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 ___, ___ S.E.2d ___ (Sept. 3, 2019), and declining to follow unpublished State v. Jamison, ___ N.C. App. ___, 821 S.E.2d 665 (2018) (unpublished), the court agreed that nothing about the term “disclose” conveys believability or credibility.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.