Appeal by defendant from judgments entered 5 October 2000 by
Judge Jerry R. Tillett in Pasquotank County Superior Court. Heard
in the Court of Appeals 25 April 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Celia Grasty Lata, for the State.
Miles and Montgomery, by Lisa Miles, for defendant-appellant.
MARTIN, Judge.
Defendant was charged with first degree statutory rape of a
female child under thirteen, statutory sexual offense of a female
child under thirteen, and three counts of taking indecent liberties
with a child. Following a jury trial, defendant was convicted on
all counts. The trial court arrested judgment on one count of
taking indecent liberties with a child, and entered judgments on
the remaining verdicts imposing active terms of imprisonment.
Defendant appeals.
The State's evidence tended to show that the alleged victim,
“E.S.,” was eight years old at the time of the trial. E.S.
testified that on one occasion of the sexual abuse, defendant, her
stepfather, asked her to “sit on daddy's lap,” at which point he
pulled out his penis. On another occasion, E.S. testified thatdefendant woke her and “put his finger up in my private.” On a
third occasion defendant allegedly asked E.S. if she wanted to see
“daddy's milk.” She then indicated that defendant had his hand on
his penis and ejaculated. On yet another occasion, defendant
compelled E.S. to wash his penis. Finally, E.S. testified that
defendant put Vaseline on his penis and put his “private part” into
her “private part.” According to E.S., defendant instructed E.S.
not to tell anyone about the sexual acts.
Midge Hudyma, a child protective services investigator,
testified for the State. Ms. Hudyma stated that after getting a
report of possible sexual abuse from the police department and from
the victim's mother, Ms. Hudyma interviewed E.S. at her elementary
school. E.S., who was six years old at the time of the alleged
acts, told Ms. Hudyma that her stepfather had touched her “kitty,”
which she indicated was her vagina. E.S. told Ms. Hudyma that
defendant penetrated her with his fingers, and that defendant asked
her to sit on his lap while his penis was exposed. E.S. also told
Ms. Hudyma that defendant inserted his penis into her vagina. The
trial court permitted this testimony for the limited purpose of
corroborating the victim's prior testimony.
Dr. Rebecca Coker, a pediatrician certified as an expert in
the diagnoses of sexually abused children, testified that E.S. was
referred to her by the department of social services, and Dr. Coker
conducted a complete physical examination of E.S. on 10 June 1999.
Dr. Coker discovered scar tissue in the victim's vagina. Dr. Coker
testified that she was concerned by a “very distorted fossanavicularis” inside the vagina and by “two bands of suspicious scar
tissue.” Dr. Coker concluded that “the patient had experienced
trauma and based on the medical history, it was consistent with
sexual abuse.”
The victim's sister, “S.S.,” was also permitted to testify
pursuant to G.S. § 8C-1, Rule 404(b). S.S. stated that on one
occasion she was sitting on a recliner watching television and
defendant came up behind her and “started rubbing on my boobs.” On
another occasion S.S. was sleeping on the couch and woke up in the
middle of the night and noticed the television was on, “so I turned
around to watch TV and when I turned around [defendant] was
standing in front of me with his thing out of his boxers again.”
S.S. stated that he was “jacking off.” On yet another occasion
defendant woke S.S. while she slept and asked her to kiss him, but
she would not. On other occasions S.S. testified that defendant
felt her vagina and her breasts. S.S. was twelve years old when
these incidents occurred.
Defendant did not present any evidence.
_______________
Defendant brings forward six assignments of error. Defendant
has not presented arguments in support of the remaining twenty-six
assignments of error contained in the record on appeal and they are
deemed abandoned. N.C.R. App. P. 28(b)(5).
I.
Defendant first argues the trial court erred by denying
defendant's motion to introduce evidence of prior sexual activityof the complaining witness. Defendant filed a pre-trial motion to
“introduce prior sexual activity of complaining witness” on the
ground that the victim had explicit sexual knowledge based on
incidents which allegedly occurred between her and a male cousin,
and that cross examination on this point was necessary to provide
an alternative explanation for the victim's sexual knowledge. The
trial court denied defendant's motion, “with leave to be remade at
some _- if there is some _- some reason something comes up that
makes it at issue.” Defendant never renewed his motion to cross
examine E.S. as to her prior sexual experiences as a means of
establishing an alternate explanation for the physical evidence of
sexual abuse, even after the State presented the testimony of Dr.
Rebecca Coker, who testified that a physical examination of the
victim's genitalia revealed scar tissue consistent with sexual
penetration. As a result, this assignment of error was not
properly preserved for appeal.
