An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA13-1343
                         NORTH CAROLINA COURT OF APPEALS

                                Filed: 3 June 2014


STATE OF NORTH CAROLINA

       v.                                     Rockingham County
                                              Nos. 11 CRS 50300-01, 50518
FRANK CATALDO


       Appeal by defendant from judgment entered 8 May 2013 by

Judge Lindsay R. Davis, Jr. in Rockingham County Superior Court.

Heard in the Court of Appeals 8 April 2014.


       Roy Cooper, Attorney General, by Laura E. Crumpler, Special
       Deputy Attorney General, for the State.

       Staples Hughes, Appellate Defender, by Charlesena Elliott
       Walker,   Assistant Appellate  Defender,  for  defendant-
       appellant.


       STEELMAN, Judge.


       Where   evidence     that    defendant     contends    was    excluded     at

trial was actually admitted by the trial court, that argument is

dismissed.      Where the trial court made an interlocutory ruling

on the admissibility of certain evidence, leaving the door open

for the evidence to be reconsidered later, defendant abandoned

this   argument     by    failing    to   make    a   further     offer    of   the
                                           -2-
evidence.         Even    assuming       arguendo        that    this       evidence     was

improperly       excluded,       defendant       has    failed   to        show   that   its

admission at trial would have resulted in a different verdict.

                   I. Factual and Procedural Background

      T.B. was born 1 October 1996, to Robin and Ken.                             Robin and

Ken   had   another      child     as    well.         Robin   and    Ken    subsequently

separated, and the children lived with Ken.                          Robin subsequently

met Frank Cataldo (defendant), who moved into Robin’s apartment

in 2003.     Robin and defendant had two sons.                   At the end of 2009,

Robin’s two children by Ken came to live with them.

      In    January      2011,    T.B.    told     her    guidance         counselor     that

defendant had sex with her.                 The guidance counselor contacted

the Department of Social Services (DSS), which in turn contacted

police.     Detective Ronnie Markham met with T.B. at her school,

and she repeated the allegations.                 Defendant was arrested.

      On    18   February        2011,    Dr.    Gina     Martin,      a    physician     at

Alamance Regional Hospital, performed an examination on T.B. and

took pictures of her genital area.                        The examination revealed

that this area was more swollen than it should have been.                                Such

swelling is usually caused by rubbing the area.                         The examination

also revealed a defect in T.B.’s hymen, a split in the edge at

the bottom, indicative of vaginal penetration.
                                       -3-
      Defendant   was     charged     with    two   counts   of   statutory   sex

offense   and   two     counts   of   statutory      rape.      At   trial,   T.B.

testified that defendant penetrated her vaginally “[a] lot of

times[.]”     Dr. Martin testified as an expert witness as to the

defect in T.B.’s hymen.          The jury found defendant guilty of both

counts of statutory sex offense and one count of statutory rape.

The   court     consolidated        the      statutory    sex     offenses     for

sentencing, and imposed an active sentence of 240-297 months

imprisonment,     and    a    consecutive      active    sentence    of   240-297

months for the statutory rape.                The court also ordered that

defendant register as a sex offender for thirty years upon his

release from prison.

      Defendant appeals.

                             II. Standard of Review

            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 pursuant to Rule 401 is not as
            deferential as the ‘abuse of discretion’
            standard which applies to rulings made
            pursuant to Rule 403.
                                       -4-
Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004)

(citation and quotation marks omitted).

    “We review the trial court's rulings as to relevance with

great deference. . . . We believe that the same deferential

standard      of   review    should     apply    to     the    trial    court's

determination      of   admissibility    under       Rule   412.”      State   v.

Khouri, 214 N.C. App. 389, 406, 716 S.E.2d 1, 12-13 (2011).

    “When a defendant wishes to present evidence falling within

the scope of Rule 412, he must first apply to the court for a

determination of the relevance of the sexual behavior to which

it relates. The trial court is then required to conduct an in

camera hearing . . . to consider the proponent’s offer of proof

and the argument of counsel . . . . The defendant bears the

burden   of   establish[ing]     the   basis    of    admissibility     of   such

evidence.” State v. Cook, 195 N.C. App. 230, 237, 672 S.E.2d 25,

30 (2009) (citations and quotation marks omitted).

                    III. Excluding Witness Testimony

    Defendant contends that the trial court erred in excluding

the testimony of T.B. and Dr. Martin concerning T.B.’s prior

sexual activity.        We disagree.

