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Home / Courts / Criminal Practice – Statutory Rape – Expert Witnesses – Computer Forensics Expert – Destroying Evidence – Physician – Healing Time – Plain Error Review

Criminal Practice – Statutory Rape – Expert Witnesses – Computer Forensics Expert – Destroying Evidence – Physician – Healing Time – Plain Error Review

State v. Jennings. (Lawyers Weekly No. 11-07-0073, 15 pp.) (Robert C. Hunter, J.) Appealed from Cabarrus County Superior Court. (Tanya T. Wallace, J.) N.C. App. Click here for the full text of the opinion.

Holding: Since law enforcement officers are permitted to testify about the practices criminals use in concealing their identity or criminal activity, an officer who was accepted as an expert in computer forensics could explain why no evidence of communication with the victim was found on defendant’s computer equipment.

We find no error in defendant’s convictions of three counts of statutory rape, two counts of statutory sex offense and one count of taking indecent liberties with a minor.

The state elicited testimony from Sergeant Schiele to explain why, despite the victim’s testimony that she and defendant routinely communicated through instant messaging and their MySpace web page and that defendant took digital photographs of her vaginal area during sex, no evidence of these communications or photographs were recovered from defendant’s computer equipment, camera or storage devices.

As Sgt. Schiele’s expertise included training in areas such as “advance data recovery and analysis,” “cyber crime investigation” and “on-line crime scene investigation,” his testimony addressing how a person might hide or destroy incriminating information on a computer or provide false personal information in order to avoid detection was within the scope of his expertise.

Even assuming error in the admission of Sgt. Schiele’s testimony, the state presented overwhelming other evidence of defendant’s guilt in the form of the victim’s detailed description of the sexual acts committed by defendant, defendant’s boss’ testimony concerning a cell phone conversation between defendant and the victim in which defendant described performing sexual acts with her and defendant’s admission to having a relationship with the 14-year-old victim, as well as evidence that the victim, defendant’s ex-wife and his girlfriend were all diagnosed with the same sexually transmitted bacterial infection.

In addition to that evidence, Sgt. Schiele testified that subscriber information for a “Pomp Daddy” MySpace web page indicated that the account was created by someone with the e-mail address “[email protected]” On cross-examination, defendant admitted to creating [email protected] as his personal e-mail account.

Defendant’s admission corroborates the victim’s testimony that she and defendant communicated during their “relationship” through the use of a MySpace web page created by defendant. Thus, assuming that the trial court erred in admitting Sgt. Schiele’s answers to the prosecutor’s hypothetical questions, we conclude that the error did not have a probable impact on the jury’s verdict.

A physician’s testimony was not an opinion on the credibility of the victim when she explained that, one year after sexual abuse, any tear in the victim’s hymen would probably have healed and would be undetectable upon physical examination.

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