{
  "id": 8525533,
  "name": "STATE OF NORTH CAROLINA v. DAVID ALAN WRIGHT",
  "name_abbreviation": "State v. Wright",
  "decision_date": "1990-06-05",
  "docket_number": "No. 8922SC517",
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  "last_updated": "2023-07-14T19:26:07.401162+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Johnson and Parker concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DAVID ALAN WRIGHT"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nDefendant appeals his jury conviction of statutory first-degree rape. The trial court sentenced defendant to prison for life.\nThe record shows that the grand jury indicted 32-year-old defendant for the offense of having sexual intercourse with defendant\u2019s 11-year-old stepdaughter on approximately 28 January 1988, in violation of N.C.G.S. \u00a7 14-27.2 (1986). Prosecutrix was twelve years old at the time of trial.\nDuring trial, the State adduced prosecutrix\u2019s testimony that defendant had intercourse with her a number of times before the date for which defendant was indicted, and that on the date of indictment her mother went to a hospital to visit a relative and left prosecutrix alone with defendant, who allegedly got into bed and had intercourse with prosecutrix.\nAfter prosecutrix testified, prosecutrix\u2019s pediatrician, Dr. Amy Ferguson (\u201cphysician\u201d) testified. After several routine office visits, physician examined prosecutrix in a hospital emergency room on 28 November 1987, when prosecutrix complained about a spanking that defendant administered to her. Physician examined prosecutrix for evidence of physical abuse but found none, although during a cursory visual examination she noted chronic irritation of prosecu-trix\u2019s external genitalia. Based on the irritation, physician asked prosecutrix whether she had been sexually abused, and prosecutrix denied sexual abuse. After prosecutrix denied sexual abuse, physician testified that she did not believe that a pelvic examination was necessary. Physician testified that she again examined pros-ecutrix on 10 February 1988 after prosecutrix complained of defendant\u2019s sexual abuse. Physician testified that during a pelvic examination of prosecutrix, she again found chronic internal and external irritation of prosecutrix\u2019s vagina and decreased muscle tone for a child of prosecutrix\u2019s age. Physician gave her opinion that the condition of prosecutrix\u2019s genitalia was consistent with numerous penetrations and repeated acts of intercourse. She also testified that these physical findings were consistent with repeated masturbation and \u201cchronic penetration with other objects.\u201d\nAfter the State rested its case, defendant sought to introduce testimony by prosecutrix\u2019s maternal grandmother (\u201cGrandmother\u201d), to show evidence of prosecutrix\u2019s repeated acts of masturbation as alternate explanations for prosecutrix\u2019s genital condition. Pursuant to the State\u2019s objections based on the \u2018rape shield\u2019 evidence statute, N.C.G.S. \u00a7 8C-1, Rule 412, the trial court conducted an in camera hearing to determine whether the evidence was admissible. At the hearing, Grandmother testified: she observed prosecutrix in the bathtub \u201ctrying to push a washcloth inside of her [vagina] . . . using . . . two fingers,\u201d that \u201c[p]robably three-fourths\u201d of a terrycloth washcloth with dimensions of six inches by six inches was in prosecutrix\u2019s vagina, that she cared for prosecutrix on several occasions and that she \u201chad seen [prosecutrix] doing [a similar thing in the bathroom] quite a bit,\u201d including an instance during the summer of 1987, the summer before the alleged rape. During that time, she testified that she observed prosecutrix with her entire index finger inserted in her vagina, \u201cjust moving her finger back and forth.\u201d She testified that \u201c[prosecutrix] did not try to hide the fact that she played with herself. She would be laying on the couch watching TV through her clothes [sic], rubbing herself. It was just practically all the time.\u201d She testified that she first saw prosecutrix exhibit similar behavior when prosecutrix was five years old when \u201c[prosecutrix] had her hands down in her pants. She was standing with her legs bowed out . . . [s]he had her right hand down in there and she was moving her arm up and down.\u201d She testified that after prosecutrix ceased this behavior \u201cshe would be very red around her vagina.\u201d She testified that when prosecutrix was five years old and before prosecutrix\u2019s mother and defendant were married, she observed prosecutrix trying to place a little boy\u2019s penis in her vagina, after which prosecutrix had redness around the outside of her vagina.\nAfter hearing the in camera evidence, the trial court ruled on defendant\u2019s request to admit evidence:\nThere are several things that strike me. If the incident involving the washcloth did occur, [physician] testified that her findings were consistent with [prosecutrix] having been penetrated by a large object. Whether or not the washcloth, how far it had protruded, whether for personal hygiene or self[-]gratification, there is just too much speculation as far as that evidence is concerned and whether or not a washcloth being pushed by two fingers could have caused the opening of the hymen to the extent testified to by [physician]. Obviously, [Grandmother], since \u201984 or \u201985 has interpreted a lot of [prosecutrix]\u2019s actions as being manipulation or masturbation or playing with herself. Whether that has been out of curiosity or just a natural tendency for her hand to go to her genital area is so much speculation. There is absolutely no evidence that anything was done about this to suggest that this may be a cause of [prosecutrixj\u2019s story or this would explain [prose-cutrix]\u2019s condition found by [physician] would leave too much to speculation to the jury and on the grounds of relevancy and on the question of it falling within the exceptions to the rape shield statutes, I have considerable problem with whether or not it does in fact fall into that exception and; therefore, it would be highly prejudicial at this juncture to interject this into the evidence. I find that the evidence should not be heard by the jury.