IN THE SUPREME COURT OF NORTH CAROLINA
No. 126PA17
Filed 6 April 2018
STATE OF NORTH CAROLINA
v.
JOHN OWEN JACOBS
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 798 S.E.2d 532 (2017), finding no error
after appeal from a judgment entered on 28 July 2015 by Judge Reuben F. Young in
Superior Court, Bladen County. Heard in the Supreme Court on 10 January 2018.
Joshua H. Stein, Attorney General, by Elizabeth J. Weese, Assistant Attorney
General, for the State.
Paul F. Herzog for defendant-appellant.
Anne Bleyman and North Carolina Prisoner Legal Services, Inc., by
Christopher J. Heaney, for North Carolina Advocates for Justice, amicus
curiae.
JACKSON, Justice.
In this case we consider whether the exception outlined in North Carolina Rule
of Evidence 412(b)(2) applies to evidence of the complainant’s history of sexually
transmitted diseases (STDs) such that the trial court erred in excluding that evidence
pursuant to Rule 412 when other evidence showed that defendant was not infected
with those STDs. Because we conclude that the relevant evidence in defendant’s offer
of proof fell within the Rule 412(b)(2) exception, we reverse the decision of the Court
STATE V. JACOBS
Opinion of the Court
of Appeals holding that the trial court did not err in excluding the STD evidence and
remand this case for a new trial.
On 6 May 2013, complainant “Betty”1 was taken to the hospital after reporting
that defendant, her father, had been having sexual relations with her. As part of her
examination, she was tested for STDs. The test results revealed that Betty had
contracted Trichomonas vaginalis and the Herpes simplex virus, Type II. On that
same day, defendant was arrested for first-degree rape of a child and first-degree sex
offense with a child. Three days after defendant’s arrest, pursuant to a search
warrant, defendant was tested for STDs and the test results showed no evidence of
either Trichomonas or the Herpes simplex virus, Type II.
Prior to trial, the State filed multiple motions in limine asserting that no Rule
412 exceptions applied to evidence related to STDs in this case and that, as a result,
the trial court should prohibit the defense from mentioning such evidence during the
trial. Subsequently, defendant filed a notice of intent to call an expert witness, Keith
Ramsey, M.D. of the East Carolina University School of Medicine, to testify that Betty
had STDs that were not present in defendant and to testify as to the implications of
this information. After hearing arguments on the State’s Rule 412 motions at the
1The pseudonym “Betty” is used throughout this opinion to protect the identity of the
minor child.
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Opinion of the Court
beginning of the July 2015 trial, the trial court concluded that defendant could not
introduce any STD evidence unless the State “open[ed] the door” to such evidence.2
At trial, Betty testified that defendant had been having sexual relations with
her over a period of several years beginning with an incident in 2011, when Betty was
eight or nine years old. Betty described the first incident with some particularity.
During her testimony Betty also described three specific instances in which defendant
engaged in sexual acts with her in 2013, when Betty was eleven years old. First,
Betty testified that on 5 May 2013, after she had showered, eaten, and gone to bed,
she woke up to defendant’s pulling the bed covers off of her. She testified that
defendant then pulled her shorts down and had sex with her. Betty also recounted
that the week before the previous incident, defendant had sex with her in the kitchen
of their home. This incident occurred while her mother was at work and her younger
brother was outside the home. Finally, Betty testified that defendant had sex with
her on 25 April 2013 in her bedroom. She noted that she remembered the date
because defendant had picked her up early from school after she had been disciplined
for kicking another student. On cross-examination, Betty indicated that defendant
had sex with her approximately twice per week for about three years. Over the course
of subsequent days, both the State and defense called several other witnesses, and
2 The trial judge stated that the parties might need to address the possibility of
introducing the STD evidence prior to the first witness’ taking the stand. The transcript
reveals that there was a bench conference off the record before Betty took the stand, but there
is no indication in the record as to what was discussed during this bench conference.
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STATE V. JACOBS
Opinion of the Court
defendant even testified on his own behalf. Of particular relevance to our decision
here, during defendant’s case-in-chief, defense counsel submitted to the trial court an
offer of proof pursuant to Rule 412 that contained, inter alia, the “Medical Expert
Report” prepared by Dr. Ramsey to preview his potential testimony regarding the
implications of the STD evidence. After considering the offer of proof, the trial court
reaffirmed its earlier decision that evidence regarding Betty’s STDs must be excluded
from trial for violating the Rape Shield Law.
