State v. Cataldo ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1343
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Rockingham County
Nos. 11 CRS 50300-01, 50518
FRANK CATALDO
Appeal by defendant from judgment entered 8 May 2013 by
Judge Lindsay R. Davis, Jr. in Rockingham County Superior Court.
Heard in the Court of Appeals 8 April 2014.
Roy Cooper, Attorney General, by Laura E. Crumpler, Special
Deputy Attorney General, for the State.
Staples Hughes, Appellate Defender, by Charlesena Elliott
Walker, Assistant Appellate Defender, for defendant-
appellant.
STEELMAN, Judge.
Where evidence that defendant contends was excluded at
trial was actually admitted by the trial court, that argument is
dismissed. Where the trial court made an interlocutory ruling
on the admissibility of certain evidence, leaving the door open
for the evidence to be reconsidered later, defendant abandoned
this argument by failing to make a further offer of the
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evidence. Even assuming arguendo that this evidence was
improperly excluded, defendant has failed to show that its
admission at trial would have resulted in a different verdict.
I. Factual and Procedural Background
T.B. was born 1 October 1996, to Robin and Ken. Robin and
Ken had another child as well. Robin and Ken subsequently
separated, and the children lived with Ken. Robin subsequently
met Frank Cataldo (defendant), who moved into Robin’s apartment
in 2003. Robin and defendant had two sons. At the end of 2009,
Robin’s two children by Ken came to live with them.
In January 2011, T.B. told her guidance counselor that
defendant had sex with her. The guidance counselor contacted
the Department of Social Services (DSS), which in turn contacted
police. Detective Ronnie Markham met with T.B. at her school,
and she repeated the allegations. Defendant was arrested.
On 18 February 2011, Dr. Gina Martin, a physician at
Alamance Regional Hospital, performed an examination on T.B. and
took pictures of her genital area. The examination revealed
that this area was more swollen than it should have been. Such
swelling is usually caused by rubbing the area. The examination
also revealed a defect in T.B.’s hymen, a split in the edge at
the bottom, indicative of vaginal penetration.
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Defendant was charged with two counts of statutory sex
offense and two counts of statutory rape. At trial, T.B.
testified that defendant penetrated her vaginally “[a] lot of
times[.]” Dr. Martin testified as an expert witness as to the
defect in T.B.’s hymen. The jury found defendant guilty of both
counts of statutory sex offense and one count of statutory rape.
The court consolidated the statutory sex offenses for
sentencing, and imposed an active sentence of 240-297 months
imprisonment, and a consecutive active sentence of 240-297
months for the statutory rape. The court also ordered that
defendant register as a sex offender for thirty years upon his
release from prison.
Defendant appeals.
II. Standard of Review
Although the trial court’s rulings on
relevancy technically are not discretionary
and therefore are not reviewed under the
abuse of discretion standard applicable to
Rule 403, such rulings are given great
deference on appeal. Because the trial court
is better situated to evaluate whether a
particular piece of evidence tends to make
the existence of a fact of consequence more
or less probable, the appropriate standard
of review for a trial court’s ruling on
relevancy pursuant to Rule 401 is not as
deferential as the ‘abuse of discretion’
standard which applies to rulings made
pursuant to Rule 403.
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Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004)
(citation and quotation marks omitted).
“We review the trial court's rulings as to relevance with
great deference. . . . We believe that the same deferential
standard of review should apply to the trial court's
determination of admissibility under Rule 412.” State v.
Khouri, 214 N.C. App. 389, 406, 716 S.E.2d 1, 12-13 (2011).
“When a defendant wishes to present evidence falling within
the scope of Rule 412, he must first apply to the court for a
determination of the relevance of the sexual behavior to which
it relates. The trial court is then required to conduct an in
camera hearing . . . to consider the proponent’s offer of proof
and the argument of counsel . . . . The defendant bears the
burden of establish[ing] the basis of admissibility of such
evidence.” State v. Cook, 195 N.C. App. 230, 237, 672 S.E.2d 25,
30 (2009) (citations and quotation marks omitted).
III. Excluding Witness Testimony
Defendant contends that the trial court erred in excluding
the testimony of T.B. and Dr. Martin concerning T.B.’s prior
sexual activity. We disagree.
At trial, defendant sought to elicit testimony concerning
T.B.’s alleged sexual contact with her father when T.B. was four
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years old. Defendant argued that this constituted an
alternative explanation for the defect in T.B.’s hymen, and to
impeach T.B.’s testimony that she hadn’t been in sexual contact
with anyone other than defendant. The trial court conducted an
in camera hearing pursuant to Rule 412. The trial court
sustained the State’s objection to the evidence of T.B.’s sexual
encounters with her father.
