State v Morrison, 156 NC App 217 (02-57) 02/04/2003

Appeal by defendant from judgment entered 9 March 2001 by Judge Jack A. Thompson in Cumberland County Superior Court. Heard in the Court of Appeals 9 October 2002.

Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

James R. Parish for defendant appellant.

McCULLOUGH, Judge.

    Defendant Billy Ray Morrison was tried before a jury at the 29 January 2001 Mixed Session of Cumberland County Superior Court. On 31 January 2000, defendant was indicted on one count of first- degree statutory rape, one count of taking indecent liberties with a child, and one count of felonious child abuse in case number 00 CRS 949, and on one count of first-degree sexual offense, one count of taking indecent liberties with a child, and one count of felonious child abuse in case number 00 CRS 950. Each case noted that the date of offense was from 1 August 1992 through 1 August 1995.
    Defendant was born on 25 February 1961, and would have been in his early 30's at the time of the alleged acts. The victim was bornon 14 August 1985. She was in the third-grade and about 7 or 8 years old at the time of the alleged acts.
    The victim testified that her parents live apart. Her mother lives in Fayetteville, N.C., and her father lives in Athens, Georgia. She stays with one parent for a year and then switches to the other. She stayed with her father while her mother, who is in the military, was stationed in Germany. Upon her return, the victim began living with the mother again. This is when she was about 7 or 8. It was here that she lived with defendant, who is her stepfather. The victim testified that defendant would touch her private parts (vagina) in several ways. He would digitally penetrate her, put his tongue inside her vagina, and he would penetrate her vagina with his penis. According to the victim's testimony, defendant did this often. The victim testified that defendant also penetrated her anus with his penis. In addition, defendant once attempted to put his penis in the victim's mouth, but she refused.
    Defendant would do these things to the victim while inside their house, in several different rooms and in varying times of the day. The victim's mother was usually either asleep or at work. The victim testified that she cried each time that he did things to her and that it hurt her. She would also plead with defendant to stop. This went on for about two years.
    Defendant apparently threatened the victim that he would turn her and her mother out of the house, in addition to hurting them. However, her brother saw defendant on top of her one day and toldthe school counselor. The counselor came to the victim's class and spoke to her alone. It was then that the victim spoke of defendant's alleged depravity. Her mother was informed, and they all moved out of the house they shared with defendant.
    Testimony at trial also revealed that an uncle of the victim had allegedly raped her when she was five years old. Also, when she was eight years old, the victim had a consensual sexual encounter with a 12-year-old boy.
    A developmental and forensic pediatrician testified that she interviewed and examined the victim on 22 June 1998. She also interviewed the social services worker and the mother of the victim. Her physical examination revealed two well-healed tears in the victim's hymen, and no anal trauma. She testified that her findings were consistent with “penetrating vaginal injury.” It was also her opinion that the interviews and physical examination were consistent with a child that had been sexually abused.
    After the trial court dismissed the two felony child abuse counts (00 CRS 949 & 950) subsequent to the State's case-in-chief, the jury found defendant guilty of two counts of taking indecent liberties (00 CRS 949 & 950), and the one count of first-degree sexual offense (00 CRS 950). The jury notified the trial court that it was hopelessly deadlocked on the count of first-degree statutory rape (00 CRS 949), and a mistrial was declared as to that charge. Defendant was sentenced to a minimum of 230 months and a maximum of 285 months.    Defendant makes the following assignments of error: The trial court (I) erred in denying defendant's challenge for cause a juror who had a long term, close knowledge of and relationship with the State's expert witness; (II) erred in overruling defendant's objections to Dr. Cooper's testimony; (III) erred in failing to instruct the jury they could consider the presence of evidence or lack thereof in deciding whether the State had carried its burden of proof beyond a reasonable doubt, as requested by defendant after the State's closing argument and the trial court's overruling of the objection; (IV) erred in failing to arrest judgment for one of the convictions for taking indecent liberties with a minor because to allow both convictions, judgments and sentences to stand violates the prohibition against Double Jeopardy; and (V) erred in failing to dismiss due to the insufficiency of the evidence the charges of indecent liberties with a minor.

    Defendant's first assignment of error contends that the trial court erred in denying his challenge for cause to a juror who had a relationship with the State's expert witness. We note that defendant complied with the requirements of N.C. Gen. Stat. § 15A- 1214(h) (2001).
    During jury selection, it came to the attention of defendant that a juror on the panel was very familiar with Dr. Sharon Cooper, the State's expert witness, as she had known her for 24 years. Apparently, the juror had known the expert since the expert was a medical student while the juror was a teaching assistant at themedical school. They belonged to the same sorority and had kept in loose contact over the years. The juror's husband was the expert's colleague as well. The juror had also worked in a Rape Crisis Center. According to defendant, the juror's initial answers as to her ability to be fair and impartial were equivocal. Defendant thus argues that her ability to serve on the jury was so called into question that it was an abuse of discretion to deny her motion for cause.
    “Both the defendant and the State are entitled to fair and unbiased jury.” State v. Lee, 292 N.C. 617, 621, 234 S.E.2d 574, 577 (1977). The granting of a challenge for cause rests in the sound discretion of the trial court and will not be disturbed absent a showing of abuse of that discretion. State v. Gell, 351 N.C. 192, 203, 524 S.E.2d 332, 340, cert. denied, 531 U.S. 867, 148 L. Ed. 2d 110 (2000). As to this standard,
        An “abuse of discretion” occurs where the trial judge's determination is “'manifestly unsupported by reason'” and is “'so arbitrary that it could not have been the result of a reasoned decision.'” With regard to a challenge for cause and the trial court's ruling thereon, “the question is not whether a reviewing court might disagree with the trial court's findings, but whether those findings are fairly supported by the record.”

