Appeal by defendant from judgment entered 25 May 2000 by Judge
Kimberly S. Taylor and amended 28 June 2000, in Superior Court,
Cabarrus County. Heard in the Court of Appeals 17 October 2001.
Attorney General Roy Cooper, by Assistant Attorney General
Laura E. Crumpler, for the State.
Bender and Barnett, by Harold J. Bender, for defendant-
appellant.
McGEE, Judge.
Warren David Isenberg, Sr. (defendant) was indicted for first
degree statutory sex offense on 21 February 2000, and five counts
of taking indecent liberties with a minor on 15 May 2000. A jury
found defendant guilty of all charges on 25 May 2000. The cases
were consolidated for sentencing purposes, and defendant was
sentenced to 192 to 240 months in prison. Defendant appeals.
The evidence presented at trial by the State tended to show
the minor victim's family and defendant's family were acquainted
through the friendship of the minor victim's brother anddefendant's son. The families did various activities together such
as cookouts, Cub Scouting events, attending movies together, and
babysitting each others' children. Defendant and his family
invited the minor victim and her brother to spend the night at
their home on 1 May 1999 and 22 May 1999.
Following several incidents at school in which the minor
victim exhibited uncharacteristic episodes of violent behavior, the
minor victim's mother took the minor victim to see Randy Howell
(Howell), a licensed professional counselor, for several counseling
sessions beginning on 19 May 1999. Howell testified he employed a
technique called "draw therapy" during his counseling sessions, in
which the minor victim would draw pictures and then the two would
discuss the pictures. Over the course of several sessions, the
minor victim drew pictures of herself in the shower, a "sad" bed
and a "happy" bed, penises, and a picture of herself with no mouth,
which Howell testified was characteristic of children who have been
sexually or physically abused.
The minor victim's mother testified that during the seventh
session on 30 June 1999, the minor victim drew a picture of
defendant sitting on a toilet. The minor victim explained to
Howell that defendant was showing her his penis with "white pee-
pee" coming out, and she made a motion which indicated defendant
was masturbating. At this point, the minor victim's mother and
Howell began to suspect sexual abuse, and they discussed reporting
this information to the police. The minor victim's mother decided
to wait because she felt her daughter was safe from repeated
offenses, and she wanted to be certain before she brought suchallegations against a friend. The minor victim's mother and Howell
agreed to have a few more sessions.
At the 11 August 1999 session, the minor victim stated
defendant had touched her vagina and bottom. After this session,
the minor victim's parents contacted Detective Doug Wilhelm of the
Concord Police Department. Detective Wilhelm arranged a visit to
the Children's Advocacy Center, located on the pediatric floor of
Northeast Medical Center. The minor victim was interviewed by
Julie Brafford (Brafford), a pediatric nurse, and then physically
examined by Dr. Amy Morgan. The interview with Brafford was
videotaped, and the jury watched this video. During the interview,
the minor victim stated she was touched on her vagina and her
bottom by defendant.
Dr. Morgan testified she performed a physical examination of
the minor victim on 30 August 1999. The minor victim told Dr.
Morgan that defendant touched her vagina and inside her vagina.
Dr. Morgan also testified that during the examination she noted a
notch on the minor victim's hymen, which she described as
consistent with sexual abuse.
Defendant testified at trial and denied he ever engaged in any
inappropriate touching of or any sexual conduct with the minor
victim. Defendant's wife also testified that she was with the
minor victim during the weekends the minor victim spent the night
at her and defendant's home, and she testified her husband did not
do anything inappropriate with the minor victim. Defendant also
presented character witnesses who testified that his character and
reputation in the community was very good.
I.
[1]Defendant first argues the trial court erred in finding
that Howell, a licensed professional counselor, was an expert in
the area of counseling behavior of sexually abused children. We
disagree.
In general, whether "a witness has the requisite skill to
qualify as an expert in a given area is chiefly a question of fact,
the determination of which is ordinarily within the exclusive
province of the trial court."
State v. Goodwin, 320 N.C. 147, 150,
357 S.E.2d 639, 641 (1987). A "finding by the trial judge that the
witness possesses the requisite skill will not be reversed on
appeal unless there is no evidence to support it."
State v. Parks,
96 N.C. App. 589, 592, 386 S.E.2d 748, 750 (1989) (quoting
State v.
Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984)). "Under
N.C.G.S. § 8C-1, Rule 702 a witness may be qualified as an expert
if the trial court finds that through 'knowledge, skill,
experience, training, or education' the witness has acquired such
skill that he or she is better qualified than the jury to form an
opinion on the particular subject."
