{ "id": 8528058, "name": "STATE OF NORTH CAROLINA v. EMMETT DANIEL HELMS", "name_abbreviation": "State v. Helms", "decision_date": "1989-04-18", "docket_number": "No. 8829SC789", "first_page": "394", "last_page": "404", "citations": [ { "type": "official", "cite": "93 N.C. App. 394" } ], "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": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 4, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "357 S.E. 2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "366", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "320 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729914 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0020-01" ] }, { "cite": "359 S.E. 2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "772" } ], "opinion_index": 0 }, { "cite": "320 N.C. 564", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725856 ], "year": 1987, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0564-01" ] }, { "cite": "348 S.E. 2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "607" }, { "page": "607" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357968 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "45-46" }, { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0042-01" ] }, { "cite": "361 S.E. 2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "734" }, { "page": "734" } ], "opinion_index": 0 }, { "cite": "321 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568364 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0042-01" ] }, { "cite": "272 S.E. 2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1980, "pin_cites": [ { "page": "125", "parenthetical": "emphasis added" }, { "page": "125", "parenthetical": "emphasis added" }, { "page": "125" }, { "page": "125" }, { "page": "125" } ], "opinion_index": 0 }, { "cite": "301 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568158 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "511", "parenthetical": "emphasis added" }, { "page": "511" }, { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0508-01" ] }, { "cite": "221 S.E. 2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "352", "parenthetical": "certified record imports verity and binds appellate court" } ], "opinion_index": 0 }, { "cite": "289 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567721 ], "year": 1976, "pin_cites": [ { "page": "234-35", "parenthetical": "certified record imports verity and binds appellate court" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0232-01" ] }, { "cite": "331 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1985, "pin_cites": [ { "page": "656" }, { "page": "656-57" }, { "page": "658" }, { "page": "658" }, { "page": "657" }, { "page": "659" } ], "opinion_index": 0 }, { "cite": "314 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689817 ], "weight": 5, "year": 1985, "pin_cites": [ { "page": "34" }, { "page": "35" }, { "page": "37" }, { "page": "38" }, { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0028-01" ] } ], "analysis": { "cardinality": 944, "char_count": 23872, "ocr_confidence": 0.764, "pagerank": { "raw": 1.529070452357654e-07, "percentile": 0.6707551289669784 }, "sha256": "70a7337f60cbeae52a7e2e30b3ef340f8dcbe05c49b9adfb2195bc89613a2b53", "simhash": "1:1a2a7568a43350d3", "word_count": 4010 }, "last_updated": "2023-07-14T17:06:43.799233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Orr concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EMMETT DANIEL HELMS" ], "opinions": [ { "text": "BECTON, Judge.\nOn 17 March 1988, a jury convicted defendant, Emmett Daniel Helms, of one count of first degree sexual offense (engaging in fellatio with his son). The trial judge sentenced defendant to the statutory term of life imprisonment. Defendant appeals. We reverse the judgment and remand the case for a new trial.\nI\nDefendant, Emmett Daniel Helms, and Ruth Beddingfield married in August 1982. Their son, whom we shall call \u201cA.H.,\u201d was born the following September. In April 1985, defendant and Ruth Helms separated. Ms. Helms took custody of A.H., and the two went to live with Ms. Helms\u2019 parents.\nDefendant and Ruth Helms agreed that A.H. would not have overnight visits with defendant until the child was three years old. A.H.\u2019s first overnight visit with defendant took place on 3 January 1987. Their second, and last, visit occurred two weeks later.\nThe State\u2019s evidence tended to show that, when A.H. returned from his second visit with defendant, he complained that his penis hurt because defendant had pinched it. The following day, Ruth Helms took A.H. to a pediatrician. The physician did not discover any abnormality. A day later, A.H. told his mother that defendant had given him \u201cgreen pills.