State v. Reed, 355 N.C. 150, 155, 558 S.E.2d 167, 171 (2002) (citations omitted).
    After reviewing the transcript, we feel that it was not an abuse of discretion for the trial court to deny defendant's motions. The juror answered numerous questions concerning herability to treat the expert's testimony and the rest of the evidence fairly. Her answers were unequivocal as to whether or not she would find the expert more believable or credible than other witnesses, and whether or not her experiences at the Rape Crisis Center would affect her impartiality. The trial court found that the juror appeared to be “very articulate,” and had answered the questions so as to assuage the court's fears of partiality. The trial court's findings are “fairly supported by the record,” and this assignment of error is overruled.

    Defendant next contends that the trial court erred by allowing the State's expert witness to testify as to her conclusions, as she was in no better position than the jury to make certain determinations.
    Dr. Sharon Cooper was tendered as a developmental and forensic pediatrician. Dr. Cooper testified that she had received the victim's history through her interviews of a social services caseworker and the victim's mother. Each of the interviews lasted approximately 30 minutes. Next, Dr. Cooper interviewed the victim for 30 minutes, during which the victim informed the doctor of facts consistent with her testimony at trial. Following this interview, a physical examination of the victim by Dr. Cooper took place. This examination revealed two well-healed tears in the hymen (vaginal tissue) and no evidence of anal trauma. The rest of the examination was normal. Based on this examination, Dr. Cooper testified that “[t]hose physical findings are consistent with apenetrating vaginal injury.” Finally, Dr. Cooper testified, based upon all the interviews and the physical examination, that the victim had a history “consistent with that of a child who has been sexually abused.”
    Our Supreme Court recently held that:
            In 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. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987); State v. Grover, 142 N.C. App. 411, 543 S.E.2d 179, aff'd per curiam, 354 N.C. 354, 553 S.E.2d 679 (2001). However, an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith. State v. Hall, 330 N.C. 808, 818, 412 S.E.2d 883, 888 (1992); State v. Aguallo, 322 N.C. 818, 822-23, 370 S.E.2d 676, 678 (1988); State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 366 (1987).

State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002).
    Applying the principles set forth in Stancil, we hold that the testimony in the present case was permissible. Dr. Cooper's testimony as to “penetrating vaginal injury” does not go so far as to say that sexual abuse occurred. While sexual abuse can entail “penetrating vaginal injury,” the terms cannot be used interchangeably. This statement by the expert was also consistent with the other testimony at trial, specifically that the victim had sexual encounters with people other than defendant. Further, we note that the issue in this case was not whether or not sexualabuse had occurred, but rather if defendant had committed any of the sexual acts. This is bolstered by the fact that defendant admitted that there was “all kinds of sexual abuse.” Therefore, we fail to see any possible undue prejudice from this testimony.
    As to the doctor's testimony that the victim's history was “consistent with that of a child who has been sexually abused,” there was adequate foundation on the record for this comparison. Thus, this statement is clearly permissible under Stancil.

    Defendant's next assignment of error contends that the trial court failed to properly instruct the jury as to the evidence it could consider during its deliberation.
    In its closing argument, the State told the jury the following:
        [ASSISTANT D.A.]: The state has the burden of proof. The state has to prove to you by the witnesses it put on the stand and the evidence put before you, the evidence you heard, not the things you didn't hear. Because if you didn't hear it, it's not evidence.

        DEFENSE COUNSEL: Objection.

        THE COURT: The objection is overruled.

        [ASSISTANT D.A.]: Beyond the reasonable doubt is the burden. The defendant has no burden to prove anything. The burden is on the State of North Carolina to prove beyond a reasonable doubt.

    The trial court instructed the jury after the closing arguments. As to reasonable doubt, the trial court stated:
            The defendant has entered a plea of not guilty. The fact that he has been charged isNO evidence of guilt. Under our system of justice, when a defendant pleads not guilty he is not required to prove his innocence. He is presumed to be innocent. The state must prove to you that the defendant is guilty beyond a reasonable doubt.

            A reasonable doubt is a doubt based on reason and common sense arising out of some or all of the evidence that has been presented, or lack or sufficiency of the evidence, as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant's guilt.

