IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-918
Filed: 15 August 2017
Durham County, No. 15 CRS 51665
STATE OF NORTH CAROLINA,
v.
JAMES ERIC WEST, Defendant.
Appeal by Defendant from judgment entered 9 June 2016 by Judge Beecher R.
Gray in Durham County Superior Court. Heard in the Court of Appeals 21 February
2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Robert
M. Curran, for the State.
Marilyn G. Ozer for Defendant-Appellant.
INMAN, Judge.
When a trial court properly determines, pursuant to Rule 403 of the North
Carolina Rules of Evidence, that the probative value of evidence about a prosecuting
witness’s sexual history is substantially outweighed by its potential for unfair
prejudice, the trial court does not err by excluding the evidence, regardless of whether
it falls within the scope of the North Carolina Rape Shield law.
James Eric West (“Defendant”) appeals from judgment entered against him
following a jury conviction finding him guilty of second degree sexual offense.
STATE V. WEST
Opinion of the Court
Defendant argues the trial court erred by denying his ability to cross-examine the
prosecuting witness regarding his admitted commission of a sexual assault when he
was a child. After careful review, we conclude the exclusion was not error.
Factual and Procedural History
The evidence at trial tended to show the following:
On 26 December 2014, Defendant and D.S.1 were living at the Durham Rescue
Mission. Defendant, age 48 at the time of the incident, had been working on the
maintenance crew, and D.S., age 20 at the time of the incident, approached him to
discuss joining the crew. D.S. spoke with Defendant about his background, including
his childhood. D.S. told Defendant that he had been removed from his biological
family around the age of three to five after being sexually abused by his brother.
Defendant asked D.S. if he was a virgin, and D.S. responded that he was.
Later that evening, after dinner, D.S. and Defendant met in a maintenance
shed at the Mission. D.S. was lying down suffering from a headache when Defendant
pulled down D.S.’s pants and performed unwanted oral sex on him. D.S. tried without
success to rebuff Defendant’s advances. After the sexual assault ended, Defendant
told D.S. not to report what happened.
D.S. and Defendant left the maintenance shed and walked in different
directions; D.S. went to his dorm room and reported the incident to a roommate.
1 To preserve the privacy of the victim of a sexual assault, we hereinafter refer to him as D.S.
See State v. Gordon, __ N.C. App. __, __ n.1, 789 S.E.2d 659, 661 n.1 (2016).
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STATE V. WEST
Opinion of the Court
Police were called to investigate and D.S. recounted the incident. D.S. also told one
officer that he had been sexually abused around the age of three to five by his brother
and was removed from his home. D.S. told another officer that he had sexually
assaulted his half-sister when he was around eight or nine years old and was
thereafter placed in a facility until he reached eighteen years of age.
Officers informed Defendant that D.S. had accused him of forcing unwanted
oral sex upon him. Defendant denied the allegations and consented to a cheek swab
to test his DNA. Forensic analysis found a presence of Defendant’s DNA in a penile
swab from D.S.
Defendant was indicted on 4 May 2015 on one count of second degree
kidnapping and one count of second degree sexual offense. In a pre-trial hearing, the
State, inter alia, dismissed the second degree kidnapping charge and moved to
exclude or limit evidence of D.S.’s sexual history, specifically, D.S.’s statements to
police that he had sexually assaulted his half-sister when he was younger. Defense
counsel asserted that the statement was admissible for impeachment because it was
inconsistent with D.S.’s previous statements to police about how and when he was
removed from his home as a child. The trial court tentatively limited defense counsel
to questions about D.S.’s inconsistent statements to police, but ruled defense counsel
would not be allowed to question D.S. about the prior sexual assault or D.S.’s
statement to police about the prior assault.
