Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 10/18/2021
E.g., 10/18/2021
State v. Walston, 369 N.C. 547 (May. 5, 2017)

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.

State v. Towe, 366 N.C. 56 (June 14, 2012)

The court modified and affirmed State v. Towe, 210 N.C. App. 430 (Mar. 15, 2011). The court of appeals held that the trial court committed plain error by allowing the State’s medical expert to testify that the child victim was sexually abused when no physical findings supported this conclusion. On direct examination, the expert stated that 70-75% of sexually abused children show no clear physical signs of abuse. When asked whether she would put the victim in that group, the expert responded, “Yes, correct.” The court of appeals concluded that this amounted to impermissible testimony that the victim was sexually abused. The supreme court agreed that it was improper for the expert to testify that the victim fell into the category of children who had been sexually abused when she showed no physical symptoms of such abuse. The supreme court modified the opinion below with respect to its application of the plain error standard, but like the lower court agreed that plain error occurred in this case.

The defendant was convicted by a jury of one count of rape of a child, one count of indecent liberties with a child, and eight counts of sexual offense with a child, and he received four consecutive sentences. The defendant did not object to the testimony of the state’s expert witness at trial, but argued on appeal that it was plain error to allow the witness to testify that the victim’s symptoms, characteristics, and history were consistent with those of children who have been sexually abused. Under plain error review, the defendant must show that there was a fundamental error at trial, and that error had a probable impact on the jury’s determination that the defendant was guilty. The appellate court held that the defendant failed to make that showing in this case.

Assuming arguendo that allowing the expert’s testimony was error, the defendant failed to show that it had a probable impact on the jury’s findings. The court reviewed in detail the extensive trial testimony from both of the defendant’s daughters describing multiple instances of sexual abuse inflicted on them over a period of many years. The victim’s testimony was corroborated by several other witnesses who investigated the case, heard the victim disclose the abuse, or had an opportunity to counsel, examine, or treat the victim as a result of the abuse. “In light of the overwhelming evidence of Defendant’s guilt,” the court concluded that “even had the challenged testimony not been admitted, the jury probably would not have reached a different result.”

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.

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.

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.

In this child sexual assault case, the court reversed the trial court’s order denying the defendant’s Motion for Appropriate Relief (MAR) seeking a new trial for ineffective assistance of counsel related to opinion testimony by the State’s expert. The defendant was convicted of sexual offenses against Kim. On appeal the defendant argued that the trial court should have granted his MAR based on ineffective assistance of both trial and appellate counsel regarding expert opinion testimony that the victim had in fact been sexually abused.

(1) The court began by concluding that the testimony offered by the State’s expert that Kim had, in fact, been sexually abused was inadmissible. The court reiterated the rule that where there is no physical evidence of abuse, an expert may not opine that sexual abuse has in fact occurred. In this case the State offered no physical evidence that Kim had been sexually abused. On direct examination the State’s expert testified consistent with governing law. On cross-examination, however, the expert expressed the opinion that Kim “had been sexually abused.” And on redirect the State’s expert again opined that Kim had been sexually abused. In the absence of physical evidence of sexual abuse, the expert’s testimony was inadmissible.

(2) The court went on to hold, however, that because the defendant failed to raise the issue on direct appeal, his claim that trial counsel was ineffective by failing to move to strike the expert’s opinion that victim Kim had in fact been sexually abused was procedurally defaulted. The record from the direct appeal was sufficient for the court to determine in that proceeding that trial counsel provided ineffective assistance of counsel. Defense counsel failed to object to testimony that was “clearly inadmissible” and the court could not “fathom any trial strategy or tactic which would involve allowing such opinion testimony to remain unchallenged.” And in fact, the trial transcript reveals that allowing the testimony to remain unchallenged was not part of any trial strategy. Moreover trial counsel’s failure to object to the opinion testimony was prejudicial. Because the “cold record” on direct appeal was sufficient for the court to rule on the ineffective assistance of counsel claim, the MAR claim was procedurally barred under G.S. 15A-1419(a)(3).

(3) The court continued, however, by holding that the defendant was denied effective assistance of appellate counsel in his first appeal when appellate counsel failed to argue that it was error to allow the expert’s testimony that Kim had, in fact, been sexually abused. The court noted that the ineffective assistance of appellate counsel claim was not procedurally barred. And, applying the Strickland attorney error standard, the court held that appellate counsel’s failure to raise the issue on direct appeal constituted ineffective assistance of counsel. The court thus reversed and remanded for entry of an order granting the defendant’s MAR.

