State v. Carroll

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-14
NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

STATE OF NORTH CAROLINA

v. Randolph County
No. 10 CRS 050590
TREMAYNE WENDELL CARROLL

Appeal by defendant from judgment entered 26 April 2013 by

Judge L. Todd Burke in Randolph County Superior Court. Heard in

the Court of Appeals 20 May 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Jill A. Bryan, for the State.

Russell J. Hollers III for defendant-appellant.

HUNTER, Robert C., Judge.

Tremayne Wendell Carroll (“defendant”) appeals from

judgment entered after a jury convicted him on four counts each

of first degree rape, taking indecent liberties with a child,

and sex offense in a parental role. On appeal, defendant argues

that the trial court erred by: (1) allowing a physician to

diagnose the alleged victim as having been sexually assaulted by

defendant; and (2) admitting improper expert testimony vouching
 -2-
for the credibility of the child witness.

After careful review, we hold that the trial court erred in

both instances, but neither amounts to plain error.

Background

The alleged victim in this case, T.S.1, was born in December

1998. In 2009, she lived with her mother (“Lorraine”), her

siblings, and defendant, who was her stepfather. Defendant and

Lorraine experienced difficulties with their marriage and

separated for a period of time in the summer of 2009.

In fall of 2009, T.S.’s maternal grandmother (“Doris”) came

into town to help Lorraine take care of her children. While

doing laundry, Doris noticed a brownish, unusual discharge on

T.S.’s underwear that made her suspicious. She confronted T.S.

about the stain on 19 October 2009, and T.S. told her that

defendant had sex with her. That night, Doris told Lorraine

what T.S. had told Doris.

After hearing T.S.’s allegation, Lorraine took T.S. to the

emergency department at Randolph Hospital. At the hospital,

Lorraine approached Officer Gary Rippey (“Officer Rippey”) of

the Asheboro Police Department and told him that T.S. had been

sexually assaulted. Officer Rippey interviewed T.S. in one of

1
Pseudonyms will be used to refer to the alleged victim and her
family to protect the child’s privacy and for ease of reading.
 -3-
the hospital rooms. T.S. told Officer Rippey that defendant

sexually assaulted her five or six times between February 2009

and October 2009. She said that defendant would pick her up out

of her bed, carry her into his bedroom, remove her panties, and

engage in vaginal intercourse with her until ejaculating onto

her stomach. After speaking with T.S., Officer Rippey contacted

the Department of Social Services.

Lisa Powell (“Ms. Powell”), an employee with the Randolph

County Child Protective Services, responded to Officer Rippey’s

call. She arrived at the hospital and conducted another

interview with T.S. T.S. told Ms. Powell that beginning in

February 2009, defendant engaged in vaginal intercourse with her

three or four times, using the same method she had described to

Officer Rippey—defendant would take her out of her bedroom and

lay her onto his bed, remove her clothing, and have sex with her

until ejaculating onto her stomach. T.S. also told Ms. Powell

that defendant told her not to tell Lorraine, because Lorraine

would not believe T.S.

After the interviews with Officer Rippey and Ms. Powell,

T.S. was examined by Dr. Marcus Gentry (“Dr. Gentry”). Dr.

Gentry was accepted at trial as an expert in emergency room

medicine. Dr. Gentry conducted a pelvic exam and noticed a
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whitish discharge coming from T.S.’s vagina. He obtained a

sample of the discharge for testing. The sample returned

positive for chlamydia, a sexually transmitted disease that Dr.

Gentry testified could only be present after sexual activity

with an infected partner. Dr. Gentry also examined T.S.’s

hymen. He noted that although the hymen was intact, it had

tearing and scarring indicative of older trauma. When asked at

trial whether he had an opinion regarding T.S.’s symptoms and

the positive test for chlamydia, Dr. Gentry testified that he

believed T.S. had been sexually abused, and that since she was

implicating defendant, Dr. Gentry believed defendant was

responsible for the sexual abuse.

