              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-364

                              Filed: 20 September 2016

Mecklenburg County, No. 14 CRS 207553-55

STATE OF NORTH CAROLINA

             v.

CLAIRY KANYINDA MBAYA


      Appeal by defendant from judgment entered 20 August 2015 by Judge Lisa C.

Bell in Mecklenburg County Superior Court.       Heard in the Court of Appeals 7

September 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force,
      for the State.

      Glover & Petersen, P.A., by James R. Glover, for defendant-appellant.


      TYSON, Judge.


      Clairy Kanyinda Mbaya (“Defendant”) appeals from judgment entered after a

jury convicted him of statutory rape, statutory sex offense, and taking indecent

liberties with a child. We find no error.

                                I. Factual Background

      In February 2014, A.B. was living with her mother, her two younger siblings,

and Defendant. Defendant was A.B.’s mother’s boyfriend and had been living in the

apartment since 2013. A.B. was fifteen years old at the time the incidents occurred.
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      On the afternoon of 21 February 2014, A.B. returned home after school, ate,

and went to sleep in her room. No one else was home because A.B.’s mother was

pregnant and having contractions. Defendant, who was the newly arriving baby’s

father, drove A.B.’s mother to the hospital around 3 p.m. that afternoon. Defendant

drove the work vehicle assigned to him by his employer, a chauffeured vehicle

transportation company.

      A.B.’s mother had arranged for A.B.’s two younger siblings to stay with other

relatives, and for A.B. to stay with A.B.’s father while she was in the hospital. A.B.’s

father planned to pick A.B. up after he left work that day.

      A.B. testified at trial she woke up at approximately 8:10 p.m. and heard her

bedroom door open and close. A few minutes later, she heard her door open again

and saw a man walk into the room. A.B. testified the man was dressed in black, wore

a mask that covered facial features, except his eyes, his nose, and dreadlocks, and

that he carried a gun. A.B. did not recognize the man at first.

      A.B. testified that the man said he would not hurt her, but told her to remove

her clothes. He performed oral sex on her and told her to do the same to him. When

A.B. refused, he had her rub his penis with her hands. Then, he pushed her on the

bed, kissed the side of her face and neck, and raped her. Next, Defendant told her to

get on “all fours” and raped her again. At that point, the man turned on the light and




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A.B. recognized him as Defendant. She recognized his eyes, nose, and dreadlocks and

that he spoke with the same African accent as Defendant.

      As these incidents occurred, A.B. cried and asked Defendant to stop and leave.

Defendant did not stop until A.B.’s father knocked on the door to pick her up around

9:20 p.m. A.B. yelled for her father to hold on. Defendant made A.B. get onto her

knees and told her that he was going to ejaculate on her face. Instead, he ejaculated

on her chest. A.B. wiped herself off with a pair of sweatpants, dressed, and walked

to the front door. Defendant followed her to the door and told her not to say anything

or he would kill her.

      A.B. left the apartment and walked over to her father, who was standing by

his vehicle. A.B.’s father noticed that A.B. was upset and asked her what was wrong.

A.B. replied she had just broken up with her boyfriend, because she was scared that

Defendant would kill her or her father. A.B.’s father did not believe her and pressed

the matter further. A.B. told her father she had just been raped.

      A.B.’s father immediately returned to the apartment, but no one was there.

They traveled to a nearby relative’s house and called the police. An ambulance took

A.B. to the hospital where she was examined, gave statements to officers and a nurse

describing what happened, and evidence was collected with a rape kit.

      Defendant was at the hospital when the baby was born, which was at

approximately 12:00 a.m. on 22 February 2014. Shortly thereafter, Defendant was



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first questioned by detectives concerning his whereabouts at the time of the offenses.

Defendant stated he stayed with A.B.’s mother at the hospital for several hours and

left around 7:30 p.m. to pick up a friend at a hotel and go to Wal-Mart to buy paint.

Detectives did not question Defendant further at the hospital, but arranged for him

to come to the Law Enforcement Center the next day on Saturday, 22 February 2014.

      On Saturday, Defendant dropped off his work vehicle at his employer’s office.

Although scheduled to work on Sunday, Defendant did not arrive for his shift.

