State v. Shaw

• Decision Date: 15 December 1977
• Docket Number: No. 37,37
• Citation: 293 N.C. 616,239 S.E.2d 439
• Parties: STATE of North Carolina v. Joseph H. SHAW.
• Court: North Carolina Supreme Court

Page 439

239 S.E.2d 439

293 N.C. 616

STATE of North Carolina v. Joseph H. SHAW.

No. 37.

Supreme Court of North Carolina.

Dec. 15, 1977.

Rufus L. Edmisten, Atty. Gen., by Nonnie F. Midgette, Associate Atty., Raleigh, for the State.

Mary Ann Tally, Public Defender, Fayetteville, for defendant.

LAKE, Justice.

G.S. 14-202.1 provides:

"Taking indecent liberties with children. (a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:

(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or

(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.

(b) Taking indecent liberties with children is a felony, punishable by a fine, imprisonment for not more than 10 years, or both."

The defendant assigns as error the denial of his motions for judgment of nonsuit as to both cases. In his brief he confines his argument upon this assignment of error to the charge of rape. He has thus abandoned this assignment of error with reference to the charge of taking indecent liberties with a child. Rule 28(a), Rules of Appellate Procedure, 287 N.C. 671, 741. His decision in this respect was well founded for his own testimony is ample to sustain the verdict of guilty as to this charge. As to the charge of rape, this assignment of error is also without merit.

In his brief the defendant says that this assignment is " inextricably intertwined with the question of the determination of the competency of the child witness to testify, "which is the subject of his first assignment of error. While, as we shall subsequently show, there was no error in permitting the child to testify as a witness, if there had been such error, it would not entitle the defendant to a judgment of nonsuit. It is well settled that, upon a motion for judgment of nonsuit in a criminal action all of the evidence admitted, which is favorable to the State, whether competent or incompetent, is considered. State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971); State v. Virgil, 263 N.C. 73, 138 S.E.2d 777 (1964); Strong, N.C. Index 3d, Criminal Law, § 104.

It is elementary that, for the purpose of ruling upon such a motion, only the evidence introduced by the State is considered, except insofar as the evidence for the defendant clarifies and strengthens it, and any discrepancies in the State's evidence are disregarded, its evidence, favorable to it, being deemed true and being interpreted in the light most favorable to the State. Strong, N.C. Index 3d, Criminal Law, § 104. If, upon such consideration, there is substantial evidence, whether direct, circumstantial, or both, to support a finding that the offense charged has been committed and that the defendant committed it, the motion for judgment of nonsuit is properly denied. State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578 (1975); Strong, N.C. Index 3d, Criminal Law, § 106.2. The evidence in the present case as to the charge of rape fully met this test.

In his brief the defendant contends that the State's evidence was deficient in that Sabrina did not know the meaning of certain terms and, consequently, her testimony was vague as to the element of penetration. However, the law does not disqualify a little girl, alleged to have been the victim of a sexual assault, to testify as a witness concerning the acts of the defendant, or belittle the significance of her testimony, merely because she does not identify with scientific accuracy the portions of her anatomy and that of the defendant involved in the assault, or because she has not been sufficiently liberated to use with fluency the vernacular of the prostitute and her customers in an attempt to do so. This nine year old child, during her interrogation, stood before the jury and pointed to the portion of her anatomy penetrated and drew upon the blackboard, in the presence of the jury, the figure of a man, showing his sex organ. Unquestionably, the jury could understand her testimony as to where she was penetrated and as to the instrument of penetration.

