Volume 98 — North Carolina Court of Appeals Reports

1. Criminal Law 34.8 (NCI3d); Rape and Allied Offenses 4.1 (NCI3d) — rape of stepdaughter — prior offenses against victim In a prosecution of defendant for the second degree rape of his stepdaughter, evidence that defendant had pled guilty to two counts of taking indecent liberties with the victim three years earlier was properly admitted to show defendant's common scheme or plan. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404 (b). Am Jur 2d, Evidence 326; Rape 70. 2. Rape and Allied Offenses 4 (NCI3d) — post-traumatic stress disorder — characteristics of sexually abused children Expert testimony that an alleged rape victim suffered from post-traumatic stress disorder and from a conversion disorder was admissible to help the jury determine if a rape in fact occurred. Furthermore, expert testimony about symptoms and characteristics typically exhibited by sexually abused children was admissible to help the jury understand the behavior<page_number>Page 2</page_number> patterns of sexually abused children and assist it in assessing the credibility of the victim. <block_quote> Am Jur 2d, Expert and Opinion Evidence 196, 197; Infants 17.5; Rape 68.5.</block_quote> 3. Criminal Law 51 (NCI3d); Rape and Allied Offenses 4 (NCI3d) — expert in child psychiatry — qualification to testify about PTSD An expert in the field of child psychiatry was properly permitted to testify about post-traumatic stress disorder even though there was no evidence that he had received specialized training in such disorder. <block_quote> Am Jur 2d, Expert and Opinion Evidence 196, 197; Infants 17.5; Rape 68.5.</block_quote> 4. Criminal Law 51 (NCI3d) — clinical social worker — qualification to testify — profile of sexually abused children The trial court properly exercised its discretion in permitting a clinical social worker to testify regarding the profile of sexually abused children where the witness has a degree in psychology and a Masters degree in counseling; she has had specific training in family violence issues; and she has handled a case load as a social worker of at least fifty percent child sexual abuse victims. <block_quote> Am Jur 2d, Expert and Opinion Evidence 196, 197; Infants 17.5; Rape 68.5.</block_quote> 5. Rape and Allied Offenses 4 (NCI3d) — PTSD in rape victim — length of symptoms — relevancy Testimony by a child psychiatrist regarding the length of time that characteristics of sexual abuse, including PTSD, could persist in a sexual abuse victim was relevant to show that diagnoses of PTSD and conversion disorder made in April and May of 1988 were consistent with a rape occurring in February 1988. Furthermore, even if this evidence was irrelevant under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 401, defendant failed to show that he was prejudiced thereby. <block_quote> Am Jur 2d, Expert and Opinion Evidence 196, 197; Infants 17.5; Rape 68.5.</block_quote><page_number>Page 3</page_number> 6. Criminal Law 89.1 (NCI3d) — attack on victim's credibility — admissibility of character evidence Cross-examination of a child rape victim about prior inconsistent statements made to her doctor, her mother, and at the preliminary hearing constituted an attack on her credibility such that the State could present reputation or opinion evidence as to the victim's character for truthfulness. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 608. Am Jur 2d, Evidence 339, 342, 343. 7. Criminal Law 89.1 (NCI3d) — character witness — sufficient contact with community A school guidance counselor had sufficient contact with an appreciable group of people who had an adequate basis upon which to form their opinion of an alleged rape victim's reputation for truthfulness to permit her to testify as to the victim's reputation for truthfulness among the faculty at her school. Am Jur 2d, Evidence 339, 342, 343. 8. Criminal Law 50.1 (NCI3d); Rape and Allied Offenses 4.3 (NCI3d) — rape victim — improper expert testimony on credibility Testimony by a clinical social worker who counseled an alleged rape victim that the victim had a reputation for truthfulness in her school community constituted improper expert testimony on the credibility of the victim as a witness. However, defendant failed to show prejudice from the erroneous admission of this testimony. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rules 405 (a) and 608. Am Jur 2d, Expert and Opinion Evidence 191. 9. Criminal Law 158 (NCI3d) — ruling on examination of witness's notes — absence of notes from record The appellate court had no basis to review the trial judge's ruling under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 612 that defendant was not entitled to examine a portion of an officer's investigative notes in preparation for cross-examining the officer where the notes were not in the record on appeal. Am Jur 2d, Appeal and Error 397-400.<page_number>Page 4</page_number> 10. Rape and Allied Offenses 5 (NCI3d) — second degree rape — sufficient evidence of force There was sufficient evidence that defendant acted "by force and against the will of the other person" to support his conviction of second degree rape of his fifteen-year-old stepdaughter where the State's evidence tended to show that defendant pushed the victim onto her back when she tried to turn away and held her arms or hands during the act of intercourse; defendant repeatedly told the victim not to tell anyone and threatened to kill her and her family members if she did; the victim told defendant several times to leave her alone but did not scream because she was afraid; and defendant was the male parent figure in the victim's household. N.C.G.S. <cross_reference>14-27.3</cross_reference> (a)(1). Am Jur 2d, Rape 88-92.

