State v. WalstonÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA12-1377-3

Filed: 1 December 2015

Dare County, Nos. 09 CRS 85-88, 91

STATE OF NORTH CAROLINA

v.

ROBERT T. WALSTON, SR., DEFENDANT

Appeal by Defendant from judgments entered 17 February 2012 by Judge Cy

A. Grant in Superior Court, Dare County. Heard originally in the Court of Appeals

21 May 2013, and opinion filed 20 August 2013. Reversed and remanded to the Court

of Appeals by the North Carolina Supreme Court in an opinion rendered on 19

December 2014, and second Court of Appeals opinion filed 17 February 2015.

Remanded to the Court of Appeals by the North Carolina Supreme Court in an order

rendered 24 September 2015, for re-consideration in light of State v. King, 366 N.C.

68, 366 S.E.2d 535 (2012).

Attorney General Roy Cooper, by Assistant Attorney General Sherri Horner
Lawrence, for the State.

Mark Montgomery for Defendant-Appellant.

McGEE, Chief Judge.
 STATE V. WALSTON

Opinion of the Court

Robert T. Walston, Sr. (“Defendant”) was indicted for offenses involving two

sisters, E.C. and J.C. (together “the children”),1 alleged to have occurred between

June 1988 and October 1989, when J.C. was three to four years old and E.C. was six

to seven years old. In 1994, the children were interviewed by “law enforcement and/or

Social Services[.]” The children did not report the offenses for which Defendant was

later convicted. The children testified at Defendant’s 2012 trial, stating that each

had informed the other in January 2001 of having been sexually assaulted by

Defendant during the June 1988 to October 1989 time period. They also informed

their parents at that time, but law enforcement was not contacted.

J.C. decided to contact law enforcement to report the alleged offenses “near the

end of 2008.” Indictments against Defendant were filed on 12 January 2009, with

superseding indictments filed on 14 November 2011. At the time of Defendant’s trial,

E.C. was twenty-nine years old, and J.C. was twenty-seven years old.

Defendant was convicted on 17 February 2012 of one count of first-degree sex

offense, three counts of first-degree rape, and five counts of taking indecent liberties

with a child. Defendant appealed, and this Court reversed and remanded for a new

trial in part, and found no error in part. State v. Walston, __ N.C. App. __, 747 S.E.2d

720 (2013) (“Walston I”).

1 Though E.C. and J.C. were adults at the time of the trial, because the alleged crimes and
most of the relevant events occurred when E.C. and J.C. were children, and for ease of understanding,
in this opinion we shall refer to them collectively as “the children” even when we are discussing events
that occurred after they reached adulthood.

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 STATE V. WALSTON

Opinion of the Court

In Walston I, we also determined that the trial court, in making its

determination whether to admit certain expert testimony, had applied a version of

N.C. Gen. Stat. § 8C-1, Rule 702 that had been superseded by amendment. Walston

I, __ N.C. App. at __, 747 S.E.2d at 728. Although this issue was not argued by

Defendant on appeal, we instructed the trial court to apply the amended version of

Rule 702 upon remand should it again need to rule on the admissibility of expert

testimony. Id.

The State petitioned our Supreme Court for discretionary review and review

was granted, but only on the issues for which this Court had granted Defendant a

new trial. The Supreme Court reversed the portions of Walston I wherein this Court

granted Defendant a new trial, and remanded for this Court to address one specific

issue. State v. Walston, 367 N.C. 721, 732, 766 S.E.2d 312, 319 (2014) (“Walston II”).

In Walston II, our Supreme Court directed: “On remand the Court of Appeals should

address fully whether the trial court’s application of the former expert witness

standard [Rule 702] was prejudicial error.” Id.

Defendant filed a motion on 5 January 2015 to withdraw our Supreme Court’s

opinion in Walston II, arguing that the Walston II opinion “fail[ed] to address properly

presented issues, [was] based on an incomplete review of the record and interpret[ed]

the Rules of Evidence so as to violate the Constitution.” Our Supreme Court denied

Defendant’s motion to withdraw Walston II and this Court conducted the review

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 STATE V. WALSTON

Opinion of the Court

directed by our Supreme Court. We determined, by opinion filed 17 February 2015,

that Defendant had not been prejudiced by the application of the former expert

witness standard. State v. Walston, __ N.C. App. __, __ S.E.2d __, 2015 WL 680240

(Feb. 17, 2015) (“Walston III”).

Defendant petitioned our Supreme Court for discretionary review on 23 March

2015, arguing:

This Court granted the State’s Petition for Discretionary
Review of the two issues the Court of Appeals granted relief
on. It reversed the Court of Appeals on both issues. It
denied [D]efendant’s Petition for Discretionary Review of
the defense expert testimony issue. It remanded the case
to the Court of Appeals to address an issue never raised at
trial: whether the trial judge employed the “old” Rule 702
or the amended one. The lower court held that, because
the judge excluded the evidence under the old, more lenient
rule, he would have excluded it under the new, more
stringent one.

The issue not reached by the Court of Appeals was the one
raised at trial: whether an expert who has not examined the
complaining witness is excludable as a witness on that
basis. Neither appellate court has addressed that issue.

The opinion of the Court of Appeals is also flawed in that it
found no error because the trial court would have excluded
the proffered evidence under either version of Rule 702.
However the issue on appeal is not what the trial court
would have done but whether it committed error. The
opinion of the Court of Appeals does not address, much less
explain, why it was not error for the trial court to exclude
[D]efendant’s evidence. [Emphasis added, footnote
omitted].

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 STATE V. WALSTON

Opinion of the Court

In its response to Defendant’s 23 March 2015 petition, the State noted that the

issue of the trial court’s exclusion of Defendant’s expert witness was not one included

in the State’s 9 September 2013 petition for discretionary review in response to

Walston I, and that our Supreme Court denied Defendant’s 23 September 2013

conditional petition for discretionary review seeking review of that issue. The State

further argued that Defendant had not articulated any proper basis for discretionary

review as mandated by N.C. Gen. Stat. § 7A-31(c) and that, because this Court

answered the question it was directed by our Supreme Court to answer, there was no

error.

By order entered 24 September 2015, our Supreme Court declined to address

the merits of Defendant’s petition itself and ruled:

[D]efendant’s petition for discretionary review is allowed
for the limited purpose of remanding this case to the Court
of Appeals to (1) determine, in light of our holding and
analysis in State v. King, 366 N.C. 68, 733 S.E.2d 535
(2012) (applying North Carolina Rules of Evidence 403 and
702), and other relevant authority, if the trial court’s
decision to exclude the expert testimony was an abuse of
discretion and, if so, (2) determine if the erroneous decision
to exclude the testimony prejudiced [D]efendant.

In response to our Supreme Court’s 28 September 2015 order, this Court

vacated the certification of Walston III. We now address our Supreme Court’s new

mandate.

I.