Defendant also failed to show up for his appointment at the Law Enforcement Center

on Saturday. He was contacted by a detective and agreed to come in later that day

but failed to appear. A detective called Defendant again, but he did not answer his

cell phone or respond to the messages left by the detective.

      While Defendant was missing, detectives learned that Defendant’s employer

had a Global Positioning System (“GPS”) device installed on his work vehicle that

tracked the location of the vehicle. The GPS records indicated the vehicle was not

driven to a hotel or to a Wal-Mart after Defendant left the hospital on Friday 21

February 2014 and during the time the offenses occurred.

      Rather, GPS records kept by Defendant’s employer show the vehicle was

driven away from the hospital around 7:30 p.m., arrived at Pitts Drive at 7:47 p.m.,

left Pitts Drive at 9:27 p.m., and returned to the hospital at 9:37 p.m. Pitts Drive is

near A.B.’s mother’s apartment and is the same street where the vehicle was located



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before Defendant drove A.B.’s to the hospital earlier that day. Arrest warrants were

issued on 24 February 2014. Defendant was arrested on 5 March 2014. Prior to being

arrested, Defendant cut off his dreadlocks.

      Detectives interviewed Defendant on 28 May 2014 and the interview was

recorded and transcribed. Defendant told detectives, again, after he left the hospital,

he picked up his friend from a hotel and went to Wal-Mart. He then dropped off his

friend at the hotel on Sugar Creek Road and returned to the hospital. Defendant said

he did not go anywhere else, he had driven his work vehicle, and that no one else

drove it that day.

      At this point in the questioning, detectives informed Defendant that the GPS

tracking records for his work vehicle conflicted with his account of his whereabouts

that night. Defendant admitted he returned to the apartment to get food, shoes, and

to check the places he was supposed to paint. Although A.B.’s mother had given

Defendant her key to the apartment, Defendant said he had knocked on the

apartment door before entering and nobody answered. Once inside, he stated that he

knocked on the inside doors that were not open and nobody was there. Later on in

the interview, he admitted that when he opened A.B.’s bedroom door and looked in,

he saw her asleep inside. He said he closed the door and never went back.

      Forensic experts at the Charlotte-Mecklenburg Police Department’s crime

laboratory examined swabs and smears collected from A.B. at the hospital and a



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buccal swab taken from Defendant after his arrest. Sperm fractions were produced

from the swabs and specimens taken from A.B.’s vagina, anus, external genitalia, and

chest. Tests on the swabs from A.B.’s anus, external genitalia, and chest showed the

presence of DNA matching Defendant’s DNA profile. DNA found on the swab taken

from A.B.’s neck also matched Defendant’s DNA profile.

                                A. Pre-Trial Hearing

      On 17 August 2015, at the beginning of the trial, the State filed a motion to

enforce Rule 412, the Rape Shield Statute, to prevent Defendant from presenting any

irrelevant evidence of A.B.’s other sexual activity. See N.C. Gen. Stat. § 8C-1, Rule

412 (2015). The State sought an order for Defendant and his counsel to “refrain from

eliciting, proffering, or attempting to elicit or proffer any testimony or evidence

regarding the sexual behavior of the minor child, from her or any other witness that

testifies.” The trial court cleared the courtroom to hear each party’s arguments on

the State’s motion and the evidence Defendant intended to introduce regarding A.B’s

sexual history in response to the motion.

      Defendant’s counsel stated Defendant would present alibi evidence, and

wanted to show A.B. was sexually active as evidence of the guilt of another

perpetrator. He planned to elicit this testimony from A.B., her mother, and her

father. The prosecutor informed the court that information obtained in discovery

indicated A.B. was a sexually active teenager, and that she had last engaged in sex



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in December, a couple of months prior to the rape and sexual offenses on 21 February

2014.

        Defendant’s counsel argued in reply that for the court to allow the State’s Rule

412 motion to exclude evidence would be unconstitutional and deny him the

opportunity to present a complete defense.          He asserted Defendant would be

prevented from “presenting the evidence that others could have committed this

crime.” Counsel conceded the evidence only showed A.B. last had sexual intercourse

in December prior to the February incidents, but asserted “a jury might infer that

that was not an honest statement.” Defendant’s counsel noted “[A.B.’s] credibility is

a key factor” in this case as she was “the only person who was at home at the time

and has made the allegation of the conduct.”

