State v. O'HANLAN
| Citation | 153 NC App. 546,570 S.E.2d 751 |
| Decision Date | 05 November 2002 |
| Docket Number | No. COA01-1227.,COA01-1227. |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. John Blaine O'HANLAN. |
Attorney General Roy Cooper by Assistant Attorney General Amy C. Kunstling, for the State.
David G. Belser, Asheville, for defendant-appellant.
The Swain County Grand Jury indicted defendant John Blaine O'Hanlan on 7 February 2000 for first-degree kidnapping, two counts of first-degree rape, three counts of first-degree sexual offense, assault with a deadly weapon inflicting serious injury, and felonious larceny. Defendant was tried on these charges at the 3 April 2000 Criminal Session of Swain County Superior Court before a jury and the Honorable Zoro J. Guice, Jr. The jury found defendant guilty of all charges. Defendant was sentenced to a minimum of 288 months and a maximum of 355 months for each first-degree sex offense charge, a minimum of 29 months and a maximum of 44 months for the consolidated assault and larceny charges, a minimum of 100 months and a maximum of 129 months for the first-degree kidnapping conviction, and a minimum of 288 months and a maximum of 355 months in prison for each of the first-degree rape convictions, all sentences to run consecutively. Defendant appeals.
At trial, the State presented evidence as follows: The victim lived and worked as a waitress at the Nantahala Outdoor Center in 1999, in the Mashburn's Housing Complex, which is comprised of five cabins in a wooded area near Wesser Creek. Each cabin is divided into three or four private rooms.
Defendant, who went by the name of "Jack" or "Jack O," worked as a cook at River's End Restaurant at the Nantahala Outdoor Center. He lived in the same cabin as the victim in an adjacent room.
The victim had planned to leave the Center on 5 November 1999 to return to Asheville and had told several people of her plans to do so. Around 11:00 a.m. on that day, the victim had her belongings on the cabin porch ready to be loaded into her Jeep. She asked defendant to watch her belongings while she was gone, and defendant agreed to do so. When she returned, defendant insisted on helping her load her belongings into her Jeep. After loading the Jeep, the victim returned to the cabin to do some final cleaning. As she carried out the trash and recycling, she felt a hard blow to the head from behind. She turned around and saw defendant holding a sock full of rocks. She asked defendant what he was doing, to which he responded by telling her to shut up and hitting her on the head with the sock again. Defendant pushed her to the ground, got on top of her, and began choking her. After struggling with the victim, defendant tied her hands and legs together with duct tape and shoved her into her Jeep. According to the victim, defendant informed her that he would kill her and anyone who came to her aid if she screamed.
Defendant drove the victim's Jeep into the middle of the woods and stopped. Defendant untaped her, took off her jeans, and then kissed her face and rubbed her body. Defendant performed oral sex on her, becoming angry when she did not have an orgasm. Defendant then got on top of her and penetrated her vagina with his penis. He finally stopped and went to the Jeep, where he retrieved the victim's toothbrush and inserted it into her rectum.
Later, defendant moved the Jeep into another location. Defendant penetrated her vagina again with his penis but had troubling maintaining an erection. He became more angry and brutal. At one point, defendant paused, retrieved some bath gel, and anally raped her. When defendant finished, he taped her arms and legs again, put a gag in her mouth, covered her eyes with duct tape, and put her in the backseat with her belongings. Defendant left her there and told her not to escape. However, the victim did manage to escape while defendant was gone and ran down a nearby trail through the woods. She eventually reached the home of the Evans family at about 8:45 a.m. on 6 November 1999.
Chief Deputy Jackie Fortner of the Swain County Sheriff's Department was summoned to the Evans' home. The victim told Fortner that "Jack O" had kidnapped and raped her. She was then transported by ambulance to the Swain County Emergency Room.
