{ "id": 8561315, "name": "STATE OF NORTH CAROLINA v. ALFRED BURNS", "name_abbreviation": "State v. Burns", "decision_date": "1982-12-07", "docket_number": "No. 226A82", "first_page": "224", "last_page": "233", "citations": [ { "type": "official", "cite": "307 N.C. 224" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "295 S.E. 2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573479 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0692-01" ] }, { "cite": "226 S.E. 2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561482 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0349-01" ] }, { "cite": "131 S.E. 577", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "pin_cites": [ { "page": "579" } ], "opinion_index": 0 }, { "cite": "191 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628333 ], "year": 1926, "pin_cites": [ { "page": "212-13" } ], "opinion_index": 0, "case_paths": [ "/nc/191/0210-01" ] }, { "cite": "81 S.Ct. 717", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1961, "opinion_index": 0 }, { "cite": "5 L.Ed. 2d 707", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1961, "opinion_index": 0 }, { "cite": "365 U.S. 830", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203232, 6202818, 6202405, 6203045, 6202223, 6202580 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/us/365/0830-06", "/us/365/0830-04", "/us/365/0830-02", "/us/365/0830-05", "/us/365/0830-01", "/us/365/0830-03" ] }, { "cite": "116 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "433" } ], "opinion_index": 0 }, { "cite": "253 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622810 ], "year": 1960, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0130-01" ] }, { "cite": "93 S.Ct. 1516", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1973, "opinion_index": 0 }, { "cite": "36 L.Ed. 2d 184", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "410 U.S. 987", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12007873, 12007780, 12007688, 12007639, 12008116, 12008181, 12007926, 12007991, 12007832, 12008052, 12007738, 12007583 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/410/0987-07", "/us/410/0987-05", "/us/410/0987-03", "/us/410/0987-02", "/us/410/0987-11", "/us/410/0987-12", "/us/410/0987-08", "/us/410/0987-09", "/us/410/0987-06", "/us/410/0987-10", "/us/410/0987-04", "/us/410/0987-01" ] }, { "cite": "93 S.Ct. 1432", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1973, "opinion_index": 0 }, { "cite": "35 L.Ed. 2d 691", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "410 U.S. 958", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11991553, 11991810, 11991297, 11991877, 11991625, 11991247, 11991407, 11991697, 11991474, 11991346, 11991935 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/410/0958-06", "/us/410/0958-09", "/us/410/0958-02", "/us/410/0958-10", "/us/410/0958-07", "/us/410/0958-01", "/us/410/0958-04", "/us/410/0958-08", "/us/410/0958-05", "/us/410/0958-03", "/us/410/0958-11" ] }, { "cite": "191 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562785 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0092-01" ] } ], "analysis": { "cardinality": 842, "char_count": 21783, "ocr_confidence": 0.815, "pagerank": { "raw": 4.7376427117960297e-07, "percentile": 0.9296630807433175 }, "sha256": "3924bac68e181f15d64e2571e32112f7244b59be6468c66db087db79d40e991c", "simhash": "1:83af8093f55af4f6", "word_count": 3577 }, "last_updated": "2023-07-14T20:07:32.557624+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ALFRED BURNS" ], "opinions": [ { "text": "MITCHELL, Justice.\nAt trial the State called various witnesses whose testimony tended to show inter alia the following:\nMalinda Lea Hardison lived with her mother, her brother Allen and the defendant, her stepfather Alfred Burns, during the summer of 1981. At that time she was nine years old. She testified that during that summer the defendant Alfred Burns required her at various times to commit fellatio and masturbation upon him and that he committed acts of cunnilingus, sexual intercourse and sodomy upon her. These acts took place primarily in a hay barn behind their house in Rockingham County. Some of the acts took place in the house, but Malinda could not recall in which rooms of the house they took place. Malinda also testified that she had seen the defendant make her younger brother Allen perform masturbation upon him. She further testified that sometimes her brother Allen was present when the defendant performed the various sexual acts with or upon her and sometimes she was alone with the defendant on these occasions.\nAllen Hardison testified that he was six years old. During the summer of 1981 he had lived with his sister Malinda, his mother and the defendant Alfred Burns. Allen testified that, on more than one occasion during that summer, the defendant Alfred Burns made Allen perform fellatio upon him. Allen also testified that he had seen the defendant perform cunnilingus, sexual intercourse and sodomy upon his sister Malinda during that period of time as well as make her perform fellatio.