Goodwin 320 N.C. at 150-51,
357 S.E.2d at 641.
In the case before us, Howell testified he had a master's
degree in education, which included 2,000 hours at a day treatment
center for children with behavioral problems stemming from both
violent and sexual abuse; he was a licensed professional counselor
in North Carolina; and he had six years of experience at Gaston
Mental Health at Court Drive School and Rowan County BehavioralHealthcare, where he counseled and treated children in a highly
structured environment who had been traumatized by sexual and
physical abuse. He was tendered as an expert in the counseling of
and the behavior of sexually abused children.
Defendant argues the trial court erred in qualifying Howell as
an expert witness, pursuant to
State v. Parker, 111 N.C. App. 359,
432 S.E.2d 705 (1993) and
State v. Trent, 320 N.C. 610, 359 S.E.2d
463 (1987). However, in both
Parker and
Trent the trial court
determined the expert was a qualified and properly tendered expert,
but the court in both cases held neither expert was qualified to
give an expert opinion concerning whether or not the victim in the
case was sexually abused.
Conversely, in the case before us, Howell did not testify as
to whether, in his expert opinion, the minor victim had been
sexually abused. He testified that her behavior was consistent
with a child who had been sexually abused. Experts "in the field
may testify on the profiles of sexually abused children and whether
a particular complainant has symptoms or characteristics consistent
with this profile."
State v. Hall, 330 N.C. 808, 818, 412 S.E.2d
883, 888 (1992). While Howell, based on his experience and
training, was not in a better position than the jury to make the
ultimate determination of sexual abuse, he was in a better position
than the jury, based on his training and experience, to determine
what behavior was consistent or inconsistent with children who had
been sexually abused. The "nature of the experts' jobs and the
experience which they possess make them better qualified than thejury to form an opinion as to the characteristics of abused
children."
State v. Grover, 142 N.C. App. 411, 419, 543 S.E.2d
179, 184 (2001). The trial court did not err in qualifying Howell
as an expert witness in that his testimony was of the nature that
would assist the jury in their ultimate determination of sexual
abuse. This assignment of error is without merit.
II.
[2]Defendant next argues the trial court erred in allowing
the testimony of Howell to be introduced as substantive evidence
under the residual exception to the hearsay rule. The trial court
found the minor victim to be unavailable because the minor victim
refused to answer questions asked of her at trial.
N.C. Gen. Stat. § 8C-1 Rule 804(b)(5)(1999) "permits the
admission of statements having equivalent guarantees of
trustworthiness where a declarant is unavailable."
State v.
Pretty, 134 N.C. App. 379, 384, 517 S.E.2d 677, 682 (1999). To be
admissible, the trial court must determine that the declarant is
unavailable, and the statement must meet a six-step analysis:
(1) Whether the proponent of the hearsay
provided proper notice to the adverse party of
his intent to offer it and of its particulars;
(2) That the statement is not covered by any
of the exceptions listed in Rule 804(b)(1)-
(4);
(3)
That the statement possesses "equivalent
circumstantial guarantees of trustworthiness";
(4) That the proffered statement is offered
as evidence of a material fact;
(5) Whether the hearsay is "more probative on
the point for which it is offered than anyother evidence which the proponent can produce
through reasonable means"; and
(6) Whether "the general purposes of [the]
rules [of evidence] and the interests of
justice will best be served by admission of
the statement into evidence."
State v. Wagoner, 131 N.C. App. 285, 288, 506 S.E.2d 738, 740
(1998)(quoting
State v. Swindler, 339 N.C. 469, 473-74, 450 S.E.2d
907, 910 (1994)) (other citations omitted) (emphasis in original).
"While no showing of necessity or trustworthiness is required for
the other 'firmly rooted hearsay exceptions,' a showing of
necessity and trustworthiness is required for statements admitted
under the catch-all exception to the hearsay rule to avoid
violating the constitutional right to confront."
Wagoner at 289,
506 S.E.2d at 741 (quoting
State v. Jackson, 348 N.C. 644, 654, 503
S.E.2d 101, 107 (1998)).
In the case before us, the trial court found that the victim
was unavailable and made findings to satisfy the six requirements
in
Wagoner. Defendant has chosen to focus his assignment of error
on factor three in
Wagoner and argues the trial court erred in
finding the State presented sufficient guarantees of
trustworthiness. We disagree.
