In this Guilford County case, defendant appealed her conviction for trafficking methamphetamine, arguing (1) plain error in admitting testimony from an expert without a sufficient foundation for reliability under Rule of Evidence 702, and (2) error in failing to intervene ex mero motu when the prosecutor made improper remarks during closing argument about her past convictions. The Court of Appeals found no plain error in (1), and no error in (2). 

In November of 2018, law enforcement officers set up an undercover investigation of a suspected drug dealer. At a meeting set up by an undercover officer to purchase methamphetamine, defendant was the driver of the vehicle with the drug dealer. After officers found methamphetamine in the vehicle, defendant was charged and ultimately convicted of trafficking methamphetamine by possession. 

Looking to (1), the Court of Appeals found error in admitting the State’s expert testimony under Rule 702, as “the court failed to exercise its gatekeeping function” when admitting the expert’s testimony. Slip Op. at 7. Although the expert offered testimony about the type of analysis she performed to identify the methamphetamine, “she did not explain the methodology of that analysis.” Id. However, the court noted that this error did not rise to the level of plain error as the expert “identified the tests she performed and the result of those tests,” and she did not engage in “baseless speculation.” Id. 

Turning to (2), the court noted that defendant testified on her own behalf and opened the door to character evidence about her past convictions, and that she did not object at trial to the improper argument. The court found the majority of the closing argument to be unobjectionable, but did agree that the prosecutor “improperly suggested that Defendant was more likely to be guilty of the charged offenses based on her past convictions.” Id. at 9. However, this improper suggestion was only “a few lines of the prosecutor’s eighteen-page closing argument” and “was not so grossly improper that it warranted judicial intervention.” Id. 

The defendant was convicted of two counts of sexual offense with a child by an adult, rape of a child, first-degree kidnapping, and two counts of taking indecent liberties with a child in Wake County, stemming from the assault of a six-year-old child at a church.

(1) In regard to one of the indecent liberties convictions, the defendant argued that the State did not present sufficient evidence that the defendant acted inappropriately when touching the victim’s chest and that such evidence was only offered for corroborative purposes. The victim’s testimony discussing the touching of her chest was only presented by way of her videotaped forensic interview and was not raised in the victim’s trial testimony. The Court of Appeals disagreed, finding that the videotaped forensic interview of the victim “was properly admitted under Rule 803(4) as her statements were made for the purposes of medical diagnosis or treatment, and the statements were reasonably pertinent to diagnosis or treatment.” Slip op. at 8. Additionally, the trial court instructed the jury to consider the video as substantive evidence. The Court of Appeals therefore determined that “[t]he evidence was sufficient to support denial of the motion to dismiss the challenged charge of taking indecent liberties with a child.” Id.

The defendant also argued that there was insufficient evidence to support a finding that the defendant forcibly removed the victim to facilitate the offense, an essential element of the crime of kidnapping. Specifically, the defendant argues the evidence does not show that he used actual force, fraud, or trickery to remove the victim. The Court of Appeals rejected this argument as well, finding that the defendant’s act of taking the victim to a secluded place to continue the sexual assault was sufficient to support removal for purposes of kidnapping.

(2) Concerning the defendant’s convictions of first-degree kidnapping and sexual offense with a child, the defendant argued “that the trial court erred by instructing on first-degree kidnapping and by failing to instruct on sexual offense with a child by an adult.” Id. at 10. The Court of Appeals found no prejudicial error in the instruction given on first-degree kidnapping because “[t]he evidence at trial was consistent with the allegations in the indictment,” even though the language of the jury instruction varied from the indictment. Id. at 11. The kidnapping indictment stated that “[D]efendant also sexually assaulted [Maya]” while the jury was instructed “that the person was not released by the defendant in a safe place.” Id. at 11-12. The Court of Appeals noted that such variance is usually prejudicial error but determined that the evidence here supported both the theory of the indictment and that of the jury instructions. On plain error review, the court rejected the defendant’s argument and concluded “it is not probable that the jury would have reached a different result if given the correct instruction.” Id. at 12.

The defendant also argued that the trial court erred by entering judgment on sexual offense with a child by an adult after instructing the jury on first-degree sex offense, a lesser offense. The Court of Appeals agreed. Because “[t]he jury instruction clearly outlined the lesser included offense of first-degree sexual offense . . . it was improper for the trial court to enter judgment for two counts of sexual offense with a child.” Id. at 17. The trial court did not instruct on the essential element of age as to the sexual offense with a child by an adult charge. The defendant was therefore impermissibly sentenced beyond the presumptive range for the lesser included offense of conviction. The Court of Appeals determined this was prejudicial error and vacated the defendant’s conviction of sexual offense with a child by an adult, remanding for resentencing on the first-degree sexual offense charge.

(3) The defendant argued that the trial court erred in certain evidentiary rulings. First, the defendant alleged that expert testimony regarding the DNA profile from the victim’s underwear (matching to the defendant) should not have been admitted because there was an insufficient foundation to satisfy the requirements of Rule 702(a)(3) of the North Carolina Rules of Evidence. The Court of Appeals disagreed, finding that the witness was “a qualified expert in the field of forensics and an employee at the North Carolina State Crime Lab, [who] testified to her qualifications in the area of DNA analysis as well as her training and experience in gathering evidence for DNA profiles.” Slip op. at 19. Further, the Court explained:

[The witness] thoroughly explained the methods and procedures of performing autosomal testing and analyzed defendant’s DNA sample following those procedures. That particular method of testing has been accepted as valid within the scientific community and is a standard practice within the state crime lab. Thus, her testimony was sufficient to satisfy Rule 702(a)(3). Id. at 21.

The defendant also argued that it was plain error to allow prior bad acts evidence under Rule 404(b) of the North Carolina Rules of Evidence, claiming that the prior incident was unrelated to the current offense. The Court of Appeals determined that the trial court did not err because the facts in both cases were similar enough to be admitted for 404(b) purposes. The trial court’s findings that “both females were strangers to defendant; they were separated from a group and taken to a more secluded location; they were touched improperly beginning with the buttocks; and they were told to be quiet during the assault,” supported the admission of this evidence under Rule 404(b). Id. at 23.

(4) Finally, the defendant argued that the trial court erred by allowing cross-examination of his father and contends the State elicited irrelevant testimony from his father. Specifically, the defendant objected to the admission of questions and testimony about whether the defendant’s father warned members of the church about the defendant’s potential dangerousness. The Court of Appeals rejected this argument and determined “the questions on cross-examination elicited relevant testimony and were well within the scope of defendant’s father’s direct testimony that defendant needed frequent supervision for basic activities.” Id. at 27-28.

Judge Murphy authored a separate opinion concurring in part, concurring in result only in part, and dissenting in part. Concerning the sexual offense jury instruction, Judge Murphy believed “the trial court erred in instructing the jury, however, since the jury found beyond a reasonable doubt Defendant was at least 18 years old in another portion of its verdict and all the charges against Defendant occurred on the same date, there was no plain error.” Slip op. at 5 (Murphy, J., dissenting). Judge Murphy also pointed out that “[h]ad the jury been correctly instructed on the first-degree kidnapping indictment language and found Defendant guilty of first-degree kidnapping based on sexual assault the trial court could not have sentenced Defendant for all the sexual offenses and the first-degree kidnapping offense without violating double jeopardy.” Id. at 13. Following the guidance of State v. Stinson, 127 N.C. App. 252, Judge Murphy believed that the court should have arrested judgment on the first-degree kidnapping conviction and remanded for resentencing on second-degree kidnapping to avoid double jeopardy issues. Lastly, Judge Murphy did not believe the defendant preserved the issue of his father’s testimony for review and would have refused to consider that argument.