        Notwithstanding Defendant’s argument, the only evidence Defendant sought

to introduce at that time was that A.B. had previously been sexually active. He did

not offer any proposed evidence linking the sexual conduct to another possible

perpetrator, or any other issue in the case, as is shown in the following exchange with

the trial judge:

              THE COURT: I’m not sure, other than the fact that she was
              purportedly sexually active, what you’re seeking to
              introduce.

              MR. LOVEN: Nothing your honor.

              THE COURT: Just that she was sexually active?



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             MR. LOVEN: Yes, Your Honor.

      The trial court granted the State’s Rule 412 motion and excluded the evidence.

The trial court also found, “aside from the Rule 412 analysis, . . . additionally the

dangers of prejudice arising from testimony regarding a teenager being sexually

active far outweigh any probative value.” See N.C. Gen. Stat. § 8C-1, Rule 403.

                            B. Voir Dire of Complainant

      Following A.B.’s testimony, Defendant obtained information in a voir dire

hearing indicating that A.B. had been sexually active prior to the date of the alleged

rape and sex offenses, but she had not engaged in sexual intercourse since December

and the sexual activity in December was consensual. Although her parents were not

aware of the sexual activity in December, they were aware that she had been sexually

active in the past.

      When questioned about her parents’ reaction to learning she was sexually

active, A.B. stated she had been punished, but not seriously. Rather, “it was more of

something that [she] just had to think about and realize the choices that [she] made

rather than [her] parents actually punishing [her].”      A.B. testified she was not

concerned about consequences she would receive for such conduct or for telling her

parents about future sexual conduct.

      At the conclusion of the cross-examination, Defendant moved that evidence of

A.B.’s past sexual activity and parental punishment be allowed for the purpose of



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showing she possessed a motive to fabricate the charges against Defendant. The

State argued such evidence was irrelevant under Rule 412 and was not admissible

for a proper reason.

      In addition, the State argued evidence tending to show a teenager had engaged

in sexual activity, and her parents were unhappy with her, does not show she would

fabricate allegations of rape and sexual assaults. After considering the testimony,

the trial court stated, “[m]y ruling with regard to the motion will remain that the

defense is prohibited, pursuant to 412, from questioning the victim concerning prior

sexual activity.”

                        C. Voir Dire of Complainant’s Parents

      Following the testimony of A.B.’s father, Defendant questioned him about

A.B.’s sexual activity in a voir dire hearing. A.B.’s father testified that he was aware

that she had been sexually active and had a boyfriend. A.B.’s father discussed the

risks of sexual activity with A.B., but he did not recall imposing any particular

punishment. He stated he probably told her he “would deny her some privileges if

she kept doing it.”

      A.B.’s mother testified during voir dire cross-examination that she first learned

A.B. was sexually active several years before the alleged rape occurred. Like A.B.’s

father, A.B.’s mother testified she had talked about the implications of having sexual

intercourse and had previously punished A.B. by taking away her cell phone. A.B.’s



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mother believed A.B. was still sexually active, but was not surprised because, as she

testified, “I was young once before, and I know.” A.B.’s mother also noted A.B. was

not permitted to have her boyfriend at the house when an adult was not present.

      Following each testimony, Defendant’s counsel requested the testimony be

presented to the jury to show that A.B. had motive and opportunity to lie about the

rape and sexual offenses. Both times, the trial court indicated its previous Rule 412

ruling would not change and denied Defendant’s request to admit the evidence.

      The jury convicted Defendant of statutory rape, statutory sex offense, and

taking indecent liberties with a child. The jury also found Defendant had taken

advantage of a position of trust and confidence at the time of the crime as an

aggravating factor.

      Defendant was sentenced to a minimum of 300 months and a maximum of 420

months for the statutory rape conviction. The indecent liberties and statutory sex

offense convictions were consolidated and Defendant was sentenced to a consecutive

term of imprisonment for a minimum of 300 months and a maximum of 420 months.

Defendant was also ordered to register as a sex offender for life and enroll in lifetime

satellite based monitoring upon release. Defendant appeals.

                                       II. Issues

      Defendant argues the trial court erred by ruling North Carolina Rule of

Evidence 412 barred him from presenting evidence during cross-examination of A.B.’s



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past sexual activity, which resulted in punishment by her parents. Defendant argues:

(1) the evidence was relevant to show A.B. had a motive to fabricate a claim of being

raped, and (2) the exclusion of the evidence violated his constitutional right to present

a complete defense.