In order to evaluate circumstantial guarantees of
trustworthiness, the court must examine the
(1) assurances of the declarant's personal
knowledge of the underlying events, (2) the
declarant's motivation to speak the truth or
otherwise, (3) whether the declarant has ever
recanted the statement, and (4) the practical
availability of the declarant at trial for
meaningful cross-examination.
Wagoner 131 N.C. App. at 290, 506 S.E.2d at 741 (quoting
State v
Triplett, 316 N.C. 1, 10-11, 340 S.E.2d 736, 742 (1986). The trial
court found that the minor victim was personally present and had
personal knowledge of the incidents at issue; Howell did not
indicate that the victim had any motivation to make a false
statement, that the victim was angry with defendant, or that Howell
or the parent had prompted the statement of the minor victim; the
minor victim did not recant her statements during the counseling
sessions with Howell. The record also shows the trial court
attempted on two different occasions to speak with the minor victim
to have her answer questions. The minor victim did not respond in
any meaningful manner when asked questions, especially questions
concerning the trial proceedings. There is evidence to support the
trial court's findings, and we will not disturb the trial court's
conclusion of law. We dismiss this assignment of error.
III.
[3]Defendant next argues the trial court erred by permitting
hearsay statements made by the minor victim to Julie Brafford, a
pediatric nurse, and to Dr. Amy Morgan to be introduced as
substantive evidence pursuant to N.C. Gen. Stat. § 8C-1 Rule
803(4)(1999), the medical diagnosis exception.
Rule 803(4) "requires a two-part inquiry: (1) whether the
declarant's statements were made for purposes of medical diagnosis
or treatment; and (2) whether the declarant's statements were
reasonably pertinent to diagnosis or treatment."
State v. Hinnant,
351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000). Testimony admittedunder the medical diagnosis exception "is considered inherently
reliable because of the declarant's motivation to tell the truth in
order to receive proper treatment."
Id. at 286, 523 S.E.2d at 669.
Therefore, "the proponent of Rule 803(4) testimony must
affirmatively establish that the declarant had the requisite intent
by demonstrating that the declarant made the statements
understanding that they would lead to medical diagnosis or
treatment."
Id. at 287, 523 S.E.2d at 669. Due to the difficulty
in ascertaining "whether a declarant understood the purpose of his
or her statements[] . . . the trial court should consider all
objective circumstances of record surrounding declarant's
statements in determining whether he or she possessed the requisite
intent under Rule 803(4)."
Id. at 287-88, 523 S.E.2d at 669-70
Defendant argues that because Dr. Morgan examined the minor
victim pursuant to a request by Detective Wilhelm of the Concord
Police Department following the arrest of defendant, the
examination was in preparation for trial and not for medical
treatment; consequently, the hearsay statements are not admissible
under the Rule 803(4) exception. Defendant relies on
State v.
Stafford, 317 N.C. 568, 346 S.E.2d 463 (1986), in which our Supreme
Court excluded the testimony of a physician because in his
examination he "neither treated nor diagnosed any condition" of the
victim, nor was there any testimony that the victim visited the
physician "for the purpose of treatment or obtaining a diagnosis."
Id. at 574, 346 S.E.2d at 467. Our Supreme Court held that under
"Rule 803(4) a prerequisite to admissibility for substantivepurposes of statements made to physicians is that they be 'made for
the purpose of medical diagnosis or treatment.'"
Id. In
Stafford,
the victim visited the physician only once, three days before the
start of the trial. The trial court determined the victim's
statements to the physician were "not for purposes of diagnosis or
treatment but for the purpose of preparing and presenting the
state's 'rape trauma syndrome' theory at trial which was to
commence three days later."
Id.
Defendant also relies on
State v. Bates, 140 N.C. App. 743,
538 S.E.2d 597 (2000), where our Court determined the trial court
erred in admitting hearsay testimony of a psychologist because the
interview between the psychologist and the child victim did not
possess a "treatment motive," the victim did not know why she was
at the interview, and the psychologist did not make it clear to the
child victim that she needed treatment.
Bates at 746, 538 S.E.2d
at 600. Furthermore, the psychologist did not emphasize the need
to be truthful, and the interview was performed in a child-friendly
environment containing only small furniture and lots of toys, an
environment our Supreme Court has stated "does not emphasize the
need for honesty."
Id.
