Criminal Practice – Statutory Rape & Incest – Expert Testimony – Secondary Gain – Closing Argument – Victim’s Disruption

Listen to this article

State v. Dye. (Lawyers Weekly No. 10-07-1010, 14 pp.) (Donna S. Stroud, J.) Appealed from Durham County Superior Court. (Orlando F. Hudson, J.) N.C. App. Click here to read the full text of the opinion.

Holding: Even if an expert should not have been allowed to testify that the victim did not appear to be motivated by secondary gain, defendant failed to object to the testimony, and its admission was not plain error.

We uphold defendant’s convictions of two counts of statutory rape, two counts of incest of a child, second-degree rape and incest.

Beyond the victim’s testimony, the evidence included her mother’s testimony regarding defendant’s abnormal relationship with both his biological daughter and the victim and her personal observation of defendant having “penile to vaginal” intercourse with the victim, as well as defendant’s own statements that he had been sexually active with the victim for “two years” and that “he was a sick man.”

After the mother discovered defendant with the victim and removed defendant and his belongings from the house, defendant went to the Dominican Republic from where he later had to be extradited for purposes of prosecution. This additional evidence was such that it is unlikely that the jury would have reached a different conclusion absent the expert’s testimony.

During defense counsel’s closing argument, the victim interrupted at least twice. The first time, she told defense counsel, “You shut up, how dare you say I’m unbelievable? I can’t listen to this. Those were his words coming out of his mouth. How dare he torture me more. Why is he doing this to me?”

After the victim’s initial outburst, the trial court removed the jury from the courtroom and specifically instructed that the victim must remain quiet, and the victim agreed. After a second outburst, the trial court had the victim removed completely from the courtroom until after defense counsel had finished his closing argument and provided defendant an opportunity to request any remedial measures, including mistrial.

Defendant declined to make any requests until after the jury had returned its verdict. As the trial court took immediate action to respond to the outburst, eventually banned the victim from the courtroom and provided defendant with an opportunity to make any motions or request further instructions, we conclude that the trial court did not abuse its discretion in denying defendant’s motion for a mistrial.

No error.