{
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  "name": "STATE OF NORTH CAROLINA v. JAMES DARRELL FAIRCLOTH",
  "name_abbreviation": "State v. Faircloth",
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    "judges": [
      "Judges Wells and Parker concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES DARRELL FAIRCLOTH"
    ],
    "opinions": [
      {
        "text": "DUNCAN, Judge.\nA jury convicted the defendant, James Darrell Faircloth, of one count of first-degree rape and one count of taking indecent liberties with a child. The judge sentenced defendant to a term of life imprisonment for the rape conviction and to a consecutive term of three years for the indecent liberties conviction. On appeal, defendant challenges the admission of testimony about alleged prior sexual assaults by him upon the victim and the admission of expert testimony concerning the origin of hair samples found at the crime scene. We hold that the judge properly allowed the jury to hear evidence of the prior sexual acts, and we hold that defendant has waived his right to assign error to the expert testimony.\nI\nThe prosecuting witness, to whom we shall refer as \u201cA.G.,\u201d is the stepdaughter of defendant. At the time of trial, A.G. was 13 years old. The State presented evidence showing that on 1 April 1988, A.G. and her mother were living at the Holiday Motel in Fayetteville, North Carolina. A.G.\u2019s natural father was visiting from Florida that day and was staying in the room next to A.G.\u2019s room. Defendant and A.G.\u2019s mother had separated from each other prior to 1 April, and A.G. had not seen defendant for several days.\nOn the evening of 1 April, A.G. and her father went to a movie. When they returned to the motel at 10:00 P.M., A.G.\u2019s mother was not there. A.G. went to her room alone and fell asleep, with the lights in the room turned on, while watching television.\nA.G. awoke around 3:30 A.M. when she felt someone holding her by the waist. When she attempted to get up, she could not. A.G. testified that she looked to see who was holding her and saw that it was defendant. Defendant was not wearing clothing. He asked A.G. where her mother was and, when A.G. said she didn\u2019t know, defendant said \u201cWell, fine, then. I\u2019ve got plenty of time.\u201d Defendant then raped A.G.\nDr. William Barrington testified that he examined A.G. at the Cape Fear Valley Hospital emergency room on 2 April. A.G. told Dr. Barrington that she had been raped and had been struck on the jaw. The examination showed her jaw to be tender, but there was no evidence of any bruising nor of any kind of abrasion. Dr. Barrington also performed a pelvic exam on A.G. and found no evidence of external trauma, nor was there any evidence of lacerations or abrasions on the vagina and cervix, and the opening of the uterus appeared normal.\nBrenda Bissette, of the State Bureau of Investigation, testified that she examined underwear and vaginal smears and swabs from A.G.\u2019s rape kit. Additionally, she analyzed blood samples from A.G. and from defendant and testified that both defendant and A.G. secrete type 0 blood, a type shared by 36% of the population. Agent Bissette found semen present in the underwear, smears and swabs and found the semen to be from a person who secreted type O blood.\nDefendant\u2019s evidence showed that as of 1 April 1988 he had been residing with his aunt, Penny Marie McKay, for approximately two months. Ms. McKay testified that, on the night and morning in question, defendant was at her home, having returned there at 1:45 A.M. on the morning of 2 April. Defendant was coughing, had a cold, and went into the bathroom, coughing and vomiting. Ms. McKay testified that she heard defendant vomiting at 2:30 A.M., and that between the hours of 3:00 and 4:00 A.M. she could hear defendant snoring. Cecilia McKay, defendant\u2019s cousin and Penny McKay\u2019s daughter, corroborated her mother\u2019s testimony.\nA.G.\u2019s father testified as a defense witness and stated that he heard no noises coming from A.G.\u2019s room during the early hours of 2 April. He first learned of the rape at 7:30 that morning.\nAdditional facts relevant to the questions on appeal are set out below.\nII\nDefendant first assigns error to the admission of testimony by A.G. concerning two incidents of alleged sexual assault by defendant upon her prior to the 2 April incident.\nOver objection, the judge permitted A.G. to testify that, on or about 1 January 1986, she was at home alone with defendant. A.G. fell asleep on the top bunk of a set of bunk beds in her room. A.G. awakened later on the bottom bunk. When she turned over to go back to sleep, defendant pulled her back over. Defendant told her \u201cIt\u2019s too hot in here for you to have your shorts on,\u201d and he removed A.G.