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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. WELDON EUGENE THORNTON, Defendant
Filed: 1 July 2003
1. Evidence--hearsay--medical diagnosis or treatment exception
The trial court did not commit plain error in a first-degree rape and taking indecent
liberties with a minor case by failing to instruct the jury that statements made by the victim
during interviews with a licensed clinical social worker were not substantive evidence, because
the statements were admissible under N.C.G.S. § 8C-1, Rule 803(4) when the victim made the
statements to the social worker with the understanding that they would lead to medical diagnosis
or treatment and that the statements were reasonably pertinent to diagnosis or treatment.
2. Evidence--sexual abuse_-improper opinion testimony--motion for mistrial
The trial court did not abuse its discretion or commit plain error in a first-degree rape and
taking indecent liberties with a minor case by failing to declare a mistrial sua sponte, or
alternatively inquiring further of the jury whether it could disregard certain testimony given by a
clinical social worker that was stricken by the court, because: (1) the trial court gave prompt and
emphatic instructions to disregard the social worker's statement; and (2) there is a presumption
that the jury has complied with the trial court's instructions.
3. Constitutional Law--effective assistance of counsel--motion for appropriate relief
Although defendant's motion for summary disposition of his motion for appropriate relief
is denied, the motion for appropriate relief alleging ineffective assistance of counsel is remanded
to the trial court for an evidentiary hearing and ruling by that court.
Appeal by defendant from judgment entered 14 September 2001 by
Judge Evelyn W. Hill in Alamance County Superior Court. Heard in
the Court of Appeals 8 January 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Jill B. Hickey, for the State.
Miles & Montgomery, by Mark Montgomery, for defendant-
Defendant appeals judgments entered upon jury verdicts
convicting defendant of one count of first degree rape and one
count of taking indecent liberties with a minor. For the reasons
discussed below, we conclude there was no error. We remanddefendant's Motion for Appropriate Relief to the superior court for
the taking of evidence and such further proceedings as it deems
The child victim, BM, testified at trial. She was eight years
old when she testified, and seven years old when the events at
issue occurred. BM testified that defendant worked across the
street from her father's house, and that one day defendant came to
the house and told her to go into a room. BM testified that she
walked in there and defendant told me to pull down my skirt and
my underwear, and so I did. And, umm, he did, too. And he got
right on top of me. And umm, he started going up and down, and he
BM also testified that on another occasion, while she was at
defendant's house, he done the same thing. When asked exactly
what defendant did, BM answered that defendant put his private
part in her private part, and her testimony further clarified
her understanding of a private part.
BM further testified that on another occasion, when defendant
was taking BM home from church, defendant turned off onto a dirt
road, stopped the truck they were traveling in, and told her they
were looking for deers in the field. BM went on to testify that
He got out of the, out on his side. He went around. And, umm,
and then when he got around to my side, he opened the door. And he
pulled down my, my skirt and my underwear. And then he got on top
of me and got up and down, then he kissed me again.
BM also testified that defendant, on yet another occasion, puthis private part in her mouth, though BM could not remember when
or where this happened.
Danny Walker, a juvenile investigator with the Alamance County
Sheriff's Department, testified that he investigated these
allegations upon referral of the case from Orange County Department
of Social Services. He testified that, during an interview, BM
told him about the incidents involving defendant. Upon defendant's
motion, the trial court instructed the jury that Mr. Walker's
testimony could only be used to corroborate BM's testimony.