After the physical examination by Dr. Gentry, T.S. was

taken to Baptist Hospital in Winston-Salem, North Carolina,

where she met with Joyce Latham (“Ms. Latham”), a sexual assault

nurse examiner. T.S. told Ms. Latham that beginning in February

2009, defendant would come into her room, carry her into his

bedroom, remove her clothing, and then have vaginal intercourse

with her before ejaculating onto her stomach. Ms. Latham did a

“blind sweep” for vaginal discharge that may be indicative of a

sexually transmitted disease but found none. However, she

testified that a lack of discharge at that time did not
 -5-
necessarily mean that T.S. did not have chlamydia. Ms. Latham

took photos of T.S.’s genitals and testified at trial that they

appeared abnormal; specifically, she observed irregularities in

T.S.’s hymen that could be related to an older injury, but there

were no signs of any recent trauma.

Dr. Angela Stanley (“Dr. Stanley”) examined T.S. on 16

November 2009. Dr. Stanley testified at trial that the

irregularities with T.S.’s hymen were not specific to sexual

abuse. However, she clarified that T.S.’s physical exam was

“supportive” of T.S.’s statement that “contact occurred.” She

also noted that a finding of chlamydia “would be a definite

indicator that sexual contact has occurred to transmit that

infection to the child.”

Lorraine provided three articles of T.S.’s clothing to law

enforcement personnel—one t-shirt and two pairs of panties.

T.S. testified that the t-shirt her mother gave to the police

had been ejaculated onto by defendant during one of the sexual

assaults. Forensic scientist Jessica Posto (“Ms. Posto”)

testified that she examined particles from all three pieces of

clothing and found sperm from the sample taken from T.S.’s t-

shirt. Thereafter, Jennifer Elwell (“Ms. Elwell”), who was

accepted at trial as an expert in the field of DNA analysis,
 -6-
testified that the DNA profile obtained from the semen on T.S.’s

shirt matched that of defendant.

The State also called T.S.’s therapist, Michelle Noble

(“Ms. Noble”) to testify at trial. Ms. Noble testified that she

is a licensed professional counselor in North Carolina and

specializes in sexual abuse cases involving children. Ms. Noble

met with T.S. roughly twenty-five times. At trial, Ms. Noble

testified that T.S. kept her account of abuse consistent

throughout their counselling sessions. Ms. Noble also testified

that in regard to child victims in general, consistency is an

important indication of the child’s truthfulness and that in

T.S.’s case she “never felt like there was any kind of

manipulation.”

Defendant took the stand in his own defense at trial and

denied having abused T.S. Defendant testified that he had a

good relationship with T.S. and that although he and T.S. would

often sleep in the same bed, no sexual contact ever occurred

between them. Defendant also testified that he believed

investigators tampered with evidence against him and that a

mentally handicapped relative had been accused of molesting T.S.

before.

The jury returned guilty verdicts on all charged crimes.
 -7-
The trial court consolidated the charges into a single B1 felony

and sentenced defendant to 240 to 297 months imprisonment, with

credit given for 1,177 days spent in confinement prior to

judgment. Defendant gave notice of appeal in open court.

Discussion

I. Dr. Gentry’s Opinion as to Defendant’s Guilt

Defendant first argues that the trial court erred by

allowing Dr. Gentry to testify that in his opinion, defendant

was the individual who sexually abused T.S. We agree that the

trial court erred by admitting this testimony, but we find no

plain error.

Since defendant failed to object to the admission of Dr.

Gentry’s testimony, we review this issue for plain error. See

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334

(2012).

For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice—that,
after examination of the entire record, the
error had a probable impact on the jury’s
finding that the defendant was guilty.

Id. (citation and quotation marks omitted). Plain error is to

be “applied cautiously and only in the exceptional case,” or one

that “seriously affect[s] the fairness, integrity or public
 -8-
reputation of the judicial proceedings.” Id. (citation and

quotation marks omitted).

