State v. Jimenez

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-1294

Filed: 15 September 2015

Onslow County, No. 11 CRS 54362

STATE OF NORTH CAROLINA

v.

EDWIN JIMENEZ

Appeal by defendant from judgment entered 22 April 2014 by Judge Paul L.

Jones in Onslow County Superior Court. Heard in the Court of Appeals 21 April

2015.

Roy Cooper, Attorney General, by Natalie Whiteman Bacon, Assistant Attorney
General, for the State.

Paul F. Herzog for defendant-appellant.

DAVIS, Judge.

Edwin Jimenez (“Defendant”) appeals from his conviction for taking indecent

liberties with a child. On appeal, he contends that the trial court (1) erred in

admitting evidence of his possession of three pornographic DVDs; and (2) committed

plain error in permitting a lay witness to give expert testimony. After careful review,

we conclude that Defendant received a fair trial free from prejudicial error.

Factual Background
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Opinion of the Court

The State presented evidence at trial tending to establish the following facts:

In July 2008, Defendant and his wife, Priscilla Musto (“Musto”), resided in Sneads

Ferry, North Carolina. From 5 July through 31 July 2008, Musto’s younger half-

sister, E.S.1 — who normally lived with her mother in New York — stayed with

Defendant and Musto at their home in Sneads Ferry. E.S. was 15 years old at the

time.

Throughout the course of her stay with Defendant and Musto, E.S. experienced

multiple incidents of sexual abuse by Defendant. E.S. testified that this abuse

included Defendant (1) feeling her breast and digitally penetrating her vagina in the

guest room of Defendant’s and Musto’s home; (2) regularly coming into her bedroom

in the early morning hours while she was sleeping and digitally penetrating her

vagina while he simultaneously masturbated; (3) taking her into the garage on

several occasions and forcing her to perform oral sex upon him; and (4) on one

occasion, taking her into his bedroom, forcing her to remove her clothes, and then

inserting the tip of his penis into her vagina.

E.S. did not report Defendant’s actions to anyone while she was staying with

Defendant and Musto. In August 2008, E.S. returned home to New York.

On 21 September 2010, E.S. recounted several details of Defendant’s sexual

abuse to a high school social worker, Michele Morris (“Morris”). Morris reported

1Initials are used throughout this opinion to protect the identity of the victim who was a minor
during the incidents at issue.

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Opinion of the Court

Defendant to “the [New York] children’s services department . . . the [New York]

police department . . . child services in North Carolina . . . and the [North Carolina]

police department,” submitting a written statement concerning E.S.’s allegations to

the Onslow County Sheriff’s Office. E.S. met regularly with Morris throughout the

ensuing school year and continued to disclose additional details about Defendant’s

abuse over the course of their meetings.

On 21 June 2011, E.S. returned to North Carolina and met with Sergeant Mark

Perrigo (“Sergeant Perrigo”) of the Onslow County Sheriff’s Office. At Sergeant

Perrigo’s request, E.S. provided a written statement describing Defendant’s abusive

actions. The statement alleged, in part, that during July 2008, Defendant digitally

penetrated her vagina and forced her to perform oral sex upon him.

On 24 June 2011, Detective John Getty (“Detective Getty”) with the Onslow

County Sheriff’s Office’s Juvenile Division reviewed E.S.’s statement and conducted

a telephone interview with her. During the course of the interview, E.S. repeated her

allegations of sexual abuse by Defendant. After interviewing E.S., Detective Getty

obtained statements from Morris, Musto, George Contreras (“Contreras”) (Musto’s

father), and Linda Swiggett (“Swiggett”) (a former neighbor and family friend of

Defendant and Musto) as part of his investigation into E.S.’s allegations.

On 8 May 2012, Defendant was indicted on three counts of taking indecent

liberties with a child. Defendant was also charged with three counts of statutory rape

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Opinion of the Court

and three counts of crime against nature. A jury trial was held in Onslow County

Superior Court before the Honorable Paul L. Jones on 13 April 2014.

