State v. King

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1118
NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Union County
No. 10CRS050358
KEVIN MICHAEL KING

Appeal by defendant from judgment entered 17 April 2013 by

Judge W. David Lee in Union County Superior Court. Heard in the

Court of Appeals 19 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender David W. Andrews, for defendant-appellant.

HUNTER, Robert C., Judge.

Kevin Michael King (“defendant”) appeals from judgment

sentencing him to 236 to 293 months imprisonment on two counts

of first-degree sex offense with a child and two counts of

taking indecent liberties with a minor. On appeal, defendant

argues that: (1) the trial court committed plain error by

admitting video footage of a forensic interview with the alleged
 - 2-

victim; (2) the trial court committed plain error by admitting

testimony from the alleged victim’s therapist that constituted

an improper opinion on the alleged victim’s credibility; (3) the

trial court erred by denying his motion to dismiss the charges

of taking indecent liberties with a minor; and (4) the trial

court committed plain error by instructing the jury that it

could convict defendant of taking indecent liberties with a

minor based on theories not supported by the evidence.

After careful review, we find no error in the sex offense

judgments, but we vacate the convictions for taking indecent

liberties with a minor. Accordingly, we remand for

resentencing.

Background

The evidence presented at trial tended to establish the

following facts: “Jessica”1, the alleged victim, was seven years

old at the time of the incident underlying this case and ten

years old at the time of trial. Defendant is Jessica’s

biological father. Defendant and Jessica’s mother, “Jane

Reynolds” (“Jane”), lived briefly with Jane’s mother, “Anne

Reynolds” (“Ms. Reynolds”), until the relationship between

1
“Jessica” is a pseudonym used to protect the identity and
privacy of the juvenile. Pseudonyms will also be used to refer
to members of Jessica’s family.
 - 3-

defendant and Jane ended when Jessica was two months old. Ms.

Reynolds eventually became Jessica’s legal guardian.

In January 2010, defendant’s mother (“Lindsay”) arranged

with Ms. Reynolds for Jessica to visit with Lindsay and

defendant at Lindsay’s home in Monroe, N.C. Originally, Jessica

was to spend one night with defendant and his mother, but

Jessica later called and asked Ms. Reynolds if she could spend

another night with them. Ms. Reynolds testified at trial that a

few days after her visit with defendant, Jessica told Ms.

Reynolds that she and defendant had a secret.

Jessica was in grief counseling during this time because

her sister had died from leukemia in 2008. Before a regularly

scheduled appointment with Kristen McClure (“Ms. McClure”),

Jessica’s therapist, Ms. Reynolds called and left a message with

Ms. McClure to alert her that Jessica had a secret that she may

want to talk about in the upcoming counseling session.

Ms. McClure testified that her conversation with Jessica in

the counseling session was focused on secrets. Jessica

disclosed to Ms. McClure that defendant made her watch with him

what she described as “movies with naked people” on the

computer. Ms. McClure did not ask for more details, because she

thought it was apparent that there would be a Child Protective
 - 4-

Services report, and she did not want to disrupt that

investigation. At the end of the counseling session, Ms.

McClure told Ms. Reynolds that Jessica said “she had definitely

been sexually abused.” The day after the counseling session,

Ms. Reynolds called Child Protective Services.

On 20 January 2010, Jessica spoke with licensed social

worker, Rebecca Horner (“Ms. Horner”), who conducted a forensic

interview. During the interview, Jessica gave Ms. Horner

detailed descriptions of sexual acts that defendant allegedly

made her perform. Ms. Horner’s report stated that Jessica’s

account of abuse was clear and detailed and that she validated

the alleged abuse through the use of anatomical dolls.

After the forensic interview, detectives arrested defendant

and seized a computer from his mother’s house. A grand jury

indicted defendant for two counts each of: (1) statutory rape,

(2) statutory sex offense, (3) incest, (4) taking indecent

liberties with a minor, and (5) displaying harmful material to a

minor. The matter was tried before a jury on 15 April 2013.

At trial, Jessica testified that during the visit with

defendant at his mother’s house, she watched a pornographic

video on a computer with defendant while sitting on his lap.

