State v. Jacobs ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 16-464
Filed: 21 March 2017
Bladen County, No. 13 CRS 50699
STATE OF NORTH CAROLINA
v.
JOHN OWEN JACOBS
Appeal by defendant from judgment entered 28 July 2015 by Judge Rueben F.
Young in Bladen County Superior Court. Heard in the Court of Appeals
22 September 2016.
Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth J.
Weese, for the State.
Paul F. Herzog for defendant-appellant.
McCULLOUGH, Judge.
John Owen Jacobs (“defendant”) appeals from judgment entered upon his
conviction for first-degree sex offense with a child. For the following reasons, we find
no error.
I. Background
Defendant was arrested on 6 May 2013 based on allegations of sex abuse by
his daughter and, on 8 July 2013, indicted by a Bladen County Grand Jury on charges
of first-degree rape of a child and first-degree sex offense with a child.
STATE V. JACOBS
Opinion of the Court
On 9 May 2013, between defendant’s arrest and his indictment, the Bladen
County Sheriff’s office applied for and obtained a search warrant for physical evidence
from defendant. Pursuant to that warrant, defendant provided blood samples which
tested negative for trichomonas vaginalis and the herpes simplex virus, Type II.
Both the State and defendant filed pre-trial motions regarding evidence they
sought to exclude or admit at trial. Pertinent to this appeal, the State filed two
motions pursuant to N.C. Gen. Stat. § 8C-1, Rule 412 to exclude evidence of the
alleged victim’s (“Betty”)1 sexual history. On 31 June 2015, the State filed a motion
to prohibit the defense from questioning any witnesses about the sexual behavior of
the victim, other than the sexual acts at issue in the indictments. On 7 July 2015,
the State filed a motion in limine to prohibit the defense from referencing any
sexually transmitted diseases (“STD”) or infections that may have been detected in
Betty. In response to the State’s motions to exclude evidence pursuant to Rule 412,
on 15 July 2015, defendant filed a notice of intent to call an expert witness to testify
that Betty has STDs that defendant does not have.
Defendant’s case came on for trial in Bladen County Superior Court on
20 July 2015, the Honorable Reuben F. Young, Judge presiding. The judge heard
arguments on the State’s Rule 412 motions at the beginning of the trial and, before
opening statements, ruled that the STD evidence was inadmissible under Rule 412.
1 This pseudonym is used throughout the opinion to protect the identity of the minor child.
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STATE V. JACOBS
Opinion of the Court
Defendant’s trial then proceeded with evidence tending to show the following:
Defendant is Betty’s biological father. Betty, at the time of trial, was 13 years old.
On 6 May 2013, Betty told a friend at school that her father had sex with her the
night before and that he had been having sexual relations with her for a “long time.”
Betty’s friend then told a teacher, who in turn notified the school’s social worker.
That same day, Betty was taken to Bladen County Hospital, where a doctor
performed a standard victims sexual assault kit examination. The results showed
Betty tested positive for two STDs, trichomonas vaginalis and herpes simplex virus,
Type II.
At trial, Betty testified about three specific instances of defendant having
sexual relations with her in 2013. First, Betty testified that, on 5 May 2013,
defendant had sex with her in her bedroom after she had showered, eaten, and gone
to bed. Betty testified that in another instance, about one week before the 5 May
incident, defendant had sex with her in the kitchen of their home during the day
while her younger brother played outside. Finally, Betty testified that, on
25 April 2013, defendant had sex with her in her bedroom after he brought her home
from school early due to her kicking another student. In addition to these three
instances, Betty further testified that defendant first had sex with her in 2011 and
continued having sex with her two to three times per week over the course of about
three years.
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STATE V. JACOBS
Opinion of the Court
Upon consideration of the evidence, on 28 July 2015, a jury returned a verdict
finding defendant guilty of first-degree sex offense with a child but deadlocked on the
remaining charges of first-degree rape of a child, leading the trial court to declare a
mistrial on those charges. Upon the first-degree sex offense with a child conviction,
the trial court entered judgment sentencing defendant to a term of 420 to 564 months.
Defendant gave oral notice of appeal.
II. Discussion
On appeal, defendant raises two issues: whether (1) the denial of the STD
evidence into evidence at trial constitutes a violation of his constitutional right to
present a defense; and (2) the STD evidence was properly excluded pursuant to Rule
412.
Constitutional Issue
We first address defendant’s argument that denying admittance of STD
evidence violates his constitutional right to present a defense.