At trial, the State offered testimony from, among other witnesses, E.S., Morris,

Sergeant Perrigo, Contreras, Swiggett, Musto, and Detective Getty. During their

testimony, Contreras and Swiggett related that in June 2011, Defendant had called

each of them to discuss E.S. Contreras testified as follows concerning his

conversation with Defendant:

Q. Okay. What did [Defendant] start telling you?

A. About the fact that he was being charged with some sex
molestation.

Q. Okay. What else did he tell you?

A. He told me that [E.S.] was practically coming on to him,
and it was sort of like a consensual thing, yeah, that’s what
it was. I mean, you know, it was something that he was
being accused for which is a lie, that’s what he said.

Swiggett also testified to a similar conversation with Defendant:

Q. You start talking to him about how, I’m not saying the
word “rape”, but there had been touching. Is that pretty
much how the conversation was going?

A. He kept repeating that to me. And I -- I don’t remember
everything in the conversation. It was a very emotional
conversation. He said that she came on to him; that, you
know, she had touched his privates; he had touched her,
nothing more, just repeatedly that he had not forced
himself on her.

Q. So that she came on to him, he said that to you?

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Opinion of the Court

A. Yes.

Q. Did he also say -- is this correct -- that she had touched
his privates?

A. Yes.

Q. That you mentioned him saying, also, that he had
touched her, is that correct?

A. Yes.

....

Q. As far as your statement [to Detective Getty], the
members of the jury have had a chance to read that and
you’ve got this up here with you, as well. Do you remember
[Defendant] telling you as you wrote in here, that he said
that [E.S.] touched him in his privates, that he touched her,
they were kissing and it got out of control? It’s towards the
end of that second big paragraph. Do you remember him
actually saying the portion about it getting out of control
and kissing, in addition to what you just testified to?

A. I don’t remember, exactly. I’m sure this is exactly what
was said, I wrote it at the time. I mostly remember that he
just kept repeating that, you know, he didn’t rape her, and
I wanted to know, what did you do, and the whole situation
was out of control, she came on to me. He was upset, I was
upset.

Musto also testified on behalf of the State. She stated that around September

2010, she was made aware of allegations that Defendant had engaged in sexual acts

with E.S. Musto testified that “I remember specifically having an argument with

[Defendant] in our bedroom, and him turning around and yelling at me and telling

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Opinion of the Court

me that he had kissed [E.S.] and that she had came [sic] on to him and that that was

all that had happened, that I was making a big deal out of nothing, and that’s -- that

my sister was a liar and that we were -- I was making a big deal out of nothing.”

Musto further testified that shortly thereafter, E.S. disclosed Defendant’s

abuse to her:

Q. Okay. And what would you say about [E.S’s] ability to
disclose to you, at that point in time?

A. She still wasn’t able to disclose to me information,
details. I still don’t know details. She did tell me that he
had forced her to perform oral sex. He had told -- she told
me that it had happened a couple times during the time,
that summer in 2008 that she was here. She told me that
he had threatened her that if I ever found out that I wasn’t
going to -- I was going to blame her and I wasn’t going to
love her.

Musto also testified that while cleaning out Defendant’s bedroom closet in 2011

following her separation from him, she found multiple photographs of E.S. taken

around 2008 — when E.S. was still 15 years old — stored together with “a lot of”

pornographic DVDs.

Defendant testified on his own behalf at trial and denied that he had ever

engaged in any inappropriate sexual conduct with E.S. He stated that there were

two incidents that occurred during which E.S. made inappropriate sexual advances

toward him, which he described as follows:

A. And then the last room that I left -- the last room that I
vacuumed was the guest room. That’s where [E.S.] was

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Opinion of the Court

sitting in [sic] the computer. I asked [E.S.] to move out of
the way so I can vacuum the area that she was sitting on,
and then she went back and -- she went back to the
computer, and I just finished the whole entire room. At
this point, I’m done, I’m done vacuuming. I unplugged the
vacuum cleaner from the socket, and I’m rolling the cord
up . . . [E.S.] gets up, comes towards me while I’m rolling -
- I’m wrapping up the cord . . . So she comes up to me, and
she says, “Eddie.” She hugs me. I did not expect this. She
hugged me, and the first thing she said was, “Thank you
for helping my sister. I’m very happy that my sister -- that
you are helping my sister.”

