State v. Anthony ( 1988 )

365 S.E.2d 195 (1988)

STATE of North Carolina
v.
Joseph Gerald ANTHONY.

No. 8727SC661.

Court of Appeals of North Carolina.

March 1, 1988.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. LaVee Hamer Jackson, Raleigh, for State.

Keith M. Stroud, Charlotte, for defendant-appellant.

ORR, Judge.

It has long been established that a defendant in a criminal case has a right to cross-examine adverse witnesses under the sixth amendment. The scope of cross-examination, however, lies within the sound discretion of the trial court and shall not be disturbed absent abuse of that discretion. State v. Wrenn, 316 N.C. 141, 144, 340 S.E.2d 443, 446 (1986).

Defendant contends that the trial court erred by prohibiting him from cross-examining prosecutrix about her previous accusations of sexual misconduct against her father and stepfather. According to defendant this evidence is relevant to prosecutrix's credibility. He cites both State v. Baron, 58 N.C.App. 150, 292 S.E.2d 741 (1982) and State v. Durham, 74 N.C.App. 159, 327 S.E.2d 920 (1985) as authority for his contention. We believe both cases are distinguishable and therefore inapplicable to the case at bar.

In Baron, defense counsel sought to introduce evidence that the thirteen-year-old prosecutrix falsely accused a foster parent, her brother and a neighbor of sexual misconduct. The trial court ruled the evidence inadmissible under the Rape Victim Shield Statute, N.C.G.S. § 8-58.6. This Court granted a new trial. We stated that:

Defense counsel sought only to introduce evidence of the prior allegedly false statements for impeachment purposes and advised the court of their intent. We believe that the Legislature intended to exclude the actual sexual history of the complainant, not prior accusations of the complainant.

State v. Baron, 58 N.C.App. at 153, 292 S.E.2d at 743.

In Durham, a five-year-old awoke from a nightmare at 4:00 a.m. and told her mother that defendant (who was not her father) had touched her in an indecent manner. The child said her father had previously committed the same act.

Defendant sought to elicit testimony showing that the child suffered from "night terrors" of a sexual nature, allegedly caused by the father's previous misconduct. Defendant argued that the child imagined or fantasized that he touched her in the same manner her father had. This Court stated as follows:

In these circumstances, we believe the child's accusation of the father was relevant to the child's credibility, and we believe the trial judge abused his discretion and violated defendant's constitutional rights by ruling such a subject irrelevant and by completely foreclosing any discussion of it....

State v. Durham, 74 N.C.App. at 168, 327 S.E.2d at 926 (emphasis supplied).

The common element in both Baron and Durham was the presence of some evidence tending to show that the previous accusations of sexual misconduct were false. (The Baron defendant was erroneously prohibited from introducing testimony that the prior accusations were false). No evidence in the case sub judice was introduced from which the trial court could conclude that the allegations were false. The prosecutrix's recollection as to the disposition of the charges was inadequate to reach such a conclusion.

In State v. Wrenn, 316 N.C. 141, 340 S.E.2d 443, our Supreme Court reached a similar conclusion. There defendant sought to impeach the prosecutrix's credibility with evidence that she accused a man, previously convicted of sexually assaulting her, of threatening her over the telephone after he was placed on probation. A probation revocation hearing was held and the judge did not revoke his probation. The trial court prohibited defendant from introducing this evidence. Our Supreme Court stated that:

The fact that the defendant's probation was not revoked based on subsequent allegation that the defendant had called and threatened the victim is not sufficient, standing alone, to prove that the victim's accusation was false. There could be, and often are, other reasons why a judge does not revoke one's probation in a given case.

State v. Wrenn, 316 N.C. at 144-45, 340 S.E.2d at 446.

Similarly there are many reasons why the charges, if any, brought against prosecutrix's father and stepfather were dropped, if in fact they were dropped. The trial court conducted an in camera hearing and carefully weighed the probative value of the prior accusations against the danger that they would confuse or mislead the jury. It was determined that the probative value of the evidence was substantially outweighed by its prejudicial impact. We find no abuse of discretion or constitutional error in his decision. The judgment of the trial court is therefore affirmed.

No Error.

ARNOLD and JOHNSON, JJ., concur.