\u2019s shorts and panties. He then performed cunnilingus on her.\nOver further objection, A.G. testified that, one night when she and defendant were at home alone, defendant came into her room. Defendant turned off the lamp, telling A.G. she was too big to sleep with a light on. Defendant then went into the bathroom and remained there for a long time. When defendant emerged, he was not wearing clothes. Defendant lay beside A.G. on the bed and told her to rub his chest. A.G. refused. Defendant then grabbed A.G.\u2019s hand and started to rub his chest with it. A.G. snatched her hand away. Defendant got up and went back into the bathroom. When A.G. was half asleep, defendant got back into her bed and started to pull at her shorts. A.G. began to scream. Defendant told A.G. to hush, and, when she would not, defendant left her. A.G. testified she was not certain as to the date of this incident, but believed it had occurred in 1987.\nDefendant argues that the admission of A.G.\u2019s testimony about the two incidents was improper under Rule 404(b) of the North Carolina Rules of Evidence because the evidence was irrelevant to the question of defendant\u2019s guilt for the 2 April rape. He contends that A.G.\u2019s testimony met none of the \u201cstatutorily set forth exceptions to the rule of exclusion for prior bad acts\u201d and was offered only as evidence of defendant\u2019s character. This issue, a familiar one in sexual-offense cases, was recently addressed by our Supreme Court in State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990).\nDiscussing whether Rule 404(b) operates as a \u201cgeneral rule of exclusion,\u201d see 1 Brandis on North Carolina Evidence \u00a7 91 (3d ed. 1988) (one line of pre-Rule cases stated general rule of exclusion and list of exceptions), the Court said that a careful reading of the Rule \u201cclearly shows [that] evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused.\u201d Id. at 278, 389 S.E.2d at 54 (emphasis supplied; citations omitted). The \u201cclear general rule,\u201d the Court said, is that Rule 404(b) is one of \u201cinclusion of relevant evidence of other crimes . . . subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\u201d Id. at 278-79, 389 S.E.2d at 54 (emphasis supplied). We must determine, therefore, whether A.G.\u2019s testimony was relevant to any issue other than defendant\u2019s character.\nAs is frequently noted, \u201cNorth Carolina is quite liberal in admitting evidence of other sex offenses\u201d committed upon the victim of the crime for which the defendant is on trial. State v. Miller, 321 N.C. 445, 454, 364 S.E.2d 387, 392 (1988) (citations omitted). Such evidence is often viewed as showing a \u201ccommon scheme or plan\u201d by the defendant to sexually abuse the victim. See State v. Shamsid-Deen, 324 N.C. 437, 444, 379 S.E.2d 842, 847 (1989). The State here contends that A.G.\u2019s testimony was relevant to show, among other things, defendant\u2019s plan to abuse her when she was asleep and in her mother\u2019s absence. We agree with the State that the evidence was relevant under the precedent to this date. We thus hold that the evidence was not exclusively directed at defendant\u2019s character so as to run afoul of Rule 404(b).\nTo be admissible, evidence of prior sexual abuse must relate to incidents sufficiently similar and not so remote in time that they are more probative than prejudicial under the balancing test of N.C. Gen. Stat. \u00a7 8C-1, R. Evid. 403 (1988). E.g., State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). Defendant argues that the two alleged incidents occurring over a 28-month period prior to the charged offense, and the separation of defendant from A.G.\u2019s mother in the interim, caused any probative value of the evidence to be outweighed by its prejudicial effect. He further contends that A.G.\u2019s testimony placed him in the untenable position of having to rebut uncorroborated evidence of uncharged misconduct.\nHowever, under the applicable precedent, the prior incidents about which A.G. testified were sufficiently similar to the charged crime and were sufficiently near in time to it that Rule 403 did not require the judge to exclude the evidence. All three episodes involved sexual conduct by defendant upon A.G., all three involved A.G.\u2019s being either alone or under the sole supervision of defendant, and all three occurred when A.G. was in bed. That the episodes occurred over some 28 months, moreover, did not make the evidence impermissibly remote. In State v. Roberson, we held that a lapse of nearly five years between events involving the defendant and two witnesses did not \u201cdiminish the similarities between the acts,\u201d especially in light of testimony that the defendant\u2019s daughter had been similarly touched in the year before trial. 