State v. Farmer

304 S.E.2d 765 (1983)

STATE of North Carolina, Dan Miles, Child Support Enforcement Officer, ex rel. v. Osie FARMER, Jr.

No. 826DC946.

Court of Appeals of North Carolina.

July 19, 1983.

*766 Gillam, Gillam & Smith by Lloyd C. Smith, Jr., and Roswald B. Daly, Jr., Windsor, for plaintiff-appellee.

Law Firm of Carter W. Jones by Carter W. Jones, Kevin M. Leahy and Charles A. Moore, Ahoskie, for defendant-appellant.

EAGLES, Judge.

Defendant assigns as error the trial court's exclusion of testimony concerning 1) Sharon Outlaw's relationship with Earl Jones, 2) the babies' period of incubation after birth, 3) the separate amount each of Ms. Outlaw's children were receiving in AFDC support, and 4) the reason for an earlier default judgment against defendant having been set aside. If the excluded testimony above had no logical tendency to prove the facts in issue, i.e., that defendant was the natural father of the twins and that Ms. Outlaw had been receiving AFDC payments for their support, then the evidence defendant sought to introduce was inadmissible. See H. Brandis, Jr., 1 Brandis on North Carolina Evidence § 77 (2d rev. ed. 1982).

We first reject defendant's contention that he was prejudiced by the exclusion of testimony concerning Ms. Outlaw's relationship with Earl Jones. On this point we note that

It would not be competent to show that the prosecutrix, years before the birth of the child, had intercourse with some one else. Nor would it have been competent to prove that the prosecutrix at some other time had such intercourse, when it was apparent from the laws of nature that the child could not be the result of such intercourse. This would be incompetent because it did not tend to prove or disprove the affirmative of the issue. To admit such evidence would only be to allow the defendant to attack the character of the prosecutrix in a way not allowed by law.

But it seems to us that when the defendant offered to prove that another *767 man had intercourse with the prosecutrix at the time when by the course of nature the child must have been begotten, this evidence bears directly upon the issue and is competent.

State v. Warren, 124 N.C. 807, 810, 32 S.E. 552, 553 (1899); see also Levi v. Justice and Searcy v. Justice, 27 N.C.App. 511, 219 S.E.2d 518 (1975).

Defendant was permitted to ask Ms. Outlaw who she had had sexual intercourse with in November 1977, to which she answered "Earl Jones." Defendant was also permitted to ask Ms. Outlaw if she had sexual intercourse with Earl Jones in December 1977, to which she responded in the negative. Defendant was allowed to question her as to the last time she saw Earl Jones, to which she responded "Before ThanksgivingNovember, 1977." It was not prejudicial error for the trial court to sustain plaintiff's objections to defendant's questions concerning the length of time Ms. Outlaw and Mr. Jones had been dating, how many times she had had sexual intercourse with Mr. Jones, and where Mr. Jones lived. The relevant information as to Ms. Outlaw's relationship with Mr. Jones was adequately elicited by defendant's other questions. No competent evidence would have been elicited by the questions to which the court sustained objections.

The trial court also sustained plaintiff's objections to defendant's question to Ms. Outlaw concerning whether the twins had been placed in incubators after birth. Assuming arguendo that that testimony would have been relevant to the issue of whether defendant was the natural father, we find no merit to defendant's assertion that the court committed prejudicial error when it ruled Ms. Outlaw's response inadmissible. Her answer upon voir dire indicated that the children had been incubated at birth, supporting earlier admitted testimony that the twins were a little less than one month premature.

During the testimony of an employee of the Bertie County Department of Social Services, defendant attempted to elicit information as to what portion of the $192.00 monthly AFDC payment received by Ms. Outlaw went to the support of each of her three children. While the jury was asked to determine whether Ms. Outlaw had received any AFDC funds from the State of North Carolina attributable to the support needs of the twins, they were not requested to find the total amount Ms. Outlaw was receiving, nor the AFDC amount attributable to each child. The amount attributable to each child was irrelevant to any of the four issues submitted to the jury. Since the evidence was irrelevant to the issues raised, that testimony was properly excluded.

Finally, defendant objected to the court's exclusion of testimony explaining why a default judgment entered against defendant had been set aside. The court had allowed the same witness to testify, on direct, that a default judgment had been entered after defendant failed to timely file an answer to plaintiff's complaint. This assignment is without merit. The defendant's case could not have been prejudiced by the exclusion of that testimony.

In the trial below we find

No error.

WHICHARD and JOHNSON, JJ., concur.