However, the case before us is distinguishable from both
Bates
and
Stafford. Regarding the statements of Brafford, the trial
court made the following findings of fact: Brafford's interview of
the minor victim took place in a hospital, and the victim was taken
to the pediatric ward of the hospital; Brafford was wearing
hospital uniform attire when she spoke to the minor victim, and shehad a badge on identifying her as a nurse; before the interview,
Brafford explained to the minor victim that following the interview
the minor victim would see a doctor for a physical examination; and
Brafford asked the minor victim whether she understood the
difference between the truth and a lie and instructed her to be
truthful during the interview. These findings support the first
prong of the medical exception analysis. The assurances of
trustworthiness the medical exception requires were present.
The required assurances of trustworthiness were also present
in the statements made to Dr. Morgan. The examination occurred in
a regular medical examination room. Dr. Morgan told the minor
victim she would be examined from "head to toe." Dr. Morgan
performed the examination similar to any other standard physical
examination, starting by checking the minor victim's nose, throat,
and ears. Dr. Morgan testified that when she performs a physical
examination, she does
a head to toe check-up. Kind of start at the
top, ears, eyes, nose, throat, tummy,
etcetera; and then as I get closer to or down
to the area of the genitals, I tell them that
just like their other doctor might have
checked them there, that I need to check them
there today to see if they're okay.
Furthermore, Brafford testified the purpose of the "interview
and . . . medical exam is to make sure that we get . . . factual
information from the child and to make sure [that they] are
physically okay and that they don't have any harm." Dr. Morgan
testified the purpose of the examination "is to determine if the
child has been injured and then if the child has been injured, to
render any treatment and perform any diagnostic studies and makeappropriate referrals to specialists, whether they be for medical
problems or psychiatric or psychological problems." The trial
court found the purpose of the examination was "dual, in that it
was both for the purpose of medical intervention and for the
purpose of future prosecution[,]" which meets the first prong of
the test.
The minor victim's statements also are sufficient to meet the
second prong of the
Hinnant test. The statements the minor victim
made were "reasonably pertinent to diagnosis." The minor defendant
stated how and where she was inappropriately touched. She also
stated by whom she was touched. The "victim's identification of
the defendant as perpetrator was pertinent to continued treatment
of the possible psychological and emotional problems resulting from
the [sexual offense]."
State v. Aguallo, 318 N.C. 590, 597, 350
S.E.2d 76, 81 (1986). Defendant's assignment of error is
dismissed.
IV.
[4]Defendant next argues the trial court erred by permitting
Howell and Dr. Morgan to testify as to the credibility of the minor
victim.
In general, it is not error for experts "to testify concerning
the symptoms and characteristics of sexually abused children and to
state their opinions that the symptoms exhibited by the victim were
consistent with sexual or physical abuse."
State v. Kennedy, 320
N.C. 20, 31-32, 357 S.E.2d 359, 366 (1987). The testimony is
admissible if the testimony, "if believed, could help the juryunderstand the behavior patterns of sexually abused children and
assist it in assessing the credibility of the victim."
Id.
Defendant argues, based on
State v. Hall, 330 N.C. 808, 412
S.E.2d 883 (1992) and
State v. Hensley, 120 N.C. App. 313, 462
S.E.2d 550 (1995), that the evidence is admissible, if at all, only
with a limiting instruction that it be considered for corroborative
and not substantive purposes. In
Hall, the Supreme Court found
error in the admission of testimony concerning the victim's
diagnosis of post-traumatic stress disorder and conversion
disorders. The Court did not rule this type of evidence was always
inadmissible, but instead found the testimony
was not limited by the trial court to any
particular purpose. It was admitted for the
substantive purpose of allowing the jury to
infer that [the victim] had in fact been
raped. Because this evidence was not limited
by the trial court to corroborating [the
victim's] version of the events . . . we find
error in its admission.
Hall 330 N.C. at 823, 412 S.E.2d at 891-92. Likewise in
Hensley,
a physician's testimony concerning the symptoms of post-traumatic
stress disorder exhibited by the victim,
while not mentioning defendant's name
specifically, without question intimates the
cause of the alleged victim's post-traumatic
stress syndrome was the sexual abuse inflicted
by
defendant. This testimony was thus
erroneously admitted as substantive evidence
to prove [the victim] suffered a sexual
assault by anal penetration and that defendant
committed the offense.
Hensley 120 N.C. App. at 319, 462 S.E.2d at 554 (emphasis in
original). However, in the case before us, defendant made generalobjections to these statements during the trial, but at no time
requested a limiting instruction. In North Carolina, the rule "has
long been that an instruction limiting admissibility of testimony
to corroboration is not required unless counsel specifically
requests such instruction."
