State v. Torres-Robles

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1023
NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Wake County
Nos. 11 CRS 207991-95
ROBERTO TORRES-ROBLES

Appeal by defendant from judgments entered 15 February 2013

by Judge Paul C. Ridgeway in Wake County Superior Court. Heard

in the Court of Appeals 22 January 2014.

Attorney General Roy Cooper, by Special Deputy Attorney
General Laura E. Crumpler, for the State.

Mark Montgomery, for defendant-appellant.

CALABRIA, Judge.

Roberto Torres-Robles (“defendant”) appeals from judgments

entered upon jury verdicts finding him guilty of first degree

sexual offense with a child (“first degree sex offense”),

attempted first degree sexual offense with a child (“attempted

sex offense”), and three counts of indecent liberties with a

child (“indecent liberties”). We find no error.

I. Background
 -2-
C.H. (“Cory”1) was six years old when his mother began

dating defendant. Cory, his mother, and his older brother moved

in with defendant that same year. Defendant subsequently began

touching Cory inappropriately while Cory’s mother was at work

and they were alone in the home.

On the first occasion, defendant touched Cory’s penis over

the clothes while Cory was still dressed. The second time

defendant touched Cory, he touched Cory’s penis underneath the

clothes. On several other occasions, defendant attempted to

force Cory to touch defendant’s penis. Defendant also touched

Cory’s buttocks and anus on multiple occasions. Defendant put

his fingers inside Cory’s anus more than once.

In 2010, Cory’s family moved out of defendant’s home and

into their own residence. After defendant was arrested

following an incident of domestic violence against Cory’s mother

at her residence, Cory told his mother that defendant had been

abusing him. Later, Cory discussed the abuse with law

enforcement officers and social workers. He also started seeing

a therapist and taking medication to help him sleep at night.

Defendant was subsequently charged with three counts of

indecent liberties and one count each of attempted sex offense

1
We use this pseudonym to protect the juvenile’s privacy and for
ease of reading.
 -3-
and first degree sex offense. At trial, the State presented

several witnesses, including Dr. David Randall Johnson (“Dr.

Johnson”), Christine Rafter (“Rafter”), and Cory’s mother. Dr.

Johnson testified as an expert in the field of child and

adolescent psychiatry regarding his diagnosis of Cory. Rafter,

a social worker, testified regarding her involvement with Cory

and his family. Cory’s mother also testified regarding the

events surrounding Cory’s allegations against defendant.

On 15 February 2013, the jury returned verdicts finding

defendant guilty of all offenses. The trial court sentenced

defendant to a minimum of 192 months and a maximum of 240 months

for the first degree sex offense, with credit for 681 days spent

in confinement prior to the entry of judgment. Defendant was

also sentenced to a minimum of 125 and a maximum of 159 months

for the attempted sex offense as well as a minimum of 13 and a

maximum of 16 months for the indecent liberties offenses, all to

be served consecutively in the custody of the North Carolina

Division of Adult Correction. Defendant appeals.

As an initial matter, defendant argues that the trial court

erred in evidentiary rulings and in the jury instructions.

Defendant concedes that he did not object to these errors at

trial. Therefore, we must apply the plain error standard.
 -4-
II. Standard of Review

Our Supreme Court has elected to review unpreserved alleged

errors under the plain error standard when the alleged errors

are in evidentiary rulings and jury instructions. State v.

Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Plain

error is to be applied cautiously, when the claimed error is “a

fundamental error, something so basic, so prejudicial, so

lacking in its elements that justice cannot have been done[.]”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)

(citation omitted). “Under the plain error rule, [the]

defendant must convince this Court not only that there was

error, but that absent the error, the jury probably would have

reached a different result.” State v. Jordan, 333 N.C. 431,

440, 426 S.E.2d 692, 697 (1993).

III. Rules of Evidence

According to defendant, the testimony of three witnesses,

Dr. Johnson, Rafter, and Cory’s mother, amounted to an

impermissible bolstering of Cory’s allegations against defendant

because the witnesses allegedly “vouched” for Cory’s

truthfulness. We disagree.