At this point, I say, “You’re welcome.” I pat her on
the back. As we are separating, she tries to kiss me, and I
pushed [E.S.] away. I have one hand on the vacuum
cleaner, and I pushed [E.S.] away and, when I did that, one,
I was in shock; and, two, I said, “What are you doing?” She
said, “Oh, I’m sorry. I was just kidding around.” I go, “I
am a grown man, and you’re disrespecting me in my own
house. That is not a way for a young lady to act towards
anybody.”

Q. Where was this kiss directed?

A. Towards my mouth, and it never happened, because I
pushed her away before it even touched me.

Q. What happened, if anything, after that?

A. After that, I -- she said -- she apologized for -- for her
behavior. I wrapped up the cord, I put the vacuum cleaner
into the closet, I left my house and I went to my job, to my
office. I have keys to my office, and I just went to my job
and kept -- and did some work that I needed to get done.

....

Q. When this incident occurred and you left your house,
was there some future time something else happened? Was

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Opinion of the Court

there another occasion when [E.S.] and you -- some
incident happened?

A. Yes. The first incident, I thought that was the end of it,
I thought that was it. I thought I was very clear to [E.S.],
it’s not -- something that you do not do, or try to do with a
grownup. The second incident probably happened a week
and a half later. I’m coming out of the master bathroom --

Q. The bathroom?

A. The bathroom, the master bathroom, I’m coming out of
[sic] master bathroom. I just used the bathroom, I’m fully
clothed. [E.S.] comes into the master bathroom, through
the door, through the main door, and I’m coming out of the
bathroom. [E.S.] runs and strad -- she jumps on me and
straddles me, and puts her hands behinds [sic] the back of
my neck. At this time, I take [E.S.’s] hands and take them
off my neck and push [E.S.] down to the ground.

Q. You mean on the floor?

A. On the floor, on the floor and the carpet. And I thought
things were -- I was in shock. I mean, I told [E.S], “If you
keep on doing -- being -- doing your misbehavior, basically
the way that you’re being towards me, I am going to tell
your mother and I’m going to tell your sister.” And I did
warn her, [i]f this happens again, all bets are off. I will tell
your mom. And her mother was coming down a couple of
days later. So I did threaten her that I would tell her
mother of her misbehavior towards me.

At this point, [E.S.] turns and tells me, “Please do
not tell anything to my sister or my mom, because you
know how they are.” She said -- she told me, “I promise not
to do anything towards you, if you do not say anything to
my mom or my sister.” At this point, I took -- I went ahead
and I told her, “Fine, I will not say anything, but if
anything else happens after this, I’m telling everything
that you have done.” She said, “Okay,” and that’s how we

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Opinion of the Court

left it. That was the only two incidents that happened in
my house, and I was -- one, I did tell [E.S.], “You’re
disrespecting me in my home. You took advantage of my -
- of my trust towards you.”

The jury found Defendant guilty of one count of taking indecent liberties with

a child and acquitted him of the remaining charges. Defendant was sentenced to 16-

20 months imprisonment and ordered to register as a sex offender for a period of 30

years. Defendant gave oral notice of appeal in open court.

Analysis

I. Admission of DVDs

Defendant’s first argument on appeal is that the trial court erred in admitting

evidence relating to three pornographic DVDs found by Musto in his bedroom closet

in 2011. Defendant contends that the evidence regarding the DVDs lacked any

probative value, or, alternatively, that this evidence was more prejudicial than

probative.

A person is guilty of taking indecent liberties with children
if, being 16 years of age or more and at least five 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 purpose
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 child of either sex
under the age of 16 years.

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Opinion of the Court

N.C. Gen. Stat. § 14-202.1(a) (2013).

“‘Indecent liberties’ are defined as such liberties as the common sense of society

would regard as indecent and improper. It is not necessary that defendant touch his

victim to commit an immoral, improper, or indecent liberty within the meaning of the

statute. Thus, it has been held that the photographing of a naked child in a sexually

suggestive pose is an activity contemplated by the statute. Furthermore, a variety of

acts may be considered indecent and may be performed to provide sexual gratification

to the actor.” State v. Martin, 195 N.C. App. 43, 51, 671 S.E.2d 53, 59 (2009) (internal

citations, quotation marks, and brackets omitted).