State v. Quarg, 334 N.C. 92, 101, 431
S.E.2d 1, 5 (1993).
Furthermore, we note the decisions in both
Hall and
Hensley
are limited to post-traumatic stress disorders and conversion
disorders. In
State v. Richardson, 112 N.C. App. 58, 434 S.E.2d
657 (1993), our Court distinguished the underlying facts from
Hall
because the expert in
Richardson testified to "basic
characteristics of sexually abused children, reasons for children
failing to report abuse to parents, and various events leading to
disclosure."
Id. at 65, 434 S.E.2d at 662. Our Court determined
that since no "testimony as to an abuse 'profile' or 'syndrome' was
given . . . the analysis set forth in
Hall is inapplicable."
Id.
Likewise, in the case before us neither Howell nor Dr. Morgan
testified that the minor victim suffered from a post-traumatic
stress disorder. They both testified as to the general
characteristics of children who suffer from sexual abuse. We
therefore dismiss this assignment of error.
V.
Defendant next argues the trial court erred by failing to
dismiss the charge of first degree sex offense and the charges of
taking indecent liberties with a minor.
[5]Defendant argues the charge of first degree sexual offenseshould have been dismissed because there was no evide
nce of
penetration. We disagree. "For a charge of sexual offense to
withstand a motion to dismiss for insufficient evidence, there must
be evidence of anal or genital penetration by any object."
State
v. Dick, 126 N.C. App. 312, 317, 485 S.E.2d 88, 91 (1997). Howell
testified that the minor victim had reported that defendant
touched her inside her vagina. Dr. Morgan testified that when she
examined the minor victim, she questioned the minor victim while
using a soft cotton swab to touch areas of the minor victim's body.
When Dr. Morgan touched the minor victim inside her vagina, the
minor victim stated defendant had touched her there. Dr. Morgan
testified:
When I placed the Q-tip on the vaginal
area in between the labia or the lips of the
vagina, she stated that she had been touched
there; and when I placed the Q-tip just
touching the hymen but not inserting it into
the vaginal canal, she stated . . . she had
been touched there.
. . . .
I did ask her during the course of these
questions, as I always do, who touched you
there. . . . and she did answer my question
and she said [defendant] touched me.
Dr. Morgan also found a notch on the minor victim's hymen, which
Dr. Morgan testified was evidence that was consistent with sexual
abuse. In
ruling on a motion to dismiss, the trial court
must view all of the evidence in the light
most favorable to the State, giving the State
the benefit of every reasonable inference to
be drawn from the evidence. A motion to
dismiss must be denied where substantial
evidence exists of each essential element of
the crime charged and of the defendant'sidentity as the perpetrator. "Substantial
evidence" is "such relevant evidence as a
reasonable mind might accept as adequate to
support a conclusion."
State v. McAllister, 138 N.C. App. 252, 259-60, 530 S.E.2d 859, 864
(2000) (quoting
State v. Williams, 127 N.C. App. 464, 467, 490
S.E.2d 583, 586 (1997)) (other citations omitted). The evidence at
trial of penetration was sufficient to survive a motion to dismiss
and be weighed and decided by the jury.
[6]Defendant also argues there was not sufficient evidence to
submit to the jury five counts of taking indecent liberties with a
child. N.C. Gen. Stat. § 14-202.1(a)(1999) states that:
A person is guilty of taking indecent
liberties with children if, being 16 years of
age or more and at least five years older than
the child in question, he either:
(1) Willfully takes or attempts to take
any immoral, improper, or indecent liberties
with any child of either sex under the age of
16 years for the purpose of arousing or
gratifying sexual desire; or
(2) Willfully commits or attempts to
commit any lewd or lascivious act upon or with
the body or any part or member of the body of
any child of any sex under the age of 16
years.
There is again sufficient testimony in the record of five counts of
defendant taking indecent liberties with the minor victim. We
therefore dismiss this assignment of error.
VI.
[7]Defendant next argues the trial court erred in instructing
the jury that the statements of the minor victim to Howell,
Brafford, and Dr. Morgan were admitted as substantive evidence of
the truth of what the minor victim stated at an earlier time.
However, as we have already determined these statements wereproperly admitted as substantive evidence by meeting the requisite
guarantees of trustworthiness, it was not error for the trial court
to instruct the jury accordingly. We therefore dismiss this
assignment of error.
No error.
Judges TIMMONS-GOODSON and JOHN concur.
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