Smith's Criminal Case Compendium

Smith's Criminal Case Compendium


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., 06/29/2024
E.g., 06/29/2024

In this Wake County case, the Supreme Court affirmed per curiam the unpublished Court of Appeals opinion State v. Johnson, COA19-529-2, 275 N.C. App. 980 (table), 2020 WL 7974001 (Dec. 31, 2020). Previously, the Court of Appeals issued an unpublished opinion on April 21, 2020, which the Supreme Court remanded for consideration of defendant’s equal protection claims. The current opinion affirms the Court of Appeals’ decision after remand that found no error in the denial of defendant’s motion to suppress. 

The matter arose from an arrest in November of 2017. A police officer noticed defendant, a black man, parked at an apartment complex and approached his vehicle. As the officer approached, defendant left his vehicle, and the officer smelled marijuana. Defendant attempted to flee, and the officer detained him, eventually finding cocaine and marijuana on his person. At trial, defendant moved to suppress the results of the search, arguing the discriminatory intent and violation of his equal protection rights. During the hearing on the motion to suppress for equal protection violations, defendant introduced statistical evidence of the arresting officer’s law enforcement actions to show that the arrest was discriminatory and represented selective enforcement of the law. Defense counsel told the trial court that the burden of proof for the motion to suppress was on the defense, and the trial court agreed, assigning the initial burden to defendant. After the hearing, the trial court denied defendant’s motion.

Taking up the case after the Supreme Court’s remand, the Court of Appeals established that the initial burden was properly placed on defendant after looking to applicable equal protection caselaw under the U.S. and N.C. Constitutions. The Court of Appeals then dispensed with defendant’s statistical analysis evidence as it lacked adequate benchmarks for the data, explaining that “without reliable data indicating the population and demographics in southeast Raleigh and further details on [the officer’s] patrol history, these statistics do not establish a prima facie case that [the officer’s] actions had a discriminatory effect or evinced a discriminatory purpose.” State v. Johnson, COA19-529-2 at 21, 2020 WL 7974001 at *8. 

Justice Earls, joined by Justice Morgan, dissented by separate opinion, and would have held that the data collected under G.S. 143B-903, referenced by defendant’s witnesses when discussing the history of the arresting officer’s actions, could support a claim of discriminatory intent without additional benchmarking statistics. The dissent also would have held that defendant’s evidence represented a prima facie showing of discrimination. 

Justices Berger and Dietz did not participate in consideration or decision of the case. 

In this Durham County case, the Supreme Court modified and affirmed the Court of Appeals decision finding no plain error when admitting testimony regarding the strength of the state’s principal witness.

In 2016, defendant was indicted for murder and related charges for the death of his neighbor. At trial, the victim’s wife was the principal witness testifying regarding defendant’s assault and stabbing of her husband. A sheriff’s deputy testified regarding this witness’s consistence when recounting the events and noted that he pressed her many times and she did not change her story, remaining “resolute and rock solid.” Defendant did not object to the testimony at trial but raised the issue on appeal.

Reviewing defendant’s appeal, the Supreme Court agreed with the Court of Appeals that admission of the deputy’s testimony did not rise to the level of plain error. The court first explained that admission of the testimony in question was improper, as having a witness vouch for the credibility of another witness is not typically allowed. Although the state argued that this testimony represented evidence of prior consistent statements, the court disagreed, noting that the admitted testimony was not simply repeating statements the deputy heard from the witness, showing consistency. Instead, the deputy’s testimony offered a full description of questioning the witness and why her consistency represented a credible account of the events. The court also explained that Rule of Evidence 608(a) did not allow the deputy’s testimony, as the witness’s credibility was not attacked by opinion or reputation. Slip Op. at 25.

Despite establishing that the deputy’s testimony was improperly admitted, the court could not find plain error. Other sources supported the consistency and credibility of the witness’s testimony, and physical evidence in the record also supported defendant’s conviction. As a result, although the court modified the decision of the Court of Appeals, the defendant’s conviction was affirmed.

Justice Barringer, joined by Chief Justice Newby and Justice Berger, dissented in part and concurred in the result, disagreeing that the admission of the deputy’s testimony was improper but agreeing that the conviction should be affirmed. Id. at 32.