Pursuant to Rule 608(a) of the North Carolina Rules of

Evidence, “evidence of truthful character is admissible only
 -5-
after the character of the witness for truthfulness has been

attacked by opinion or reputation evidence or otherwise.” N.C.

Gen. Stat. § 8C-1, Rule 608(a) (2013). In all cases in which

evidence of character or a trait of character of a person is

admissible, Rule 405 allows testimony in the form of an opinion,

but “[e]xpert testimony on character or a trait of character is

not admissible as circumstantial evidence of behavior.” N.C.

Gen. Stat. § 8C-1, Rule 405(a) (2013). Rule 702 allows expert

witnesses to testify in the form of an opinion when a witness

qualified as an expert by knowledge, skill, experience,

training, or education, bases the testimony upon sufficient

facts or data, the testimony is the product of reliable

principles and methods, and the witness has applied those

principles and methods reliably to the facts. N.C. Gen. Stat. §

8C-1, Rule 702(a) (2013). “This Court has repeatedly held that

N.C.G.S. § 8C-1, Rule 608 and N.C.G.S. § 8C-1, Rule 405(a), when

read together, forbid an expert’s opinion testimony as to the

credibility of a witness.” State v. Crocker, 197 N.C. App. 358,

364, 676 S.E.2d 658, 661 (2009). However, “Rule 702 permits

expert witnesses to explain the bases of their opinions. Thus,

a witness who renders an expert opinion may also testify as to

the reliability of the information upon which he based his
 -6-
opinion.” State v. Marine, 135 N.C. App. 279, 281, 520 S.E.2d

65, 66-67 (1999) (citation omitted). “[T]he mental and

emotional state of the victim before, during, and after a . . .

sexual assault is relevant testimony that can help assist the

trier of fact in understanding the basis of that expert’s

opinion.” Id., 520 S.E.2d at 67.

IV. Witness Testimony

A. Dr. Johnson

During the State’s direct examination, Dr. Johnson

testified regarding Cory’s psychological examination, that Cory

suffered from post-traumatic stress disorder (“PTSD”), and that

Cory’s symptoms were consistent with someone who had experienced

extended trauma. Dr. Johnson also testified this diagnosis was

based on information he obtained after examining Cory,

discussing the case with social worker Cindy Frye (“Ms. Frye”),

and his expert knowledge of the psychological characteristics of

abused children in general. On cross-examination, defense

counsel asked Dr. Johnson whether something other than sexual

abuse could have caused Cory’s PTSD:

Q. Is it possible that some of the post
stress disorder could have come from
something other than any type of sexual
contact with [defendant]?

A. Given what Ms. Frye shared about the
 -7-
case, I would think that would be unlikely.
One thing I do document in my first note is
that at the time he revealed this to his
mother, that the alleged perpetrator was in
jail for domestic violence. And certainly
children who have witnessed or been in the
midst of domestic violence can have post
traumatic stress symptoms, as well.

At trial, defendant did not object to Dr. Johnson’s

testimony regarding the cause of Cory’s PTSD diagnosis. On

appeal, defendant contends that Dr. Johnson’s cross-examination

testimony stating that another cause of Cory’s PTSD was

“unlikely” amounts to an improper bolstering of Cory’s

testimony. Specifically, defendant contends that Dr. Johnson’s

testimony subtly communicated his personal belief in Cory’s

allegations against defendant.

Defendant relies on State v. O’Connor, 150 N.C. App. 710,

564 S.E.2d 296 (2002), State v. Horton, 200 N.C. App. 74, 682

S.E.2d 754 (2009), and State v. Aguallo, 318 N.C. 590, 350

S.E.2d 76 (1986), for the proposition that Dr. Johnson’s

testimony was inadmissible. The Court granted a new trial in

all three cases. In O’Connor, this Court found plain error

where admission of an expert witness’s written report stating

the victim’s disclosure was “credible” was distributed to the

jury as an exhibit and the State’s case was dependent on the

victim’s credibility. 150 N.C. App. at 712, 564 S.E.2d at 297.
 -8-
In Horton, an expert witness testified over objection that the

credibility of child victims is enhanced when they provide

details of alleged abuse. 200 N.C. App. at 78, 682 S.E.2d at

757. This Court held the admission of the expert’s testimony

could have held significant weight with the jury, and the

admission of the expert’s testimony was prejudicial error. Id.

at 79, 682 S.E.2d at 758. In Aguallo, the expert testified over

objection to an opinion that the child victim was “believable.”

