Appeal by defendant from judgment entered 15 August 2002 by
Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard
in the Court of Appeals 4 February 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Jane Rankin Thompson, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel R. Pollitt, for defendant-appellant.
Wayne Leroy Couser (defendant) appeals from a judgment dated
15 August 2002 entered consistent with jury verdicts finding him
guilty of attempted statutory rape of a minor and taking indecent
liberties with a child. The charges were consolidated for
sentencing resulting in an active prison sentence with a minimum
term of 251 months and a corresponding maximum term of 311 months.
Because the admission of expert testimony in this case resulted in
plain error, we grant a new trial on both counts.
The State's evidence presented at trial tends to show that on
23 May 2001, S.D., the thirteen year-old minor victim (the
victim), was in her house taking a shower when defendant, who
occasionally stayed at the house, knocked on the door and asked to
use the bathroom. The victim finished her shower, dressed, and
started to walk out of the bathroom. Defendant grabbed the victim
and threw her to the floor and engaged or attempted to engage in
vaginal intercourse with the victim and fondled her breasts. On
cross-examination, the victim testified that during the assault,
her underwear was pulled down to her thighs and that although
defendant did not remove his pants they were undone. On redirect
examination, when asked by the State how defendant managed to
penetrate her, the victim testified that she was not sure
[defendant] got it in.
The investigating detective corroborated the victim's account,
testifying that the victim stated to her that defendant had pulled
her shorts down to her thighs and tried to insert his penis into
the victim's vagina. The State offered further corroborating
evidence from the victim's mother, father, sister, and anotheracquaintance, including testimony that following the assault, the
victim told her mother that defendant had tried to do it with
[her], and subsequently told the acquaintance that defendant
tried to go in [her].
Dr. Jennifer Helderman (Dr. Helderman) testified that she
performed an examination on the victim and that her only abnormal
finding was the presence of two abrasions on either side of the
introitus. Based on her examination, Dr. Helderman testified that
her diagnosis was probable sexual abuse with abrasions consistent
with the victim's history of sexual assault. On cross-examination,
Dr. Helderman testified that the abrasions on the introitus could
be caused by something other than a sexual assault and are not, in
themselves, diagnostic or specific to sexual abuse.
Defendant's evidence included testimony from the lead
investigator on the case that defendant had submitted to a rape
suspect kit. Subsequent testing of that kit was negative and
revealed none of defendant's hair on the victim, none of the
victim's hair on defendant, and no semen in the victim or on her
clothes. Defendant was indicted for first degree statutory rape
and taking indecent liberties with a minor. The trial court,
without objection by defendant, included attempted rape in its
charge to the jury. The jury acquitted defendant of rape but
returned its convictions on both the attempted rape and taking
indecent liberties with a child charges.
The issues are whether (I) it was plain error to admit
testimony by Dr. Helderman that her diagnosis of the victim was
probable sexual abuse; (II) the trial court erred in not allowingtestimony that the victim's father had been convicted of sexual
abuse of the victim's sister in 1985 and that neither the victim's
father nor her sister informed police of this during an interview;
and (III) submission of the attempted rape charge to the jury was
supported by the evidence.
 Defendant argues it was error to admit testimony of Dr.
Helderman that her diagnosis of the victim was probable sexual
abuse. Defendant, however, did not object to this testimony,
instead only lodging a general objection to Dr. Helderman's
qualifications as an expert witness.
[A]n expert medical witness may render an
opinion pursuant to Rule 702 that sexual abuse
has in fact occurred if the State establishes
a proper foundation, i.e. physical evidence
consistent with sexual abuse. . . . However,
in the absence of physical evidence to support
a diagnosis of sexual abuse, expert testimony
that sexual abuse has in fact occurred is not
admissible because it is an impermissible
opinion regarding the victim's credibility.
State v. Dixon
, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598, per
, 356 N.C. 428, 571 S.E.2d 584 (2002) (citing State v.
, 355 N.C. 266, 559 S.E.2d 788 (2002)).
In this case, Dr. Helderman's opinion was based on her
examination and the history of the victim as given to her. Dr.
Helderman admitted on cross-examination that the abrasions she
observed on the introitus were not diagnostic nor specific to
sexual abuse. We conclude that this is insufficient physical
evidence to support Dr. Helderman's testimony of her diagnosis and
opinion that the victim was probably sexually abused. See id
48-53, 563 S.E.2d at 596-99 (evidence of only non-specific genitalirritation insufficient to support opinion of sexual abuse); see
also State v. Trent
, 320 N.C. 610, 614-15, 359 S.E.2d 463, 465-66
(1987) (evidence that hymen was not intact was alone insufficient
to support evidence of a diagnosis of sexual abuse). Thus, the
trial court erred in admitting this testimony.
