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State v. Jacobs

Supreme Court of North Carolina

April 6, 2018


          Heard in the Supreme Court on 10 January 2018.

          On 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.

          Joshua H. Stein, Attorney General, by Elizabeth J. Weese, Assistant Attorney General, for the State.

          Paul F. Herzog for defendant-appellant.

          Anne Bleyman and North Carolina Prisoner Legal Services, Inc., by Christopher J. Heaney, for North Carolina Advocates for Justice, amicus curiae.

          JACKSON, Justice.

         In this 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.

         On 6 May 2013, complainant "Betty"[1] 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.

         Prior 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.[2]

         At 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.

         On 28 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.

         Regarding 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.

         Judge 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.

         On 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 ...

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