Jessica further testified that: (1) she rubbed defendant’s penis
 - 5-

and put her mouth on his penis; (2) he put his mouth on her

vagina; and (3) defendant kissed her “butt.” Jessica said that

defendant told her if she told anyone about what happened, he

would not be able to see her for a long time.

After Jessica testified, the trial court allowed the State

to show video footage of the forensic interview conducted by Ms.

Horner with no objection or request for limiting instruction.

The video showed Jessica telling Ms. Horner that defendant

showed her multiple pornographic videos, put his mouth on her

“butt and private,” and made her perform oral sex on him. In

the video Jessica also said that defendant penetrated her vagina

with his penis at least two times and rubbed on her vagina with

his testicles and one of his fingers.

Defendant testified at trial and denied the allegations.

The other individuals staying at Lindsay’s home that weekend

also testified that they did not see anything unusual about

defendant’s conduct toward Jessica, though they admittedly were

not present at all times.

At the conclusion of the State’s evidence, defense counsel

made a motion to dismiss all charges. As part of the motion,

counsel asserted that the taking indecent liberties with a minor

indictments were void for vagueness. The trial court dismissed
 - 6-

the charges of statutory rape, incest, and displaying harmful

material to a minor.

At the charge conference, the trial court stated that the

verdict sheet for taking indecent liberties with a minor would

be based on (1) analingus, and (2) “rubbing the alleged victim’s

vagina.” At the conclusion of the defense’s evidence and during

the charge conference, defense counsel reinstated his motion to

dismiss. The trial judge denied the motion.

The jury convicted defendant of two counts of statutory sex

offense and two counts of taking indecent liberties with a

minor. On the verdict sheet for the two charges of taking

indecent liberties with a minor, the jury checked the line for

“Guilty of Indecent Liberties with Child (analingus)” and

“Guilty of Indecent Liberties with Child (rubbing alleged

victim’s vagina).” The trial court consolidated the charges for

judgment and sentenced defendant to 236 to 293 months

imprisonment. Defendant gave notice of appeal in open court

immediately following sentencing.

Discussion

I. Forensic Video

Defendant first argues that the trial court erred by

admitting the video of the forensic interview with Jessica
 - 7-

because her statements were inflammatory, far exceeded her

testimony at trial, and prejudiced the jury against defendant.

We disagree.

At trial, defendant did not object to the admission of the

video. Thus, the appropriate standard of review is plain error.

State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983).

Plain error arises when the error is “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 and quotation marks omitted).

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. Moreover,
because plain error is to be applied
cautiously and only in the exceptional case,
the error will often be one that seriously
affect[s] the fairness, integrity or public
reputation of judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal quotation marks omitted).

“‘Hearsay’ is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” N.C. Gen.
 - 8-

Stat. § 8C–1, Rule 801(c) (2013). Generally, hearsay is not

admissible unless it is offered for a purpose other than proving

the truth of the matter asserted. State v. Irick, 291 N.C. 480,

498, 231 S.E.2d 833, 844 (1977). However, prior consistent

statements of a witness are admissible for corroborative

purposes. State v. Martin, 309 N.C. 465, 476, 308 S.E.2d 277,

284 (1983). Corroborative testimony may contain “new or

additional information when it tends to strengthen and add

credibility to the testimony which it corroborates.” State v.

Ligon, 332 N.C. 224, 237, 420 S.E.2d 136, 143 (1992) (citations

omitted); see also State v. Beane, 146 N.C. App. 220, 232, 552

S.E.2d 193, 200 (2001) (corroborative evidence need not mirror

the testimony it seeks to corroborate, as long as the new

information tends to strengthen or add credibility to the

testimony). However, “prior statements as to facts not referred

to in [the witness’s] trial testimony and not tending to add

weight or credibility to it are not admissible as corroborative

evidence.” State v. Frogge, 345 N.C. 614, 618, 481 S.E.2d 278,

280 (1997) (alteration in original).

