In re Oliver

584 S.E.2d 86, 159 N.C. App. 451
CourtCourt of Appeals of North Carolina
DecidedAugust 5, 2003
DocketNo. COA02-911
StatusPublished
Cited by1 cases

This text of 584 S.E.2d 86 (In re Oliver) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Oliver, 584 S.E.2d 86, 159 N.C. App. 451 (N.C. Ct. App. 2003).

Opinion

HUNTER, Judge.

Fifteen-year-old Jamarcus Q. Oliver (“defendant”) appeals a juvenile adjudication order of delinquency based on findings that defendant committed second degree sexual offense and crime against nature when he inserted his penis into the mouth of a thirteen-year-old girl (“H.M.”) by force and against her will. We affirm.

On 10 October 2001, defendant, H.M., and other students were riding home on a public school bus from Lowe’s Grove Middle School [453]*453in Durham, North Carolina. A significant amount of horseplay ensued, which eventually resulted in defendant getting on top of H.M. and pinning her down with his crotch in her face. Defendant admittedly began touching H.M.’s breasts and her buttocks without her permission. The next day however, H.M. told school officials that defendant had also pulled out his penis and inserted it into her mouth after pinning her down on the bus. Juvenile petitions were immediately filed against defendant alleging second degree sexual offense and crime against nature.

During the investigation and subsequent trial that followed, H.M. stated on several occasions that defendant had only tried to put his penis in her mouth. Only Tiernay Umstead (“Umstead”), another student on the bus, claimed to have seen defendant’s penis in H.M.’s mouth. In an effort to ascertain Umstead’s credibility and whether she had any possible biases or motives to corroborate H.M.’s accusation, defendant sought a duly subpoenaed school disciplinary record of Umstead. At the beginning of trial, the court declined to release the disciplinary record to defendant at that time due to the possible existence of some confidentiality issues, but stated it would reconsider that decision if Umstead testified. Thereafter, prior to Umstead’s testifying, defendant was allowed a few minutes to view the disciplinary record. Despite defendant’s request, the court refused to admit the disciplinary record into evidence; however, it was sealed and designated as “Exhibit I” for appellate review. At trial, defendant further sought to discredit Umstead by attempting to cross-examine Umstead and the school principal, Marsha Person (“Principal Person”), about the child’s disciplinary record. The State’s objections to those attempts were sustained by the court.

Defendant offered testimony from another student, Mark Ellis, who testified that he had overheard H.M. and three other girls conspiring to make up a story about defendant. However, the trial judge concluded that despite there being some conflict in the evidence,

I don’t think that there is any reason to believe that these girls conspired to make up a story about [defendant]. So the question ... is whether or not [H.M.’s] telling the truth when she says he actually did it.
And whether or not at the time he got on top of her he had the intent to insert his penis in her mouth, I believe that he got carried away with the situation and, in fact, did, and, therefore, I find him guilty beyond a reasonable doubt of both charges ....

[454]*454Defendant was adjudicated a juvenile delinquent on 5 December 2001. A juvenile disposition order was entered on 25 February 2002 sentencing defendant to twelve months of supervised probation. Defendant appeals.

The dispositive issue on appeal pertains to Umstead’s corroboration of H.M.’s accusation against defendant and whether the trial court deprived defendant of the right to confront this corroborative evidence as guaranteed by both the United States and North Carolina Constitutions. Defendant argues his right to confrontation was violated when the court: (1) denied defendant’s request to be provided with a duly subpoenaed school disciplinary record of Umstead at the beginning of trial; (2) refused to allow defendant to cross-examine Umstead with respect to her disciplinary record; (3) refused to allow defendant to cross-examine Principal Person about Umstead’s disciplinary record; and (4) refused to admit Umstead’s disciplinary record into evidence. Of these four arguments, defendant’s brief primarily focuses on his second argument while vaguely mentioning his remaining three arguments. Thus, we shall address his arguments in a similar manner.

“The sixth amendment of the Constitution, made applicable to state criminal proceedings by Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), guarantees the right of an accused in a criminal trial to be confronted with the witnesses against him.’’ State v. Fortney, 301 N.C. 31, 36, 269 S.E.2d 110, 112-13 (1980). However, a defendant’s right to cross-examination is subject to the sound discretion of the court and is therefore not absolute. See State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990); State v. Pallas, 144 N.C. App. 277, 548 S.E.2d 773 (2001). The testimony sought to be elicited on cross-examination “ ‘must be relevant to some defense or relevant to impeach the witness[]’ ” and, in certain instances, may “ ‘bow to accommodate other legitimate interests in the criminal trial processf]’ ” such as the rules of evidence. Id. at 283, 548 S.E.2d at 779 (citations omitted).

Rule 608(b) of the North Carolina Rules of Evidence governs the admissibility of a witness’ specific instances of conduct for the purpose of attacking that witness’ credibility. It provides that a witness’ prior conduct may,

in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthful[455]*455ness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

N.C. Gen. Stat. § 8C-1, Rule 608(b) (2001). Thus, an inquiry regarding a witness’ prior conduct is relevant if it is probative of veracity, and its probative value is not outweighed by the prejudicial effect of the evidence. State v. Leroux, 326 N.C. 368, 382, 390 S.E.2d 314, 324 (1990).

In the case sub judice, defendant sought to cross-examine Umstead about her school disciplinary record in an attempt to ascertain her credibility and whether Umstead had any possible biases or motives. Yet, defendant, having seen the disciplinary record prior to Umstead’s testimony, did not ask Umstead about or direct the trial court’s attention to anything contained therein that was of an impeaching nature. Moreover, the trial court correctly determined that confidentiality concerns are at issue when considering the release of a child’s official student records. See N.C. Gen. Stat. § 115C-402 (2001) (providing that the official records of students in the North Carolina school system are not public and should be kept confidential). The fact that Umstead had a disciplinary record cannot, in and of itself, establish the relevance of its content to determine possible credibility concerns.

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Related

State v. Edmonds
713 S.E.2d 111 (Court of Appeals of North Carolina, 2011)

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Bluebook (online)
584 S.E.2d 86, 159 N.C. App. 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-oliver-ncctapp-2003.