State v. Cataldo ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute
    controlling legal authority. Citation is disfavored, but may be permitted in accordance
    with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
    NO. COA13-1343
    NORTH CAROLINA COURT OF APPEALS
    Filed: 3 June 2014
    STATE OF NORTH CAROLINA
    v.                                     Rockingham County
    Nos. 11 CRS 50300-01, 50518
    FRANK CATALDO
    Appeal by defendant from judgment entered 8 May 2013 by
    Judge Lindsay R. Davis, Jr. in Rockingham County Superior Court.
    Heard in the Court of Appeals 8 April 2014.
    Roy Cooper, Attorney General, by Laura E. Crumpler, Special
    Deputy Attorney General, for the State.
    Staples Hughes, Appellate Defender, by Charlesena Elliott
    Walker,   Assistant Appellate  Defender,  for  defendant-
    appellant.
    STEELMAN, Judge.
    Where   evidence     that    defendant     contends    was    excluded     at
    trial was actually admitted by the trial court, that argument is
    dismissed.      Where the trial court made an interlocutory ruling
    on the admissibility of certain evidence, leaving the door open
    for the evidence to be reconsidered later, defendant abandoned
    this   argument     by    failing    to   make    a   further     offer    of   the
    -2-
    evidence.         Even    assuming       arguendo        that    this       evidence     was
    improperly       excluded,       defendant       has    failed   to        show   that   its
    admission at trial would have resulted in a different verdict.
    I. Factual and Procedural Background
    T.B. was born 1 October 1996, to Robin and Ken.                             Robin and
    Ken   had   another      child     as    well.         Robin   and    Ken    subsequently
    separated, and the children lived with Ken.                          Robin subsequently
    met Frank Cataldo (defendant), who moved into Robin’s apartment
    in 2003.     Robin and defendant had two sons.                   At the end of 2009,
    Robin’s two children by Ken came to live with them.
    In    January      2011,    T.B.    told     her    guidance         counselor     that
    defendant had sex with her.                 The guidance counselor contacted
    the Department of Social Services (DSS), which in turn contacted
    police.     Detective Ronnie Markham met with T.B. at her school,
    and she repeated the allegations.                 Defendant was arrested.
    On    18   February        2011,    Dr.    Gina     Martin,      a    physician     at
    Alamance Regional Hospital, performed an examination on T.B. and
    took pictures of her genital area.                        The examination revealed
    that this area was more swollen than it should have been.                                Such
    swelling is usually caused by rubbing the area.                         The examination
    also revealed a defect in T.B.’s hymen, a split in the edge at
    the bottom, indicative of vaginal penetration.
    -3-
    Defendant   was     charged     with    two   counts   of   statutory   sex
    offense   and   two     counts   of   statutory      rape.      At   trial,   T.B.
    testified that defendant penetrated her vaginally “[a] lot of
    times[.]”     Dr. Martin testified as an expert witness as to the
    defect in T.B.’s hymen.          The jury found defendant guilty of both
    counts of statutory sex offense and one count of statutory rape.
    The   court     consolidated        the      statutory    sex     offenses     for
    sentencing, and imposed an active sentence of 240-297 months
    imprisonment,     and    a    consecutive      active    sentence    of   240-297
    months for the statutory rape.                The court also ordered that
    defendant register as a sex offender for thirty years upon his
    release from prison.
    Defendant appeals.
    II. Standard of Review
    Although   the  trial  court’s   rulings  on
    relevancy technically are not discretionary
    and therefore are not reviewed under the
    abuse of discretion standard applicable to
    Rule 403, such rulings are given great
    deference on appeal. Because the trial court
    is better situated to evaluate whether a
    particular piece of evidence tends to make
    the existence of a fact of consequence more
    or less probable, the appropriate standard
    of review for a trial court’s ruling on
    relevancy pursuant to Rule 401 is not as
    deferential as the ‘abuse of discretion’
    standard which applies to rulings made
    pursuant to Rule 403.
    -4-
    Dunn v. Custer, 
    162 N.C. App. 259
    , 266, 
    591 S.E.2d 11
    , 17 (2004)
    (citation and quotation marks omitted).
    “We review the trial court's rulings as to relevance with
    great deference. . . . We believe that the same deferential
    standard      of   review    should     apply    to     the    trial    court's
    determination      of   admissibility    under       Rule   412.”      State   v.
    Khouri, 
    214 N.C. App. 389
    , 406, 
    716 S.E.2d 1
    , 12-13 (2011).
    “When a defendant wishes to present evidence falling within
    the scope of Rule 412, he must first apply to the court for a
    determination of the relevance of the sexual behavior to which
    it relates. The trial court is then required to conduct an in
    camera hearing . . . to consider the proponent’s offer of proof
    and the argument of counsel . . . . The defendant bears the
    burden   of   establish[ing]     the   basis    of    admissibility     of   such
    evidence.” State v. Cook, 
    195 N.C. App. 230
    , 237, 
    672 S.E.2d 25
    ,
    30 (2009) (citations and quotation marks omitted).
    III. Excluding Witness Testimony
    Defendant contends that the trial court erred in excluding
    the testimony of T.B. and Dr. Martin concerning T.B.’s prior
    sexual activity.        We disagree.
    At trial, defendant sought to elicit testimony concerning
    T.B.’s alleged sexual contact with her father when T.B. was four
    -5-
    years     old.          Defendant      argued    that      this     constituted      an
    alternative explanation for the defect in T.B.’s hymen, and to
    impeach T.B.’s testimony that she hadn’t been in sexual contact
    with anyone other than defendant.                The trial court conducted an
    in   camera      hearing    pursuant      to    Rule    412.       The   trial     court
    sustained the State’s objection to the evidence of T.B.’s sexual
    encounters with her father.
    Subsequently,         the   State      tendered     Dr.   Gina     Martin,    who
    examined T.B. in 2011, as an expert in the field of physical
    examination of children where there were allegations of sexual
    abuse.     Dr. Martin testified to the existence of the defect in
    T.B.’s hymen, which was likely caused by vaginal penetration.
    On   cross-examination,           defendant     sought     to     elicit     testimony
    concerning alleged masturbation by T.B. with a hairbrush, which
    might have been an alternative explanation for the defect in
    T.B.’s hymen.       The court held a Rule 412 in camera hearing, and
    concluded that this testimony was admissible.
    On appeal, defendant contends that the trial court erred in
    excluding     T.B.’s       testimony    of     her     sexual     contact    with    her
    father,    and     in    excluding     Dr.     Martin’s    testimony        concerning
    T.B.’s masturbation.          We first note that the trial court did not
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    exclude the testimony concerning masturbation, and we therefore
    dismiss that argument.
    With regard to the first portion of defendant’s argument,
    concerning T.B.’s contact with her father, we note          that the
    trial court correctly held an in camera hearing pursuant to Rule
    412 of the North Carolina Rules of Evidence.    Rule 412 provides
    that:
    Notwithstanding any other provision of law,
    the sexual behavior of the complainant is
    irrelevant to any issue in the prosecution
    unless such behavior:
    (1) Was between    the   complainant   and   the
    defendant; or
    (2) Is evidence of specific instances of
    sexual behavior offered for the purpose of
    showing that the act or acts charged were
    not committed by the defendant; or
    (3) Is evidence of a pattern of sexual
    behavior so distinctive and so closely
    resembling the defendant's version of the
    alleged encounter with the complainant as to
    tend   to   prove   that  such   complainant
    consented to the act or acts charged or
    behaved in such a manner as to lead the
    defendant reasonably to believe that the
    complainant consented; or
    (4) Is evidence of sexual behavior offered
    as the basis of expert psychological or
    psychiatric opinion that the complainant
    fantasized or invented the act or acts
    charged.
    -7-
    N.C. R. Evid. 412(b) (2013).               At trial, defendant contended that
    the testimony concerning T.B.’s sexual contact with her father
    fell    under     the    exception        set   forth         in   Rule    412(b)(2),     as
    evidence   that        the   acts    committed         were    not    committed   by     the
    defendant; specifically that the defect in T.B.’s hymen may have
    been caused by someone other than defendant.
    Our Supreme Court has held that evidence which “provide[s]
    an alternative explanation for the medical evidence presented .
    . . falls within exception (b)(2) of Rule 412.”                           State v. Ollis,
    