At trial, Dr. Gentry testified as follows: “[m]y opinion is

that [T.S.] was engaged in sexual activity with someone who had

chlamydia, and had passed it to her. And as she was accusing

[defendant] at the time, that was my opinion, that it was the

sexual abuse from [defendant].” Defendant does not challenge

Dr. Gentry’s opinion that T.S. had been sexually abused. He

contends only that Dr. Gentry’s identification of defendant as

the perpetrator of the sexual abuse amounts to plain error.

“With respect to expert testimony in child sexual abuse

prosecutions, our Supreme Court has approved, upon a proper

foundation, the admission of expert testimony with respect to

the characteristics of sexually abused children and whether the

particular complainant has symptoms consistent with those

characteristics.” State v. Dixon, 150 N.C. App. 46, 52, 563

S.E.2d 594, 598, aff'd, 356 N.C. 428, 571 S.E.2d 584 (2002).

However, even where an expert opinion that a victim has been

abused is based on a proper foundation, an expert opinion that

the victim was abused specifically by a particular defendant is

generally not admissible. See State v. Figured, 116 N.C. App.

1, 9, 446 S.E.2d 838, 843 (1994) (holding that a doctor’s expert
 -9-
opinion that the child victim was abused by the defendant

constituted improper opinion testimony because it did not relate

to a diagnosis derived from physical examination of the witness

in the course of medical treatment).

The State does not contest that Dr. Gentry’s opinion that

T.S. was sexually abused by defendant was admitted into evidence

erroneously. Indeed, based on Dr. Gentry’s own admission that

the basis for his opinion as to defendant’s guilt stemmed only

from T.S.’s allegations, we conclude that this constituted

improper expert opinion testimony. See Figured, 116 N.C. App.

at 9, 446 S.E.2d at 843. However, the State argues that in the

face of the overwhelming evidence indicating defendant’s guilt,

where the case did not turn solely on the credibility of the

prosecuting witness, the erroneous admission of Dr. Gentry’s

testimony did not amount to plain error. We agree.

Defendant contends that the facts of this case are

comparable to State v. Ryan, __ N.C. App. __, 734 S.E.2d 598

(2012), disc. review denied, __ N.C. __, 736 S.E.2d 189 (2013).

In Ryan, this Court held that the erroneous admission of an

expert’s opinion that the defendant was guilty of sexually

abusing the alleged child victim amounted to plain error. Id.

at __, 734 S.E.2d at 606-07. The Court noted that “[a]ll of the
 -10-
State’s evidence relied in whole or in part on the child’s

statements concerning the alleged sexual abuse.” Id. at __, 734

S.E.2d at 606. The only physical evidence tending to indicate

that the child had been sexually abused was a hymenal notch and

the presence of bacterial vaginosis, the latter of which, the

Court noted, is not determinative of sexual abuse and can have

unrelated causes. Id. at __, 734 S.E.2d at 601-06. Except for

the erroneously admitted testimony of the physician who

identified defendant as the perpetrator of the abuse, all of the

other evidence presented by the State “amounted to conflicting

accounts from the child, defendant, and their families.” Id. at

__, 734 S.E.2d at 607. Thus, because the physician was an

expert in treating sexually abused children, the Court concluded

that “her opinion likely held significant weight with the jury”

and “had a probable impact on the jury’s finding defendant

guilty by enhancing the credibility of the child in the jurors’

minds.” Id.

Ryan is distinguishable from the present case in material

aspects. First, there is significant physical evidence in

addition to Dr. Gentry’s opinion that both corroborates T.S.’s

testimony and directly implicates defendant in the crimes

charged. T.S. consistently told her family, law enforcement
 -11-
personnel, and medical experts that defendant would ejaculate

onto her stomach after engaging in vaginal intercourse with her.

She testified that the t-shirt submitted for examination

contained defendant’s semen. This testimony was corroborated

when the t-shirt returned a positive sample for semen and

further testing showed that the semen matched defendant’s DNA.

