State v. Heyne, COA23-224, ___ N.C. App. ___ (May. 7, 2024)

In this Davie County case, defendant appealed his conviction for first-degree rape, arguing error in (1) admitting lay testimony about repressed memories without expert support, (2) allowing lay opinion testimony, and (3) allowing improper statements during the State’s closing argument. The Court of Appeals found no prejudicial error. 

In 2017, the victim called law enforcement to report a rape that occurred in 2003, when she was in sixth grade. The victim told law enforcement she was raped by defendant while spending the night at his house visiting his daughter. Although the victim did not tell her parents about the incident at the time, she later discussed the events in therapy and testified at trial about the events at defendant’s house. 

Taking up (1), the Court of Appeals explained that under State v. King, 366 N.C. 68 (2012), a witness may testify about the content of repressed memories without expert support, but “unless qualified as an expert or supported by admissible expert testimony, a witness ‘may not testify that the memories were repressed or recovered.’” Slip Op. at 7, quoting King at 78. Here, the victim did not testify about repressed memories at any point, and a family friend’s statement referencing a repressed memory was not offered as substantive evidence but as evidence of the victim’s consistent statements. 

Moving to (2), defendant argued that testimony from a victim’s advocate that failing to remember details from long ago was “normal” represented improper lay opinion testimony. The court disagreed, explaining that it was reasonable to conclude the witness’s testimony “was based on her rational perception that memories fade with time.” Id. at 13. 

Reaching (3), defendant objected to statements by the prosecutor that the victim’s eating disorder and behavioral issues were responses to rape. However, the court explained that the prosecutor merely recounted issues the victim experienced, “then argued a reasonable inference from these facts that [the victim’s] behaviors may have been responses to a rape.” Id. at 15. These statements were also a small part of the closing argument, leading the court to conclude they were not prejudicial even if improper.