              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA 16-464

                                 Filed: 21 March 2017

Bladen County, No. 13 CRS 50699

STATE OF NORTH CAROLINA

             v.

JOHN OWEN JACOBS


      Appeal by defendant from judgment entered 28 July 2015 by Judge Rueben F.

Young in Bladen County Superior Court.              Heard in the Court of Appeals

22 September 2016.


      Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth J.
      Weese, for the State.

      Paul F. Herzog for defendant-appellant.


      McCULLOUGH, Judge.


      John Owen Jacobs (“defendant”) appeals from judgment entered upon his

conviction for first-degree sex offense with a child. For the following reasons, we find

no error.

                                  I.     Background

      Defendant was arrested on 6 May 2013 based on allegations of sex abuse by

his daughter and, on 8 July 2013, indicted by a Bladen County Grand Jury on charges

of first-degree rape of a child and first-degree sex offense with a child.
                                         STATE V. JACOBS

                                         Opinion of the Court



      On 9 May 2013, between defendant’s arrest and his indictment, the Bladen

County Sheriff’s office applied for and obtained a search warrant for physical evidence

from defendant. Pursuant to that warrant, defendant provided blood samples which

tested negative for trichomonas vaginalis and the herpes simplex virus, Type II.

      Both the State and defendant filed pre-trial motions regarding evidence they

sought to exclude or admit at trial. Pertinent to this appeal, the State filed two

motions pursuant to N.C. Gen. Stat. § 8C-1, Rule 412 to exclude evidence of the

alleged victim’s (“Betty”)1 sexual history. On 31 June 2015, the State filed a motion

to prohibit the defense from questioning any witnesses about the sexual behavior of

the victim, other than the sexual acts at issue in the indictments. On 7 July 2015,

the State filed a motion in limine to prohibit the defense from referencing any

sexually transmitted diseases (“STD”) or infections that may have been detected in

Betty. In response to the State’s motions to exclude evidence pursuant to Rule 412,

on 15 July 2015, defendant filed a notice of intent to call an expert witness to testify

that Betty has STDs that defendant does not have.

      Defendant’s case came on for trial in Bladen County Superior Court on

20 July 2015, the Honorable Reuben F. Young, Judge presiding. The judge heard

arguments on the State’s Rule 412 motions at the beginning of the trial and, before

opening statements, ruled that the STD evidence was inadmissible under Rule 412.



      1   This pseudonym is used throughout the opinion to protect the identity of the minor child.

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                                  Opinion of the Court



      Defendant’s trial then proceeded with evidence tending to show the following:

Defendant is Betty’s biological father. Betty, at the time of trial, was 13 years old.

On 6 May 2013, Betty told a friend at school that her father had sex with her the

night before and that he had been having sexual relations with her for a “long time.”

Betty’s friend then told a teacher, who in turn notified the school’s social worker.

That same day, Betty was taken to Bladen County Hospital, where a doctor

performed a standard victims sexual assault kit examination. The results showed

Betty tested positive for two STDs, trichomonas vaginalis and herpes simplex virus,

Type II.

      At trial, Betty testified about three specific instances of defendant having

sexual relations with her in 2013.      First, Betty testified that, on 5 May 2013,

defendant had sex with her in her bedroom after she had showered, eaten, and gone

to bed. Betty testified that in another instance, about one week before the 5 May

incident, defendant had sex with her in the kitchen of their home during the day

while her younger brother played outside.           Finally, Betty testified that, on

25 April 2013, defendant had sex with her in her bedroom after he brought her home

from school early due to her kicking another student. In addition to these three

instances, Betty further testified that defendant first had sex with her in 2011 and

continued having sex with her two to three times per week over the course of about

three years.



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                                   Opinion of the Court



       Upon consideration of the evidence, on 28 July 2015, a jury returned a verdict

finding defendant guilty of first-degree sex offense with a child but deadlocked on the

remaining charges of first-degree rape of a child, leading the trial court to declare a

mistrial on those charges. Upon the first-degree sex offense with a child conviction,

the trial court entered judgment sentencing defendant to a term of 420 to 564 months.

Defendant gave oral notice of appeal.

                                   II.    Discussion

       On appeal, defendant raises two issues: whether (1) the denial of the STD

evidence into evidence at trial constitutes a violation of his constitutional right to

present a defense; and (2) the STD evidence was properly excluded pursuant to Rule

412.

                                 Constitutional Issue

       We first address defendant’s argument that denying admittance of STD

evidence violates his constitutional right to present a defense.