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 STATE V. WALSTON

Opinion of the Court

Relevant to the issue currently before us, Defendant argues that the trial court,

based on the erroneous belief that the excluded testimony was not admissible as a

matter of law, improperly excluded Defendant’s testimony of his expert witness, Dr.

Moira Artigues (“Dr. Artigues”), who would have given expert testimony concerning

the suggestibility of children. We agree.

“‘[O]rdinarily, whether a witness qualifies as an expert is exclusively within

the discretion of the trial judge.’ However, where an appeal presents questions of

statutory interpretation, full review is appropriate, and a trial court’s conclusions of

law are reviewable de novo.” FormyDuval v. Bunn, 138 N.C. App. 381, 385, 530

S.E.2d 96, 99 (2000) (citations omitted); see also Cornett v. Watauga Surgical Grp.,

194 N.C. App. 490, 493, 669 S.E.2d 805, 807 (2008). Defendant argues that the trial

court erroneously concluded that this Court’s opinion in State v. Robertson, 115 N.C.

App. 249, 444 S.E.2d 643 (1994), held that Dr. Artigues’ testimony was inadmissible

pursuant to Rule 702 as a matter of law because Dr. Artigues had not personally

interviewed the children. Unfortunately, in the present case the trial court made no

findings of fact or conclusions of law; it simply ruled that Dr. Artigues would not be

allowed to testify, so we have no conclusions of law to review.

In the present case, Defendant attempted to show that statements made by

the children showed that there was a period of years following the alleged abuse when

the children had no recollection of that alleged abuse. For instance, in an email to a

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 STATE V. WALSTON

Opinion of the Court

family friend with counseling experience, E.C. stated that she had blocked out all

memory of the alleged abuse for years:

[DEFENSE COUNSEL:] [Reading from E.C.’s email:]
Third paragraph [from email exchange]. Have you ever
had this incident blocked out? Yes. I don’t remember when
it was blocked out or exactly what I remember-- or when I
remembered it but I know it came back to me in eighth
grade. With the block I forgot many other childhood
memories from this time. I have no other memories of
[Defendant] either.

[DEFENSE COUNSEL:] And was that true what you
wrote there . . . ?

[E.C.:] At the time I wrote it, it was true.

Concerning J.C., clinical records from a September 2001 session J.C. had at

Albemarle Mental Health Center stated: “[J.C.] then reveal[ed] the fact that she was

raped at age five and she did not remember this until she was in the seventh grade.”

J.C. testified regarding statements she had given to an investigator, as follows:

[DEFENSE COUNSEL:] Do you recall telling [the
investigator] during that first interview that you were
sitting in science class and that you were learning how to
use the microscope and that’s what you believe started the
memories was seeing a boy moving his legs in a chair in the
way that [Defendant] used to do, is that what you told her?

[J.C.:] Yes.

[DEFENSE COUNSEL:] And how [long] had those
memories been gone from your consciousness?

[J.C.:] I knew-- I don’t know exactly how long.

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 STATE V. WALSTON

Opinion of the Court

J.C. argued at trial that she had not actually blocked out memories of the

alleged abuse, but had simply decided not to think about it. E.C. admitted that she

had probably completely forgotten about the alleged abuse for up to two years. In

any event, the question of whether the children had “lost” all memory of the alleged

abuse for some period of time was, at a minimum, a contested issue at trial.

Prior to trial, the State filed a motion to suppress Dr. Artigues’ testimony,

arguing:

5. Due to the late disclosure, it is impossible for the State
to secure an expert witness in less than 5 working days to
rebut the defense’s expert witness. Thus, the State
request[s] the Court, pursuant to NCGS § 15A-910, to
prohibit the defense from introducing said expert
testimony.

6. In the alternative, the State requests the Court to
conduct a voir dir[e] hearing as to the admissibility of said
expert testimony.

a. The State contends that the proposed expert
testimony is not relevant or admissible pursuant to
Rule 703 and 403 as this is not a case involving
“repressed” or “recovered” memories.

b. In addition, the State contends the expert is not
qualified pursuant to Rule 702 to testify as to “false
memories being suggested, implanted or evoked,”
specifically since the proposed expert witness has never
examined or evaluated the two alleged victims. Further,
the probative value of the testimony is substantially
outweighed by its potential to prejudice or confuse the
jury pursuant to Rule 403. [Emphasis added.]

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 STATE V. WALSTON

Opinion of the Court

At the motions hearing, the trial court did not rule on the State’s argument to

exclude Dr. Artigues’ testimony as a sanction pursuant to N.C. Gen. Stat. § 15A-910.

The State then moved the trial court to exclude Dr. Artigues’ testimony because the

State contended this was not a “repressed memory case,” based upon this Court’s

opinion in Robertson. The State contended Robertson mandated the exclusion of the

testimony because Dr. Artigues had not personally examined either of the alleged

victims. The following colloquy occurred between the trial court and the attorneys

for Defendant and the State:

[DEFENSE COUNSEL:] [Dr. Artigues was retained to]
testify regarding the theory about repressed memory being
generally unaccepted. And we think given the fact that it
is a repressed memory case it will be reversible error to not
allow us to attack that.

THE COURT: What if I think it’s not a repressed memory,
then I shouldn’t let the psychiatrist testify?

[DEFENSE COUNSEL:] We have two areas. Obviously,
Your Honor, if you think this has nothing to do with
repressed memory then Your Honor may feel that any anti-
repressed memory testimony will be no more relevant than
any expert testimony in support of repressed memory. But
we do have, have retained her for two issues, and the other
issue is to testify about the suggestibility of memory and
how being repeatedly told you were abused, especially
telling a small child that over, many, many over a decade,
telling somebody that can lead [to false memories.]
[Emphasis added.]

THE COURT: Why can’t the psychiatrist testify to that?

....

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 STATE V. WALSTON

Opinion of the Court

[THE STATE:] Your Honor, I do have a case – sounds like
that Your Honor has ruled with respect to this expert can’t
testify to recovered or repressed memories. So then our
second basis is about susceptibility. I would like to hand
up two cases, Your Honor, one of them that is specifically
on point, State versus Robertson, which is a Court of
Appeals case, 115 N.C. App. 249.

....

[THE STATE:] And what happened in [the Robertson] case,
Your Honor, is that the defense had an expert on
suggestibility, that the victim’s memories have been
created or altered or suggested to them in some way. And
the Court said no, this expert can’t testify for several
reasons. One of them is just that the probative value was
not outweighed by the prejudicial effect. But most
importantly the reason the Judge found this is because the
expert never talked to the victims, examined the victims in
any way, shape or form, which is just like this case.

The State further argued: “[T]he Robertson Court . . . specifically said that . . . the

trial court did not err . . . by excluding the testimony of the defense expert psychologist

on suggestibility of the child witness where the witness had never been examined or

evaluated” by the defense expert.

