Before Mills, Judge, at the 2 February 1981 Criminal Session of Superior Court, Forsyth County. Judgment was entered 6 February 1981.
Carlton, Justice. Justice Exum dissenting.
Only a brief summary of the evidence is necessary here for an understanding of the case giving rise to this appeal.
The prosecuting witness, Enola Kay Conrad, is a deaf mute and testified at trial through an interpreter. She told the jury that late on the night of 9 June 1980, she and two girlfriends, who were also deaf, and several males went out to dance and drink beer. They first went to Patterson's, and then left for Curt's Place. They arrived at Curt's at about midnight or one o'clock in the morning. At Curt's Place, she saw the defendant, James Luther Galloway. He bought her three beers and asked her to dance. They danced, and when they were through, defendant pulled her by the arm and led her outside. Conrad resisted by pulling back and asked defendant, "Where are we going?" by signing. Defendant said nothing and pulled her out the door, which was about three feet from where they had stopped dancing. He forced her into a car and got in beside her. Defendant continued to hold her arm while they were in the car. He drove to a house several blocks away. He got out of the car and then pulled Conrad out by her arm. He pushed her up the steps, through the door and into a bedroom. He told her to remove her clothes and
when she refused, he pulled them off. She screamed, and he covered her mouth and tried to choke her. He hit her on the face and then bit her face. Defendant had a knife and cut her on the neck, arm and shoulder. He then, with the knife, forced her to submit to intercourse. They had intercourse three times during the night. Each time she refused. Defendant went to sleep. Because she cannot see at night, Conrad decided to wait until morning to leave and went to sleep for a short period. After awakening, she left the house while defendant was still asleep. She went to a nearby house and, through use of a written note, requested the woman there to call a friend to come and get her. When she arrived at the friend's home, she told what had happened, and the rape was reported to the police.
After she reported the rape, Conrad was taken to the emergency room of the North Carolina Baptist Hospital, where she was examined by Dr. Fry. Dr. Fry testified that Conrad had a large bruise in the left maxillary area of her face which, because of its dark purple color, was consistent with being inflicted within the past twenty-four hours. On her left forearm and shoulder area there were several superficial skin lacerations. A pelvic exam revealed injury in the genital area consistent with traumatic and forcible penetration.
Defendant took the stand and admitted having intercourse with the prosecuting witness in the home of a friend but denied that any force was involved. He testified that Conrad voluntarily had sex with him more than once and that they both fell asleep. He also testified that he had to leave the house for a short while in the early morning hours to return a car to his sister. Conrad was still in the bed when he returned and he went back to sleep. When he awoke, she was gone.
Other facts necessary for an understanding of the questions involved on this appeal are noted below.
Defendant first contends that the trial court erred in allowing certain testimony by the medical expert in obstetrics and gynecology who examined Conrad after the alleged rape. After reading to the jury his medical findings, Dr. Richard Fry was asked whether he had an impression or finding from his examination
of the prosecuting witness. He replied, "Yes, this examination would be consistent with a virginal pelvic exam, with evidence of traumatic and forcible penetration, which would be consistent with an alleged rape." Defendant's objection was overruled and he contends that the testimony improperly invaded the province of the jury. We disagree.
Clearly, a medical expert may not testify that the defendant raped the prosecuting witness. It is equally clear that the witness did not do so in this instance. A physician who is properly qualified as an expert may offer an opinion as to whether the victim in a rape prosecution had been penetrated and whether internal injuries had been caused thereby. State v. Atkinson, 278 N.C. 168, 176, 179 S.E.2d 410, 415, death sentence vacated, 403 U.S. 948 (1971). Testimony that an examination revealed evidence of traumatic and forcible penetration consistent with an alleged rape is a proper expression for an expert witness to establish whether the victim had been penetrated by force. The doctor had previously testified as to injuries found during his examination and the challenged testimony was merely a shorthand statement summarizing those findings. We find nothing improper about this testimony. See State v. Hunter, 299 N.C. 29, 261 S.E.2d 189 (1980). This assignment of error is overruled.
Upon the reconvening of court on the morning of 4 February 1981, defense counsel, out of the presence of the jury, requested that the trial court make an advance ruling on the admissibility of two questions which he proposed to ask the prosecuting witness: (1) "Are you or are you not a virgin?" and (2) "Are you or are you not on birth control pills?" Defense counsel made this request primarily on the basis of an article in the morning newspaper which implied that Dr. Fry, the examining physician, had testified that the prosecuting witness was a virgin. Defendant contended then and now that Dr. Fry's testimony implied that the prosecuting witness was a virgin and that, since his entire defense was based on consent, the trial court should have allowed him to refute the implications of that testimony. Defendant argues that allowing testimony giving rise to the implication that he had raped a virgin without affording him an opportunity to refute the evidence was extremely prejudicial. The trial court ruled that the
requested questions were irrelevant to any issue in the case. Defendant now concedes that the question concerning birth control pills would have been impermissible under the rape victim shield statute, G.S. § 8-58.6 (1981), but strongly contends that the question concerning the prosecuting witness's virginity should have been allowed and that its denial was prejudicial to him. We disagree.
First, we disagree with defendant that Dr. Fry implied that the prosecuting witness was a virgin. He did testify that, "Her vagina was examined with a Pedersen speculum. And that is an instrument that is small, that is used to examine vaginas that have not -- we use the medical term virginal, but that is not to imply the secular term. . . . [T]his examination would be consistent with a virginal pelvic exam, with evidence of traumatic and forcible penetration . . . ." (Emphasis added.) We find nothing in the testimony of Dr. Fry which indicates that he considered this victim to be a virgin.
Moreover, the tendered questions were inadmissible under G.S. 8-58.6. That statute provides, in pertinent part, as follows:
(b) 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 ...