Additionally, T.S. tested positive for chlamydia during her

examination with Dr. Gentry. Both Dr. Gentry and Dr. Stanley

testified that chlamydia can only be transmitted by sexual

intercourse, unlike the bacterial vaginosis in Ryan which can

have many causes. See Ryan, __ N.C. App. at __, 734 S.E.2d at

601. Lorraine testified that defendant infected her with

chlamydia sometime in 2007, but defendant never sought

treatment. Thus, the jury could have permissibly and reasonably

inferred from this circumstantial evidence that defendant served

as the source of T.S.’s infection. See State v. Parker, 354

N.C. 268, 279, 553 S.E.2d 885, 894 (2001) (noting that the law

does not distinguish between the weight given to circumstantial

and direct evidence). Furthermore, in both Dr. Gentry’s and Ms.

Latham’s unchallenged expert opinions, the notches observed in

T.S.’s hymen and the “fullness” of her genitals indicated trauma

consistent with sexual abuse. Dr. Gentry testified that the
 -12-
irregularity of T.S.’s hymen was consistent with older trauma,

which would corroborate T.S.’s testimony that the abuse occurred

throughout the approximately eight months prior to being

examined by Dr. Gentry. Finally, Lorraine testified that she

came home from work one day around February 2009, which was

within time frame that T.S. identified as when the abuse took

place, and found T.S. and defendant in bed together, with T.S.

only wearing her bra and underwear. Lorraine testified that she

was very upset when she saw them in bed and told T.S. to not

sleep with defendant any more.

Aside from Dr. Gentry’s identification of defendant as the

perpetrator, substantial evidence was admitted at trial to

support the jury’s guilty verdicts. In this respect, the facts

here are comparable to those in cases where the erroneous

admission of expert identification of the defendant as the

perpetrator of sexual abuse did not amount to plain error. See,

e.g., Figured, 116 N.C. App. at 9, 446 S.E.2d at 843 (holding

that where physical examination by two physicians of the child

victims revealed symptoms consistent with sexual abuse, there

was no reasonable probability that the admission of the improper

expert testimony that identified the defendant as the

perpetrator affected the jury’s decision).
 -13-
Accordingly, after reviewing the entire record, we conclude

that the erroneous admission of Dr. Gentry’s opinion did not

rise to the level of plain error.

II. Ms. Noble’s Expression of Opinion on T.S.’s Credibility

Defendant next argues that the trial court erred by

allowing Ms. Noble to offer an expert opinion that improperly

commented on T.S.’s credibility. We agree. However, we

conclude that the admission of this testimony also does not

amount to plain error.

Because defendant failed to object to this testimony at

trial, we review for plain error. See Lawrence, 365 N.C. at

518, 723 S.E.2d at 334.

“Our appellate courts have consistently held that the

testimony of an expert to the effect that a prosecuting witness

is believable, credible, or telling the truth is inadmissible

evidence.” State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d

651, 655 (1988). “[T]estimony that [the expert] was not

concerned that the child was giving a fictitious story is

tantamount to her opinion that the child was not lying about the

sexual abuse.” Ryan, __ N.C. App. at __, 734 S.E.2d at 604

(citation and quotation marks omitted). Furthermore, the

Supreme Court has found that it is reversible error when
 -14-
“experts have testified that the victim was believable, had no

record of lying, and had never been untruthful.” State v.

Aguallo, 322 N.C. 818, 822, 370 S.E.2d 676, 678 (1988).

Here, Ms. Noble testified extensively as to whether or not

T.S. was being truthful. Specifically, Ms. Noble testified as

follows:

[T.S. is] one of the clients that I’ve had
that was so consistent with her story from
day one. She told me what happened and her
story stayed consistent throughout the time
that I worked with her. . . .