318 N.C. at 598-99, 350 S.E.2d at 81.

Unlike the three cases defendant relies on, the instant

case is similar to State v. Marine, 135 N.C. App. 279, 520

S.E.2d 65 (1999). In Marine, the State’s expert witness

testified that in her opinion the victim suffered from PTSD.

Id. at 284, 520 S.E.2d at 68. The witness testified that she

based her opinion on the victim’s behavior during observation,

her review of statements that the victim gave to the police, and

her expert knowledge of the indications of PTSD. Finally, the

witness testified that the victim’s behavior and statements to

the police indicated that the victim “was being very honest.”

Id. at 281, 520 S.E.2d at 66. According to the Marine Court,

the witness’s testimony that the victim was being honest simply

explained why she felt the victim suffered from PTSD. The Court
 -9-
held that the witness’s testimony “went to the reliability of

her diagnosis, not to [the victim’s] credibility.” Id. at 284,

520 S.E.2d at 68.

When Dr. Johnson testified regarding how “unlikely” it was

that something other than sexual abuse could have caused Cory’s

PTSD, he also indicated that children who witness domestic

violence could have PTSD symptoms. Therefore, the purpose of

Dr. Johnson’s disputed testimony was to explain the possible

causes of Cory’s PTSD. Such testimony by an expert witness is

relevant testimony that can assist the trier of fact to

understand the basis of the expert’s opinion pursuant to Marine.

Furthermore, Dr. Johnson’s testimony relates directly to the

causes which resulted in the PTSD diagnosis, and therefore went

to the reliability of his diagnosis, not Cory’s credibility.

B. Christine Rafter

Defendant also contends Rafter’s testimony concerning the

scheduling of a child medical evaluation improperly vouched for

Cory’s credibility:

Q. When you’re meeting there with [Cory]
you’ve already gotten information from his
mother, you’re talking to him about what
happened, are you trying to get each and
every detail about what happened?

A. At this point I wasn’t because the child
is typically going to have to go through
 -10-
another interview when he has the medical
evaluation, and he was already very shy and
closed off, so I didn’t want to continue to
push him knowing that he was going to have
to do this again, anyway.

Q. And so what is the – why are you trying
to get some from him at least?

A. Because in order to schedule the medical
evaluation, I have to have some kind of
clear disclosure that having happened. [sic]

. . .

Q. And you had said initially that when you
first meet with the children, you’re just
trying to get a sense of whether something’s
happened because you know you’ll be
scheduling that child medical evaluation.
Is that typically a lengthier interview?

A. Yes, much longer.

Defendant did not object to Rafter’s testimony at trial,

and mistakenly contends that Rafter testified as an expert

witness. Nothing in the record indicates that the State ever

tendered Rafter as an expert, or that the trial court

specifically admitted her as an expert witness. Rafter

testified as a lay witness. Rule 608(a) permits lay opinion

testimony on a witness’s character for truthfulness. N.C. Gen.

Stat. § 8C-1, Rule 608(a). Defendant cites O’Connor, Horton,

and Aguallo, and contends that the disputed testimony comprises

Rafter’s personal opinions because defendant believes Rafter
 -11-
subtly communicated her belief in Cory’s allegations against

defendant. However, Rafter clearly testified regarding the

process of preliminary interviews with alleged victims of child

abuse prior to scheduling medical evaluations, and how she

followed a similar process when she interviewed Cory. Her job

was a preliminary procedure to prepare for a lengthier interview

during the medical evaluation, not to determine Cory’s

credibility.

Neither Dr. Johnson nor Rafter testified that Cory was

“credible” or “believable,” or that certain elements “enhanced”

Cory’s credibility. Instead, Dr. Johnson’s testimony explained

that after examining Cory, his diagnosis was PTSD, and Rafter’s

testimony concerned the processes she used in scheduling Cory’s

medical evaluations.

C. Cory’s mother

Cory’s mother also testified at trial regarding the

circumstances surrounding Cory’s allegations against defendant.

