in the Court of Appeals 27 March 2019.
by Defendant from judgment entered 9 August 2017 by Judge
Rebecca W. Holt in Orange County Superior Court No.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Tamara S. Zmuda, for the State.
Montgomery for the Defendant.
Tyrone Churell Davis appeals from a judgment finding him
guilty of second degree rape and sexual battery.
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 and who was
qualified as a "sexual assault nurse examiner"
was indicted and tried for two counts of second degree rape
and one count of sexual battery against Emma.
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.
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.
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.
testified on his own behalf. He did not deny his sexual
encounter with Emma, but he claimed that the encounter was
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.
gave notice of ...