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State v. Davis

Court of Appeals of North Carolina

May 21, 2019

STATE OF NORTH CAROLINA
v.
TYRONE CHURELL DAVIS, Defendant.

          Heard in the Court of Appeals 27 March 2019.

          Appeal by Defendant from judgment entered 9 August 2017 by Judge Rebecca W. Holt in Orange County Superior Court No. 16CRS000065.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Tamara S. Zmuda, for the State.

          Mark Montgomery for the Defendant.

          DILLON, JUDGE.

         Defendant Tyrone Churell Davis appeals from a judgment finding him guilty of second degree rape and sexual battery.

         On appeal, Defendant argues that he is entitled to a new trial based on portions of the jury charge and based on inadmissible testimony offered by one of the State's witnesses; namely, the nurse who examined Emma[1] and who was qualified as a "sexual assault nurse examiner" expert.

         I. BACKGROUND

         Defendant was indicted and tried for two counts of second degree rape and one count of sexual battery against Emma.

         The State's evidence showed as follows. On the night in question Emma and a friend went out drinking and then decided to go to Defendant's residence to purchase cocaine. While there, they snorted cocaine. Emma then fell asleep on a bed, fully clothed. Defendant and Emma's friend went back out. But at some point, Defendant returned to his residence by himself, where Emma was still asleep. Sometime later, early in the morning, Emma woke up with Defendant on top of her having sexual intercourse with her. Emma pushed Defendant off of her. She heard her friend knocking on the door. She opened the door and told her friend that she had been raped by Defendant. They called the police.

         The only direct evidence of the rape itself offered by the State was Emma's testimony. The State also called Emma's friend; an emergency room physician and a nurse who treated Emma; and members of the police who were on duty early that morning. The physician testified that she did not perform a forensic exam of Emma, stating that she felt Emma was not sober enough to consent to an exam.

         The nurse testified that she was able to physically examine Emma and question Emma, though Emma still smelled of alcohol and was sleepy. The nurse testified that her exam of Emma's pelvis was normal.

         Defendant testified on his own behalf. He did not deny his sexual encounter with Emma, but he claimed that the encounter was consensual.

         The jury found Defendant guilty as charged. Judgment was arrested on one count of second degree rape. Defendant was sentenced in the presumptive range for the remaining charges.

         Defendant gave notice of ...


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