(1) The defendant was convicted of possession with intent to sell or deliver a Schedule II controlled substance and sale of methamphetamine. At trial, the State presented the testimony of an expert in drug chemistry from the North Carolina State Crime Lab. She testified that she performed a gas chromatography mass spectrometer (GCMS) test on the substance. She explained how the GCMS test works and how the examiner analyzes the results. Before she explained how she applied those methods on the sample in this case and the result she obtained, the State interrupted her testimony and asked about recognition of GCMS testing in the scientific community. The witness testified that GCMS was well-respected in the scientific community and confirmed that she had recorded the results of her testing in the lab report. The lab report was then admitted into evidence without objection, and the witness testified without objection that the substance was methamphetamine, Schedule II. The Court of Appeals held that although the witness was prepared to explain how she conducted GCMS testing in this case, she never did so. Further, the lab report stated only that the material that was examined was found to contain methamphetamine. The Court of Appeals found that this evidence failed to satisfy North Carolina Rule of Evidence 702(a)(3), which requires that the witness demonstrate that she applied the principles and methods reliably to the facts of the case. The Court ruled, however, that the defendant failed to establish plain error because the witness testified that she conducted the GCMS test, obtained positive results, and produced a lab report recording the results. (2) The trial judge revoked the defendant’s probation, imposed for other charges before the offenses in this case, based on violation of the condition that the defendant commit no criminal offense. The defendant argued and the State conceded that the trial judge erred by activating his suspended sentence without making a finding that good cause existed to revoke his probation after the period of probation expired. The defendant argued further that the probation revocation should be vacated, without remand, because the record was devoid of any evidence to show good cause to revoke after the expiration of the defendant’s probation. The Court of Appeals agreed. A violation report was filed May 17, 2017, and a probation hearing was scheduled for June 13, 2017, but a hearing did not take place until March 2019, fourteen months after the defendant’s probation expired. The Court found nothing in the record to show why the probation hearing was not held in June 2017 or at least before expiration of his probation in January 2018. The Court noted that a criminal conviction is not required for the trial judge to revoke probation for a defendant’s commission of a criminal act in violation of probation. A concurring judge would have remanded for further proceedings on whether the State made reasonable efforts to conduct a probation hearing before expiration of the defendant’s probation.

Defendants Molly Martens Corbett (“Molly”) and Thomas Michael Martens (“Tom”), daughter and father, were convicted of second degree murder in the death of Molly’s husband, Jason Corbett (“Jason”). Evidence at trial established that Tom attempted to stop Jason from choking Molly by hitting Jason with an aluminum baseball bat. Molly also hit Jason with a brick paver. Jason’s skull was fractured from multiple blows and he died at the scene. Jason’s children from a previous marriage, Jack and Sarah Corbett, ages 11 and 8, were at home and sleeping at the time of the altercation. Jack and Sarah’s mother had died unexpectedly when they were very young, and they considered Molly to be their mother.

(1) Defendants argued that the trial court abused its discretion by denying their Motion for Appropriate Relief (MAR), as well as their request for an evidentiary hearing, because competent evidence demonstrated that certain jurors “committed gross and pervasive misconduct in their private discussions of the case”; jurors engaged in “private discussions” amongst themselves prior to deliberations; and several jurors’ statements during post-trial media interviews showed that they improperly considered and formed opinions about Molly’s mental health. The court rejected this argument, characterizing the defendants’ allegations as being, at best, general, speculative, and conclusory. Furthermore, the court concluded that even if the trial court were to hold an evidentiary hearing, which it was not required to do, precedent prohibiting verdict impeachment would bar the defendants from presenting any admissible evidence to prove the truth of their allegations.

(2) Defendants asserted that the State failed to present substantial evidence to rebut or contradict Molly’s exculpatory handwritten statement, which the State introduced, establishing that Molly and Tom acted in lawful self-defense and defense of others. The Court of Appeals disagreed.

The State was required to present substantial evidence sufficient to convince a rational trier of fact that the defendants did not act in self-defense. The appellate court determined that the case was not entirely predicated on Molly’s statement that she and Tom acted in self-defense and defense of each other. Rather, the State presented substantial circumstantial evidence from which a rational juror could reach a contrary conclusion, including that: (1) Jason suffered at least twelve blows to the head; (2) Tom had no visible injuries and Molly had only a “light redness” on her neck; (3) Jason was unarmed when the altercation occurred; (4) Jason’s children remained asleep throughout the entire altercation; (5) EMS, paramedics, and law enforcement responders observed that some of the blood on Jason’s body had dried, and that Jason’s body felt cool; (6) Tom told a coworker that he hated Jason; and (7) Jason had a life insurance policy, of which Molly was the named beneficiary.

(3) The Court of Appeals concluded, over a dissent, that certain evidentiary errors were so prejudicial as to inhibit the defendants’ ability to present a full and meaningful defense.

(a) The Court of Appeals held that the trial court erroneously concluded that statements Jack and Sarah Corbett made to workers at a children’s advocacy center were inadmissible under the hearsay exception for medical diagnosis or treatment. At the time of trial, Jack and Sarah had been taken to Ireland to live with their aunt and uncle. The appellate court determined that their statements at the advocacy center satisfied the two-part test for admissibility established in State v. Hinnant, 351 N.C. 277 (2000):  (1) the children made the statements to obtain medical diagnosis or treatment; and (2) the statements were reasonably pertinent to medical diagnosis or treatment. The court explained that the child-friendly atmosphere and the separation of the examination rooms did not indicate that the children’s statements during the interviews were not intended for medical purposes. The children were informed before their interviews that they would be receiving medical interviews together with physical examinations as part of their full evaluations at the facility. The interviewers asked non-leading, open-ended questions, instructed the children that they should not “guess at anything” and emphasized the overall significance of the child medical evaluations that they would be receiving. In addition, the court concluded that the children’s statements were reasonably pertinent to medical treatment or diagnosis. Following their forensic medical interviews, Sarah and Jack were examined by a pediatrician who diagnosed both children as “victim[s] of child abuse based on exposure to domestic violence” and recommended that they “receive mental health services” as treatment.

Moreover, the court concluded that even if the children’s forensic medical interview statements were inadmissible under the medical diagnosis or treatment exception to the rule against hearsay, they (along with statements the children made to DSS workers) were admissible under the residual hearsay exception.

(b) Stuart James, the State’s expert witness in bloodstain pattern analysis, testified at trial about untested blood spatter on the underside hem of Tom’s boxer shorts and the bottom of Molly’s pajama pants. The defendants argued that this testimony was not the product of reliable principles and methods applied reliably to the facts of this case. The Court of Appeals agreed.