See N.C.R. App. P. 10(b)(1) (“In
order to preserve a question for appellate review, a party must
have presented to the trial court a timely request, objection or
motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent
from the context. It is also necessary for the complaining party to
obtain a ruling upon the party's request, objection or motion. Any
such question which was properly preserved for review by action of
counsel taken during the course of proceedings in the trial
tribunal by objection noted or which by rule or law was deemed
preserved or taken without any such action, may be made the basisof an assignment of error in the record on appeal.”).
II.
Defendant next contends the trial court erred in admitting
into evidence the testimony of S.S. as to sexual acts committed by
defendant. Evidence of other crimes or acts is not admissible for
the purpose of showing the character of the accused or for showing
his propensity to act in conformity with a prior act. N.C. Gen.
Stat. § 8C-1, Rule 404(b) (2001). However, such evidence may be
admissible for other purposes, such as “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake, entrapment, or accident.”
Id. The North
Carolina Supreme Court has held that Rule 404(b) is a rule of
inclusion.
State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000),
cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). Indeed,
North Carolina's appellate courts have been “markedly liberal in
admitting evidence of similar sex offenses to show one of the
purposes enumerated in Rule 404(b).”
State v. Scott, 318 N.C. 237,
247, 347 S.E.2d 414, 419-20 (1986) (citations omitted). Two
constraints limit the use of evidence under Rule 404(b):
“similarity and temporal proximity.”
State v. Artis, 325 N.C. 278,
299, 384 S.E.2d 470, 481 (1989),
vacated on other grounds, 494 U.S.
1023, 108 L. Ed. 2d 604 (1990).
When the features of the earlier act are
dissimilar from those of the offense with
which the defendant is currently charged, such
evidence lacks probative value. When
otherwise similar offenses are distanced by
significant stretches of time, commonalities
become less striking, and the probative value
of the analogy attaches less to the acts thanto the character of the actor.
Id. The similarities between the crime charged and the prior acts
admitted under Rule 404(b) need not “'rise to the level of the
unique or bizarre'” in order to be admissible.
State v. Stager,
329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991) (citation omitted).
In the present case, the trial court admitted evidence of the
prior acts on the grounds that it showed identity, a pattern of
opportunity, and a common plan or scheme to commit sexual offenses
against the victim and her sister, S.S. Defendant was the
stepfather to both girls, and stayed at home while his wife, the
girls' mother, was at work. Both girls were under the age of
thirteen at the time of the sexual abuse and the incidents with
respect to both girls occurred when they were alone with him. Both
girls testified that defendant exposed and fondled himself in their
presence, touched their genitalia on repeated occasions, and
masturbated in their presence. The trial court did not err in
permitting the testimony of S.S. pursuant to Rule 404(b) to show
identity, a pattern of opportunity, and a common plan or scheme to
commit sexual abuses against his stepdaughters.
III.
Defendant next contends the trial court erred in admitting the
opinion testimony of Dr. Coker that the victim had been sexually
abused based solely on her history. Defendant takes the testimony
of Dr. Coker out of context to advance the argument that Dr. Coker
based her medical diagnosis solely on the victim's history, which
mischaracterizes the State's evidence. Defendant's assignment oferror is overruled.
North Carolina Rule of Evidence 702(a) provides that if
scientific, technical or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of
an opinion.
In
State v. Grover, 142 N.C. App. 411, 543 S.E.2d 179 (2001), this
Court held that opinion testimony of a clinical social worker that
the victim had been sexually abused should not have been admitted
because it was based entirely on the victim's statements and did
not include physical evidence of sexual abuse. In addition, the
North Carolina Supreme Court recently held that,
[i]n a sexual offense prosecution involving a
child victim, the trial court should not admit
expert opinion that sexual abuse has
in fact
occurred because, absent physical evidence
supporting a diagnosis of sexual abuse, such
testimony is an impermissible opinion
regarding the victim's credibility.
State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002)
(citations omitted). In
State v. Trent, 320 N.C. 610, 359 S.E.2d
463 (1987), the Supreme Court held that the testimony of the
physician in a rape and sexual abuse case was inadmissible because
the State did not lay a proper foundation for the testimony. The
physician made reference to a physical exam conducted four years
after the date of the alleged offenses which revealed that the
victim's hymen was not intact. However, the exam showed no
“lesions, tears, abrasions, bleeding or otherwise abnormal
conditions.”