1. Criminal Law 417 (NCI4th) — robbery — prosecutor's opening statement — description of victim — no error The trial court did not err in an armed robbery prosecution by allowing the prosecutor to mention in his opening<page_number>Page 168</page_number> statement that the victim had graduated second in his high school class and obtained a college scholarship. Those statements merely served to introduce the victim to the jury; even assuming that they went beyond the scope of opening argument, defendant failed to establish prejudicial error. N.C.G.S. <cross_reference>15A-1221</cross_reference> (a)(4). Am Jur 2d, Trial 207. 2. Robbery 3 (NCI3d) — testimony concerning victim's scholastic achievements — not prejudicial The trial court did not err in an armed robbery prosecution by permitting testimony regarding the victim's scholastic achievements where the evidence was presented by the district attorney during preliminary questioning; the evidence was offered as a means of introducing the victim to the court and the jury; and, considering the fact that defendant later portrayed the victim as the aggressor, the challenged testimony was not prejudicial. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 401. Am Jur 2d, Evidence 342. 3. Criminal Law 87.2 (NCI3d) — robbery — leading questions by prosecutor — no abuse of discretion The trial court did not abuse its discretion in an armed robbery prosecution by allowing the prosecutor to pose leading questions to the victim where the questions complained of were either necessary to develop the witness's testimony or were questions which elicited testimony already received into evidence without objection. Am Jur 2d, Trial 194. 4. Criminal Law 374 (NCI4th) — judge's comment when ruling on evidence — not prejudicial The trial court's comment following a witness's answer in an armed robbery prosecution did not import an expressed opinion or demonstrate favoritism, was not prejudicial, and did not warrant the granting of a new trial for defendant. Am Jur 2d, Trial 98. 5. Robbery 5.4 (NCI3d) — armed robbery — failure to charge on misdemeanor larceny — no error The trial court did not err in an armed robbery prosecution by failing to charge the jury on the offense of misdemeanor<page_number>Page 169</page_number> larceny where the State's evidence sufficiently established the requisite elements of robbery with a dangerous weapon, and defendant's version of events was consistent with the State's evidence to the time the crime actually began, at which time defendant consistently portrayed himself as a victim and innocent bystander. Am Jur 2d, Trial 727. 6. Criminal Law 1114 (NCI4th) — robbery — sentencing — allegation of punishment for not pleading guilty — unsupported Defendant's assertion that a prison term of twenty-five years for armed robbery was punishment for failing to plead guilty was unsupported by the evidence. Am Jur 2d, Criminal Law 525. 7. Criminal Law 1082 (NCI4th) — robbery — sentence in excess of presumptive term — no error The trial court did not err when sentencing defendant for armed robbery by imposing a sentence in excess of the presumptive term after finding one factor in aggravation and none in mitigation where there was neither an error in finding that an aggravating factor existed nor an abuse of discretion in imposing a sentence greater than the presumptive term. Am Jur 2d, Criminal Law 538.

Costs 1.2 (NCI3d); Rules of Civil Procedure 41.1 (NCI3d) — voluntary dismissal — taxing of costs proper — deadline improper The trial court in plaintiff's first action had the authority only to order that costs be paid by plaintiff after she took a voluntary dismissal, not to order that the costs be paid within 30 days of the refiling of the action; therefore, that portion of the trial court's order taxing costs within 30 days of the filing of the second action was void and could be treated as a nullity by the trial court in the second action, and that court had the authority to deny defendant's motion to dismiss and enter its own order without offending the general rule which precludes one superior court judge from reviewing the decision of another, as that rule simply does not apply when the first superior court judge had no legal authority to issue the incorrect order. <block_quote> Am Jur 2d, Costs 18; Dismissal, Discontinuance, and Nonsuit 39.</block_quote><page_number>Page 396</page_number>