\u201d Ruth Helms then scheduled a 30 January appointment for A.H. to see Dr. Terrence Clark, a psychiatrist. She also arranged for A.H. to meet with Dr. Gregg Simms, Dr. Clark\u2019s associate, on 27 January. Dr. Simms did not diagnose the child as having been abused.\nPrior to defendant\u2019s trial, A.H. saw Dr. Clark approximately 24 times. During one of the visits, Ruth Helms reported that she had noticed two small scabs on A.H.\u2019s arm and that A.H. told her, \u201cThat\u2019s where Daddy Dan [A.H.\u2019s name for defendant] gave me the shots.\u201d Dr. Clark examined A.H.\u2019s arm and concluded the scabs \u201ccould in fact have been consistent with the size of a needle puncture.\u201d Dr. Clark informed Ruth Helms that, based on his evaluation of the child, he believed it necessary to report A.H. as a possible victim of sexual abuse to the Department of Social Services (DSS).\nRose Erskine, a DSS social worker, interviewed Ruth Helms and A.H. on 11 and 25 February 1987. Sometime in March, Ruth Helms notified Rose Erskine that A.H. had said defendant \u201chad put his [defendant\u2019s] penis in [A.H.\u2019s] mouth and peed old bad-tasting stuff and that it made him sick.\u201d\nAt trial, A.H. claimed that, during the first overnight visit, defendant twice injected \u201cgreen stuff\u201d into both their arms with a needle A.H. described as being two to three feet long. A.H. testified that defendant said, \u201cShit, shit, damn\u201d as he injected A.H. and that the injections made him sleepy. He further testified that, after the injections, defendant put his penis into A.H.\u2019s mouth and rectum. He said that the penis tasted like \u201crotten oranges,\u201d that it made him sleepy, that he \u201cfell back two or three times,\u201d and that defendant said, \u201cShit, piss, damn.\u201d A.H. testified that defendant showed him a black dildo and said, \u201cShit, piss, damn\u201d when displaying it. He further alleged that, on the first overnight visit, defendant locked him out of the apartment for \u201c20 hours,\u201d that defendant was nude for \u201c20 hours,\u201d and that defendant stole all of AJE.\u2019s toys.\nThe State introduced statements attributed to A.H. that were contained in letters written by Rose Erskine to the Transylvania County Sheriff\u2019s Department. Ms. Erskine wrote that A.H. had said defendant pinched his penis, gave him green pills, and stuck him with a needle when defendant and A.H. stayed at a motel with defendant\u2019s fiancee, Anita Whitaker, and her nine-year-old son during A.H.\u2019s second visit with defendant. According to Ms. Erskine, A.H. also alleged that, at the motel, defendant and Anita switched each other with sticks while nude, that A.H. switched Anita, and that Anita\u2019s son pinched A.H.\u2019s penis.\nDefendant denied having molested his son. Regarding A.H.\u2019s first visit, he testified that he put A.H. to bed about 8:00 p.m. Anita Whitaker and Ron Graves corroborated defendant\u2019s testimony.\nDefendant testified that, when A.H. made his second overnight visit, defendant, Anita, her son, and A.H. went to Charlotte to visit defendant\u2019s parents. During the drive home, defendant, Anita, and her son opted to stop at a motel and finish the trip the next day because the weather was inclement, and because sleet had been forecast for later in the evening. A.H. was, by this time, asleep in the car. He continued to sleep until morning, when he awoke in the motel and thought he was at the beach. Anita Whitaker and her son corroborated this testimony.\nDr. Darwin Dorr, a psychologist, testified that defendant hired him to administer psychological tests to determine if defendant possessed any pedophilic characteristics, i.e., those characteristics associated with child abusers. Dr. Dorr testified he found no evidence that defendant had any of the personality traits associated with pedophiles.\nWe now turn to the issues defendant has raised on appeal.\nII\nDefendant\u2019s first assignment of error arises from a note the jury sent to the trial judge during deliberations. The note asks, \u201cMay the jurors please be permitted to hear [A.H.\u2019s] testimony again?\u201d Underneath this question are the words, \u201cNo. That is not possible. Judge Saunders.\u201d The transcript reflects that the judge, after receiving the note, held a conference with defendant and the State outside the presence of the court reporter. Following the conference, the judge put the following into the transcript:\nThe Court: The jury sent a written note to the Judge and the writing was \u201cCan we hear from [A.H.], the minor victim?