The elements of taking indecent liberties with a child are:

(1) the defendant was at least 16 years of age; (2) he was
five years older than his victim; (3) he willfully took or
attempted to take an indecent liberty with the victim; (4)
the victim was under 16 years of age at the time the alleged
act or attempted act occurred; and (5) the action by the
defendant was for the purpose of arousing or gratifying
sexual desire.2

Id. at 50, 671 S.E.2d at 59 (citation omitted).

In the present case, Musto testified as follows regarding her discovery of the

DVDs:

Q. Now, when you were clearing out [Defendant’s] items in
his room, did you, at the time of separation, in 2011, that
summer, did you find anything else in that room?

2It is undisputed that during the time period at issue (1) Defendant was over 16 years old and
more than five years older than E.S.; and (2) E.S. was under the age of 16.

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Opinion of the Court

A. Yes.

Q. Okay. What else did you find?

A. I found pornography.

Q. Okay. And did you find anything striking about the type
of pornography that you found?

A. There was a lot of it, and -- but it’s -- it didn’t -- the ones
that stood out in my mind were the ones that were teen or
young affiliated by the name, the names of them. Like, one
sticks out, it said it was high school something or other.
The other one was teenage -- had a name of teenage as a
title of it, teenage something.

The three DVDs at issue — which were introduced as State’s Exhibits 10-A,

10-B, and 10-C — were discovered by Musto in Defendant’s bedroom closet along with

pictures of E.S. taken around 2008 when she was 15 years old. The contents of the

DVDs were not shown to the jury; instead, only the DVD covers were admitted, and

Musto was allowed to read their titles to the jury. The trial court instructed the jury

immediately after the admission of this evidence that “the Court cautions you that

these are only covers, they’re not being viewed, so we actually don’t know what’s on

them.”

The first DVD, State’s Exhibit 10-A, is titled “Headmaster” and the cover

contains a picture of two females, one of whom is wearing an outfit suggestive of a

parochial school girl’s uniform and is seated on the floor in front of a man who is

standing over her with his arms outstretched with her mouth in close proximity to

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Opinion of the Court

his genitals. The second DVD, State’s Exhibit 10-B, is titled “Fast Times at Deep

Crack High,” and the cover displays two mostly nude females wearing only

cheerleading skirts standing in front of a bank of school lockers. The third DVD,

State’s Exhibit 10-C, is titled “Teenage Peach Fuzz,” and its cover shows a scantily

clad female in a sexually suggestive pose. While the precise ages of the females

depicted on the covers of the DVDs cannot be discerned, they can be generally

described as young women.

North Carolina Rule of Evidence 404(b) states, in pertinent part, that

[e]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.

N.C.R. Evid. 404(b). Under North Carolina Rule of Evidence 403, “[a]lthough

relevant, evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” N.C.R. Evid. 403.

[W]hen analyzing rulings applying Rules 404(b) and 403,
we conduct distinct inquiries with different standards of
review. . . . We review de novo the legal conclusion that the
evidence is, or is not, within the coverage of Rule 404(b).
We then review the trial court’s Rule 403 determination for
abuse of discretion.

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Opinion of the Court

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012).

In applying Rule 404(b), this Court has held that

[c]ases decided under N.C.R. Evid. 404(b) state a general
rule of inclusion of relevant evidence of other crimes,
wrongs, or acts by a defendant, subject to but one exception
requiring its exclusion if its only probative value is to show
that the defendant has the propensity or disposition to
commit an offense of the nature of the crime charged.

Relevant evidence is evidence having any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence.

State v. Houseright, 220 N.C. App. 495, 497-98, 725 S.E.2d 445, 447 (2012) (internal

citations and quotation marks omitted). However, while we construe Rule 404(b) as

a general rule of inclusion, it is nevertheless “constrained by the requirements of

similarity and temporal proximity.” State v. Al-Bayyinah, 356 N.C. 150, 154, 567

S.E.2d 120, 123 (2002).

