An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1176


Filed: 19 August 2003


v .                         Swain County
                            Nos. 01 CRS 522-4
DONALD THOMAS FULLER,                01 CRS 526-8
        Defendant.                01 CRS 1348-9

    Appeal by defendant from judgments entered 8 March 2002 and 1 April 2002 by Judge James U. Downs in Swain County Superior Court. Heard in the Court of Appeals 4 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Sarah Ann Lannom, for the State.

    J. Clark Fischer, for defendant-appellant.

    HUDSON, Judge.
    Defendant Donald Thomas Fuller was convicted of eight counts of first-degree statutory rape. He appeals, contending (1) that the trial court erred in permitting a doctor to testify that one of the victims had been sexually abused and (2) that the trial court erred by allowing the State to present evidence of defendant's unrelated violent conduct that amounted to inadmissible bad character evidence. For the reasons set forth below, we find no error.


    The State's evidence presented at trial tended to show the following:
    One victim, defendant's daughter Melinda, who was seventeenyears old at the time of trial, testified that when she was five or six years old, defendant began to touch her in a way that made her feel uncomfortable. At that time Melinda and her older sister Amanda lived with defendant; Melinda's mother did not live with them. The first time that defendant touched Melinda, he called her into the bedroom when her sister was not home. Defendant touched Melinda's vagina and told her that he would tell her grandma about it and that it would be her fault. Melinda remembered wearing a pink shirt with a cat on it, blue jeans, and Barbie tennis shoes on the date of the incident.
    In June 1994, defendant was dating Sharon Porter, who had a daughter Amy. One day while Sharon was at the store, defendant forced Melinda and Amy into the shower, where he had intercourse with each girl. On another day that same month, defendant called Melinda, Amanda, Sharon, and Amy into the bedroom and told them to take off their clothes and lie on the bed. Defendant had sex with each of them. On another occasion in May 1995, when Melinda went to get defendant's dirty clothes from the bedroom, defendant had her lie down the bed and take off her clothes, and he forced her to have intercourse with him. Defendant told her that “it would be the last time,” but it was not. In October 1996, defendant took Melinda to a cemetery. He laid a blanket on the ground and again forced Melinda to have sex with him. He told her that he would not do it ever again and that he did it because he loved her.
    In August 1999, Melinda went to live with her mother, Pauline Reyes, in South Carolina. After Christmas that same year, Melindawent to visit her brothers in Bryson City. Melinda rode with defendant in the car to go play bingo at the VFW and, along the way, defendant pulled off the side of a back road and asked Melinda to take off her clothes. Melinda said, “Daddy, no.” Defendant replied, “It's the last time.” Melinda asked him if he promised, and he said yes. Defendant had Melinda crawl on top of him, and they had intercourse in the driver's seat. Defendant said afterward that it “wasn't so bad.” Melinda tried to tell defendant's wife, Joyce Fuller, what had happened, but defendant later forced Melinda to tell Joyce that she had lied. Melinda did not tell anyone else about the incidents of sexual intercourse because she was afraid that defendant would beat her.
    Pauline Reyes testified that she was married to defendant for six years and that she was the mother of Melinda and Amanda. She said that defendant abused her both mentally and physically. She was terrified of defendant; he beat her, threatened her with guns, and told her that he would kill her and that “they would never find [the] body.” When she left defendant, her daughters stayed behind because defendant threatened to kill her and her family if she did not leave the girls with him. Defendant refused to let Reyes see her daughters, although she made several attempts to do so. Melinda eventually went to live with her mother, who first learned in January 2000 that defendant had sexually molested Melinda. Reyes took Melinda to the Children's Advocacy Center, where they met with Candice Smith and Dr. Nancy Henderson.
    Dr. Henderson, who was employed by the Greenville HospitalSystem in South Carolina, also worked at the Child Advocacy Center. She was tendered and testified as an expert in pediatrics. She had met with Melinda on 14 March 2001 as part of an evaluation for possible sexual abuse. Dr. Henderson asked Melinda if she knew why she was there, if she had any complaints, and if she could share what had happened to her so that the doctor would know how to proceed with the examination. As part of the medical history taken by Dr. Henderson, Melinda told her that her father had been having sex with her from age seven to age fifteen. She also said that this conduct happened on a daily basis and that defendant told her to “keep her mouth shut because it would ruin his life.” Dr. Henderson testified that her findings, Melinda's medical history, and her physical examination were consistent with a child who had been sexually abused.
    Candice Smith, a licensed professional counselor who worked as a forensic investigator at the Children's Advocacy Center, testified as an expert witness in psychology with a sub-speciality in child sexual abuse. Smith spoke with Melinda twice, on 12 March 2001 and 26 March 2001. During these interviews, Melinda recounted details of defendant's physical and sexual abuse of her and others. Melinda was also given a child sexual behavior index. In Smith's opinion, Melinda exhibited characteristics of a sexually abused child.
    Sharon Porter testified that she had been defendant's girlfriend for a year and a half. During that time, she, her daughter Amy, and her son Andrew sometimes spent the night atdefendant's home. Porter said that in June 1994, defendant forced Melinda, Amanda, Amy and her to have sexual intercourse with him in the bedroom. Porter submitted to defendant's abuse because he beat her and had threatened to kill her and her family. She also did not tell anyone that defendant had raped the girls because she was afraid of him.
