# State v. Starnes

> Supreme Court of North Carolina · July 7, 1983 · 308 N.C. 720

URL: https://www.frixlaw.com/law-library/cases/9571740

## Case

- **Full name:** State of North Carolina v. Jerry Byron Starnes
- **Court:** Supreme Court of North Carolina
- **Decided:** July 7, 1983
- **Citations:** 308 N.C. 720; 304 S.E.2d 226; 1983 N.C. LEXIS 1304
- **Precedential status:** Published
- **Opinion:** Concurrence by Exum
- **Judges:** Meyer, Exum
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9571740

## Opinion text

Justice Exum
concurring in result.
The facts and the legal issue presented are clearly and accurately expounded in the majority opinion. I disagree with the majority’s conclusion that it was not error to admit Dr. Wiegand’s opinion that “a penis had probably caused” the tears in the victim’s vagina. In light of the substantial evidence, apart from Dr. Wiegand’s testimony, that defendant’s penis did cause these tears and penetrate the victim’s vagina, I am satisfied that the error in admitting Dr. Wiegand’s opinion about it is not reversible.
If Dr. Wiegand had had a medical opinion about the matter based on his observation and perhaps the characteristics of the vaginal tears themselves, I would agree that he should have been *735 permitted to express it. His own testimony makes it abundantly clear that he had no medical opinion that a penis caused the tears. When asked upon what his opinion was based, he answered:
The manner in which the patient’s injuries, as best she could tell me, and from my examination, suggested that she had been beaten and had struggled quite violently; further, that there were present secretions which appeared to be seminal fluid.
It requires no medical expertise to infer from these facts that a penis probably caused the tears. The physician was in no better position than the jury to make such an inference from the facts which he posited. If this answer were not enough to indicate his lack of a medical opinion, surely the physician’s other testimony makes it plain. He said flatly:
I can only say that an object that was larger than the capacity of her vaginal opening to her mid passage was placed there and caused injuries that we have described. I cannot say what object caused those injuries. I can say that because of the number of the injuries and the — the various areas involved that — that more than one penetration or more than one entrance was made but I really cannot say what caused that. [Emphasis supplied.]
Then, on cross-examination, he said:
Q. And you say in your conclusion some foreign object did the damage that you found, some foreign object was inserted?
A. That’s correct.
Q. Your opinion is, your conclusion is you can’t say what that foreign object was?
A. No, I can’t.
It was, of course, proper for the physician to give his medical opinion that the victim’s vagina had been penetrated by something. His medical expertise obviously led him to formulate an opinion on this. He was in a better position than the jury to assess the presence or absence of some kind of penetration.
*736 It was improper, however, to take the physician’s opinion that the penetrating object was a penis because by his own admission he had no such opinion arising out of his medical expertise.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9571740. Public record. Not legal advice.