One judge on the panel concurred with the majority “that appellate counsel was ineffective”; concurred in result only with the majority’s conclusion that the claim regarding trial counsel’s ineffectiveness was procedurally barred; but, concluding that the defendant was not prejudiced by the expert’s testimony, dissented from the remainder of the opinion.

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.

In this child sexual assault case, the trial court did not abuse its discretion by allowing Kelli Wood, an expert in clinical social work specializing in child sexual abuse cases, to testify that it is not uncommon for children to delay disclosure of sexual abuse and to testify to possible reasons for delayed disclosures. At issue was whether the testimony satisfied Rule 702. The defendant did not dispute either Wood’s qualifications or the relevance of her testimony. Rather, he asserted that her testimony did not meet two prongs of the Rule 702 Daubert reliability test. First, he asserted, Wood’s testimony was not based on sufficient facts or data, noting that she had not conducted her own research and instead relied upon studies done by others. The court rejected this argument, finding that it directly conflicted with Rule 702, the Daubert line of cases and the court’s precedent. Among other things, the court noted that as used in the rule, the term “data” is intended to encompass reliable opinions of other experts. Here, Wood’s delayed disclosure testimony was grounded in her 200 hours of training, 11 years of forensic interviewing experience, conducting over 1200 forensic interviews (90% of which focused sex abuse allegations), and reviewing over 20 articles on delayed disclosures. Wood testified about delayed disclosures in general and did not express an opinion as to the alleged victim’s credibility. As such, her testimony “was clearly” based on facts or data sufficient to satisfy the first prong of the reliability test.

               Second, the defendant argued that Wood’s testimony was not the product of reliable principles and methods. Specifically, he asserted that the delayed disclosure research she relied upon was flawed: it assumed the participants were honest; it did not employ methods or protocols to screen out participants who made false allegations; and because there was no indication of how many participants might have lied, it was impossible to know an error rate. The defendant also argued that when Wood provided a list of possible reasons why an alleged victim might delay disclosure, she did not account for the alternative explanation that the abuse did not occur. The court rejected this contention, pointing to specific portions of direct and cross-examination where these issues were addressed and explained. The court found that the defendant failed to demonstrate that his arguments attacking the principles and methods of Wood’s testimony were pertinent in assessing its reliability. It thus held that her testimony was the product of reliable principles and methods sufficient to satisfy the second prong of the reliability analysis.

(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 statutory rape case, the court rejected the defendant’s argument that the trial court erred by allowing the State’s witness, Dr. Rothe, to improperly bolster the victim’s credibility. Rothe made no definitive diagnosis that the victim had experienced sexual abuse. Instead, Rothe detailed her examination of the victim, and testified that the absence of the victim’s hymen in the 5-7 o’clock area was “suspicious” for vaginal penetration and that “having an absent hymen in that section of posterior rim is very suspicious for sexual abuse.” Rothe appropriately cautioned that her findings, while suspicious for vaginal penetration and sexual abuse, were not conclusive; Rothe explained that “the only time . . . a clinical provider . . . can say sexual abuse happened is if we see that hymen within three days of the sexual abuse[.]” Since Rothe had not examined the victim within three days of the alleged sexual abuse, she explained that the “nomenclature becomes difficult.” Rothe readily conceded on cross-examination that the gap of eight months between the alleged abuse and the examination would “affect [her] ability to determine some results” of her examination; that there is “a lot of variation in what one would consider normal in what a hymen of a prepubescent or pubescent girl looks like” and the appearance of the victim’s hymen could fall within that normal variation; and that conclusive results were not possible without a “baseline” examination conducted before the alleged abuse. Rothe further testified on cross that the results of the victim’s examination were “suspicious but not conclusive” for vaginal penetration. It is clear that Rothe did not opine that sexual abuse had in fact occurred. Rothe’s testimony that the results of the victim’s examination were “suspicious” of vaginal penetration and sexual abuse is consistent with testimony the court has found to be permissible, including an expert’s opinion that the results of an examination are “consistent with” sexual abuse. 

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.

State v. Watts, 246 N.C. App. 737 (Apr. 5, 2016) modified and affirmed on other grounds, 370 N.C. 39 (Aug 18 2017)

The defendant did not establish plain error with respect to his claim that the State’s expert vouched for the credibility of the child sexual assault victim. The expert testified regarding the victim’s bruises and opined that they were the result of blunt force trauma; when asked whether the victim’s account of the assault was consistent with her medical exam, she responded that the victim’s “disclosure supports the physical findings.” This testimony did not improperly vouch for the victim’s credibility and amount to plain error. Viewed in context, the expert was not commenting on the victim’s credibility; rather she opined that the victim’s disclosure was not inconsistent with the physical findings or impossible given the physical findings.