On 27 October 2000, Dr. Adrea Theodore, a pediatrician at the
University of North Carolina School of Medicine, conducted a
physical examination of BM at the Center for Child and Family
Health. Dr. Theodore was tendered and accepted at trial as an
expert in child medical examinations and pediatric medicine. She
testified that she observed a notch on BM's hymen that she
considered to be a significant finding, which was suspicious for
penetrating trauma. When asked whether in her opinion BM
exhibited signs consistent with being sexually abused, Dr. Theodore
testified that based on our physical exam which shows a finding
that's suspicious for penetrating trauma, that is suggestive of
On 27 October 2000 and 3 November 2000, Donna Potter, a
licensed clinical social worker with the Duke University Department
of Psychiatry and the Center for Child and Family Health,
interviewed BM. Ms. Potter testified at trial. When the
prosecution began to question her about her interviews with BM,
defense counsel objected and asked for an instruction limiting Ms.Potter's testimony regarding BM's out-of-court statements to
corroboration. The court overruled the objection on the grounds
that an expert is allowed to testify to matters relied upon in
forming an opinion, stating that:
If she relied upon them in making, in forming
her opinion, I assume she knew she was going
to give and they're admissible. If we get to
the point that she is not asked the
appropriate opinion question and doesn't say
she relied upon it, then we'll strike them
Later in her testimony, the prosecutor asked Ms. Potter
whether BM exhibited any characteristics of a sexually abused
child. At the point, the court interrupted the examination and
I want to be sure that we're very clear here,
Counselor . . . . That this witness may
testify about the characteristics in general
of sexually abused children, which she has not
done yet. Having done that, she may then
testify about what symptoms, similar symptoms
that she may have observed in this child. But
she may not then take the next step. So if
she's going to testify about symptoms in
general, if she's going to testify about
symptoms this child exhibited which are
symptoms that are generally seen, let's get
the generally seen symptoms testified about
After the prosecutor elicited testimony about symptoms of child
sexual abuse in general, the witness testified that, My opinion is
that [BM] has absolutely been sexually abused. The court
instructed the jury to disregard the statement, and reminded the
witness that the question was whether the child showed symptoms
that were consistent with abuse. The witness answered, Yes, she
At the conclusion of the direct examination of Ms. Potter, theprosecution played a videotape of a portion of Ms. Potter's second
interview with [BM]. Prior to playing the videotape, defense
counsel stipulated to its authenticity and lodged no other
objection to the tape. After the tape played, defense counsel
stated that he did not object to its admission into evidence.
 Defendant first argues that the trial court committed
plain error by not instructing the jury that statements made by the
victim during interviews with Ms. Potter were not substantive
evidence. We disagree.
In deciding whether a defect in the jury instruction
constitutes 'plain error,' the appellate court must examine the
entire record and determine if the instructional error had a
probable impact on the jury's finding of guilt. State v. Odom,
307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983). Our Supreme
Court has emphasized that:
the plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done, or where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,
or the error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
State v. Black, 328 N.C. 191, 200-01, 400 S.E.2d 398, 404 (1991)
(internal citations and quotation marks omitted). The medical diagnosis or treatment exception to the hearsay
rule provides as follows:
The following are not excluded by the hearsay
rule, even though the declarant is available
as a witness:
(4) Statements for Purposes of Medical
Diagnosis or Treatment.-- Statements made for
purposes of medical diagnosis or treatment and
describing medical history, or past or present
symptoms, pain, or sensations, or the
inception or general character of the cause or
external source thereof insofar as reasonably
pertinent to diagnosis or treatment.
N.C. Gen. Stat. . 8C-1, Rule 803(4). 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). In Hinnant, our Supreme Court reaffirmed the inherent
reliability of evidence admitted under Rule 803(4), but required
that 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. In ascertaining the intent of the
declarant, all objective circumstances of record surrounding
declarant's statements should be considered. Id. at 288, 523
S.E.2d at 670.
In Hinnant, a child sexual abuse case, the Court found that
there was no evidence that the child victim had a treatment or
diagnostic motive when speaking to a clinical psychologist
specializing in child sexual abuse. The circumstances that led theCourt to this conclusion were: the record did not disclose that
anyone explained to the child the medical purpose of the interview
or the importance of truthful answers; the interview was not
conducted in a medical environment; the interview consisted of a
series of leading questions by the psychologist who pointed to
anatomically correct dolls and asked whether anyone had performed
various acts with the child; and the child victim did not meet with
the psychologist until two weeks after her initial medical
examination. Id. at 290, 523 S.E.2d at 671. Based upon the
foregoing, the Court reversed the decision of this Court and held
that the child victim's interview statements were not admissible
under Rule 803(4).