\u201d Answer from the Judge, in writing, the answer being written in the presence of Counsel for the defendant and the State was \u201cNo\u201d and signed by the Judge and conveyed by the Sheriff back to the Jury Room. Counsel did not object to the procedure and did not request, when specifically inquired of, did not require the Judge to return the Jury to the Courtroom. Counsel for the defense was willing to handle it this way.\nDefendant contends that the judge committed reversible error by failing to exercise discretion when he denied the jury\u2019s request and by failing to return the jury to the courtroom to receive and respond to their inquiry. We agree.\nWhen a jury requests to review testimony, N.C. Gen. Stat. Sec. 15A-1233(a) (1988) specifies the procedure the trial judge is to follow. The statute provides that\n[i]f the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.\nThe statute mandates that the judge fulfill two duties: first, that all the jurors be returned to the courtroom and, second, that the judge exercise discretion in ruling upon the request. See State v. Ashe, 314 N.C. 28, 34, 331 S.E. 2d 652, 656 (1985).\nThe State argues that the jury\u2019s request in this case was to hear additional testimony from A. H. himself, thus making Section 15A-1233(a) inapplicable. The State contends our focus should be upon the judge\u2019s summary of the jury\u2019s request that appears in the transcript, arguing that \u201cthe conflict between the note relied upon by defendant and the quotation from the bench in the transcript should be resolved in favor of the transcript because it alone is a verbatim account of the proceedings as they occurred.\u201d Defendant responds that the note itself, contained in the record on appeal, is binding upon our inquiry.\nThe transcript does not contain a \u201cverbatim account of the proceedings as they occurred.\u201d Judge Saunders merely recounted to the court reporter the events that transpired following the jury\u2019s request. The note he characterized had already been returned to the jury room. The note itself appears as a part of the certified record, and we agree with defendant that the State may not challenge the note\u2019s authenticity on appeal. See State v. Hedrick, 289 N.C. 232, 234-35, 221 S.E. 2d 350, 352 (1976) (certified record imports verity and binds appellate court). We decide this issue by looking to Section 15A-1233(a), and we conclude that the judge did not fulfill its two requirements.\nA. Discretion\nThe State argues that the brevity of Judge Saunders\u2019 reply \u2014 \u201cNo. That is not possible\u201d \u2014does not demonstrate that the judge failed to employ his discretion in denying the jury\u2019s request. We find this argument untenable. In State v. Lang, our Supreme Court found the trial judge\u2019s refusal to allow the jury to review testimony because the trial transcript was not available to be \u201can indication\u201d that the judge did not exercise discretion. 301 N.C. 508, 511, 272 S.E. 2d 123, 125 (1980) (emphasis added). At the very least, Judge Saunders\u2019 declaration that it was \u201cnot possible\u201d for the jury to reexamine A.H.\u2019s testimony likewise \u201cindicated\u201d that he did not use discretion. However, our view is that the judge\u2019s answer is more than a mere indication of an absence of discretion, and we hold that his words \u201cmust be interpreted as a statement that the [judge] believed [he] did not have discretion to consider the request.\u201d Id. at 510, 272 S.E. 2d at 125 (emphasis added). As in Lang, the judge in this case denied the jury\u2019s request as a matter of law. See id. at 511, 272 S.E. 2d at 125. This constituted error.\nThe State directs us to State v. Lewis, 321 N.C. 42, 361 S.E. 2d 728 (1987), in which our Supreme Court found no error in a trial judge\u2019s refusal to allow a jury to review a witness\u2019 testimony. In Lewis, the jury foreperson asked if the jury might be permitted to reexamine the evidence, \u201c \u2018either by transcript or by pictures!.]\u2019 \u201d Id. at 51, 361 S.E. 2d at 734. The judge conferred with trial counsel and then allowed the jurors to look at photographs in the jury box. He denied the jury\u2019s request to review the testimony by having the court reporter read from her notes, saying, \u201cI just don\u2019t think that\u2019s the way to do things.\u201d Our Supreme Court held that the judge exercised discretion because he permitted the jury to look at the photographs and did not allow them to rehear portions of the testimony. Id. at 52, 361 S.E. 2d at 734.