State v. Betts, 377 N.C. 519 (June 11, 2021)

Defendant was convicted of three counts of indecent liberties with a child for sexually abusing M.C., the seven-year-old daughter of his then-romantic-partner. The abuse was discovered after M.C.’s sister was born with illegal drugs in her system, prompting the involvement of the Forsyth County Department of Social Services (DSS). When a DSS worker interviewed M.C., M.C. reported that the defendant had touched her inappropriately. Other interviews followed in which M.C. described incidents of domestic violence between the defendant and her mother. A clinical social worker for DSS ultimately diagnosed M.C. with post-traumatic stress disorder (PTSD).

The defendant appealed to the Court of Appeals, which in a divided opinion held that the defendant’s trial was free from prejudicial error. On appeal, the Supreme Court considered whether (1) the clinical social worker impermissibly vouched for the victim’s credibility, (2) the use of the word “disclose” by witnesses for the State constituted impermissible vouching, and (3) the trial court plainly erred by allowing evidence of his past domestic violence incidents with the victim’s mother.

(1) The defendant argued that the clinical social worker’s affirmative answers to the following questions from the State impermissibly vouched for the victim’s credibility: (A) “when you make a diagnosis of post-traumatic stress disorder, are there several types of traumatic events that could lead to that diagnosis?,” (B) “would violence in the home be one of those?,” (C) “what about domestic violence or witnessing domestic violence?,” (D) “what about sexual abuse?,” (E) “[w]ould it be fair to say that [M.C.] had experienced a number of traumas?,” and (6) “And that was the basis of your therapy?”

Because the defendant did not object to this testimony at trial, the Court reviewed for plain error.

The Court determined that the witness’s testimony was admissible as she addressed what types of trauma could lead to a PTSD diagnosis rather than indicating which if any of these traumas M.C. experienced. She did not vouch for M.C.’s credibility by testifying that M.C. was in fact sexually abused. Instead, she stated the considerations that led to her expert diagnosis. Moreover, the Court concluded that even if the testimony was admitted in error, it was not prejudicial. The trial court instructed the jury that the testimony could only be used to corroborate M.C.’s testimony or to explain M.C.’s delay in reporting defendant’s crimes.

(2) The defendant argued that witness’s use of the word “disclose” impermissibly vouched for the victim’s credibility. Reviewing for plain error, the Court rejected the defendant’s argument. First, the Court stated that “[a]n expert witness’s use of the word ‘disclose,’ standing alone, does not constitute impermissible vouching as to the credibility of a victim of child sex abuse, regardless of how frequently used, and indicates nothing more than that a particular statement was made.’” Slip op. at  20. Second, the court concluded that even if it was error to admit the testimony, the defendant did not show that the use of the word “disclose” had a probable impact on the jury’s finding that he was guilty given the substantial evidence of abuse.

(3) The defendant argued that the trial court plainly erred by introducing evidence of domestic violence which he said had little to do with the charged offenses. The Supreme Court disagreed, reasoning that the domestic violence evidence explained why M.C. was fearful of and delayed in reporting defendant’s sexual abuse and was probative of M.C.’s PTSD diagnosis. The Court further explained that the domestic violence evidence was not more prejudicial than probative because it went directly to the issue of the victim’s credibility. Because the Court concluded that the trial court did not err by admitting the evidence it held there could not be plain error.

State v. Warden, 376 N.C. 503 (Dec. 18, 2020)

The defendant was indicted for three incidents of sexual abuse against his step-daughter and went to trial. The victim testified at trial about the abuse, and eight other witnesses testified regarding the investigation and corroboration of the victim’s testimony. One of the state’s witnesses was a DSS investigator who interviewed the victim and testified without objection that her agency had “substantiated sexual abuse naming [defendant] as the perpetrator,” meaning that the agency believed the allegations of abuse to be true. The defendant was convicted and appealed. A majority in the Court of Appeals held that the testimony was plain error requiring a new trial.

The Supreme Court agreed and affirmed the appellate court’s ruling. Pursuant to State v. Stancil, 355 N.C. 266 (2002), the state conceded on appeal that it was error to admit expert opinion testimony that the abuse had “in fact” occurred without physical evidence to support the diagnosis. The only question before the state Supreme Court was whether this testimony rose to the level of plain error, since there was no objection made at trial. Here, because there was no direct evidence of abuse and the other witnesses’ testimony only served to corroborate the victim’s account, “the jury’s decision to find the complainant more credible than the defendant clearly formed the basis of its ultimate verdict.” Therefore, consistent with its prior ruling on similar facts in State v. Towe, 366 N.C. 56 (2012), the majority held that “the trial court commits a fundamental error when it allows testimony which vouches for the complainant’s credibility in a case where the verdict entirely depends upon the jurors’ comparative assessment of the complainant’s and the defendant’s credibility.”

