State v. Scarborough

374 S.E.2d 620, 92 N.C. App. 422, 1988 N.C. App. LEXIS 1069
CourtCourt of Appeals of North Carolina
DecidedDecember 30, 1988
DocketNo. 881SC140
StatusPublished
Cited by1 cases

This text of 374 S.E.2d 620 (State v. Scarborough) 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
State v. Scarborough, 374 S.E.2d 620, 92 N.C. App. 422, 1988 N.C. App. LEXIS 1069 (N.C. Ct. App. 1988).

Opinions

ORR, Judge.

The alleged facts are that on 18 January 1987, the prosecu-trix was visiting with her aunt, the mother of defendant. After having been at her aunt’s home all afternoon, the prosecutrix decided to go home and asked defendant for a ride. On the ride home, defendant turned down a road which was described as deserted and dark in a cut-out area of the woods. Defendant told the prosecutrix that he had something to “show” her.

The prosecutrix noticed that defendant was “playing with his private parts” and that he had taken his penis out. Defendant got out of the jeep and silently walked around to the passenger side where the prosecutrix was. He opened her door and touched her about her vaginal area through her pants and underpants. After unzipping his pants and pulling down the prosecutrix’s pants and underpants, defendant had vaginal intercourse with her.

The prosecutrix testified that although she did not scream or fight defendant because she was scared and thought it would be useless, she did tell him that “we shouldn’t . . . .” Defendant’s response indicated that they would “do it sometime anyway.”

Defendant took the prosecutrix home, dropped her off and told her “good night.” Her father and stepmother were at home and awake but she did not mention the incident. It was not until [424]*424several days later that she told a girlfriend and defendant’s estranged wife. Months later she told her boyfriend, who is now her husband. At his insistence, the prosecutrix told her family and spoke with a police officer about the occurrence. The prosecu-trix was interviewed by Deputy Cheesman about the incident in March of 1987. Defendant was arrested and charged as previously indicated.

Several articles appeared in a local newspaper about defendant’s various sex related charges and convictions between the period of 10 June 1986 and 15 September 1987. Defendant denied all allegations of wrongdoing. At trial, defendant’s witnesses testified that the prosecutrix was taken home by her father and that defendant stayed at his parents’ home all evening until he went to his home for the night.

I.

The first issue before this Court is whether the trial court erred in denying defendant’s motion for a change of venue due to substantial pretrial publicity that prevented defendant from receiving a fair and impartial trial.

In the absence of a showing by the defendant that the lower court “grossly]” abused its discretion on this matter, there can be no reversal of its decision. State v. Matthews, 295 N.C. 265, 279, 245 S.E. 2d 727, 735 (1978), cert. denied, 439 U.S. 1128 (1979).

The test for whether a change of venue should be granted is whether the defendant has established “that it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed.” State v. Jerrett, 309 N.C. 239, 255, 307 S.E. 2d 339, 347 (1983).

In the instant case, defendant has neither alleged nor proven that the information in the media was inaccurate or untrue. Moreover, defendant did not demonstrate that it was likely that the jurors would improperly base their decisions on any pretrial evidence of which they were aware.

In addition, defendant produced no evidence on the circulation of newspapers containing articles about him, and there was [425]*425no evidence of how the articles had impacted on the community’s opinion of him. Defendant offered testimony from one witness stating that in her opinion defendant would not receive a fair trial in the county. This witness also stated, however, that she personally did not know of any talk in the community about the defendant’s circumstances.

Furthermore, defendant presented no evidence showing how the comments of a prospective jury member tainted the opinions of the other members as alleged. Veniremen were liberally removed by the defense. None of the remaining members indicated that they would have difficulty giving defendant the fair trial to which he was entitled. In the absence of some credible proof of prejudice to defendant we find no ground for reversing the lower court’s decision with respect to this issue.

II.

Next, we will address whether the trial court properly permitted a prior statement of the prosecutrix which defendant alleges also included additional, inconsistent and noncorroborating matters.

Initially, it must be noted that “[t]rial judges are granted broad discretion in admitting evidence which goes to the credibility of witnesses.” State v. Covington, 290 N.C. 313, 337, 226 S.E. 2d 629, 645 (1976). (Citation omitted.) Reversal of a decision, therefore, may be had only upon a sufficient showing of an abuse of discretion. Our Supreme Court considered a similar. issue in State v. Ramey, 318 N.C. 457, 469, 349 S.E. 2d 566, 573 (1986). In Ramey, the Court stated that:

[i]n order to be corroborative and therefore properly admissible, the prior statement of the witness need not merely relate to specific facts brought out in the witness’s testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony.

Furthermore, “[t]o be admissible as corroborative evidence, testimony of a prior statement by the witness sought to be corroborated does not have to be precisely identical to such prior testimony of that witness.” State v. Madden, 292 N.C. 114, 128, 232 S.E. 2d 656, 665 (1977).

[426]*426Deputy Cheesman’s testimony did corroborate the prosecu-trix’s statements. He testified that the prosecutrix told defendant “I don’t really want to do this.” Defendant claims that statement is inconsistent with the prosecutrix’s testimony that they shouldn’t have sex. The two statements are not so dissimilar as to establish an abuse of discretion by the trial court in allowing the former statement into evidence as corroborative testimony. Based upon the foregoing facts, we conclude that there was no error as to this issue.

HH I — 1 I — 1

Likewise, we find that there is little merit in defendant’s challenge to the jury instructions. In those instructions the trial court stated that:

[AJnything that the witness, Linda Beasley, might have said to this officer at another time is not to be considered as evidence as what was said .... If you find that it was, in fact, said, then you may consider it. If you find it corroborates her testimony at this trial or if it conflicts her testimony at this trial, then you may consider this ....

Defendant argues that the instruction allows the jury to consider the statement as substantive. However, we find that in considering the entire instruction contextually, the trial court made it clear that the evidence was not to be considered for substantive purposes. See State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976).

IV.

Next, we are asked to consider whether defendant’s motion to dismiss should have been granted as to the second-degree rape charge due to an insufficiency of the evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
374 S.E.2d 620, 92 N.C. App. 422, 1988 N.C. App. LEXIS 1069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scarborough-ncctapp-1988.