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STATE V. WEST
Opinion of the Court
Following D.S.’s direct testimony, the trial court held an in camera hearing to
settle the issue about the admissibility of D.S.’s sexual history. After voir dire
testimony from D.S. and arguments of counsel, the trial court ruled that D.S.’s
statement about sexually assaulting his sister was evidence of prior sexual behavior
protected by the Rape Shield law and was also inadmissible because any probative
value was substantially outweighed by the likelihood of unfair prejudice and
confusion of the jury. On cross-examination, defense counsel obtained D.S.’s
admission that he had told one police officer that he was removed from the family
home “at or near birth due to sexual abuse” and had told another officer that he was
taken from the family home at age eight or nine.
On 3 June 2016, the jury returned a verdict finding Defendant guilty of second
degree sexual offense. The trial court entered judgment and sentenced Defendant in
the mitigated range for a Class C felony with a prior record level one offender, to a
minimum of 44 months and a maximum of 113 months. The trial court also ordered
Defendant to register as a sex offender for 30 years.
Defendant timely appealed.
Analysis
Defendant argues that a prior sexual assault committed by a prosecuting
witness is not protected by North Carolina’s Rape Shield law and should therefore
not have been excluded pursuant to Rule 412 of the North Carolina Rules of Evidence.
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STATE V. WEST
Opinion of the Court
We need not address this issue, because the trial court properly excluded the evidence
based upon Rule 403 after evaluating its relevancy and balancing its probative value
against its potential for unfair prejudice.
1. Standard of Review
We review a trial court’s decision to exclude evidence pursuant to Rule 403 for
abuse of discretion. State v. Lloyd, 354 N.C. 76, 108, 552 S.E.2d 596, 619 (2001) (“The
decision whether to exclude relevant evidence under Rule 403 lies within the sound
discretion of the trial court, and its ruling may be reversed for abuse of discretion
only upon a showing that the ruling was so arbitrary that it could not have been the
result of a reasoned decision.” (internal quotation marks and citations omitted)).
2. Evidence of Prior Sexual Conduct
Rule 412 of the North Carolina Rules of Evidence—North Carolina’s Rape
Shield law—provides in pertinent part:
(b) Notwithstanding any other provision of law, the sexual
behavior of the complainant is irrelevant to any issue in
the prosecution unless such behavior:
(1) Was between the complainant and the defendant;
or
(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; or
(3) Is evidence of a pattern of sexual behavior so
distinctive and so closely resembling the defendant’s
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STATE V. WEST
Opinion of the Court
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) Is evidence of sexual behavior offered as the
basis of expert psychological or psychiatric opinion
that the complainant fantasized or invented the act
or acts charged.
N.C. Gen. Stat. § 8C-1, Rule 412 (2015). Our Supreme Court has held that North
Carolina’s Rape Shield law is “nothing more then [sic] than a codification of this
jurisdiction’s rule of relevance as that rule specifically applies to the past sexual
behavior of rape victims.” State v. Fortney, 301 N.C. 31, 37, 269 S.E.2d 110, 113
(1980). North Carolina’s previous Rape Shield law, and subsequently Rule 412, “was
not intended to act as a barricade against evidence which is used to prove issues
common to all trials.” State v. Younger, 306 N.C. 692, 697, 295 S.E.2d 453, 456 (1981).
Nor was is it meant to be the “sole gauge for determining whether evidence is
admissible in rape cases.” Id. at 698, 295 S.E.2d at 456.
When a defendant in a rape case seeks to admit evidence regarding a
prosecuting witness’s prior sexual conduct, and that evidence does not fall within an
enumerated exception of Rule 412, the evidence is not per se inadmissible. State v.
Martin, 241 N.C. App. 602, 610, 774 S.E.2d 330, 336 (2015). Rather, a trial court
should “look[] beyond the four categories to determine whether the evidence was, in
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STATE V. WEST
Opinion of the Court
fact, relevant . . . and, if so, conduct a balancing test of the probative and prejudicial
value of the evidence under Rule 403 . . . .” Id. at 610, 774 S.E.2d at 336 (citations
omitted).
