State v. Sloan

343 S.E.2d 527 (1986)

STATE of North Carolina v. James Walter SLOAN, Jr.

No. 349A85.

Supreme Court of North Carolina.

June 3, 1986.

*532 Lacy H. Thornburg, Atty. Gen. by Steven F. Bryant, Asst. Atty. Gen., Raleigh, for State.

Benny S. Sharpe, Rockingham, for defendant-appellant.

BRANCH, Chief Justice.

By his first assignment of error, defendant contends that the trial court improperly allowed into evidence the rectal swab and slides taken from the victim and certain related testimony. Defendant argues that the State failed to establish a sufficient chain of custody to adequately identify these items as the ones taken from the victim.

The State's chain of custody evidence with regard to the rectal slides is as follows:

(1) Dr. Clifford James Long testified that he brought the rape kit, State's Exhibit 12, into the operating room with Mrs. Shelton. With cotton swabs taken from the kit, he sampled the victim's vaginal pool and rectum. From the swabs, he made slides which were appropriately identified by him or at his direction. Dr. Long stated that he actually sealed the rectal and vaginal slides and their respective swabs in separate containers, but that the rape kit box itself was sealed by the nurse. He indicated that the box was not sealed at that time because hair samples from Mrs. Shelton remained to be submitted by the nurse who was shaving her head for her craniotomy. Dr. Long stated that he left the operating room before the rape kit box was sealed. Dr. Long identified State's Exhibit 12A as the rectal smears taken from Mrs. Shelton. (2) Operating Room Nurse Marilyn Rogers testified that she observed Dr. Long use the swabs as indicated and make slides. She stated that she closed the rape kit box, State's Exhibit 12, and handed it to Deputy Sheriff Timmy Monroe who was waiting outside the operating room. (3) Deputy Sheriff Monroe testified that he observed Mrs. Shelton in the operating room and received the rape kit box, State's Exhibit 12, from Nurse Rogers. He stated that he placed his identification marks on the box and that it remained in his presence until he gave it to Detective Lanny Patterson. (4) Detective Patterson testified that he obtained the sealed rape kit box from Deputy Monroe, that he placed his identification marks on the box, and that it remained continuously in his possession until he delivered it to SBI Agent Pamela Tulley. (5) Agent Tulley testified that she received the rape kit box, State's Exhibit 12, from Detective Patterson, and placed her identification marks on the box which remained in her custody until she delivered it to SBI forensic serologist Joanna Medlin. (6) Agent Medlin stated that she received the rape kit box from Agent Tulley, placed her identification marks on the box, and removed from it State's Exhibit 12A, identified as "rectal smears collected from the rectum of Sharon Shelton." Agent Medlin further testified that she performed various tests on the *533 rectal slides to determine the presence of spermatozoa.

Defendant argues in particular that the State's chain of custody with regard to the rectal swab and slides is insufficient because Dr. Long testified that he left the operating room before the rape kit box was sealed, that some of the writing on one of the rectal slides was not his, and that Nurse Rogers failed to specifically testify that she observed Dr. Long take a rectal sample or make slides from the rectal swab.

We disagree that these alleged lapses in the rectal swab and slides chain of custody require that this evidence be excluded. The particular problems with the chain mentioned by defendant are easily solved by the testimony of other witnesses. For instance, although Dr. Long admitted that he left the operating room before the rape kit box was sealed, Nurse Rogers testified that she was in the operating room the entire time with the box and that items placed inside the box by Dr. Long were in the same condition when she observed the placement of other items into the box immediately before she closed it and handed the box to Deputy Monroe. Moreover, although Dr. Long stated that some of the writing on one of the rectal slides was not his, he testified that he gave the slides to the nurse who would have written the identification on the slides. He further indicated that State's Exhibits 12A were in fact the slides he made from Mrs. Shelton's rectum. Finally, even though Nurse Rogers failed to state that she observed Dr. Long take a rectal sample and make slides from this sample, Dr. Long specifically testified that he placed a cotton swab into Mrs. Shelton's rectum and prepared two slides from the swab which he sealed in a cardboard container and placed into the rape kit box.

