798 S.E.2d 532 (N.C.App. 2017), COA 16-464, State v. Jacobs

Docket Nº:COA 16-464
Citation:798 S.E.2d 532
Opinion Judge:McCULLOUGH, Judge.
Party Name:STATE OF NORTH CAROLINA v. JOHN OWEN JACOBS
Attorney:Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth J. Weese, for the State. Paul F. Herzog for defendant-appellant.
Judge Panel:McCULLOUGH, Judge. Judge DIETZ concurs. Judge HUNTER, Jr., concurs in result only by separate opinion. Judge DIETZ concurs. Judge HUNTER, Jr., concurs in result only by separate opinion. CONCUR BY: Robert N. HUNTER, JR. HUNTER, JR., Robert N., Judge, concurs in the result only by separate opinion.
Case Date:March 21, 2017
Court:Court of Appeals of North Carolina
 
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Page 532

798 S.E.2d 532 (N.C.App. 2017)

STATE OF NORTH CAROLINA

v.

JOHN OWEN JACOBS

No. COA 16-464

Court of Appeals of North Carolina

March 21, 2017

Heard in the Court of Appeals 22 September 2016.

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

Paul F. Herzog for defendant-appellant.

McCULLOUGH, Judge. Judge DIETZ concurs. Judge HUNTER, Jr., concurs in result only by separate opinion.

OPINION

Page 533

Appeal by defendant from judgment entered 28 July 2015 by Judge Rueben F. Young in Bladen County Superior Court No. 13 CRS 50699.

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

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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...

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