In the case before us, the trial court then requested of Defendant’s counsel:

“Let’s get to the issue where your witness can testify in light of fact that she . . . never

interviewed or spoke with the victim in this case.” Defense counsel argued to the trial

court that there was evidence indicating the children’s mother and “grandmother”2

2 The children considered this person to be their grandmother though she was not a blood
relation.

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 STATE V. WALSTON

Opinion of the Court

had pressured the children in the years following the alleged incidents to admit they

had been molested by Defendant. Defendant’s counsel stated that he believed, in

light of the evidence and the possibility that suggestions from the mother and

“grandmother” could have resulted in false “memories” of sexual assault, that Dr.

Artigues should be allowed to testify concerning general issues of the susceptibility

of children. The trial court then asked Defendant: “Did [Dr. Artigues] talk to anybody

else involved in the case other than you? . . . . Had she talked with anyone else?”

Defendant’s counsel answered that, to his knowledge, Dr. Artigues had not personally

interviewed the children or anyone else involved. The trial court then ruled that it

was “going to deny the testimony of the expert psychologist.”

At the motions hearing, the trial court ruled – based only upon the State’s

arguments, and defense counsel’s proffer of what Dr. Artigues’ testimony would be –

that Defendant could not call Dr. Artigues to testify. The trial court did not articulate

the basis for its decision. Later, following the close of the State’s evidence at trial, a

voir dire was conducted to preserve Dr. Artigues’ excluded opinion testimony for

appellate review. During this voir dire, the trial court cut short testimony concerning

Dr. Artigues’ qualifications, stating: “I’m sure she’s an expert in the field she’s

purported to be an expert in. Let’s get to the issue at hand.”

Following voir dire, Defendant moved for the trial court to reconsider its ruling

and admit the testimony, stating “for the purposes of the record and for no other

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 STATE V. WALSTON

Opinion of the Court

reason, we’d ask the Court to reconsider its ruling[.]” The State argued: “As it applies

to the suggestibility, I remind Your Honor the Embler [case],3 which specifically says

that this type of expert testimony does not come in when the expert has not evaluated

the victim but Your Honor obviously heard that didn’t take place in this case.” The

trial court then stated: “I’m not inclined to change my ruling that this evidence should

not come before the jury.”

From the State’s motion to suppress and the discussions at trial, it is apparent

that the trial court excluded Dr. Artigues’ testimony for two reasons. First, the trial

court seemed to have decided that this case was not a “repressed memory” case and,

therefore, testimony concerning the reliability of recovered memories was not

relevant. The trial court asked Defendant’s counsel at the hearing: “What if I think

it’s not a repressed memory, then I shouldn’t let the psychiatrist testify?” Defendant

and the State understood this comment to mean the trial court was prohibiting

“repressed memory” testimony for that reason. Second, the trial court seemed to

agree with the State’s argument that the trial court could not allow an expert witness

to testify in that situation, even about the general susceptibility of children to

3 Though it is not clear from the record, it appears the State was referring to State v. Embler,
213 N.C. App. 218, 714 S.E.2d 209 (2011) (unpublished opinion).

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 STATE V. WALSTON

Opinion of the Court

suggestion, if that expert had not interviewed the alleged victims. The State provided

the trial court with Robertson in support of this proposition,4

In Robertson, our Court reasoned concerning the defendant’s proposed expert

witness:

Dr. Warren was certified by the trial court as an expert in
clinical psychology and human behavior. Defendant
offered Dr. Warren’s testimony on the phenomenon of
suggestibility. On voir dire, Dr. Warren testified that
suggestibility is the “altering or the creation of memories
through questions, gestures, other stimuli that happen
around the person who is doing the remembering.” Dr.
Warren would have also testified that suggestibility is
significant in young children or intellectually impaired
persons. Defendant offered Dr. Warren’s testimony to
show that the victim’s memory may have been created or
altered through suggestion.

....

Here, Dr. Warren testified that he did not ever examine or
evaluate the victim or anyone else connected with this case.
On these facts, the trial court could properly conclude that
the probative value of Dr. Warren’s testimony was
outweighed by its potential to prejudice or confuse the jury.
Similarly, we are not persuaded that Dr. Warren’s
testimony would have “appreciably aided” the jury since he
had never examined or evaluated the victim. Accordingly,
we conclude that the trial court did not abuse its discretion
in excluding Dr. Warren’s testimony.
Robertson, 115 N.C. App. at 260-61, 444 S.E.2d at 649 (emphasis added). This Court

in Robertson neither created nor recognized a per se rule that expert opinion

4 The State also appears to have argued Embler, 213 N.C. App. 218, 714 S.E.2d 209, in support
of its position. However, we do not find the holdings in Embler relevant to the issues before us. In
addition, Embler is an unpublished opinion and therefore not binding.

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Opinion of the Court

concerning the general suggestibility of children may only be given at trial if the

testifying expert has examined the child or children in question. This Court simply

held that the trial court had not abused its discretion by excluding the proposed

expert testimony pursuant to Rule 403 of the North Carolina Rules of Evidence.

Neither Robertson nor any other North Carolina appellate opinion we have reviewed

recognizes any such per se rule. We hold that expert opinion regarding the general

reliability of children’s statements may be admissible so long as the requirements of

Rules 702 and 403 of the North Carolina Rules of Evidence are met. As with any

proposed expert opinion, the trial court shall use its discretion, guided by Rule 702

and Rule 403, to determine whether the testimony should be allowed in light of the

facts before it. This Court in Robertson merely agreed that the trial court had not

abused its discretion based upon the facts of that case. Id.

As our Supreme Court has stated, expert opinion testimony is useful in

assisting the trier of fact in understanding concepts not generally understood by

laypersons, including when those concepts are relevant in assessing the credibility of

alleged child victims of sexual abuse:

Where scientific, technical, or other specialized knowledge
will assist the fact finder in determining a fact in issue or
in understanding the evidence, an expert witness may
testify in the form of an opinion, N.C.R. Evid. 702, and the
expert may testify as to the facts or data forming the basis
of her opinion, N.C.R. Evid. 703. The testimony of
. . . [expert] witnesses, if believed, could help the jury
understand the behavior patterns of sexually abused

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 STATE V. WALSTON

Opinion of the Court

children and assist it in assessing the credibility of the
victim.

State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 366 (1987).

Further, this Court has held that generalized expert opinion concerning the

reliability of child witnesses is permissible. See In re Lucas, 94 N.C. App. 442, 450,

380 S.E.2d 563, 568 (1989) (doctor’s opinion “related to the general credibility of

children, not credibility of the child in question” who reported sexual abuse was

admissible and his “testimony was more probative than prejudicial under Rule 403”);

State v. Oliver, 85 N.C. App. 1, 12, 354 S.E.2d 527, 534 (1987) (a pediatrician is in “a

better position than the trier of fact to have an opinion on the credibility of children

in general who report sexual abuse”); State v. Jenkins, 83 N.C. App. 616, 624, 351

S.E.2d 299, 304 (1986). In discussing the admissibility of an expert witness’ opinion,

this Court has reasoned:

[U]ntil now, our courts have not been presented with the
question of admissibility of expert testimony on the
credibility of children in general who relate stories of
sexual abuse.