\nThe court later allowed Grandmother to testify before the jury about prosecutrix\u2019s single act of pushing the washcloth into her vagina, stating: \u201c[u]pon reconsideration],] the court has . . . determined that the evidence involving the incident to which this witness has testified involving [prosecutrix] . . . should be admissible and should be heard by the jury; therefore, the court has admitted this evidence to this extent.\u201d\nDefendant testified and denied that he had ever touched prose-cutrix sexually or had intercourse with her.\nThe dispositive issue is whether the excluded in camera testimony from Grandmother showed (I) prosecutrix\u2019s \u2018sexual behavior\u2019 which (II) was relevant according to Rule 412(b).\nRule 412 prohibits introduction of evidence of the complainant\u2019s sexual behavior during prosecution of a rape offense unless such evidence is relevant. N.C.G.S. \u00a7 8C-1, Rule 412 (Cum. Supp. 1989). We must determine whether Grandmother\u2019s testimony was evidence of sexual behavior of the complainant and, if so, whether that evidence was relevant as that term is defined by Rule 412(b).\nI\nSexual behavior is defined by statute as \u201csexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.\u201d N.C.G.S. \u00a7 8C-1, Rule 412(a).\nGrandmother\u2019s excluded testimony shows complainant\u2019s sexual activity in the form of masturbation. This \u2018sexual behavior\u2019 clearly was not \u2018the sexual act at issue in the indictment,\u2019 intercourse between defendant and prosecutrix.\nII\nRelevant evidence is defined in Rule 412 as any evidence of sexual behavior which:\n(1) Was between the complainant and defendant; or (2) [i]s evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or (3) [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; or (4) [i]s evidence of sexual behavior offered as a basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.\nN.C.G.S. \u00a7 8C-1, Rule 412(b).\nGrandmother\u2019s excluded testimony was that she observed pros-ecutrix masturbate with a washcloth and with her fingers on several occasions. Physician\u2019s testimony was that repeated acts of intercourse, penetration or masturbation could create the degree of irritation that prosecutrix suffered. Therefore, Grandmother\u2019s excluded evidence provided an alternative explanation for the victim\u2019s physical condition, consistent with physician\u2019s testimony and should have been admitted as evidence relating to whether the rape occurred. See State v. Ollis, 318 N.C. 370, 376, 348 S.E.2d 777, 781 (1986). The excluded evidence was \u201cevidence of specific incidences of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant\u201d and therefore was relevant evidence. N.C.G.S. \u00a7 8C-1, Rule 412(b)(2). Although acting in an inadvertent and blameless manner, prosecutrix clearly qualifies as someone other than defendant who could have caused her physical injuries. The evidence was offered to show that prosecutrix\u2019s genital condition could have occurred without intercourse. Accordingly, the trial court erred in excluding Grandmother\u2019s testimony.\nFurthermore, we determine that the error was prejudicial to defendant because it \u201cprobably influenced the jury verdict.\u201d See Dept. of Transportation v. Craine, 89 N.C. App. 223, 226, 365 S.E.2d 694, 697, dism. allowed, review denied, 322 N.C. 479, 370 S.E.2d 221 (1988). Since prosecutrix\u2019s acts of penetrative masturbation were the only alternative explanation for the condition of her genitalia, and limitation of testimony concerning prosecutrix\u2019s masturbation left the jury with no alternative to the State\u2019s contention that only intercourse would have caused the degree of genital irritation that prosecutrix experienced, omission of the evidence requires a new trial.\nBecause this error requires new trial, we do not address defendant\u2019s remaining assignments of error.\nNew trial.\nJudges Johnson and Parker concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Lacy H. Thornburg, Attorney General, by Laura E. Crumpler, Assistant Attorney General, for the State.",
      "Glover & Petersen, P.A., by Ann B. Petersen, and Bailey, Patterson, Caddell & Bailey, P.A., by Allen A. Bailey, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DAVID ALAN WRIGHT\nNo. 8922SC517\n(Filed 5 June 1990)\nRape and Allied Offenses \u00a7 4.1 (NCI3d)\u2014 statutory rape \u2014 evidence of masturbation by victim\nIn a prosecution of defendant for the statutory rape of his stepdaughter, testimony by the victim\u2019s grandmother that she had observed the victim masturbate with a washcloth and with her fingers on several occasions should have been admitted pursuant to N.C.G.S. \u00a7 8C-1, Rule 412(b)(2) as evidence of specific incidences of sexual behavior offered for the purpose of showing that the acts charged were not committed by defendant where the victim\u2019s pediatrician testified that genital irritation she observed on the victim could have been caused by repeated acts of intercourse, penetration with other objects, or masturbation.\nAm Jur 2d, Rape \u00a7\u00a7 15, 18, 85, 86.\nAPPEAL by defendant from judgment entered 17 November 1988 by Judge Ralph A. Walker in IREDELL County Superior Court. Heard in the Court of Appeals 10 January 1990.\nLacy H. Thornburg, Attorney General, by Laura E. Crumpler, Assistant Attorney General, for the State.\nGlover & Petersen, P.A., by Ann B. Petersen, and Bailey, Patterson, Caddell & Bailey, P.A., by Allen A. Bailey, for defendant-appellant."
  },
  "file_name": "0658-01",
  "first_page_order": 686,
  "last_page_order": 691
}
