STATE OF NORTH CAROLINA
v
.
Edgecombe County
No. 99CRS11094
ERNEST DEAN DRIVER
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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