Dr. Scott testified that children don’t make up stories about
sexual abuse and that the younger the child, the more
believable the story.5 He did not testify to the credibility of
the victim but to the general credibility of children who
report sexual abuse. Since such testimony was Dr. Scott’s
interpretation of facts within his expertise, and not his

5 Current science seems to have shifted to a position that young children are more susceptible
to adopting misleading suggestions. See, e.g., Maggie Bruck and Stephen J. Ceci, The Suggestibility
of Children’s Memory, 50 Ann. Rev. Psychol. 419-39 (1999); see also United States v. Rouse, 100 F.3d
560, 569-71 (8th Cir. 1996), reh'g en banc granted, judgment vacated, 107 F.3d 557 (8th Cir. 1997).

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 STATE V. WALSTON

Opinion of the Court

opinion upon the credibility of the specific victim, it is not
excluded by Rule 405. The proper test of its admissibility
is whether he was in a better position to have an opinion
than the jury. In other words, was Dr. Scott’s opinion
helpful to the jury? We determine that it was.

The nature of the sexual abuse of children . . . places lay
jurors at a disadvantage. Common experience generally
does not provide a background for understanding the
special traits of these witnesses. Such an understanding is
relevant as it would help the jury determine the credibility
of a child who complains of sexual abuse. The young child
. . . subjected to sexual abuse may be unaware or uncertain
of the criminality of the abuser’s conduct. Thus, the child
may delay reporting the abuse. In addition, the child may
delay reporting the abuse because of confusion, guilt, fear
or shame. The victim may also recant the story or,
particularly because of youth . . ., be unable to remember
the chronology of the abuse or be unable to relate it
consistently.

Dr. Scott is a pediatrician. He testified he had been a
member of the Child Medical Examiners Program for child
abuse from its beginning in the early 1970’s and since that
time had interviewed approximately one to two children
each month who had allegedly been sexually abused. Dr.
Scott testified he had devoted a portion of his practice to
the examination of children involved in sexual abuse and
that he had kept abreast of information in that area
through professional journals. We find that Dr. Scott was
in a better position than the trier of fact to have an opinion
on the credibility of children in general who report sexual
abuse. His opinion is therefore admissible under Rule 702.

....

Dr. Scott’s opinion was helpful to the jury in determining
the victim’s credibility and was therefore probative.

The jury had the opportunity to see and hear the

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Opinion of the Court

prosecuting witness both upon direct and cross-
examination. The defendants had ample opportunity to
discount Dr. Scott’s testimony both by cross-examination
and presentation of their own expert witness had they
chosen to do so. We find the trial court did not abuse its
discretion by admitting the testimony under Rule 403.

As the testimony was admissible under Rule 702 and Rule
403, we find the trial court did not err in allowing Dr. Scott
to testify on the credibility of children in general who report
sexual abuse.

Oliver, 85 N.C. App. at 11-13, 354 S.E.2d at 533-34. This reasoning applies equally

to both defendant’s and the State’s experts. As this Court, citing the United States

Supreme Court, has noted:

Accuracy in criminal proceedings is a particularly
compelling public policy concern:

The private interest in the accuracy of a criminal
proceeding that places an individual’s life or liberty at
risk is almost uniquely compelling. Indeed, the host of
safeguards fashioned by this Court over the years to
diminish the risk of erroneous conviction stands as a
testament to that concern. The interest of the
individual in the outcome of the State’s effort to
overcome the presumption of innocence is obvious and
weighs heavily in our analysis.

Ake v. Oklahoma, 470 U.S. 68, 78, 84 L. Ed. 2d 53, 63
(1985). The United States Supreme Court has stated that
a defendant on trial has a greater interest in presenting
expert testimony in his favor than the State has in
preventing such testimony:

The State’s interest in prevailing at trial – unlike that
of a private litigant – is necessarily tempered by its
interest in the fair and accurate adjudication of criminal

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Opinion of the Court

cases. . . . .

Ake, 470 U.S. at 79, 84 L.Ed.2d at 63–64.

State v. Cooper, __ N.C. App. __, __, 747 S.E.2d 398, 404 (2013), disc. review denied,

367 N.C. 290, 753 S.E.2d 783 (2014).

“The right to offer the testimony of witnesses . . . is in plain
terms the right to present a defense, the right to present
the defendant’s version of the facts as well as the
prosecution’s to the jury so it may decide where the truth
lies. Just as an accused has the right to confront the
prosecution’s witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to
establish a defense. This right is a fundamental element
of due process of law.”

Cooper, __ N.C. App.at __, 747 S.E.2d at 406 (citing Taylor v. Illinois, 484 U.S. 400,

408–09, 98 L. Ed. 2d 798, 810 (1988) (citations omitted)).

It is true that the expert witness in Oliver had, as an expert called by the State,

interviewed or examined the alleged victim. However, defendants will rarely have

access to prosecuting witnesses in order for their experts to personally examine or

interview those witnesses. State v. Fletcher, 322 N.C. 415, 419, 368 S.E.2d 633, 635

(1988). Defendant’s expert in this case had no right to access the prosecuting

witnesses absent their consent. The ability of a defendant to present expert witness

testimony on his behalf cannot be subject to the agreement of the prosecuting witness,

for that agreement will rarely materialize.

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Opinion of the Court

This Court has previously suggested that examination of an alleged child

victim of sexual assault is not required for an expert to testify concerning the child’s

likely sexual behavior, and the behavior of children in general. State v. Jones, 147

N.C. App. 527, 541-43, 556 S.E.2d 644, 654 (2001), questioned on other grounds by In

re M.L.T.H., 200 N.C. App. 476, 685 S.E.2d 117 (2009); see also State v. Stancil, 355

N.C. 266, 267, 559 S.E.2d 788, 789 (2002) (“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”). In

Jones, the testifying expert, Dr. Cooper, in forming her opinion, could only rely on

“the [deceased] victim’s medical records, the police investigation reports, the autopsy

report from the State Chief Medical Examiner, Dr. John Butts, and autopsy

photographs. Dr. Cooper also testified that she had taken a personal history from

the victim’s grandmother ‘for the purpose of obtaining more medical information.’”

Jones, 147 N.C. App. at 541-42, 556 S.E.2d at 653. Based upon those records, Dr.

Cooper, the expert in Jones testified

that the description of [the victim] having seduced, uh, a
youth offender is extremely out of character. You do not
have a child who has given any indication that she is
sexually promiscuous or that she is precocious in any way
as far as her sexual being is concerned. . . . . This is very
out of char – would be – have been very out of character for
a child who has all of the other behaviors and symptoms
that we see in this child who carries dolls in her little
backpack and who plays with dolls in the evenings and who
has sleepovers with children three and four years younger

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Opinion of the Court

than she is. That would be extremely out of character.

