in the Court of Appeals 22 September 2016.
by defendant from judgment entered 28 July 2015 by Judge
Rueben F. Young in Bladen County Superior Court. Bladen
County, No. 13 CRS 50699
Attorney General Joshua H. Stein, by Assistant Attorney
General Elizabeth J. Weese, for the State.
F. Herzog for defendant-appellant.
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.
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.
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.
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") 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.
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.
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.
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.
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