It is well settled in this State that the competency of a child to testify rests "mainly, if not entirely, in the sound discretion of the trial judge in the light of his examination and observation of the particular witness." State v. Wetmore, 287 N.C. 344, 215 S.E.2d 51 (1975), reversed as to death sentence only, 428 U.S. 905, 96 S.Ct. 3213, 49 L.Ed.2d 1212; State v. Cook, 280 N.C. 642, 187 S.E.2d 104 (1972); State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966); Artesani v. Gritton, 252 N.C. 463, 113 S.E.2d 895 (1960). Here, as we said in State v. Turner, supra:

"There was no error in holding that the little girl who was the alleged victim of these offenses was a competent witness. (Citations omitted.) There is no age below which one is incompetent, as a matter of law, to testify. The test of competency is the capacity of the proposed witness to understand and to relate under the obligation of an oath facts which will assist the jury in determining the truth of the matters as to which it is called upon to decide. This is a matter which rests in the sound discretion of the trial judge in the light of his examination and observation of the particular witness. In the present case, the child was examined with reference to her intelligence, understanding and religious beliefs concerning the telling of a falsehood, all of which took place out of the presence of the jury. The record indicates she was alert, intelligent and fully aware of the necessity for telling the truth."

There is nothing in the present record to indicate an abuse of discretion by the trial judge in permitting Sabrina and her playmates to testify. Her childish terminology simply raised a question for the jury as to her meaning and credibility.

The defendant's Assignments of Error 5, 6 and 7 relate to the admission, over objection, of testimony concerning the finding of a foreign pubic hair upon the private parts of Sabrina, its similarity to hair taken from the defendant by the investigating police detective, and the court's denial of the defendant's motion for mistrial because of the admission of this testimony. In these assignments we find no merit. The defendant's argument with reference to these assignments is that he was taken by surprise and that G.S. 15A-910, dealing with discovery in criminal proceedings, should be construed to bar the admission of this evidence.

The record shows that the defendant made a pre-trial written request for discovery and a pre-trial motion for discovery as to any physical evidence that the State intended to introduce at the trial. It further shows that, prior to trial, the District Attorney, in good faith, advised defendant's counsel of all exhibits then known to the District Attorney, together with the original report made by Mr. Glesne, the laboratory expert of the State Bureau of Investigation. The record further shows that the District Attorney had no opportunity to interview Dr. Johnson, the examining physician, who testified as a witness for the State, prior to a recess during trial, at which time the District Attorney first learned of the finding of the hair. The record likewise shows that Mr. Glesne, at the time of his original report to the District Attorney, did not know where this hair was found or its significance in relation to the hairs taken from the body of the defendant and so that report did not deal with a comparison of these hairs. While the trial was in progress, and after Dr. Johnson had disclosed to the District Attorney his finding of the hair upon Sabrina, Mr. Glesne made a further study of the hairs and reached his conclusion that the one found upon the body of Sabrina could have originated upon the body of the defendant. As soon as these matters came to the attention of the District Attorney, he advised the defendant's counsel of them. The trial judge ruled that there had been no bad faith on the part of the District Attorney in failing earlier to so advise defendant's counsel of these facts, overruled the objection of the defendant to the introduction of this evidence and denied his motion for mistrial. In these rulings we find no error.

G.S. 15A-910, which is part of the Article relating to discovery in criminal procedures, provides:

"Regulation of discovery failure to comply. (a) If at any time during the course of the proceedings the court determines that a party has failed to comply with this Article or with an order issued pursuant to this Article, the court in addition to exercising its contempt powers may

(1) Order the party to permit the discovery or inspection, or

(2) Grant a continuance or recess, or

(3) Prohibit the party from introducing evidence not disclosed, or

(4) Enter other appropriate orders. " (Emphasis added.)

By its express terms, this statute authorizes, but does not require, the trial court to prohibit the party offering nondisclosed evidence from introducing it. This is left to the discretion of the trial court and, under the circumstances disclosed by this record, we perceive no indication of abuse of such discretion. The defendant did not, as he might have done, request a continuance in order to permit him to prepare for cross-examination of these witnesses with reference to this matter.

Defendant's Assignment of Error 4 is to the effect that the trial court erred in failing to make rulings on the qualifications of Dr. Johnson and Mr. Glesne to testify as experts. The record, however, does not support the defendant's contention. When the defendant objected to Dr. Johnson's testimony as to his findings upon his medical examination of Sabrina, the court stated: " The court...