\nMary Burns testified that she was the mother of Malinda and Allen Hardison and the wife of the defendant Alfred Burns. During the summer of 1981 she was employed outside the home during the evenings and usually returned home at approximately 7:15 a.m. She would then clean the house and go to bed around 11:00 a.m. The defendant usually kept the children while she was sleeping or at work. On the day the defendant was arrested for the crimes charged in the present case, Mary Burns asked the children if Alfred had ever performed any sexual act with them or made them perform such acts upon him. Each child at first denied that such acts had occurred but later stated that they had and described the acts in detail.\nSue Aldridge testified that she was a second and third grade combination teacher in the Rockingham County Schools. Malinda was assigned to her third grade class. Malinda seemed very nervous and at first Aldridge attributed this to her being a new student. The nervousness continued, however, and Malinda began to complain that she was sick. Aldridge would take Malinda to the bathroom, where Malinda would sit on the floor with her head over the commode and say that she was sick. This continued for several days with the child continuing to exhibit nervousness. Malinda came to Aldridge on 21 September 1981 and stated that she had to talk to her. Malinda then told Aldridge that \u201cher stepfather was trying to get her to play with him and she didn\u2019t want to.\u201d After further conversation with Malinda, Aldridge informed the principal who called the Rockingham Department of Social Services. Amy Tuttle and Wanda Dickerson from the Department of Social Services came to the school that day. Aldridge told them about the situation and introduced Malinda to them and left her with them. She waited for Malinda and later returned with her to the classroom. As the days went on after 21 September 1981, Malinda was much calmer, worked harder and seemed much happier.\nAmy Tuttle testified that she worked in protective service for children at the Rockingham Department of Social Services. In that capacity she investigated child abuse and rape cases and negligence and abuse cases against adults. She had been so employed for six years. She talked with Malinda in private for about an hour on 21 September 1981. Malinda described to Tuttle various sexual acts which she said the defendant had performed with and upon her and her brother Allen and sexual acts the defendant had made the children perform upon him in the barn behind their house.\nTuttle further testified that on 28 September 1981 Mary Burns came into Tuttle\u2019s office with six-year old Allen. During Tuttle\u2019s interview with him, Allen described various sexual acts the defendant had required Allen and Malinda to perform upon him and sexual acts the defendant had performed with and upon Malinda in Allen\u2019s presence.\nBrenda Maddox testified that she was a marriage and family therapist in Reidsville. She had seen Malinda six times for counseling sessions of about forty-five minutes each. She had also seen Allen on two occasions. Each child described to Maddox certain of the sexual acts in question.\nDr. J.A.N. German, a pediatrician, was stipulated to be a medical expert. She testified that she had examined Malinda Har-dison on 21 September 1981. She said that on that date Malinda told her that on occasion the defendant would take Malinda from her bed to his bed and \u201cfondle her and press with his penis in the vaginal area.\u201d Malinda complained to Dr. German of pain during urination and rectal pain of approximately one week\u2019s duration. Malinda was hesitant about discussing what had happened.\nDr. German testified that her physical examination of Malinda revealed bruises on Malinda\u2019s vagina and that the vaginal opening was larger than would be expected in a child of her age. Dr. German testified that she determined this by inspection with a speculum-tracheoscope about five centimeters round. She testified that such examinations were usually done under anesthesia, but that the instrument went into the child\u2019s vaginal opening without any problem which was not normal for a child of Malinda\u2019s age. Her vaginal examination of Malinda revealed no hymen. She testified that when the hymen is gone in children of Malinda\u2019s age tears or tags are usually seen on either side of the vagina. These tags disappear as the person grows older. There were none in Malinda. Dr. German\u2019s examination also revealed bruising of tissue and marked tenderness to pressure in Malinda\u2019s rectal area. When Dr. German examined Malinda again on 6 October 1981 none of these findings were present except the larger than usual vaginal opening. Dr. German formed the opinion that Malinda\u2019s vagina had been penetrated by a foreign object. She recommended counseling for both Malinda and Allen.\nThe defendant offered evidence through various witnesses tending to show the following:\nPatricia Easter testified that she was the defendant\u2019s sister and lived in Beaufort, North Carolina. She had seen the defendant with the children frequently before they moved to Rockingham County. Easter testified that the defendant never physically abused or beat the children and sent them to Sunday School. Easter also testified that her husband Frank had been charged with the crime of taking indecent liberties with a nine-year old girl on 14 April 1981 in Beaufort. The defendant attempted to introduce additional testimony by Easter which was excluded. The excluded testimony will be discussed later in this opinion.