Generally, constitutional issues that are not raised at trial are not considered
on appeal. See State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009) (“ ‘[A]
constitutional issue not raised at trial will generally not be considered for the first
time on appeal.’ ” (quoting Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101,
102 (2002)). The same holds true for appeals based on constitutional grounds. See
also State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600, cert. denied, 540 U.S. 988,
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STATE V. JACOBS
Opinion of the Court
157 L. Ed. 2d 382 (2003); State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473, cert.
denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002); State v. Anderson, 350 N.C. 152, 175,
513 S.E.2d 296, 310 (1999).
Here, our review of the record shows that defendant did not raise any issue or
argument at trial regarding a violation of his constitutional rights that he now raises
on appeal. Thus, defendant has waived those arguments on appeal.
Rule 412
Defendant next contends that the trial court erred when it excluded evidence
of Betty’s STDs and evidence that defendant did not have those STDs pursuant to
Rule 412. Defendant argues that the evidence would make a sexual relationship
between Betty and defendant less likely and shows that someone other than
defendant had sexual relations with Betty.
Rule 412, North Carolina’s rape shield law, provides, in pertinent part, as
follows:
(b) 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
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STATE V. JACOBS
Opinion of the Court
(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.
(c) Sexual behavior otherwise admissible under this
rule may not be proved by reputation or opinion.
N.C. Gen. Stat. § 8C-1, Rule 412 (2015). As used in Rule 412, “the term ‘sexual
behavior’ means sexual activity of the complainant other than the sexual act which
is at issue in the indictment on trial.” N.C. Gen. Stat. § 8C-1, Rule 412(a). Thus, in
short, “Rule 412 provides that evidence of sexual behavior of the complainant is
irrelevant unless it falls within one of four categories listed in the rule.” State v.
Guthrie, 110 N.C. App. 91, 93, 428 S.E.2d 853, 854, disc. review denied, 333 N.C. 793,
431 S.E.2d 28 (1993).
As our Supreme Court has explained, prior to the enactment of the predecessor
to Rule 412, a victim’s “general reputation for unchastity” was admissible in a rape
trial to attack the victim’s credibility and show the victim’s proneness to consent to
sexual acts. State v. Younger, 306 N.C. 692, 695, 295 S.E.2d 453, 455 (1982) (citing
State v. Fortney, 301 N.C. 31, 37, 269 S.E.2d 110, 113 (1980)). However, in enacting
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STATE V. JACOBS
Opinion of the Court
the predecessor to Rule 412, the legislature “cast aside the idea, that any previous
sexual behavior of a rape victim is per se relevant to a rape proceeding.” Id. at 696,
295 S.E.2d at 455 (internal quotation marks, citation, and emphasis omitted). The
Court further explained that the “statute was designed to protect the witness from
unnecessary humiliation and embarrassment while shielding the jury from unwanted
prejudice that might result from evidence of sexual conduct which has little relevance
to the case and has a low probative value.” Id. at 696, 295 S.E.2d at 456.
In our analysis, we first examine whether evidence of an STD constitutes
sexual activity under Rule 412 and, thus, whether Rule 412 is implicated. The State
argues that the evidence showing that Betty has STDs constitutes evidence of past
sexual behavior that should be excluded by Rule 412; and evidence that defendant
did not also have the STDs is not relevant without first establishing that Betty has
the STDs. We agree with the State.
Although we have found various instances of evidence allowed under Rule 412,
there is no precedent in North Carolina that evidence of an STD constitutes sexual
behavior that would be barred by Rule 412. Indeed, defendant cites State v. Rorie, __
N.C. App. __, 776 S.E.2d 338 (2015), and State v. Guthrie, 110 N.C. App. 91, 428
S.E.2d 853 (1993), to argue that evidence of an STD is admissible under Rule 412,
but those cases are distinguishable.
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STATE V. JACOBS
Opinion of the Court
In Rorie, this Court found that the act of watching a pornographic video did
not constitute sexual activity under Rule 412. __ N.C. App. at __, 776 S.E.2d at 344.
In Guthrie, this Court found that written letters offering sexual acts did not
constitute sexual activity under Rule 412. 110 N.C. App. at 93-94, 428 S.E.2d at 854.
Here, we hold the presence of an STD, by contrast, denotes sexual behavior
because an STD is commonly associated with sexual activity, sexual intercourse, and
is accompanied with the same type of stigma that Rule 412 was designed to prohibit.