Id. at 613, 359 S.E.2d at 465. In fact, thetestifying physician stated that the physical condition of the
hymen alone “would not support a diagnosis of sexual abuse, but
only a conclusion that the victim had been sexually active.”
Id.
at 614, 359 S.E.2d at 466. The Supreme Court held that the expert
was in no better position to testify as to whether the victim had
been sexually abused years earlier than the members of the jury,
and that his testimony was inadmissible pursuant to Rule of
Evidence 702.
Id.
In the present case, however, substantial
physical evidence
was presented by Dr. Coker to support her opinion that E.S. was
sexually abused. Dr. Coker, a pediatrician who was permitted to
testify as an expert in the diagnoses and treatment of sexually
abused children, stated that she performed a complete physical
examination of E.S. on 10 June 1999, when the victim was seven
years old. Dr. Coker discovered scar tissue inside the victim's
vagina. She testified that she noticed bands of tissue which
distorted the “fossa navicularis” inside the vagina. She also
referred to “suspicious scar tissue,” which is not “a common or
normal finding.” Dr. Coker concluded that “
the patient had
experienced trauma and based on the medical history, it was
consistent with sexual abuse” (emphasis added). The State's expert
in this case explicitly stated that her conclusion was based in
part on the physical evidence of sexual abuse. Because the State's
expert based her conclusions on both the physical evidence and the
medical history obtained from Midge Hudyma, a child protective
services investigator, as well as the victim's mother, her expertopinion testimony was properly admitted under N.C.R. Evid. 702.
IV.
Defendant next argues the trial court erred in admitting as
substantive evidence hearsay testimony from Dr. Coker regarding
statements made by the victim's mother, Gloria Brothers, and the
social worker, Ms. Hudyma. As one of the exceptions to the general
prohibition against the introduction of hearsay testimony,
statements which are made for the purpose of medical diagnosis or
treatment may be introduced as substantive evidence. N.C. Gen.
Stat. § 8C-1, Rule 803(4). In this case, however, the statements
of Ms. Brothers and Ms. Hudyma, as related through the testimony of
Dr. Coker, revealed statements originally made by E.S.;
accordingly, portions of Dr. Coker's testimony could be
characterized as double hearsay.
E.S. testified in detail regarding several instances of sexual
abuse by defendant, including one instance of vaginal intercourse.
Defendant was permitted to cross examine E.S. regarding all of
these allegations. As part of Dr. Coker's examination of E.S., she
received information from the victim's mother and from Midge
Hudyma, a social worker investigating the allegations of sexual
abuse. Dr. Coker recounted two statements attributed to E.S.'s
mother: (1) that the mother walked in on one occasion while E.S.
sat on defendant's lap with defendant's penis exposed, and (2) that
E.S. later explained to her mother that defendant had inserted his
“middle part” in her “middle part” in the past. This testimony is
entirely consistent with the testimony of E.S., which defendant hadample opportunity to cross examine. The appellate courts of this
State have not addressed the specific question of whether a
treating physician may testify regarding out-of-court statements
made by a parent recounting out-of-court statements made by a child
victim pursuant to the medical diagnosis exception to the rule
against hearsay. However, because in this case defendant has not
shown prejudice, we do not reach the question. N.C. Gen. Stat. §
15A-1443(a) (2001) (“A defendant is prejudiced by errors relating
to rights arising other than under the Constitution of the United
States when there is a reasonable possibility that, had the error
in question not been committed, a different result would have been
reached at the trial out of which the appeal arises. The burden of
showing such prejudice under this subsection is upon the
defendant.”). On this record defendant has not shown prejudice,
and his assignment of error to the contrary is overruled.
V.
Defendant contends the trial court erred by not dismissing the
indictments against him for sexual offense and indecent liberties
because the “short-form” indictments did not specify the
actus reus
of each of the sexual crimes, thereby violating his due process
rights. However, the short-form indictment, as defendant concedes,
has been upheld as constitutional by our Supreme Court in
State v.
Wallace, 351 N.C. 481, 528 S.E.2d 326,
cert. denied, 531 U.S. 1018,
148 L. Ed. 2d 498 (2000),
reh'g denied, 531 U.S. 1120, 148 L. Ed.
2d 784 (2001). This assignment of error is overruled.
VI.
Finally, defendant argues the trial court erred in denying his
motion to require the jury to convict him on the specific acts set
out in the bill of particulars.
