An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-648


Filed: 17 June 2003


    v .                             Catawba County
                                Nos. 00 CRS 012602-05

    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.

    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.

    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.
    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.

    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.

    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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