While James was “unquestionably qualified to provide expert testimony on the subject” of blood spatter, he did not follow the reliability protocol establish in a treatise he coauthored on the subject. First, these particular stains were not tested for the presence of blood. Second, though James said it was the “best practice” for an analyst to view a photograph of the person wearing the blood-spattered clothes, he never viewed a photograph of Tom “wearing just the boxer shorts.” James further testified that the State provided him with just one photograph of Molly wearing the pajama pants, and that it was not readily apparent from that photograph how the pants actually fit Molly on the night of the incident. The court found James’s failure to follow the reliability standards and protocol prescribed in his own treatise as inherently suspect. It concluded that James’s testimony was based upon insufficient facts and data, and, accordingly, could not have been the product of reliable principles and methods applied reliably to the facts of the case.

The court determined that James's testimony “had the powerful effect of bolstering the State’s claim that Jason was struck after and while he was down and defenseless.” But, given the flawed methodology, the  testimony could only serve to unduly influence the jury to reach a conclusion that it was fully capable of reaching on its own.

(c) The defendants argued that the trial court erred in striking Tom’s testimony that, during the altercation, he “hear[d] Molly scream[,] ‘Don’t hurt my dad.’ ” The Court of Appeals agreed. The court reasoned that Molly’s statement was admissible for the non-hearsay purpose of illustrating Tom’s then-existing state of mind. This was “a particularly relevant issue” in light of the defendants’ claims of self-defense and defense of another.

(d) Tom argued that the trial court committed reversible error by instructing the jury that he would not be entitled to the benefit of self-defense or defense of a family member if the jury found that he were the initial aggressor in the altercation with Jason. The Court of Appeals agreed.

First, the appellate court stated that the trial court could not have based its ruling on Tom’s decision to arm himself with the baseball bat before joining the altercation. The mere fact that a defendant was armed is not evidence that he was the aggressor if he did not unlawfully use his weapon.

Moreover, the court deemed it significant that Jason was the first to employ deadly force. Tom testified that from the moment he opened the bedroom door, “Jason had his hands around Molly’s neck,” and he said he was going to kill her. Jason subsequently put Molly in a “very tight chokehold” and Tom noticed that Molly “was no longer wiggling. She was just weight, being dragged back into the hallway.”

Because Tom did not aggressively and willingly enter into the fight without legal excuse or provocation, the Court of Appeals determined that the trial court erred by instructing the jury on the aggressor doctrine. The error, the court reasoned, very likely prejudiced Molly as well as Tom, since the jury was instructed that it could find her guilty under an acting-in-concert theory.

One judge concurred in part and dissented in part. The judge concurred that the trial court did not err by denying defendants’ request for an evidentiary hearing on their MAR and the MAR itself or by denying defendants’ motions to dismiss for insufficient evidence. The judge dissented from the remainder of the majority opinion leading to its conclusion that the defendants are entitled to a new trial.

In this child sexual assault case, the trial court rejected the defendant’s argument that the State’s expert witness was not qualified to give testimony under amended Rule 702. Because the defendant was indicted on April 11, 2011, the amendments to Rule 702 do not apply to his case.

In this New Hanover County case, defendant appealed his conviction for first-degree murder, arguing error in (1) denying his motion to dismiss for lack of evidence he was the perpetrator; (2) overruling his objection that the trial court did not make necessary findings on reliability for expert testimony; (3) denying his post-conviction motion for appropriate relief (MAR) based upon newly-discovered evidence; (4) admitting evidence of his prior removal of an electronic monitoring device; and (5) overruling his objections to the State’s closing argument. The Court of Appeals found no error. 

In January of 2016, officers responded to a call about a fourteen-year-old being shot. While accompanying the ambulance to the hospital, they received a report of additional shots fired, and diverted to the scene, where the officers found defendant running from the area. After arresting defendant, officers found he was carrying a 9mm handgun. The State Crime Laboratory later matched the bullet that killed the victim to this handgun. Defendant was subsequently convicted and appealed. 

Taking up defendant’s argument (1), the Court of Appeals explained that because the evidence that defendant was the perpetrator was circumstantial, proof of motive, opportunity, and means were necessary to support the inference that defendant committed the crime. Here, the State admitted evidence that the shooting was in retaliation for a previous shooting two weeks prior, and that the shell casing found at the scene, the bullet in the victim, and defendant’s statements to police all tied him to the murder. As a result, “[a] reasonable juror could find Defendant had the opportunity and means to commit the murder.” Slip Op. at 8. 

Turning to (2), the court noted that trial courts enjoy wide latitude when determining admissibility of expert testimony. Here, defendant argued that the State’s firearm expert did not utilize “reliable principles and methods” in violation of Rule of Evidence 702, as the State’s expert utilized a micro-analysis test instead of a lands and grooves test on the projectile, a method disputed by the defense’s expert. Id. at 10. The court found no abuse of discretion as “[t]he superior court made supported findings to resolve purported contradictions between the competing experts.”

Reviewing (3), the court explained defendant’s newly discovered evidence concerned the history of the State’s expert receiving a complaint from a superior court judge as well as a mistake during a firearm examination in a previous case. The court noted that the State was not in possession of the expert’s personnel records and was not aware of the purported mistake, and under Brady v. Maryland, 373 U.S. 83 (1963), the State had not suppressed material evidence. The court further noted that defendant was not entitled to a new trial as the newly discovered evidence “merely questions the expert witness’ past, not the State’s evidence at this trial.” Id. at 14. 

Arriving at (4), the court explained that the trial court’s decision to admit evidence of defendant removing his electronic monitoring device fifteen days before the shooting under Rule of Evidence 404(b) was not error. Defendant “disabled his electronic monitoring device approximately an hour after another murder was committed two weeks earlier in the same area of Wilmington . . . [t]he evidence and timing of these incidents and Defendant’s actions are part of the chain of events that contextualize the crime.” Id. at 16. 

Finally, the court dispensed with (5), explaining that the prosecutor’s closing argument did not shift the burden onto defendant, as the statements merely referenced defendant’s failure to refute the evidence admitted at trial. Likewise, the prosecutor’s reference to a link between the murder and retaliation for a previous murder was not an improper reference to “gangs” and was supported by evidence and testimony admitted at the trial. 

The defendant was convicted of first-degree murder in Person County. The victim was a neighbor with whom the defendant had long-running disputes. According to the defendant, he shot the neighbor in self-defense. The victim was shot 11 or 12 times, with the vast majority of the bullets having entered the victim from the back and side of his body. The State presented evidence from an experiment performed by a forensic firearms examiner attempting to replicate the production of the layout of bullet shell casings found at the scene in order to demonstrate the shooter’s location and to rebut the defendant’s self-defense claim. The expert only reported the results of the experiment and did not specifically opine about the shooter’s location. 