Defendant argues that pornography not bearing any relation to the offense for

which he was charged is inadmissible under Rule 404(b). Defendant is correct that

[a]s a general rule, evidence of a defendant’s prior conduct,
such as the possession of pornographic videos and
magazines, is not admissible to prove the character of the
defendant in order to show that the defendant acted in
conformity therewith on a particular occasion. However,
such evidence of prior conduct is admissible so long as it is
relevant to some purpose other than to show the character
of the defendant and the defendant’s propensity for the
type of conduct for which he is being tried. Examples of
such proper purposes include proof of motive, opportunity,

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Opinion of the Court

intent, preparation, plan, knowledge, identity, or absence
of mistake, entrapment, or accident.

State v. Smith, 152 N.C. App. 514, 521, 568 S.E.2d 289, 294 (internal citations and

quotation marks omitted), appeal dismissed and disc. review denied, 356 N.C. 623,

575 S.E.2d 757 (2002). The State contends that the DVD evidence was properly

admitted under Rule 404(b) due to the fact that the DVDs were “of an uncommon and

specific type of pornography[,]” characterizing the three DVDs as “depict[ing] the

sexualization of teenage girls” and asserting that “E.S. was the clear object of the

sexual desire implied by the possession.”

In State v. Brown, 211 N.C. App. 427, 710 S.E.2d 265 (2011), aff’d per curium,

365 N.C. 465, 722 S.E.2d 508-09 (2012), the defendant was charged with taking

indecent liberties with a child and first-degree rape of his ten-year-old daughter. Id.

at 427-28, 710 S.E.2d at 266-67. During a subsequent investigation of the defendant’s

home by a Department of Social Services social worker and a detective, a copy of an

erotic publication called “Family Letters” was discovered. The publication contained

anonymous letters purporting to describe the correspondents’ sexual experiences

with other family members. Graphic illustrations accompanied the letters. Id. at

428-29, 710 S.E.2d at 267. The defendant moved to exclude this evidence, but the

trial court denied his motion and admitted the publication as evidence of the

defendant’s intent or motive to commit the offenses with which he was charged. Id.

at 429, 710 S.E.2d at 267.

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Opinion of the Court

On appeal, the defendant argued that the trial court erred in admitting the

Family Letters because it was purely inadmissible character evidence. Id. at 430,

710 S.E.2d at 268. In rejecting the defendant’s argument, we stated the following:

In arguing that Family Letters was inadmissible because
it was not shown to [the defendant’s daughter] or was not
“used in the commission of the offense,” [the defendant]
relies on previous decisions by this Court holding that
evidence of possession of pornography, or evidence of
deviant sexual conduct, was inadmissible because the
evidence in each case did not serve an appropriate Rule
404(b) purpose. However, these holdings, in light of the
inclusive nature of Rule 404(b), cannot be read to create
any broadly-applicable rule with respect to the
admissibility of pornography in a criminal case. The
determination in each case was not whether possession of
pornography is ever relevant to serve a purpose other than
proving a defendant’s propensity to act in a certain way.
Rather, the determination in each case was whether
possession of pornography in that case provided relevant,
non-propensity proof under the circumstances of the case. .
..

The circumstances of this case, however, are easily
distinguishable from [other Rule 404(b) pornography]
cases: the possession was of an uncommon and specific type
of pornography; the objects of sexual desire aroused by the
pornography in evidence were few; and the victim was the
clear object of the sexual desire implied by the possession.
Accordingly, the relevance of the evidence of [the
defendant’s] possession of Family Letters is not governed
by this Court’s prior decisions holding as inadmissible
evidence of a defendant’s possession of general
pornography, and we conclude that the trial court correctly
admitted evidence of [his] possession of Family Letters as
relevant evidence showing both [his] motive and intent in
committing the acts underlying the charged offenses, two
proper purposes for such evidence under Rule 404(b).

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Opinion of the Court

Id. at 431-32, 710 S.E.2d at 268-69 (internal citations omitted).