    Sharon Porter's daughter Amy also testified. She said that when she was six or seven years old, defendant put his finger in her vagina. In June 1994, when Amy was eight years old, defendant locked Melinda and Amy in the bathroom and forced the girls into the shower, where he lathered them with soap and raped each in turn. Defendant had forcible intercourse with the girls in the shower on more than one occasion. Also in June 1994, defendant took her, Melinda, Amanda, and Sharon into the bedroom and raped all of them.
    Dr. Judy Seago testified in the area of pediatrics. Dr. Seago performed a physical examination of Amy Porter on 9 August 2001. Amy told Dr. Seago that “Donald,” her mother's former boyfriend, had had sexual intercourse with her on several occasions. The incidents that Amy described included defendant forcing Amy and Melinda to have sex with him in the shower and the incident with the four of them in the bedroom. Amy told Dr. Seago that she had not had sexual contact with any other person. Dr. Seago's examination revealed that Amy's hymen was abnormal. Dr. Seago opined that the findings from her examination of Amy were consistent with that of a child who has been sexually abused.    Debra Hulse, who knew defendant as a friend of her family, also testified. She said that she sometimes spent the night with Melinda and Amanda. One night in December 1995, Debra spent the night with the girls at defendant's house. When she went to the refrigerator to get a drink, defendant told her that she could have some moonshine if she wanted it. Debra tried the moonshine and, on a dare by defendant, chugged it. She felt tired and dizzy and went to the bedroom to lie down. Debra fell asleep and woke to defendant rubbing her all over her body, chest, and vagina. Defendant threw Debra's legs over his shoulders, made her rub him, and then raped her. Defendant told her that he had “been waiting a long time for this” and that he would not get her pregnant. He carried Debra, who was still naked, into his daughters' room, and Melinda later dressed her. Debra never told anyone what had happened because she was scared and did not think anyone would believe her.
    Jenny Hyatt, an investigator with the Swain County Sheriff's Department, testified that she began investigating defendant after she received a report from social services. She initially contacted Melinda, who came for an interview on 24 February 2001. Melinda described specific incidents of sexual abuse to Hyatt, including defendant's rape of Melinda and Amy in the bathroom and the rape in defendant's trailer. As part of the investigation, Hyatt also interviewed Debra Hulse and Amy Porter, who provided statements detailing the sexual assaults. Hyatt contacted Sharon Porter, who gave a written statement.    Defendant's mother, Avis Fuller, testified on her son's behalf. She said that Pauline Reyes voluntarily relinquished custody of Melinda and Amanda and that she helped to raise the two girls, who lived with defendant in a trailer on the same property as Mrs. Fuller's house. In May 1999, Mrs. Fuller received a call from Ms. Childers at Melinda's school. Melinda had told Ms. Childers that she was pregnant. Mrs. Fuller took Melinda to be examined; afterwards, Melinda told Ms. Childers that she had fabricated the story. Melinda never told Mrs. Fuller that defendant had sexually molested her.
    Defendant's wife, Joyce Fuller, testified that neither Melinda nor Amanda ever told her that defendant was sexually molesting them. In July 2001, Melinda told Joyce that she was going to drop the charges against defendant because they were not true.
    Dr. Pete Sanberry testified as an expert witness in the area of psychology. After reviewing the statements given by the various witnesses, he testified that some of these statements were consistent with parental alienation syndrome, where a child may make accusations against an estranged parent. Amanda testified that defendant never touched her or Melinda in an inappropriate way when they lived with him. She said that defendant was a good father who did not do anything bad to her or Melinda. Rhonda Woods, the sister-in-law of Pauline Reyes, testified that Melinda told her that Pauline wanted to press charges against defendant so that he could not see them anymore and “to make him pay.” Rachel Whitiken, a public health nurse with the Swain County HealthDepartment, saw Melinda in May 1999 and testified that Melinda had reported at that time that she had not had sexual intercourse.
    Crystal Yates testified that she went to Melinda's house every day after school from first through fourth grades. Melinda never told Crystal that defendant had molested her, nor did defendant do anything inappropriate to Crystal. Melinda called Crystal at one point to enlist her help to “put [defendant] in jail.” Crystal refused, as defendant “was like another father” to her.
    Finally, defendant himself testified that it was the idea of his former wife, Pauline Reyes, to take Melinda and Amanda away and then to turn the custody of them back over to him. He denied having sex with Melinda and Amy in the bathroom in June 1994 and denied having sex with all four women in the bedroom in June 1994. He also testified that Debra Hulse never came over to his house in December 1995. He denied having sex with Melinda in his car in October 1996, explaining that he did not even own the car until the following year.  He admitted to being convicted of assault with a deadly weapon for trying to run over Sharon Porter with his car but denied ever hitting or beating Sharon, Pauline, or his first wife, Gail Lyda.
    In April 2001, a grand jury indicted defendant on five counts of first-degree statutory rape (as to victim Melinda Fuller) and one count of first-degree statutory rape (as to victim Debra Hulse). In August 2001, defendant was indicted on two counts of first-degree statutory rape (as to victim Amy Porter). The caseswere joined for trial, which was held during the 4 March 2002 criminal session of Swain County Superior Court. The jury returned guilty verdicts on all counts. Defendant was sentenced to four consecutive terms of life in prison for the convictions pursuant to the Fair Sentencing Act and to an additional 1536 to 1880 months for the convictions pursuant to Structured Sentencing. Defendant now appeals.
    Defendant argues first that the trial court erred by allowing the State's expert physician to testify that Melinda had been sexually abused. Defendant contends that the opinion testimony violated Rule 702 of the North Carolina Rules of Evidence because it amounted to an impermissible validation of Melinda's credibility. We disagree.
    Rule 702 of the North Carolina Rules of Evidence provides, in relevant part:
    If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.