    318 N.C. 370
    , 376, 
    348 S.E.2d 777
    , 781 (1986).                             We agree that
    the    excluded    testimony         in   the   instant        case    fell   within     the
    exception to Rule 412.
    However, in the instant case, the trial court conducted an
    in camera hearing as to T.B.’s testimony concerning her father’s
    conduct.        Although it sustained the State’s objection to the
    testimony,      the     trial   court      observed       that       subsequent   witness
    testimony would determine “whether I’ll allow it later.”                                 The
    trial court’s ruling on the alleged sexual contact with T.B.’s
    father   was     not    a    final    ruling      on    the    admissibility      of    this
    evidence, but was an interim or interlocutory ruling.                                  At no
    subsequent time did defendant attempt to make a further offer of
    this evidence.           Because defendant             failed to raise the issue
    -8-
    anew, it is deemed abandoned.         See State v. Williams, 
    355 N.C. 501
    , 555-56, 
    565 S.E.2d 609
    , 641 (2002) (holding that, where the
    trial court held defendant’s motion open, and defendant failed
    to seek a further ruling, that issue was abandoned).
    Even   assuming    arguendo    that    the     trial    court    erred    in
    excluding the testimony, defendant has not demonstrated that the
    exclusion of this evidence prejudiced him before the jury.                    T.B.
    testified concerning defendant’s repeated              sexual contact with
    her in 2010.       This testimony was admitted without objection.
    Defendant does not contend that the excluded evidence showed
    that the acts for which he was charged were committed by another
    person,   but   rather   that   another     person    may     have    had   sexual
    contact with T.B. many years earlier.            Defendant’s argument that
    the excluded testimony would have explained the existence of the
    defect in T.B.’s hymen does not challenge T.B.’s testimony as to
    defendant’s conduct.
    We further note that the trial court admitted evidence of
    an   alternative    explanation     for    the   defect      in   T.B.’s    hymen;
    specifically,      Dr.    Martin’s        testimony       concerning        T.B.’s
    masturbation.      This evidence was temporally close to the alleged
    conduct of the defendant, unlike the excluded testimony, which
    dealt with events that allegedly occurred many years prior to
    -9-
    the conduct of defendant.          However, even with the evidence of
    recent masturbation, the jury found defendant guilty.                 Defendant
    cannot     establish,    absent     the     exclusion     of   the    testimony
    concerning    T.B.’s    sexual    contact    with   her   father     many   years
    earlier,    that a different result would have been reached at
    trial.
    We hold that any error which may have resulted from the
    exclusion of this testimony was harmless.
    NO ERROR.
    Judges HUNTER, Robert C., and BRYANT concur.
    Report per Rule 30(e).
    

Document Info

Docket Number: 13-1343

Filed Date: 6/3/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021