An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-256

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2003

STATE OF NORTH CAROLINA    

v .                         Wake County
                            Nos. 96 CRS 97136, 37, 38, 39
JACKIE COLUMBUS NORFLEET

    Appeal by defendant from judgment entered 30 July 1997 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 12 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Belinda A. Smith, for the State.

    Ligon and Hinton, by Lemuel W. Hinton, for defendant- appellant.

    EAGLES, Chief Judge.

    Defendant Jackie Norfleet appeals from the judgment entered on a jury verdict finding him guilty of two counts of statutory rape and two counts of taking indecent liberties with a minor. On appeal, defendant asserts that the trial court erred: (1) by failing to strike testimony regarding defendant's prior conviction; (2) by allowing the admission of a portion of the State's expert testimony; (3) by allowing the admission of testimony by the State's rebuttal witness; (4) by allowing the State's witnesses totestify about the victim's truthfulness; and (5) that defendant received ineffective assistance of counsel. After careful consideration of the record and briefs, we find no prejudicial error.
    The evidence tends to show the following: Defendant and C.L.N. (“victim”) met in September 1996. Victim was thirteen years old at the time. Defendant was thirty-three. Victim first began talking to defendant when she saw him walking down her street on his way home from work. On 17 September 1996, victim rode her bike to defendant's home. Victim watched television with defendant's stepchildren and played with his pets. Victim testified that defendant kissed her after she walked into his kitchen. Defendant asked victim to be his girlfriend. No one else witnessed this kiss or heard the conversation between them.
    Victim returned to defendant's home the following day. On the 18th of September, defendant's stepchildren and wife were not in the house. Victim testified that she and defendant had vaginal intercourse in his bedroom. Over the next two weeks, victim and defendant had vaginal intercourse on at least two more occasions. Defendant also performed oral sex on victim during one encounter. Victim was unable to recall the exact dates she had sexual contact with defendant, except for the 18th of September. Victim and her mother testified that victim circled 18 September 1996 on hercalendar and that the circling indicated the date victim had her first sexual experience.
    The State presented substantial testimony regarding the victim's sexual relationship with defendant from several of victim's classmates, friends and family. In addition, a clinical social worker, Stephanie Rodelander, testified about victim's treatment and therapy. Rodelander opined that victim did not have difficulty distinguishing between fantasy and reality.
    Defendant presented his wife's testimony in his defense. Mrs. Norfleet testified that defendant had large genitalia. Mrs. Norfleet stated that the size of defendant's genitalia would have prevented victim from being able to have intercourse with defendant without victim sustaining vaginal tears or other physical symptoms. On cross-examination, Mrs. Norfleet stated that she told victim's parents to keep victim away from the Norfleet home during a telephone conversation with them. In addition, one of defendant's former girlfriends, Latricia Barrett, testified that she had suffered physical injuries after engaging in intercourse with defendant because of his unusually large penis.
    The State offered the testimony of Robin Battle as a rebuttal witness. Ms. Battle testified that defendant had sexual intercourse with her approximately fifteen years before the date ofhis trial. Ms. Battle testified that she would not describe defendant's penis as unusually large.
    The jury returned a guilty verdict on two counts of statutory rape and two counts of taking indecent liberties with a minor. Defendant was sentenced to imprisonment for a term of a minimum of 339 months and a maximum of 416 months. Defendant appeals.
    Defendant first assigns error to the trial court's failure to strike testimony regarding defendant's prior conviction for driving while impaired (DWI). The testimony occurred during the direct examination of Sonja Hancock by the State:
    Q: Okay. Is that all that she ever told you about him, or did she ever tell you anything more?

    A: Later on she told me more stuff about him.

    Q: What?

    A: That he, he was charged with DWI.

    Q: No --

        MS. BADDOUR: Sorry.

        COURT: Don't --

        MS. BADDOUR: Move to strike.

        COURT: Be more specific with your question.
Defendant argues that the trial court's failure to strike the testimony or instruct the jury on its duty to disregard this testimony requires a new trial for defendant. Defendant had notput his character at issue by testifying. Defendant contends that the trial court erred by permitting testimony about a prior crime to be admitted into evidence against defendant.
    Defense counsel failed to object to this alleged error and therefore has not properly preserved this issue for appellate review. See N.C. R. App. P. 10(b)(1). In order to find that the error should qualify defendant for a new trial, this Court must find that the admission of the testimony about defendant's DWI conviction was plain error. “Plain error analysis is applied when our review of the entire record reveals that the alleged error is a fundamental error so prejudicial that justice cannot have been done.” State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602 (2003)(citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). Here, defendant failed to show that “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.” State v. Steen, 352 N.C. 227, 255, 536 S.E.2d 1, 18 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001)(quoting State v. Odom, 307 N.C. at 660, 300 S.E.2d at 378). Ms. Baddour for the State asked the question that elicited the disputed testimony. Ms. Baddour immediately moved to strike the witness's answer. Defendant has not demonstrated that the jury would have acquitted defendant of the statutory rape and indecentliberties charges if the DWI evidence had not been presented. Accordingly, we overrule this assignment of error.
    Defendant next assigns error to the admission of testimony of a clinical social worker. Stephanie Rodelander testified for the State as follows on direct examination:
    Q: Ms. Rodelander, any assessments and therapy that you've provided to [victim], have you had any concerns about her ability to distinguish between fantasy and reality?

