State v Ogles, (03-83) 12/02/2003

Appeal by defendant from judgment entered 28 March 2002 by Judge Timothy L. Patti in the Superior Court in Cleveland County. Heard in the Court of Appeals 30 October 2003.

Attorney General Roy Cooper, by Assistant Attorney General R. Kirk Randleman, for the State.

Brenda S. McLain, for defendant-appellant.

    HUDSON, Judge.

    Defendant was tried on charges of first degree sexual offense and taking indecent liberties with a child, and convicted of indecent liberties with a child on 18 March 2002. The court sentenced him to prison for twenty-one to twenty-six months. Defendant appeals, alleging prejudicial error in the admission of testimony by three witnesses. For the reasons discussed below, we find no prejudicial error.
    The State's evidence tended to show that the victim, Danielle T. (“Danielle”), was born on 29 March 1991. In August 2000, Danielle lived with her father, stepmother and siblings in Charlotte. During that month, Danielle spent a week in Cleveland County at her grandmother's home while attending church camp. After camp on Thursday, her grandmother took Danielle to stay at the home of defendant, her uncle. Danielle spent the night at defendant's home, returned to church camp the next day, and then spent Friday night at defendant's home.
    Danielle testified that, on Saturday morning, defendant approached Danielle as she sat on the sofa watching television and eating cereal in her nightshirt and underwear. She testified that defendant told her not to move, and then scooted over next to her. Danielle told defendant to get away from her, but defendant said “No,” and then put his hand into Danielle's underwear and touched her. He also unzipped his own pants and fondled himself. Danielle hit defendant once and told him to stop but he continued until he heard someone coming. Defendant told her to go upstairs and get dressed, and when Danielle came back down, her grandmother was there. Danielle told no one about the incident until September 2000, a month later.
    Daisha T., Danielle's sister, testified about previous incidents of alleged abuse involving defendant when he had lived with her family. Daisha testified that defendant had “messed with” her, putting his hands in her genital area and squeezing and moving his fingers around. She also testified that defendant laid her on a bed and took off her clothes, and that she had seen defendant fondle Danielle many times.
    Dr. Patricia Pitcher qualified as an expert in pediatric medicine and gave evidence about her interview and physical examination of Danielle. After stating that the exam revealed nophysical evidence of acute trauma, Dr. Pitcher explained, “In child abuse cases, most often most conclusions you can draw are from the history because there's so often no physical findings, and in Danielle's case, because she was so consistent time and time again on very particular details, I concluded there was probable sexual abuse.”
    Alexa Peterson, a child protective services investigator, testified that Danielle had described defendant's actions to her. She testified Danielle had told her that on the second day she had stayed at defendant's home, he put his hands in her underwear and his own, rubbing Danielle and himself. Peterson also gave evidence about her conversations with Daisha, who told Peterson about several incidents involving defendant. Daisha said defendant had laid her on a bed, taken off her clothes and “hugged” her tightly. Daisha also told Peterson about an incident at a barn when defendant had Daisha and Danielle lie on top of him while he put his hands in their pants. Peterson also testified that Daisha told her about defendant giving her a bath and touching her with a washcloth and with his hand.
    Further evidence for the State included a crime scene investigator with the Cleveland County Sheriff's Department, who testified that Danielle had told him that defendant put his finger in her vagina, and a detective with the Charlotte-Mecklenburg Police Department, who testified that Danielle had told him about the incident at defendant's home. Defendant presented several witnesses who testified that Danielle had not spent any nights athis house during the week in August 2000 when the abuse allegedly occurred.
    Defendant first assigns as error the admission of testimony by Dr. Pitcher as to her conclusion that Danielle was probably sexually abused despite a lack of physical evidence of any such abuse. The State admits that it was error for the court to allow this testimony, but contends that it was not prejudicial to defendant. For the reasons discussed below, we hold that the error was not prejudicial.
    “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. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (original emphasis omitted). Here, the court violated the rule of Stancil by allowing Dr. Pitcher to testify that she believed Danielle had been abused based on her assessment that “she was so consistent” in her story, even though there was no physical evidence to support that conclusion. Thus, we must consider whether the error was prejudicial.