Writing in dissent, Justice Newby would have held that the other evidence presented by the state distinguished this case from Towe, and the defendant did not meet his burden under the plain error standard of demonstrating that the outcome of trial likely would have been different without the improper testimony.

In this Moore County case, the defendant was convicted of first-degree rape and sex offense, crime against nature, possession of firearm by felon, communicating threats and various assaults stemming from attacks on his estranged then-wife. On appeal, the defendant argued that the trial court plainly erred by permitting multiple witnesses for the State to refer to the woman as the “victim,” that his trial counsel was ineffective for failing to object to those references, and that the trial court plainly erred by using “victim” to describe the woman in its jury instructions.

(1) A total of eight witnesses for the State used the term “victim” in reference to the woman, five of whom were law enforcement officers and four of whom were expert witnesses. The defendant contended this amounted to improper vouching for the accuser’s credibility and argued the trial court should have intervened ex mero motu. The court found that the defendant could not show prejudice and therefore could not establish plain error. “…[T]he strength of the State’s evidence against defendant . . . outweighed any potential subliminal effect of the witnesses’ occasional references to [the woman] as the victim.” Slip. op. at 13.

(2) For the same reasons, the defendant’s ineffective assistance of counsel claim failed. The defendant could not demonstrate a reasonable possibility of a different result at trial had his counsel objected to the uses of the word “victim” and therefore could not establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984). 

(3) According to the defendant, the trial court’s use of the word “victim” in its jury instruction violated the statutory mandate against expression of judicial opinion. Rejecting this argument, the court observed:

Our Supreme Court has consistently rejected a defendant’s attempt to couch the trial court’s use of the term “victim” in its jury instructions as an improper expression of judicial opinion in violation of N.C.G.S. §§ 15A-1222 and 1232. . . Likewise, our Supreme Court has rejected arguments that the trial court’s use of the term “victim” in its charge to the jury amounts to plain error . . . Id. at 17.

Any constitutional challenge to the jury instructions on this point was not raised in the trial court and therefore waived on appeal. The convictions were thus unanimously affirmed.

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.

State v. Crabtree, 370 N.C. 156 (Sept. 29, 2017)

The court per curiam affirmed the decision below, State v. Crabtree, ___ N.C. App. ___, 790 S.E.2d 709 (Sept. 6, 2016). In this child sexual assault case, the Court of Appeals held that neither a child interviewer from the Child Abuse Medical Evaluation Clinic nor a DSS social worker improperly vouched for the victim’s credibility; however, the court of appeals held, over a dissent, that although a pediatrician from the clinic improperly vouched for the victim’s credibility, no prejudice occurred. In the challenged portion of the social worker’s testimony, the social worker, while explaining the process of investigating a report of child sexual abuse, noted that the pediatrician and her team “give their conclusions or decision about those children that have been evaluated if they were abused or neglected in any way.” This statement merely described what the pediatrician’s team was expected to do before sending a case to DSS; the social worker did not comment on the victim’s case, let alone her credibility. In the challenged portion of the interviewer’s testimony, he characterized the victim’s description of performing fellatio on the defendant as “more of an experiential statement, in other words something may have actually happened to her as opposed to something [seen] on a screen or something having been heard about.” This testimony left the credibility determination to the jury and did not improperly vouch for credibility. However, statements made by the pediatrician constituted improper vouching. Although the pediatrician properly described the five-tier rating system that the clinic used to evaluate potential child abuse victims, she ventured into improper testimony when she testified that “[w]e have sort of five categories all the way from, you know, we’re really sure [sexual abuse] didn’t happen to yes, we’re really sure that [sexual abuse] happened” and referred to the latter category as “clear disclosure” or “clear indication” of abuse in conjunction with her identification of that category as the one assigned to the victim’s interview. Also, her testimony that her team’s final conclusion that the victim “had given a very clear disclosure of what had happened to her and who had done this to her” was an inadmissible comment on the victim’s credibility. However, the defendant was not prejudiced by these remarks.

