Opinion
No. 480, 1997.
Decided: November 19, 1998.
Superior CrA IN96-05-1411/1416, IN96-05-0521.
Affirmed.
Unpublished Opinion is below.
OTTO GARY GIBBS, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 480, 1997. In the Supreme Court of the State of Delaware. Submitted: October 20, 1998. Decided: November 19, 1998. Before VEASEY, Chief Justice, WALSH and HARTNETT, Justices.
ORDER
This 19th day of November, upon consideration of the briefs of the parties, it appears to the Court that:(1) A Superior Court jury convicted defendant-appellant Otto Gary Gibbs of Unlawful Sexual Intercourse in the Second Degree. The Superior Court sentenced him to a period of incarceration. Gibbs makes three arguments in support of his direct appeal.
(2) The evidence proved that Gibbs engaged in sexual intercourse with a sixteen-year-old girl on April 28, 1996. On that date, Gibbs and his friends brought two girls they had met on the street back to his motel room for some drinks. Inside the motel room, Gibbs told the victim that he wanted to talk to her in private and he invited her into the bathroom. In the bathroom, Gibbs stated, "I'm not going to hurt you," and then pushed the victim to the floor, covered her mouth, and began raping her. The victim managed to escape the motel room when Gibbs noticed her bleeding and ran from the bathroom. She immediately reported the rape to the police and an ambulance took her to the hospital.
(3) Gibbs first argues the Superior Court erred in allowing the State to elicit testimony on the victim's prior virgin status when Delaware's rape shield law prevented Gibbs from discussing the victim's past sexual history. Without objection from Gibbs, the victim testified on direct-examination that she had been a virgin prior to the alleged rape. The State followed this testimony by asking the victim whether she would have chosen to lose her virginity on a bathroom floor with a stranger. Gibbs objected to this question on the basis that is was prejudicial. The court ruled that the issue's relevance outweighed its prejudice and allowed the victim to answer the question. She responded that she would not have chosen a bathroom floor to lose her virginity. In closing arguments, the State again raised the issue of the victim's virgin status. Over Gibbs' objection, the court ruled that the issue was relevant and that the State could proceed cautiously.
(4) Gibbs timely objected to the State's line of questioning and raised the rape shield issue during closing arguments. Nevertheless, Gibbs' claim that the Superior Court erred in allowing the State to introduce the virginity issue is unpersuasive. Our criminal statutes do not prohibit the prosecution from introducing evidence of an alleged rape victim's virginity in a case where consent is at issue. Because consent was an issue, the court properly permitted the State to inquire into the victim's virgin status.
O'Connor v. State, Del. Supr., No. 457, 1988, Moore, J. (Apr. 26, 1990), Order at ¶ 12 (citing 11 Del. C. § 3509).
See also Mason v. State, Del. Supr., 658 A.2d 994, 999 (1995) (holding prosecutor's two comments on rape victim's virgin status may have been improper but were not so prejudicial to encroach upon defendant's substantial rights or render trial unfair) (citation omitted).
(5) Moreover, the prosecutor's comments were not unfairly prejudicial because 11 Del. C. § 3509(c) permitted Gibbs to cross-examine the victim on the virginity issue. Although Gibbs failed to cross-examine the victim, he did question the State's expert medical witness, Dr. Gordon Reed, in a manner designed to suggest that the victim's injuries were consistent with a virgin's first consensual sexual encounter. Accordingly, Gibbs was not prejudiced by the evidence of Hopkins' virginity in his attempt to counter the evidence of her physical injuries.
(6) Second, Gibbs argues that the Superior Court erred in allowing Dr. Reed to give opinion testimony on the ultimate issue of consent. Gibbs claims that 11 Del. C. § 774, Unlawful Sexual Intercourse in the Second Degree, requires that the jury, not an expert, determine the issue of whether sex was consensual. When asked by the State, Dr. Reed responded that the victim's injuries were inconsistent with a consensual sex act. Although Gibbs objected to Dr. Reed's qualification as an expert witness, Gibbs failed to object to Reed's testimony on this issue. Therefore, he has waived appellate review of this issue in the absence of plain error.
See Supr. Ct. R. 8.
(7) The Superior Court did not commit plain error in allowing Dr. Reed to opine on consent. This Court has held that the fact that a witness renders an opinion that tends to embrace consent to sex does not invade the province of the jury. As the medical director of the Sexual Assault Response Team at the Medical Center of Delaware, Dr. Reed was a competent expert witness. Furthermore, twice the Superior Court cautioned the jury that they were free to weigh Reed's testimony based on his education and experience. Therefore, even if Dr. Reed's testimony were improper, the court's curative instruction would have eviscerated any possible prejudice stemming from the comments.
D.R.E. 704 provides that opinion testimony "is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact." D.R.E. 704.
See Wilmer v. State, Del. Supr., No. 404, 1997, Walsh, J. (Mar. 6, 1998), Order at ¶ 6 (holding no abuse of discretion in admitting opinion testimony that sex was non-consensual). See also Glazar v. State, Del. Supr., No. 132, 1985, McNeilly, J. (Nov. 12, 1985), Order at ¶ 2 (finding no error in admission of expert opinion testimony that injuries were the result of probable child abuse).
See, e.g., Sawyer v. State, Del. Supr., 634 A.2d 377, 380 (1993) (citation omitted); Claudio v. State, Del. Supr., 585 A.2d 1278, 1281 (1991); Diaz v. State, Del. Supr., 508 A.2d 861, 866 (1986) (citation omitted).
(8) Finally, Gibbs argues that the trial court committed plain error in refusing to instruct the jury on the issue of voluntary social companion. Again, Gibbs failed to object. Gibbs contends that the evidence at trial clearly indicated that the victim was his voluntary social companion at the time of the alleged rape. Such evidence is irrelevant, however, because under 11 Del. C. § 774 the trier of fact may find the defendant guilty under either § 774(1) or § 774(2). The State chose to prosecute Gibbs under § 774(1) and thus needed only to prove that the victim did not consent to sex plus an additional element of harm during the commission or aftermath of the act. Therefore, an instruction on voluntary social companion was unnecessary because it was not part of the charge against Gibbs. Although a defendant has the right to an instruction that correctly states the substantive law, a defendant is not entitled to a particular jury instruction, especially if that instruction is irrelevant and would tend to confuse the jury.
See 11 Del. C. § 774(1).
See Liu v. State, Del. Supr., 628 A.2d 1376, 1386 (1993) (citations omitted).
NOW, THEREFORE, IT IS ORDERED that Gibbs' conviction and sentence are AFFIRMED.