                                III. Standard of Review

      The Rape Shield Statute is “a codification of this jurisdiction’s rule of relevance

as that rule specifically applies to the past sexual behavior of rape victims. The

exceptions . . . merely define those times when the prior sexual behavior of the

complainant is relevant to issues raised in a rape trial.” State v. Khouri, 214 N.C.

App. 389, 405-06, 716 S.E.2d 1, 12 (2011) (quoting State v. Baron, 58 N.C. App. 150,

153, 292 S.E.2d 741, 743 (1982) (internal quotation marks and citations omitted)),

disc. review denied, 365 N.C. 546, 742 S.E.2d 176 (2012); see N.C. Gen. Stat. § 8C-1,

Rule 412.

      “A trial court’s ruling on relevant evidence is not discretionary and therefore

is not reviewed under the abuse of discretion standard.” State v. Moctezuma, 141 N.C.

App. 90, 94, 539 S.E.2d 52, 55 (2000) (citations omitted).

             Although the trial court’s rulings on relevancy technically
             are not discretionary and therefore are not reviewed under
             the abuse of discretion standard applicable to Rule 403,
             such rulings are given great deference on appeal. Because
             the trial court is better situated to evaluate whether a
             particular piece of evidence tends to make the existence of
             a fact of consequence more or less probable, the appropriate
             standard of review for a trial court’s ruling on relevancy


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             pursuant to Rule 401 is not as deferential as the ‘abuse of
             discretion’ standard which applies to rulings made
             pursuant to Rule 403.

Khouri, 214 N.C. App. at 406, 716 S.E.2d at 12-13 (citation omitted).

      This Court also held that “the same deferential standard of review should

apply to the trial court’s determination of admissibility under Rule 412.” Id.

      We review de novo a defendant’s arguments that his constitutional rights were

violated. State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal

dismissed and disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010).

                                      IV. Analysis

                                A. Rape Shield Statute

      Defendant argues that the trial court erred in excluding A.B.’s past sexual

activity. We disagree.

      The Rape Shield Statute states that evidence regarding the sexual activity of

the complainant, other than the sexual act at issue, “is irrelevant to any issue in the

prosecution,” unless it falls within one of four categories. N.C. Gen. Stat. § 8C-1, Rule

412(a) and (b). Prior to asking questions concerning a complainant’s other sexual

activity, the proponent must first make an offer of proof to allow the trial court to

determine the admissibility of the evidence. N.C. Gen. Stat. § 8C-1, Rule 412. This

proffer must occur at a transcribed in camera hearing before any mention of the

complainant’s other sexual activity is to be made in the presence of a jury. Id.



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      The purpose of the statute is “to protect the witness from unnecessary

humiliation and embarrassment while shielding the jury from unwanted prejudice

that might result from evidence of sexual conduct which has little relevance to the

case and has a low probative value.” State v. Younger, 306 N.C. 692, 696, 295 S.E.2d

453, 456 (1982) (emphasis supplied).

      Our Supreme Court noted the Rape Shield Statute: “define[s] those times when

[other] sexual behavior of the complainant is relevant to issues raised in a rape trial

and [is] not a revolutionary move to exclude evidence generally considered relevant in

trials of other crimes.” State v. Fortney, 301 N.C. 31, 42, 269 S.E.2d 110, 116 (1980)

(emphasis supplied). As such, the four exceptions in the Rape Shield Statute are not

“the sole gauge for determining whether evidence is admissible in rape cases.”

Younger, 306 N.C. at 698, 295 S.E.2d at 456.

      This Court recently held “there may be circumstances where evidence which

touches on the sexual behavior of the complainant may be admissible even though it

does not fall within one of the categories in the Rape Shield Statute.” State v. Martin,

__ N.C. App. __, __, 774 S.E.2d 330, 336-37 (citing State v. Edmonds, 212 N.C. App.

575, 580, 713 S.E.2d 111, 116 (2011) (noting “[t]he lack of a specific basis under [the

Rape Shield Statute] for admission of evidence does not end our analysis”)), disc.

review denied, __ N.C. __, 775 S.E.2d 844 (2015); see e.g., State v. Rorie, __ N.C. App.