Jones, 147 N.C. App. at 543, 556 S.E.2d at 654. Dr. Cooper, the expert in Jones, was

allowed to testify that, based upon medical records and background information

obtained from the victim’s grandmother, she believed it was unlikely that the victim

would have acted out in a sexual nature towards the defendant. Id. In the case before

us, Dr. Artigues had background information from statements made by the children,

their mother, and their “grandmother,” concerning the children’s memories related

to the alleged event, and the behavior of their mother, “grandmother,” and themselves

with regard to the allegations that Defendant had abused the children. This

information was contained in records from the Department of Social Services and

Sheriff’s Department related to the 1994 investigation of Defendant for those alleged

acts, counselor’s notes taken in the course of assessing J.C., police reports of

interviews with the children and other witnesses, and emails between the children

and a family friend with some counseling experience.

In addition, the interviews with the alleged victims in Oliver and Jenkins,

which could have informed the experts’ opinions concerning the credibility of the

prosecuting witnesses in those cases, could only minimally inform their opinions

concerning the credibility of children in general. General opinions related to

credibility and suggestibility are informed by ongoing practice and research, not

based upon interviews with a particular alleged victim of sexual assault. If expert

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Opinion of the Court

testimony concerning general traits, behaviors, or phenomena can be helpful to the

trier of fact — and it satisfies the requirements of Rule 702 and Rule 403 — it is

admissible. This is true whether or not the expert has had the opportunity to

personally interview the prosecuting witness.

Of course, expressing an opinion concerning the truthfulness of a prosecuting

witness is generally forbidden. Oliver, 85 N.C. App. at 10, 354 S.E.2d at 533; Jenkins,

83 N.C. App. at 624-25, 351 S.E.2d at 304. However, expert opinion relating to the

behavior of an alleged victim, in order to assist the trier of fact in assessing credibility,

is permitted. Kennedy, 320 N.C. at 32, 357 S.E.2d at 366 (“[M]ental and emotional

state of the victim before, during, and after the offenses as well as her intelligence,

although not elements of the crime, are relevant factors to be considered by the jury

in arriving at its verdicts. Any expert testimony serving to enlighten the jury as to

these factors is admissible under Rule 702 of the North Carolina Rules of Evidence.”

And, the “testimony of both of these [expert] witnesses, if believed, could help the jury

understand the behavior patterns of sexually abused children and assist it in

assessing the credibility of the victim.”); Jones, 147 N.C. App. at 543, 556 S.E.2d at

654. It is not required that the expert conduct an interview with the alleged victim

for this kind of testimony to be admitted.

In the present case, Defendant’s argument at trial was not that the children

were lying, but that their alleged memories of abuse were in reality the result of

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Opinion of the Court

repeated suggestions from their mother and “grandmother” that Defendant had

abused them. In support of this argument, Defendant contended that the evidence

before the trial court was more consistent with false memories implanted through

suggestion than with recovered memories that had been repressed. Dr. Artigues’

proffered testimony was directly relevant to this defense, whether or not the State

was classifying the case as one involving repressed memories. Dr. Artigues’

testimony would have also supported the idea that the children’s alleged memories

had been the result of repeated suggestion even if the jury believed the children never

“forgot” that they had allegedly been abused by Defendant.

Dr. Artigues testified on voir dire: “In my opinion there were a lot of references

in the discovery to repressed memory[.]” Dr. Artigues based her opinion on

statements made by the children in their emails; written statements of friends and

family; and police and medical reports. Dr. Artigues testified as follows concerning

the circumstances surrounding how E.C. and J.C. appeared to have forgotten, then

remembered, the alleged events: “Appears to me this is very consistent with [the

concept of] repressed memory. There are numerous references to this being a memory

that was not in [conscious] awareness until a given point in time.” E.C. agreed in her

testimony that she must have lost memory of the alleged abuse for approximately two

years. Whether J.C. had ever “forgotten” about the alleged abuse was a contested

issue at trial. There was evidence, both forecast before trial and brought out at trial,

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Opinion of the Court

supporting Defendant’s and Dr. Artigues’ opinions that the events leading up to the

charges against Defendant were consistent with facts alleged in recovered memory

cases.

Dr. Artigues testified regarding her opinion concerning the validity of

“repressed memory” as a psychological phenomenon:

Repressed memory is an idea that goes back to Sigmund
Freud. Freud was treating a lot of women that he
diagnosed with hysteria and many of them talked in great
detail about memories of being sexually abused and after
years and years of this Freud began to think maybe these
memories had been repressed and came back later. But
even at the end of his career, Freud himself said he couldn’t
support the idea of repression anymore. Then it started
being studied, gosh, it’s been studied for 60 years.
Researchers try to get people to repress memory
unsuccessfully. It has essentially been defunct in the
scientific community or is not considered scientifically
valid. There is no empirical data to support it. In fact, all
of the research, vast majority says that you can create
memory that is not true in people. It’s been done hundreds
and hundreds of times. You can implant memories, you
can influence memories through suggestion. They have
done this with research subjects over and over again. The
American Psychological Association has taken a stand
saying that they don’t put stock in repressed memories
because of the lack of scientific data to support that. So in
general, there is no data to support repressed memories
and it’s not accepted in the scientific community.

Dr. Artigues further testified on voir dire concerning her opinion regarding

why the children may have believed they remembered being sexually assaulted by

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Opinion of the Court

Defendant after periods of time in which they seemed to have forgotten these alleged

incidents:

[DR. ARTIGUES:] [W]hat influenced my opinion about
that was seeing that [their mother] had grilled6 the
children, that she had told them, I will be here for you if
you ever – or if you’re ready to disclose this, that shortly
after that they were shown a good touch, bad touch video,
that the[ir] grandmother figure . . . had cussed [J.C.] out
for not disclosing, which applies a lot of emotional pressure
to a child. That in 1994 DSS did an investigation in which
both girls were interviewed by law enforcement. Again, we
have these children being sexualized, is what we call it in
therapist lingo, meaning they are given an identity around
this claim that they have somehow been sexually abused or
sexually harmed, which may not be true. But this is such
a powerful influence and it keeps happening in their lives
that they begin to take it on as true. It was also noted in
[another witness’] statement that [their mother] talked
about it frequently, that she’d talked about it over the
years. There was a mention in the discovery that [their
mother] had mentioned it at the post office to others. That
[their mother] said, I knew it as soon as the girls made this
disclosure. So it looked to me as though there were many
things that happened that could have influenced memory
and many ways in which emotional pressure was applied
to these very young children that could result in the
production of memories that are not true.

....

[Researchers] can get [people] to believe that they were lost
in a mall, get them to believe that many things happened
to them in childhood through suggestion that simply were
not true. The other thing the research showed was that
over time the subjects become more confident in their

6 E.C. reportedly told an investigator in 1994 that her mother and grandmother were “grilling”
her and trying to get E.C. to admit that Defendant had molested her. During the 1994 investigation,
E.C. denied any inappropriate contact with Defendant had ever occurred.

