State v Brown, 163 NC App 205 (03-174) 03/02/2004

Appeal by defendant from judgment entered 13 June 2002 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 18 November 2003.

    Attorney General Roy Cooper by Margaret A. Force, for the State.

    Marjorie S. Canaday for defendant appellant.


    McCULLOUGH, Judge.

    Defendant, Edwin Albert Brown, was found guilty by a jury in the Buncombe County Superior Court on charges of first-degree statutory rape of a child under 13 and indecent liberties with a child. The State's evidence tended to show the following: In 1982 and earlier, defendant vaginally raped his stepdaughter L.H. on more than one occasion. L.H.'s mother was not present at the time of these incidents. On one occasion, the defendant took L.H. with him on an errand to an apartment complex where he worked. While there, defendant followed her to the bathroom and raped her. Defendant was convicted in connection with these incidents, and went to prison in 1983. He was not released until 12 May 1999.     After his release from serving his sentence for the offenses to L.H., the nine-year-old victim in the instant case, B.F., accompanied defendant to his house to feed his animals. At his house, defendant is alleged to have kissed the victim B.F., pulled off her clothing, and raped her. Afterward, he made B.F. use her hands to manipulate his penis, pushing up and down for 5-10 minutes, to get him to ejaculate. At the time of the offense, defendant was the boyfriend of B.F.'s mother. B.F. first told her sister of the incident soon after it happened. B.F.'s sister testified that this was some time after B.F.'s cousin was born, near October 1999.
    In May 2000, B.F. and her sister were removed from their parent's custody and placed in foster care. Detective Sergeant Cherie Frisbee in the Criminal Investigation Division of the Buncombe County Sheriff's Department at the time, assisted the Division of Social Services when B.F. was removed from her parents. B.F. was found sitting in the back seat of a car with defendant. Her mother was also in the car.
    In August 2000, B.F. and her sister began to live with their aunt, Janet Fowler. After living with Ms. Fowler for over a year, B.F. was having heavy menstrual periods, sometimes lasting for two weeks. When discussing this, B.F. told her aunt what defendant had done to her.
    On 2 November 2001, B.F. was examined at the Graham Children's Health Center, which has a specialty department that handles different kinds of child maltreatment or abuse. B.F. believed thatthe purpose of her visit was to see if defendant had impregnated her. Despite her age of 12 years at the time of her testimony, she showed confusion as to understanding how long a woman may be pregnant before having a baby. Further testimony revealed B.F. was behind in her grade level, mentally slow, and struggled with attention deficit disorder.
    Nurse Beth Osbahr, a certified nurse practitioner, observed an interview between B.F. and a social worker/forensic interviewer. B.F. told the interviewer about the alleged rape by defendant. After the interview, Ms. Osbahr gave B.F. a physical, including a test for sexually transmitted diseases. Ms. Osbahr examined B.F.'s genitals and noted that she did not find genital injuries, and that the exam was normal. She testified that it was not surprising for the area to be normal and without injury when she examined B.F. over a year and one-half after the alleged sexual abuse, as small tears and abrasions to the tissue in the genital area may heal within a few days or a week of injury.
    Five-year-old C.B., another alleged victim of defendant though not at issue in this case, testified that defendant, her grandfather, hurt her on her bottom with his “private.” No charges were brought on these allegations. C.B. was living with her mother at the time of this alleged incident. Dr. Cynthia Brown, a pediatrician and Medical Director of the Child's Maltreatment Evaluation Program at the Graham Center, examined C.B. on 26 June 2001. Dr. Brown testified that she examined C.B. about a week after the incident and did not find evidence that the girl's hymenhad been injured or other physical evidence of abuse. She explained that penetration could have occurred and healed up prior to the examination. As was the testimony of L.H., this evidence was admitted under N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003).
    Defendant was found guilty on both charges, with consecutive sentences of 336-413 months for first-degree rape, and 21-26 months for indecent liberties. On appeal, defendant raises six issues: (1) improper admission of the testimony of L.H. of prior bad acts by defendant; (2) improper admission of the testimony of C.B. of prior bad acts by defendant; (3) improper admission of a hearsay statement by C.B. in the testimony of Dr. Brown; (4) Dr. Brown impermissibly testified as to her opinion of the credibility of C.B.; (5) Ms. Osbahr impermissibly testified as to her opinion of the credibility of B.F.; and (6) the short-form first-degree statutory rape indictment in this case failed to allege all the elements of the offense.
    Below we address all assignments of error argued in defendant's brief, and pursuant to N.C.R. App. P. 28(b)(5), deem all those not argued as abandoned.

    A. Rule 404(b) Evidence
    Defendant's first two contentions on appeal are that the evidence of the sexual acts involving L.H. and C.B. by defendant were improperly admitted as N.C. Gen. Stat. § 8C-1, Rule 404(b) evidence. Defendant argues these alleged similar bad acts are notsufficiently similar to come in under Rule 404(b), and in the case of L.H., occurred too far in the past.
    Under Rule 404(b),
        [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

Id. Generally, Rule 404(b) is a rule of inclusion for relevant evidence of other crimes unless its only probative value is to show a defendant's propensity or disposition is to commit the crime charged. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990), cert. denied, 421 S.E.2d 360 (1992). The test for admissibility of prior sexual offenses is whether the incidents are sufficiently similar and not too remote in time. State v. Williamson, 146 N.C. App. 325, 331, 553 S.E.2d 54, 58-59 (2001), disc. review denied, 355 N.C. 222, 560 S.E.2d 366 (2002); State v. Harris, 140 N.C. App. 208, 212, 535 S.E.2d 614, 617, disc. review denied, appeal dismissed, 353 N.C. 271, 546 S.E.2d 122 (2000). “Similarity” under this test has been construed by our Supreme Court as “'markedly liberal' . . . 'when the sex impulse manifested is of an unusual or “unnatural” character.'” Coffey, 326 N.C. at 279, 389 S.E.2d at 54-55 (quoting 1 Henry Brandis, Jr., Brandis on North Carolina Evidence . 92 (3d ed. 1988)).
    Defendant argues that careful scrutiny of the testimony of L.H. and C.B. are evidence of only generic acts by defendant, notsufficiently similar or in temporal proximity. State v. Al- Bayyinah, 356 N.C. 150, 155, 567 S.E.2d 120, 123 (2002).
        1. L.H.
    Defendant argues that the voir dire hearing pertaining to L.H.'s testimony revealed very dissimilar prior acts by defendant. In the case of L.H., there were numerous sexual incidents that occurred over a span of four years. During that span, L.H. was between six and ten years of age. These incidents involved physical evidence of trauma, and forms of bondage. Defendant allegedly put a cloth in L.H.'s panties to hide any bleeding. When L.H. attempted to refuse to engage in sexual encounters, defendant allegedly beat her, and also threatened to hurt her mother, grandmother, or that she would be sent to jail if she told about his conduct to anyone. In the present case, the victim B.F. was raped on only one occasion, when she was nine, and there was no physical evidence of trauma or attempt to hide any bleeding. B.F. did not testify that defendant ever hit her or made threats upon her of any kind, and though she was often in the presence of defendant, only one incident is alleged.
    Despite these differences, the court made the following discretionary findings: that both the present case and the incidents relating to L.H. involved nine-year-old victims; that both involved sex offenses of a similar, if not exact, nature; that both girls were isolated from parental control; and that both were lured to the area where the offenses occurred on the suggestion of running an errand with defendant. Additionally, the record showsthat defendant knew both of these girls very well, was the stepfather to L.H., and boyfriend of B.F.'s mother, providing a guise of trust for defendant.
    We agree with the State and the discretionary determination of the trial court that the evidence of bad acts by defendant offered in L.H.'s testimony was sufficiently similar to the present case to come under Rule 404(b). It is not necessary that the similarities between the two situations rise to the level of the unique and bizarre. The similarities listed above tend to support a reasonable inference that the same person committed both the earlier and later acts. State v. Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d 629, 635, disc. review denied, appeal dismissed, 353 N.C. 269, 546 S.E.2d 114 (2000). Though generic when considered piecemeal, the number of common factors in the two cases rises to a level of being sufficiently similar to be admissible under Rule 404(b).
    Defendant also contends that the instances involving L.H. are not in temporal proximity of the alleged crimes in the instant case. