State v. Hawkins, 2022-NCCOA-744, ___ N.C. App. ___ (Nov. 15, 2022)

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.