stating that "[i]t has long been the rule in this jurisdiction that not every erroneous ruling on the admissibility of evidence will result in a new trial being ordered," with the burden being "on the appellant not only to show error but also to show that there is a reasonable possibility 'that, had the error in question not been committed, a different result would have been reached at the trial.' "
How later courts described this case
- stating that "[i]t has long been the rule in this jurisdiction that not every erroneous ruling on the admissibility of evidence will result in a new trial being ordered," with the burden being "on the appellant not only to show error but also to show that there is a reasonable possibility 'that, had the error in question not been committed, a different result would have been reached at the trial.' "
- observing that confusion is “inevitable” when sign language interpretation is necessary and that “[a]ny confusion arising from the use of sign language to communicate with a deaf . . . witness goes to the weight, and not the admissibility, of the evidence.”
- expert allowed to testify that an “examination revealed evidence of traumatic and force-able penetration consistent with an alleged rape”
- Where the ophthalmologist’s technician testified regarding the ophthalmologist’s medical records
Written by the judges who cited it.
The opinion
Exum, Justice,
dissenting.
The factual question upon which defendant’s guilt or innocence hangs is whether the prosecuting witness, Enola Conrad, consented to sexual intercourse with defendant. She swore she did not consent. Defendant swore she did. Both offered corroborating testimony. Thus, the case is close on the question of consent.
I believe three errors were committed in the trial; and, because of the closeness of the case, “there is a reasonable possibili *498 ty that, had [they] not been committed, a different result would have been reached.” G.S. 15A-1443(a). Therefore, I believe defendant is entitled to a new trial.
First, as the majority concluded, it was error to permit the state to show the jury that defendant had the word “sex” tattooed on his arm.
Second, I believe it was error to permit Dr. Fry to testify that, in his opinion, his findings on examining Conrad were “consistent with an alleged rape.” It was permissible for the doctor to give his opinion that his findings were consistent with “traumatic and forcible penetration” because these are conclusions which a medical doctor is competent to draw. “Rape,” however, is a legal, not a medical, term. Because a physician is incompetent to give legal conclusions, he is, therefore, incompetent to give an opinion as to whether a person has been raped, or whether his medical findings are “consistent” with a rape.
Rape, as a legal concept, includes several elements, only one of which is force. Another is that the sexual intercourse occurred without the consent of the woman. Sexual intercourse can be forcible and traumatic in the medical sense, yet with the consent of the woman. In such a case there is no rape. Medical findings which are consistent with traumatic and forcible intercourse are not ipso facto consistent with rape because they are not ipso facto consistent with the absence of consent. Whether the woman consented, furthermore, is not a medical question upon which a physician is competent to express an opinion. It is a question upon which only the jury can pass because a physician is in no better position than the jury to have an opinion on the question of consent. The test of admissibility of expert opinion is “whether the witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.” State v. Wilkerson, 295 N.C. 559, 569 , 247 S.E. 2d 905 (1978). To permit a physician to opine that his findings are consistent with “rape” is to permit him, improperly, to express an opinion on the question of consent, when he is in no better position to have an opinion than is the jury.
Finally, it was error to permit the district attorney to ask defendant on cross-examination whether he had assaulted “Sandra Richardson with the intent to commit rape.” The record on *499 appeal shows that defendant had been convicted, in the past, of driving under the influence, possession of marijuana, and malicious injury to property. He had been charged with assault on Sandra Richardson but the charge had been voluntarily dismissed. Defendant was cross-examined about each incident. For the reasons stated in my dissent in State v. Herbin, 298 N.C. 441 , 259 S.E. 2d 263 (1979), and State v. Ross, 295 N.C. 488 , 246 S.E. 2d 780 (1978), it was error to permit the state to cross-examine him about the Sandra Richardson incident.