__, __, 776 S.E.2d 338, 344 (2015) (“[E]vidence that [the victim] was discovered



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watching a pornographic video, without anything more, is not evidence of sexual

activity barred by the Rape Shield Statute.”), disc. review denied, __ N.C. __, 784

S.E.2d 482 (2016).

      In Martin, the defendant, a high school substitute teacher, was accused of

sexually assaulting a female student. Id. at __, 744 S.E.2d at 331. The female student

testified the defendant walked into the boy’s locker room, saw she was standing and

talking with two football players, told the boys to leave, and then demanded that she

perform oral sex on him. Id. at __, 774 S.E.2d at 331-32.

      At trial, the defendant sought to introduce testimony from himself and two

other witnesses to show the female student was in flagrante delicto performing oral

sex upon the football players when the defendant entered the locker room. Id. at __,

774 S.E.2d at 332. The defendant argued evidence was necessary to show the student

had a reason to fabricate her accusations against the defendant, and to cover up her

true actions. Id.

      This Court concluded if the State’s evidence is “based largely on the credibility

of the prosecuting witness, evidence tending to show that the witness had a motive

to falsely accuse the defendant is certainly relevant” and “motive or bias of the

prosecuting witness is an issue that is common to criminal prosecutions in general

and is not specific to only those crimes involving a type of sexual assault.” Id. at __,

744 S.E.2d at 336. Rather, in that case:



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             [T]he trial court should have looked beyond the four
             categories to determine whether the evidence was, in fact,
             relevant to show [complainant’s] motive to falsely accuse
             Defendant and, if so, conducted a balancing test of the
             probative and prejudicial value of the evidence under Rule
             403 or was otherwise inadmissible on some other basis
             (e.g., hearsay). See State v. Edmonds, 212 N.C. App. at 578,
             713 S.E.2d at 115 (quoting N.C. Gen. Stat. § 8C–1, Rule
             403 (2009)).

Id.

      Soon after our decision in Martin, this Court considered a similar case that it

deemed to be “indistinguishable from Martin in any meaningful way.” State v. Goins,

__ N.C. App. __, __, 781 S.E.2d 45, 61 (2015).           The Court held statements by

complainant made to police that he was addicted to pornography, had an extramarital

affair, and could not control his behavior because of what the defendant had done to

him were relevant to show that complainant had a motive to fabricate allegations

against the defendant. Id.

      Like Martin, the charges in Goins were based largely upon the credibility of

the complainant’s testimony and the defendant sought to introduce evidence tending

to show the complainant’s motive to falsely accuse. Id. Also important to the Court

was that the defendant “did not seek to cross-examine a prosecuting witness about

his or her general sexual history. Instead, [d]efendant had identified specific pieces

of evidence that could show [the complainant] had a reason to fabricate his allegations

against [d]efendant.” Id. (citations omitted). Upon review, this Court held that it was



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improper for the trial court to exclude the testimony under Rule 412 and Rule 401.

Id. Defendant relies on this Court’s decisions in Martin and Goins to support his

argument.

      The facts of this case are readily distinguishable from those cases. Defendant

does not contend A.B.’s past sexual activity was admissible under one of the four

categories in N.C. Gen. Stat. § 8C-1, Rule 412(b). Rather, he asserts A.B.’s past sexual

activity and parental punishment for such activity is relevant to show that she had a

motive to fabricate the accusations against Defendant.

      Unlike Martin, Defendant proposed evidence about occurrences which were

not close in time and proximity to the alleged crime. See Martin, __ N.C. App. at ___,

774 S.E.2d at 331-32; see Edmonds, 212 N.C. App. at 581-82, 713 S.E.2d 111, 117

(holding the trial court did not err by refusing to admit “some distant sexual

encounter which has no relevance to this case other than showing that the witness

[was] sexually active” (quoting Younger, 305 N.C. at 696, 295 S.E.2d at 456)). The

sexual activity the defendant in Martin wished to present occurred on the same day

and time as the sexual activity at issue in that case. Here, the evidence showed A.B.

had not engaged in sexual activity for several months prior to the actions at issue.