(1) Relying on cases pre-dating the adoption of the Rules of Evidence, the defendant argued this evidence was improperly admitted in violation of the “substantial similarity” test. These older cases imposed stricter requirements for the admission of “experimental evidence” – that is, evidence “about an experiment that is used to prove something about the actual events that occurred in the case.” Slip op. at 8. The defendant argued that these rules controlled, rather than Rule of Evidence 702. Under those cases, the standard of review on appeal of this issue would have been de novo, rather than the abuse of discretion standard applied to Rule 702 challenges. The defendant did not argue or cite to Rule 702 or to any cases applying the rule since the 2011 amendments adopting the Daubert standard for expert testimony. Rejecting this argument, the court found that later cases, even those pre-dating the 2011 amendment to Rule 702, had in fact adopted an abuse of discretion standard of review for experimental evidence. The court also rejected the notion that the substantial similarity test stood apart from Rule 702. “The notion of ‘substantial similarity’ for experimental evidence is one of the many ‘particular factors articulated in previous cases’ that is now baked into the third prong of Rule 702’s reliability test.” Id. at 10. Thus, pursuant to Rule 702, the standard of review is abuse of discretion. Even if the defendant’s argument that the evidence was erroneously admitted was not forfeited by his failure to argue Rule 702 or abuse of discretion, the trial court did not err in admitting the testimony. In the words of the court: “Here, the trial court’s determination that the experiment met the Rule 702 criteria was a reasoned one and not manifestly arbitrary. Thus, we cannot hold that the trial court abused its discretion.” Id. at 12.

(2) The defendant also argued that the trial court erred in qualifying the expert to give an opinion about shell ejection patterns. Voir dire of the expert revealed that he had not received training on ejection patterns of bullet shells, that no certification for this subject exists, and that he had not previously performed this type of experiment. According to the court, the trial court did not abuse its discretion in so qualifying the expert: “’[I]t is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist’ as long as ‘the expert witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.’” Id. at 14. Based on his extensive training and experience in the field of firearms, the trial court acted within its discretion and did not err in qualifying the expert.

The conviction was therefore unanimously affirmed with Judges Berger and Arrowood concurring.

The trial court did not abuse its discretion by reversing its ruling on the defendant’s motion in limine and allowing the State’s expert witnesses’ firearm identification testimony. The trial court initially had ruled that it would limit any testimony by the experts to statements that the bullets were “consistent,” rather than that they had been fired from the same weapon. However, after defense counsel stated in his opening statement that defense experts would testify as to their “opinion that you cannot make a match, that there [are] simply not enough points of comparison on the two bullets,” the trial court reversed its earlier ruling and permitted the State’s experts to testify to their opinions that both bullets were fired from the same gun. (1) Citing case law, the court held that forensic toolmark identification is sufficiently reliable. (2) The court rejected the defendant’s argument that the State’s experts were not qualified to testify based on a lack of evidence verifying one of the expert’s training and a shared lack of credentials. The State presented evidence of both experts’ qualifications and experience. Although the State did not present verification of one of the expert’s training and neither expert was a member of a professional organization, both experts explained how firearm toolmark identification works and how they conducted their investigations such that they were better qualified than the jury to form an opinion in the instant case.

The defendant was convicted by a jury of two counts of statutory sexual offense with a child by an adult and one count of first-degree kidnapping based on his repeated sexual assaults of his seven-year-old niece. The trial court sentenced the defendant to prison and ordered him to enroll in satellite-based monitoring (SBM) for life. (1) Based on the defendant’s failure to file a written notice of appeal as required by Rule 3 of the Rules of Appellate Procedure, the court of appeals concluded that it lacked jurisdiction to hear his SBM appeal. The defendant also failed to argue in the trial court that SBM was an unconstitutional search under the Fourth Amendment. The court of appeals declined grant his petition for writ of certiorari and, in the absence of evidence of a manifest injustice, to invoke Appellate Rule 2 to address his unpreserved constitutional argument. (2) A pediatrician that the State tendered as an expert testified without objection that children don’t tend to make up stories about sexual abuse, and that the victim “gave excellent detail” and that her story was “very consistent.” The court of appeals found no error, noting that while it would be improper for an expert witness to opine based on an interview with a victim as to whether the child had been sexually abused, statements regarding the child’s consistency in recounting the alleged abuse are nevertheless admissible. (3) The court rejected the defendant’s argument that witnesses’ repeated use of the words “disclose” and “disclosure” to describe what the victim told them in private amounted to impermissible vouching. Citing State v. Betts, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019), and declining to follow unpublished State v. Jamison, ___ N.C. App. ___, 821 S.E.2d 665 (2018) (unpublished), the court agreed that nothing about the term “disclose” conveys believability or credibility. (4) Some statements admitted by a marriage and family therapist who treated the victim were improper vouching. Her general statement about “this incident that happened” was not improper, but her statement that the victim would need therapy “because of the sexual abuse that she experienced” and “I believe [the victim]” were improper as an opinion of the victim’s veracity. However, in the absence of an objection at trial and in light of the substantial evidence against the defendant (medical evidence and testimony from corroborating witnesses), the court concluded that the admission of the improper evidence did not rise to the level of plain error warranting a new trial. (5) Finally, defense counsel’s failure to object to the improper vouching evidence was not ineffective assistance of counsel where there was no reasonable probability that the errors prejudiced the defendant.

Reversing the Court of Appeals in a case in which the amended version of Rule 702 applied, the Supreme Court held that the trial court did not abuse its discretion in excluding defense expert testimony regarding repressed memory and the suggestibility of memory. The case involved a number of child sex offense charges. Before trial, the State successfully moved to suppress testimony from a defense expert, Moina Artigues, M.D., regarding repressed memory and the suggestibility of children. The Court of Appeals had reversed the trial court and remanded for a new trial, finding that the trial court improperly excluded the expert’s testimony based on the erroneous belief it was inadmissible as a matter of law because the expert had not interviewed the victims. The State petition the Supreme Court for discretionary review. Holding that the trial court did not abuse its discretion in excluding Dr. Artigues’s testimony, the Court found that “the Court of Appeals was correct to clarify that a defendant’s expert witness is not required to examine or interview the prosecuting witness as a prerequisite to testifying about issues relating to the prosecuting witness at trial.” The Court noted: “Such a requirement would create a troubling predicament given that defendants do not have the ability to compel the State’s witnesses to be evaluated by defense experts.” The Court disagreed however with the Court of Appeals’ determination that the trial court based its decision to exclude defendant’s proffered expert testimony solely on an incorrect understanding of the law. It found that the Court of Appeals presumed that the testimony was excluded based on an erroneous belief that there was a per se rule of exclusion when an expert has not interviewed the victim. However, the trial court never stated that such a rule existed or that it based its decision to exclude the testimony solely on that rule. The Court went on to note that Rule 702 does not mandate any particular procedural requirements for evaluating expert testimony. Here, the trial court ordered arguments from both parties, conducted voir dire, considered the proffered testimony, and considered the parties’ arguments regarding whether the evidence could be excluded under Rule 403 even if it was admissible under Rule 702. With respect to the latter issue, the Court noted that Rule 403 allows for the exclusion of evidence that is otherwise admissible under Rule 702. The Court concluded that there is evidence to support the trial court’s decision to exclude the testimony and that it properly acted as a gatekeeper in determining the admissibility of expert testimony.

In this Macon County case, defendant appealed his convictions for forcible rape, kidnapping, burglary, assault on a female, and interfering with an emergency communication, arguing error in (1) denying his motion to dismiss the kidnapping charge, (2) allowing expert testimony about a sexual assault nurse examination (“SANE”) from a nurse who did not conduct the examination, and (3) failing to intervene ex mero motu in response to the prosecutor’s statements during closing argument. The Court of Appeals found no error. 