On 28 July 2015, a jury returned a verdict finding defendant guilty of first-
degree sex offense with a child. The jury deadlocked on the remaining rape charges.
For the conviction of first-degree sex offense with a child, the trial court imposed a
sentence of 420 to 564 months of imprisonment. After sentencing, defendant gave
oral notice of appeal.
Regarding the issue of the STD evidence, defendant argued before the Court of
Appeals that the trial court erred by excluding the evidence because its inclusion
would have made sexual contact between Betty and defendant less likely, thereby
qualifying for the Rule 412(b)(2) exception. The Court of Appeals majority disagreed
and instead concluded that the STD evidence was properly excluded from trial
because that exception was not applicable here. State v. Jacobs, ___ N.C. App. ___,
___, 798 S.E.2d 532, 536 (2017). In reaching this conclusion, the Court of Appeals
majority noted defendant’s reliance on this Court’s application of the Rule 412(b)(2)
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STATE V. JACOBS
Opinion of the Court
exception in State v. Ollis but distinguished Ollis from the present case on the basis
that defendant here “offer[ed] no such alternative explanation or specific act to prove
that any sexual act committed was by someone other than him.” Id. at ___, 798 S.E.2d
at 536 (citing Ollis, 318 N.C. 370, 376, 348 S.E.2d 777, 781 (1986)). Based upon this
distinction, the Court of Appeals then reasoned that defendant offered the STD
evidence “to raise speculation and insinuate that Betty must have been sexually
active with someone else.” Id. at ___, 798 S.E.2d at 536. On appeal, defendant also
argued that the trial court’s decision to exclude the STD evidence violated his
constitutional right to present a defense. The Court of Appeals declined to reach the
substance of this argument after determining that defendant had not raised this issue
at trial and therefore had waived it. Id. at ___, 798 S.E.2d at 534.
Judge Robert N. Hunter, Jr. concurred in the result only. He wrote separately
to emphasize that STD evidence should not “be included wholesale” within the
coverage of Rule 412. Id. at ___, 798 S.E.2d at 536 (Hunter, Jr., J. concurring in result
only). Nonetheless, he further explained that if a defendant can offer relevant and
exculpatory medical evidence that “does not necessarily speak to the past sexual
behavior of the victim, such evidence should be admissible regardless of whether it
fits within” a Rule 412 exception. Id. at ___, 798 S.E.2d at 536.
On appeal to this Court, defendant reiterates his argument that the trial court
misinterpreted Rule 412(b)(2) in excluding the proffered STD evidence. Defendant
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STATE V. JACOBS
Opinion of the Court
specifically asserts that the medical evidence that was to be presented by Dr. Ramsey
was within the exception set forth in Rule 412(b)(2). We agree. Because this disposes
of the case in defendant’s favor, we do not address whether he preserved the
constitutional question below.
As stated by this Court, “[t]he Rape Shield Statute provides that ‘the sexual
behavior of the complainant is irrelevant to any issue in the prosecution’ except in
four very narrow situations.” State v. Herring, 322 N.C. 733, 743, 370 S.E.2d 363,
370 (1988) (quoting N.C.G.S. § 8C-1, Rule 412 (1986)). “Sexual behavior” is
statutorily defined as “sexual activity of the complainant other than the sexual act
which is at issue in the indictment on trial.” N.C.G.S. § 8C-1, Rule 412(a) (2017). The
narrow exception defendant relies upon in this case depends on whether the evidence
at issue was “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.” Id.
§ 8C-1, Rule 412(b)(2) (2017). Generally, Rule 412 “stands for the realization that
prior sexual conduct by a witness, absent some factor which ties it to the specific act
which is the subject of the trial, is irrelevant due to its low probative value and high
prejudicial effect.” State v. Younger, 306 N.C. 692, 698, 295 S.E.2d 453, 456 (1982)
(emphasis added).3
3 Younger was decided pursuant to N.C.G.S. § 8-58.6, which was the predecessor
statute to Rule 412. Notwithstanding differences in wording, the exceptions set forth in
section 8-58.6 are substantively the same as those contained in the current version of Rule
412.
