State v. Hammett

TYSON, Judge,

dissenting.

The majority’s opinion grants defendant a new trial on all convictions and asserts the trial court committed plain error in allowing the admission of Dr. Conroy’s testimony. The trial court’s admission of Dr. Conroy’s testimony did not constitute plain error and was not so prejudicial to award defendant a new trial. I respectfully dissent.

I. Dr. Conroy’s Expert Testimony

The majority’s opinion holds this case is governed by this Court's prior precedents in State v. Delsanto, 172 N.C. App. 42, 615 S.E.2d 870 (2005), State v. Ewell, 168 N.C. App. 98, 606 S.E.2d 914 (2005), and State v. Bush, 164 N.C. App. 254, 595 S.E.2d 715 (2004). Their opinion misapplies and unduly enlarges and extends the holdings in Delsanto, Ewell, and Bush to award defendant a new trial on the facts before us.

In Delsanto, a medical examination of the child victim revealed no physical signs of sexual abuse. Delsanto at 55, 615 S.E.2d at 872. Nonetheless, the medical expert testified that she diagnosed the child as having been sexually abused by the defendant. Id. at 55-56, 615 S.E.2d at 872. Similarly, in Ewell the medical expert testified she diagnosed the victim as sexually abused even though she could not prove or disprove, by the results of the physical examination, whether the *608victim had engaged in sexual intercourse or had previously been sexually active. Ewell, 168 N.C. App. at 104, 606 S.E.2d at 919. The medical expert in Bush also testified that the child was sexually abused even though no physical evidence of sexual abuse was present. Bush, 164 N.C. App. at 258, 595 S.E.2d at 718. In each of these cases we found the trial court’s admission of the expert’s testimony and opinion that the victim was sexually abused to be plain error and awarded a new trial. These cases are easily distinguishable from the facts of this case.

Here, substantial physical evidence of sexual abuse of the victim was presented. Dr. Conroy performed a physical examination of C.H. which included the use of a special camera to magnify abnormalities in C.H.’s genital area. Dr. Conroy testified that the photographs taken during C.H.’s examination revealed a “notch” at the six o’clock position of her hymen. The physical examination also revealed a scar on the posterior fourchette, that was “irregular.” Dr. Conroy testified that the types of injuries revealed from the genital examination “were made from penetrating vaginal trauma with a hard object.” C.H. was thirteen years old at the time of these assaults and testified that she had not engaged in any penetrating vaginal contact before these assaults occurred.

II. Expert Medical Testimony of Sexual Abuse

The rule regarding the admissibility of expert medical testimony in child sexual abuse cases is well-established. In State v. Standi, our Supreme Court stated, “In a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in fact occurred because, absent physical evidence supporting a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding the victim’s credibility.” 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (citation omitted) (emphasis supplied).

An expert medical witness may render an opinion pursuant to Rule 702 that sexual abuse has in fact occurred if the State establishes a proper foundation, i.e. physical evidence consistent with sexual abuse. . . . However, in the absence of physical evidence to support a diagnosis of sexual abuse, expert testimony that sexual abuse has in fact occurred is not admissible because it is an impermissible opinion regarding the victim’s credibility.

Ewell, 168 N.C. App. at 103, 606 S.E.2d at 918 (quoting State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598) (emphasis in original). See *609also State v. Couser, 163 N.C. App. 727, 729-31, 594 S.E.2d 420, 423 (2004) (error to admit expert testimony that the child was “probably sexually abused” where the physical evidence was insufficient to support a diagnosis of sexual abuse); State v. Grover, 142 N.C. App. 411, 418-19, 543 S.E.2d 179, 183-84 (2001) (Expert opinion testimony that the child had been sexually abused based solely on the child’s statements lacks a proper foundation where no physical evidence of abuse is shown), aff’d, 354 N.C. 354, 553 S.E.2d 679 (2001). “[W]hile it is impermissible for an expert, in the absence of physical evidence, to testify that a child has been sexually abused, it is permissible for an expert to testify that a child exhibits characteristics [consistent with] abused children.” Grover, 142 N.C. App. at 419, 543 S.E.2d at 184 (citation and internal quotation marks omitted). Based upon the physical evidence presented, Dr. Conroy was permitted to state her opinion that C.H. had been sexually abused. Ewell, 168 N.C. App. at 103, 606 S.E.2d at 918. Substantial “physical evidence to support a diagnosis of sexual abuse” was presented to provide a foundation to admit Dr. Conroy’s opinion to which defendant failed to object. Id. Defendant’s convictions should be sustained.

III. Plain Error Rule

To award a new trial for plain error, the trial court’s error must be “so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987) (citations omitted), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). In the absence of Dr. Conroy’s opinion testimony, it is not probable that the jury would have reached a different verdict. Other substantial evidence of defendant’s guilt was presented in addition to Dr. Conroy’s testimony. Defendant admitted at trial to taking showers with C.H. and washing her private areas on both occasions. Defendant stated he directed C.H. to get in the shower the second time because “she stunk,” and defendant proceeded to get into the shower with her. The second shower incident occurred just two days after the first. Defendant’s reason for entering nude into the shower with C.H. was that “she had bad personal hygiene.” At trial, defendant denied instructing C.H. to wash him. The State impeached defendant’s testimony with his prior statement in which he admitted to having C.H. “wash his arms and legs.” State v. Aguallo, 322 N.C. 818, 824, 370 S.E.2d 676, 679 (1989) (“Prior statements by a defendant are a proper subject of inquiry by cross-examination.”); N.C. Gen. Stat. § 8C-1, Rule 607 (2005). Defendant then stated he instructed *610C.H. to wash “the upper part of his chest.” When asked to explain to the jury how C.H.’s washing him helped her personal hygiene, defendant admitted, “I have no explanation of that.”