A trial court has “wide latitude in deciding when a prior

consistent statement can be admitted for corroborative,

nonhearsay purposes.” State v. Call, 349 N.C. 382, 410, 508
 - 9-

S.E.2d 496, 513 (1998). The North Carolina Supreme Court has

held that a trial court’s limiting instruction that the jury may

only consider out-of-court statements for corroborative and not

substantive evidence can cure potentially erroneous admission of

inconsistent statements. State v. Evans, 346 N.C. 221, 232-33,

485 S.E.2d 271, 277-78 (1997); see also State v. Early, 194 N.C.

App. 594, 600-01, 670 S.E.2d 594, 600 (2009) (holding that the

trial court did not abuse its discretion when the trial court

gave limiting instructions on a prior inconsistent statement

because the statement was only admitted for corroborative

purposes).

Here, defendant argues that the trial court erred by

admitting video of the forensic interview with Jessica because

during the forensic interview Jessica described crimes she did

not testify to at trial, such as statutory rape. Thus, he

argues that because the prior out-of-court statements go “far

beyond” Jessica’s trial testimony, the video interview did not

add weight or credibility to the testimony, and the evidence of

other crimes alluded to in the interview had a “dangerous

tendency” to prejudice the jury. State v. McClain, 240 N.C.

171, 177, 81 S.E.2d 364, 368 (1954).

Although we agree that Jessica’s statements in the forensic
 -10-

interview did go beyond her testimony at trial, we find that any

error in admitting the video was cured by the trial court’s

limiting instruction. Here, the trial court gave limiting

instructions on prior consistent statements and corroboration on

its own initiative when it admitted the forensic video and gave

a similar instruction in its jury charge. Specifically, the

trial court included the following in its jury charge:

Evidence has also been received tending to
show that at an earlier time a witness made
a statement which may conflict or be
consistent with the testimony of the witness
at this trial. As I’ve previously instructed
you, ladies and gentlemen, you must not
consider such earlier statement as evidence
of the truth of what was said at that
earlier time because it was not made under
oath at this trial. If you believe the
earlier statement was made, and that it
conflicts or is consistent with the
testimony of the witness at this trial, you
may consider this, and all other facts and
circumstances bearing upon the witness’s
truthfulness, in deciding whether you will
believe or disbelieve the witness’s
testimony.

Furthermore, although there were parts of the video that did go

beyond Jessica’s testimony, there was also a great deal of

consistency sufficient for the jury to be able to assess

Jessica’s credibility. Thus, the trial court did not err by

admitting the forensic video for corroborative purposes and

instructing the jury as to the only permissible use of this
 -11-

evidence. See Early, 194 N.C. App. at 601, 670 S.E.2d at 600.

Because there was no error, there could not have been plain

error. See State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465,

468 (1986) (holding that without error at all, there cannot be

plain error). Defendant’s argument is overruled.

II. Expert Testimony

Next, defendant argues that the trial court committed plain

error by allowing improper opinion testimony by an expert

witness, Ms. McClure, that Jessica had “definitely been sexually

abused.” Defendant also argues that Ms. McClure’s testimony

that she treated Jessica for issues that victims face after

suffering sexual abuse was an improperly admitted opinion. We

disagree.

Because defendant did not object to the admission of this

testimony at trial, we review this issue on appeal for plain

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

In a sexual offense prosecution involving a child victim,

the trial court should not admit expert opinion that sexual

abuse has in fact occurred because, absent physical evidence

supporting a diagnosis of sexual abuse, such testimony is an

impermissible opinion regarding the victim’s credibility. State

v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987); State v. Grover,
 -12-

142 N.C. App. 411, 543 S.E.2d 179, aff’d per curiam, 354 N.C.

354, 553 S.E.2d 679 (2001). “However, an expert witness may

testify, upon a proper foundation, as to the profiles of

sexually abused children and whether a particular complainant

has symptoms or characteristics consistent therewith.” State v.

Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002).

Admission of expert testimony that the victim has been sexually

abused without proper foundation constitutes plain error. State

v. Delsanto, 172 N.C. App. 42, 47-48, 615 S.E.2d 870, 873-74

(2005).

There are two statements at issue here. The first is Ms.

Reynolds’s testimony that Ms. McClure told her that Jessica had

“definitely been sexually abused.”