N.C. Gen. Stat. § 8C-1, Rule 702(a) (2001). To qualify as an expert, the witness need only be “better qualified than the jury as to the subject at hand.” State v. Davis, 106 N.C. App. 596, 601, 418 S.E.2d 263, 267 (1992) (citations omitted), disc. review denied, 333 N.C. 347, 426 S.E.2d 710 (1993). “[T]he trial judge is afforded wide latitude of discretion when making a determinationabout the admissibility of expert testimony.” State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984) (citation and quotation marks omitted).
    When there is no physical evidence to support a diagnosis of sexual abuse, an expert cannot testify that sexual abuse has occurred, as such testimony amounts to an impermissible opinion regarding the victim's credibility. State v. Stancil, 355 N.C. 266, 266-7, 559 S.E.2d 788, 789 (2002). 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.” Id. at 267, 559 S.E.2d at 789.
    In State v. Brothers, 151 N.C. App. 71, 564 S.E.2d 603 (2002), appeal dismissed, disc. review denied, 356 N.C. 681, 577 S.E.2d 895 (2003), a pediatrician, who testified as an expert, discovered various tissue abnormalities during a physical examination of a child victim. Based on the exam, as well as the child's medical history, the doctor concluded that her findings were consistent with sexual abuse. Id. at 78, 564 S.E.2d at 608. This Court held that “[b]ecause the State's expert based her conclusions on both the physical evidence and the medical history obtained from . . . [the] child protective service investigator, as well as the victim's mother, her expert opinion testimony was properly admitted under N.C.R. Evid. 702.” Id.
    Here, we conclude that Dr. Henderson's testimony was properly admitted. First, Dr. Henderson, like the doctor in Brothers,presented substantial physical evidence that Melinda was sexually abused. Dr. Henderson testified that:
        In this child--normally there's a lot of different varieties, but what we're seeing here is this is--this is hymenal tissue here and then you can see it just stops and then there's a little bit of hymenal tissue here and then it stops again and then there's just a little bit of hymenal tissue there.