    A: I never have. As I was listening to Sonja and she said she doesn't lie -- [victim] really is very direct and very honest about things. Now she may not tell you some things and that's, you know, within her ability, but the way I usually can tell whether kids are truthful or not is, you know, they tell you certain things and you talk with their parents or you talk with other people that are involved with them and the stories all jive, and that's kind of the way it's always been with [victim]. I've never had any reason -- there are some kids I deal with, you know, I don't know from one time to the next if they're telling me the truth, but she's never been like that. I've always seen her as being honest and straightforward, and sometimes I think that probably gets her into trouble, you know, because she doesn't always think about what she says ahead of time and -- but I've never had any question about her being able to distinguish from fantasy or being untruthful.

Defendant contends that Ms. Rodelander's testimony amounted to an expert opinion that victim was telling the truth. An expert witness cannot offer an opinion on the credibility of another witness. See G.S. § 8C-1, Rule 405(a). The credibility of the witnesses should be determined by the jury. See State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001); State v. Parker, 350N.C. 411, 432, 516 S.E.2d 106, 121 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000).
    Defendant argues that State v. Hannon controls our review of this issue. See State v. Hannon, 118 N.C. App. 448, 455 S.E.2d 494 (1995). In Hannon, defendant was charged with a sexual offense against a child. The child's school principal testified in response to a question about the victim's truthfulness that the principal found the victim to be truthful. The principal continued her testimony by comparing the child's behavior when she was not truthful as opposed to the behavior when the child told the truth. The defendant in Hannon did not object to the admission of the testimony regarding the behavioral changes in the victim when she told a lie. This Court stated that the Hannon principal was attempting to tell the jury that the victim in that case was telling the truth when she made accusations against the defendant. This Court found that “the admission of such an opinion is plain error when the State's case depends largely on the prosecuting witness's credibility.” Hannon, 118 N.C. App. at 451, 455 S.E.2d at 496.
    Here, the expert witness was not asked her opinion on the victim's character for truthfulness. Instead, the State asked the expert whether victim was able to distinguish between fantasy and reality. The response by Ms. Rodelander, although it containedreferences to honesty and truth, did not constitute an expert opinion that victim was credible. Like the Hannon case, defendant here did not object to the admission of this testimony. In addition, several other witnesses for the State gave their opinion that victim was a credible, truthful person after victim's credibility had been attacked. Viewing all of the evidence under a plain error standard, we conclude that despite the State's reliance on the victim's credibility as a witness, the admission of this testimony by the expert witness did not change the outcome of defendant's trial. Since no plain error occurred, this assignment of error is overruled.
    Defendant contends in his third argument that the trial court erred in allowing the State to offer testimony presented by Robin Battle. Ms. Battle had been the victim of a previous sexual assault by defendant in 1982, for which defendant had served an active sentence of imprisonment. The State argues that Ms. Battle's testimony was introduced because defendant had opened the door to evidence regarding the size of his penis. Defendant contends that the testimony actually presented was not consistent with the State's proffer and should have been excluded because it improperly referred to the earlier sexual assault.
    Ms. Battle testified that she became a sexual partner of defendant's when “he grabbed [her], pulled [her] to some bushes.” Defendant engaged in anal and vaginal intercourse with Ms. Battle. Ms. Battle testified that she had received injuries to her vaginal area as a result of the sexual activity with defendant, but stated that her experience with defendant was not an “encounter [with] a man with a very large penis.” Ms. Battle did not remember anything unusual about the size of defendant's genitalia. Defendant argues that Ms. Battle's testimony about the circumstances of her sexual encounter revealed to the jury that she did not consent to have intercourse with defendant in spite of the trial court's limitation. Defendant contends that the admission of this testimony requires that he receive a new trial. We disagree.
    Rule 404(b) generally permits the admission of evidence of other offenses “so long as it is relevant to any fact or issue other than the character of the accused.” State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986). Here, defendant put the size of his penis at issue. Defendant's wife and a former girlfriend testified separately that defendant's penis was exceptionally large. Defendant's wife testified that defendant could not have had intercourse with victim without causing physical injuries. In effect, defendant had offered the size of his genitalia as a defense against the crime charged. Therefore, Ms. Battle's rebuttal testimony that she had been a sexual partner ofdefendant and that she did not consider defendant to have a very large penis was relevant.
    Defendant has waived his ability to appeal the admission of Ms. Battle's testimony regarding the circumstances of her sexual encounter with defendant. After an initial general objection to Ms. Battle's testimony on the basis that it was “prejudicial,” defense counsel agreed that Ms. Battle could testify as long as Ms. Battle did not mention her lack of consent to have sex with defendant. The interaction between defense counsel and the trial court on this issue is recorded in the transcript as follows:
    MR. HUGHES: I certainly think that the prejudicial value . . . far outweigh[s] any probative value we can obtain from her testifying.