Defendant argues that this was an improper expert opinion

about Jessica’s credibility because it was based on Ms.

McClure’s discussion with Jessica and not on physical evidence

of abuse. See Stancil, 355 N.C. at 267, 559 S.E.2d at 789. We

disagree. After reviewing the transcript, we find that Ms.

McClure never expressed an opinion about Jessica’s credibility

or whether she had been sexually abused. Rather, the statement

defendant argues amounts to an impermissible opinion was in fact

included in Ms. Reynolds’s testimony. In context, Ms. Reynolds
 -13-

was merely relating the fact that Ms. McClure told her that

Jessica had disclosed that she had been sexually abused. Ms.

Reynolds’s testimony was as follows:

Q. And what happened next?

A. Towards the end, she said that she had
definitely been sexually abused.

Q. When you say she, do you –

A. I’m sorry; [Ms. McClure] brought me into
the office and said that Jessica had told
had told [sic.] her that she was -- that--
that her daddy had engaged in oral sex and
that she felt like we needed to proceed,
that I had -- that I was compelled-- I don’t
know what the word would be, to call Child
Protective Services, that if I didn’t call
that she had to call.

Ms. McClure never testified that she stated to Ms. Reynolds

or anyone else that Jessica had been sexually abused. Further,

Ms. McClure neither formulated nor conveyed any opinion that

Jessica had been sexually abused. When the State tried to

elicit an actual opinion from Ms. McClure, the trial court

sustained defendant’s objection. Thus, because Ms. McClure

never gave an expert opinion on Jessica’s credibility or whether

she had been sexually abused, defendant’s argument is overruled.

The second statement at issue is Ms. McClure’s testimony

that in subsequent therapy sessions with Jessica, Ms. McClure

treated her for issues from which sexual abuse victims might
 -14-

suffer.

Defendant relies on State v. Hall, 330 N.C. 808, 822-23,

412 S.E.2d 883, 891 (1992), where the North Carolina Supreme

Court granted a new trial to the defendant because the trial

court improperly admitted expert testimony that the alleged

victim of sexual abuse was diagnosed as having post-traumatic

stress disorder and a conversion reaction as substantive

evidence of guilt. The case at hand is distinguishable because

Ms. McClure’s testimony about working with Jessica on issues

that sexual abuse victims may face was not an opinion that the

victim had, in fact, been abused. Ms. McClure testified that

she never probed into the details of what occurred with Jessica

and defendant after Jessica’s initial disclosure that she

watched pornographic videos with defendant. Rather, she

proceeded with treatment designed for children who have alleged

sexual abuse. Thus, contrary to the expert witnesses in Hall,

Ms. McClure never formed an opinion as to whether abuse had in

fact occurred, and thus, the trial court did not err by

admitting her testimony.

Since defendant failed to establish that the trial court

erred by admitting these statements, we conclude that there

cannot be plain error. See Torain, 316 N.C. at 116, 340 S.E.2d
 -15-

at 468.

III. Motion to Dismiss

Defendant also argues that the trial court erred when it

denied defendant’s motion to dismiss the charges for taking

indecent liberties with a minor. Defendant claims that the

State did not produce substantial evidence that defendant rubbed

Jessica’s vagina or engaged in analingus – the two factual

theories upon which the jury convicted defendant for these

charges. We agree.

The first matter we must address is whether defendant

waived this issue on appeal. The State argues that defendant

waived review of this issue because he presented a different

argument at trial supporting the motion to dismiss than the

argument he now presents on appeal. It is well-settled in North

Carolina that where a theory argued on appeal was not raised

before the trial court, “the law does not permit parties to swap

horses between courts in order to get a better mount.” State v.

Augustine, 359 N.C. 709, 721, 616 S.E.2d 515, 525 (2005)

(citations omitted). At trial, defendant’s motion to dismiss

was based upon lack of evidence for the rape and incest charges.

As to the indecent liberties charges, defense counsel objected

only on the basis that the indictments were vague. At the close
 -16-

of all evidence, defense counsel reinstated his motion to

dismiss all charges but did not specifically assert that the

motion was tied to lack of evidence for the indecent liberties

charges.

