Appeal by defendant from McLelland, Judge. Judgment entered 7 January 1981 in Superior Court, Alamance County. Heard in the Court of Appeals 4 February 1982.
Becton, Judge. Judge Hedrick and Judge Hill concur.
The defendant brings forth six arguments on this appeal: (1) that the trial court erred when it applied the rape victim shield statute to evidence concerning the use of birth control pills by the prosecuting witness; (2) that the trial court erred in allowing into evidence statements made by the prosecuting witness to an investigating officer when the statement included new evidence not testified to by the prosecuting witness; (3) that the trial court erred in refusing to allow defendant's motions for dismissal at the close of the State's evidence; (4) that the trial court erred in commenting to the jury that the defendant had a right to present evidence but had elected not to do so, without further instructions that such an election should not prejudice him in any way; (5) that the trial court erred in its instruction to the jury that the defendant could be found guilty even if they found that the prosecuting witness could have resisted the defendant; and (6) that the trial court improperly expressed its opinion on the merits of the case in its instructions to the jury. We conclude that defendant's trial was free of prejudicial error. Our analysis follows.
The defendant's conviction arises from an alleged rape of an 18-year old Elon College freshman on 5 September 1980. The victim had gone to the Ramada Inn Motel in Burlington to attend a dance. While at the dance, she met the defendant for the first time, after which she danced and had drinks with him. thereafter, the two left the dance hall and went outside to talk. "While we were sitting there, he asked me if I would like a beer and I said yes, sure; so we walked to his room. He just opened the door and he walked in and I left the door open."
From this point on, the evidence from the parties is in conflict. The evidence from the State tends to show the following.
After entering the room, the prosecuting witness sat on the bed; the defendant went to the bathroom but returned without
beer and with no shoes on; the two of them sat on the bed and watched TV for a while, during which time the defendant attempted to kiss her. After the kissing attempt, the prosecuting witness started to leave the room but was prevented from doing so by the defendant. The defendant clasped his hand over her mouth and pushed her onto the bed. The prosecuting witness was told to take her pants off or someone would get hurt. The defendant ended up disrobing her from the waist down. The prosecuting witness, afraid for her safety at this time, pleaded to go to the bathroom, which she was allowed to do. While inside the locked bathroom, she contemplated things to do but was primarily concerned that anything she attempted would anger the defendant cerned that anything she attempted would anger the defendant and thereby increase the danger to herself. She, therefore, went back into the room where she was pushed back onto the bed and was thereafter sexually assaulted by the defendant. She managed to escape when he collapsed. The prosecuting witness reported the incident to her friends and later to the police.
The defendant presented no evidence, nor did he testify on his own behalf. Evidence of the defendant's version of the incident was introduced by the State, in the form of testimony by Lieutenant Jerry Barbee of the Burlington Police. As related by Lt. Barbee, the defendant's story tends to show the following.
The defendant met the prosecuting witness at the dance, danced with her, had some beer with her and then left the lounge area in order to take a walk and get some air. After leaving the lounge area, they went to his room. The television was not on, and they were on the bed talking and began to kiss. He stated to the prosecuting witness that he was tired and sleepy and was ready to go to bed. After disrobing, he got under the covers to go to sleep. Soon afterwards he was joined by the prosecuting witness who had also disrobed. They thereafter had sexual intercourse. Some conversation followed and the prosecuting witness later got up, dressed, and left.
The defendant challenges the constitutionality and the application of G.S. 8-58.6, the Rape Shield Statute, to his case. We readily dispose of his constitutional argument on the authority of State v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (1980). There, ...