Appeal by defendant from judgments dated 2 October 2001 by
Judge Thomas D. Haigwood in Catawba County Superior Court. Heard
in the Court of Appeals 12 May 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Sarah Ann Lannom, for the State.
Paul Pooley for defendant appellant.
BRYANT, Judge.
Donald Lutz (defendant) appeals from judgments dated 2 October
2001 entered consistent with jury verdicts finding him guilty of:
(1) first-degree sexual offense and taking indecent liberties with
a child alleged to have occurred in February 2000, (2) first-degree
sexual offense and taking indecent liberties with a child alleged
to have occurred in June 2000, (3) first-degree rape, first-degree
sexual offense, and taking indecent liberties with a child alleged
to have occurred on 5 July 2000, and (4) taking indecent liberties
with a child alleged to have occurred on 9 July 2000.
Through the minor victim's testimony, the evidence tends to
show that in February 2000 defendant forced the minor victim atknife-point to perform oral sex on him. On 9 July 2000, these
events were repeated. Prior to that, on 5 July 2000, defendant
forced the minor victim to perform oral sex on him and later raped
the minor victim at knife-point in the bedroom of his house. The
minor victim also testified on direct examination that two weeks
before 9 July 2000, defendant had again forced her to perform oral
sex on him. On cross-examination, the minor victim at one point
indicated that an incident of sexual abuse occurred in June 2000.
Later, during cross-examination, the victim denied testifying that
anything had happened in June 2000, stating she did not remember
the question. However, the State offered testimony from the
investigating police officer, Officer Baer, who corroborated that
the minor victim told him defendant had forced her to perform oral
sex on him two weeks prior to 9 July 2000.
The State also presented expert testimony from Kimberly Ollis.
Ollis testified that she was a family therapist with Counseling
Services of Catawba County and had been employed for a little over
a year. She received her undergraduate degree from Appalachian
State University and a Master's degree in agency counseling from
Lenoir-Rhyne College. During her graduate studies, she had taken
semester-long classes in marriage and family therapy, group
therapy, assessment and diagnosis of mental disorders, and research
and methodology, all of which included training related to sexual
abuse counseling. Ollis had also received specialized training in
child sexual abuse counseling by participating in several workshops
and co-facilitated a group workshop for survivors of child sexualabuse. Ollis had taken and passed the National Counselors Exam and
was “board eligible” to receive her license from the State. Ollis
regularly received publications that included articles about child
sexual abuse. Her current caseload was approximately forty-five
cases, including thirteen in which the diagnosis was sexual abuse.
Based on this testimony, Ollis was tendered by the State, and
received by the trial court, as an expert in the field of
counseling and child sexual abuse. Ollis testified that some of
the characteristics exhibited by a sexually abused child included
“intense fear of another certain person or a certain place, sleep
disturbances, behavioral problems usually at school and at home,
depression and anxiety sometimes leading to suicidal ideation,
suicidal gestures, hostility, aggression towards peers and family,
[and] age-inappropriate knowledge of sexual nature and content.”
Ollis then stated that in her opinion the minor victim exhibited
characteristics consistent with those of a sexually abused child.
_______________________________
The issues are whether: (I) the use of short-form indictments
was constitutional; (II) there was sufficient evidence of acts of
sexual abuse occurring in June 2000; and (III) the trial court
erred in allowing Ollis to testify that the minor victim exhibited
characteristics consistent with those of a sexually abused child.
I
Defendant argues that the use of short-form indictments
charging statutory rape and sex offenses in this case violated his
constitutional rights under both the state and federalconstitutions. He raises these arguments to preserve them for
later review and acknowledges the use of short-form indictments has
been held to be constitutional.
See State v. Braxton, 352 N.C.
158, 174, 531 S.E.2d 428, 437-38 (2000);
State v. Wallace, 351 N.C.
481, 503-06, 528 S.E.2d 326, 340-43 (2000). As our Supreme Court
has addressed these issues, we are prohibited from overruling or
ignoring that precedent.
See State v. Parker, 140 N.C. App. 169,
172, 539 S.E.2d 656, 659 (2000). Accordingly, this assignment of
error is overruled.
II
Defendant also argues there was insufficient evidence to
convict him of the charges of first-degree sexual offense and
indecent liberties alleged to have occurred in June 2000. He
contends that because the minor victim, on cross-examination,
denied that any offense had taken place in June 2000, these charges
should have been dismissed.
A motion to dismiss should be denied if “there is substantial
evidence (1) of each essential element of the offense charged and
(2) that defendant is the perpetrator of the offense.”
State v.
Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial
evidence is that relevant evidence which a reasonable mind would
find sufficient to support a conclusion.”
State v. Carr, 122 N.C.