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Opinion of the Court

stories and the stories become more detailed. So even in
the research setting they would interview the research
subject the first time and they would give the outline of
memory that [had] been implanted. But then later the
research subject interviewed the second time would
provide more details. So what this illustrates is that
memory is not a tape recorder in our brain. There’s not a
location in the brain for memory. Memory is stored all
throughout our brain and thus cannot help but be
influenced by other things. Memory is actually a recent
production of a lot of things that are going on in our brain
and highly suggestible to influence. One other thing I
would mention is this has also been studied extensively in
terms of eyewitness testimony, how they can be influenced.
There have been many, many studies about memory and
showing how memory reliability can be pretty shaky.

[DEFENSE COUNSEL:] Did you find, in reviewing the
discovery, that the stories, the description that each of the
. . . girls gave regarding incident became more detailed,
appeared to become more elaborate each time?

[DR. ARTIGUES:] Yes, it did.

[DEFENSE COUNSEL:] In your opinion, would this be
consistent with a memory that has been suggested or
invoked by some outside influences?

[DR. ARTIGUES:] It is consistent with that, yes.

The State’s cross-examination of Dr. Artigues focused on the fact that she had

not personally interviewed the children and, therefore, could not know the context of

the children’s comments regarding the nature of their memories. Following voir dire,

Defendant moved: “For the purposes of the record and for no other reason, we’d ask

the Court to reconsider its ruling[.]” The State again argued that the case was not a

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Opinion of the Court

“repressed memory” case and that the trial court could not legally allow Dr. Artigues

to testify about the susceptibility of the children, or children in general, to implanted

memories because Dr. Artigues had “not evaluated the victim[s.]” The trial court

stated that it would not change its ruling, which appears to have been based upon its

erroneous belief that, as a matter of law, it could not allow Dr. Artigues’ expert

testimony because she had never examined the children.

In the absence of any findings of fact or conclusions of law explaining the

rationale of the trial court in making its ruling excluding Dr. Artigues’ testimony, and

in light of the discussions at trial, we find that the trial court improperly excluded

Dr. Artigues’ testimony based upon the erroneous belief that her testimony was

inadmissible as a matter of law. As discussed above, it was not required that Dr.

Artigues personally examine the children in order to testify as she did in voir dire.

Because the trial court excluded Dr. Artigues’ testimony based upon an erroneous

understanding of law, we reverse Defendant’s conviction and remand for a new trial.

Should Defendant seek to introduce similar expert testimony, the trial court shall

make its ruling based on our analysis above, and further consider additional factors

discussed below.

II.

We now address the mandate of our Supreme Court to review the ruling of the

trial court in light of State v. King, 366 N.C. 68, 733 S.E.2d 535 (2012) (“King II”).

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Opinion of the Court

Our Supreme Court’s opinion in King II was not argued in Defendant’s original brief

or in his petition for discretionary review, and this Court has received no direction

from our Supreme Court beyond that included in its 24 September 2015 order.

Defendant’s sole argument on appeal was that “[t]here is nothing in Howerton [v. Arai

Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004)] or [Rule 702] to suggest that a

witness must have personally interviewed the person(s) about whom she will testify.

Indeed, this Court has approved of expert testimony from such witnesses testifying

for the prosecution.” Defendant’s discussion of Rule 702 in his brief is limited to his

argument that nothing in Rule 702 prohibited Dr. Artigues’ testimony simply because

she had not interviewed the children. Defendant does not argue that the trial court

erred by failing to find Dr. Artigues was an expert in the relevant field. The trial

court seemed to have made a determination that Dr. Artigues was, in fact, an expert.

The trial court did not make any specific findings or conclusions related to Rule 702.

We have found that the trial court relied on the State’s argument that Dr. Artigues

could not give expert opinion testimony because she had not personally interviewed

the children. As we have held above, Dr. Artigues’ testimony was not inadmissible

simply because she had not interviewed the children.

With these facts in mind, we attempt to determine how King II is relevant to

our analysis. One of the holdings in King II “disavow[ed] the portion of the [Court of

Appeals] opinion . . . requir[ing] expert testimony always to accompany the testimony

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Opinion of the Court

of a lay witness in cases involving allegedly recovered memories.” King II, 366 N.C.

at 68-69, 733 S.E.2d at 536. Defendant did argue at trial that the State should not

allow the alleged victim’s testimony, which Defendant contended amounted to

recovered memories, without also providing expert testimony. Defendant relied on

the Court of Appeals’ opinion in State v. King, 214 N.C. App. 114, 713 S.E.2d 772

(2011) (“King I”), as well as Barrett v. Hyldburg, 127 N.C. App. 95, 487 S.E.2d 803

(1997),7 in support of this argument. However, our Supreme Court’s holding in King

II makes clear that expert testimony is not always required. King II, 366 N.C. at 78,

733 S.E.2d at 542. Defendant is not arguing on appeal that the testimony of the

children should have been excluded because there was no expert testimony presented

at trial explaining repressed memory; rather, Defendant is arguing that his expert’s

testimony should have been allowed. We do not believe this holding in King II is

relevant to the issue before us.

Our Supreme Court in King II affirmed this Court’s prior holding that the trial

court had not abused its discretion by granting the defendant’s motion to suppress

“expert testimony regarding repressed memory” by the State’s witness. Id. at 68, 733

S.E.2d at 536. Our Supreme Court based this holding in part on its findings that

the trial court first acknowledged and then followed the
requirements listed in Howerton. Upon reaching the
question of general acceptance of the theory of repressed
memory, the trial court observed that, although vigorous

7 Abrogated by King II, 366 N.C. at 78, 733 S.E.2d at 542.

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Opinion of the Court

and even rancorous debate was ongoing within the relevant
scientific community, Howerton did not require
establishing either conclusive reliability or indisputable
validity. As a result, the debate within the scientific
community did not by itself prevent admission of evidence
regarding repressed memory. Accordingly, the trial court
turned to the final prong of Howerton and determined that
the testimony was relevant. However, the court went on to
conclude that, even though the Howerton test had been
“technically met” and the evidence was relevant, the expert
testimony was inadmissible under Rule 403 because
recovered memories are of “uncertain authenticity” and
susceptible to alternative possible explanations. The court
further found that “the prejudicial effect [of the evidence]
increases tremendously because of its likely potential to
confuse or mislead the jury.” The trial court therefore
exercised its discretion to exclude the evidence about
repressed memory on the grounds that the probative value
of the evidence was outweighed by its prejudicial effect.