In the present case, the DVD covers — collectively — convey themes related to

the sexualization of high school age girls and the submission of young women to older

men. Absent the presence of the photographs of E.S. found in close proximity to the

DVDs in Defendant’s bedroom closet, the admissibility of this evidence under Rule

404(b) would present a closer question. However, given that pictures of E.S. taken

when she was approximately 15 years old were found in Defendant’s bedroom closet

along with pornographic DVDs depicting the sexualization of high school age girls,

we believe this evidence was sufficiently probative of motive and intent to warrant

admission under Rule 404(b).3

Moreover, based on the evidence in this case, we cannot say that the trial court

abused its discretion in conducting the Rule 403 balancing test. See Brown, 211 N.C.

App. at 438, 710 S.E.2d at 273 (“[A]side from [the defendant’s] own unsupported

contention, there is nothing to show that the jury convicted [him] solely out of ‘disgust’

for the content of [his] pornography. As such, we must conclude that the jury’s

3 Defendant also asserts that the discovery of the DVDs in 2011 was too remote in time from
the dates of the acts forming the basis for his charges to allow their admission under Rule 404(b).
However, we have held that remoteness in time generally affects only the weight afforded to such
evidence rather than its admissibility. See State v. Mangum, __ N.C. App. __, __, 773 S.E.2d 555, 563
(2015) (“Remoteness in time generally affects only the weight to be given Rule 404(b) evidence, not its
admissibility.” (citation, quotation marks, and brackets omitted)). Moreover, the force of Defendant’s
argument on this issue is diminished by the fact that any gap in time between the acts of abuse and
the discovery of the pornographic DVDs is eclipsed by the fact that these DVDs were found in close
proximity to pictures of E.S. taken at or around the time period in which the sexual abuse occurred.

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Opinion of the Court

potential disapproval of [the defendant’s] possession of the pornography did not

substantially outweigh the strong probative value of the evidence in showing [his]

motive, intent, and purpose with respect to the alleged conduct.”). Therefore,

Defendant’s argument on this issue is overruled.

II. Morris’ Testimony

Defendant’s final argument on appeal is that the trial court plainly erred by

allowing Morris to offer expert testimony regarding E.S.’s allegations of sexual abuse.

Prior to trial, Defendant filed a motion in limine seeking to prohibit the State from

eliciting expert testimony from Morris on the ground that she had not previously been

identified as an expert witness by the State.

The scope of Morris’ anticipated testimony was discussed during a pre-trial

hearing:

[DEFENSE COUNSEL]: Judge, one thing that I am
specifically concerned about, as a result of conversations
with the district attorney, was that there would be a great
chance that they might want to propound to this witness
for an expert opinion as to why or if, based on her
experience and training, females do not disclose sexual
attacks right away after they happen. The period of time
in this case is two years. So I am concerned that that’s
what they’re going to do, and I don’t think that’s
admissible, and I think it’s -- should be addressed before it
arises.

[PROSECUTOR]: Judge, I mean, I agree that we -- like --
once again, I can’t ask any questions about the nature of
disclosure in child sex cases or with females. I think there’s
a fine line between saying, you know, how do these things

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Opinion of the Court

work and getting into expert testimony and saying --
asking other questions about [E.S.], specifically, in her
experience with [E.S.] and what she’s seen. That would go
to -- any lay person could testify to that, and so I agree with
[Defense Counsel] that -- and I don’t intend to offer
anything as -- of her -- proffering her as an expert in the
field of child forensic psychology, or anything of the sort,
but I do think that there’s a distinction where, if an expert
is a lay witness, as well, it can kind of -- the Court would
have to, obviously, make a ruling on that, if it were to come
up.

THE COURT: Well . . . the times that I’ve tried these type
cases, the witness was able to give an opinion as to why a
person has made a delayed disclosure, so they will be able
to pursue that.

Morris then proceeded at trial to testify as a witness for the State. During her

testimony, the following exchange took place:

[Morris]: I’ve had several cases of sexual abuse revealed to
me and, in most of those cases, information with those
particular victims have been coming forth, like,
sporadically. They -- depending on the person, the trauma
to the person or their mental state, being able to divulge
parts of it at a time depends on how the person can handle
--

[DEFENSE COUNSEL]: Judge, we will object.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Based on our motion.