In May of 2019, defendant appeared at the door of the victim’s home, telling her that his car was stuck in a ditch and he needed a place to stay for the night. Defendant was known to the victim through previous employment, and she offered her guesthouse to defendant for the night. According to the victim’s testimony, defendant then reappeared at her door asking for a cigarette lighter, barged in when she opened the door, and raped her on her bed. The victim eventually escaped and found officers from the sheriff’s department, who arrested defendant as he slept in the victim’s bed. The victim underwent a SANE the next morning. At trial, defendant moved to dismiss the kidnapping charge, arguing the State did not admit evidence he confined the victim separate from his alleged sexual assault; the trial court denied the motion. The State called a forensic nursing supervisor to testify regarding the SANE report, although she was not the nurse that performed the SANE. Defendant did not object to the nurse expert’s testimony, and he was subsequently convicted of all charges. 

Finding no error in (1), the Court of Appeals explained that “[i]n rape cases, this Court has previously determined a separate charge of second-degree kidnapping requires a defendant’s restraint or confinement of the victim to be separate from that necessary to accomplish the rape.” Slip Op. at 10. The court found just such evidence here, noting that the struggle between defendant and the victim began as she fled from him at the door, then moved to the bedroom, where defendant restrained her on the bed prior to the sexual assault. 

Moving to (2), the court first gave an overview of the applicable Confrontation Clause issues, noting “an expert witness may properly base her independent opinion ‘on tests performed by another person, if the tests are of the type reasonably relied upon by experts in the field,’ without violating the Confrontation Clause.” Id.at 15, quoting State v. Fair, 354 N.C. 131, 162 (2001). Here, the nurse expert’s qualifications were established, and she testified about her independent conclusions after reviewing the SANE, subject to cross-examination by defendant. The court found no error in admitting the SANE and expert testimony under these circumstances. 

Finally, the court found no error in (3), explaining “the Prosecutor’s closing statements were consistent with the record, as his arguments highlighted the differences between Defendant’s statements to the police two days after the incident, which were properly admitted at trial, and Defendant’s own testimony during his trial.” Id. at 20. Because the prosecutor’s statements were simply a credibility argument against defendant’s testimony, the court did not find an error prejudicing defendant. 

In this Wake County case, defendant appealed his convictions for statutory rape and taking indecent liberties with a child, arguing the trial court improperly excluded testimony from his expert. The Court of Appeals dismissed defendant’s appeal.

In 2019, defendant had sex with a 15-year-old girl who he intercepted on her walk home from a bus stop. When the case reached trial, defendant attempted to have his expert, a registered nurse, testify that the victim was not penetrated by defendant. The State challenged this testimony under Rule of Evidence 704. After voir dire of the expert, the trial court would not allow her to testify regarding whether a sexual assault occurred, and defendant chose not to call her due to the limitation on her testimony. Defendant was convicted on all charges and timely appealed. Due to significant procedural errors in his notice of appeal, defendant filed a petition for writ of certiorari.

Walking through the procedural issues with defendant’s appeal, the court first noted the missing certificate of service issue was waived by the State when they failed to raise the issue and filed a reply brief. The court then pointed out defendant preserved the expert testimony issue for appeal by objecting during the trial, drawing a contrast with the procedural defect present in State v. Ricks, 378 N.C. 737, 741. Slip Op. at 10-11. However, defendant failed to “designate the judgment or order from which appeal is taken” as required by Rule of Appellate Procedure 4(b). This defect meant that defendant was required to show merit or prejudice justifying the issuance of a writ of certiorari to proceed. Id. at 12. 

The court turned to the expert testimony issue under Rule of Evidence 702, explaining the two-prong test applicable to expert testimony conducted under the trial court’s discretion. The court explained the “trial court first applied the factors outlined in [Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)] when determining whether [defendant’s expert] was qualified as an expert, focusing on the absence of reliable principles and methods,” then “contemplated how to balance [defendant’s expert’s] lack of credentials and training with [d]efendant’s right to present a defense.” Id. at 15. Defendant failed to show any abuse of the trial court’s discretion during this process, leading the court to deny his petition and dismiss the appeal.

The defendant was found guilty of taking indecent liberties with a child after his thirteen-year-old niece disclosed to several people that the defendant was behaving in a sexually inappropriate manner toward her.

On appeal, the defendant contended that the trial court committed plain error by permitting the State’s expert to vouch for the minor’s credibility. The defendant argued that the expert impermissibly testified that the minor’s medical history “was consistent with child sexual abuse” and that her “physical exam would be consistent with a child who had disclosed child sexual abuse.” Slip op. at ¶ 8. The Court of Appeals rejected the defendant’s argument, noting that for expert testimony to amount to vouching for a witness’s credibility, that expert testimony must present “a definitive diagnosis of sexual abuse” in the absence of “supporting physical evidence of the abuse.” Slip op. at ¶ 13. The Court’s review of the expert’s full testimony in proper context showed that the expert appropriately provided the jury with an opinion, based on her expertise, that a lack of physical findings of sexual abuse does not generally correlate with an absence of sexual abuse.

The defendant next argued that by closing the courtroom immediately prior to the jury charge, the trial court committed structural error and violated his constitutional right to a public trial. The Court of Appeals noted that the defendant failed to object to this procedure at trial and declined to invoke Appellate Rule 2 to review the constitutional argument. The Court nonetheless concluded that the trial court’s imposition of reasonable limitations of movement in and out of the courtroom to minimize jury distractions were within its statutory and inherent authority to control the courtroom.

The defendant also contended that he was prejudiced at trial by ineffective assistance of counsel, arguing that his counsel “failed in multiple instances to object to plainly impermissible testimony by numerous State’s witnesses vouching for [the minor], or otherwise consented to such inadmissible evidence, when there could be no reasonable strategic basis for doing so.” Slip op. at ¶ 29.  The Court rejected this argument, determining that the defendant had not shown that any of the alleged errors gave rise to a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Slip op. at ¶ 30.

In this indecent liberties with a child case, the court rejected the defendant’s argument that a nurse’s opinion testimony improperly vouched for the victim’s credibility. In the relevant portion of her testimony, the nurse stated that erythema that she observed on the victim’s privates was consistent with touching, but also could be consistent with “a multitude of things,” such as improper hygiene. The court was unable to see how this testimony improperly vouched for the victim’s credibility.

(1) In this child sexual assault case, the trial court did not err by admitting an assessment in a report by the State’s medical expert, Dr. Thomas, of “Child sexual abuse.” Thomas testified to general characteristics of abused children. She did not offer an opinion that the victim had been sexually abused or that the victim fell into the category of children who have been sexually abused but showed no physical symptoms of abuse. The report in question includes a statement: “Chief Concern: Possible child sexual abuse.” The statement at issue in the report was in a paragraph entitled Assessment and Recommendations, which began with the following sentence: “Child sexual abuse by [victim’s] disclosure.” The court rejected the argument that Thomas opined that the victim had been sexually abused. It concluded that the phrase at issue merely introduced the paragraph of the report dealing with the victim’s disclosure.