       Generally, constitutional issues that are not raised at trial are not considered

on appeal. See State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009) (“ ‘[A]

constitutional issue not raised at trial will generally not be considered for the first

time on appeal.’ ” (quoting Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101,

102 (2002)). The same holds true for appeals based on constitutional grounds. See

also State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600, cert. denied, 540 U.S. 988,



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                                  Opinion of the Court



157 L. Ed. 2d 382 (2003); State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473, cert.

denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002); State v. Anderson, 350 N.C. 152, 175,

513 S.E.2d 296, 310 (1999).

      Here, our review of the record shows that defendant did not raise any issue or

argument at trial regarding a violation of his constitutional rights that he now raises

on appeal. Thus, defendant has waived those arguments on appeal.

                                      Rule 412

      Defendant next contends that the trial court erred when it excluded evidence

of Betty’s STDs and evidence that defendant did not have those STDs pursuant to

Rule 412. Defendant argues that the evidence would make a sexual relationship

between Betty and defendant less likely and shows that someone other than

defendant had sexual relations with Betty.

      Rule 412, North Carolina’s rape shield law, provides, in pertinent part, as

follows:

             (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



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                                  Opinion of the Court



                   (3) Is evidence of a pattern of sexual behavior so
                       distinctive and so closely resembling the
                       defendant’s 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.

             (c)   Sexual behavior otherwise admissible under this
             rule may not be proved by reputation or opinion.

N.C. Gen. Stat. § 8C-1, Rule 412 (2015). As used in Rule 412, “the term ‘sexual

behavior’ means sexual activity of the complainant other than the sexual act which

is at issue in the indictment on trial.” N.C. Gen. Stat. § 8C-1, Rule 412(a). Thus, in

short, “Rule 412 provides that evidence of sexual behavior of the complainant is

irrelevant unless it falls within one of four categories listed in the rule.” State v.

Guthrie, 110 N.C. App. 91, 93, 428 S.E.2d 853, 854, disc. review denied, 333 N.C. 793,

431 S.E.2d 28 (1993).

      As our Supreme Court has explained, prior to the enactment of the predecessor

to Rule 412, a victim’s “general reputation for unchastity” was admissible in a rape

trial to attack the victim’s credibility and show the victim’s proneness to consent to

sexual acts. State v. Younger, 306 N.C. 692, 695, 295 S.E.2d 453, 455 (1982) (citing

State v. Fortney, 301 N.C. 31, 37, 269 S.E.2d 110, 113 (1980)). However, in enacting


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                                  Opinion of the Court



the predecessor to Rule 412, the legislature “cast aside the idea, that any previous

sexual behavior of a rape victim is per se relevant to a rape proceeding.” Id. at 696,

295 S.E.2d at 455 (internal quotation marks, citation, and emphasis omitted). The

Court further explained that the “statute was designed 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.” Id. at 696, 295 S.E.2d at 456.

      In our analysis, we first examine whether evidence of an STD constitutes

sexual activity under Rule 412 and, thus, whether Rule 412 is implicated. The State

argues that the evidence showing that Betty has STDs constitutes evidence of past

sexual behavior that should be excluded by Rule 412; and evidence that defendant

did not also have the STDs is not relevant without first establishing that Betty has

the STDs. We agree with the State.

      Although we have found various instances of evidence allowed under Rule 412,

there is no precedent in North Carolina that evidence of an STD constitutes sexual

behavior that would be barred by Rule 412. Indeed, defendant cites State v. Rorie, __

N.C. App. __, 776 S.E.2d 338 (2015), and State v. Guthrie, 110 N.C. App. 91, 428

S.E.2d 853 (1993), to argue that evidence of an STD is admissible under Rule 412,

but those cases are distinguishable.




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                                  Opinion of the Court



      In Rorie, this Court found that the act of watching a pornographic video did

not constitute sexual activity under Rule 412. __ N.C. App. at __, 776 S.E.2d at 344.

In Guthrie, this Court found that written letters offering sexual acts did not

constitute sexual activity under Rule 412. 110 N.C. App. at 93-94, 428 S.E.2d at 854.

      Here, we hold the presence of an STD, by contrast, denotes sexual behavior

because an STD is commonly associated with sexual activity, sexual intercourse, and

is accompanied with the same type of stigma that Rule 412 was designed to prohibit.