(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 assault case, no error occurred when the State’s expert medical witness testified that the victim’s delay in reporting anal penetration was a characteristic consistent with the general behavior of children who have been sexually abused in that manner. The court rejected the defendant’s argument that the expert impermissibly opined on the victim’s credibility.

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. 

State v. Davis, 239 N.C. App. 522 (Mar. 3, 2015) modified and affirmed on other grounds, 368 N.C. 794 (Apr 15 2016)

In this child sexual abuse case, the State’s treating medical experts did not vouch for the victim’s credibility. The court noted that defendant’s argument appears to be based primarily on the fact that the experts testified about the problems reported by the victim without qualifying each reported symptom or past experience with a legalistic term such as “alleged” or “unproven.” The court stated: “Defendant does not cite any authority for the proposition that a witness who testifies to what another witness reports is considered to be ‘vouching’ for that person’s credibility unless each disclosure by the witness includes a qualifier such as ‘alleged.’ We decline to impose such a requirement.”

(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. 

In this sexual assault case, no plain error occurred when a pediatric nurse practitioner testified to the opinion that her medical findings were consistent with the victim’s allegation of sexual abuse. The nurse performed a physical examination of the victim. She testified that in girls who are going through puberty, it is very rare to discover findings of sexual penetration. She testified that "the research, and, . . . this is thousands of studies, indicates that it's five percent or less of the time that you would have findings in a case of sexual abuse -- confirmed sexual abuse." With respect to the victim, the expert testified that her genital findings were normal and that such findings "would be still consistent with the possibility of sexual abuse." The prosecutor then asked: “Were your medical findings consistent with her disclosure in the interview?” She answered that they were. The defendant argued that the expert’s opinion that her medical findings were consistent with the victim’s allegations impermissibly vouched for the victim’s credibility. Citing prior case law, the court noted that the expert “did not testify as to whether [the victim’s] account of what happened to her was true,” that she was believable or that she had in fact been sexually abused. “Rather, she merely testified that the lack of physical findings was consistent with, and did not contradict, [the victim’s] account.”

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.

State v. King, 235 N.C. App. 187 (July 15, 2014)

In this child sex abuse case, the trial court did not err by allowing the State’s expert in pediatric medicine and the evaluation and treatment of sexual abuse to testify about common characteristics she observed in sexually abused children and a possible basis for those characteristics. The court rejected the defendant’s argument that the expert’s testimony constituted opinion testimony on the victim’s credibility.

State v. May, 230 N.C. App. 366 (Nov. 5, 2013) rev’d on other grounds, 368 N.C. 112 (Jun 11 2015)

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 a child homicide case, the trial court did not commit plain error by allowing the State’s medical experts to testify that their review of the medical records and other available information indicated that the victim’s injuries were consistent with previously observed cases involving intentionally inflicted injuries and were inconsistent with previously observed cases involving accidentally inflicted injuries. The defendant asserted that these opinions rested “on previously accepted medical science that is now in doubt” and that, because “[c]urrent medical science has cast significant doubt” on previously accepted theories regarding the possible causes of brain injuries in children, there is currently “no medical certainty around these topics.” The court rejected this argument, noting that there was no information in the record about the state of “current medical science” or the degree to which “significant doubt” has arisen with respect to the manner in which brain injuries in young children occur.

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 decided under pre-amended R. 702, the trial court did not abuse its discretion by admitting expert opinion that the victim suffered from post-traumatic stress disorder when a licensed clinical social worker was tendered as an expert in social work and routinely made mental health diagnoses of sexual assault victims. The court went on to note that when an expert testifies the victim is suffering from PTSD, the testimony must be limited to corroboration and may not be admitted as substantive evidence.

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.