        What this represents are remnants or just small piece of leftover of the hymen, and this is where there had been tears through it and as it heals you're just left with small hymenal tissue in these various locations on the hymen. . . .

    . . .
        These findings represent tears--healed tears to the hymen as something passes through into the vaginal opening. This finding is most consistent with something that happened on a number of occasions, more chronic penetration into the vaginal area because it's almost like with the tissue, it's just kind of a wearing away of the--you think of something that passes through multiple times. It kind of wears away. It's little pieces of tissue as there's chronic friction going across that area.

Dr. Henderson also explained that she “felt with the information that Melinda has provided with as far as the bleeding that this-- these findings were consistent with the disclosure that she had made to me as chronic penetration” and that “[s]he had reported to me that it was daily intercourse that they had had for years. I think this type of finding is not something that I see very often from children that I examine. . . . This is a very unusual finding for me to see in having evaluated children that have been abused. It's due to chronic repeated episodes of sexual intercourse.”
    Moreover, we conclude that the State laid the proper foundation as to Dr. Henderson's testimony. State v. Trent, 320N.C. 610, 614, 359 S.E.2d 463, 465-6 (1987) (holding that the State must lay a proper foundation for expert testimony; physician's testimony inadmissable where he made reference to a physical exam conducted four years after the date of the alleged offenses that revealed that the victim's hymen was not intact and stated that the physical condition of the hymen alone “would not support a diagnosis of sexual abuse, but only a conclusion that the victim had been sexually active”). Here, the prosecutor asked Dr. Henderson the following:
    In taking it as a whole, this exam--including the physical exam that you've shown and explained to the jury, the history that you took from the child, and of course your obvious and significant training and experience over these years of doing this, did you have an opportunity to form an opinion as to whether or not these things that you saw in Melinda Fuller were consistent with that of a child who had been sexually abused, I think you noted, chronically?
Dr. Henderson's response was not that Melinda was in fact sexually abused. Rather, Dr. Henderson responded that “I felt that the findings that I did, her history and her physical examination [were] consistent with a child that had been sexually abused.” Dr. Henderson stated unequivocally that the information that Melinda had shared with her for the first time that day before court--that Melinda had had sex about nine times with her husband in the four or five months prior to her physical examination--did not change Dr. Henderson's expert opinion regarding the abuse.
    Defendant argues that the opinion was improper because Dr. Henderson was unable to make any determination about whether the hymenal disruption that she observed was caused by intercourse withdefendant or with Melinda's husband. He also points out that the examination was carried out over two years from the last incident of intercourse of which defendant was charged. However, we rely on Stancil to conclude that the trial court did not abuse its discretion and that the testimony was properly admitted pursuant to the rules set forth by our Supreme Court. Dr. Henderson's opinion was not impermissible testimony attesting to Melinda's credibility; instead, her opinion was based on the medical history taken by Candice Smith, Dr. Henderson's own interview and medical examination of Melinda, and the physical findings from that examination. We overrule defendant's first assignment of error.
    Defendant next argues that the trial court erred by allowing the State to present evidence of his unrelated violent conduct that amounted to nothing more than inadmissable bad character evidence. Again we disagree.
    At trial, defendant objected to three specific pieces of testimony. The three instances are (1) testimony by Melinda that “Daddy had beat the hell out of” Amanda; (2) testimony by Sharon Porter that defendant had threatened to kill her if she ever told police about the sexual abuse; and (3) additional testimony by Sharon Porter that defendant beat her constantly.
    Under Rule 404(b) of the North Carolina Rules of Evidence, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show that he acted in conformity therewith. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001). However,our courts have established a
    clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.

