Preview:

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-408 NORTH CAROLINA COURT OF APPEALS Filed: 5 October 2004 STATE OF NORTH CAROLINA v. ALVIE LEE FURR Stanly County Nos. 95 CRS 6588 97 CRS 7196 97 CRS 7197

Appeal by defendant from judgments entered 26 March 1998 by Judge Judson D. DeRamus, Jr., in Stanly County Superior Court. Heard in the Court of Appeals 4 October 2004. Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State. Bruce T. Cunningham, Jr., for defendant-appellant. TYSON, Judge. On 17 November 1997, Alvie Lee Furr ("defendant") was indicted on charges of first degree statutory rape, taking indecent

liberties with a child and first-degree statutory sexual offense. A jury convicted defendant on all charges. Defendant's petition We find no

for writ of certiorari was granted on 13 November 2003. error. I. Background

The State's evidence tended to show that the victim was ten years old at the time of the trial and eight years old at the time of the events alleged in the indictment. Defendant was the

-2boyfriend of the victim's mother. The victim testified that on a

Sunday after her grandmother's birthday party, the defendant asked her to help him fold some clothes. couch. Her mother was asleep on the

The victim went into her mother's bedroom with defendant. The victim testified that defendant told her it was called "French

He told her to lie on the bed. kissed her with his tongue,

Kissing," and licked her between her legs. Defendant threatened to beat her if she told anybody. The victim also testified that on

another occasion, defendant showed her a movie in which there were naked people lying on top of each other and a man in the movie licked another woman "on the boobies." The victim initially denied that anything further had

happened, but later testified that defendant put his penis inside her between her legs on another occasion and that it hurt. The

victim also testified that defendant had made her lick his penis at another time and that he ejaculated. Dr. Elaine Coats ("Dr. Coats"), a pediatrician with Stanly Medical Services, testified as an expert in pediatric medicine. Dr. Coats testified that the victim suffered "a tear in the vaginal orifice that was now healed;" that she could state to a reasonable medical certainty that the victim's vagina had been penetrated; and that her findings were consistent with what the victim had told her had happened: with her. On 26 March 1998, defendant was convicted of first-degree rape, taking indecent liberties with a child, and first-degree that defendant had engaged in sexual intercourse

-3sexual offense. Defendant was sentenced to a term of 336 to 413

months imprisonment for the rape conviction, a concurrent term of twenty-one to twenty-six months imprisonment for taking indecent liberties, and a concurrent term of 336 to 413 months imprisonment for the charge of first-degree sexual offense. This Court granted

defendant's petition for writ of certiorari to review the judgments on 13 November 2003. II. Issues

Defendant argues that the trial court erred by allowing Dr. Coats to testify that a penetration of the victim's vagina had occurred. III. Relevant Evidence

Defendant contends that Dr. Coats's testimony was irrelevant and more prejudicial than probative. Relevant evidence has been

defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." has stated: As a general rule, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." The exclusion of evidence under this rule "is within the trial court's sound discretion . . . . Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." N.C. Gen. Stat.

Download 04-408-5.pdf

South Carolina Law