State v. Phillips, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)

The defendant was convicted of statutory rape of C.C., a 13-year-old child. This was the second trial of the defendant; at the first trial involving the events of that evening, the jury acquitted him on some charges and there was a mistrial on the statutory rape charge. At the second trial, the State called a forensic biologist, Dr. Wilson, from the North Carolina State Crime Lab and qualified her as an expert in DNA analysis. She testified that she tested DNA samples from swabs taken from C.C. and compared them to the DNA profiles from C.C., the defendant, and another person, Eckard, who was present that evening. Dr. Wilson testified she had found a mixture of contributors: two major contributors and one minor contributor. She presumed that one of the major contributors was C.C. and determined that the defendant’s DNA profile was consistent with the other major contributor. She testified that the minor contributor’s profile was “inconclusive due to complexity and/or insufficient quality of recovered DNA.” The prosecutor asked whether Dr. Wilson was able to see anything about the minor contributor’s profile. Dr. Wilson testified that when a profile is inconclusive as in this case, it is not permissible as a matter of State Crime Lab policy to do any comparison because such a comparison is not scientifically accurate. At a hearing outside the presence of the jury, the prosecutor said his purpose in asking the question was to counter the defendant’s potential argument that Eckard, with whom the defendant had sex that evening, may have been the source of the DNA and may have transferred the defendant’s DNA to C.C. The trial judge ruled that the prosecutor could direct Dr. Wilson to look at the alleles shown in the records and testify about them. Before the jury, she then testified that three of the alleles in the minor contributor’s profile were the same as Eckard’s profile but the other three alleles were different. The Court of Appeals found that this testimony violated Rule 702 of the North Carolina Rules of Evidence. The Court found, first, that the testimony was expert opinion and, contrary to the State’s argument, was not merely a statement of what Dr. Wilson could “see.” The Court found, second, that the expert testimony violated Rule 702. The testimony was not based on sufficient facts or data because the recovered DNA for the minor contributor was inconclusive, and it was not the product of reliable principles and methods because Dr. Wilson said that the comparison was scientifically inaccurate. The Court of Appeals found the admission of this testimony was prejudicial and ordered a new trial. A dissenting judge agreed that the testimony was improper because it was irrelevant under Evidence Rule 402 and unduly prejudicial under Evidence Rule 403. However, the dissent would have reviewed the case under the plain error standard for prejudice, which the dissent did not find, because the defendant based his objection on Evidence Rule 702 only and, although he objected initially before the jury and during the voir dire hearing before the trial judge, failed to renew his objection when Dr. Wilson resumed her testimony.