State v. Warden, ___ N.C. ___, ___ S.E.2d ___ (Dec. 18, 2020)

The defendant was indicted for three incidents of sexual abuse against his step-daughter and went to trial. The victim testified at trial about the abuse, and eight other witnesses testified regarding the investigation and corroboration of the victim’s testimony. One of the state’s witnesses was a DSS investigator who interviewed the victim and testified without objection that her agency had “substantiated sexual abuse naming [defendant] as the perpetrator,” meaning that the agency believed the allegations of abuse to be true. The defendant was convicted and appealed. A majority in the Court of Appeals held that the testimony was plain error requiring a new trial.

The Supreme Court agreed and affirmed the appellate court’s ruling. Pursuant to State v. Stancil, 355 N.C. 266 (2002), the state conceded on appeal that it was error to admit expert opinion testimony that the abuse had “in fact” occurred without physical evidence to support the diagnosis. The only question before the state Supreme Court was whether this testimony rose to the level of plain error, since there was no objection made at trial. Here, because there was no direct evidence of abuse and the other witnesses’ testimony only served to corroborate the victim’s account, “the jury’s decision to find the complainant more credible than the defendant clearly formed the basis of its ultimate verdict.” Therefore, consistent with its prior ruling on similar facts in State v. Towe, 366 N.C. 56 (2012), the majority held that “the trial court commits a fundamental error when it allows testimony which vouches for the complainant’s credibility in a case where the verdict entirely depends upon the jurors’ comparative assessment of the complainant’s and the defendant’s credibility.”

Writing in dissent, Justice Newby would have held that the other evidence presented by the state distinguished this case from Towe, and the defendant did not meet his burden under the plain error standard of demonstrating that the outcome of trial likely would have been different without the improper testimony.