State v. Jacobs

Citation252 N.C.App. 402,798 S.E.2d 532
Decision Date21 March 2017
Docket NumberNo. COA 16-464,COA 16-464
CourtCourt of Appeal of North Carolina (US)
Parties STATE of North Carolina v. John Owen JACOBS

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

Paul F. Herzog, Fayetteville, for defendant-appellant.

McCULLOUGH, Judge.

John Owen Jacobs ("defendant") appeals from judgment entered upon his conviction for first-degree sex offense with a child. For the following reasons, we find no error.

I. Background

Defendant was arrested on 6 May 2013 based on allegations of sex abuse by his daughter and, on 8 July 2013, indicted by a Bladen County Grand Jury on charges of first-degree rape of a child and first-degree sex offense with a child.

On 9 May 2013, between defendant's arrest and his indictment, the Bladen County Sheriff's office applied for and obtained a search warrant for physical evidence from defendant. Pursuant to that warrant, defendant provided blood samples which tested negative for trichomonas vaginalis and the herpes simplex

virus, Type II.

Both the State and defendant filed pre-trial motions regarding evidence they sought to exclude or admit at trial. Pertinent to this appeal, the State filed two motions pursuant to N.C. Gen. Stat. § 8C-1, Rule 412 to exclude evidence of the alleged victim's ("Betty")1 sexual history. On 31 June 2015, the State filed a motion to prohibit the defense from questioning any witnesses about the sexual behavior of the victim, other than the sexual acts at issue in the indictments. On 7 July 2015, the State filed a motion in limine to prohibit the defense from referencing any sexually transmitted diseases

("STD") or infections that may have been detected in Betty. In response to the State's motions to exclude evidence pursuant to Rule 412, on 15 July 2015, defendant filed a notice of intent to call an expert witness to testify that Betty has STDs that defendant does not have.

Defendant's case came on for trial in Bladen County Superior Court on 20 July 2015, the Honorable Reuben F. Young, Judge presiding. The judge heard arguments on the State's Rule 412 motions at the beginning of the trial and, before opening statements, ruled that the STD evidence was inadmissible under Rule 412.

Defendant's trial then proceeded with evidence tending to show the following: Defendant is Betty's biological father. Betty, at the time of trial, was 13 years old. On 6 May 2013, Betty told a friend at school that her father had sex with her the night before and that he had been having sexual relations with her for a "long time." Betty's friend then told a teacher, who in turn notified the school's social worker. That same day, Betty was taken to Bladen County Hospital, where a doctor performed a standard victims sexual assault kit examination. The results showed Betty tested positive for two STDs, trichomonas vaginalis and herpes simplex

virus, Type II.

At trial, Betty testified about three specific instances of defendant having sexual relations with her in 2013. First, Betty testified that, on 5 May 2013, defendant had sex with her in her bedroom after she had showered, eaten, and gone to bed. Betty testified that in another instance, about one week before the 5 May incident, defendant had sex with her in the kitchen of their home during the day while her younger brother played outside. Finally, Betty testified that, on 25 April 2013, defendant had sex with her in her bedroom after he brought her home from school early due to her kicking another student. In addition to these three instances, Betty further testified that defendant first had sex with her in 2011 and continued having sex with her two to three times per week over the course of about three years.

Upon consideration of the evidence, on 28 July 2015, a jury returned a verdict finding defendant guilty of first-degree sex offense with a child but deadlocked on the remaining charges of first-degree rape of a child, leading the trial court to declare a mistrial on those charges. Upon the first-degree sex offense with a child conviction, the trial court entered judgment sentencing defendant to a term of 420 to 564 months. Defendant gave oral notice of appeal.

II. Discussion

On appeal, defendant raises two issues: whether (1) the denial of the STD evidence into evidence at trial constitutes a violation of his constitutional right to present a defense; and (2) the STD evidence was properly excluded pursuant to Rule 412.

Constitutional Issue

We first address defendant's argument that denying admittance of STD evidence violates his constitutional right to present a defense.

