State v. Owens, 2023-NCCOA-8, ___ N.C. App. ___ (Jan. 17, 2023)

In this Rutherford County case, defendant appealed his conviction for indecent liberties with a child, arguing the trial court erred by not intervening during the state’s opening statement, and allowing a witness to bolster the victim’s testimony. The Court of Appeals found no error.

In 2011, defendant was dating a woman with a young daughter. One day the woman left her daughter with defendant as a babysitter; defendant took the daughter into his bedroom and engaged in sexual contact with her. The victim eventually reported the incident in 2018, when she reached seventh grade. Defendant was subsequently indicted and convicted of indecent liberties with a child in October of 2021.

On appeal defendant first argued that the trial court should have intervened ex mero motu during the state’s opening statement, as the state referred to upcoming testimony by defendant’s roommate but the testimony was never offered at trial. The Court of Appeals disagreed, applying the two-step analysis from State v. Huey, 370 N.C. 174 (2017), and determining that the prosecutor’s statements were not grossly improper and did not justify a new trial. Slip Op. at 6. The court next considered defendant’s argument that a witness bolstered the victim’s testimony, explaining that the testimony in question was not supporting the truthfulness of the victim’s statements, but was instead noting that the victim’s statements were consistent. Making the distinction between testimony that clearly supported the veracity of a victim’s testimony verses the testimony offered in the current case, the court found no plain error in admitting the testimony. Id. at 11.