We conclude that the trial court did not abuse its discretion
by granting defendant’s motion to suppress after applying
Rule 702, Howerton, and Rule 403. The test of relevance
for expert testimony is no different from the test applied to
all other evidence. Relevant evidence has “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.” N.C.G.S. § 8C–1,
Rule 401 (2011). We agree with the trial court that the
expert evidence presented was relevant. Nevertheless, like
all other relevant evidence, expert testimony must satisfy
the requirements of Rule 403 to be admissible. Although
the dissenting judge in the Court of Appeals accurately
pointed out that Howerton envisions admission of expert
testimony on controversial theories, he also correctly noted
that “not . . . all 403 safeguards are removed” when the
Howerton factors apply. If all other tests are satisfied, the
ultimate admissibility of expert testimony in each case will
still depend upon the relative weights of the prejudicial
effect and the probative value of the evidence in that case.

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Opinion of the Court

Battles of the experts will still be possible in such cases.
However, when a judge concludes that the possibility of
prejudice from expert testimony has reached the point
where the risk of the prejudice exceeds the probative value
of the testimony, Rule 403 prevents admission of that
evidence. The trial judge here assiduously sifted through
expert testimony that lasted two days, thoughtfully applied
the requirements set out in Howerton to that testimony,
then applied the Rule 403 balancing test, explaining his
reasoning at each step. We see no abuse of discretion and
affirm the holding of the Court of Appeals that found no
error in the trial court’s decision to suppress expert
testimony evidence of repressed memory.

King II, 366 N.C. at 76-77, 733 S.E.2d at 540-41. Initially, we note that in King II

the trial court ruled the State’s expert testimony was admissible pursuant to Rule

702, but excluded the testimony pursuant to Rule 403. The State only appealed the

trial court’s ruling pursuant to Rule 403, as the Rule 702 ruling was in the State’s

favor. Therefore, the Rule 702 analysis in King I and King II was not necessary to

the outcome of either opinion.

Further, King II involved application of the earlier version of Rule 702. In its

Rule 702 analysis, our Supreme Court in King II was applying the factors set out in

Howerton. State v. King II, 366 N.C. at 75, 733 S.E.2d at 540 (“The test to determine

whether proposed expert testimony is admissible was set out in Howerton, in which

this Court rejected the federal standard for admission of expert testimony established

by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 125 L. Ed. 2d 469 (1993). Howerton, 358 N.C. at 469, 597 S.E.2d

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Opinion of the Court

at 693. Howerton approved the three-part test for determining admissibility of expert

testimony described in State v. Goode. Id. at 458, 469, 597 S.E.2d at 686, 692 (citing

Goode, 341 N.C. at 527–29, 461 S.E.2d at 639–41).”).

As this Court has noted:

Rule 702 was amended effective 1 October 2011. See 2011
N.C. Sess. Laws 283 § 1.3. While our Supreme Court has
not yet addressed the amendment to Rule 702, our Court
of Appeals has done so and recently noted that “[o]ur Rule
702 was amended to mirror the Federal Rule 702, which
itself ‘“was amended to conform to the standard outlined in
Daubert [v. Merrell Dow Pharms., Inc., 509 U.S. 579, 125
L.Ed.2d 469 (1993)].”’” Pope v. Bridge Broom, Inc., __ N.C.
App. __, 770 S.E.2d 702, 707 (2015) (citing State v.
McGrady, __ N.C. App. __, __, 753 S.E.2d 361, 365 (quoting
Committee Counsel Bill Patterson, 2011–2012 General
Assembly, House Bill 542: Tort Reform for Citizens and
Business 2–3 n. 3 (8 June 2011)), disc. review allowed, 367
N.C. 505, 758 S.E.2d 864 (2014)).

State v. Turbyfill, __ N.C. App. __, __, 776 S.E.2d 249, 253 (2015). Rule 702 states, in

pertinent part:

If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion, or otherwise, if all
of the following apply:

(1) The testimony is based upon sufficient facts or data.

(2) The testimony is the product of reliable principles
and methods.

(3) The witness has applied the principles and methods

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Opinion of the Court

reliably to the facts of the case.

N.C. Gen. Stat. § 8C–1, Rule 702(a) (2013). Subsections (1) (2) and (3) were added by

the 2011 amendment, effective 1 October 2011. The trial court was not considering

these factors, however, as it was operating under the assumption that the prior

version of Rule 702 applied. Further, there is no evidence the trial court even

considered the Howerton factors, most likely because of its erroneous belief that

Robertson mandated that Dr. Artigues’ testimony be excluded. Regarding the current

version of Rule 702, this Court has held:

Consistent with the application of Federal Rule 702 in
federal courts, under North Carolina’s amended Rule 702,
trial courts must conduct a three-part inquiry concerning
the admissibility of expert testimony:

Parsing the language of the Rule, it is evident that a
proposed expert’s opinion is admissible, at the
discretion of the trial court, if the opinion satisfies three
requirements. First, the witness must be qualified by
“knowledge, skill, experience, training, or education.”
Fed. R. Evid. 702. Second, the testimony must be
relevant, meaning that it “will assist the trier of fact to
understand the evidence or to determine a fact in issue.”
Id. Third, the testimony must be reliable. Id.

Turbyfill, __ N.C. App. at __, 776 S.E.2d at 254; see also Daubert, 509 U.S. at 594-95,

125 L. Ed. 2d at 484 (1993) (“The inquiry envisioned by Rule 702 is, we emphasize, a

flexible one. Its overarching subject is the scientific validity – and thus the

evidentiary relevance and reliability – of the principles that underlie a proposed

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Opinion of the Court

submission. The focus, of course, must be solely on principles and methodology, not

on the conclusions that they generate.”).

We discern several parts of the analysis in King II that are potentially relevant

to the issues raised at trial, even if not issues directly before us on appeal. First,

because scientific understanding of any particular issue is constantly advancing and

evolving, courts should evaluate the specific scientific evidence presented at trial and

not rigidly adhere to prior decisions regarding similar evidence with the obvious

exception of evidence — results of polygraph tests, for example — that has been

specifically held inadmissible. King II, 366 N.C. at 77, 733 S.E.2d at 541 (“[W]e stress

that we are reviewing the evidence presented and the order entered in this case only.

We promulgate here no general rule regarding the admissibility or reliability of

repressed memory evidence under either Rule 403 or Rule 702. As the trial judge

himself noted, scientific progress is ‘rapid and fluid.’”). Second, even evidence of

disputed scientific validity will be admissible pursuant to Rule 702 so long as the

requirements of Rule 702 are met. In King II, the trial court expressed great concern

over the validity of alleged repressed and recovered memories but ruled that the

proposed expert testimony regarding repressed memories satisfied the requirements

of the Howerton analysis then required by Rule 702. King II, 366 N.C. at 72-73, 733

S.E.2d at 538. Our Supreme Court agreed with the decision of the trial court. King

II, 366 N.C. at 76, 733 S.E.2d at 540-41. We note, however, that the trial court in

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Opinion of the Court

King II was applying the less stringent Howerton test associated with the prior

version of Rule 702. It is uncertain whether our Supreme Court would come to the

same conclusion when applying the current version of Rule 702. Third, the reasoning

of the trial court will be given great weight when analyzing its discretionary decision

concerning the admission or exclusion of expert testimony. When it is clear that the

trial court conducted a thorough review and gave thorough consideration to the facts

and the law, appellate courts will be less likely to find an abuse of discretion.