Because defendant failed to object or move to strike this
testimony, however, we must further determine whether this error
amounted to plain error. Under plain error review the burden is
on the defendant to show that 'absent the error the jury probably
would have reached a different verdict.' State v. Bellamy
N.C. App 143, 147, 582 S.E.2d 663, 667 (2003) (quoting State v.
, 90 N.C. App. 379, 383, 368 S.E.2d 396, 398-99 (1988)).
Our Supreme Court in a per curiam
opinion in Stancil
it was not plain error to admit an expert opinion that a victim had
in fact been sexually abused absent a proper foundation where there
was overwhelming evidence of the defendant's guilt. Stancil
N.C. at 267, 559 S.E.2d at 789. Although the Supreme Court did not
reveal what evidence it relied upon, the prior Court of Appeals
opinion in that case noted in addition to testimony of the victim
and other corroborating evidence there were two permissible expert
opinions that the victim exhibited characteristics consistent with
sexual abuse. State v. Stancil
, 146 N.C. App. 234, 240, 552 S.E.2d
212, 215-16 (2001), per curiam modified and aff'd
, 355 N.C. 266,
559 S.E.2d 788. Further, there was evidence that the defendant had
performed oral sex upon the victim and thus it was unlikely any
physical evidence would have been left and that the rape suspect
kit returned inconclusive. Id
. Moreover, the victim in that casecontinued to show symptoms of having been sexually abused five days
after the incident and showed intense and immediate emotional
trauma after the incident. Id
. This Court stated that this
evidence was sufficiently overwhelming, such that any error in
admitting the improper expert opinion would not amount to plain
. Therefore it is logical to conclude that this was the
same overwhelming evidence relied upon by our Supreme Court in
reaching its own holding.
In this case, instead of the overwhelming evidence of
, the only direct evidence for the State was the victim's
testimony corroborated by other witnesses. There was no evidence
that the victim's behavior or symptoms following the assault were
consistent with being sexually abused. The only medical evidence
for the State was of abrasions that were not specific to, nor
diagnostic of, sexual abuse. Defendant introduced evidence showing
that the results of a rape suspect kit were negative, not merely
inconclusive, and revealed that the victim had no semen in her or
on her clothing and that neither the victim nor defendant had
transmitted hairs to each other.
Without the kinds of expert or medical evidence in Stancil
the jury in the case sub judice
would have been left with only the
testimony of the victim and corroborative testimony along with
evidence of abrasions not necessarily caused by sexual assault.
Thus, the central issue to be decided by the jury was the
credibility of the victim. We conclude that the impermissible
expert medical opinion evidence had a probable impact on the jury's
result because it amounted to an improper opinion on the victim'scredibility, whose testimony was the only direct evidence
implicating defendant. See State v. O'Connor
, 150 N.C. App. 710,
712, 564 S.E.2d 296, 297, disc. review denied
, 356 N.C. 173, 567
S.E.2d 144 (2002) (deciding subsequent to Stancil
that it was plain
error to admit expert testimony on the credibility of the victim in
a sexual offense case where the State's case was almost entirely
dependent on the credibility of the victim and corroboration
testimony of others); compare State v. Wade
, 155 N.C. App. 1, 19-
20, 573 S.E.2d 643, 655-56 (2002) (Greene, J. concurring) (two
judges concurring that there was no plain error where in addition
to testimony of the victim and corroborating testimony, there was
evidence of prior sexual assaults by defendant, evidence that
victim exhibited characteristics consistent with sexual abuse, and
the victim and defendant had been treated for the same sexually
transmitted disease at about the same time).
Furthermore, defendant's acquittal on the completed rape
offense and conviction of only attempted rape does not render the
admission of this testimony harmless. Dr. Helderman's testimony
was that the victim had suffered probable sexual abuse. Sexual
abuse is a broad term that could easily be construed by the jury to
include both an assault on the victim in an attempt to rape her as
well as the completed offense. See Black's Law Dictionary
, 10 (7th
ed. 1999) (defining sexual abuse as [a]n illegal sex act, esp.
one performed against a minor by an adult); see also The American
Heritage College Dictionary
, 1249-50 (3rd ed. 1997) (defining
sexual assault as [i]ndecent conduct of a man toward another
man, a woman, or a child or of a woman toward a child, accompaniedby the threat or danger of physical suffering or injury or inducing
fear, shame, humiliation, and mental anguish).