See N.C.P.I.--Crim. 101.10 (1974). The trial court gave the jurors a written copy of the instructions.
    After the trial court had completed instructing the jury but prior to the jury retiring, defendant requested the trial court to instruct the jury that in evaluating the burden of proof and reasonable doubt, they could consider not only the testimony they heard from the stand but the lack or insufficiency of evidence. This was denied.
    Defendant argues that the jury was left with the incorrect impression from the above statement of the State that they could not consider the lack or insufficiency of evidence when determining reasonable doubt. See State v. Hammonds, 241 N.C. 226, 231-33, 85 S.E.2d 133, 138-39 (1954). Defendant had relied on weaknesses in the State's case rather than presenting evidence, and argues on appeal that the trial court allowed a misconception of the law to undermine his strategy.
    We agree with the State that defendant misinterpreted its statements made in closing argument. It appears from the contextthat the State was informing the jury that it must hold the State to its burden and to avoid the temptation to “fill in the gaps.” The trial court's instructions and the State's closing both informed the jury that defendant was not required to prove anything and the State had the burden of proof. The jury was properly instructed by the trial court. “[N]eedless repetition [of jury instructions] is undesirable and has been held erroneous on occasion.” State v. Prevette, 317 N.C. 148, 164, 345 S.E.2d 159, 169 (1986) (quoting State v. Dawson, 278 N.C. 351, 365, 180 S.E.2d 140, 149 (1971)). It was not an abuse of discretion for the trial court to refuse to reinstruct the jury.
    We note that a mistrial was declared on the charge of first- degree statutory rape because the jury was deadlocked. It would appear from this that the jury understood its duty as to the evidence. We therefore overrule this assignment of error.

    Defendant's next assignment of error pertains to his indictments of taking indecent liberties with a minor in violation of N.C. Gen. Stat. § 14-202.1(a)(1) (2001). Defendant contends that his convictions violate the prohibition against double jeopardy and that judgment in one of the convictions should be arrested.
    Both the indictment in 00 CRS 949 and 00 CRS 950 read:
            AND THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that between and including the dates of August 1, 1992 and August 1, 1995 in [Cumberland County] the defendant . . . unlawfully, willfully and feloniously did takeand attempt to take immoral, improper, and indecent liberties with [the victim], who was under the age of sixteen (16) years at the time, for the purpose of arousing and gratifying sexual desire. At the time, the defendant was over sixteen (16) years of age and at least five (5) years older than that child. This act was in violation of North Carolina General Statutes Section 14- 202.1(a)(1).

    Defendant argues that neither indictment alleges a factual basis to distinguish one indictment from the other. The victim is identical and the dates are identical, therefore there is nothing to differentiate one from the other. The trial court gave identical instructions to the jury on both charges.
    “In order to sustain a conviction, an indictment needs 'to give defendant sufficient notice of the charge against him, to enable him to prepare his defense, and to raise the bar of double jeopardy in the event he is again brought to trial for the same offense.'” State v. Hutchings, 139 N.C. App. 184, 190, 533 S.E.2d 258, 261 (quoting State v. Ingram, 20 N.C. App. 464, 466, 201 S.E.2d 532, 534 (1974), disc. review denied, 353 N.C. 273, 546 S.E.2d 381 (2000)).
    This Court has previously held in State v. Miller, 137 N.C. App. 450, 528 S.E.2d 626 (2000) that convictions of taking indecent liberties with a minor were properly based upon indictments and verdicts which failed to “specif[y] the acts which constituted the indecent liberties for which he was convicted.” Id. at 457, 528 S.E.2d at 630. The defendant in Miller argued that the indictments were “insufficient to give him notice of the charges against him orto protect him against further prosecution for the same offenses.” Id. This Court stated:
            In State v. Blackmon, 130 N.C. App. 692, 507 S.E.2d 42, cert. denied, 349 N.C. 531, 526 S.E.2d 470 (1998), this Court held that an indictment which charges a statutory offense, such as taking indecent liberties with a minor in violation of G.S. § 14-202.1, by using the language of the statute is sufficient, and need not allege the evidentiary basis for the charge. The indictment need not allege specifically “which of defendant's acts constituted the 'immoral, improper and indecent liberty.'” Id. at 699, 507 S.E.2d at 47 (quoting State v. Singleton, 85 N.C. App. 123, 126, 354 S.E.2d 259, 262 (1987)). Use of the statutory language is also sufficient to satisfy constitutional requirements against double jeopardy. State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987) (use of short form indictment to charge first degree sexual offense sufficient to satisfy constitutional guarantees against double jeopardy).

Miller, 137 N.C. App. at 457, 528 S.E.2d at 630. The indictments in the present case track N.C. Gen. Stat. § 14-202.1.
    We note that defendant did not avail himself of a motion for a bill of particulars. Furthermore, defendant was granted a clarification as to specific acts involved in the sexual offense charge, but made no similar request for the indecent liberties charges. Therefore, this assignment of error is overruled.