Volume 121 — North Carolina Court of Appeals Reports

<bold>1. Evidence and Witnesses § 123 (NCI4th) — sexual abuse of child —</bold> <bold>previous abuse by another person — not admissible</bold> The trial court did not err in a prosecution for taking indecent liberties with a child and first-degree sexual offense by denying defendant's motion to present evidence concerning prior similar<page_number>Page 307</page_number> abuse of the victim by another person. Defendant introduced no evidence that the victim's prior accusations were false, alleges no prior inconsistent statements, and makes no allegation that the proffered evidence would be relevant to show that someone other than defendant committed the assault. Although defendant contended that the information was relevant to the witness's credibility merely because it would show that she had some of the requisite information she would need to lie, that contention would substantially restrict the effect of N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 412. Absent some opening of the door, evidence of prior abuse such as in this case is inadmissible. <bold>Am Jur 2d, Evidence § 504; Rape §§ 55, 86</bold>. <block_quote> <bold>Constitutionality of "rape shield" statute restricting use of</bold> <bold>evidence of victim's sexual experiences. 1 ALR4th 283</bold>.</block_quote> <block_quote> <bold>Admissibility of evidence that juvenile prosecuting witness in sex</bold> <bold>offense case had prior sexual experience for purposes of showing</bold> <bold>alternative source of child's ability to describe sex acts. 83 ALR4th</bold> <bold>685</bold>.</block_quote> <bold>2. Criminal Law § 546 (NCI4th) — indecent liberties and first-degree</bold> <bold>sexual offense — evidence of prior abuse of child by another party</bold> <bold>excluded — argument that child would have no knowledge but for this</bold> <bold>abuse allowed — mistrial</bold> The trial court abused its discretion in a prosecution for taking indecent liberties with a child and first-degree sexual offense by denying defendant's objections to the prosecutor's closing argument that the victim would have no knowledge of these things but for this abuse and by denying defendant's motion for a mistrial after previously denying defendant's motion to introduce evidence of similar abuse by another party. Although lack of knowledge but for this abuse can be fairly implied, and the jury could draw such an inference in this case, the prosecutor may not properly argue to the jury that the inference would be correct where the prosecutor is aware that the contrary is true. <bold>Am Jur 2d, Trial §§ 611, 632</bold>. <block_quote> <bold>Supreme Court's views as to what courtroom statements made by</bold> <bold>prosecuting attorney during criminal trial violate due process or</bold> <bold>constitute denial of fair trial. <cross_reference>40 L.Ed.2d 886</cross_reference></bold>.</block_quote><page_number>Page 308</page_number>

<bold>Workers' Compensation § 233 (NCI4th) — work-related shoulder injury —</bold> <bold>non-work-related arthritis — resulting total disability</bold> The Industrial Commission did not err in finding plaintiff permanently and totally disabled and awarding her compensation pursuant to N.C.G.S. § <cross_reference>97-29</cross_reference> where there was competent evidence before the Commission to support its finding that plaintiff's work-related shoulder injury combined with her nonwork-related arthritis condition to render her totally disabled. Furthermore, plaintiff was entitled to full compensation where there was no<page_number>Page 388</page_number> evidence from which the Commission could apportion the award between the work-related and nonwork-related causes. <bold>Am Jur 2d, Workers' Compensation § 387</bold>.