Moreover, defendant was also convicted of taking indecent
liberties for the act of fondling the victim's breasts, which a
jury may also have reasonably construed as a form of sexual assault
or sexual abuse. Thus, the admission of the expert opinion that
the victim was diagnosed as having suffered probable sexual abuse
was plain error and accordingly, defendant is entitled to a new
trial. Although we grant defendant a new trial, we nevertheless
address two additional assignments of error likely to arise upon
retrial of this matter.
We next address defendant's argument that it was error to
exclude evidence that (A) the victim's father had been convicted of
sexually abusing the victim's sister, and (B) neither the victim's
father nor her sister informed the police of that fact in an
 Defendant contends that the victim's father's prior
conviction was admissible as evidence tending to show the victim's
father committed the crime and not defendant. We disagree.
Evidence that another committed the crime for
which the defendant is charged generally is
relevant and admissible as long as it does
more than create an inference or conjecture in
this regard. It must point directly to the
guilt of the other party. Under Rule 401 such
evidence must tend both to implicate another
and [to] be inconsistent with the guilt of the
State v. Williams
, 355 N.C. 501, 532, 565 S.E.2d 609, 628 (2002)
(emphasis omitted) (quoting State v. Cotton
, 318 N.C. 663, 667, 351
S.E.2d 277, 279-80 (1987)).
In this case, evidence that the victim's father had been
convicted of the sexual assault of the victim's sister in 1985 is
insufficient to implicate the victim's father in the sexual assault
of the victim in 2002. Nor is the fact that the victim's father
was previously convicted of sexual assault almost two decades
earlier in a completely different case inconsistent with defendant
committing the assault in this case. Thus, the trial court did not
err in excluding this evidence as irrelevant.
 Defendant also argues that he should have been allowed to
impeach the testimony of the victim's father and the victim's
sister on the fact that during an interview with the police neither
mentioned the prior sexual assault by the victim's father on her
sister. Under the North Carolina Rules of Evidence, a prior
statement is considered inconsistent if it fails to mention a
material circumstance presently testified to which would have been
natural to mention in the prior statement. State v. Fair
N.C. 131, 157, 557 S.E.2d 500, 519 (2001). In this case, because
the trial court properly excluded evidence of the victim's father's
prior conviction it was not testified to at trial and thus there
was no inconsistency in the testimony given and the statement made
to police. Furthermore, that prior conviction was not a material
circumstance to the present investigation and would not naturallyhave been mentioned during an interview with the police on the
facts surrounding the sexual assault in this case.
 Defendant next asserts that his attempted rape conviction
should be reversed because there was no evidence to support it. He
contends instead that the evidence could only support a conviction
of the completed rape offense or result in his acquittal on the
rape charge as there was no evidence of an attempt. We disagree.
[I]t is error for the trial court to submit as an alternative
verdict a lesser included offense which is not actually supported
by any evidence in the case. State v. Ray
, 299 N.C. 151, 163, 261
S.E.2d 789, 797 (1980). Instructions on the lesser included
offenses of first degree rape are warranted only when there is some
doubt or conflict concerning the crucial element of penetration.
State v. Wright
, 304 N.C. 349, 353, 283 S.E.2d 502, 505 (1981).
In this case, although the majority of the victim's testimony
was that defendant did in fact penetrate her vagina, there is other
evidence in the case that puts the fact of penetration in doubt or
conflicts with the victim's testimony. The victim testified in one
instance that she was not sure the defendant penetrated her vagina
and in reporting the rape to others stated defendant had attempted
to rape her. The medical evidence consisted of testimony that the
only abnormalities observed were the abrasions to the introitus,
located at the opening of the vagina, which were not specific to,
nor diagnostic of, sexual abuse. Further, defendant presented
evidence that the rape suspect kit revealed that none of
defendant's hairs were found on the victim, none of the victim'shairs were found on him, and further no semen was found inside the
victim or on her clothes. This is all evidence supporting an
attempted rape conviction and the trial court did not err in
submitting this charge to the jury and therefore, defendant is not
entitled to reversal of his attempted rape conviction.
We nevertheless remand this case for a new trial on the
charges of attempted rape and taking indecent liberties with a
minor due to the improper admission of Dr. Helderman's opinion
testimony. Because we grant defendant a new trial, it is not
necessary to address further assignments of error asserting plain
error or related to his sentencing hearing.
Judges McCULLOUGH and LEVINSON concur.
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