\nThe State argues that Lewis involved two separate decisions, the first concerning the photographs and the second the testimony. The State thus cites Lewis for the proposition that when a judge says, \u201cI just don\u2019t think that\u2019s the way to do things,\u201d the judge has exercised discretion concerning a jury\u2019s request to review testimony. Contrary to the State, we read the Supreme Court\u2019s holding in Lewis as resting on the Court\u2019s view that the trial judge made a single decision \u2014 that he would allow the jury to review evidence \u2014 and exercised his discretion concerning the manner in which he would permit them to do so. Even if the State\u2019s construction of Lewis is correct, the judge\u2019s statement in the case before us is more analogous to Lang, in which the trial judge, in effect, also told the jurors it was \u201cnot possible\u201d for them to review testimony, because no transcript had been prepared. See also Ashe, 314 N.C. at 35, 331 S.E. 2d at 656-57; State v. Thompkins, 83 N.C. App. 42, 45-46, 348 S.E. 2d 605, 607 (1986).\nHaving concluded that the judge erred by failing to exercise discretion, we now rule whether the error entitles defendant to a new trial. Defendant\u2019s burden is to demonstrate that, had this error not occurred, there is a reasonable possibility that his trial would have had a different outcome. N.C. Gen. Stat. Sec. 15A-1443(a) (1988); see State v. McLaughlin, 320 N.C. 564, 570, 359 S.E. 2d 768, 772 (1987). We hold that defendant has carried this burden.\nIn Lang, the jury requested a review of the testimony of defendant\u2019s alibi witness. The judge, without using discretion, denied the request. The Supreme Court said that\n. . . the requested evidence was testimony which, if believed, would have established an alibi for defendant.. . . Thus, whether the jury fully understood the alibi witness\u2019 testimony was material to the determination of defendant\u2019s guilt or innocence.\n301 N.C. at 511, 272 S.E. 2d at 125; see also Ashe, 314 N.C. at 37, 331 S.E. 2d at 658; Thompkins, 83 N.C. App. at 46, 348 S.E. 2d at 607.\nThe most important witness to testify at defendant\u2019s trial was A.H. Arguably, portions of his testimony seem fanciful and might reasonably have led the jury to question whether any crime occurred. Additionally, defendant and his witnesses contradicted A.H.\u2019s allegations. We express no opinion as to how the jury members might have assessed A.H.\u2019s testimony had they been permitted to review it. See Ashe, 314 N.C. at 38, 331 S.E. 2d at 658. We are convinced, however, that whether the jury fully understood A.H.\u2019s testimony was material \u2014 indeed, critical \u2014 to their determination of defendant\u2019s guilt or innocence. As in Lang, defendant \u201cwas at least entitled to have the jury\u2019s request resolved as a discretionary matter, and it was prejudicial error for the trial judge to refuse to do so.\u201d 301 N.C. at 511, 272 S.E. 2d at 125. Defendant is entitled to a new trial.\nB. Returning the Jury to the Courtroom\nSection 15A-1233(a) requires that the jury be present in the courtroom when the judge receives its request, and when the judge responds to it. See Ashe, 314 N.C. at 36, 331 S.E. 2d at 657. Judge Saunders erred, therefore, by failing to comply with this provision of the statute. We hold, however, that defendant may not receive a new trial on the basis of this error.\nIn the transcript, Judge Saunders notes that he specifically asked defendant\u2019s lawyer if the latter required the jury to be returned to the courtroom. The lawyer did not ask that the jury be brought in, and he acceded to the procedure Judge Saunders used. A lack of objection at trial does not bar a defendant\u2019s right to assign error to a judge\u2019s failure to comply with the mandates of Section 15A-1233(a). See id. at 40, 331 S.E. 2d at 659. In this case, however, defendant\u2019s lawyer, beyond simply failing to enter an objection, consented to the communication procedure. We hold, therefore, that defendant has waived his right to assert, on appeal, the judge\u2019s failure to bring the jury to the courtroom.\nIn spite of our holding, we observe that this case illustrates one reason it is error for a trial judge to receive and dispose of a jury\u2019s request to review evidence without communicating directly with them. The requirement that all jurors be brought to the courtroom helps ensure that the judge understands what the jury has asked. In this case, the discrepancy between the note and the judge\u2019s later restatement of its contents arguably suggests that Judge Saunders misinterpreted the jury\u2019s request. Had defendant not waived his right to bring forward this issue on appeal, we would award a new trial on the basis of this error.