State v. Taylor, 368 N.C. 300 (Sept. 25, 2015)

The court reversed the opinion below, State v. Taylor, 238 N.C. App. 159 (Dec. 16, 2014), for the reasons stated in the dissenting opinion. Over a dissent, the court of appeals had held that the trial court committed plain error by permitting a Detective to testify that she moved forward with her investigation of obtaining property by false pretenses and breaking or entering offenses because she believed that the victim, Ms. Medina, “seemed to be telling me the truth.” The court of appeals held that the challenged testimony constituted an impermissible vouching for Ms. Medina’s credibility in a case in which the only contested issue was the relative credibility of Ms. Medina and the defendant. The dissenting judge did not believe that admission of the testimony in question met the threshold needed for plain error.

In this Vance County case, defendant appealed his convictions for attempted first-degree sexual offense with a child, statutory rape of a child, and indecent liberties with a child, arguing error in the denial of his motion to dismiss and the admission of testimony from several witnesses, ineffective assistance of counsel, and prejudicial statements by the prosecutor during closing argument. The Court of Appeals found no error.

Defendant’s convictions relate to inappropriate sexual conduct with his minor cousin from 2007 to 2012; the victim did not report the sexual conduct until 2018. At trial, defendant’s minor cousin testified regarding the extensive history of molestation and rape that defendant subjected her to over the course of several years. The jury convicted defendant in 2021.

Reviewing defendant’s motion to dismiss the attempted statutory sexual offense charge due to insufficient evidence, the court found ample evidence to support the attempt at sexual offense. During the events at issue in the motion, defendant was prevented from penetrating the genital opening of the victim because of the presence of her parents in the home, but the court noted that defendant had raped the victim on several other occasions, supporting the inference that he intended to do so during this time as well.

Moving next to defendant’s challenge to the admission of improper testimony, the court first looked at testimony regarding defendant’s history of sexual contact with the victim’s older sister. The court explained that Rule of Evidence 404(b) required careful scrutiny of the prior acts, but applicable precedent supported admission of similar sexual conduct with a victim’s sibling to show “defendant’s intent, motive and on-going plan to gratify his sexual desires.” Slip Op. at 14, quoting State v. Sturgis, 74 N.C. App. 188, 193 (1985). Defendant also argued ineffective assistance of counsel due to failure to object to this testimony, an argument the court rejected, noting even if counsel objected “the testimony would have likely been admitted under Rules 404(b) and 403.” Id. at 21. The court then examined the testimony of the victim’s parents vouching for her truthfulness, looking to State v. Gobal, 186 N.C. App. 308 (2007), for the applicable test regarding opinion testimony from lay witnesses vouching for the veracity of other witnesses. Slip Op. at 16. The court held defendant failed to demonstrate plain error, which was necessary because he did not object at trial.

Finally, the court turned to the prosecution’s closing argument, noting that the statements challenged by defendant, when read in context, did not comment on defendant’s failure to testify; instead, “the prosecutor was . . . highlighting the fact that [d]efendant never denied [the victim’s] allegations when confronted by her parents.” Id. at 23. The trial court also administered the appropriate jury instruction on defendant’s failure to testify, supporting the court’s finding of no error.

Judge Murphy concurred for sections I-VI of the opinion, but concurred in result only regarding the prosecutor’s statements during closing argument.

(1) In this Montgomery County case, the defendant was convicted of indecent liberties with a child and attaining the status of habitual felon.  (1) The defendant argued on appeal that the indecent liberties indictment was fatally defective because it identified the alleged victim only by her initials. The Court of Appeals disagreed.  First, the Court noted that State v. McKoy, 196 N.C. App. 650 (2009), held that identifying the victim by initials was sufficient for an indictment charging second-degree rape and second-degree sexual offense. The Court rejected the defendant’s argument that McKoy was overruled by State v. White, 372 N.C. 248 (2019), a case in which the North Carolina Supreme Court held that a sex offense indictment identifying the victim only as “Victim #1” was insufficient. Next, the Court considered whether the indictment would inform a person of reasonable understanding that the defendant was charged with indecent liberties with a child and whether the use of the victim’s initials protected the defendant’s constitutional rights to notice and freedom from double jeopardy. The Court found the indictment satisfied both requirements. A person with common understanding would know the intent of the indictment, and the record demonstrated that the defendant had notice of the victim’s identity.  The arrest warrants listed the victim’s full name. The defendant was interviewed by officers regarding his contact with the victim, and he admitted that he knew her. The defendant did not argue that he had difficulty preparing his case because the initials were used rather than the victim’s full name. In addition, the victim testified at trial and identified herself by her full name in open court. The Court concluded there was no possibility that the defendant was confused regarding the victim’s identity; therefore the use of initials in the indictment provided the defendant with sufficient notice to prepare his defense and protect himself against double jeopardy. 