\nThe defendant\u2019s father, brother and others testified on the defendant\u2019s behalf. Their testimony tended to show the defendant\u2019s good character and reputation and that he had regularly cared for the children and provided for their needs.\nThe defendant took the stand and testified in his own behalf. He testified that to his knowledge none of the things the children had testified to had actually occurred.\nOther testimony offered on behalf of the State and the defendant will be reviewed hereinafter as the need arises.\nThe defendant assigns as error the admission into evidence of testimony of various of the State\u2019s witnesses with regard to statements made to them by the children Malinda and Allen which related to sexual acts by the defendant with the children. The defendant contends that this testimony was not admissible as it did not tend to corroborate the earlier testimony of the children. This assignment of error is without merit.\nEvidence which is inadmissible for substantive or illustrative purposes may nevertheless be admitted as corroborative evidence in appropriate cases when it tends to enhance the credibility of a witness. See Brandis on North Carolina Evidence, \u00a7\u00a7 49 & 52 (2nd rev. ed. 1982). In the present case, however, the defendant contends that certain testimony of witnesses concerning statements made to them by the children contradicted the children\u2019s testimony and was not corroborative. We do not find this to be the case. The defendant bases this assignment of error upon his exceptions numbered one through six. Exception Number Two related to testimony by Dr. German in which she recounted Allen\u2019s description to her of the emission from the defendant during ejaculation. It is unnecessary for us to set forth this testimony in graphic detail in order to state that it was substantially similar to testimony elicited during the direct examination of the child. It is true that the words used by Allen in describing the emission to Dr. German were not identical to the words he used during his testimony at trial. Slight variances or inconsistencies in and between the corroborative testimony and that sought to be corroborated, however, do not render the corroborative testimony inadmissible. State v. Bryant (White and Holloman), 282 N.C. 92, 191 S.E. 2d 745 (1972), cert. denied sub nom. White v. North Carolina, 410 U.S. 958, 35 L.Ed. 2d 691, 93 S.Ct. 1432, Holloman v. North Carolina, 410 U.S. 987, 36 L.Ed. 2d 184, 93 S.Ct. 1516 (1973). In the ordinary course of things, an individual will not describe the same event in precisely the same way on any two occasions. Nor is it necessary that a person do so in order that his prior consistent statements be admissible to corroborate his testimony at trial. Indeed, if a person recounted the same event in precisely the same words on several occasions without some minor variations, it might reasonably be suspected that he had contrived and memorized his account. The very minor variances or inconsistencies between Allen\u2019s testimony and his prior statement to Dr. German did not make her testimony about this prior statement any less corroborative and it was properly admitted.\nThe defendant\u2019s Exception Number Six is directed to testimony by Amy Tuttle of the Rockingham Department of Social Services that Allen said that the defendant \u201chad not wanted Allen to tell anybody.\u201d This statement to Tuttle directly corroborated Allen\u2019s statement during his testimony at trial that the defendant \u201ctold us not to [talk to anyone] because they would put him in jail.\u201d Any minor variance or inconsistency between these two statements was clearly not sufficient to render the statement made by Allen to Tuttle inadmissible as corroborative of Allen\u2019s testimony at trial.\nThe remaining exceptions in support of this assignment relate to other statements of witnesses concerning prior statements of the children. Exception Number One was to Dr. German\u2019s testimony that Malinda told her that \u201con occasion her stepfather would take her from her bed to his bed and fondle her and press with his penis in the vaginal area.\u201d Exception Number Three was to testimony by Sue Aldridge, Malinda\u2019s teacher, that Malinda told her \u201cthat her stepfather was trying to get her to play with him and she didn\u2019t want to. She said he wanted her to touch that thing at night at home while her mother was at work.\u201d Exception Number Four was to testimony by Tuttle that Malinda had told her that her \u201cstepfather tries to get in bed with me \u2014 I don\u2019t want him in bed with me ... I felt him pushing up against my back.\u201d Exception Number Five was to Tuttle\u2019s testimony that Allen had told her \u201cthat on another occasion they did \u2018more nasty stuff,\u2019 that Mr. Burns had played with Allen\u2019s hinney and stuck his finger in Malinda\u2019s hinney.