We find guidance from other states that have ruled that an STD constitutes sexual
behavior under their respective rape shield laws. See State v. Ozuna, 155 Idaho 697,
702, 316 P.3d 109, 114 (2013) (holding that “evidence related to whether a victim had
an STD or whether the defendant thought the victim had an STD at the time of an
alleged sex crime is evidence of a victim’s past sexual behavior”); Fells v. State, 362
Ark. 77, 83, 207 S.W.3d 498, 502 (2005) (holding that because the public generally
views HIV as an STD, it is tantamount to evidence of the victim’s prior sexual
behavior); State v. Mitchell, 568 N.W.2d 493, 496 (Iowa 1997) (analyzing the
admissibility of STD evidence under Iowa’s rape shield law as evidence of the victim’s
past sexual behavior); State v. Cunningham, 164 Or. App. 680, 995 P.2d 561, 568
(2000) (holding that evidence of STDs falls under the purview of Oregon’s rape shield
law because “evidence of sexually transmitted diseases is tantamount to evidence of
past sexual behavior because sexually transmitted diseases occur as the result of
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STATE V. JACOBS
Opinion of the Court
sexual intercourse, sexual contact, or deviate sexual intercourse.”). The presence of
an STD is indicative of prior sexual behavior and, thus, Rule 412 is implicated.
Although Rule 412 is implicated by the STD evidence, the evidence of prior
sexual behavior may still be admissible if it falls under one of the four exceptions to
the Rule. Guthrie, 110 N.C. App. at 93, 428 S.E.2d at 854. Here, defendant argues
that evidence of the STD should be allowed under the exception which allows 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.” N.C. Gen. Stat. § 8C-1,
Rule 412(b)(2). We have admitted evidence of sexual behavior under the Rule
412(b)(2) exception in other cases. See State v. Ollis, 318 N.C. 370, 348 S.E.2d 777(1986) (holding that evidence should have been admitted under Rule 412(b) to provide
an alternative explanation for medical evidence presented); State v. Davis, 237 N.C.
App. 481, 767 S.E.2d 565 (2014) (holding the trial court erred when it excluded
evidence of a prior sexual encounter occurring the day before the alleged rape because
the evidence was relevant to provide an alternative explanation for the existence of
semen).
Defendant relies on Ollis, in which our Supreme Court ruled that testimony
regarding a specific instance of prior sexual activity was relevant under Rule
412(b)(2). Ollis, 318 N.C. at 376, 348 S.E.2d at 781. In that case the defendant argued
that he should be able to question the victim about instances of rape committed by
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STATE V. JACOBS
Opinion of the Court
another person to prove that physical findings described by the physician who
examined the victim were the result of those acts committed by the other person. Id.As noted above, the Court held that “the evidence should have been admitted, as it
would have provided an alternative explanation for the medical evidence presented
by [the examining physician] and falls within exception (b)(2) of Rule 412.” Id.In this case, by contrast, defendant offers no such alternative explanation or
specific act to prove that any sexual act committed was by someone other than him.
Rather, defendant offers evidence of Betty’s STD, and the nonexistence of an STD for
himself, to raise speculation and insinuate that Betty must have been sexually active
with someone else. Therefore, we find that the presence of an STD is not relevant
under Rule 412(b)(2) and was properly excluded from the evidence admitted at trial.
Without evidence of Betty’s STD, the fact that defendant does not have an STD is
irrelevant The evidence defendant seeks to admit is the very type of evidence Rule
412 was designed to keep from the jury’s consideration.
III. Conclusion
For the reasons discussed above, we hold the trial court did not err in excluding
the STD evidence from the evidence admitted at trial.
NO ERROR.
Judge DIETZ concurs.
Judge HUNTER, Jr., concurs in result only by separate opinion.
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STATE V. JACOBS
Opinion of the Court
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No. COA16-464 – State v. Jacobs
HUNTER, JR., Robert N., Judge, concurs in the result only by separate
opinion.
Although I concur in the result reached by the majority, I write separately to
emphasize evidence regarding sexually transmitted diseases (“STD”) is not a class of
evidence unto itself that should be included wholesale under North Carolina Rule of
Evidence 412.
The majority holds “the presence of an STD . . . denotes sexual behavior
because an STD is commonly associated with sexual activity, sexual intercourse, and
is accompanied with the same type of stigma that Rule 412 was designed to prohibit.”
While STDs are commonly transmitted by sexual activity, it is well established that
these diseases may be contracted from non-sexual contact, such as from mother to
child during childbirth or from blood transfusions.2
Consequently, I would not require all defendants seeking to introduce evidence
related to an STD to satisfy the strictures of Rule 412(b). Rather, if the defendant
can offer specific, relevant medical evidence that presumptively exculpates him from
the crime, and does not necessarily speak to the past sexual behavior of the victim,
such evidence should be admissible regardless of whether it fits within one of the
exceptions to Rule 412.
2 World Health Organization, Sexually Transmitted Infections: Fact Sheet (2014),
http://www.who.int/iris/handle/10665/112323
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