(2) The defendant argued that the trial court plainly erred by admitting testimony and evidence that vouched for the victim’s credibility. The defendant objected on appeal (but not at trial) to the introduction of statements from Randolph County Department of Social Services employee Morgan Halkyer and Andrew, the victim’s uncle. Halkyer’s recorded interview with the victim was played for the jury.  In that interview, Halkyer told the victim:  “No kid should ever be put in that situation by an adult, you know, they’re an adult, they should know better.” The Court held that Halkyer did not impermissibly vouch for the victim’s credibility since her statements were not tantamount to an opinion that the victim was telling the truth. Instead, the statements provided the jury with the context of Halkyer’s interview.  In that interview, Halkyer was not attempting to opine about whether the victim was truthful but was comforting the victim with general statements about adult behavior. 

The defendant also argued that the trial court plainly erred in admitting text messages Andrew sent to the victim, in which stated that the defendant committed a crime. Among the texts was a statement that “they need to understand that a 40 year old man took you too [sic] his house and attempted inappropriate actions. It's [sic] may not be sexual assault but it is illegal.” Considering that the jury was instructed that its role was to judge the believability of the witnesses, the victim’s extensive testimony at trial, and the defendant’s statement that “maybe things did go a little too far,” the Court found that the defendant failed to demonstrate that Andrew’s text messages had a probable impact on the jury’s verdict. Thus, the Court held that any error in the admission of this evidence was not plain error.

The defendant appealed from his convictions for first degree rape, first degree sexual offense, and taking indecent liberties with a child. The defendant also challenged a civil order requiring lifetime SBM. Defendant was charged with first degree rape of a child, first degree sex offense with a child, and taking indecent liberties with a child that allegedly occurred in 2007 or 2008. The victim told no one about what had happened to her until June 2017, when she was asked if she had ever been raped during the intake process for juvenile justice. The defendant was found guilty of all charges and sentenced to 240-297 months. Following release, the defendant would be required to register as a sex offender for life and to enroll in SBM for life.

(1) The defendant first argued that the trial court committed plain error by allowing that state’s expert witness, who conducted a forensic interview of the victim, to describe the victim’s claim that she was raped as a “disclosure,” and if this vouching for truthfulness had not occurred, then the victim would have been a less credible witness. The court of appeals first noted that the defendant did not object to the use of the word “disclosure” at trial and therefore his argument is reviewed for plain error.

The court explained that North Carolina case law makes it clear that experts cannot vouch for a child sexual abuse victim’s credibility when there is no evidence of physical abuse. The defendant argued the dictionary definition of disclose is “to make known (as information previously kept secret).” Slip op. at 4. The court acknowledged that the word may have that connotation at times, but its use must be considered in the specific context of the evidence in this case. After examining the testimony of the expert, the court determined that the use of the word “disclose” during the testimony “simply does not have the connotation of exposing a previously hidden truth as argued by [d]efendant.” Slip op. at 5. The court came to this conclusion because in this context the “use of the word ‘disclosure’ was simply as part of the description of the interview method and was not “vouching” for the truth of what an alleged victim reveals. Slip op. at 7.

(2) The court of appeals next noted that the defendant had waived his right to argue constitutional issues on appeal because no objection on constitutional grounds was made by defendant’s trial counsel and no notice of appeal was given from the SBM order. However, the court of appeals determined that because a substantial right of the defendant was affected, it was appropriate for the court to invoke Rule 2 to prevent a manifest injustice and thus review the constitutionality of the SBM order. Id. at 15.

The defendant argued that the trial court erred in ordering lifetime SBM because the state presented no evidence that lifetime SBM was a reasonable Fourth Amendment search of the defendant. The court reviewed the issue de novo and under the Grady III framework. The framework involves “reviewing Defendant’s privacy interests and the nature of SBM’s intrusion into them before balancing those factors against the State’s interests in monitoring Defendant and the effectiveness of SBM in addressing those concerns.” Id. at 16. The court of appeals found that the state presented no evidence showing how the lifetime SBM would reduce recidivism and therefore, the state “failed to meet its burden of establishing that lifetime satellite-based monitoring following [d]efendant’s eventual release from prison is a reasonable search in [d]efendant’s case.” Slip op. at 19.