Deputy Fortner arrested defendant at his place of work on the morning of 6 November 1999. At the time of his arrest, defendant had multiple cuts and scrapes on his arms and hands, his knuckles were red and dirty, his knees were skinned, and he had a scratch on his left shoulder. Deputy Fortner recovered the victim's watch which she had lost during the assault and a piece of duct tape from the person of defendant. Deputy Fortner also recovered various items of physical evidence, such as the Jeep and the items inside of it.
Defendant assigns forty-six errors on appeal. He mentions only thirteen assignments of error in his brief. The assignments of error not mentioned in his brief are deemed abandoned according to N.C.R.App. P. 28(b)(5) (2002). Defendant's remaining 13 assignments of error are grouped into four main arguments in his brief.
Defendant argues on appeal that (I) the short form indictments for first-degree rape and first-degree sexual offense failed to allege the elements of each offense sufficiently to charge defendant with these crimes and should be held unconstitutional; (II) the trial court committed reversible error when it admitted for substantive purposes the testimony of Dr. Patrick Hanaway, Dr. Lisa Lichtig and Detective Jack Fortner that the victim had been sexually assaulted, kidnapped, and raped; (III) the trial court committed plain error when it instructed the jury that the State need only establish "personal injury" for a first-degree rape conviction; and (IV) defendant's convictions should be vacated as a result of the ineffective assistance of trial counsel. For the reasons set forth we find no error.
appeal dismissed, disc. review denied, 353 N.C. 271, 546 S.E.2d 122 (2000). We find nothing in our previous cases or in defendant's argument that persuades us the short form indictments for rape or sexual offense are invalid or unconstitutional. Accordingly, defendant's assignment of error is overruled.
In his second assignment of error, defendant argues that the trial court committed reversible error when it admitted the testimony of Dr. Patrick Hanaway, Dr. Lisa Lichtig, and Detective Jack Fortner that the victim had been sexually assaulted, kidnapped, and raped. We disagree.
The rule governing testimony by experts is N.C. Gen.Stat. § 8C-1, Rule 702 (2001). Rule 702 states that "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." Id. "The subject matter of the expert testimony must merely be such that it would be helpful to the fact finder." State v. Crawford, 329 N.C. 466, 477, 406 S.E.2d 579, 585 (1991). Under N.C. Gen.Stat. § 8C-1, Rule 704, "[t]estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." N.C. Gen.Stat. § 8C-1, Rule 704 (2001). Expert testimony is not allowed, however, regarding a "`"legal conclusion ... at least where the standard is a legal term of art which carries a specific legal meaning not readily apparent to the witness."'" Crawford, 329 N.C. at 477, 406 S.E.2d at 585 (quoting State v. Rose, 323 N.C. 455, 459, 373 S.E.2d 426, 429 (1988) (quoting State v. Smith, 315 N.C. 76, 100, 337 S.E.2d 833, 849 (1985))).
Dr. Patrick Hanaway testified as an expert for the State. He is a board-certified family physician. He received his medical degree in 1987 and has worked in emergency rooms since 1988. He has been involved in 32 sexual assault examinations. Dr. Hanaway was qualified without objection as an expert in emergency medicine with a speciality dealing with rape victims.
Dr. Hanaway treated the victim in the emergency room and observed her physical condition. According to Dr. Hanaway, she described the assault in detail to him. Dr. Hanaway testified at trial that she seemed visibly shaken and scared. He also performed a rape kit examination. Dr. Hanaway found that she had multiple abrasions, bruises and scratches all over her body. Her back was bruised and scraped, her elbows rubbed raw, and her nipples bruised. Several of her front teeth were broken. Using a florescent light to examine the victim's genitals, Dr. Hanaway observed the lighting up of sperm across the victim's vaginal area.
In addition to her physical condition, Dr. Hanaway noted the victim's mental state. He described her demeanor as "visibly shaken," "scared," "stunned," "clearly afraid" and "spontaneously breaking down in tears at times."
At trial, Dr. Hanaway testified as follows:
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