\nIll\nDefendant assigns error to the trial judge\u2019s sustaining the State\u2019s objection to a question defendant asked Dr. Dorr on redirect examination. We agree that the judge erred and award a new trial on this ground as well.\nAfter his arrest, defendant employed Dr. Dorr to conduct tests to determine if defendant had any of the characteristics of a pedophile. Dr. Dorr testified that, in his opinion, defendant did not possess pedophilic traits. On cross-examination, the State\u2019s line of questioning suggested that Dr. Dorr\u2019s opinion was based merely on information given to him by defendant and Anita Whitaker. On redirect, defendant asked Dr. Dorr if he had conducted physiological tests also. When Dr. Dorr answered that he had, defendant asked, \u201c[W]ere [those tests] done in such a way as to determine the accuracy of the responses that were given by Mr. Helms?\u201d The State objected to this question, and the judge sustained the objection.\nThe judge\u2019s ruling ran counter to our Supreme Court\u2019s holding in State v. Kennedy, 320 N.C. 20, 357 S.E. 2d 359 (1987). In Kennedy, a psychologist testified that a rape victim had responded in an \u201chonest fashion\u201d to questions on personality and IQ tests. Defendant argued on appeal that the testimony amounted to the expert\u2019s stating an opinion as to the victim\u2019s credibility. Our Supreme Court disagreed, saying:\nWe do not consider the testimony of [the psychologist] that the victim answered the test questions in an \u201chonest fashion\u201d to be an expert opinion as to her character or credibility. It was merely a statement of opinion by a trained professional based upon personal knowledge and professional expertise that the test results were reliable because the victim seemed to respond to the questions in an honest fashion. . . . The psychologist\u2019s testimony went not to the credibility of the victim but to the reliability of the test itself.\nId. at 31, 357 S.E. 2d at 366 (emphasis added) (citations omitted). The question asked of Dr. Dorr addressed the reliability of the test results even more clearly than did the testimony in Kennedy. The question was, therefore, a proper one for defendant to have asked. The judge erred by sustaining the State\u2019s objection.\nDefendant argues that the judge\u2019s error deprived him of his right to due process of law and that, under the United States Supreme Court\u2019s ruling in Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705 (1967), the State has the burden to demonstrate beyond a reasonable doubt that the error was harmless. The State contends that defendant must show, pursuant to N.C. Gen. Stat. Sec. 15A-1443(a) that, but for the error, there is a reasonable possibility a different result would have been reached at trial. Even if we employ the standard favorable to the State, we view the error to be sufficiently prejudicial to defendant so as to constitute reversible error.\nWe agree with defendant that the judge\u2019s ruling undermined the scientific basis of Dr. Dorr\u2019s testimony by advancing the impression put forth by the State that Dr. Dorr founded his conclusions about defendant on insufficient or unsound data. The impeachment of Dr. Dorr in this way makes it impossible for us to hold that, had the judge not erred, the jury would have returned the same verdict. Defendant is thus entitled to a new trial.\nIV\nWe shall briefly address defendant\u2019s three remaining assignments of error as they are likely to recur at a second trial.\nDefendant first contends that the judge erred by not allowing Dr. Dorr to testify about a study, the results of which allegedly support a theory that pedophiles fear women. In our view, this evidence might have been admissible as showing a basis for Dr. Dorr\u2019s opinion that defendant did not meet the psychological profile of a pedophile. See generally Brandis, 1 Brandis on North Carolina Evidence, Sec. 136 (1988). Defendant, however, failed to make a proffer of the testimony after the judge sustained the State\u2019s objection. Thus, our ability to review whether the judge in fact erred, and whether that error was prejudicial, is precluded. See id. at Sec. 26. We overrule this assignment of error.\nDefendant next argues that Dr. Dorr should have been permitted to testify that none of the testimony offered by the State\u2019s witnesses indicated defendant had any of the traits associated with pedophilia. Rule 703 of the Rules of Evidence plainly allows an expert witness to base opinions on facts or data \u201cperceived or made known to him at or before the hearing.