Specifically, defendant contests her testimony regarding an

instance in which she witnessed defendant pulling down the

diapers of a little girl (“Abby”)2. On cross-examination,

defense counsel questioned Cory’s mother several times regarding

2
A pseudonym to protect the juvenile’s privacy.
 -12-
the incident and the timing of her reporting the incident to

social workers. The State, on re-direct examination, asked

Cory’s mother why she mentioned the diaper incident to Child

Protective Services. She responded that she “had realized that

my son what he was saying was true because I had already

realized what he [defendant] was doing to [Abby] [sic].”

Defendant did not object to this testimony at trial, but

now contends that Cory’s mother’s testimony on re-direct was an

impermissible bolstering of Cory’s allegations. Our Courts have

previously considered the effect of a mother’s testimony

regarding her children’s truthfulness in cases concerning child

sexual abuse. Because “most jurors are likely to assume that a

mother will believe accusations of sexual abuse made by her own

children, we cannot conclude that the challenged portion of . .

. testimony had any significant impact on the jury’s decision to

convict Defendant.” State v. Dew, ___ N.C. App. ___, ___, 738

S.E.2d 215, 219 (2013) (citing State v. Ramey, 318 N.C. 457,

466, 349 S.E.2d 566, 572 (1986) (stating that “[i]t is unlikely

that the jury gave great weight to the fact that a mother

believed that her son was truthful.”)).

Even if defendant had convinced this Court that there was

error, defendant fails to show that the jury would have reached
 -13-
a different verdict based upon the disputed testimony from Dr.

Johnson, Rafter, or Cory’s mother. The State presented

substantial evidence at trial from Cory and several witnesses,

including social workers who had opportunities to observe Cory’s

demeanor and PTSD symptoms. Defendant fails to show that the

jury would have reached a different verdict.

V. Jury Instructions

Defendant also argues that the trial court committed plain

error in referring to Cory as a “victim” when instructing the

jury. We disagree.

“The judge may not express during any stage of the trial,

any opinion in the presence of the jury on any question of fact

to be decided by the jury.” N.C. Gen. Stat. § 15A-1222 (2013).

Similarly, in instructing the jury, “the judge shall not express

an opinion as to whether or not a fact has been proved and shall

not be required to state, summarize or recapitulate the

evidence, or to explain the application of the law to the

evidence.” N.C. Gen. Stat. § 15A-1232 (2013). This Court has

previously held that the trial court’s use of the term “victim”

to refer to a child prosecuting witness was not improper. State

v. Allen, 92 N.C. App. 168, 171, 374 S.E.2d 119, 121 (1988).

“The judge properly instructed the jury that it had to find that
 -14-
defendant committed all the elements of the offenses charged

before they could find defendant guilty, regardless of whether

the child was referred to as the ‘victim,’ the prosecuting

witness, or by any other term.” Id., 374 S.E.2d at 121. “The

word ‘victim’ is included in the pattern jury instructions . . .

and is used regularly to instruct on the charges of first-degree

rape and first-degree sexual offense.” State v. Richardson, 112

N.C. App. 58, 67, 434 S.E.2d 657, 663 (1993) (no plain error

where defendant failed to object at trial to characterization of

child prosecuting witnesses as “victims” in delivering pattern

jury instructions for first degree rape and first degree sexual

offense); see State v. Henderson, 155 N.C. App. 719, 722-23, 574

S.E.2d 700, 703-04 (2003) (trial court did not intimate that

defendant had committed any crime, and no undue prejudice from

use of “victim” in jury instructions).

To establish plain error, defendant must show that the

erroneous instruction was a fundamental error that had a

probable impact on the jury verdict. State v. Lawrence, 365

N.C. 506, 518, 723 S.E.2d 326, 334 (2012). Where the trial

court “simply gave the pattern jury instructions promulgated by

the North Carolina Conference of Superior Court Judges[,]” this

Court held “the trial court’s use of the word, ‘victim,’ in its
 -15-
charge to the jury did not reasonably have a prejudicial effect

on the result of the trial[.]” State v. Boyett, ___ N.C. App.