Evidence of prior sexual conduct is relevant when it affects an issue that is
common to all trials, e.g., a witness’s inconsistent statement about his or her sexual
history. Younger, 306 N.C. at 697, 295 S.E.2d at 456 (“Inconsistent statements are,
without a doubt, an issue common to all trials.”). Rule 403 of the North Carolina
Rules of Evidence permits a trial court to exclude relevant evidence “if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury . . . .” N.C. Gen. Stat. § 8C-1, Rule 403. A proper
determination of the probative and prejudicial effect of certain evidence entails “an
in-camera hearing in which the court can hear and evaluate the arguments of counsel
before making a ruling.” Younger, 306 N.C. at 697, 295 S.E.2d at 456.
Here, when considering whether to admit the evidence of D.S.’s prior sexual
conduct, the trial court properly held an in camera hearing. The trial court heard
arguments from counsel and voir dire testimony from D.S. concerning his history.
Following this testimony, the trial court concluded that “any probative value in [the
evidence was] outweighed by the prejudicial value[, and would] . . . only serve to
confuse the jury . . . .”
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STATE V. WEST
Opinion of the Court
Our review of the record supports the trial court’s exclusion of the evidence
pursuant to Rule 403. The sexual behavior defense counsel sought to question D.S.
about occurred more than a decade earlier, and involved no factual elements similar
to the events underlying the charge for which Defendant was on trial. The evidence—
an eight- or nine-year-old boy sexually assaulting his half-sister—is disturbing and
highly prejudicial. When and why D.S. was taken from his family home as a child
are facts of remote relevance to the offense charged. Other evidence presented by the
State, including expert testimony that Defendant’s DNA matched a genital swab
taken from D.S. shortly after the alleged assault—despite Defendant’s denial that
any sexual encounter occurred—also rendered D.S.’s inconsistent statements about
remote facts less relevant to the contested factual issues at trial.
Defendant argues that the trial court’s exclusion of evidence concerning D.S.’s
childhood sexual assault of his half-sister not only kept jurors from learning the
conflicting details of D.S.’s statements about when and why he was taken from his
home as a young child, but also kept jurors from hearing evidence that D.S. was not
a virgin at the time of the alleged offense, contrary to his statement to Defendant that
he was a virgin. This argument has been made in a previous case without success.
In State v. Autry, 321 N.C. 392, 364 S.E.2d 341 (1988), the Supreme Court upheld a
trial court’s ruling excluding evidence that the prosecuting witness was not a virgin:
[T]he State did not ask, and the victim did not in fact
testify, as to whether she was a virgin. On the contrary,
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STATE V. WEST
Opinion of the Court
the victim testified only to what defendant asked her and
to what she told defendant in response to his question on
the night of the crime. The State clearly elicited this
testimony, not to establish before the jury whether the
victim was a virgin, but to lay a proper foundation for the
additional evidence of defendant’s statement of his
announced intent . . . .
Id. at 397-98, 364 S.E.2d at 345. Here, the State did not present D.S.’s statement to
Defendant as evidence that D.S. was a virgin, but rather as evidence of the
conversation between D.S. and Defendant preceding the alleged sex offense to prove
Defendant’s knowledge and intent. The fact that Defendant asked D.S. if he was a
virgin, regardless of D.S.’s response, was probative of Defendant’s intent in meeting
D.S. at the shed where the sexual offense occurred.
While the issue of a prosecuting witness’s credibility is always relevant, the
temporal remoteness of the sexual history and the relationship, or lack thereof, to the
specific acts alleged in the trial, the remote relevance of the prosecuting witness’s
prior inconsistent statements, and the relative strength of other evidence unrelated
to the prosecuting witness’s credibility support the trial court’s ruling that the low
probative value of the evidence was substantially outweighed by its high potential for
prejudice and confusion.
Conclusion
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STATE V. WEST
Opinion of the Court
For the foregoing reasons, based upon the record evidence and the authorities
cited, we affirm the trial court’s determination to exclude evidence that the State’s
prosecuting witness committed a sexual assault when he was a child.
AFFIRMED.
Judges BRYANT and ZACHARY concur.
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