93 N.C. App. 83, 85, 376 S.E.2d 486, 487-88, disc. review denied, 324 N.C. 435, 379 S.E.2d 247 (1989). Although the latter criterion is not met here, this case involves three instances of similar conduct against the same victim within a 28-month span. We do not believe, on these facts, that the time period is so great as to erode the relevance of the first two incidents to the charged offense. We hold, therefore, that the judge did not abuse his discretion under the balancing test of Rule 403, see Boyd, 321 N.C. at 578, 364 S.E.2d at 120, and that A.G.\u2019s testimony was properly admitted under that Rule.\nHolding that A.G.\u2019s testimony was permissible under Rules 403 and 404(b), we overrule this assignment of error.\nIll\nDefendant next assigns error to testimony by State Bureau of Investigation Technician Scott Worsham, a forensic chemist who testified at trial as an expert in the field of forensic hair examination and identification. Agent Worsham stated that he compared pubic-hair samples taken from defendant with samples obtained from a pubic-hair combing of A.G. and obtained from the bottom bed sheet of A.G.\u2019s bed at the Holiday Motel. According to Agent Worsham, microscopic comparison showed the samples taken from defendant to be consistent with one pubic hair taken from the combing and with one pubic hair taken from the bed sheet. Subsequent to that testimony, this exchange occurred:\n[The State]: Mr. Worsham, based upon your training and expertise, do you have an opinion as to what conclusions can be drawn from hairs that are found to be microscopically consistent, sir?\n[Defense Lawyer Davis]: Objection.\nThe Court: Overruled.\nA: Yes, it would be my opinion that, based on consistencies which I found in the internal characteristics of the hair and pubic hair combings, as well as the hair on the sheet, that both of these pubic hairs could have originated from James Faircloth, and it is my opinion that it would be improbable that these hairs would have originated from another individual.\nOn cross-examination, which immediately followed this answer, Agent Worsham elaborated:\nQ: You\u2019re saying [the hairs] could have originated from Darrell Faircloth? It is also possible that [they] could have originated from somebody else, isn\u2019t it?\nA: That\u2019s correct. It is always possible that there exists another individual or other individuals in the population who might have a pubic hair that is microscopically consistent with the pubic hairs which I observed in this case. However, that person would have had to have been in contact with both the bed sheet and also the pubic area of [A.G.] and, as I stated, in my opinion, that would be impossible for another person to achieve that.\nDefendant argues that the judge erred by overruling his objection in that the State\u2019s question solicited testimony that exceeded the boundaries of Agent Worsham\u2019s expertise. Although we disagree that the question was improper, we do agree with defendant\u2019s contention that Agent Worsham\u2019s testimony went beyond acceptable bounds. However, defendant did not move to strike the objectionable responses by Agent Worsham, and thus he has waived his right to assign this error on appeal.\nHair-analysis evidence is admissible if relevant. State v. Hannah, 312 N.C. 286, 294, 322 S.E.2d 148, 154 (1984). Relevant evidence is that having any logical tendency, however slight, to prove a fact at issue in the case. N.C. Gen. Stat. \u00a7 8C-1, R. Evid. 401 (1988); see also id. Agent Worsham\u2019s testimony as to the consistency of the hair samples tended to support A.G.\u2019s account of the events of 2 April, and thus that portion of Agent Worsham\u2019s answer that the hairs \u201ccould have originated from James Faircloth\u201d was relevant and admissible. See State v. Pratt, 306 N.C. 673, 678-79, 295 S.E.2d 462, 466 (1982); see also State v. Stallings, 77 N.C. App. 189, 191, 334 S.E.2d 485, 486 (1985), disc. review denied, 315 N.C. 596, 341 S.E.2d 36 (1986) (when combined with \u201cother substantial evidence,\u201d comparative-microscopy evidence may carry case to jury).\nUnlike fingerprints, however, comparative microscopy of hair is not accepted as reliable evidence to positively identify a person. Stallings, 77 N.C. App. at 191, 334 S.E.2d at 486. \u201cRather, it serves to exclude classes of individuals from consideration and is conclusive, if at all, only to negative identity.\u201d Id. (citations omitted); accord, State v. Johnson, 78 N.C. App. 729, 734, 338 S.E.2d 584, 587, disc. review denied, 316 N.C. 382, 342 S.E.2d 902 (1986). Agent Worsham\u2019s testimony that \u201cit would be improbable that these hairs would have originated from another individual\u201d was, effectively, a positive identification of defendant derived from the hair evidence.