\u201d N.C. Gen. Stat. Sec. 8C-1, R. Evid. 703 (1988). These facts or data, however, must \u201cbe of a type reasonably relied upon by experts in the particular field.\u201d See id. and comment. Defendant failed to lay the necessary foundation for the admission of this testimony, and the judge properly sustained the State\u2019s objection. We overrule this assignment of error.\nDefendant\u2019s last assignment of error is to the trial judge\u2019s allowing Dr. Clark to testify that Dr. Simms had told him A.H. had built, with building blocks, a snake with several penises during the child\u2019s visit with Dr. Simms. We hold that the judge properly admitted this testimony under Rule 703 and overrule this assignment of error.\nV\nFor the reasons we have given above, defendant is entitled to a\nNew trial.\nJudges Parker and Orr concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Marilyn R. Mudge, for the State.", "Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EMMETT DANIEL HELMS\nNo. 8829SC789\n(Filed 18 April 1989)\n1. Criminal Law \u00a7 101.4\u2014 jury \u2014 request to hear evidence again\u2014 refusal of judge to exercise discretion\nThe trial court erred in a prosecution for first degree sexual offense when the jury sent a note to the judge during deliberations asking to hear the victim\u2019s testimony again and the judge replied in writing \u201cNo. That is not possible.\u201d The judge\u2019s words must be interpreted as a statement that he believed he did not have discretion to consider the request, and the judge thus erred by failing to exercise his discretion. There was prejudice in that the most important witness to testify at defendant\u2019s trial was the victim and whether the jury fully understood the victim\u2019s testimony was material and critical to their determination of defendant\u2019s guilt or innocence. N.C.G.S. \u00a7 15A-1233(a) (1988).\n2. Criminal Law \u00a7 101.4\u2014 jury \u2014 request to review evidence-denied by note to jury room \u2014no prejudicial error\nThere was no prejudicial error in a prosecution for first degree sexual offense when the judge received a note from the jury asking to review evidence and replied in writing that that was not possible, even though N.C.G.S. \u00a7 15A-1233(a) requires that the jury be present in the courtroom when the judge receives its request and when the judge responds to it, because the judge specifically asked defendant\u2019s lawyer if the latter required the jury to be returned to the courtroom, and the lawyer consented to the communication procedure.\n3. Criminal Law \u00a7 50.1\u2014 first degree sexual offense \u2014 result of psychological testing \u2014opinion that defendant\u2019s responses accurate\nThe trial court erred in a prosecution for first degree sexual offense by sustaining the State\u2019s objection to defendant\u2019s asking a witness whether tests given to defendant to detect pedophilic traits \u201cwere done in such a way as to determine the accuracy of the responses that were given?\u201d The judge\u2019s ruling undermined the scientific basis of the doctor\u2019s testimony by advancing the impression put forth by the State that the doctor founded his conclusions about defendant on insufficient or unsound data.\n4. Criminal Law \u00a7 50.1\u2014 first degree sexual offense \u2014 psychological testing \u2014 State\u2019s objection sustained\nThere was no prejudicial error in a prosecution for first degree sexual offense from not allowing testimony about a study which allegedly supported a theory that pedophiles fear women where defendant failed to make a proffer of testimony after the judge sustained the State\u2019s objection; from the failure to allow the doctor to testify that none of the testimony offered by the State\u2019s witnesses indicated defendant had any of the traits associated with pedophilia where defendant failed to lay the necessary foundation for the admission of this testimony; and testimony by one doctor that another had told him that the victim had built with building blocks a snake with several penises during the child\u2019s visit with the doctor was properly admitted under N.C.G.S. \u00a7 8C-1, Rule 703.\nAPPEAL by defendant from Chase B. Saunders, Judge. Judgment entered 17 March 1988 in Superior Court, TRANSYLVANIA County. Heard in the Court of Appeals 23 February 1989.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Marilyn R. Mudge, for the State.\nGlover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant." }, "file_name": "0394-01", "first_page_order": 424, "last_page_order": 434 }