State v. Spain ( 1968 )

164 S.E.2d 486 (1968) 3 N.C. App. 266

STATE of North Carolina
v.
Donald W. SPAIN.

No. 687SC398.

Court of Appeals of North Carolina.

December 18, 1968.

T. W. Bruton, Atty. Gen., William W. Melvin, Asst. Atty. Gen., and T. Buie Costen, Staff Atty., Raleigh, for the State.

W. O. Rosser, Whitakers, for defendant appellant.

CAMPBELL, Judge.

The defendant assigns as error the following: (1) the admission of Tanya's testimony about other episodes; (2) the admission of the mother's testimony about what she saw on 10 February 1968 and what Tanya told her about previous episodes; (3) the admission of Police Detective Horace Winstead's testimony about what Tanya told him; (4) the denial of the defendant's motion for judgment as of nonsuit; and (5) the failure of the trial judge to properly charge the jury.

The defendant's first contention is that the trial court erred in admitting Tanya's testimony about other episodes. "Although the North Carolina Court has not expressly recognized a separate category for [sex] offenses * * *, the decisions are markedly liberal in holding evidence of similar sex offenses admissible for one or more of the purposes listed above [to show knowledge, intent, motive, etc.], especially when the sex impulse manifested is of an unusual or `unnatural' character." Stansbury, N.C. Evidence 2d, § 92.

The Supreme Court has held evidence of similar prior occurrences competent in the following cases: State v. Hartsell, 272 N.C. 710, 158 S.E.2d 785; Gasque v. State, 271 N.C. 323, 156 S.E.2d 740; State v. Browder, 252 N.C. 35, 112 S.E.2d 728; State v. Leak, 156 N.C. 643, 72 S.E. 567.

This assignment of error is overruled.

The defendant's second contention is that the trial court erred in admitting the mother's testimony about what she saw on 10 February 1968 and what Tanya told her about previous episodes. G.S. § 8-57 (husband and wife as witnesses in criminal actions) provides, inter alia, "* * * that in all criminal prosecutions of a spouse for an assault upon the other spouse, or for any criminal offense against a legitimate * * * child of either spouse, * * * it shall be lawful to examine a spouse in behalf of the State against the other spouse * * *."

The mother's testimony as to what her daughter Tanya had told her about previous occurrences was competent as corroborative evidence, and in the absence of a request for special instructions limiting the testimony to corroborative purposes, the court was not required to so instruct the jury. State v. Rose, 270 N.C. 406, 154 S.E.2d 492; State v. Brooks, 260 N.C. 186, 132 S.E.2d 354; Stansbury, N.C. Evidence 2d, §§ 27, 51, 52, and 79; State v. Hartsell, supra.

This assignment of error is overruled.

The defendant's third contention is that the trial court erred in admitting Police Detective Horace Winstead's testimony about what Tanya told him. It was competent in part for the purpose of corroborating Tanya's testimony, but it was incompetent in part because it went beyond her testimony. However, the defendant's general objection was properly overruled since it was admissible for corroborative purposes. State v. Cogdale, 227 N.C. 59, 40 S.E.2d 467. It was also unnecessary in the absence of a request by the defendant for the trial judge to limit its admissibility to purposes of corroboration. State v. Walker, 226 N.C. 458, 38 S.E.2d 531.

"As a general rule, the general admission of evidence which is competent for a restricted purpose will not be held error in the absence of a request by defendant that its admission be restricted, and a general objection to the testimony is insufficient." 2 Strong, N.C. Index 2d, Criminal Law, § 95.

This assignment of error is overruled.

The defendant's fourth contention is that the trial court erred in denying the motion for judgment as of nonsuit. The testimony of Tanya and her mother was sufficient to carry the case to the jury. The defendant concedes that this is true "except for the testimony of Dr. Benjamin E. Morgan." Since Dr. Morgan testified that he examined Tanya on 11 February 1968 and that the examination revealed no bruises or anything of an abnormal condition, the defendant contends that this contradicted the State's evidence. However, the testimony of Tanya and her mother and the testimony of Dr. Morgan are not contradictory, particularly since bruises and visible marks are not required for conviction. Even if there was contradictory testimony, it would be a matter for the jury and a motion for nonsuit would be properly denied.

This assignment of error is overruled.

The defendant's fifth contention is that the trial court erred in the following charge to the jury:

"Neither force nor intent is an element of this offense when committed on a child under the age of twelve years. Ordinarily, the definition in a situation of this kind where the child is above the age of twelve years is that an assault with intent to commit rape is an assault by a person 18 years of age or over upon a female person with the intent by force and violence and against the will of the female person to have carnal knowledge of her, that is, to have sexual relations with her, but in the situation where the female is under twelve years of age, the State is not required to prove force nor to prove the intent."

The defendant contends that this portion of the charge erroneously eliminated the element of "intent to commit rape" from the offense charged in the bill of indictment. However, a close reading of the charge reveals that the trial court was referring to the offense of "rape upon a female under the age of twelve" and not the offense of "an assault with intent to commit rape." Compare State v. Browder, supra. The trial court was merely making a comparison between the offense of "rape" and the offense of "an assault with intent to commit rape." Thereafter, the following charge correctly defined all of the necessary elements of "an assault with intent to commit rape":

"So the court instructs you that in order for a jury to be justified in returning a verdict of guilty of the offense charged in the bill of indictment, the State of North Carolina must satisfy you from the evidence and beyond a reasonable doubt that the defendant, Donald W. Spain, committed an assault upon the prosecuting witness, Tanya Louise Peele, intending to gratify his passion upon her body whether with her consent or not, the consent being immaterial."

Even if the comparison of "rape" with "an assault with intent to commit rape" was in any way confusing to the jury, the defendant was found guilty of only "an assault upon a female." The trial court correctly charged the jury as to the necessary elements of "an assault upon a female" and no exception was made to that portion of the charge. Therefore, any error in other portions of the charge was not prejudicial to the defendant. Since the entire charge, when read contextually, presents the law fairly and clearly to the jury, we find no prejudicial error. State v. Rogers, 273 N.C. 208, 159 S.E.2d 525.

This assignment of error is overruled.

We find no prejudicial error in the trial below.

No error.

MALLARD, C. J., and MORRIS, J., concur.