State v. Bruce

• Decision Date: 10 December 1985
• Docket Number: No. 591A84,591A84
• Citation: 315 N.C. 273,337 S.E.2d 510
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Roy Everett BRUCE.

Page 510

337 S.E.2d 510

315 N.C. 273

STATE of North Carolina v. Roy Everett BRUCE.

No. 591A84.

Supreme Court of North Carolina.

Dec. 10, 1985.

John Byrd, Asst. Public Defender, Asheville, for defendant-appellant.

MITCHELL, Justice.

The defendant was convicted upon proper indictments for three counts of taking indecent liberties with a child, one count of first degree rape, and one count of incest. The trial court dismissed other charges against him at the close of the State's evidence. The defendant was sentenced to life in prison for first degree rape, and on two of the indecent liberties convictions he was sentenced to separate prison terms of three years each. The trial court treated the third indecent liberties count as having merged into the rape conviction and arrested judgment on that indecent liberties count. A sentence of four years and six months was entered for incest.

The defendant gave notice of appeal of all convictions to the Appellate Division. The defendant's conviction for first degree rape came before this Court as a matter of right because a life sentence was imposed. The defendant's motion to bypass the Court of Appeals as to all remaining convictions was allowed by this Court on October 24, 1985.

By his assignments, the defendant contends that the trial court made several errors. He contends that the trial court erred by denying various portions of his discovery motion. Second, he says that the trial court erred by denying his motions to dismiss all charges because the evidence was insufficient to carry them to the jury. Third, he asserts that the trial court erred by allowing a witness to answer a question that assumed facts not in evidence. Finally, he contends that the trial court erred by denying his motion for mistrial on the ground that the prosecutor's closing argument was improper. We find no error.

The State's evidence tended to show that at the time of the trial the defendant Roy Everett Bruce was thirty-nine years old. The victim is the defendant's daughter and was ten years old at the time of trial. The defendant also has a son and a two-year-old daughter. The defendant and his second wife Debra had custody of all three children prior to the events leading to his convictions.

The child victim testified that before Christmas 1983 she was in her room doing a math problem. The defendant came in to help her. He took his "part" out and told her to touch it, but she refused. he then unzipped her pants and tried to touch her between her legs. On a second occasion she went into her father's room where he laid her on his bed on a towel, removed her pants and panties, got on top of her and put his penis inside her vagina "halfway, not all the way." He did this once and then rubbed vaseline on her. On another occasion her father entered her bedroom at night and raised her nightgown and rubbed her between her legs.

She testified on cross-examination that on one occasion in the past she had been told by her "real mother" to say that the defendant had tried to put his hands between her legs so that he would be "sent to jail." She said that prior to October, 1983, she had lied in this fashion but had later admitted the lie to her stepmother. In the past she had lived with her "real mother" and had been beaten by her mother's boyfriend and locked in a closet. She said that she had received treatment at a mental health facility prior to October, 1983. Mary Young and Dianne Livingstone, the child's school teachers, gave testimony tending to corroborate that of the child.

Marianna Williams, a social worker, testified that she had worked with the Bruce family since June, 1982. She interviewed the child with regard to the rape charge. The child said that her father had held her down and removed her "britches" and "stuck his thing up in me and kept doing it," and said that he would "whip my ass if I told Mama." The child also said that on a prior date her father had taken her pants down, rubbed her and exposed himself to her.

Cynthia Van Deusen, a public health nurse, testified that she examined the child's vagina on October 17, 1983, and found "a little bit of redness, but not a marked amount." Otherwise, she testified to nothing abnormal. During the examination the child said that her father had unzipped her pants and rubbed her genital area.

Cynthia McCants, a social worker, testified that the child told her about three occasions of misconduct. The child said that her father tried to touch her on two occasions, and on the third, he raped her.

Beverly Smith, a public health nurse, testified that she examined the child on November 3, 1983, and found that her external genitalia were very red and irritated. Mrs. Smith observed a white discharge, and she was able to insert her index finger into the vagina up to the second joint, past the hymen. This examination took place four to five days after the alleged rape.

