State v. Wilhite

• Decision Date: 07 September 1982
• Docket Number: No. 8118SC1236,8118SC1236
• Citation: 294 S.E.2d 396,58 N.C.App. 654
• Parties: STATE of North Carolina v. Bennie Carsell WILHITE. STATE of North Carolina v. John Edgar RANKIN. STATE of North Carolina v. Ralph Wayne RANKIN.
• Court: North Carolina Court of Appeals

Page 396

294 S.E.2d 396

58 N.C.App. 654

STATE of North Carolina v. Bennie Carsell WILHITE.

STATE of North Carolina v. John Edgar RANKIN.

STATE of North Carolina v. Ralph Wayne RANKIN.

No. 8118SC1236.

Court of Appeals of North Carolina.

Sept. 7, 1982.

Alexander, Moore, Nicholson & Baynes by E. Raymond Alexander, Jr., Greensboro, for defendant-appellant Wilhite.

Moses & Murphy by Pinkney J. Moses, Greensboro, for defendant-appellant John Rankin.

Bowden & Bowden by Joel G. Bowden, Greensboro, for defendant-appellant Ralph Rankin.

BECTON, Judge.

STATE'S EVIDENCE

On the evening of 30 November 1980, the prosecuting witness, age 16, was accompanied by Deborah Wilson, Kenny Birch and a man named Greg to the H & H Grill in Greensboro. The three defendants later entered the Grill. As the prosecuting witness was returning from the restroom, the defendant John Rankin touched her private parts. Defendant Ralph Rankin then grabbed her, kissed her, pulled a gun out, and asked if he could go home with her. The prosecuting witness said: "I told him I didn't care." Ralph then pointed the gun at her and threatened to harm her and her friends if she told any of them about their conversation. Fearing for the safety of her friends, the prosecuting witness returned to the booth and told her friends to leave. She then left the Grill with Ralph because he had threatened her with the gun.

The three defendants placed the prosecuting witness in the back of a car and drove to an apartment. Ralph took her into the apartment and told John to return in thirty minutes. Ralph then had sexual intercourse with her. When John Rankin returned to the apartment, he had intercourse with the prosecuting witness. Later defendant Wilhite knocked on the door of the bedroom at the apartment. He ordered the prosecuting witness into the living room and had sexual intercourse with her. John, who was still in the bedroom, then called the prosecuting witness. He threatened to shoot her in the head if she did not stop crying. John then had intercourse with her a second time in the bedroom.

Afterwards, the prosecuting witness either passed out or fell asleep. She was awakened when Gwendolyn Boswell entered the room and demanded to know what she was doing there. Ms. Boswell lunged toward the prosecuting witness with what appeared to be a razor. The prosecuting witness fled from the room to a nearby store where Ms. Boswell cut the prosecuting witness on her arm and legs. The prosecuting witness was taken to the hospital by the police, treated for her wounds, and released the same day. She testified that she did not consent to having sex with any of the defendants.

DEFENDANT'S EVIDENCE

The defendants John Rankin and Bennie Wilhite did not testify. Defendant Ralph Rankin testified that he saw the prosecuting witness at the H & H Grill during the early morning hours of 1 December 1980. He was acquainted with her prior to this date. Ralph further testified that he gave the prosecuting witness, his brother, John, and Bennie Wilhite a ride to the apartment on Asheboro Street. Ralph went home after dropping them off. He denied having sexual intercourse with the prosecuting witness or threatening her in any way.

The three defendants were represented by separate counsel, both at trial and on appeal. Their assignments of error are not the same in all respects, and each has filed a separate brief. We shall therefore discuss their appeals separately.

DEFENDANT WILHITE'S APPEAL

I

During the presentation of the State's evidence, the trial court allowed the jury to view three photographs of the prosecuting witness. Defendant Wilhite argues in Assignment of Error No. 2 that these photographs were prejudicial and irrelevant since the wounds depicted therein were not inflicted by the defendants, but were rather inflicted by Gwendolyn Boswell. Assuming for purposes of discussion that the photographs were irrelevant, we conclude that their admission was harmless error. Further, the Court has examined these photographs and disagrees with defendant's contentions that they are highly inflammatory and prejudicial. These photographs depict only minor cuts. Pursuant to G.S. 15A-1443(a), defendant is required to show prejudice by proving that there is a "reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." Without the photographs, there was still sufficient evidence of each and every element of the crimes charged to support the jury's verdict. Defendant Wilhite's Assignment of Error No. 2 is without merit.

