State v. Ryan, 223 N.C. App. 325 (Nov. 6, 2012)

Improper testimony by an expert pediatrician in a child sexual abuse case required a new trial. After the alleged abuse, the child was seen by Dr. Gutman, a pediatrician, who reviewed her history and performed a physical exam. Gutman observed a deep notch in the child’s hymen, which was highly suggestive of vaginal penetration. Gutman found the child’s anus to be normal but testified that physical findings of anal abuse are uncommon. Gutman also tested the child for sexually transmitted diseases. The tests were negative, except that the child was diagnosed with bacterial vaginosis. Gutman testified that the presence of bacterial vaginosis can be indicative of a vaginal injury, although it is the most common genital infection in women and can have many causes. The child’s mother had indicated the child had symptoms of vaginosis as early as 2006, which predated the alleged abuse. Gutman testified to her opinion that the child had been sexually abused, that she had no indication the child’s story was fictitious or that the child had been coached, and that defendant was the perpetrator. (1) Gutman was properly allowed to testify that the child had been sexually abused given the physical evidence of the unusual hymenal notch and bacterial vaginosis. The court noted that Gutman did not state which acts of alleged sexual abuse had occurred. It continued, noting that if Gutman had testified that the child had been the victim of both vaginal and anal sexual abuse, that would have been error given the lack of physical evidence of anal penetration. (2) Gutman’s testimony that she was not concerned that the child was “giving a fictitious story” was essentially an opinion that the child was not lying about the sexual abuse and thus was improper. The court rejected the State’s argument that the defendant opened the door to this testimony. (3) Citing State v. Baymon, 336 N.C. 748 (1994), the court held that Gutman’s testimony that the child had not been coached was admissible. (4) It was error to allow Gutman to testify that “there was no evidence that there was a different perpetrator” other than defendant where Gutman based her conclusion on her interview with the child and it did not relate to a diagnosis derived from Gutman’s examination of the child.