State v. Ball, COA 22-1029, ___ N.C. App. ___ (Jan. 16, 2024)

In this Macon County case, defendant appealed his convictions for forcible rape, kidnapping, burglary, assault on a female, and interfering with an emergency communication, arguing error in (1) denying his motion to dismiss the kidnapping charge, (2) allowing expert testimony about a sexual assault nurse examination (“SANE”) from a nurse who did not conduct the examination, and (3) failing to intervene ex mero motu in response to the prosecutor’s statements during closing argument. The Court of Appeals found no error. 

In May of 2019, defendant appeared at the door of the victim’s home, telling her that his car was stuck in a ditch and he needed a place to stay for the night. Defendant was known to the victim through previous employment, and she offered her guesthouse to defendant for the night. According to the victim’s testimony, defendant then reappeared at her door asking for a cigarette lighter, barged in when she opened the door, and raped her on her bed. The victim eventually escaped and found officers from the sheriff’s department, who arrested defendant as he slept in the victim’s bed. The victim underwent a SANE the next morning. At trial, defendant moved to dismiss the kidnapping charge, arguing the State did not admit evidence he confined the victim separate from his alleged sexual assault; the trial court denied the motion. The State called a forensic nursing supervisor to testify regarding the SANE report, although she was not the nurse that performed the SANE. Defendant did not object to the nurse expert’s testimony, and he was subsequently convicted of all charges. 

Finding no error in (1), the Court of Appeals explained that “[i]n rape cases, this Court has previously determined a separate charge of second-degree kidnapping requires a defendant’s restraint or confinement of the victim to be separate from that necessary to accomplish the rape.” Slip Op. at 10. The court found just such evidence here, noting that the struggle between defendant and the victim began as she fled from him at the door, then moved to the bedroom, where defendant restrained her on the bed prior to the sexual assault. 

Moving to (2), the court first gave an overview of the applicable Confrontation Clause issues, noting “an expert witness may properly base her independent opinion ‘on tests performed by another person, if the tests are of the type reasonably relied upon by experts in the field,’ without violating the Confrontation Clause.” 15, quoting State v. Fair, 354 N.C. 131, 162 (2001). Here, the nurse expert’s qualifications were established, and she testified about her independent conclusions after reviewing the SANE, subject to cross-examination by defendant. The court found no error in admitting the SANE and expert testimony under these circumstances. 

Finally, the court found no error in (3), explaining “the Prosecutor’s closing statements were consistent with the record, as his arguments highlighted the differences between Defendant’s statements to the police two days after the incident, which were properly admitted at trial, and Defendant’s own testimony during his trial.” Id. at 20. Because the prosecutor’s statements were simply a credibility argument against defendant’s testimony, the court did not find an error prejudicing defendant.