State v. Coffey, 326 N.C. 268, 278-9, 389 S.E.2d 48, 54 (1990) (emphasis in original). Thus, even though evidence may tend to show other crimes, wrongs, or acts by the defendant and his propensity to commit them, it is admissible under Rule 404(b) “so long as it also 'is relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried.'” State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987), cert. denied, 485 U.S. 1036, 99 L.Ed.2d 912 (1988) (quoting State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986)).
     State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986), set forth the procedure to be followed in considering the admissibility of evidence pursuant to Rule 404(b). Id. at 636, 340 S.E.2d at 91. The trial court must first make the determination that the evidence is of the type and offered for a proper purpose under the rule. Id. at 637, 340 S.E.2d at 91. Next, a determination of relevancy should be made. Relevancy is defined as “any tendency to make a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.G.S. § 8C-1, Rule 401 (2001). Upon a finding that the evidence offered is of the type intended, that its purpose is other than to show propensity, and that it is relevant, the trial judge is thenrequired to balance the probative value of the extrinsic conduct evidence against its prejudicial effect. Morgan, at 640, 340 S.E.2d at 93.
    Here, the State contends that the above testimony was elicited to show Melinda's and Sharon's states of mind, explaining the delay in reporting the incident. We agree. Both women testified that they were afraid that defendant would hurt them; Melinda had seen defendant beat her sister, and Sharon had been beaten by defendant and told that he would kill her if she told police about the sexual abuse. Our courts have held in similar circumstances that offering such evidence to explain a delay in reporting is a proper purpose under Rule 404(b). In State v. Bynum, 111 N.C. App. 845, 433 S.E.2d 778 (1993), for example, the child victim testified that the defendant had threatened her with a knife and, therefore, that she was afraid to tell her mother about the sexual abuse. This Court held that the evidence was properly admitted for the purpose of showing the victim's state of mind and her hesitancy to report the abuse. Id. at 849, 433 S.E.2d at 781; see also State v. Barnes, 77 N.C. App. 212, 216, 334 S.E.2d 456, 458 (1985), disc. review denied, 315 N.C. 392, 338 S.E.2d 881 (1986) (child victim permitted to testify that she was afraid of her father because he was “mean”). Here, the testimony was relevant to explain why Melinda had not made an earlier attempt to tell anyone what defendant was doing to her and why Sharon Porter did not report what defendant had done to her or her daughter Amy. The possible prejudicial effect to the defendant did not outweigh these factors,especially in light of the fact that other witnesses gave similar testimony to which defendant did not object. We conclude that the trial court did not err.
    For the reasons set forth above, we find no error in defendant's conviction.
    No Error.
    Judges TIMMONS-GOODSON and STEELMAN concur.
    Report per Rule 30(e).

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