Subsequently, the State tendered Dr. Gina Martin, who
examined T.B. in 2011, as an expert in the field of physical
examination of children where there were allegations of sexual
abuse. Dr. Martin testified to the existence of the defect in
T.B.’s hymen, which was likely caused by vaginal penetration.
On cross-examination, defendant sought to elicit testimony
concerning alleged masturbation by T.B. with a hairbrush, which
might have been an alternative explanation for the defect in
T.B.’s hymen. The court held a Rule 412 in camera hearing, and
concluded that this testimony was admissible.
On appeal, defendant contends that the trial court erred in
excluding T.B.’s testimony of her sexual contact with her
father, and in excluding Dr. Martin’s testimony concerning
T.B.’s masturbation. We first note that the trial court did not
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exclude the testimony concerning masturbation, and we therefore
dismiss that argument.
With regard to the first portion of defendant’s argument,
concerning T.B.’s contact with her father, we note that the
trial court correctly held an in camera hearing pursuant to Rule
412 of the North Carolina Rules of Evidence. Rule 412 provides
that:
Notwithstanding any other provision of law,
the sexual behavior of the complainant is
irrelevant to any issue in the prosecution
unless such behavior:
(1) Was between the complainant and the
defendant; or
(2) Is evidence of specific instances of
sexual behavior offered for the purpose of
showing that the act or acts charged were
not committed by the defendant; or
(3) Is 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; or
(4) Is evidence of sexual behavior offered
as the basis of expert psychological or
psychiatric opinion that the complainant
fantasized or invented the act or acts
charged.
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N.C. R. Evid. 412(b) (2013). At trial, defendant contended that
the testimony concerning T.B.’s sexual contact with her father
fell under the exception set forth in Rule 412(b)(2), as
evidence that the acts committed were not committed by the
defendant; specifically that the defect in T.B.’s hymen may have
been caused by someone other than defendant.
Our Supreme Court has held that evidence which “provide[s]
an alternative explanation for the medical evidence presented .
. . falls within exception (b)(2) of Rule 412.” State v. Ollis,
318 N.C. 370, 376, 348 S.E.2d 777, 781 (1986). We agree that
the excluded testimony in the instant case fell within the
exception to Rule 412.
However, in the instant case, the trial court conducted an
in camera hearing as to T.B.’s testimony concerning her father’s
conduct. Although it sustained the State’s objection to the
testimony, the trial court observed that subsequent witness
testimony would determine “whether I’ll allow it later.” The
trial court’s ruling on the alleged sexual contact with T.B.’s
father was not a final ruling on the admissibility of this
evidence, but was an interim or interlocutory ruling. At no
subsequent time did defendant attempt to make a further offer of
this evidence. Because defendant failed to raise the issue
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anew, it is deemed abandoned. See State v. Williams, 355 N.C.
501, 555-56, 565 S.E.2d 609, 641 (2002) (holding that, where the
trial court held defendant’s motion open, and defendant failed
to seek a further ruling, that issue was abandoned).
Even assuming arguendo that the trial court erred in
excluding the testimony, defendant has not demonstrated that the
exclusion of this evidence prejudiced him before the jury. T.B.
testified concerning defendant’s repeated sexual contact with
her in 2010. This testimony was admitted without objection.
Defendant does not contend that the excluded evidence showed
that the acts for which he was charged were committed by another
person, but rather that another person may have had sexual
contact with T.B. many years earlier. Defendant’s argument that
the excluded testimony would have explained the existence of the
defect in T.B.’s hymen does not challenge T.B.’s testimony as to
defendant’s conduct.
We further note that the trial court admitted evidence of
an alternative explanation for the defect in T.B.’s hymen;
specifically, Dr. Martin’s testimony concerning T.B.’s
masturbation. This evidence was temporally close to the alleged
conduct of the defendant, unlike the excluded testimony, which
dealt with events that allegedly occurred many years prior to
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the conduct of defendant. However, even with the evidence of
recent masturbation, the jury found defendant guilty. Defendant
cannot establish, absent the exclusion of the testimony
concerning T.B.’s sexual contact with her father many years
earlier, that a different result would have been reached at
trial.
We hold that any error which may have resulted from the
exclusion of this testimony was harmless.
NO ERROR.
Judges HUNTER, Robert C., and BRYANT concur.
Report per Rule 30(e).