(1) In a child sex case, the trial court did not err by qualifying as an expert a family therapist who provided counseling to both victims. The court first concluded that the witness possessed the necessary qualifications. Among other things, she had a master’s degree in Christian counseling and completed additional professional training relating to the trauma experienced by children who have been sexually abused; she engaged in private practice as a therapist and was a licensed family therapist and professional counselor; and over half of her clients had been subjected to some sort of trauma, with a significant number having suffered sexual abuse. Second, the court rejected the defendant’s challenge to the expert’s testimony on reliability grounds, concluding that he failed to demonstrate that her methods were unreliable. The court noted that our courts have consistently allowed the admission of similar expert testimony, relying upon personal observations and professional experience rather than upon quantitative analysis. (2) The expert did not impermissibly vouch for the credibility of the victims when she testified that “research says is 60% of cases like this do not even get reported.” According to the defendant, the expert improperly vouched for the credibility of the children by describing child sexual abuse cases with which she was familiar as “cases like this.” Distinguishing prior cases, the court disagreed. It noted that the expert never directly stated that the victims were believable; instead she described the actions and reactions of sexual abuse victims in general. (3) A detective did not impermissibly vouch for the victim’s credibility when she testified that the child actually remembered specific events. The challenged testimony was nothing more than a permissible discussion of the manner in which the child communicated with the detective.

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.

Although the trial court erred by allowing the State’s expert to testify that the child victim had been sexually abused, the error did not rise to the level of plain error. Responding to a question about the child’s treatment, the expert, a licensed clinical social worker, said: "For a child, that means . . . being able to, um, come to terms with all the issues that are consistent with someone that has been sexually abused." She also testified several times to her conclusion that the sexual abuse experienced by the victim started at a young age, perhaps age seven, and continued until she was removed from the home. When asked why the victim lashed out at a family member, the expert said that the behavior was "part of a history of a child that goes through sexual abuse." With respect to her concerns about the adequacy of a family member’s care, the expert testified: "She had every opportunity to get the education and the information to become an informed parent about a child that is sexually abused." And, when asked if it was reasonable for a family member to have doubt about the victim’s story given that she had recanted, the expert responded: "With me, there was no uncertainty." The testimony was indistinguishable from that found to be error in State v. Towe, 366 N.C. 56 (June 14, 2012) (expert's testimony was improper when she stated that the victim fell into the category of children who had been sexually abused but showed no physical symptoms of such abuse). Here, it was error for the expert to “effectively assert[]” that the victim was a sexually abused child absent physical evidence of abuse.

State v. Carter, 216 N.C. App. 453 (Nov. 1, 2011) rev’d on other grounds, 366 N.C. 496 (Apr 12 2013)

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.

In a child sexual abuse case, no plain error occurred when the trial court allowed the State’s expert to testify that the victim exhibited some classic signs of a sexually abused child. The expert did not testify that the victim was in fact sexually abused.

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.

The trial court erred when it allowed the State’s expert in clinical social work to testify that she had diagnosed the victim with sexual abuse when there was no physical evidence consistent with abuse. However, the error did not constitute plain error given other evidence in the case.

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.

The trial court erred by denying the defendant’s motion to strike a response by the State’s expert witness in a child sexual abuse case. During cross-examination, defense counsel asked whether the victim told the expert that she had been penetrated. The expert responded: “She described the rubbing; and, I would say that, as far as vaginal penetration, since the oral penetration — well, I'm not discussing that. I mean, I felt that that was very graphic and believable.” The testimony was not responsive to the question and was opinion testimony on the victim’s credibility. The court rejected the State’s argument that the statement was offered as a basis of the expert’s opinion. However, the court found that the error was harmless.

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. 

State v. Horton, 200 N.C. App. 74 (Sept. 15, 2009)

Prejudicial error occurred warranting a new trial when the trial court overruled an objection to testimony of a witness who was qualified as an expert in the treatment of sexually abused children. After recounting a detailed description of an alleged sexual assault provided to her by the victim, the State asked the witness: “As far as treatment for victims . . . why would that detail be significant?” The witness responded: “[W]hen children provide those types of specific details it enhances their credibility.” The witness’s statement was an impermissible opinion regarding credibility. Additionally, it was error to allow the witness to testify that the child “had more likely than not been sexually abused,” where there was no physical evidence of abuse; such a statement exceeded permissible opinion testimony that a child has characteristics consistent with abused children.

State v. Ray, 197 N.C. App. 662 (July 7, 2009) rev’d on other grounds, 364 N.C. 272 (Aug 27 2010)

The trial court did not err in admitting the State’s expert witness’s testimony that the results of his examination of the victim were consistent with a child who had been sexually abused; the expert did not testify that abuse had in fact occurred and did not comment on the victim’s credibility.

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.

State v. Webb, 197 N.C. App. 619 (June 16, 2009)

In child sexual abuse case, it was error to allow the state’s expert, a child psychologist, to testify that he believed that the victim had been exposed to sexual abuse. The expert’s statement pertained to the victim’s credibility; it apparently was unsupported by clinical evidence.

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