(2) In this child sexual assault case, no plain error occurred with respect to admission of certain statements made by the State’s medical expert, Dr. Thomas, alleged by the defendant to impermissibly bolster and vouch for the victim’s credibility. In her written report, Thomas wrote that the victim’s disclosures have been “consistent and compelling” and that she “agree[s] with law enforcement in this compelling and concerning case.” It is not improper for an expert to testify to a victim’s examination being “consistent” with the victim’s statements of abuse. Here, the defendant argued that “compelling” was the problematic word. Assuming arguendo that admission of the statements was error, it did not rise to the level of plain error.

In this child sexual assault case, the State’s medical expert did not impermissibly testify that the victim had been abused. Case law holds that 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. Here however the expert’s statement, considered in context, does not amount to an assertion that the child was in fact abused. Rather, the expert was speaking of a hypothetical victim when she made the statement in question. In fact, she testified that the victim’s medical exam was normal and that she could not determine from the exam whether or not the child had been sexually abused.

(1) In this child sexual assault case the trial court did not err by admitting testimony from the victim’s therapist. The court rejected the defendant’s argument that the therapist’s testimony constituted impermissible vouching for the victim’s credibility. The therapist specialized in working with children who have been sexually abused; she performed an assessment and used trauma-focused cognitive behavioral therapy (TFCBT) to help treat the victim. During treatment the victim talked about the sexual misconduct, how she felt, and wrote a “trauma narrative” describing what had happened. The court noted that the defendant was unable to point to any portion of the therapist’s testimony where she opined that the victim was in fact sexually abused by the defendant or stated that sexual abuse did in fact occur. Rather, the therapist explained how TFCBT is used to help treat sexual abuse victims and described therapeutic techniques that she employs in her treatment. She testified that the victim had symptoms consistent with trauma, and explained the process and purpose of writing a trauma narrative. The court found that her explanation laid the foundation for the State to introduce the victim’s trauma narrative, which included her written statement about what happened to her. It noted that the narrative was introduced solely for the purpose of corroborating the victim’s testimony. It added, “[t]he mere fact that [the therapist’s] testimony supports [the victim’s] credibility does not render it inadmissible.” (2) The trial court did not err by allowing a nurse practitioner to testify that she recommended the victim for therapy despite finding no physical evidence of abuse, and that she referred to the victim’s mother as the “non-offending” caregiver. The defendant argued that this testimony impermissibly bolstered the victim’s credibility and constituted opinion evidence as to guilt. The court noted that the nurse never asserted that the victim had been sexually abused or explicitly commented on her credibility. Rather, her testimony simply recounted what she did at the conclusion of her examination of the victim and was within the permissible range of expert testimony in child sexual abuse cases. As to her use of the term non-offending caregiver, the witness explained that her organization uses that term to refer to the person with whom the child will be going home and that any parent or caregiver suspected of being an offender is not allowed in the center. The court noted that the witness never testified that the defendant was an offending caregiver.

In this child sexual abuse case, no error occurred when the medical doctor who examined the victim explained the victim’s normal examination, stating that 95% of children examined for sexual abuse have normal exams and that “it’s more of a surprise when we do find something.” The doctor further testified that a normal exam with little to no signs of penetrating injury could be explained by the “stretchy” nature of the hymen tissue and its ability to heal quickly. For example, she explained, deep tears to the hymen can often heal within three to four months, while superficial tears can heal within a few days to a few weeks. Nor was it error for the doctor to testify that she was made aware of the victim’s “cutting behavior” through the victim’s medical history and that cutting behavior was significant to the doctor because “cutting, unfortunately, is a very common behavior seen in children who have been abused and frequently sexually abused.” The doctor never testified that the victim in fact had been abused. 

(1) In this child sexual abuse case, testimony from a psychologist, Ms. Bellis, who treated the victim did not constitute expert testimony that impermissibly vouched for the victim’s credibility. Bellis testified, in part, that the victim “came in because she had been molested by her older cousin." The court noted that in the cases offered by defendant, “the experts clearly and unambiguously either testified as to their opinion regarding the victim's credibility or identified the defendant as the perpetrator of the sexual abuse.” It continued:

Here, in contrast, Ms. Bellis was never specifically asked to give her opinion as to the truth of [the victim’s] allegations of molestation or whether she believed that [the victim] was credible. When reading Ms. Bellis' testimony as a whole, it is evident that when Ms. Bellis stated that "[t]hey specifically came in because [the victim] had been molested by her older cousin[,]" Ms. Bellis was simply stating the reason why [the victim] initially sought treatment from Ms. Bellis. Indeed, Ms. Bellis' affirmative response to the State's follow-up question whether there was "an allegation of molestation" clarifies that Ms. Bellis' statement referred to [the victim]'s allegations, and not Ms. Bellis' personal opinion as to their veracity. Because Ms. Bellis' testimony, when viewed in context, does not express an opinion as to [the victim]'s credibility or defendant's guilt, we hold that the trial court did not err in admitting it.

(2) The court rejected defendant’s argument that the trial court committed plain error by admitting Bellis' testimony that she diagnosed the victim with PTSD. The court concluded that the State's introduction of evidence of PTSD on re-direct was not admitted as substantive evidence that the sexual assault happened, but rather to rebut an inference raised by defense counsel during cross-examination. The court further noted that although defendant could have requested a limiting instruction, he did not do so. 

No error occurred when the State’s experts in a sexual assault case testified that the victim’s physical injuries were consistent with the sexual assault she described.

In a child sexual abuse case, the trial court did not err by admitting testimony by the State’s medical experts. The court rejected the defendant’s argument that an expert pediatrician improperly testified that the victim had been sexually abused, concluding that the expert gave no such testimony. Rather, she properly testified regarding whether the victim exhibited symptoms or characteristics consistent with sexually abused children. The court reached the same conclusion regarding the testimony of a nurse expert.

In this child sex case, the trial court committed reversible error by allowing the State’s medical expert to testify to the opinion that the victim’s disclosure was consistent with sexual abuse where there was no physical evidence consistent with abuse. In order for an expert medical witness to give an opinion that a child has, in fact, been sexually abused, the State must establish a proper foundation, i.e. physical evidence consistent with sexual abuse. Without physical evidence, expert testimony that sexual abuse has occurred is an impermissible opinion regarding credibility. Although the expert in this case did not diagnose the victim as having been sexually abused, she “essentially expressed her opinion that [the victim] is credible.”

In a child sex case, the trial court did not err by allowing the State’s properly qualified medical expert to testify that the victim’s profile was consistent with that of a sexually abused child. The court rejected the defendant’s argument that the State failed to lay a proper foundation for the testimony, concluding that because the witness was properly qualified to testify as an expert regarding the characteristics of sexually abused children, a proper foundation was laid.