In determining the standard of certainty that is required to show that an object offered is the same as the object involved in the incident and is in an unchanged condition, the trial court must exercise sound discretion. State v. Campbell, 311 N.C. 386, 388-89, 317 S.E.2d 391, 392 (1984). We hold that the trial court did not abuse its discretion by allowing the rectal swab, slides, and related testimony into evidence. In the first place, defendant has provided no reason for believing that this evidence was altered. Based on the detailed and documented chain of custody presented by the State, the possibility that the real evidence involved was confused or tampered with "is simply too remote to require exclusion of this evidence." State v. Grier, 307 N.C. 628, 633, 300 S.E.2d 351, 354 (1983). Furthermore, any weaknesses in the chain of custody relate only to the weight of the evidence, and not to its admissibility. Id.

Also, defendant argues under this assignment of error that even if the chain of custody was sufficiently established by the State, the rectal slides should, nevertheless, have been excluded. Defendant asserts that these slides were irrelevant for any purpose except to show penetration. Dr. Long testified that he inserted the swab into the rectum a centimeter, or onehalf inch. According to defendant, because Dr. Long stated that the swab would gather anything it touched from outside the rectum to a centimeter inside the rectum, the slides did not establish that penetration had occurred and should not have been admitted into evidence.

Again, we disagree that this evidence should have been excluded. Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case. State v. Hannah, 312 N.C. 286, 294, 322 S.E.2d 148, 154 (1984). See also N.C. G.S. § 8C-1, Rule 401 (Cum.Supp.1985). Dr. Long's testimony that the material collected on the rectal swab "came within that one centimeter length of rectum" surely created an inference that the spermatozoa detected on the slides were removed from inside the rectum. This inference was not destroyed by the fact that Dr. Long could not conclusively state that the swab did not also collect material from the rectal opening. Rather, his testimony logically tends to prove that penetration of the rectum did *534 occur. We hold, therefore, that this evidence was relevant and properly admitted by the trial court.

Defendant similarly assigns as error the admission of evidence relating to the vaginal swab and slides made from the victim. However, since this particular vaginal swab and slides showed no evidence of sperm or semen, defendant concedes that he was not prejudiced by the introduction of this evidence. Consequently, this assignment of error is overruled.

Defendant's remaining three assignments of error deal with the sufficiency of the evidence. Defendant contends that the trial court improperly denied his motions to dismiss the charges of first degree rape and sexual offense at the close of the State's evidence and at the close of all the evidence, and his motion to set aside the verdicts as being against the greater weight of the evidence.

With regard to his rape conviction, defendant argues that the State produced no evidence, apart from his statement, that he raped or specifically engaged in vaginal intercourse with the victim. Defendant is correct in his assertion that a naked extrajudicial confession, uncorroborated by other evidence, is not sufficient to support a criminal conviction. State v. Franklin, 308 N.C. 682, 304 S.E.2d 579 (1983). According to the law of this jurisdiction, the State must at least produce corroborative evidence, independent of defendant's confession, which tends to prove the commission of the charged crime. Id. In State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985), this Court expanded the type of corroboration which may be sufficient to establish the trustworthiness of the confession in cases in which independent proof is lacking but where there is substantial independent evidence tending to establish the trustworthiness of the confession. State v. Trexler, ___ N.C. ___, 342 S.E.2d 878 (1986). In Trexler, we reasoned that the pre-Parker rule is "still fully applicable in cases in which there is some evidence aliunde the confession which, when considered with the confession, will tend to support a finding that the crime charged occurred." Id. at 880. Thus, our corpus delicti rule in such cases only requires evidence aliunde the confession which, when considered with the confession, supports the confession and permits a reasonable inference that the crime occurred. It does not require that the evidence aliunde the confession prove any element of the crime. Id.

In the present case, we must apply the pre-Parker rule because there is some evidence aliunde the confession which tends to support a finding that the rape occurred. In the first place, Mrs. Shelton testified that after being beaten to the floor, defendant began removing her shorts and panties as she attempted to push her baby into the next room. Next, George Denning testified that after entering the Shelton home and rendering what first aid he could, he noticed that Mrs. Shelton was naked from the waist down and later spotted her shorts and panties lying on the kitchen floor as if they had been "stripped off her." Furthermore, SBI forensic serologist Medlin testified that she performed a series of tests on Mrs. Shelton's shorts and panties which indicated the presence of semen and spermatozoa on the clothing. Agent Medlin also explained that spermatozoa or semen could not be detected on the vaginal slides or swab prepared by Dr. Long due to the extreme amount of blood present in the vaginal tract.