    At trial, defendant sought to elicit testimony concerning

T.B.’s alleged sexual contact with her father when T.B. was four
                                          -5-
years     old.          Defendant      argued    that      this     constituted      an

alternative explanation for the defect in T.B.’s hymen, and to

impeach T.B.’s testimony that she hadn’t been in sexual contact

with anyone other than defendant.                The trial court conducted an

in   camera      hearing    pursuant      to    Rule    412.       The   trial     court

sustained the State’s objection to the evidence of T.B.’s sexual

encounters with her father.

      Subsequently,         the   State      tendered     Dr.   Gina     Martin,    who

examined T.B. in 2011, as an expert in the field of physical

examination of children where there were allegations of sexual

abuse.     Dr. Martin testified to the existence of the defect in

T.B.’s hymen, which was likely caused by vaginal penetration.

On   cross-examination,           defendant     sought     to     elicit     testimony

concerning alleged masturbation by T.B. with a hairbrush, which

might have been an alternative explanation for the defect in

T.B.’s hymen.       The court held a Rule 412 in camera hearing, and

concluded that this testimony was admissible.

      On appeal, defendant contends that the trial court erred in

excluding     T.B.’s       testimony    of     her     sexual     contact    with    her

father,    and     in    excluding     Dr.     Martin’s    testimony        concerning

T.B.’s masturbation.          We first note that the trial court did not
                              -6-
exclude the testimony concerning masturbation, and we therefore

dismiss that argument.

    With regard to the first portion of defendant’s argument,

concerning T.B.’s contact with her father, we note          that the

trial court correctly held an in camera hearing pursuant to Rule

412 of the North Carolina Rules of Evidence.    Rule 412 provides

that:

         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 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.
                                            -7-
N.C. R. Evid. 412(b) (2013).               At trial, defendant contended that

the testimony concerning T.B.’s sexual contact with her father

fell    under     the    exception        set   forth         in   Rule    412(b)(2),     as

evidence   that        the   acts    committed         were    not    committed   by     the

defendant; specifically that the defect in T.B.’s hymen may have

been caused by someone other than defendant.

       Our Supreme Court has held that evidence which “provide[s]

an alternative explanation for the medical evidence presented .

. . falls within exception (b)(2) of Rule 412.”                           State v. Ollis,

318 N.C. 370, 376, 348 S.E.2d 777, 781 (1986).                             We agree that

the    excluded    testimony         in   the   instant        case    fell   within     the

exception to Rule 412.

       However, in the instant case, the trial court conducted an

in camera hearing as to T.B.’s testimony concerning her father’s

conduct.        Although it sustained the State’s objection to the

testimony,      the     trial   court      observed       that       subsequent   witness

testimony would determine “whether I’ll allow it later.”                                 The

trial court’s ruling on the alleged sexual contact with T.B.’s

father   was     not    a    final    ruling      on    the    admissibility      of    this

evidence, but was an interim or interlocutory ruling.                                  At no

subsequent time did defendant attempt to make a further offer of

this evidence.           Because defendant             failed to raise the issue
                                     -8-
anew, it is deemed abandoned.         See State v. Williams, 355 N.C.

501, 555-56, 565 S.E.2d 609, 641 (2002) (holding that, where the

trial court held defendant’s motion open, and defendant failed

to seek a further ruling, that issue was abandoned).

      Even   assuming    arguendo    that    the     trial    court    erred    in

excluding the testimony, defendant has not demonstrated that the

exclusion of this evidence prejudiced him before the jury.                    T.B.

testified concerning defendant’s repeated              sexual contact with

her in 2010.       This testimony was admitted without objection.

Defendant does not contend that the excluded evidence showed

that the acts for which he was charged were committed by another

person,   but   rather   that   another     person    may     have    had   sexual

contact with T.B. many years earlier.            Defendant’s argument that

the excluded testimony would have explained the existence of the

defect in T.B.’s hymen does not challenge T.B.’s testimony as to

defendant’s conduct.

      We further note that the trial court admitted evidence of

an   alternative    explanation     for    the   defect      in   T.B.’s    hymen;

specifically,      Dr.    Martin’s        testimony       concerning        T.B.’s

masturbation.      This evidence was temporally close to the alleged

conduct of the defendant, unlike the excluded testimony, which

dealt with events that allegedly occurred many years prior to
                                     -9-
the conduct of defendant.          However, even with the evidence of

recent masturbation, the jury found defendant guilty.                 Defendant

cannot     establish,    absent     the     exclusion     of   the    testimony

concerning    T.B.’s    sexual    contact    with   her   father     many   years

earlier,    that a different result would have been reached at

trial.

    We hold that any error which may have resulted from the

exclusion of this testimony was harmless.

    NO ERROR.

    Judges HUNTER, Robert C., and BRYANT concur.

    Report per Rule 30(e).
