in the Court of Appeals 21 February 2017.
by Defendant from judgment entered 9 June 2016 by Judge
Beecher R. Gray in Durham County No. 15 CRS 51665 Superior
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Robert M. Curran, for the State.
Marilyn G. Ozer for Defendant-Appellant.
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.
Eric West ("Defendant") appeals from judgment
entered against him following a jury conviction finding him
guilty of second degree sexual offense. 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.
and Procedural History
evidence at trial tended to show the following:
December 2014, Defendant and D.S. 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.
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.
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. 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.
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.
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