A.B.’s parents also knew she had been sexually active for several years prior to the

incidents. No evidence ties A.B.’s past sexual activity or parental punishment to the

incident that occurred on 21 February 2014.



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      The court’s analysis in both Martin and Goins indicated the State’s case relied

largely upon the testimony of the prosecuting witness, and both defendants had

sought admission of evidence tending to show the witness had motive to falsely

accuse. In both cases, this Court ruled this evidence could be relevant. Id. at ___, 774

S.E.2d at 336, Goins, __ N.C. App. at __, 781 S.E.2d at 61. Specifically in Martin, the

Court noted that “[t]here were no other eyewitnesses or any physical evidence proving

the crime had occurred.” Martin, __ N.C. App. at __, 774 S.E.2d at 336.

      A.B.’s allegations and testimony is supported by other compelling physical

evidence submitted by the State. First, the evidence showed recovered samples

collected from A.B.’s anus, chest, external genitalia, and neck in the rape kit

contained material matching Defendant’s DNA profile.             Second, Defendant’s

employer’s GPS records of the times and locations of the vehicle driven by Defendant,

together with his denials and many false statements, showed that he drove and

parked the vehicle near the apartment during the times the rape and sexual offenses

occurred after he left the hospital. The vehicle remained at the apartment during the

time the rape and sexual offenses occurred and left near the time A.B’s father picked

her up from the scene immediately following the attack. Third, Defendant gave

conflicting accounts until confronted with GPS evidence from the vehicle he drove,

failed to keep his appointment at the Law Enforcement Center the day after the

incident and never returned detectives’ calls, disappeared after he was first



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questioned by police, and altered his appearance by cutting off his dreadlocks before

he was located and arrested.

      Testimony presented during the in camera hearing supports the trial court’s

determination to block the victim’s prior sexual activity as the type of irrelevant

evidence the Rape Shield Statute was enacted to exclude. See N.C. Gen. Stat. § 8C-1,

Rule 412. A.B.’s testimony indicated her parents were aware of her prior sexual

activity and she was not concerned about being punished for engaging in sexual

conduct. When asked whether she was seriously punished, she said: “No . . . it was

more of something that I just had to think about and realize the choices that I made

rather than my parents actually punishing me.” Nothing in her parents’ testimony

indicated a reason to doubt A.B.’s statement to that point. At most, her parents

indicated that as consequences, they had taken away some of her privileges and cell

phone.

      Defendant contends A.B.’s father’s testimony supported an inference that

A.B.’s father suspected A.B. might have been engaged in sexual activity with a

boyfriend when he arrived to pick her up the night of the rape. No evidence shows

A.B.’s boyfriend was present at the apartment or that someone else was engaged in

sexual conduct with A.B. during the time the offenses occurred.        A.B. testified

Defendant turned on the lights and she recognized his eyes, nose, voice, and

dreadlocks even with the mask over his face. Defendant admitted to police that when



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he went inside the apartment on the night of the rape, no one else was there other

than A.B. and he observed she was asleep in her bed.

      The trial court correctly excluded the evidence regarding A.B.’s past sexual

activity. This evidence is precisely what the Rape Shield Statute was enacted to

exclude: evidence with “little relevance to the case and [that] has a low probative

value.” Younger, 306 N.C. at 696, 295 S.E.2d at 456. A.B.’s past sexual activities and

parental punishments were not tied in any substantive manner to the incidents which

occurred on 21 February 2014 or to A.B.’s motive to fabricate these allegations. As

the trial court also noted, even if relevant, this evidence would have been more

prejudicial than probative. See N.C. Gen. Stat. § 8C-1, Rule 403.

               B. Constitutional Right to Present a Complete Defense

      Defendant argues his constitutional right to present a complete defense was

violated by the exclusion of the evidence showing A.B. had been punished for her

previous sexual activity. We disagree.

      The right of a defendant to cross-examine an adverse witness is a substantial

right. See Olden v. Kentucky, 488 U.S. 227, 231-32, 102 L. Ed. 2d. 513, 519-20 (1988).

As such, an unreasonable exclusion of relevant evidence about a witness’s sexual

behavior violates a defendant’s ability to introduce evidence relevant to his defense.