Generally, constitutional issues that are not raised at trial are not considered on appeal. See State v. Maness , 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009) (" ‘[A] constitutional issue not raised at trial will generally not be considered for the first time on appeal.’ " (quoting Anderson v. Assimos , 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) ).) The same holds true for appeals based on constitutional grounds. See also State v. Haselden , 357 N.C. 1, 10, 577 S.E.2d 594, 600, cert. denied , 540 U.S. 988, 124 S.Ct. 475, 157 L.Ed.2d 382 (2003) ; State v. Gainey , 355 N.C. 73, 87, 558 S.E.2d 463, 473, cert. denied , 537 U.S. 896, 123 S.Ct. 182, 154 L.Ed.2d 165 (2002) ; State v. Anderson , 350 N.C. 152, 175, 513 S.E.2d 296, 310 (1999).

Here, our review of the record shows that defendant did not raise any issue or argument at trial regarding a violation of his constitutional rights that he now raises on appeal. Thus, defendant has waived those arguments on appeal.

Rule 412

Defendant next contends that the trial court erred when it excluded evidence of Betty's STDs and evidence that defendant did not have those STDs pursuant to Rule 412. Defendant argues that the evidence would make a sexual relationship between Betty and defendant less likely and shows that someone other than defendant had sexual relations with Betty.

Rule 412, North Carolina's rape shield law, provides, in pertinent part, as follows:

(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:
(1) Was between the complainant and the defendant; or
(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or
(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or
(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.
(c) Sexual behavior otherwise admissible under this rule may not be proved by reputation or opinion.

N.C. Gen. Stat. § 8C-1, Rule 412 (2015). As used in Rule 412, "the term ‘sexual behavior’ means sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial." N.C. Gen. Stat. § 8C-1, Rule 412(a). Thus, in short, " Rule 412 provides that evidence of sexual behavior of the complainant is irrelevant unless it falls within one of four categories listed in the rule."

State v. Guthrie , 110 N.C.App. 91, 93, 428 S.E.2d 853, 854, disc. review denied , 333 N.C. 793, 431 S.E.2d 28 (1993).

As our Supreme Court has explained, prior to the enactment of the predecessor to Rule 412, a victim's "general reputation for unchastity" was admissible in a rape trial to attack the victim's credibility and show the victim's proneness to consent to sexual acts. State v. Younger , 306 N.C. 692, 695, 295 S.E.2d 453, 455 (1982) (citing State v. Fortney , 301 N.C. 31, 37, 269 S.E.2d 110, 113 (1980) ). However, in enacting the predecessor to Rule 412, the legislature "cast aside the idea, that any previous sexual behavior of a rape victim is per se relevant to a rape proceeding." Id. at 696, 295 S.E.2d at 455 (internal quotation marks, citation, and emphasis omitted). The Court further explained that the "statute was designed to protect the witness from unnecessary humiliation and embarrassment while shielding the jury from unwanted prejudice that might result from evidence of sexual conduct which has little relevance to the case and has a low probative value." Id . at 696, 295 S.E.2d at 456.

In our analysis, we first examine whether evidence of an STD constitutes sexual activity under Rule 412 and, thus, whether Rule 412 is implicated. The State argues that the evidence showing that Betty has STDs constitutes evidence of past sexual behavior that should be excluded by Rule 412 ; and evidence that defendant did not also have the STDs is not relevant without first establishing that Betty has the STDs. We agree with the State.

Although we have found various instances of evidence allowed under Rule 412, there is no precedent in North Carolina that evidence of an STD constitutes sexual behavior that would be barred by Rule 412. Indeed, defendant cites State v. Rorie , ––– N.C.App. ––––, 776 S.E.2d 338 (2015), and State v. Guthrie , 110 N.C.App. 91, 428 S.E.2d 853 (1993), to argue that evidence of an STD is admissible under Rule 412, but those cases are distinguishable.

In Rorie , this Court found that the act of watching a pornographic video did not constitute sexual activity under Rule 412. ––– N.C.App. at ––––, 776 S.E.2d at 344. In Guthrie , this Court found that written letters offering sexual acts did not constitute sexual activity under Rule 412. 110 N.C.App. at 93-94, 428 S.E.2d at 854.

Here, we hold the presence of an STD, by contrast, denotes sexual behavior because an STD is commonly associated with sexual activity, sexual intercourse, and is accompanied with the same type of stigma that Rule 412...

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3 cases
  • State v. Golder
    • United States
    • North Carolina Court of Appeals
    • 6 Febrero 2018
  • State v. Jacobs
    • United States
    • North Carolina Supreme Court
    • 6 Abril 2018
    ...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......
  • State v. Walker
    • United States
    • North Carolina Court of Appeals
    • 21 Marzo 2017

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