State v. West, 255 N.C. App. 162 (Aug. 15, 2017)

When a trial court properly determines, pursuant to Evidence Rule 403, that the probative value of evidence about a victim’s sexual history is substantially outweighed by its potential for unfair prejudice, the trial court does not err by excluding the evidence, regardless of whether it falls within the scope of the Rape Shield Rule. The defendant was convicted of second-degree sexual offense. On appeal he argued that the trial court erred by denying his ability to cross-examine the victim regarding the victim’s commission of sexual assault when he was a child. Specifically, the victim had told an officer that he had sexually assaulted his half-sister when he was eight or nine years old and thereafter was placed in a facility until he reached 18 years old. The defendant asserted that the victim’s statement about this assault was admissible for impeachment because it was inconsistent with the victim’s previous statements to law enforcement about how and when he was removed from his home as a child. The trial court found that the victim’s statement about sexually assaulting his sister was evidence of prior sexual behavior protected by the Rape Shield Law and also was inadmissible because any probative value is substantially outweighed by the likelihood of unfair prejudice and confusion to the jury. The court declined to address the defendant’s argument that a prior sexual assault committed by a victim is not protected under the Rape Shield law, concluding instead that the trial court properly excluded the evidence under Rule 403. The sexual behavior at issue occurred more than a decade earlier and involved no factual elements similar to the charges in question. The incident is disturbing and highly prejudicial and the circumstances of the victim’s removal from his family home as a child are of remote relevance to the offense charged. Moreover, other evidence, including testimony that the defendant’s DNA matched a swab taken from the victim shortly after the assault, render the victim’s inconsistent statements about facts less relevant to the contested factual issues at trial, namely the defendant’s denial that any sexual encounter occurred. The court also rejected the defendant’s argument that exclusion of this evidence impermissibly prevented the jury from hearing evidence that the victim was not a virgin of the time of the offense, contrary to his statement to the defendant that he was a virgin.