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STATE V. JACOBS
Opinion of the Court
“Before any questions pertaining to [evidence of sexual behavior] are asked of
any witness, the proponent of such evidence shall first apply to the court for a
determination of the relevance of the sexual behavior to which it relates.” N.C.G.S.
§ 8C-1, Rule 412(d) (2017). Then the court must conduct a transcribed in camera
hearing “to determine the extent to which such behavior is relevant.” Id. If the court
determines that the proffered evidence is relevant, “it shall enter an order stating
that the evidence may be admitted and the nature of the questions which will be
permitted.” Id.
Here defendant both submitted the necessary offer of proof and argued that
the evidence fell within the exception stated in Rule 412(b)(2) because the evidence
was “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.” N.C.G.S.
§ 8C-1, Rule 412(b)(2). Defendant’s proffered evidence included the results of STD
panels administered to both Betty and defendant, as well as a report from a proposed
expert witness. Defendant’s proposed expert, Dr. Ramsey, is a certified specialist in
infectious diseases. The medical expert report Dr. Ramsey prepared for this case
included the following observations regarding the implications of the STD test results
with respect to the likelihood of defendant’s guilt:
Based upon my review of the medical records, [Betty] had
a Trichomonas infection at the time of exam on 5/6/2013,
and has been infected with Herpes simplex[.] If the latter
is due to HSV-2, neither the Trichomonas nor the Herpes
simplex would have been acquired as non-sexually
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STATE V. JACOBS
Opinion of the Court
transmitted diseases[.] [Defendant] had a negative KOH
Wet Prep test for Trichomonas, and a negative culture for
Herpes simplex on 5/9/2013, indicating that he had no
evidence of either infection[.] Based upon the results of
these tests, it is in my expert opinion that it is not likely
that the plaintiff and defendant engaged in unprotected
sexual activity over a long period of time without
transmitting either the Trichomonas, the Herpes simplex
infection, or both, to the defendant.
Based on the materials presented in defendant’s offer of proof, the STD
evidence was an essential part of the proposed expert testimony. The proposed
expert’s conclusions regarding the presence of STDs in the victim and the absence of
those same STDs in defendant affirmatively permit an inference that defendant did
not commit the charged crime. Furthermore, such evidence diminishes the likelihood
of a three-year period of sexual relations between defendant and Betty. Therefore,
the trial court erred in excluding this evidence pursuant to Rule 412 and there is “a
reasonable possibility that, had the error not been committed, a different result would
have been reached at trial.” State v. Webster, 324 N.C. 385, 393, 378 S.E.2d 748, 753
(1989) (citing N.C.G.S. § 15A-1443 (1988)).
The State’s primary argument on appeal is that defendant offered this evidence
for inappropriate purposes because “[t]he speculative nature of defendant’s evidence
reduces it to nothing more than a naked inference of sexual activity,” serving to
unnecessarily humiliate and embarrass the victim. This characterization is based
neither on defendant’s stated reason for offering the evidence nor the evidence in
defendant’s offer of proof. The purpose of this evidence appears to be precisely what
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STATE V. JACOBS
Opinion of the Court
defendant stated it to be: to support his claim that he did not commit the criminal
acts for which he was charged. That purpose aligns completely with the exception
carved out in Rule 412(b)(2).
Next, given the references to our prior decision in State v. Ollis by the Court of
Appeals and by both parties throughout the history of this case, we observe that our
decision in that case does not determine the outcome here. In Ollis this Court
reasoned that evidence of specific prior sexual acts should be admitted because the
evidence offered an alternative explanation for medical evidence presented by the
State that could otherwise be misleading to the jury and therefore fell within the
exception to the general prohibition against the admission of evidence concerning
other sexual activity involving the victim set out in Rule 412(b)(2). See Ollis, 318
N.C. at 377, 348 S.E.2d at 781-82 (noting that the witness “made reference in her
testimony on at least two occasions to multiple rapes of the victim, which in the
absence of evidence that they were committed by some other male, the jury clearly
would infer were acts committed by the defendant”). Although Ollis does describe
one set of circumstances in which the Rule 412(b)(2) exception applies, that decision
does not describe the only set of circumstances in which this exception applies. In
the instant case defendant offers medical evidence that directly supports an inference
“that the act or acts charged were not committed by the defendant.” N.C.G.S. § 8C-1,
Rule 412(b)(2). Defendant’s proffered evidence falls within the text of the Rule
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Opinion of the Court
412(b)(2) exception without directly implicating this Court’s specific reasoning in
Ollis.