Later in Morris’ direct examination, she testified as follows without objection

by Defendant’s trial counsel.

Q. And at the -- at what point, did [E.S.] disclose anything

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Opinion of the Court

to you from that summer?

A. I believe it was a trigger that prompted her to disclose.
Her sister and [Defendant] were coming to New York on
that particular date, and that -- I believe it brought -- it put
her under tremendous anxiety and, at that point, she
revealed the information to me.

....

Q. And did you notice anything about [E.S.], after she had
disclosed to you?

A. From that point forward, we continued to meet, and
there was a lot of anxiety, a lot of very, like, nervous
behavior over the next few months, because I worked with
her until the end of the school year, and she was -- she was
under a lot of stress, a lot of anxiety, you know. We call it,
like, reliving the trauma again. So I think it brought back
a lot of memories.

....

Q. At the same time, were you working with [E.S]
emotionally?

A. Oh, absolutely. In situations like this when, you’re
working with a client, again, like I said, there’s a lot of
anxiety, there’s a lot of shame, there’s a lot of -- of guilt.
There’s a lot of -- there’s a lot of -- sometimes depression
that comes up, because the person is having all these mixed
feelings about what they could have done to possibly, like,
avoid the situation, their part in the situation. So there
was a lot of, like, having to reassure her that, you know,
she -- she was 15 years old, and it was not her place -- her
responsibility to keep things under control.

Q. So with that, is that -- those things, those things you’re
trained to look for, is that what you saw in [E.S.]?

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Opinion of the Court

A. Absolutely.

....

Q. In your discussions with [E.S.], was she hesitant to
report this?

A. Of course, she was scared. Most kids who come forth
with this kind of information are scared to report it
because, again, they do not know what the outcome is going
to be across the board, within the family, within the legal
system, what’s going to happen, what’s going to happen to
them, you know. Just even having to share or report to
other people what happened, having to tell the story again,
which can be traumatizing, we call it re-traumatizing the
victim, because they have to relive the incident again and
again every time they have to tell the story, so that brings
a huge amount of anxiety on to the person reporting.

....

Q. Was -- what was the nature of her reporting these
incidents? Did she report when her -- when the defendant
and his wife were coming up to New York, did she report it
all at once, or was it piecemeal?

A. I believe, especially when these situation [sic] happen,
the victim only can tell you what they can handle
emotionally. So a lot of times in sexual abuse cases,
information comes out piece by piece, because it’s what the
person can handle emotionally and mentally at the time.
So some parts may come out in the beginning; and then,
over time, the person will begin to share, you know, disclose
a little bit more information, over time. So it depends on
how much that person can handle, mentally and
emotionally, what they disclose.

Defendant contends that the above-quoted testimony was improper because it

amounted to opinion testimony that a lay witness was not permitted to offer and that

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Opinion of the Court

the trial court committed plain error by not intervening ex mero motu, particularly in

light of its ruling on Defendant’s motion in limine. See N.C.R. Evid. 701 (“If the

witness is not testifying as an expert, his testimony in the form of opinions or

inferences is limited to those opinions or inferences which are (a) rationally based on

the perception of the witness and (b) helpful to a clear understanding of his testimony

or the determination of a fact in issue.”).

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
affects 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 citations,

quotation marks, and brackets omitted).

Even assuming, without deciding, that Morris’ testimony did exceed the

permissible scope of lay witness testimony, we conclude that the admission of this

evidence did not rise to the level of plain error. In addition to E.S.’s testimony, the

evidence against Defendant included Swiggett’s, Contreras’ and Musto’s testimony

regarding Defendant’s admissions to each of them that he had inappropriate contact

with E.S. Furthermore, the State presented corroborative evidence from Sergeant

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Opinion of the Court

Perrigo and Detective Getty regarding E.S.’s account of Defendant’s sexual abuse of

her.

The offense of taking indecent liberties requires only an action on the part of

Defendant that “the common sense of society would regard as indecent and improper.”