We find guidance from other states that have ruled that an STD constitutes sexual

behavior under their respective rape shield laws. See State v. Ozuna, 155 Idaho 697,

702, 316 P.3d 109, 114 (2013) (holding that “evidence related to whether a victim had

an STD or whether the defendant thought the victim had an STD at the time of an

alleged sex crime is evidence of a victim’s past sexual behavior”); Fells v. State, 362

Ark. 77, 83, 207 S.W.3d 498, 502 (2005) (holding that because the public generally

views HIV as an STD, it is tantamount to evidence of the victim’s prior sexual

behavior); State v. Mitchell, 568 N.W.2d 493, 496 (Iowa 1997) (analyzing the

admissibility of STD evidence under Iowa’s rape shield law as evidence of the victim’s

past sexual behavior); State v. Cunningham, 164 Or. App. 680, 995 P.2d 561, 568

(2000) (holding that evidence of STDs falls under the purview of Oregon’s rape shield

law because “evidence of sexually transmitted diseases is tantamount to evidence of

past sexual behavior because sexually transmitted diseases occur as the result of



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                                  Opinion of the Court



sexual intercourse, sexual contact, or deviate sexual intercourse.”). The presence of

an STD is indicative of prior sexual behavior and, thus, Rule 412 is implicated.

      Although Rule 412 is implicated by the STD evidence, the evidence of prior

sexual behavior may still be admissible if it falls under one of the four exceptions to

the Rule. Guthrie, 110 N.C. App. at 93, 428 S.E.2d at 854. Here, defendant argues

that evidence of the STD should be allowed under the exception which allows 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. Gen. Stat. § 8C-1,

Rule 412(b)(2).   We have admitted evidence of sexual behavior under the Rule

412(b)(2) exception in other cases. See State v. Ollis, 318 N.C. 370, 348 S.E.2d 777

(1986) (holding that evidence should have been admitted under Rule 412(b) to provide

an alternative explanation for medical evidence presented); State v. Davis, 237 N.C.

App. 481, 767 S.E.2d 565 (2014) (holding the trial court erred when it excluded

evidence of a prior sexual encounter occurring the day before the alleged rape because

the evidence was relevant to provide an alternative explanation for the existence of

semen).

      Defendant relies on Ollis, in which our Supreme Court ruled that testimony

regarding a specific instance of prior sexual activity was relevant under Rule

412(b)(2). Ollis, 318 N.C. at 376, 348 S.E.2d at 781. In that case the defendant argued

that he should be able to question the victim about instances of rape committed by



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                                  Opinion of the Court



another person to prove that physical findings described by the physician who

examined the victim were the result of those acts committed by the other person. Id.

As noted above, the Court held that “the evidence should have been admitted, as it

would have provided an alternative explanation for the medical evidence presented

by [the examining physician] and falls within exception (b)(2) of Rule 412.” Id.

      In this case, by contrast, defendant offers no such alternative explanation or

specific act to prove that any sexual act committed was by someone other than him.

Rather, defendant offers evidence of Betty’s STD, and the nonexistence of an STD for

himself, to raise speculation and insinuate that Betty must have been sexually active

with someone else. Therefore, we find that the presence of an STD is not relevant

under Rule 412(b)(2) and was properly excluded from the evidence admitted at trial.

Without evidence of Betty’s STD, the fact that defendant does not have an STD is

irrelevant The evidence defendant seeks to admit is the very type of evidence Rule

412 was designed to keep from the jury’s consideration.

                                  III.   Conclusion

      For the reasons discussed above, we hold the trial court did not err in excluding

the STD evidence from the evidence admitted at trial.

      NO ERROR.

      Judge DIETZ concurs.

      Judge HUNTER, Jr., concurs in result only by separate opinion.



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Opinion of the Court




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 No. COA16-464 – State v. Jacobs


      HUNTER, JR., Robert N., Judge, concurs in the result only by separate

opinion.


      Although I concur in the result reached by the majority, I write separately to

emphasize evidence regarding sexually transmitted diseases (“STD”) is not a class of

evidence unto itself that should be included wholesale under North Carolina Rule of

Evidence 412.

      The majority holds “the presence of an STD . . . denotes sexual behavior

because an STD is commonly associated with sexual activity, sexual intercourse, and

is accompanied with the same type of stigma that Rule 412 was designed to prohibit.”

While STDs are commonly transmitted by sexual activity, it is well established that

these diseases may be contracted from non-sexual contact, such as from mother to

child during childbirth or from blood transfusions.2

      Consequently, I would not require all defendants seeking to introduce evidence

related to an STD to satisfy the strictures of Rule 412(b). Rather, if the defendant

can offer specific, relevant medical evidence that presumptively exculpates him from

the crime, and does not necessarily speak to the past sexual behavior of the victim,

such evidence should be admissible regardless of whether it fits within one of the

exceptions to Rule 412.




      2   World Health Organization, Sexually Transmitted Infections: Fact Sheet (2014),
http://www.who.int/iris/handle/10665/112323
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