An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-103

NORTH CAROLINA COURT OF APPEALS

Filed: 20 January 2004

STATE OF NORTH CAROLINA

v .                         Edgecombe County
                            No. 99CRS11094
ERNEST DEAN DRIVER

    Appeal by defendant from judgment entered 8 November 2000 by Judge Quentin T. Sumner in Edgecombe County Superior Court. Heard in the Court of Appeals 1 December 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.

    Michael J. Reece for defendant-appellant.

    MARTIN, Judge.

    Defendant appeals from a judgment imposing an active sentence of imprisonment entered upon his conviction by a jury of taking indecent liberties with a child. His sole contention on appeal is that the trial court erred in permitting Dr. Coker, a pediatrician, to state her opinion that the alleged victim, L.M., a five-year-old child, had been sexually abused.
    It is now well-settled in this State that in a prosecution for a sexual offense against a child victim, expert opinion testimony that the child has been sexually abused is not admissible in the absence of physical evidence supporting a diagnosis of sexual abuse because such testimony amounts to an impermissible opinion concerning the alleged victim's credibility. State v. Stancil, 355N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002); State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987); State v. Grover, 142 N.C. App. 411, 413-14, 543 S.E.2d 179, 181, aff'd per curiam, 354 N.C. 354, 553 S.E.2d 679 (2001). In the absence of such physical evidence, expert opinion evidence is limited to testimony concerning the profiles and behavior of sexually abused children and whether the alleged victim has exhibited symptoms or characteristics consistent therewith. Stancil, 355 N.C. at 266, 559 S.E.2d at 789.
    In the present case, Dr. Coker testified that she observed a social worker's interview of L.M.; reviewed L.M.'s medical history, which was unremarkable except for a number of past urinary tract infections; and performed a lengthy physical examination of L.M., which revealed no abnormalities or evidence of physical trauma to L.M.'s genitals. Dr. Coker then testified, over defendant's objection:
        My opinion at the completion of our evaluation was that with reasonable medical certainty the patient had experienced and received the medical diagnosis of sexual abuse.
    
Dr. Coker was then permitted to read to the jury a portion of her report, including the following:
        [L.] discloses sexual abuse during today's interview. Due to her highly detailed and consistent disclosure, we believe that sexual abuse is probable.

            . . .

    
        Her physical exam is consistent with the disclosure in that the normal exam is common even if confessed penetration. Labialpenetration can occur without leaving permanent traumatic changes as well.

Finally, Dr. Coker reiterated that she found no abnormalities upon her examination of L.M.'s genital area.
    The foregoing testimony is virtually indistinguishable from that found to have been erroneously admitted in Stancil and Grover. Dr. Coker's testimony was based primarily on statements made by the alleged victim and was uncorroborated by any physical findings. Accordingly, she was in no better position than the jury, who also heard L.M.'s testimony, to determine L.M.'s credibility and whether she had been sexually abused. Therefore, her opinion testimony that L.M. had experienced sexual abuse was inadmissible and the trial court erred in overruling defendant's objection to it.
    We also conclude such error was prejudicial. L.M.'s credibility was a critical issue in the trial; there were no witnesses and there was evidence that she had recanted her accusation prior to her visit with Dr. Coker's clinic. Dr. Coker's report, concluding that L.M.'s account was “highly detailed and consistent,” that the amount of sexually explicit knowledge and detail which L.M. showed was “convincing,” and that the “alleged recantation . . . is common in children,” were such endorsements of L.M.'s credibility that we cannot say there is no reasonable possibility that a different result would have been reached had the testimony not been erroneously admitted. N.C. Gen. Stat. 15A- 1443(a) (2003). Defendant is entitled to a new trial.
    New trial.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Report per Rule 30(e).

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