Dr. Mary Helen McConnell, a pediatrician, examined the child on November 29, 1983, twelve days after the alleged rape and two weeks before the examination by the defendant's medical expert, Dr. Catherine Wilson. Dr. McConnell testified that the child's vaginal opening was red, inflamed and tender. She also testified that this condition was caused by an irritating object that had been rubbed in that area, and it could have been a male penis.

Jeanne Myers, a social worker, testified that the child was in her group for sexually abused children following November 23, 1983. She was qualified as an expert in the area of sexual abuse and opined that the child's behavior was typical of a sexually abused child.

The defendant also introduced evidence. Dr. Catherine Wilson testified for the defense that she specializes in obstetrics and gynecology. Acting under a court order, she examined the child on December 12, 1983. Dr. Wilson found no evidence of recent or previous trauma to the child's vagina. Dr. Wilson was of the opinion that intromission had not occurred and defined intromission as "the insertion of the penis into the vagina beyond the hymen." On cross-examination Dr. Wilson stated that slight penetration of the child's vagina would be consistent with a lack of intromission.

David Evers, a psychologist, testified that he examined the child in December, 1981. He diagnosed her as suffering from "an adjustment reaction with mixed emotional features." He stated that she had been in a very chaotic home situation and under a lot of stress and that she was showing the results. She was quite anxious, chewed her nails, and had difficulty sleeping.

Becky Angel, a social worker, testified that she first worked with the child in 1981 when the child lived with her mother and Richard Johnson, the mother's boyfriend. The child had been beaten by the boyfriend and was very nervous.

Gerald H. Lambert, a detective with the Asheville Police Department, testified that he began an investigation of the case in December, 1983. He interviewed the child, and she told of two separate occasions of sexually abusive treatment by the defendant which occurred in October and November, 1983.

Gary Cash, an attorney, testified that he heard the child's testimony in juvenile court in January, 1984. She testified there to three occasions of sexual misconduct on the part of her father. One involved sexual intercourse and two involved indecent liberties.

Wayne Dickens, investigator for the Public Defender's Office, testified that he John Byrd, and Shirley Brown interviewed the child on February 15, 1984. A tape recording of the interview was offered by the defendant as a prior inconsistent statement of the child. During the interview she told of two rapes and two occasions of indecent liberties.

The defendant testified and denied ever having or attempting to have sexual intercourse with his daughter. He denied ever making any sexual advances toward her.

In his first two assignments of error, the defendant contends the trial court erred by denying various parts of his discovery motion. By his motion the defendant sought inter alia to have the trial court order the State to disclose the "facts and circumstances surrounding any ... statement made by the defendant ...." Marianna Williams, a witness for the State, testified during trial that the defendant had "agreed to go to counseling, to make no advances toward" the child "of a sexual nature, and to avoid situations in which there might be a temptation to do this." She testified that the defendant agreed to this by signing a written contract with the Buncombe County Health Department containing those specific terms. This contract was entered into during an interview held to determine whether there had been any kind of sexual contact between the defendant and the child.

The defendant contends that he was prevented from filing a motion under N.C.G.S. 15A-977 to suppress the statements in the contract because the trial court denied the part of his discovery motion seeking disclosure of the "facts and circumstances surrounding any ... statement made by the defendant ...." We find no merit in this contention.

N.C.G.S. 15A-903 requires the trial court to order the prosecutor to disclose certain statements made by the defendant and in the possession, custody or control of the prosecutor. Nothing in the statute, however, entitles a defendant to have the trial court order the prosecutor to provide him with a description of the "facts and circumstances surrounding his statements."

The defendant also assigns as error the trial court's denial of the part of his discovery motion seeking to have the prosecutor ordered to disclose the "names of all persons known by the State to have information regarding the above-captioned matter and/or all persons interviewed regarding the matter." This amounted to a request for a list of the State's witnesses and others having knowledge of the cases against the defendant. As we have previously pointed out, such information...