\u201d The defendant contends that this testimony by the witnesses concerning prior statements made to them by the children did not repeat testimony given by the children and did not corroborate the children\u2019s testimony.\nIt is not necessary in every case that evidence tend to prove the precise facts brought out in a witness\u2019s testimony before that evidence may be deemed corroborative of such testimony and properly admissible. The term \u201ccorroborate\u201d means \u201c[t]o strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence.\u201d State v. Case, 253 N.C. 130, 135, 116 S.E. 2d 429, 433 (1960), cert. denied, 365 U.S. 830, 5 L.Ed. 2d 707, 81 S.Ct. 717 (1961), quoting Black\u2019s Law Dictionary 444 (3d ed.). \u201cCorroborating evidence is supplementary to that already given and tending to strengthen or confirm it.\u201d State v. Lassiter, 191 N.C. 210, 212-13, 131 S.E. 577, 579 (1926). In the present case, the corroborative testimony which is the subject of the defendant\u2019s exceptions apparently does not restate specific facts testified to by the child witnesses. The children\u2019s testimony at trial, however, indicated quite clearly a continuing course of sexual abuse by the defendant of both of them involving sexual intercourse, fellatio, cunnilingus, sodomy, masturbation and other abuse. The prior statements of the children did not inject evidence of acts or crimes of the defendant having no direct bearing upon the crimes charged against him. The children\u2019s prior statements to the doctor, a teacher and a social worker, although perhaps not tending to prove the precise narrow facts brought out in the children\u2019s testimony during the trial, certainly constituted corroborating evidence supplementary to their testimony and tending to strengthen or confirm their testimony. Therefore, the testimony of the witnesses concerning the prior statements of the children to them was admissible as tending to corroborate the testimony of the children. Whether it in fact corroborated the children\u2019s testimony was, of course, a question for the jury after proper instructions from the trial court. Brandis on North Carolina Evidence, \u00a7 52 (2nd rev. ed. 1982); see State v. Tolley, 290 N.C. 349, 226 S.E. 2d 353 (1976).\nWe further find that, even had the evidence complained of under this assignment been incompetent, its admission into evidence was not reversible error. The defendant at no time objected to any of the testimony which forms the basis for his exceptions under this assignment of error. Nor did he move to strike the testimony or seek to have its admission into evidence restricted to corroborative purposes. Thus, any basis for the defendant\u2019s first six exceptions and first assignment of error was lost. See generally 12 Strong\u2019s N.C. Index 3d, Trial \u00a7\u00a7 15, 15.3 and 15.4.\nThe defendant also assigns as error the trial court\u2019s exclusion of certain evidence he sought to introduce through the testimony of his sister Patricia Easter. The trial court conducted an in camera hearing during which Easter testified that sometime during 1976 or 1977 she caught Malinda and her son Ronald who was Malinda\u2019s age \u201clooking at each other.\u201d Her son Ronald had his trousers down at the time. Easter stated that her son Ronald \u201cadmitted he\u2019d been doing something, but Malinda denied doing anything.\u201d Easter testified that Malinda \u201cfinally broke down and admitted kissing Ronnie. This was 30 or 40 minutes after I caught them.\u201d The trial court excluded this testimony as being inadmissible under G.S. 8-58.6, commonly referred to as the rape victim shield statute.\nThe defendant contends that the trial court erred in excluding this testimony by Easter as it was offered to show the untruthfulness of the child victim and not her past sexual behavior. We have recently held that G.S. 8-58.6 does not prevent introduction of evidence by a defendant which tends to show untruthfulness on the part of the victim merely because such evidence also tends to reveal past sexual behavior of the victim. State v. Younger, 306 N.C. 692, 295 S.E. 2d 453 (1982). It is unnecessary for us to determine whether the testimony of Easter during the in camera hearing rose to the level of testimony revealing past sexual behavior of the victim within the meaning of G.S. 8-58.6. The conduct described by Easter occurred between the children at least four years prior to the criminal acts charged against the defendant. At that time Malinda and Ronald were each either four or five years old. The conduct involved that sort of \u201clooking at each other\u201d common among children of that age. Whether Malinda immediately told the truth about that incident at that time would, at most, have minimal probative value on the question of her truthfulness at the defendant\u2019s trial. Assuming arguendo that such testimony had sufficient probative value to be competent, its exclusion was harmless beyond a reasonable doubt in light of the strong eyewitness testimony of the children and the corroborating medical evidence.