The present case is easily distinguishable from Hinnant. BM's
medical and psychological evaluations took place at the Center for
Child and Family Health in Durham. The Center utilizes a team
approach to the diagnosis and treatment of sexually abused
children. Dr. Theodore, who conducted the medical examination of
BM, and Social Worker Potter, who conducted the interviews, work in
the same building and their offices are just doors apart. Both the
physical examination and the initial interview were conducted on 27
Potter testified that at the beginning of the interview she
spent time making sure that BM understood that she was actually in
a doctor's office. Potter further testified that BM was very
aware of the fact that she was in a doctor's office, and that
Potter worked with a doctor and that my job is to help her.
Potter explained to BM the importance of being truthful during theinterview and testified that BM was very clear about that. In
addition, Potter asked BM very general questions about her home
life, and very general and nonleading questions about any
touching that may have occurred.
Given these circumstances, we believe that the trial court
properly concluded that the statements were admissible, since BM
made her statements to Potter with the understanding that they
would lead to medical diagnosis or treatment and that the
statements were reasonably pertinent to diagnosis or treatment.
Thus, Potter's testimony as to BM's interview statements were
admissible under Rule 803(4), and this assignment of error is
 Defendant next argues that the trial court committed plain
error in not declaring a mistrial sua sponte, or alternatively
inquiring of the jury whether they could disregard certain
testimony given by Potter that was stricken by the court. In the
presence of the jury, the prosecutor asked Potter whether BM
exhibited any characteristics of a sexually abused child. At that
point, the court interrupted the examination to clarify that the
witness could testify about abuse in general and about the child's
symptoms. After the prosecutor elicited testimony about symptoms
of child sexual abuse in general, the following exchange took
Q. Based on your formal training in this field and
your practical experience, your opportunity to
observed [sic] and to talk to [BM], your
consultation with Dr. Theodore, other licensed
clinical social workers and the team, did you form
an opinion as to whether or not [BM] exhibited
characteristics of a sexually abused child?
DEFENSE COUNSEL: Objection.
A: Yes, I did.
Q: What is that opinion?
A: My opinion is that [BM] has absolutely been
DEFENSE COUNSEL: Objection.
COURT: Motion to strike.
DEFENSE COUNSEL: Yes, ma'am.
COURT: Ladies and gentlemen, you are to
disregard the statement made by the
witness. It was not responsive to the
question. The question was whether or
not the child exhibited, whether or not
[BM] exhibited characteristics consistent
with known symptoms and characteristics
of sexually abused children.
WITNESS: Yes, she did.
COURT: And for the reason that, ladies and
gentlemen, because I know I sounded very
sharp when I said that. The reason for
that is there are only twelve people in
this room that can answer that question.
Remember I told you that. Only twelve
people in the room can answer that
question. And even an expert in North
Carolina law cannot answer that question.
That's the jury province. So you didn't
do anything wrong. You know, you just,
you did fine. It's just that in North
Carolina, those twelve people decide that
A motion for a mistrial is addressed to the sound discretion
of the trial judge and is only appropriate when there are such
serious improprieties as would make it impossible for the defendant
to have a fair trial and impartial verdict under the law. Black,
328 N.C. at 200, 400 S.E.2d at 403. [A]bsent a showing of gross
abuse of that discretion, the trial court's ruling will not bedisturbed on appeal. State v. Roland, 88 N.C. App. 19, 26, 362
S.E.2d 800, 805 (1987), affirmed, 322 N.C. 469, 368 S.E.2d 385
(1988). It is well-settled that where the trial court withdraws
incompetent evidence and instructs the jury not to consider that
evidence, any prejudice is ordinarily cured. State v. Davis, 130
N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). Additionally, our
legal system through trial by jury operates on the assumption that
a jury is composed of men and women of sufficient intelligence to
comply with the court's instructions and they are presumed to have
done so. State v. Glover, 77 N.C. App. 418, 421, 335 S.E.2d 86,
88 (1985). On appeal, an appellate court presumes that juries
follow the trial court's instructions. State v. Richardson, 346
N.C. 520, 534, 488 S.E.2d 148, 156 (1997), cert. denied, 522 U.S.