Improper testimony by an expert pediatrician in a child sexual abuse case required a new trial. After the alleged abuse, the child was seen by Dr. Gutman, a pediatrician, who reviewed her history and performed a physical exam. Gutman observed a deep notch in the child’s hymen, which was highly suggestive of vaginal penetration. Gutman found the child’s anus to be normal but testified that physical findings of anal abuse are uncommon. Gutman also tested the child for sexually transmitted diseases. The tests were negative, except that the child was diagnosed with bacterial vaginosis. Gutman testified that the presence of bacterial vaginosis can be indicative of a vaginal injury, although it is the most common genital infection in women and can have many causes. The child’s mother had indicated the child had symptoms of vaginosis as early as 2006, which predated the alleged abuse. Gutman testified to her opinion that the child had been sexually abused, that she had no indication the child’s story was fictitious or that the child had been coached, and that defendant was the perpetrator. (1) Gutman was properly allowed to testify that the child had been sexually abused given the physical evidence of the unusual hymenal notch and bacterial vaginosis. The court noted that Gutman did not state which acts of alleged sexual abuse had occurred. It continued, noting that if Gutman had testified that the child had been the victim of both vaginal and anal sexual abuse, that would have been error given the lack of physical evidence of anal penetration. (2) Gutman’s testimony that she was not concerned that the child was “giving a fictitious story” was essentially an opinion that the child was not lying about the sexual abuse and thus was improper. The court rejected the State’s argument that the defendant opened the door to this testimony. (3) Citing State v. Baymon, 336 N.C. 748 (1994), the court held that Gutman’s testimony that the child had not been coached was admissible. (4) It was error to allow Gutman to testify that “there was no evidence that there was a different perpetrator” other than defendant where Gutman based her conclusion on her interview with the child and it did not relate to a diagnosis derived from Gutman’s examination of the child.

In a child sexual offense case, the trial court did not err by excluding defense evidence consisting of testimony by a social worker that during therapy sessions the victim was “overly dramatic,” “manipulative,” and exhibited “attention seeking behavior.” The testimony did not relate to an expert opinion which the witness was qualified to deliver and was inadmissible commentary on the victim’s credibility.

The trial court did not err by allowing the State’s expert in family medicine to testify that if there had been a tear in the victim’s hymen, it probably would have healed by the time the expert saw the victim. The testimony explained that the lack of physical findings indicative of sexual abuse did not negate the victim’s allegations of abuse and was not an impermissible opinion as to the victim’s credibility. Even if error occurred, it was not prejudicial in light of overwhelming evidence of guilt.

In a child sexual abuse case, the trial court did not abuse its discretion by overruling a defense objection to a response by the State’s expert. On direct examination, the expert testified that the child’s physical examination revealed no signs of trauma to the hymen. On cross-examination, she opined, without objection, that her physical findings could be consistent with rape or with no rape. On recross-examination, defense counsel asked: “And the medical aspects of this case physically are that there are no showings of any rape; correct?” The witness responded: “There’s no physical findings which do not rule out her disclosure, sir.” The trial judge overruled a defense objection to this response. The court rejected the defendant’s argument that the expert’s answer impermissibly commented on the victim’s credibility, concluding that the expert’s response was consistent with her prior testimony that her physical findings were consistent with rape or no rape.

In a case in which the defendant was found guilty of felonious child abuse inflicting serious bodily injury and first-degree murder, the trial court did not err by admitting testimony of the State’s expert in the field of developmental and forensic pediatrics. Based on a review of photographs, reports, and other materials, the expert testified that she found the histories of the older children very consistent as eyewitnesses to what the younger children described. She also testified about ritualistic and sadistic abuse and torture, stating that torture occurs when a person “takes total control and totally dominates a person’s behavior and most the [sic] basic of behaviors are taken control of. Those basic behaviors are eating, eliminating and sleeping.” As an example, she described binding a child at night, placing duct tape over the mouth, and then placing furniture on the child for the purpose of immobilization. The expert stated that she was not testifying to a legal definition of torture but was defining the term based on her medical expertise. She testified that one sibling suffered from sadistic abuse and torture; another from sadistic abuse, ritualistic abuse, and torture; and a third from sadistic abuse and torture. The jury was instructed to consider this testimony for the limited purpose for which it was admitted under Rule 404(b). Additionally, the trial court instructed the jury that torture was a “course of conduct by one who intentionally inflicts grievous pain and suffering upon another for the purpose of punishment, persuasion or sadistic pleasure.” The expert’s testimony was not inadmissible opinion testimony on the credibility of the children and admission of the expert’s testimony regarding the use of the word torture was not an abuse of discretion. 

The state’s expert pediatrician was improperly allowed to testify that his findings were consistent with a history of anal penetration received from the child victim where no physical evidence supported the diagnosis. The expert was properly allowed to testify that victim’s history of vaginal penetration was consistent with his findings, which included physical evidence supporting a diagnosis of sexual intercourse. The expert’s testimony that his findings were consistent with the victim’s allegations that the defendant perpetrated the abuse was improper where there was no foundation for the testimony that the defendant was the one who committed the acts.

In a drug case, the trial court abused its discretion by allowing the State’s expert in chemical analyses of drugs and forensic chemistry to identify the pills at issue as controlled substances when the expert’s method of making that identification consisted of a visual inspection and comparison with information in Micromedex literature, a publication used by doctors in hospitals and pharmacies to identify prescription medicines. The court concluded that the expert’s proffered method of proof was not sufficiently reliable under the first prong of the Howerton/Goode analysis. It concluded: “Unless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.” The court limited its holding to Rule 702 and stated that it “does not affect visual identification techniques employed by law enforcement for other purposes, such as conducting criminal investigations.” Finally, the court indicated that “common sense limits this holding regarding the scope of the chemical analysis that must be performed.” It noted that in the case at issue, the State submitted sixteen batches of over four hundred tablets to the laboratory, and that “a chemical analysis of each individual tablet is not necessary.” In this regard, the court reasoned that the “SBI maintains standard operating procedures for chemically analyzing batches of evidence, and the propriety of those procedures is not at issue here. A chemical analysis is required in this context, but its scope may be dictated by whatever sample is sufficient to make a reliable determination of the chemical composition of the batch of evidence under consideration.”

In this drug case, the trial court did not commit plain error by admitting the expert opinion of a forensic chemist. On appeal, the defendant argued that the expert’s testimony failed to demonstrate that the methods she used were reliable under the Rule 702. Specifically, he argued that the particular testing process used by the Charlotte-Mecklenburg Police Department Crime Lab to identify cocaine creates an unacceptable risk of a false positive and that this risk, standing alone, renders expert testimony based on the results of this testing process inherently unreliable under Rule 702(a). The court declined to consider this argument, concluding that it “goes beyond the record.” The defendant did not object to the expert's opinion at trial. The court concluded that because the defendant failed to object at trial, the issue was unpreserved. However, because an unpreserved challenge to the performance of a trial court's gatekeeping function under Rule 702 in a criminal trial is subject to plain error review, the court reviewed the case under that standard. The court noted that its “jurisprudence wisely warns against imposing a Daubert ruling on a cold record” and that as a result the court limits its plain error review “of the trial court’s gatekeeping function to the evidence and material included in the record on appeal and the verbatim transcript of proceedings.” (quotation omitted). Here, the defendant’s false positive argument “is based on documents, data, and theories that were neither presented to the trial court nor included in the record on appeal.” The court determined that its plain error review of the defendant’s Rule 702 argument “is limited solely to the record on appeal and the question of whether or not an adequate foundation was laid before [the] expert opinion was admitted.” Here, an adequate foundation was laid. The witness, tendered as an expert in forensic chemistry, testified that she had a degree in Chemistry and over 20 years of experience in drug identification. She also testified about the type of testing conducted on the substance in question and the methods used by the Crime Lab to identify controlled substances. The witness testified that she tested the seized substance, that she used a properly functioning GCMS, and that the results from that test provided the basis for her opinion. Furthermore, her testimony indicates that she complied with Lab procedures and the methods she used were “standard practice in forensic chemistry.” This testimony was sufficient to establish a foundation for admitting her expert opinion under Rule 702.