The defendant was convicted of indecent liberties with a child and felony child abuse by sexual act based on crimes committed against his daughter and stepdaughter. 

(1) The court of appeals determined that the trial court did not plainly err in instructing the jury on felonious child abuse by sexual act. G.S. 14-318.4(a2) provides that any parent or legal guardian of a child under 16 who “commits or allows the commission of any sexual act upon the child is guilty of a Class D felony.” The trial court instructed the jury in accordance with NC Pattern Jury Instruction – Criminal 239-55B that a “sexual act is an immoral, improper or indecent touching or act by the defendant upon the child.” On appeal, the defendant argued that the definition of “sexual act” in G.S. 14-27.20(4) should apply. The term is therein defined as “[c]unninglingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse.” It also includes “the penetration, however slight, by any object into the genital or anal opening of another person’s body.” 

The court of appeals in Wohlers found the defendant’s argument foreclosed by State v. Alonzo, 373 N.C. 437 (2020). In Alonzo, the state supreme court concluded that the definitions in G.S. 14-27.20 applied only within Article 7B of Chapter 14. Thus, the Alonzo court held that it was error for the court of appeals below to have concluded that the definition of sexual act in G.S. 14-27.20(4) applied to offenses under G.S. 14-318.4(a2), which is contained in Article 39 of Chapter 14. 

(2) The court of appeals determined that even if the trial court erred in failing to strike testimony from a forensic interviewer that arguably vouched for the victim’s credibility, the defendant could not show he was prejudiced by the error. The interviewer testified that the defendant’s stepdaughter’s disclosure was “tentative,” and that “she’s a child who falls into the I want to tell someone so this will stop, but I don’t really want it to go past that, and I just want it to be done.” The defendant did not move to strike the testimony at trial, but argued on appeal that it was impermissible vouching of the victim’s credibility. 

The court held that the defendant could not show that the alleged error had a probable impact on the jury’s finding that he was guilty, noting that the defendant himself had provided a written statement that was consistent with the victim’s testimony and which was introduced as evidence at trial.

(3) The court of appeals held that the trial court properly determined the defendant’s maximum term of imprisonment for felony child abuse by sexual act, a Class D felony, based upon the minimum term it had selected (64 months) rather than the minimum term permitted by statute (51 months). G.S. 15A-1340.17(f) provides that, for offenders sentenced for reportable convictions that are Class B1 through E felonies, the maximum term of imprisonment “shall be equal to the minimum term of imprisonment and twenty percent (20%) of the minimum term of imprisonment, rounded to the next highest month, plus 60 additional months.” Once the trial court set the defendant’s minimum term of imprisonment at 64 months (the top of the presumptive range), it properly added 64 plus 13 (20 percent of 64, 12.8, rounded to the next highest month) plus 60, totaling 137 months.

The defendant was convicted by a jury of seven sex crimes against a five-year-old victim, including statutory rape of a child by an adult, statutory sexual offense with a child by an adult, and indecent liberties with a child. At trial, the State presented a nurse practitioner who testified about the medical evaluation given to the victim. The nurse practitioner testified without objection that the victim gave “clear and concise statement[s] regarding child sexual abuse,” and that her own testimony was “based off a complete medical evaluation, not only [the victim’s] statements.” (1) On appeal, the defendant argued that the trial court committed plain error by impermissibly allowing the nurse practitioner to testify to the truth of the victim’s statements to the extent that she offered a conclusive diagnosis without physical evidence. The court rejected the argument, noting first that the witness never actually offered a conclusive diagnosis. To the contrary, she gave testimony relevant to helping the jury understand that a lack of physical evidence in a medical exam did not preclude sexual abuse. Moreover, any error related to the nurse practitioner’s detailed testimony about sexual abuse, including penetration, was deliberately elicited by the defendant on cross-examination. Regardless, the defendant did not demonstrate that the jury would have reached a different result in light of all the other unchallenged evidence. (2) The defendant also argued that the trial judge erred by excluding the testimony from two defense witnesses who allegedly asked the victim’s mother to stop talking about sex in front of children. The court of appeals disagreed, concluding that the proffered testimony—that the victim may have learned explicit language about sexual abuse from her mother and not from her personal experience with abuse—was too speculative and not within the witnesses’ personal knowledge. (3) Finally, the trial court did not err by failing to give a limiting instruction indicating that the nurse practitioner’s statistical testimony could be considered only for corroborative purposes. Reviewing the argument for plain error, the court concluded that the nurse practitioner’s testimony was proper, and that any error would not be prejudicial in any event in light of the collective evidence of guilt.