Martin, 195 N.C. App. at 51, 671 S.E.2d at 59. Here, testimony from multiple

witnesses established that Defendant engaged in at least some form of sexual contact

with E.S. Moreover, while Defendant’s various statements maintained that any

sexual contact between them was consensual, a defendant’s use of force is not an

essential element of the crime of taking indecent liberties with a child. Indeed, in the

context of other sexual crimes against children, we have expressly held that a victim’s

consent is no defense. See State v. Sines, 158 N.C. App. 79, 84, 579 S.E.2d 895, 899

(“[A]n individual may commit the crime of statutory sexual offense regardless of the

defendant’s mistake or lack of knowledge of the child’s age. . . . [C]onsent is not a

defense to the crime of statutory sexual offense.” (internal citations omitted)), cert.

denied, 357 N.C. 468, 587 S.E.2d 69 (2003).

Therefore, Defendant has failed to show that the admission of the challenged

testimony by Morris amounted to plain error. See Elkins, 210 N.C. App. at 126, 707

S.E.2d at 755 (“The plenary evidence incriminating Defendant . . . was such that the

[erroneous] admission of [the lay witness’s] statement did not prejudice Defendant’s

trial. Therefore, even though the admission of the statement was error, we conclude

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Opinion of the Court

it was not plain error.” (internal citation omitted)); see also State v. Whitted, 209 N.C.

App. 522, 530, 705 S.E.2d 787, 793 (2011) (“Defendant contends that this lay opinion

testimony constitutes plain error in that it likely ‘tilted the scales’ and resulted in her

conviction. We are not persuaded. Assuming without deciding that the admission of

[the lay witness’s] testimony was error, we do not believe it was an exceptional,

fundamental error which resulted in a miscarriage of justice or altered the jury’s

verdict.”); State v. Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 286 (2007) (“Though

[defendant’s trial for indecent liberties with a child and first-degree statutory sexual

offense] ultimately rested on whether the jury chose to believe the story of [the victim]

or that of defendant, defendant’s credibility was impeached in many different ways .

. . Given the amount of testimony which directly or indirectly impeached defendant,

the jury had ample evidence, besides the [erroneously admitted] testimony of [the lay

witness], which might have caused it to disbelieve the story of defendant and believe

the story of [the victim]. We find no plain error.”), aff’d per curiam, 362 N.C. 342, 661

S.E.2d 732 (2008).

In a related argument, Defendant contends that he received ineffective

assistance of counsel at trial. Specifically, Defendant asserts that he was “irrevocably

prejudiced” because his trial counsel failed to object to the portions of Morris’

testimony he now challenges on appeal.

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Opinion of the Court

In order to establish ineffective assistance of counsel, “a defendant must show

that (1) counsel’s performance was deficient and (2) the deficient performance

prejudiced the defense.” State v. Phillips, 365 N.C. 103, 118, 711 S.E.2d 122, 135

(2011) (citation and quotation marks omitted), cert denied, __ U.S. __, 182 L.Ed.2d

176 (2012).

Deficient performance may be established by showing that
counsel’s representation fell below an objective standard of
reasonableness. Generally, to establish prejudice, a
defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (internal citations and

quotation marks omitted), cert. denied, 549 U.S. 867, 166 L.Ed.2d 116 (2006).

Moreover, “if a reviewing court can determine at the outset that there is no reasonable

probability that in the absence of counsel’s alleged errors the result of the proceeding

would have been different, then the court need not determine whether counsel’s

performance was actually deficient.” State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d

241, 249 (1985).

For the reasons discussed above, Defendant cannot show a reasonable

probability of a different outcome absent the admission of these portions of Morris’

testimony. Therefore, we reject Defendant’s ineffective assistance of counsel claim.

See State v. Steele, 201 N.C. App. 689, 698, 689 S.E.2d 155, 162 (2010) (“In light of

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Opinion of the Court

this substantial evidence [of guilt], defendant has not met his burden of showing that

the outcome of his trial would have been different had his counsel challenged the

admissibility of the lab report. Accordingly, defendant failed to establish any

ineffective assistance of counsel.”).

Conclusion

For the reasons stated above, we conclude that Defendant received a fair trial

free from prejudicial error.

NO PREJUDICIAL ERROR.

Judges BRYANT and INMAN concur.

Report per Rule 30(e).

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