[I]f something is so traumatic to you that
your story stays consistent, then that it
is—that’s very telling; you know, that this
is something that—you know, a lot—it’s hard
to—it’s hard to keep a lie going, you know?
And that’s in my—in my line of business,
when—you know, when kids are having behavior
problems, that’s—that’s one thing that we
can always count on, that, you know, if it’s
a lie, we’re gonna find out sooner or later,
you know. So for [T.S.] to be consistent,
you know, that tells me something.

At a later point in the trial, Ms. Noble further testified that:

You know, I—I don’t have a truth detector in
my office, but I—I have a pretty good gut,
and I never, I never felt like there was any
kind of manipulation. I felt like [T.S.]
showed up and told her story and she stayed
consistent throughout that time.

In light of the long-standing rule in North Carolina that

an expert may not vouch for the credibility of a child witness,
 -15-
we conclude that the portions of Ms. Noble’s testimony

specifically addressing the credibility of T.S.’s account of the

abuse were erroneously admitted. Particularly, Ms. Noble

testified that “[s]o for [T.S.] to be consistent, you know, that

tells me something” and “[y]ou know, I—I don’t have a truth

detector in my office, but I—I have a pretty good gut, and I

never, I never felt like there was any kind of manipulation.”

The former statement is similar to the testimony in Ryan that

the expert “was not concerned that the child was giving a

fictitious story,” which this Court held was improper since it

was “tantamount to her opinion that the child was not lying

about the sexual abuse.” Ryan, __ N.C. App. at __, 734 S.E.2d

at 604. With the latter statement, Ms. Noble went farther than

the witness in Ryan; she directly testified that she did not

think T.S. was lying. Thus, because these statements vouched

for the credibility of T.S.’s account of abuse, we conclude that

they were admitted erroneously. See, e.g., Figured, 116 N.C.

App. at 9, 446 S.E.2d at 843; Bailey, 89 N.C. App. at 219, 365

S.E.2d at 655.

Although some of Ms. Noble’s comments were erroneously

admitted, we conclude that such error does not rise to the level

of one that “seriously affects the fairness, integrity or public
 -16-
reputation of judicial proceedings.” Lawrence, 365 N.C. at 518,

723 S.E.2d at 334. The State presented substantial evidence in

addition to Ms. Noble’s testimony that directly implicated

defendant and independently corroborated T.S.’s testimony, such

as: (1) a semen stain on T.S.’s shirt that matched defendant’s

DNA; (2) T.S.’s positive diagnosis for chlamydia, a sexually

transmitted disease that can only be transferred by sexual

intercourse; (3) Lorraine’s testimony that she was infected with

chlamydia by defendant and that defendant never sought

treatment; (4) Lorraine’s testimony that she walked in on

defendant and T.S. sleeping in the same bed, with T.S. only

wearing a bra and panties; and (5) the expert opinions of Dr.

Gentry and Ms. Latham, built on a proper foundation of physical

evidence, that T.S. had been sexually abused. Thus, there was

considerable evidence directly implicating defendant in the

charged crimes and having the effect of independently

corroborating T.S.’s testimony that defendant sexually abused

her.

In light of this evidence, we conclude that there is no

reasonable probability that the jury would have returned a

different verdict had Ms. Noble’s erroneous opinion as to T.S.’s
 -17-
credibility been excluded. Accordingly, we find no plain error.2

See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.

Conclusion

After careful review, we hold that the trial court erred by

admitting portions of Dr. Gentry’s and Ms. Noble’s testimony,

but because these errors did not have a probable impact on the

jury’s verdict, they do not amount to plain error.

NO PREJUDICIAL ERROR.

Judges McGEE and ELMORE concur.

Report per Rule 30(e).

2
We note that there is currently no caselaw supporting a
cumulative plain error analysis in North Carolina. See State v.
Bellamy, 172 N.C. App. 649, 662, 617 S.E.2d 81, 90 (2005)
(“Where, as here, defendant contests separate admissions of
evidence under the plain error rule, each admission will be
analyzed separately for plain error, not cumulatively.”)