State v. Dye, ___ N.C. App. ____, 802 S.E.2d 737 (Jun. 20, 2017)

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.