State v. Betts, ___ N.C. ___, 2021-NCSC-68 (Jun. 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.