Criminal Practice — Statutory Sexual Offense – Rape Shield Statute – Other Abuser

The Rape Shield Statute, N.C. R. Evid. 412, states that evidence of other sexual behavior of the complainant is generally irrelevant unless it falls within one of four statutory exceptions. Sexual behavior is defined as “sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.” There is no requirement that the “sexual behavior” be consensual; therefore, the trial court did not err when it applied Rule 412 to exclude evidence that—during part of the time the child victim was being sexually abused by her stepfather (defendant)—she was also being sexually abused by a teenager.

We find no error in defendant’s convictions of one count of statutory sexual offense with a child by an adult and six counts of taking indecent liberties with a child.

Although the victim chose not to go into detail about the 15-year-old who abused her, she was consistent that he used to live near her father’s home but no longer lived near her. The victim gave no indication of confusing the abuser’s identity.

While there was an overlap of time during which the victim was being abused by both abusers, she was clear that defendant abused her at her mother’s house and the 15-year-old abused her at her father’s house.

The victim may have been fearful of the 15-year-old and she may have been concerned confessing that abuse would suggest complicity, but those facts do not provide a bridge of inference to defendant’s innocence. There must be additional factual evidence to suggest the sexual abuse at issue was committed by someone other than defendant beyond the existence of an additional abuser. Therefore, the excluded evidence does not fall within the Rule 412(b)(2) exception.

Because the excluded evidence bore no direct relationship to the incident in question the evidence was properly excluded as irrelevant even when viewed beyond the Rule 412 exceptions.

Finally, even if the trial court did err in excluding the evidence, it was not prejudicial. The distinct, idiosyncratic details the victim knew about defendant’s skin disease on his genitalia, paired with the lack of evidence to suggest confusion of abusers, false accusation, or motive, are sufficient to conclude the inclusion of evidence would not have swayed a reasonable jury to a different verdict.

No error.

State v. Washington (Lawyers Weekly No. 012-454-21, 21 pp.) (Fred Gore, J.) Appealed from Wake County Superior Court (Andrew Heath, J.) Kelly Chambers for the state; Dylan Buffum for defendant. 2021-NCCOA-730