1056, 139 L.Ed.2d 652 (1998).
Here, we see no abuse of the trial court's discretion. First,
no motion for a mistrial was made for the court to rule on so
defendant has argued this assignment of error must be analyzed
under the plain error rule. Second, immediately after Potter's
testimony that in her opinion BM had absolutely been sexually
abused, the trial court instructed the jury that Potter's answer
was nonresponsive to the question asked and instructed the jury to
disregard that testimony. The trial court then apologized to the
jury for sounding so sharp and explained to the jury that under
North Carolina law, only the jury could make that determination.
Given the trial court's prompt and emphatic instructions to
disregard Potter's statement, as well as the presumption that the
jury has complied with the court's instructions, we conclude thatthe trial court did not abuse its discretion or commit plain error
by not sua sponte declaring a mistrial or inquiring further of the
jury whether it could disregard the testimony.
Motion for Appropriate Relief
 On 6 March 2003, defendant filed a Motion for Appropriate
Relief (MAR) in this Court, and on 9 May 2003, defendant filed a
Motion for Summary Disposition of his Motion for Appropriate
Relief. In his MAR, defendant alleges that he was denied effective
assistance of counsel in violation of his state and federal
constitutional rights in that his trial counsel: was unprepared;
failed to seek the assistance of a medical and psychological
expert; refused to utilize the results of an extensive
investigation of a related case conducted by Assistant Public
Defender Susan Seahorn of Defender District 15B; and that had his
trial counsel employed the trial strategy suggested by Ms. Seahorn,
the jury would have acquitted defendant.
The State filed a response, indicating that, while the State
does not concede that the factual allegations contained in
defendant's MAR are true or that defendant was denied effective
assistance of counsel, it appears that it is appropriate for this
Court to remand to the superior court for an evidentiary hearing on
defendant's MAR. For the reasons explained here, we deny the
Motion for Summary Disposition and remand the MAR to the superior
court for an evidentiary hearing and ruling by that court.
G.S § 15A-1418(a) provides that a motion for appropriate
relief on grounds found in section 15A-1415 may be made in the
appellate division when a case is in the appellate division forreview. One ground found in section 15A-1415(b), the conviction
was obtained in violation of the Constitution of the United States
or the Constitution of North Carolina, includes defendant's claim
of ineffective assistance of counsel. State v. Watkins
, 89 N.C.
App. 599, 608, 366 S.E.2d 876, 881, disc. review denied
, 323 N.C.
179, 373 S.E.2d 123 (1988). G.S. § 15A-1418(b) provides:
When a motion for appropriate relief is made
in the appellate division, the appellate court
must decide whether the motion may be
determined on the basis of the materials
before it, or whether it is necessary to
remand the case to the trial division for
taking evidence or conducting other
proceedings. If the appellate court does not
remand the case for proceedings on the motion,
it may determine the motion in conjunction
with the appeal and enter its ruling on the
motion with its determination of the case.
G.S. § 15A-1418(b) (2001). Although the statute authorizes the
appellate court to initially determine a motion for appropriate
relief, State v. Jolly
, 332 N.C. 351, 420 S.E.2d 661 (1992), where
the materials before the appellate court, as in this case, are
insufficient to justify a ruling, the motion must be remanded to
the trial court for the taking of evidence and a determination of
the motion, State v. Wiggins
, 334 N.C. 18, 431 S.E.2d 755 (1993).
No error; Motion for Appropriate Relief remanded.
Judges MARTIN and STEELMAN concur.
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