    . . . .

    COURT: All right. The jury is absent. The Court finds that, based upon the testimony of Latricia Barrett . . . that raises the issue of whether or not the alleged victim in this case could have engaged in sexual intercourse with this defendant without having some evidence of trauma present.

        This is an issue that the evidence raises, and the Court will allow some limited testimony from Robin Battle with regard to the sexual encounter she had with the defendant and whether or not it caused her physical injury, and any observations about his male organ, but I limit it to that only. Ask the jury to come in. The defendant's objection is noted for the record.

    MR. HUGHES: Thank you, Your Honor.
Defense counsel did not object with specificity to any part of Ms. Battle's testimony, even though counsel now argues that the testimony exceeded the limitations placed by the trial court. We find this argument unpersuasive. Defense counsel had been alerted to the limitations the court placed upon Ms. Battle's testimony. However, defense counsel failed to object so as to allow the trial court to rule upon the admission of any supposedly inappropriate testimony. The party complaining about the error on appeal has the duty to object in order to correct any errors within the trial. See State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996); State v. Rorie, 258 N.C. 162, 128 S.E.2d 229 (1962). To preserve this question for appellate review, defendant “must have presented to the trial court a timely request, objection or motion” based upon specific grounds for the requested ruling. N.C. R. App. P. 10(b)(1). “Failure to object in apt time to [inappropriate] testimony results in a waiver of objection so that admission of the evidence will not be reviewed on appeal . . . .” State v. Blackwell, 276 N.C. 714, 720, 174 S.E.2d 534, 538, cert. denied, 400 U.S. 946, 27 L. Ed. 2d 252 (1970).
    Although no objection was made during the trial, this Court may review the issue on appeal for plain error. N.C. R. App. P. 10(c)(4). However, even if this assignment of error is examinedfor plain error, no plain error exists. There is substantial and totally unrelated evidence from which the jury could have formed its verdict. See State v. Demery, 113 N.C. App. 58, 437 S.E.2d 704 (1993). The absence of Ms. Battle's testimony would not have insured that the outcome of defendant's trial would have differed. Therefore this assignment of error is overruled.
    Defendant also assigns error to the admission of evidence of victim's reputation for truthfulness. Rule 608(a) states:
        The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

G.S. § 8C-1, Rule 608(a). The State presented Crystal Stout, Mendy Merritt, Bill Hayes and Sonja Hancock as witnesses. Each of these witnesses was questioned about their relationships with victim and her reputation for truthfulness. Defendant argues that the victim's character for truthfulness had never been attacked in a manner that would allow the State to bolster victim's credibility through the use of reputation evidence. We disagree.
    Here, victim was the first witness to testify. During direct examination, victim detailed her account of her relationship withdefendant. On cross-examination, defense counsel asked victim: “Isn't it a fact that [defendant] never had sex with you?” Defense counsel continued to question victim's veracity regarding her reports to the police officers about her interaction with defendant. After the cross-examination of victim, the State called its remaining witnesses. Their testimony about victim's reputation for truthfulness followed an attack on victim's credibility that falls within the contemplation of Rule 608(a). Accordingly, we find no error in the admission of this testimony.
    Defendant argues in his final assignment of error that he did not receive effective assistance of counsel according to the Sixth Amendment of the United States Constitution during his trial. In order to receive a new trial based on the ineffective assistance of counsel, defendant must show that (1) his counsel's performance was deficient, and (2) defendant was prejudiced and deprived of a fair trial because of his counsel's ineffectiveness. See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984); State v. Montford, 137 N.C. App. 495, 529 S.E.2d 247, cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000).
    Defendant contends that trial defense counsel's failure to object to the character evidence admitted in the first four assignments of error constituted deficient performance. Defendant contends that defense counsel should have objected to the admissionof the DWI evidence, Rodelander's testimony, Battle's testimony, and the opinions given regarding victim's truthfulness. However, defendant has not shown a “reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different . . . .” State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985). Without some indication that the outcome of the trial was affected by defense counsel's inaction, we cannot hold that defendant was denied the effective assistance of counsel. Defendant's final assignment of error has no merit.
    For the reasons stated above, we conclude that defendant received a fair trial free from prejudicial error.
    No error.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***