\nThe defendant additionally contends under this assignment of error that the trial court erred in excluding certain other testimony which he sought to elicit from the witness Easter. If allowed to, Easter would have testified that:\nI was present when Malinda told Alfred that she had been having sexual dreams. Mary left the house because she was too mad at Malinda because of the incident I testified about in chambers previously. Mary was throwing a fit about it. I told her what Malinda said and I think Alfred did, too.\nThe defendant contends that this evidence was admissible to rebut testimony by Malinda that she had not told her mother that she had dreamed of any of the sexual events that she had described the defendant as having committed and to rebut the testimony of her mother to the same effect. Easter\u2019s excluded testimony did not tend to rebut any such statements by Malinda as it in no way indicated that Malinda in fact ever told her mother that she had had such dreams. At most Easter\u2019s testimony tends to indicate that Malinda told the defendant she had had such dreams and that Easter and the defendant told this to Malinda\u2019s mother Mary. Even if it is assumed that this excluded testimony of the defendant\u2019s sister was admissible, we conclude its exclusion was harmless beyond a reasonable doubt in light of the strong evidence of the two victims and the corroborating medical evidence and other evidence offered by the State. This assignment of error is without merit.\nWe hold that the defendant received a fair trial, free from prejudicial error.\nNo error.", "type": "majority", "author": "MITCHELL, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Nonnie F. Midgette, Assistant Attorney General for the State.", "Douglas R. Hux, Attorney for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALFRED BURNS\nNo. 226A82\n(Filed 7 December 1982)\n1. Criminal Law \u00a7 80.3\u2014 prior statement by victim \u2014 use of different words \u2014 admissibility for corroboration\nIn a prosecution of defendant upon two counts of first degree sexual offense with his stepchildren, a doctor\u2019s testimony relating one child\u2019s description to her of the emission from defendant during ejaculation was admissible to corroborate the child\u2019s testimony at trial although the words used by the child in his description to the doctor were not identical to the words he used during his testimony at trial.\n2. Criminal Law \u00a7 89.3\u2014 prior statement by victim \u2014 admissibility for corroboration\nTestimony by a social worker that a child had said that defendant \u201chad not wanted [him] to tell anybody\u201d was admissible to corroborate the child\u2019s testimony that defendant \u201ctold us not to [talk to anyone] because they would put him in jail.\u201d\n3. Criminal Law \u00a7 89.2\u2014 corroborative testimony\nIt is not necessary in every case that evidence tend to prove the precise facts brought out in a witness\u2019s testimony before that evidence may be deemed corroborative of such testimony and properly admissible.\n4. Criminal Law \u00a7 89.2\u2014 prior statements by victims \u2014 admissibility for corroboration\nIn a prosecution of defendant upon two counts of first degree sexual offense with his two stepchildren, testimony by a doctor, a teacher and a social worker concerning prior statements made to them by the children was admissible to corroborate testimony of the children indicating a continuing course of sexual abuse of both of them by defendant, although the prior statements did not tend to prove the precise narrow facts brought out in the children\u2019s testimony during the trial.\n5. Rape and Allied Offenses \u00a7 4.3\u2014 sexual offense \u2014 untruthfulness of child victim on prior occasion \u2014 no probative value \u2014 exclusion as harmless error\nIn a prosecution of defendant for first degree sexual offense with his two stepchildren, even if testimony concerning the female victim\u2019s conduct with another child some four or five years prior to defendant\u2019s acts when the victim was only four or five years old tended to show untruthfulness on her part and was not inadmissible under the rape victim shield statute, G.S. 8-56, such testimony would have minimal probative value on the question of her truthfulness at defendant\u2019s trial. Assuming arguendo that such testimony had sufficient probative value to be competent, its exclusion was harmless beyond a reasonable doubt in light of the strong eyewitness testimony of the children and the corroborating medical evidence.\nAppeal by the defendant from Judgment of Albright, Judge, entered at the 14 December 1981 Criminal Session of Superior Court, Rockingham County.\nThe defendant was tried upon two indictments, proper in form, charging him with separate counts of first degree sexual offense. The defendant having pled not guilty, the jury found him guilty of both offenses. From the trial court\u2019s judgments sentencing him to life imprisonment in each case, the defendant appealed to the Supreme Court as a matter of right pursuant to G.S. 7A-27(a).\nRufus L. Edmisten, Attorney General, by Nonnie F. Midgette, Assistant Attorney General for the State.\nDouglas R. Hux, Attorney for defendant-appellant." }, "file_name": "0224-01", "first_page_order": 252, "last_page_order": 261 }