___, ___, 735 S.E.2d 371, 379 (2012).

In the instant case, the trial court presented the

following instructions regarding the charges of first degree sex

offense and attempted sex offense:

The Defendant has been charged with first
degree sexual offense. For you to find the
Defendant guilty of this offense, the State
must prove three things beyond a reasonable
doubt: First, that the Defendant engaged in
a sexual act with the victim. A sexual act
for the purposes of this offense means any
penetration, however slight, by an object
into the anal opening of a person’s body.

Second, that at the time the acts – of the
acts alleged, the victim was a child under
the age of 13.

And third, that at the time of the alleged
offense, the Defendant was at least 12 years
old and was at least four years older than
the victim.

If you find from the evidence beyond a
reasonable doubt that on or about the
alleged date the Defendant engaged in a
sexual act with the victim and that at that
time the victim was a child under the age of
13 years, and that the Defendant was at
least 12 years old, and was at least four
years older than the victim, it would be
your duty to return a verdict of guilty. If
you do not so find or have a reasonable
doubt as to one or more of these things, it
would be your duty to return a verdict of
not guilty.
 -16-

The Defendant has been charged with
attempted first degree sexual offense. For
you to find the Defendant guilty of this
offense, the State must prove four things
beyond a reasonable doubt: First, that the
Defendant intended to engage in a sexual act
with the victim. A sexual act, for the
purposes of this offense, means fellatio,
which is any touching by the lips or tongue
of one person and the male sex organ of
another.

Second, that at the time of the acts
alleged, the victim was a child under the
age of 13 years.

Third, that at the time of the alleged
offense, the Defendant was at least 12 years
old and was at least four years older than
the victim.

And fourth, that the Defendant performed an
act that was calculated and designed to
accomplish fellatio, which conduct came so
close to bringing about that sexual act that
in the ordinary course of events the
Defendant would have completed the act with
the victim had he not been stopped or
prevented. If you find from the evidence
beyond a reasonable doubt that on or about
the alleged date the Defendant intended to
engage in a sexual act with the victim and
that at that time the victim was a child
under 13 years, and that the victim was at
least 12 years old, and was at least four or
more years older than the victim, [sic] and
that the Defendant performed an act which in
the ordinary course of events would have
resulted in the sexual act by the Defendant
with the victim, had not the Defendant been
stopped or prevented from completing his
apparent course of action, it would be your
duty to return a verdict of guilty. If you
 -17-
do not so find or have a reasonable doubt as
to one or more of these things, it would be
would be [sic] your duty to return a verdict
of not guilty.

In the instant case, defendant did not object to the use of

the term “victim” as provided in the pattern jury instructions.

Therefore, this Court can only review for plain error.

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

contends that the term “victim” constituted an impermissible

implication of the trial court’s opinion that a crime had in

fact been committed. However, this Court rejected a similar

argument in Boyett, holding that the trial court “was not

intimating any opinion upon whether Defendant had committed the

crimes charged using the word, ‘victim,’ in its charge to the

jury.” ___ N.C. App. at ___, 735 S.E.2d at 379. The trial

court, in the instant case, modeled its instructions on the

pattern jury instructions, and instructed the jury that it had

to find that defendant committed all elements of the offenses

before he could be found guilty. In addition, since the trial

court did not improperly imply that defendant had committed the

crimes in question, there was no undue prejudice from the use of

the word “victim” in the instructions. Therefore, defendant

fails to show how the trial court’s use of the term, as provided

in the pattern jury instructions, constitutes plain error.
 -18-
VI. Conclusion

Neither Dr. Johnson’s nor Rafter’s testimony impermissibly

bolstered or indicated that Cory was reliable or credible. In

addition, the testimony of Cory’s mother also did not rise to

the level of plain error where “[i]t is unlikely that the jury

gave great weight to the fact that a mother believed that her

son was truthful.” State v. Ramey, 318 N.C. at 466, 349 S.E.2d

at 572. Furthermore, defendant fails to show that the jury

would have reached a different verdict, therefore the testimony

does not constitute plain error. Finally, the use of the word

“victim” in the pattern jury instructions does not constitute an

impermissible implication of the trial court’s opinion that a

crime had in fact been committed. We hold that the defendant

received a fair trial, free from error.

No error.

Judges BRYANT and GEER concur.

Report per Rule 30(e).