State v. Clark, 380 N.C. 204, 2022-NCSC-13 (Feb. 11, 2022)

The defendant was convicted at trial of indecent liberties with a minor in Pitt County. The trial court allowed an expert witness for the State to testify the minor child had been sexually abused, despite a lack of physical evidence. The defendant did not object at the time. The same expert testified about her treatment recommendations for the minor victim, which included that the child have no contact with the defendant, again without objection. The defendant argued that the admission of this evidence was plain error, or alternatively that the record showed ineffective assistance of counsel based on trial counsel’s failure to object to the challenged testimony. A divided Court of Appeals affirmed in an unpublished decision. The majority found that admission of this testimony, though error, did not amount to plain error. The dissent at the Court of Appeals would have found ineffective assistance of counsel based on trial counsel’s failure to object to the expert testimony. A majority of the North Carolina Supreme Court reversed and granted a new trial.  

An expert may not testify that a child has been sexually abused without physical evidence of sexual abuse, and admission of such testimony is plain error where the case turns on the victim’s credibility. See State v. Towe, 366 N.C. 56 (2012). While evidence was presented concerning the victim’s behavioral and social changes following the alleged crime (and such evidence may properly be circumstantial evidence of abuse), this did not amount to physical evidence of sexual abuse. The expert testimony here that the child was sexually abused despite a lack of physical evidence was therefore improper vouching for the victim’s credibility. Given the lack of physical evidence in the case, this was plain error and required a new trial.  

The expert’s testimony that she recommended the victim to stay away from the defendant improperly identified the defendant as the perpetrator and similarly constituted plain error. While an expert in a child sex case may testify that physical symptoms of a victim are consistent with the victim’s report, an expert cannot explicitly or implicitly identify the defendant as the perpetrator. See State v. Aguallo, 322 N.C. 818 (1988). “[S]ince this case turns on the credibility of the victim, even an implicit statement that the defendant is the one who committed the crime is plain error necessitating a new trial.” Clark Slip op. at 18.

Given its ruling on these points, the Court declined to address the defendant’s ineffective assistance argument, which it dismissed without prejudice. The Court of Appeals was therefore reversed in part and the matter remanded for a new trial.

Chief Justice Newby dissented, joined by Justice Barringer. The dissenting Justices would have found no plain error and would have affirmed the Court of Appeals.