The North Carolina Constitution requires that “[n]o person
shall be convicted of any crime but by the unanimous verdict of a
jury in open court.” Art. 1, § 24. However, our Supreme Court
has held that the threat of a non-unanimous verdict does not arise
in cases of indecent liberties because the statute, G.S. § 14-
202.2, does not list, as elements of the offense, discrete criminal
acts in the disjunctive.
State v. Hartness, 326 N.C. 561, 391
S.E.2d 177 (1990). A person is guilty of taking indecent liberties
with a child if that person engages in “any immoral, improper, or
indecent liberties.” N.C. Gen. Stat. § 14-202.1. Thus, “[e]ven if
we assume that some jurors found that one type of sexual conduct
occurred and others found that another transpired, the fact remains
that the jury as a whole would unanimously find that there occurred
sexual conduct within the ambit of 'any immoral, improper, or
indecent liberties.'”
Hartness, 326 N.C. at 565, 391 S.E.2d at
179. See also
State v. Foust, 311 N.C. 351, 317 S.E.2d 385 (1984).
A defendant may be convicted of first degree sexual offense even if
the trial court instructs the jury that more than one sexual act
may comprise an element of the offense.
Id.
In the present case, the trial court set forth the elements
for first degree sexual offense, defining a sexual act as “
any
penetration, however slight, by
an object into the genital opening
of a person's body” (emphasis added). In order to find defendantguilty of first degree sexual offense, therefore, the jury was
required to find that defendant inserted any object into the
genital opening of the child. This instruction comports with G.S.
§ 14-27.1, which defines a sexual act as “penetration, however
slight, by any object into the genital or anal opening of another
person's body.”
With regard to the charge of taking an indecent liberty with
a child, the trial court defined an indecent liberty as
an immoral, improper, or indecent touching or
act by the Defendant upon the child or
inducement by the Defendant of an immoral, or
indecent touching by the child, or that the
Defendant committed or attempted to commit a
lewd or lascivious act upon a child.
The trial court thus made explicit in its instructions that the
jury must find that defendant touched E.S. in an improper or
indecent way or induced E.S. to touch him in an indecent way, or
that defendant attempted to commit a lewd or lascivious act upon
the child in order to convict. The trial court committed no error
in its instruction to the jury concerning the charges of indecent
liberties with a child and first degree sexual offense.
In addition, the North Carolina Supreme Court has rejected the
argument that a defendant was denied a fair trial because the bill
of particulars and the evidence presented at trial did not
precisely establish the date and time of the alleged rape.
State
v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983).
[A] child's uncertainty as to the time or
particular day the offense charged was
committed goes to the weight of the testimony
rather than its admissibility, and nonsuit may
not be allowed on the ground that the State'sevidence fails to fix any definite time when
the offense was committed where there is
sufficient evidence that the defendant
committed each essential act of the offense.
Id. at 749, 309 S.E.2d at 207 (citing
State v. King, 256 N.C. 236,
123 S.E.2d 486 (1962)). The purpose of a bill of particulars is
“'to inform defendant of specific occurrences intended to be
investigated at trial and to limit the course of the evidence to
a particular scope of inquiry.'”
State v. Jacobs, 128 N.C. App.
559, 565, 495 S.E.2d 757, 762,
disc. review denied, 348 N.C. 506,
510 S.E.2d 665 (1998) (citation omitted). In this case the
testimony was not inconsistent with the State's bill of
particulars.
Finally, defendant argues that even if the trial court's
instructions comport with North Carolina case law, the instructions
do not comply with federal constitutional law. In
Richardson v.
United States, 526 U.S. 813, 143 L. Ed. 2d 985 (1999), the
defendant was charged with violating a federal criminal statute,
21 U.S.C. § 848, which forbids any person from engaging in a
“continuing criminal enterprise.” The criminal enterprise is
defined as the violation of federal drug laws.
Id. Based on the
language of the federal statute, the United States Supreme Court
held that a jury must unanimously agree on each of the violations
making up the “continuing series of violations.”
Id. at 815, 143
L. Ed. 2d at 991. Nevertheless, the Court recognized that a jury
in other cases “need not always decide unanimously which of several
possible sets of underlying brute facts make up a particular
element, say, which of several possible means the defendant usedto commit an element of the crime.”
Id. at 817, 143 L. Ed. 2d. at
992 (citations omitted). The holding in
Richardson is therefore
limited to federal prosecutions under 21 U.S.C. § 848, and does not
apply to the instant case. Defendant's assignment of error is
overruled.
Defendant received a fair trial, free from prejudicial error.
No error.
Judges TYSON and THOMAS concur.
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