State v. Davis, ___ N.C. App. ___, 828 S.E.2d 570 (May. 21, 2019)

In this sexual assault case although a nurse’s testimony was improperly admitted, the error did not rise to the level of plain error. The nurse interviewed and examined the victim. At trial the nurse testified that the victim’s exam “was consistent with someone reporting a sexual assault” solely on the grounds that she did not have physical evidence of sexual abuse. The court noted that this lack of physical evidence also is consistent with someone who has not been sexually abused. It thus concluded: “in other words, this portion of the expert’s testimony -- in which she affirmatively stated that a lack of physical evidence is consistent with someone who has been sexually abused -- should not have been allowed as this testimony did not aid the trier of fact in any way.” It continued:

Even if an opinion of the nature offered by the State’s expert would be helpful to a jury, there is nothing in the record to indicate a proper basis for the nurse’s opinion. Such testimony should generally be based on the science of how and why the human body does not always show signs of sexual abuse. The nurse’s testimony here was not based on any science or other medical knowledge she may have possessed. Rather, she based her testimony on her assumption that all of the people that she had ever interviewed and examined were telling the truth, that they had all been sexually abused. (citation omitted).

The court went on to hold that although the expert’s opinion testimony was improper, the error did not rise to the level of plain error.