This evidence in conjunction with defendant's first inculpatory statement that "[he] did it" and his second attempted exculpatory statement that he had consensual sexual intercourse with Mrs. Shelton certainly permits a reasonable inference that the charged crime of rape, including the element of vaginal penetration, occurred. We hold that the State produced sufficient evidence aliunde defendant's admissions to satisfy the requirements of our corpus delicti rule and when considered with defendant's confession is sufficient to survive defendant's various motions to dismiss the rape charge against him.

*535 Defendant further contends that his motions to dismiss the sexual offense charge should have been granted. He argues that because Dr. Long stated on cross-examination that the spermatozoa found on the rectal swab could have been collected from deposits at the rectal opening, rather than from inside the rectum, the State failed to produce evidence that rectal penetration occurred. We disagree.

On a motion to dismiss, the evidence must be taken in the light most favorable to the State, and the State must be given the benefit of every reasonable inference deducible therefrom. State v. Hardy, 299 N.C. 445, 263 S.E.2d 711 (1980). Based on Dr. Long's testimony that the material on the slide came from within one centimeter length of the rectum and Agent Medlin's testimony that spermatozoa were detected on the rectal slide, we hold that the State produced substantial evidence of the element of rectal penetration. See generally State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Thus, the trial court properly denied defendant's motions to dismiss the sexual offense charge against him.

For reasons stated, defendant received a fair trial free of prejudicial error.

NO ERROR.

BILLINGS, Justice, concurring in part and dissenting in part.

I dissent from the majority opinion insofar as it holds that the evidence was sufficient to support the jury's verdict of first degree sexual offense.

The only evidence relating to the commission of a sexual act (as opposed to sexual intercourse) by the defendant upon the victim was the testimony of SBI Agent Joanna Medlin that one of the two slides prepared by Dr. Long from material collected on a rectal swab contained spermatozoa. Dr. Long, the obstetrician-gynecologist who examined the victim on 9 August 1984, testified as follows about the collection of the material on the rectal swab:

Q. What did you do with the swab with reference to the rectum? A. I took a cotton swab and introduced it into the rectum about a centimeter, then took it out and made two slides and then put the cotton swab itself into a separate package and submitted them both. .... Q. When you take a rectal swab, you insert the swab into the opening; is that correct? A. Yes. Q. And you just go how far in? A. About a centimeter. Q. And would you give us that inConvert that into inches? A. About ½ an inch. Q. Of course, that swab would gather anything it touched from the outside of the rectum down into the area of the depth of the rectum that you went? A. That's right. Q. And any collected material would have been collected from the outside of the rectum or the opening of the rectum down to the depth of the centimeter; is that right? A. Yes. Q. And you did two of those? A. Yes. Q. And so there is no way to determine on a slide where that material on the slide actually came from, is that correct, what portion of the examination area? A. It came within that one centimeter length of rectum. Q. From the outside to one centimeter depth? A. That's correct.

There was evidence that semen was found on the victim's clothing. Although she was unable to detect sperm or semen on slides made from swabs of the victim's vaginal tract, Agent Medlin testified that "[h]ad spermatozoa been present, it very *536 easily could have been washed out of the vaginal tract." The rectal slides were not tested for semen. Dr. Long did not testify that he took any measures, such as cleaning the rectal opening before inserting the swab, which would have prevented any sperm located on the outside of the rectum from being picked up by the swab. Therefore, the fact that sperm was picked up by the cotton swab does not establish that the sperm was located inside the rectum. The conviction of sexual offense is based solely on an inference of penetration resulting from the presence of sperm on the rectal slide. If that sperm necessarily came from inside the rectum, that inference would be justified. However, since the evidence shows that it is equally as likely that the sperm picked up by the swab and placed on the rectal slide came from outside the rectum as from inside, there is insufficient evidence to support a finding of the premise upon which the inference is based, i.e., that sperm was located inside the victim's rectum. "A resort to a choice of possibilities is guesswork not decision." Boyd v. Harper, 250 N.C. 334, 339, 108 S.E.2d 598, 602 (1959).

Although there was no direct evidence of vaginal penetration other than the defendant's confession that he and the victim "started having sex, intercourse with each other," the majority has relied upon that statement as an admission of vaginal penetration in support of the rape charge. I agree that the confession to "sex, intercourse" may reasonably be understood to refer to vaginal intercourse. The statement cannot reasonably be used, and the majority does not attempt to use it, to also support a finding of anal intercourse.

I would therefore hold that the evidence of first degree sexual offense was insufficient to support the conviction.

I concur in the remainder of the majority opinion.

EXUM and FRYE, JJ., join in this opinion.