App. 369, 372, 470 S.E.2d 70, 72 (1996). In determining whether
there is evidence sufficient for a case to go to the jury, the
trial court must consider the evidence, both direct and
circumstantial, in the light most favorable to the State, givingthe State the benefit of every reasonable inference drawn
therefrom.
Id. Contradictions and discrepancies are for the jury
to resolve and do not warrant dismissal; and all the evidence
actually admitted, whether competent or incompetent, which is
favorable to the State, is to be considered by the court in ruling
on the motion.
State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d
649, 653 (1982);
see also State v. Campbell, 316 N.C. 168, 172-73,
340 S.E.2d 474, 477 (1986) (rule requiring trial court to disregard
contradictions and discrepancies in the State's evidence when
ruling on a motion to dismiss extends to contradictions and
discrepancies within a witness's testimony).
In this case, the minor victim testified that the defendant
committed the offenses two weeks before 9 July 2000. Her testimony
was corroborated by the statement she had given to the
investigating officer. This evidence leads to a reasonable
inference that in June 2000, defendant did commit the offenses
charged. This is sufficient evidence to allow the charges of
first-degree sexual offense and taking indecent liberties with a
minor to reach the jury: the minor victim's apparent contradiction
in her testimony notwithstanding.
See State v. Newman, 308 N.C.
231, 236-37, 302 S.E.2d 174, 179 (1983) (a trial court could
disregard any contradictions in testimony of a prosecuting witness
on motion to dismiss, even if evidence is not corroborated). Thus,
the trial court did not err in denying defendant's motion to
dismiss.
III
Defendant finally argues the trial court erred in allowing
Ollis to testify that in her expert opinion the minor victim
exhibited characteristics consistent with those of a sexually
abused child.
A
Defendant asserts the trial court erred in allowing Ollis'
expert testimony without a showing as to the reliability of the
proposed expert testimony. Before expert testimony, scientific or
otherwise, is admitted into evidence by a trial court, a sufficient
foundation must be established to show that the expert testimony is
reliable.
See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149, 143
L. Ed. 2d 238, 251 (1999);
State v. Berry, 143 N.C. App. 187, 202-
03, 546 S.E.2d 145, 156 (2001). The trial court is to be given
flexibility in what factors to consider when determining the
reliability of expert testimony.
See State v. Davis, 142 N.C. App.
81, 89-90, 542 S.E.2d 236, 241 (2001). Absent new evidence, a
trial court need not redetermine in every case the reliability of
a particular field of knowledge that is consistently accepted as
reliable by our Courts.
Taylor v. Abernethy, 149 N.C. App. 263,
274, 560 S.E.2d 233, 240 (2002). “[W]ithout discretionary
authority trial courts would be unable to avoid 'reliability
proceedings in ordinary cases where the reliability of an expert's
methods is properly taken for granted, and to require appropriate
proceedings in the less usual or more complex cases where cause for
questioning the expert's reliability arises.'”
Davis, 142 N.C.
App. at 90, 542 S.E.2d at 241 (quoting
Kumho Tires Co., 526 U.S. at152, 143 L. Ed. 2d at 253). Accordingly, we review the trial
court's decision to admit expert testimony for abuse of discretion.
See id.
In this case, the State presented evidence of Ollis'
educational background in counseling and courses related to sexual
abuse in addition to her professional experience in counseling
victims of sexual abuse. Further, North Carolina courts have
consistently recognized the admissibility of expert testimony
regarding the characteristics of sexually abused children.
See
State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002);
State v. Hall, 330 N.C. 808, 817, 412 S.E.2d 883, 887 (1992);
State
v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 366 (1987);
State v.
Grover, 142 N.C. App. 411, 419, 543 S.E.2d 179, 184,
aff'd, 354
N.C. 354, 553 S.E.2d 679 (2001) (per curiam).
Thus, the trial
court did not abuse its discretion in admitting Ollis' expert
testimony.
B
Defendant also contends admission of Ollis' testimony that the
minor victim exhibited characteristics of a sexually abused child
was improper expert testimony on the credibility of the minor
victim. Our Courts have repeatedly held that an expert witness may
be permitted to testify to the characteristics of sexually abused
children and that the victim of alleged sexual abuse exhibits those
characteristics as this is not evidence of the victim's
credibility.
See Stancil, 355 N.C. at 267, 559 S.E.2d at 789;
Hall, 330 N.C. at 818, 412 S.E.2d at 888;
Kennedy, 320 N.C. at 32,357 S.E.2d at 366;
Grover, 142 N.C. App. at 419, 543 S.E.2d at 184.
Accordingly, defendant's argument is without merit.
No error.
Chief Judge EAGLES and Judge LEVINSON concur.
Report per Rule 30(e).
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