\nCompounding the problem, it is apparent from the agent\u2019s answer on cross-examination that his opinion about the \u201cimprobability\u201d of the hair originating from a source other than defendant was based on non-scientific considerations. Agent Worsham, as an expert in hair examination and identification, was no better qualified than the jury to determine that it would have been \u201cimpossible\u201d for another person to have been in contact with the bed sheet and A.G.\u2019s pubic area. See State v. Marshall, 92 N.C. App. 398, 404, 374 S.E.2d 874, 877 (1988). Agent Worsham\u2019s opinion addressed the credibility of other witnesses and was an expression of opinion as to defendant\u2019s guilt and thus violated Rules 405(a), 608(a) and 702 of the North Carolina Rules of Evidence. See State v. Heath, 316 N.C. 337, 340-43, 341 S.E.2d 565, 567-69 (1986).\nThe trial transcript, however, is devoid of any motion on the part of defendant to strike the objectionable answers given by Agent Worsham. By failing to move that the testimony be stricken, defendant has waived his right now to assert error on appeal. N.C. Gen. Stat. \u00a7\u00a7 8C-1, R. Evid. 103(a)(1) (1988), 15A-1446(b) (1988); N.C. R. App. P. 10(b)(1) (1990); 1 Brandis at \u00a7 27 (when inadmissibility indicated by some feature of answer, objection should be in form of motion to strike as soon as inadmissibility becomes known). We therefore overrule this assignment of error.\nIV\nWe find no error by the trial judge in permitting A.G. to testify about prior incidents of sexual abuse by defendant. Additionally, we hold that the judge did not err by overruling defendant\u2019s objection to the State\u2019s question to Agent Worsham and that defendant has waived his right to assign error to the objectionable portions of Agent Worsham\u2019s answers. We hold, consequently, that defendant is not entitled to a new trial.\nNo error.\nJudges Wells and Parker concur.",
        "type": "majority",
        "author": "DUNCAN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Jane T. Friedensen, for the State.",
      "Beaver, Thompson, Holt, and Richardson, P.A., by H. Gerald Beaver, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES DARRELL FAIRCLOTH\nNo. 8912SC1085\n(Filed 7 August 1990)\n1. Rape and Allied Offenses \u00a7 4.1 (NCI3d)\u2014 other offenses committed by defendant \u2014admissibility of evidence\nIn a prosecution of defendant for first degree rape and taking indecent liberties with a child the trial court did not err in admitting testimony by the victim concerning two incidents of alleged sexual assault by defendant upon her prior to the incident giving rise to the charges here, since all three episodes involved sexual conduct by defendant upon the victim; all three involved the victim\u2019s being alone or under the sole supervision of defendant; all three occurred when the victim was in bed; all occurred within a 28-month period; and the prior incidents were thus sufficiently similar to the charged crime and were sufficiently near in time to it so that N.C.G.S. \u00a7 8C-1, Rule 403 did not require the judge to exclude the evidence. N.C.G.S. \u00a7 8C-1, Rule 404(b).\nAm Jur 2d, Evidence \u00a7\u00a7 321, 324-326.\n2. Rape and Allied Offenses \u00a7 4 (NCI3d); Criminal Law \u00a7 68 (NCI3d)\u2014 expert testimony concerning hair \u2014admissibility-failure to assign error to objectionable portion of answer \u2014 objection waived\nTestimony by an expert in forensic hair identification that hairs found on the victim and on a sheet of the victim\u2019s bed could have originated from defendant was relevant and admissible in this prosecution for first degree rape and taking indecent liberties with a child. Although further testimony by the witness that \u201cit would be improbable that these hairs would have originated from another individual\u201d was based on nonscientific considerations and constituted an expression of opinion as to defendant\u2019s guilt in violation of N.C.G.S. \u00a7 8C-1, Rules 405(a), 608(a) and 702, defendant waived his right to assert such error on appeal where the testimony was given in response to a proper question and defendant made no motion to strike the objectionable portion of the witness\u2019s answer.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 278, 301; Rape \u00a7 68.\nAPPEAL by defendant from judgment entered 14 June 1989 in CUMBERLAND County Superior Court by Judge Joe Freeman Britt. Heard in the Court of Appeals 30 May 1990.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Jane T. Friedensen, for the State.\nBeaver, Thompson, Holt, and Richardson, P.A., by H. Gerald Beaver, for defendant-appellant."
  },
  "file_name": "0685-01",
  "first_page_order": 715,
  "last_page_order": 723
}