(The two co-defendants have also assigned error to the admission of these photographs. Our rationale for rejecting defendant Wilhite's assignment of error applies equally to the two co-defendants.)

II

By Assignment of Error No. 3, defendant Wilhite argues that the trial court erred in failing to admit evidence of the prosecuting witness' living conditions, past conduct, and general reputation and character. By this evidence, the defendant sought to attack the prosecuting witness' credibility and character. A close examination of the exceptions noted under this assignment of error reveals no error in the exclusion of such evidence.

We first examine the cross-examination of the prosecuting witness during which the trial court sustained objections to the following questions: "Do you live with your mother, ...? When did you leave Deborah Wilson's house, ...? Did the State take you away from Miss Wilson's house, ...? Is your mother in court with you today?" The trial court also sustained an objection to the question posed to Detective Powell concerning whether the prosecuting witness worked. After each of these questions, the defendant failed to request that the prosecuting witness be allowed to answer for the record in the absence of the jury. "When an objection to a specific question asked on cross-examination is sustained, the answer the witness would have given must be made part of the record or the propriety of the objection will not be considered on appeal." State v. Price, 301 N.C. 437, 450, 272 S.E.2d 103, 112 (1980). We do not speculate as to what the prosecuting witness' answers would have been. Nor do we perceive any error in the trial court's decision to sustain objections to the questions asked.

The remaining exceptions under Assignment of Error No. 3 relate to evidence of the prosecuting witness' sexual behavior. Pursuant to G.S. 8-58.6, North Carolina's rape victim shield statute, the sexual behavior ¹ of the victim of a rape or other sex offense is generally irrelevant and therefore inadmissible. The statute, however, lists four exceptions to this general rule. The third exception allows the admission of sexual behavior which

[i]s 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.

G.S. 8-58.6(b)(3). Evidence of sexual behavior cannot be introduced at trial until the trial court determines its relevancy. G.S. 8-58.6(c).

Defendant Wilhite sought to present evidence which he contends falls under this third exception to the rape victim shield statute. First, defendant sought to question the prosecuting witness about her alleged relationship with a Mr. Marshall as his prostitute. Second, Deborah Wilson was cross-examined and asked about a statement she had allegedly made that, at one time, 18 men were seen waiting on the stairwell to visit the prosecuting witness in her room. The trial court sustained the State's objections to both questions. The defense later sought to present the testimony of Thomas Braswell. His testimony would have allegedly shown that he met the prosecuting witness at a bar, and

[t]hat on the occasion he met this young lady, she left with a perfect stranger at 2:00 or 3:00 a. m. and that at a later point he had sex with the lady, and she made statements to him that she had sex for hire.

According to Braswell, the prosecuting witness also allegedly said "that she was put out of the house by her mother and had to live with Deborah Wilson for having sex with her stepfather." The trial court refused to allow Braswell to testify.

We find no error in the exclusion of this evidence of the prosecuting witness' sexual behavior, because such evidence does not satisfy the requirements of G.S. 8-58.6(b)(3). Further, Braswell's statement that he had seen the prosecuting witness at a bar around 2:00 a. m. and that she left the bar with a "perfect stranger," is not evidence of behavior so distinctive and so closely resembling the defendants' version of the prosecuting witness' encounter with them as to prove consent. The defendants sought to persuade the jury that she met them at a bar early on the morning of 1 December 1980; and that she willingly left with them. However, there was uncontroverted evidence that the prosecuting witness was acquainted with at least two of the three defendants, and that at least one of them threatened her with a gun at the Grill. That the prosecuting witness may have been a prostitute or easy prey for Mr. Braswell does not prove she consented or that defendant Wilhite could have reasonably believed she consented to the encounter with him. In other cases this Court has upheld the trial court's exclusion of testimony showing a pattern of the prosecuting witness' sexual behavior which was merely similar to the defendant's alleged encounter with the prosecuting witness. See State v. White, 48 N.C.App. 589, 269 S.E.2d 323 (1980), State v. Smith, 45 N.C.App. 501, 263 S.E.2d 371, disc. rev. denied, 301 N.C. 104, 273 S.E.2d 309 (1980). We find no error in the exclusion of the testimony assigned as error in Assignment of Error No....