    Error is prejudicial when “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a). The defendant bears the burden of showing prejudice. Id. Defendant argues that there was“no evidence of sexual abuse other than Danielle['s] testimony,” thus making her credibility critical to the jury determination. This Court has held admission of expert opinion testimony prejudicial where “there was no evidence of sexual abuse other than [the victim]'s testimony.” State v. Dixon, 150 N.C. App. 46, 53, 563 S.E.2d 594, 599 (2002).
    Here, however, the case against defendant did not rest solely on Danielle's testimony. The record also includes testimony by Danielle's sister Daisha about defendant's sexual abuse of Danielle and of herself, as well as corroborative evidence from a crime scene investigator and a police detective. Given this additional evidence of defendant's guilt, defendant fails to meet his burden of showing that there is a reasonable possibility that absent Dr. Pitcher's testimony, the jury would have reached a different result. In addition, the fact that the jury acquitted defendant of the more serious charge of first degree sexual offense suggests that the jury did not give undue weight to Dr. Pitcher's statement.
    Defendant next assigns error to the admission of testimony by Daisha T. about defendant's abuse of Danielle and herself. Defendant contends that the prior incidents Daisha testified about were insufficiently similar and too remote in time from the incident at trial to be admitted. We disagree.
    Under Rule of Evidence 404(b), evidence of another offense is admissible when it is relevant to any fact or issue other than the character of the accused. State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). “Nevertheless, the ultimate test fordetermining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403.” Id.
    Here, both Daisha's and Danielle's testimony concerned sexual assaults by defendant placing his hand and fingers in and around their genital areas. Both cases involve an assault by defendant against his young female nieces while out of the presence of other adults. These incidents are sufficiently similar so as to comport with Rule 403(b). See Boyd, 321 N.C. 574 at 577-78, 364 S.E.2d at 120.
    In addition, the incidents described by Daisha occurred four to eight years prior to the abuse of Danielle. Our courts have been very liberal in allowing evidence about prior offenses in sexual abuse cases and “have permitted testimony of prior acts of sexual misconduct which occurred greater than seven to twelve years earlier.” State v. Love, 152 N.C. App. 608, 613, 568 S.E.2d 320, 324 (2002). Thus, the admission of Daisha's testimony was not too remote in time and this assignment of error is overruled.
    In his final assignment of error, defendant argues that the court erred in allowing Alexa Peterson, the child protective services worker, to testify about statements Daisha made to her about incidents of abuse. Defendant contends that Peterson's testimony included an abuse incident in a barn, which Daisha related to Peterson, but which Daisha did not herself testify about, thus rendering it non-corroborative and inadmissible.     An out-of-court statement offered to prove the truth of the matter asserted is hearsay and generally inadmissible. N.C. Gen. Stat. § 8C-1, Rules 081(c), 802. However, “[i]t is well-settled that a witness' prior consistent statements are admissible to corroborate the witness' sworn trial testimony.” State v. McGraw, 137 N.C. App. 726, 730, 529 S.E.2d 493, 497 (2000). While the prior statement need not mirror precisely the witness's testimony at trial, “the witness's prior statements as to facts not referred to in his trial testimony and not tending to add weight or credibility to it are not admissible as corroborative evidence.” State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 574 (1986) (original emphasis omitted).
    Here, admission of prior statements by Daisha to Peterson about the incident in the barn was error, as Daisha did not refer to that incident in her own testimony. However, as discussed above, error is prejudicial only when defendant shows that “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (1999). Given the testimony by Danielle and Daisha, and the properly admitted corroborating testimony from Peterson and the Charlotte-Mecklenburg police detective, defendant has not shown a reasonable probability that the jury would have reached a different result absent the portion of Peterson's testimony admitted in error.
    No prejudicial error.    Judges MCGEE and CALABRIA concur.
    Report per Rule 30(e).

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