Criminal Practice – Rape – Evidence – Prior Interactions – Closing Argument – ‘Hunter’

State v. Foust (Lawyers Weekly No. 12-07-0430, 22 pp.) (Robert N. Hunter Jr., J.) Appealed from Alamance County Superior Court. (James E. Hardin Jr., J.) N.C. App. Full-text opinion.

Holding: During his closing arguments, defendant questioned the victim’s failure to call the police and indicated that she would not have been afraid of defendant. Thus, the victim’s state of mind was relevant. A previous altercation between defendant and a male visitor to the victim’s home and an incident in which defendant called the victim a “whore” and a “slut” demonstrate defendant’s aggression and support the victim’s account of her state of mind — that she did not report the rape because she was afraid of defendant.

We find no error in defendant’s conviction of first-degree rape.

In its closing argument, the state compared defendant to a hunter or beast of the field, describing how animals hunt their prey to illustrate its theory of the rape. There was no characterization of defendant himself, and the analogy was limited to non-inflammatory statements. The trial court did not err in failing to intervene ex mero motu.

Also in its closing argument, the state referred to some evidence as uncontradicted. Since the evidence could have been contradicted by other defense witnesses or through cross-examination of prosecution witnesses, the state was not referring to defendant’s failure to testify. The trial court did not abuse its discretion or err in failing to intervene ex mero motu.