We hold that defendant did not preserve this issue on

appeal because he did not state the specific grounds for the

motion to dismiss which he now argues on appeal. See N.C. R.

App. P. 10(a)(1) (2013); Augustine, 359 N.C. at 721, 616 S.E.2d

at 525. However, defendant requests that we invoke Rule 2 of

the North Carolina Rules of Appellate Procedure to reach the

merits of this issue. See N.C. R. App. P. 2 (2013). This Court

has previously utilized Rule 2 to reach the merits of issues

concerning sufficiency of the evidence and motions to dismiss

where theories used to support the motions at the trial level

differed from those raised on appeal. See State v. Martinez,

___ N.C. App. ___, ___, 749 S.E.2d 512, 514 (2013) (invoking

Rule 2 to review the merits of denial of a motion to dismiss on

appeal despite defendant relying on a different argument for

dismissal at trial). Thus, in accordance with caselaw and to

prevent manifest injustice, we invoke Rule 2 to reach the merits

of defendant’s argument here.

The trial court’s ruling on a motion to dismiss is reviewed
 -17-

de novo on appeal. State v. Bagley, 183 N.C. App. 514, 523, 644

S.E.2d 615, 621 (2007). Under the de novo standard of review,

this Court considers the matter anew and freely substitutes its

own judgment for the lower court’s. Sutton v. N.C. Dep’t of

Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999). When

a trial court rules on a motion to dismiss, it must determine

whether the State presented substantial evidence of each

essential element of that offense. State v. Davis, 74 N.C. App.

208, 212, 328 S.E.2d 11, 14 (1985). Substantial evidence is

that which “a reasonable mind might accept as adequate to

support a conclusion.” State v. Barden, 356 N.C. 316, 351, 572

S.E.2d 108, 131 (2002). The trial court must consider the

evidence in the light most favorable to the State and give the

State any reasonable inference that can be drawn therefrom.

State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).

A person is guilty of taking indecent liberties with a

minor, if

[B]eing 16 years of age or more and at least
5 years older than the child in question, he
either: (1) willfully takes or attempts to
take any immoral, improper, or indecent
liberties with any child of either sex under
the age of 16 years for the purposes of
arousing or gratifying sexual desire; or (2)
willfully commits or attempts to commit any
lewd or lascivious act upon or with the body
or any part or member of the body of any
 -18-

child of either sex under the age of 16
years.

N.C. Gen. Stat. § 14-202.1 (2013).

This case is comparable to State v. Mueller, 184 N.C. App.

553, 647 S.E.2d 440 (2007). In Mueller, the defendant was

indicted for thirty-three felonies and three misdemeanors based

on alleged sexual misconduct with his biological daughter and

his stepdaughter. Id. at 556, 647 S.E.2d at 444. Five of the

indictments were for the crime of taking indecent liberties with

a minor; to support one of these charges, the jury was

instructed, and the verdict sheet listed, the specific act of

the defendant asking the alleged victim to perform oral sex on

him. Id. at 557, n.1, 647 S.E.2d at 445. The jury found him

guilty for one count of taking indecent liberties with a minor

based on this factual theory. Id. On appeal, defendant argued

that the trial court erred by denying his motion to dismiss this

charge because the State did not produce substantial evidence

that the defendant in fact asked the alleged victim to perform

oral sex. Id. at 560, 647 S.E.2d at 446. The Court agreed;

even though the victim testified “at length” as to acts

supporting other charges, such as defendant placing his penis

between the victim’s thighs and ejaculating on her, the State

failed to produce substantial evidence that he asked her to
 -19-

perform oral sex. Id. at 561, 563, 647 S.E.2d at 447-48.

Because the trial court specified this act in its instruction

and the jury identified this fact as supporting the conviction

in its verdict sheet, the State was required to produce

substantial evidence of this act to survive a motion to dismiss.

Id. Thus, because it failed to do so, this Court reversed the

conviction and dismissed the charge.