. C.H.’s classmate at school, E.O., also corroborated C.H.’s accounts. C.H. told E.O. of the assaults and abuses the day after the second shower incident occurred. E.O. testified C.H. told her at school about the shower incidents and that defendant had made C.H. kiss him. C.H. also told E.O. that defendant tried to “French Kiss” her. E.O. testified that C.H. “was very uncomfortable and that she was sad and depressed, and it was hard for her to talk about it.”

Sherry Cook (“Cook”), a registered nurse at the Children’s Advocacy Center at NorthEast Medical Center, also corroborated C.H.’s testimony. Cook testified she interviewed C.H. on 28 April 2003. C.H. told Cook that defendant (1) masturbated on the bed in C.H.’s presence while watching a pornographic video; (2) penetrated her vagina with his fingers in the shower; (3) instructed C.H. to wash his penis in the shower and “hold it like a hose”; (4) shaved her “bikini area” with a razor; (5) inserted his tongue into her vagina “for a few seconds”; (6) attempted to put his tongue into her mouth; and (7) had C.H. straddle him on the bed and “move up and down.” This testimony was admitted without defendant’s objection and was not contradicted.

IV. Indecent Liberties with a Child Convictions

Presuming the majority’s award of a new trial for defendant is legally sound on the statutory sexual offense convictions, awarding defendant a new trial for his convictions of indecent liberties with a child, based on plain error in the admission of Dr. Conroy’s expert opinion testimony is unwarranted.

The jury found defendant to be guilty of seven counts of taking indecent liberties with a child by: (1) having C.H. wash his private parts; (2) fondling C.H.’s breasts; (3) actually or attempting to “French Kiss” C.H.; '(4) having C.H. straddle defendant on the bed and “bounce up and down” on him; (5) touching C.H.’s private parts while “measuring” her; (6) touching C.H.’s private parts while “measuring” her on a separate occasion; and, (7) masturbating in C.H.’s presence while watching a pornographic movie.

*611N.C. Gen. Stat. § 14-202.1(a) (2005) states:

(a) 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.

Here, defendant was 31 years old and C.H. was 13 years old when the incidents occurred.

Actual touching or any physical contact with the minor child is not necessary for defendant to be found guilty under this statute. State v. Hicks, 79 N.C. App. 599, 603, 339 S.E.2d 806, 809 (1986). See also State v. Turman, 52 N.C. App. 376, 278 S.E.2d 574 (1981) (conviction upheld where defendant masturbated in the presence of the child); State v. Kistle, 59 N.C. App. 724, 297 S.E.2d 626 (1982), disc. rev. denied, 307 N.C. 471, 298 S.E.2d 694 (1983) (conviction upheld where defendant photographed the nude child in a sexually suggestive position). “The uncorroborated testimony of the victim is sufficient to convict under N.C.G.S. § 14-202.1 if the testimony establishes all of the elements of the offense.” State v. Quarg, 334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993) (citing State v. Vehaun, 34 N.C. App. 700, 705, 239 S.E.2d 705, 709 (1977), cert. denied, 294 N.C. 445, 241 S.E.2d 846 (1978)).

Physical evidence of sexual abuse or any physical contact with the victim is wholly unnecessary to sustain a conviction for taking indecent liberties with a child. Id. The testimony of Dr. Conroy was not required to sustain defendant’s convictions pursuant to N.C. Gen. Stat. § 14-202.1(a).

C.H.’s testimony, standing alone, was sufficient to support the convictions on the taking indecent liberties with a child charges. Her testimony was also corroborated by two other witnesses other than Dr. Conroy, and defendant admitted to acts and activities with C.H. sufficient to sustain his indecent liberties convictions. Defendant should not be granted a new trial on any of the taking indecent liberties with a child convictions even if the admission of Dr. Conroy’s opinion testimony was plain error.

*612V. Credibility and Weight of the Evidence

The majority’s opinion erroneously determines the credibility of the witnesses and the weight to be afforded their testimonies to award a new trial. This role is reserved to the jury, and not to an appellate court. The majority’s opinion states: (1) “the testimony linking the physical findings to the accusations involving defendant was, in short, not strong evidence of defendant’s guilt”; (2) “the injuries could have easily have been caused by someone other than defendant”; (3) “[Dr. Conroy’s opinion] did little to connect C.H.’s physical injuries to the conduct for which defendant stood accused”; (4) “the evidence shows that the objective physical findings could have easily not been caused by defendant”. These issues are all questions of fact that were properly determined by the jury. It is not the province of this Court to substitute its judgment for the verdict of the triers of fact. Mattox v. Huneycutt, 3 N.C. App. 63, 65, 164 S.E.2d 28, 29 (1968) (“This Court will not substitute its judgment for that of the triers of the facts.”).

VI. Conclusion

Substantial evidence was presented that C.H.’s genital organs exhibited physical signs of sexual abuse. In accord with well-established precedents, it was not error, and certainly not plain error, for the trial court to admit Dr. Conroy’s opinion that C.H. had been sexually abused after the State laid a proper foundation for her testimony.

Even if Dr. Conroy’s testimony rose to plain error on the statutory sexual offenses, defendant’s convictions for taking indecent liberties with a child do not require any element of physical abuse or contact, and should be sustained on C.H.’s testimony and defendant’s admissions alone. Ewell, 168 N.C. App. at 103, 606 S.E.2d at 918. I vote to hold that no error, plain or otherwise, occurred during defendant’s trial. I respectfully dissent.