The record shows that the trial court excluded defendant’s evidence solely
based on Rule 412. The exception set forth in Rule 412(b)(2) exists to limit the blanket
exclusion of evidence related to sexual behavior pursuant to Rule 412. Because we
hold that defendant’s offer of proof indicated that the STD evidence in this case fell
within the Rule 412(b)(2) exception, we conclude that the Court of Appeals erred by
holding that there was no error in the trial court’s exclusion of the evidence. For the
foregoing reasons, we reverse the decision of the Court of Appeals and remand this
case to that court with instructions to vacate defendant’s conviction for first-degree
sex offense with a child and to further remand this case to Superior Court, Bladen
County for a new trial.
REVERSED AND REMANDED; NEW TRIAL.
Justice MORGAN dissenting.
Based upon application of the rudimentary principles of statutory
construction, I respectfully disagree with the decision of my learned colleagues. In
reaching the result in this case, the majority has devalued, and essentially ignored,
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STATE V. JACOBS
MORGAN, J., dissenting
the operation of the descriptive word “specific” in its interpretation of North Carolina
General Statutes Section 8C-1, Rule 412(b)(2) and this provision’s usage in the
present case.
“Statutory interpretation properly begins with an examination of the plain
words of the statute.” Three Guys Real Estate v. Harnett County, 345 N.C. 468, 472,
480 S.E.2d 681, 683 (1997) (quoting Correll v. Div. of Soc. Servs., 332 N.C. 141, 144,
418 S.E.2d 232, 235 (1992)). “Where the language of a statute is clear and
unambiguous, there is no room for judicial construction and the courts must give it
plain and definite meaning . . . .” Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d
849, 854 (1980) (first citing State ex rel. Utils. Comm’n v. Edmisten, 291. N.C. 451,
232 S.E.2d 184 (1977), and then citing Peele v. Finch, 284 N.C. 375, 200 S.E.2d 635
(1973)); see also In re Tr. of Charnock, 358 N.C. 523, 528, 597 S.E.2d 706, 709-10
(2004) (stating that “the Court looks first to the language of the statute and gives the
words their ordinary and plain meaning” (citing Frye Reg’l Med. Ctr., Inc. v. Hunt,
350 N.C. 39, 45, 510 S.E.2d 159, 163 (1999))).
Rule 412(b)(2) contains the following language:
(b) Notwithstanding any other provision of law, the sexual
behavior of the complainant is irrelevant to any issue in the
prosecution unless such behavior:
....
(2) Is 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 . . . .
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STATE V. JACOBS
MORGAN, J., dissenting
N.C.G.S. § 8C-1, Rule 412(b)(2) (2017) (emphasis added).
The majority here has determined that defendant’s offer of proof at trial
indicated that the Rule 412(b)(2) exception of the “Rape Shield Law” was properly
invoked so as to justify the admission into evidence of the alleged victim’s sexually
transmitted diseases, or STDs. The majority expressly focused upon (1) the
observations of defendant’s proposed medical expert that the minor alleged victim
had two different STDs at the time of her medical examination on 6 May 2013;
neither of which “would have been acquired as non-sexually transmitted diseases,”
and that defendant “had no evidence of either infection” on 9 May 2013; and (2) the
“expert opinion that it is not likely that the [complainant]1 and defendant engaged
in unprotected sexual activity over a long period of time without transmitting either
the Trichomonas, the Herpes simplex infection, or both, to the defendant.” Based
upon the presence of STDs in the alleged victim and the absence of the same STDs
in defendant, the majority reasons that such evidence would afford defendant a
permissible inference that he was not guilty and “diminishes the likelihood of a
three-year period of sexual relations” between defendant and the alleged victim, to
which she testified at trial. Therefore, the majority concludes in the instant case
that “the relevant evidence in defendant’s offer of proof fell within the Rule 412(b)(2)
exception” and that defendant had correctly argued this point “because the evidence
1 This reference is to the alleged victim, “Betty.”
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STATE V. JACOBS
MORGAN, J., dissenting
was ‘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,’ ” thus
making the evidence admissible under that provision.