Concerning the trial court’s ruling in King II, our Supreme Court stated:

As detailed above, the trial court first acknowledged and
then followed the requirements listed in Howerton. Upon
reaching the question of general acceptance of the theory
of repressed memory, the trial court observed that,
although vigorous and even rancorous debate was ongoing
within the relevant scientific community, Howerton did not
require establishing either conclusive reliability or
indisputable validity. As a result, the debate within the
scientific community did not by itself prevent admission of
evidence regarding repressed memory. Accordingly, the
trial court turned to the final prong of Howerton and
determined that the testimony was relevant. However, the
court went on to conclude that, even though the Howerton
test had been “technically met” and the evidence was
relevant, the expert testimony was inadmissible under
Rule 403 because recovered memories are of “uncertain
authenticity” and susceptible to alternative possible
explanations. The court further found that “the prejudicial
effect [of the evidence] increases tremendously because of
its likely potential to confuse or mislead the jury.” The trial
court therefore exercised its discretion to exclude the
evidence about repressed memory on the grounds that the
probative value of the evidence was outweighed by its
prejudicial effect.

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Opinion of the Court

....

The trial judge here assiduously sifted through expert
testimony that lasted two days, thoughtfully applied the
requirements set out in Howerton to that testimony, then
applied the Rule 403 balancing test, explaining his
reasoning at each step. We see no abuse of discretion and
affirm the holding of the Court of Appeals that found no
error in the trial court’s decision to suppress expert
testimony evidence of repressed memory.

King II, 366 N.C. at 76-77, 733 S.E.2d at 540-41; see also id. at 71, 733 S.E.2d at 538

(“After hearing arguments from the State and from defendant, the trial court granted

defendant’s motion to suppress in an extensive oral order issued from the bench on

13 April 2010. On 23 April 2010, the trial court entered a written order making

findings of fact and conclusions of law.”). Finally, the trial court is granted broad

discretion in deciding whether to admit expert testimony:

A leading treatise on evidence in North Carolina
acknowledges that “there can be expert testimony upon
practically any facet of human knowledge and experience.”
When making preliminary determinations on the
admissibility of expert testimony, “trial courts are not
bound by the rules of evidence.” In reviewing trial court
decisions relating to the admissibility of expert testimony
evidence, this Court has long applied the deferential
standard of abuse of discretion. Trial courts enjoy “wide
latitude and discretion when making a determination
about the admissibility of [expert] testimony.” A trial
court’s admission of expert testimony “‘will not be reversed
on appeal unless there is no evidence to support it.’” Thus,
“‘the trial court is afforded wide discretion’ in determining
the admissibility of expert testimony and ‘will be reversed
only for an abuse of that discretion.’”

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Opinion of the Court

King II, 366 N.C. at 74-75, 733 S.E.2d at 539-40 (citations omitted).

In the present case, the trial court ruled – based only upon the State’s

arguments and defense counsel’s proffer of what Dr. Artigues’ testimony would be –

that Defendant could not call Dr. Artigues to testify. The trial court did not articulate

the basis for its decision. Later, during the trial, a voir dire was conducted to preserve

Dr. Artigues’ excluded opinion testimony for appellate review. During this voir dire,

the trial court cut short testimony concerning Dr. Artigues’ qualifications, stating:

“I’m sure she’s an expert in the field she’s purported to be an expert in. Let’s just get

to the issue at hand.” Following voir dire, the trial court stated that it would not

change its prior ruling excluding Dr. Artigues’ testimony. The trial court did not

articulate its reasoning from the bench, nor did it enter any written order in support

of its ruling. Even had the trial court entered an order with findings of fact and

conclusions of law in support of its ruling, the conclusions would have been based

upon application of the incorrect test for admissibility.

Pursuant to the current requirements of Rule 702, in order for Dr. Artigues’

testimony to have been admissible, the trial court would have needed to determine,

first, that she was “qualified by ‘knowledge, skill, experience, training, or education.’”

Turbyfill, __ N.C. App. at __, 776 S.E.2d at 254 (citations omitted). As part of this

determination, the trial court would have needed to conclude that Dr. Artigues’

“testimony [was] based upon sufficient facts or data[, that it was] the product of

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Opinion of the Court

reliable principles and methods[, and that Dr. Artigues had] applied the principles

and methods reliably to the facts of the case.” N.C. Gen. Stat. 8C-1, 702(a). Second,

Dr. Artigues’ testimony must have been “relevant, meaning that it ‘[would] assist the

trier of fact to understand the evidence or to determine a fact in issue.’ Third, the

testimony must [have been] reliable.” Turbyfill, __ N.C. App. at __, 776 S.E.2d at 254

(citations omitted). The trial court acknowledged that Dr. Artigues was an expert in

her field; however, there was no evidence presented concerning whether her proffered

“testimony [was] based upon sufficient facts or data[, whether it was] the product of

reliable principles and methods[, and whether Dr. Artigues had] applied the

principles and methods reliably to the facts of the case.” N.C. Gen. Stat. 8C-1, 702(a).

There was no argument made at trial that Dr. Artigues’ testimony was unreliable,

and there was no indication that the trial court believed it to be so. There is no

indication that the trial court considered whether the proposed testimony concerning

the suggestibility of children was relevant to any issue at trial. However, we note

that the threshold for the relevancy prong is permissive:

“‘Relevant evidence’ means 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.” N.C.G.S.
§ 8C-1, Rule 401 (2003). As stated in Goode, “in judging
relevancy, it should be noted that expert testimony is
properly admissible when such testimony can assist the
jury to draw certain inferences from facts because the
expert is better qualified than the jury to draw such
inferences.” 341 N.C. at 529, 461 S.E.2d at 641.

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 STATE V. WALSTON

Opinion of the Court

Howerton, 358 N.C. at 462, 597 S.E.2d at 688-89.

Further, the trial court did not make any findings or conclusions related to

Rule 403. This was, we believe, because the trial court did not conduct any Rule 403

review. If, as seems apparent, the trial court believed Dr. Artigues’ testimony was

inadmissible as a matter of law, the trial court would have found Rule 403 review

unnecessary.

Presumably because it did not believe a full hearing on Rule 702 and Rule 403

was required, the trial court failed to conduct sufficient review of the admissibility of

Dr. Artigues’ proposed testimony, failed to address the requirements of Rule 702 and

Rule 403, and made no findings or conclusions related to these rules. Even if the trial

court excluded Dr. Artigues’ testimony based upon Rule 702 or Rule 403 instead of

an erroneous conclusion that Robertson prohibited her testimony, we would still

reverse and remand. Based upon the record before us, we cannot make any

determination concerning whether the trial court would have abused its discretion in

excluding Dr. Artigues’ testimony pursuant to either Rule 702 or Rule 403.

NEW TRIAL.

Judges STEPHENS and HUNTER, JR. concur.

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