in the Supreme Court on 10 January 2018.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, __ N.C.App. __,
798 S.E.2d 532 (2017), finding no error after appeal from a
judgment entered on 28 July 2015 by Judge Reuben F. Young in
Superior Court, Bladen County.
H. Stein, Attorney General, by Elizabeth J. Weese, Assistant
Attorney General, for the State.
F. Herzog for defendant-appellant.
Bleyman and North Carolina Prisoner Legal Services, Inc., by
Christopher J. Heaney, for North Carolina Advocates for
Justice, amicus curiae.
case we consider whether the exception outlined in North
Carolina Rule of Evidence 412(b)(2) applies to evidence of
the complainant's history of sexually transmitted
diseases (STDs) such that the trial court erred in excluding
that evidence pursuant to Rule 412 when other evidence showed
that defendant was not infected with those STDs. Because we
conclude that the relevant evidence in defendant's offer
of proof fell within the Rule 412(b)(2) exception, we reverse
the decision of the Court of Appeals holding that the trial
court did not err in excluding the STD evidence and remand
this case for a new trial.
May 2013, complainant "Betty" was taken to the
hospital after reporting that defendant, her father, had been
having sexual relations with her. As part of her examination,
she was tested for STDs. The test results revealed that Betty
had contracted Trichomonas vaginalis and the Herpes simplex
virus, Type II. On that same day, defendant was arrested for
first-degree rape of a child and first-degree sex offense
with a child. Three days after defendant's arrest,
pursuant to a search warrant, defendant was tested for STDs
and the test results showed no evidence of either Trichomonas
or the Herpes simplex virus, Type II.
to trial, the State filed multiple motions in limine
asserting that no Rule 412 exceptions applied to evidence
related to STDs in this case and that, as a result, the trial
court should prohibit the defense from mentioning such
evidence during the trial. Subsequently, defendant filed a
notice of intent to call an expert witness, Keith Ramsey,
M.D. of the East Carolina University School of Medicine, to
testify that Betty had STDs that were not present in
defendant and to testify as to the implications of this
information. After hearing arguments on the State's Rule
412 motions at the beginning of the July 2015 trial, the
trial court concluded that defendant could not introduce any
STD evidence unless the State "open[ed] the door"
to such evidence.
trial, Betty testified that defendant had been having sexual
relations with her over a period of several years beginning
with an incident in 2011, when Betty was eight or nine years
old. Betty described the first incident with some
particularity. During her testimony Betty also described
three specific instances in which defendant engaged in sexual
acts with her in 2013, when Betty was eleven years old.
First, Betty testified that on 5 May 2013, after she had
showered, eaten, and gone to bed, she woke up to
defendant's pulling the bed covers off of her. She
testified that defendant then pulled her shorts down and had
sex with her. Betty also recounted that the week before the
previous incident, defendant had sex with her in the kitchen
of their home. This incident occurred while her mother was at
work and her younger brother was outside the home. Finally,
Betty testified that defendant had sex with her on 25 April
2013 in her bedroom. She noted that she remembered the date
because defendant had picked her up early from school after
she had been disciplined for kicking another student. On
cross-examination, Betty indicated that defendant had sex
with her approximately twice per week for about three years.
Over the course of subsequent days, both the State and
defense called several other witnesses, and defendant even
testified on his own behalf. Of particular relevance to our
decision here, during defendant's case-in-chief, defense
counsel submitted to the trial court an offer of proof
pursuant to Rule 412 that contained, inter alia, the
"Medical Expert Report" prepared by Dr. Ramsey to
preview his potential testimony regarding the implications of
the STD evidence. After considering the offer of proof, the
trial court reaffirmed its earlier decision that evidence
regarding Betty's STDs must be excluded from trial for
violating the Rape Shield Law.
July 2015, a jury returned a verdict finding defendant guilty
of first-degree sex offense with a child. The jury deadlocked
on the remaining rape charges. For the conviction of
first-degree sex offense with a child, the trial court
imposed a sentence of 420 to 564 months of imprisonment.
After sentencing, defendant gave oral notice of appeal.
the issue of the STD evidence, defendant argued before the
Court of Appeals that the trial court erred by excluding the
evidence because its inclusion would have made sexual contact
between Betty and defendant less likely, thereby qualifying
for the Rule 412(b)(2) exception. The Court of Appeals
majority disagreed and instead concluded that the STD
evidence was properly excluded from trial because that
exception was not applicable here. State v. Jacobs,
__ N.C.App. __, __, 798 S.E.2d 532, 536 (2017). In reaching
this conclusion, the Court of Appeals majority noted
defendant's reliance on this Court's application of
the Rule 412(b)(2) exception in State v. Ollis but
distinguished Ollis from the present case on the
basis that defendant here "offer[ed] no such alternative
explanation or specific act to prove that any sexual act
committed was by someone other than him." Id.
at __, 798 S.E.2d at 536 (citing Ollis, 318 N.C.
370, 376, 348 S.E.2d 777, 781 (1986)). Based upon this
distinction, the Court of Appeals then reasoned that
defendant offered the STD evidence "to raise speculation
and insinuate that Betty must have been sexually active with
someone else." Id. at __, 798 S.E.2d at 536. On
appeal, defendant also argued that the trial court's
decision to exclude the STD evidence violated his
constitutional right to present a defense. The Court of
Appeals declined to reach the substance of this argument
after determining that defendant had not raised this issue at
trial and therefore had waived it. Id. at __, 798
S.E.2d at 534.
Robert N. Hunter, Jr. concurred in the result only. He wrote
separately to emphasize that STD evidence should not "be
included wholesale" within the coverage of Rule 412.
Id. at __, 798 S.E.2d at 536 (Hunter, Jr., J.
concurring in result only). Nonetheless, he further explained
that if a defendant can offer relevant and exculpatory
medical evidence that "does not necessarily speak to the
past sexual behavior of the victim, such evidence should be
admissible regardless of whether it fits within" a Rule
412 exception. Id. at __, 798 S.E.2d at 536.
appeal to this Court, defendant reiterates his argument that
the trial court misinterpreted Rule 412(b)(2) in excluding
the proffered STD evidence. Defendant specifically asserts
that the medical evidence that was to be presented by Dr.
Ramsey was within the exception set forth in Rule 412(b)(2).
We agree. Because this disposes of the case in