The court also rejected the defendant’s argument that the trial court erred “by failing to conduct any further inquiry” when the witness’s testimony showed that she used scientifically unreliable methods, stating: “While in some instances a trial court’s gatekeeping obligation may require the judge to question an expert witness to ensure his or her testimony is reliable, sua sponte judicial inquiry is not a prerequisite to the admission of expert opinion testimony.”

In this drug case, the court held that although the trial court erred by allowing lay opinion testimony identifying the substance at issue as crack cocaine based on a visual identification, the error was not prejudicial where the State presented expert testimony, based on a scientifically valid chemical analysis, that the substance was a controlled substance. The trial court allowed the arresting officer, a Special Agent Kluttz with the North Carolina Department of Alcohol Law Enforcement, to identify the substance as crack cocaine. Agent Kluttz based his identification on his training and experience and his perceptions of the substance and its packaging. He was not tendered as an expert. The State also introduced evidence in the form of a Lab report and expert testimony by a chemical analyst with the North Carolina State Crime Laboratory. This witness testified that the results of testing indicated that the substance was consistent with cocaine. North Carolina Supreme Court precedent establishes two rules in this area: First, the State is required to present either a scientifically valid chemical analysis of the substance in question or some other sufficiently reliable method of identification. And second, testimony identifying a controlled substance based on visual inspection—whether presented as an expert or lay opinion—is inadmissible. Applying this law, the court agreed with the defendant that Agent Kluttz’s identification of the substance as crack cocaine was inadmissible lay opinion testimony. However given the other admissible evidence that identified the substance as a controlled substance based on a chemical analysis, the defendant failed to demonstrate prejudice and therefore to establish plain error.

In this drug case, the trial court did not abuse its discretion by admitting expert testimony identifying the substance at issue as marijuana. At trial, Agent Baxter, a forensic scientist with the N.C. State Crime Lab, testified that she examined the substance, conducted relevant tests, and that the substance was marijuana. The Daubert test requires the court to evaluate qualifications, relevance and reliability. In the instant case, the defendant did not dispute Baxter’s credentials or the relevancy of her testimony; he challenged only its reliability. The court noted that Daubert articulated five factors from a nonexhaustive list that can bear on reliability. Those factors however are part of a flexible inquiry and do not form a definitive checklist or test; the trial court is free to consider other factors that may help assess reliability. Additionally, Rule 702 does not mandate any particular procedural requirements for the trial court when exercising its gatekeeping function over expert testimony. Here, Baxter’s testimony established that she analyzed the substance in accordance with State Lab procedures, providing detailed testimony regarding each step in her process. The court concluded: “Based on her detailed explanation of the systematic procedure she employed to identify the substance …, a procedure adopted by the N.C. Lab specifically to analyze and identify marijuana, her testimony was clearly the ‘product of reliable principles and methods’ sufficient to satisfy … Rule 702(a).” The court went on to reject the defendant’s argument that Baxter’s testimony did not establish that she applied the principles and methods reliably to the facts of the case.

The evidence was sufficient with respect to 35 counts of possession of the precursor chemical pseudoephedrine with intent to manufacture methamphetamine. The court rejected the defendant’s argument that the evidence was insufficient because the substance was not chemically identified as pseudoephedrine. The court concluded that the holding of State v. Ward regarding the need to identify substances through chemical analysis was limited to identifying controlled substances, and pseudoephedrine is not listed as a controlled substance in the North Carolina General Statutes.

In a misdemeanor possession of marijuana case, the State was not required to test the substance alleged to be marijuana where the arresting officer testified without objection that based on his training the substance was marijuana. The officer’s testimony was substantial evidence that the substance was marijuana and therefore the trial court did not err by denying the defendant’s motion to dismiss.

In a trafficking in opium case, the State’s forensic expert properly testified that the substance at issue was an opium derivative where the expert relied on a chemical analysis, not a visual identification.

In a case arising from a pharmacy break-in, the court rejected the defendant’s argument that the trial court erred by failing to dismiss trafficking in opium charges because the State did not present a chemical analysis of the pills. Citing State v. Ward, 364 N.C. 133 (2010), and State v. Llamas-Hernandez, 363 N.C. 8 (2009), the court determined that State is not required to conduct a chemical analysis on a controlled substance in order to sustain a conviction under G.S. 90-95(h)(4), provided it has established the identity of the controlled substance beyond a reasonable doubt by another method of identification. In the case at hand, the State’s evidence did that. The drug store’s pharmacist manager testified that 2,691 tablets of hydrocodone acetaminophen, an opium derivative, were stolen from the pharmacy. He testified that he kept “a perpetual inventory” of all drug items. Using that inventory, he could account for the type and quantity of every item in inventory throughout the day, every day. Accordingly, he was able to identify which pill bottles were stolen from the pharmacy by examining his inventory against the remaining bottles, because each bottle was labeled with a sticker identifying the item, the date it was purchased and a partial of the pharmacy’s account number. These stickers, which were on every pill bottle delivered to the pharmacy, aided the pharmacist in determining that 2,691 tablets of hydrocodone acetaminophen were stolen. He further testified, based on his experience and knowledge as a pharmacist, that the weight of the stolen 2,691 pill tablets was approximately 1,472 grams. Based on his 35 years of experience dispensing the same drugs that were stolen and his unchallenged and uncontroverted testimony regarding his detailed pharmacy inventory tracking process, the pharmacist’s identification of the stolen drugs as more than 28 grams of opium derivative hydrocodone acetaminophen was sufficient evidence to establish the identity and weight of the stolen drugs and was not analogous to the visual identifications found to be insufficient in Ward and Llamas–Hernandez.

In this conspiracy to traffic in opiates case, the evidence was sufficient to support the conviction where the State’s expert analyzed only one of the pills in question and then confirmed that the remainder were visually consistent with the one that was tested. The police seized 20 pills weighing 17.63 grams. The State’s expert analyzed one of the pills and determined that it contained oxycodone, an opium derivative with a net weight of 0.88 grams. The expert visually examined the remaining 19 pills and found them to have “the same similar size, shape and form as well as the same imprint on each of them.” The defendant argued that the visual examination was insufficient to precisely establish how much opium derivative was present in the seized pills. The court rejected this argument, citing prior precedent establishing that a chemical analysis of each individual pill is not necessary; the scope of the analysis may be dictated by whatever sample is sufficient to make a reliable determination of the chemical composition of the entire quantity of pills under consideration.

(1) In a drug case, the court followed State v. Meadows, 201 N.C. App. 707 (2010), and held that the trial court erred by allowing an offer to testify as an expert concerning the use and reliability of a NarTest machine. (2) The trial court erred by admitting testimony by an expert in forensic chemistry regarding the reliability of a NarTest machine. Although the witness’s professional background and comparison testing provided some indicia of reliability, other factors required the court to conclude that the expert's proffered method of proof was not sufficiently reliable. Among other things, the court noted that no case has recognized the NarTest as an accepted method of analysis or identification of controlled substances and that the expert had not conducted any independent research on the machine outside of his duties as a NarTest employee.