Id. at 232-33, 102 L. Ed. 2d. at 520-21. However, the Supreme Court of the United

States has stated:



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             “[T]he right to present relevant testimony is not without
             limitation. The right ‘may, in appropriate cases, bow to
             accommodate other legitimate interests in the criminal
             trial process.’” Rock v. Arkansas, 483 U.S. 44, 55, 97 L. Ed.
             2d 37, 107 S. Ct. 2704 (1987), quoting Chambers v.
             Mississippi, 410 U.S. 284, 295, 35 L. Ed. 2d 297, 93 S. Ct.
             1038 (1973). We have explained, for example, that “trial
             judges retain wide latitude” to limit reasonably a criminal
             defendant’s right to cross-examine a witness “based on
             concerns about, among other things, harassment,
             prejudice, confusion of the issues, the witness’ safety, or
             interrogation that is repetitive or only marginally
             relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 89
             L. Ed. 2d 674, 106 S. Ct. 1431 (1986).

Michigan v. Lucas, 500 U.S. 145, 149, 114 L.E.2d 205, 212 (1991). In Lucas, the

Supreme Court of the United States then held that the Michigan Rape Shield Statute

“represents a valid legislative determination that rape victims deserve heightened

protection against surprise, harassment, and unnecessary invasions of privacy.” Id.

at 149-50, 114 L.E.2d at 212.

      The Supreme Court of North Carolina has similarly concluded that “there is

no constitutional right to ask a witness questions that are irrelevant.” Fortney, 301

N.C. at 35, 269 S.E.2d at 112 (citations omitted). In Fortney, the Supreme Court

considered a challenge to the Rape Shield Statute on Confrontation Clause grounds.

Id. at 36, 269 S.E.2d at 112-13; see U.S. Const. Amend. 6. Even with North Carolina’s

wide-ranging policy of cross-examination, the Court held that “while a defendant may

generally cross-examine to impugn the credibility of a witness, this right is not

inviolate. Indeed . . . a court has a duty to protect a witness ‘from questions which go


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                                    Opinion of the Court



beyond the bounds of proper cross-examination merely to harass, annoy or humiliate

. . . .’” Id. at 36, 269 S.E.2d at 113 (quoting Alford v. United States, 282 U.S. 687, 694,

75 L. Ed. 624, 629 (1931)).

      The Court in Fortney considered the legislative and procedural purpose of the

Rape Shield Statute and how the statute’s exceptions “provide ample safeguards to

insure that relevant evidence is not excluded.” Id. at 41, 269 S.E.2d at 115.

Concluding its analysis of the constitutional issue, the Court stated:

             All of [Rule 412’s] exceptions define those times when the
             prior sexual behavior of a complainant is relevant to issues
             raised in a rape trial, and are not a revolutionary move to
             exclude evidence generally considered relevant in trials of
             other crimes.

             Nor does the statute stop with definitions. If any question
             arises concerning evidence of a victim’s prior sexual
             history, that question may be presented at an in camera
             hearing where opposing counsel may present evidence,
             cross-examine witnesses and generally attempt to discern
             the relevance of proffered testimony in the crucible of an
             adversarial proceeding away from the jury. In summary,
             then, [the Rape Shield Statute] merely contains and
             channels long-held tenets of relevance by providing a
             statutory definition of that relevance and by providing a
             procedure to test that definition within the context of any
             particular case. Defendant’s substantive right to cross-
             examine is not impermissibly compromised.

Id. at 42, 269 S.E.2d at 116 (emphasis in original).

      When the trial court properly finds proffered evidence is irrelevant or its

probative value is substantially outweighed by its prejudicial value, it correctly orders



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                                 Opinion of the Court



a defendant to abstain from asking about that evidence on cross examination. See id.

Here, the trial court properly excluded the evidence Defendant sought to introduce

as irrelevant under the Rape Shield Statute.            The trial court did not violate

Defendant’s constitutional right to present a complete defense by preventing

Defendant from cross-examining the witnesses on irrelevant evidence. See id.

                                   V. Conclusion

      The trial court correctly excluded the evidence that A.B. had previously

engaged in unrelated sexual activity and was punished by her parents under the Rape

Shield Statute. Since this evidence was irrelevant, Defendant’s constitutional right

to present a complete defense was not violated. Defendant received a fair trial free

from the prejudicial errors he preserved and argued.

      NO ERROR.

      Judges CALABRIA and DAVIS concur




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