Nestled within the cited words of the opinion offered by defendant’s proposed
medical expert was his observation that the alleged victim would not have contracted
the identified STDs in any non-sexual manner. This conclusion obviously conveyed
that the alleged victim had engaged in “sexual behavior” as that term is used in Rule
412, which therefore activates this Rape Shield Law’s dictate that “the sexual
behavior of the complainant is irrelevant to any issue in the prosecution unless” one
of the exceptions under Rule 412(b) applies so as to permit such proscribed evidence
to be admitted at trial. Although the majority views the observations of defendant’s
proposed medical expert as satisfying the exception embodied in Rule 412(b)(2),
there is no “evidence of specific instances of sexual behavior offered” by defendant
through this offer of proof to “show[ ] that the . . . acts charged were not committed
by him. N.C.G.S. § 8C-1, Rule 412(b)(2) (emphasis added). While the disputed
evidence at issue tends to show at least one instance of sexual behavior in which the
alleged victim engaged, as demonstrated by her acquisition of STDs, nonetheless,
the proposed medical expert’s opinion in particular, and defendant’s offer of proof in
general, are bereft of any “instances of sexual behavior” by the alleged victim that
contain any specific details as required by the clear and plain language of Rule
412(b)(2). Indeed, in my view, defendant’s offer of proof references no instance of
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STATE V. JACOBS
MORGAN, J., dissenting
sexual behavior by the alleged victim for which he provided sufficient specificity, in
light of the three-year time period placed in issue by the alleged victim’s trial
testimony, to qualify for the evidentiary exception under Rule 412 and hence to
overcome the inherent protections afforded to a complainant by the Rape Shield Law.
Ironically, the majority demonstrates a recognition of exemplars of “specific
instances” when it employs that statutory phrase to describe the details conveyed by
the alleged victim when relating the sexual acts in which she claimed defendant
engaged her. The alleged victim’s narration of the sexual encounters to which she
testified depicts a truer representation of the term “specific instances” in Rule
412(b)(2) than the generalities present in defendant’s proffered STD evidence. While
I would not require a defendant seeking to employ the “specific instances” exception
to present a level of particularity approaching the alleged victim’s list of vivid
descriptions, an accused should nonetheless have to identify a time, place or
circumstance in which a complainant was involved in “specific instances of sexual
behavior” rather than merely complying with the majority’s permissive substitution
of a medical opinion referencing a diagnosis suggesting some instance of sexual
behavior by the complainant. The majority unfortunately conflates the presence of
the alleged victim’s STDs, which could be the result of specific instances of her sexual
behavior if any specific instances had been shown by defendant, with specific
instances themselves.
“Since a legislative body is presumed not to have used superfluous words, our
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STATE V. JACOBS
MORGAN, J., dissenting
courts must accord meaning, if possible, to every word in a statute.” N.C. Bd. of
Exam’rs v. N.C. State Bd. of Educ., 122 N.C. App. 15, 21, 468 S.E.2d 826, 830 (1996)
(citing 2A Norman Singer, Sutherland Statutory Construction § 47.37 (5th ed. 1992)),
aff’d per curiam in part and disc. rev. improvidently allowed, 345 N.C. 493, 480
S.E.2d 50 (1997). In the case at bar, the majority has not applied this Court’s well-
established principles of statutory construction, especially with regard to the
essential word “specific,” that purposefully appears in N.C.G.S. § 8C-1, Rule
412(b)(2). For the reasons indicated, I would affirm the trial court’s ruling that
excluded the evidence of STDs pursuant to Rule 412 and affirm defendant’s
conviction, consistent with the outcome of this case in the Court of Appeals but based
upon a different rationale.
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State v. Jacobs
Court: Supreme Court of North Carolina
Date filed: 2018-04-06
Citations: 811 S.E.2d 579, 370 N.C. 661
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