4) (1986); State v. Aguallo, 318 N.C. 590, 596-97, 350 S.E. 2d 76, 81 (1986).\nWe note in passing that defendant also challenges Dr. Nadel\u2019s testimony that he determined to his \u201cown satisfaction\u201d that a penis had penetrated the victim\u2019s vagina despite the fact he could not recall the exact words used by the victim. Irrespective of any hearsay exceptions, defendant argues that Dr. Nadel should have been confined to restating the precise words used by the victim and was precluded from making his own inferences from the victim\u2019s words. However, we need not address this argument since defendant did not object at trial to Dr. Nadel\u2019s testimony in this respect and therefore waived any right to challenge that testimony on appeal. N.C.R. App. P. 10(b)(1). Nor has defendant demonstrated the trial court\u2019s error, if any, was so fundamental as to justify our \u201cplain error\u201d review. Black, 308 N.C. at 741, 303 S.E. 2d at 807. We again note there was ample other evidence before the trial court to support the jury\u2019s verdict.\nHH HH HH\nDefendant finally raises numerous assignments of error arising from the testimony of the victim, Dr. Nadel and Officer Bohn indicating defendant had sexual contact with the victim prior to the incident for which he was charged. Defendant thus claims not only that the court erroneously admitted such evidence, but also that the court should have severed the trial of the rape and indecent liberties charges and claims defense counsel\u2019s failure or inability to accomplish these ends constituted ineffective assistance of counsel. However, as we reject the premise that evidence of these prior sexual contacts was inadmissible, we reject these assignments of error.\nThe victim testified in part as follows:\nQ. Okay. What did you finally tell your moma about what had happened?\nA. I told her that [the defendant] come in my room nights and say he was going to put me asleep and then he'll climb in my bed and start feeling all over me and then took off my \u2014 take off my panties and then stick his private in me.\nQ. Okay. Had this happened before?\nA. It happened about, I guess ten times in the total of a year.\nThe victim\u2019s testimony was corroborated by the testimony of Dr. Nadel and Officer Bohn that the victim made similar statements to them.\nWhile Rule 404(a) of our rules of evidence states that evidence of a person\u2019s character is not admissible to prove he acted in conformity therewith on a particular occasion, Rule 404(b) states:\nOther crimes, wrongs or acts. \u2014 Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nN.C.G.S. Sec. 8C-1, Rule 404(a), (b) (1986). \u201cOur courts have been very liberal in admitting evidence of similar sex crimes in construing the exception to the general rule\u201d excluding character evidence as set forth in 404(a). State v. Williams, 303 N.C. 507, 513, 279 S.E. 2d 592, 596 (1981). However, to be admitted under Rule 404(b), the evidence must not only be of a similar sexual contact, but must also not be so remote in time as to be more prejudicial than probative under the balancing test of Rule 403. State v. Boyd, 321 N.C. 574, 577, 364 S.E. 2d 118, 119 (1988).\nThe challenged testimony by the victim, Dr. Nadel and Officer Bohn tends to establish a plan or scheme by defendant to sexually abuse the victim when the victim\u2019s mother went to work; furthermore, as the alleged prior incidents occurred within twelve months prior to the incident for which defendant was charged, proof of the incidents was not so remote in time as to outweigh its probative force. See Boyd, 321 N.C. at 577-78, 364 S.E. 2d at 120; cf. State v. Jones, 322 N.C. 585, 369 S.E. 2d 822 (1988) (excluding proof of seven-to-twelve-year-old incidents). We thus hold the trial court did not err in allowing evidence of these prior incidents.\nDefendant sets forth other assignments of error, several of which fail to state their basis or ground as required under Rule 10(c) of our appellate rules. Nevertheless, we have reviewed those assignments of error pursuant to Appellate Rule 2 and find them either moot or meritless in light of our earlier discussion.\nNo error.\nJudges ORR and SMITH concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Jane Rankin Thompson, for the State.", "Grant Smithson for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CALVIN SUMMERS\nNo. 8826SC177\n(Filed 30 December 1988)\n1. Rape and Allied Offenses \u00a7 5\u2014 first degree rape \u201411-year-old victim\u2019s testimony not scientifically accurate \u2014 sufficiency of evidence\nThe trial court did not err in denying defendant\u2019s motion to dismiss the charge of first degree rape, though the victim\u2019s testimony was not scientifically accurate, where the evidence tended to show that the 11-year-old victim was asleep in her own bed when defendant came into her room and took off her panties; the victim told defendant to go into his own room, but defendant instead put his \u201cprivate\u201d in her \u201cprivate\u201d between her legs; a doctor testified that his examination revealed that her hymen was not intact, and a hymen does not remain intact during sexual intercourse; the doctor further testified that from his conversations with the victim, he determined to his \u201cown satisfaction\u201d that a penis had penetrated her vagina; and an officer testified the vie-tim stated to him that defendant \u201cgot on top of me and put his \u2018thing\u2019 inside of me.\u201d\n2. Criminal Law 8 162\u2014 motion in limine to suppress testimony \u2014 requiring objections at trial \u2014 no abuse of discretion\nThe trial court in a rape case did not abuse its discretion in requiring defendant to object to the examining physician\u2019s testimony as it occurred at trial rather than ruling on defendant\u2019s motion in limine to exclude certain statements allegedly made by the victim during her examination where defendant failed to object to the court\u2019s ruling, and defendant failed to show how he was prejudiced by the questioning procedure utilized by the trial court.\n3. Criminal Law 8 73.2\u2014 first degree rape \u2014 victim\u2019s statement to doctor for purpose of diagnosis and treatment \u2014 doctor\u2019s testimony admissible\nThe trial court in a first degree rape case did not err in allowing a doctor to testify concerning the victim\u2019s statements to him since the statements were made for the purpose of diagnosis and treatment and were therefore permitted as an exception to the general hearsay rule. N.C.G.S. \u00a7 8C-1, Rule 803(4).\n4. Rape and Allied Offenses 8 4.1\u2014 first degree rape \u2014 evidence of similar incidents \u2014admissibility\nThe trial court in a first degree rape case did not err in allowing evidence of similar incidents committed against the victim by defendant where the challenged testimony tended to establish a plan or scheme by defendant to sexually abuse the victim when her mother went to work, and proof of the incidents, which allegedly occurred within twelve months prior to the incident for which defendant was charged, was not so remote in time as to outweigh its probative force. N.C.G.S. \u00a7 8C-1, Rule 404(b).\nAPPEAL by defendant from Burroughs (Robert M.j, Judge. Judgment entered 23 September 1987 in Superior Court, Meck-lenburg County. Heard in the Court of Appeals 27 September 1988.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Jane Rankin Thompson, for the State.\nGrant Smithson for defendant-appellant." }, "file_name": "0453-01", "first_page_order": 483, "last_page_order": 490 }