State v. Delsanto

BRYANT, Judge

concurring in part and dissenting in part.

I dissent from the majority opinion granting defendant a new trial upon finding plain error in the admission of Dr. Russo’s testimony. I disagree that the trial court committed any error by admitting the testimony of Dr. Russo, and I strongly disagree that there was plain error *54committed. The majority states the expert medical opinion of Dr. Russo was impermissible testimony on the victim’s credibility. However, the record shows Dr. Russo’s expert medical opinion was based on her training and experience. Dr. Russo was tendered and admitted as an expert in “pediatric gynecology” and in “child [sexual] abuse”. The record also shows that in addition to extensive medical training in pediatrics and child abuse, Dr. Russo had interviewed and examined child victims of physical and sexual abuse, on average, once a week for seven years prior to her testimony.

Rule 702 provides in 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.

N.C. Gen. Stat. § 8C-1, Rule 702 (2003).

“In determining whether expert medical opinion is to be admitted into evidence the inquiry should be . . . whether the opinion expressed is really one based on the special expertise of the expert, that is, whether the witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.” State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987). Here, based on training and experience, Dr. Russo was certainly in a better position to have an opinion on whether the child in the instant case had been sexually abused. Dr. Russo evaluates each child’s intellectual ability as a part of her examination. As a medical professional she must determine whether a child can accurately relay medical information in order for her to use that information in medically diagnosing or treating a child patient.

When asked at trial if her physical examination of the child was consistent with the history given, Dr. Russo replied:

It was absolutely consistent. With what [the child] stated happened, I would expect a normal examination. The tissues down there are very elastic. In other words, they can stretch and then return to their normal shape. Also, healing is very rapid in that area . . . and [] takes place very quickly. So with the type of abuse that she disclosed, I would not expect to see signs of trauma or damage. ...

*55Dr. Russo was then asked her diagnosis:

My diagnosis was that [the child] had suffered from the sexual abuse that she disclosed to me and her family. And my feelings were that [the child] being a three[-]year[-]old child could not fantasize that these events occurred. She could not make them up. Children that young do not have the ability to fantasize or [OBJECTION OVERRULED] an act like that they have not experienced. It’s not within their mental ability to do that. So based on what she told me, the consistency of what she told me, what she told the parents, what she told law enforcement was just all very striking, and that I felt like she was — that she did experience that abuse.

“ [I]t is []■well-settled that testimony based on the witness’s examination of the child witness and expert knowledge concerning the abuse of children in general is not objectionable because it supports the credibility of the witness or states an opinion that abuse has occurred.” State v. Dick, 126 N.C. App. 312, 315, 485 S.E.2d 88, 89 (1997) (internal citations omitted). Here, the child described to Dr. Russo pain inside her vaginal area and described where they were sitting when the incident occurred. She also demonstrated for Dr. Russo using anatomical dolls, where she was touched. Therefore, when Dr. Russo conducted her examination of the vaginal area of the child, the results were consistent with what she had been told. In other words, one would not necessarily expect to see scarring or trauma or other physical evidence of abuse based on the history given.

The majority discusses many cases including State v. Bush, 164 N.C. App. 254, 595 S.E.2d 715 (2004), State v. Couser, 163 N.C. App. 727, 594 S.E.2d 420 (2004) and State v. Dixon, 150 N.C. App. 46, 563 S.E.2d 594 (2002) for the proposition that it is error to admit expert opinion testimony in child sexual assault cases where no physical evidence of abuse exists. To the extent that these cases stand for that proposition, such a conclusion is reasonably applicable only in sexual assault cases where one would expect to find physical evidence of abuse. Such cases might include forcible sexual assault or repeated sexual abuse. See, e.g., State v. Goforth, — N.C. App.-, -,-S.E.2d-,-(June 7, 2005) (No. COA04-608) (where child medical expert testified “if there are physical findings [in a child’s examination], this is usually indicative of repeated abuse”). The instant case is factually similar to many, many child sexual assault cases where the nature of the assault, a sexual touching, is such that one would not expect physical evidence of abuse. See, Id. Therefore, *56in those cases where the clinical evidence of sexual abuse is based on expert medical testimony that the acts of sexual abuse alleged are unlikely to leave physical evidence, that testimony is valid and states the basis for the expert’s opinion. For these reasons, I would hold Dr. Russo’s testimony to be permissible medical opinion from an expert in child abuse, and would find no error in its admission.

Nevertheless, even assuming arguendo the admission of this expert medical opinion testimony was erroneous, it did not arise to the level of plain error. As our Supreme court has stated time and again, plain error is “error ‘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. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (citations omitted), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000). “Plain error does not simply mean obvious or apparent error.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). The plain error rule must be applied cautiously and only in exceptional cases where, “ ‘after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” ’ ” State v. Davis, 349 N.C. 1, 29, 506 S.E.2d 455, 470 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999) (citations omitted).

The majority states that “Dr. Russo’s inadmissible opinion likely had an impact on the jury’s finding ...” and that “[i]n the absence of overwhelming evidence of defendant’s guilt, . . . the admission of Dr. Russo’s diagnosis was plain error.” I disagree as there is significant additional evidence in the record regarding the sexual abuse of this three year old child such that absent the testimony of Dr. Russo, the jury would nevertheless have reached a verdict of guilty. The jury heard the testimony of the child’s father who testified in pertinent part:

Q. During that time period while you were in the living room that evening with your children, did you observe anything unusual take place?
A. Well, my little girl, she was messing... . She was messing with herself, like rubbing- — •
Q. Okay. And when you indicate that she was messing with herself and rubbing, what part of her body was she doing that to?
*57A. Her private part.
Q. Okay. At that point in time when you observed that, did you say anything to [the child]?
A. I said “[H], what are you doing?” . . . She said, “It hurts[.]”
Q. Okay. Did she make any other comments at that time?
A. She said that — that Pawpaw — she calls him Pawpaw. . . . “Pawpaw touched me down there”... She said he touched her down there with his finger.

Detective John Stephens of the Davie County Sheriffs Department reported to the home on the date of the incident and spoke to the three-year-old child. Detective Stephens told the jury that: “She was a real sweet young lady. She told me that her Pawpaw touched her ‘gina’ and put his finger in there and it hurt.” He further testified the child got a doll to indicate what her grandfather did to her. “[S]he put the doll on the table . . . [s]he opened the doll’s legs and put her finger inside between the doll’s legs at the vaginal area.”

The mother of the child testified before the jury and stated the child said Pawpaw touched her and that it hurt, and that the child, using a doll, demonstrated where her grandpa touched her. The mother also testified the child’s attitude and behavior had changed since the incident in that the child had more “attitude” and she did not want any men in the bathroom with her, even her twin brother. In addition, the mother testified about two conversations with her father; one in which he denied touching the child; and another in which he said “I’m sorry for what I’ve done. I know what I’ve done wrong and I’m where I need to be[.]” Given this strong testimonial evidence against defendant, it is not probable the jury would have reached a different verdict absent Dr. Russo’s testimony.

In part II the majority holds that admission of evidence that defendant sexually abused his niece twenty-three years ago was in error and “should not be admitted during [defendant’s] new trial[.]” As stated infra, I would hold defendant is not entitled to a new trial based on the admission of Dr. Russo’s testimony. Because of the strong evidence otherwise of defendant’s guilt, I would hold the other crimes evidence involving defendant’s niece to be harmless error.

As to part III of the majority opinion, I agree with the majority’s conclusion that the admission of evidence of defendant’s possession *58of pornographic magazines and women’s underwear did not arise to the level of plain error.