(1) In this indecent liberties with a child case, the court rejected the defendant’s argument that the trial court committed plain error by allowing the victim’s mother to vouch for the victim’s credibility. An individual informed the victim’s mother that the victim said that the defendant had touched her inappropriately. The victim was still asleep at the time this exchange took place. The victim’s mother testified as follows:

I knew that my daughter would tell me the truth because that’s what I had instilled in her. So I was debating on whether to wake her up. I didn’t want to traumatize her. I didn’t want to scare her. I knew that when she would come to me at that moment when I asked her that she would tell me the truth.

In sum, the court noted, the victim’s mother testified that she believed that her daughter was truthful in her accusations. Assuming arguendo admission of this testimony was improper, the defendant failed to show that the jury probably would have reached a different result absent the error.

(2) The court rejected the defendant’s argument that a detective’s testimony improperly vouched for the victim’s credibility. Here, the detective testified about his observation of the victim’s demeanor during his interview with her. The detective testified as follows:

Her responses seemed to be thoughtful. She paused several times while telling the story, just trying to recollect, and with each account she looked at the ground or looked downward several times, seemed to be genuinely affected by what had occurred.

The court rejected the notion that this testimony was the functional equivalent of vouching for the victim’s credibility, finding instead that it “contains precisely the type of ‘instantaneous conclusions’ that our Supreme Court considers to be admissible ‘shorthand statements of fact.’”

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 abuse case, the expert witness’s testimony did not constitute improper vouching for the victim. At trial Holly Warner, a nurse practitioner, testified as an expert. Warner had evaluated the victim after he was placed in foster care. At trial she related what the victim told her about his injuries and what she observed during her evaluation of him before she gave her medical opinion. When she related the victim’s disclosure about how his injury occurred and who caused them, Warner was describing her process for gathering necessary information to make a medical diagnosis and was not commenting on the victim’s credibility. In neither her direct examination nor cross-examination did Warner state that the child was believable, credible or telling the truth.

In this case involving armed robbery and other charges, the trial court erred by allowing an officer to testify that when the victim provided a statement he “seemed truthful.” The error however did not rise to the level of plain error. At trial, the prosecutor asked the officer to describe the victim’s demeanor. The officer responded that he was agitated and seemed to be in pain but that “he was—to me, he seemed truthful.” This constituted improper vouching for the witness.

The trial court did not err by denying the defendant’s motion to redact an officer’s statements in a transcript of an interview of the defendant in which the officer accused the defendant of telling a “lie” and giving an account of the events that was “bullshit” and like “the shit you see in the movies.” The defendant argued that these statements were inadmissible opinion evidence about the defendant’s credibility. The court noted that issue of the admissibility of an interrogator's statements during an interview that the suspect is being untruthful has not been decided by North Carolina's appellate courts. It concluded that because the officer’s statements were part of an interrogation technique designed to show the defendant that the detectives were aware of the holes and discrepancies in his story and were not made for the purpose of expressing an opinion as to the defendant's credibility or veracity at trial, the trial court properly admitted the evidence. The court went on to note that investigators’ comments reflecting on the suspect’s truthfulness are not, however, always admissible. It explained that an interrogator's comments that he or she believes the suspect is lying are admissible only to the extent that they provide context to a relevant answer by the suspect. Here, the officer’s statements that he believed the defendant to be lying were admissible because they provided context for the defendant’s inculpatory responses. For similar reasons the court rejected the defendant’s argument that admission of these statements violated Rule 403.

In a child sex case, the trial court erred by admitting a DSS social worker’s testimony that she “substantiated” the victim’s claim of sexual abuse by the defendant. This testimony was an impermissible expression of opinion as to the victim’s credibility.

State v. Dye, 207 N.C. App. 473 (Oct. 19, 2010)

In a child sexual assault case, the court held that even assuming that the State’s medical expert’s testimony regarding “secondary gain” improperly vouched for the victim’s credibility, the error did not rise to the level of plain error.

In a sexual exploitation of a minor and indecent liberties case, the court rejected the defendant’s argument that a testifying detective’s statement that the defendant’s explanation of the events was not consistent with photographic evidence constituted an improper opinion as to credibility of a witness. The court concluded that no improper vouching occurred.

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