Here, like in Mueller, the trial court specified facts

supporting the charges of taking indecent liberties with a minor

in its jury instructions, and those facts were included on the

verdict sheets. Thus, pursuant to Mueller, in order to overcome

defendant’s motion to dismiss, the State was required to produce

substantial evidence of the two factual theories upon which the

charges of taking indecent liberties with a minor were premised

– that defendant rubbed Jessica’s vagina and performed

analingus.

First, the State argues that it produced substantial

evidence that defendant performed analingus on Jessica. We

disagree. Analingus is defined as “the stimulation of the anal

opening by the tongue or lips.” State v. White, 101 N.C. App.

593, 606, 401 S.E.2d 106, 113 (1991). Jessica testified that

defendant “put[] his mouth on [her] butt” and “kissed” her
 -20-

“butt.” The State argues that, viewing the evidence in the

light most favorable to the State, this testimony constituted

substantial evidence that defendant performed analingus and was

corroborated by the video interview wherein Jessica told Ms.

Horner that defendant “started kissing [her privates] even

inside” and “then he did my butt.” However, the forensic

interview was admitted only to corroborate Jessica’s in-court

testimony and was not to be considered as substantive evidence.

Without more, we cannot conclude that Jessica’s testimony that

defendant “kissed” her “butt” amounted to substantial evidence

that “a reasonable mind might accept as adequate to support

[the] conclusion” that defendant stimulated Jessica’s anal

opening with his tongue or lips. Thus, we vacate defendant’s

conviction for taking indecent liberties with a minor premised

on analingus. See State v. Hunt, __ N.C. App. __, __, 728

S.E.2d 409, 415 (2012) (vacating a conviction for crime against

nature where evidence was insufficient to withstand the

defendant’s motion to dismiss).

Next, the State argues that it produced substantial

evidence that defendant rubbed Jessica’s vagina. Again, we

disagree. Jessica testified that defendant kissed and rubbed

her butt, put his mouth on her private part and butt, made
 -21-

Jessica rub his penis, and put his penis in her mouth. The only

evidence supporting the theory that defendant rubbed Jessica’s

vagina is in the forensic video, where Jessica said that

defendant rubbed her vagina with his finger and rubbed his

testicles on her “private.” Because the video was admitted for

corroborative and not substantive purposes, and because no

substantive evidence was admitted tending to show that defendant

rubbed Jessica’s vagina, we hold that the State failed to

produce substantial evidence to support this theory. Thus, we

vacate defendant’s conviction for taking indecent liberties with

a minor premised on rubbing Jessica’s vagina. See Hunt, __ N.C.

App. at __, 728 S.E.2d at 415.

Although it is clear that the State produced substantial

evidence of acts that would support a conviction of taking

indecent liberties with a minor generally, we are constrained by

Mueller to analyze defendant’s motion to dismiss in light of the

specific instructions provided by the trial court and the facts

specified in the verdict sheets. Because the State failed to

produce substantial evidence of those facts, we must vacate

defendant’s convictions for these charges. Further, because

these convictions were consolidated with two counts of statutory

sex offense for sentencing, we remand this matter to the trial
 -22-

court for resentencing. See State v. Wortham, 318 N.C. 669,

674, 351 S.E.2d 294, 297 (1987) (remanding for resentencing

where one or more but not all convictions consolidated for

judgment had been vacated on appeal).

IV. Jury Instructions

Defendant’s final argument is that the trial court

committed plain error when it instructed the jurors that they

could convict defendant of taking indecent liberties with a

minor based on the theories that defendant rubbed Jessica’s

vagina and performed analingus because they were not supported

by the evidence. Because we vacate the two convictions for

taking indecent liberties with a minor, we need not address this

issue on appeal.

Conclusion

We hold that the trial court did not err by admitting video

footage of the forensic interview into evidence because it was

admitted only for corroborative purposes and the trial court

gave a proper limiting instruction. Furthermore, the trial

court did not err by admitting Ms. McClure’s or Ms. Reynolds’s

testimony because neither statements rose to the level of

improper expert opinion. Finally, we vacate the convictions for

two counts of taking indecent liberties with a minor because the
 -23-

State failed to produce substantial evidence of the facts

supporting those charges, and we remand for resentencing.

NO ERROR IN PART; VACATED AND REMANDED IN PART.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).