               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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