State v. Lopez, ___ N.C. App. ___, 826 S.E.2d 498 (Mar. 19, 2019)

In this second-degree rape case involving a victim who had consumed alcohol, the trial court did not abuse its discretion by refusing to allow testimony of defense expert, Dr. Wilkie Wilson, a neuropharmacologist. During voir dire, Wilson testified that one of his areas of expertise was alcohol and its effect on memory. He explained that he would testify “about what’s possible and what’s, in fact, very, very likely and [sic] when one drinks a lot of alcohol.” He offered his opinion that “someone who is having a blackout might not be physically helpless.” The State objected to this testimony, arguing that his inability to demonstrate more than “maybe” possibilities meant that his testimony would not be helpful to the jury. The trial court sustained the objection, determining that the expert would not assist the trier of fact to understand the evidence or to determine a fact in issue in the case. Because the State’s theory of physical helplessness did not rest on the victim’s lack of memory, the expert’s testimony would not have helped the jury determine a fact in issue. Thus, the trial court did not abuse its discretion in excluding this testimony. Even if the trial court had erred, no prejudice occurred given the State’s overwhelming evidence of the victim’s physical helplessness.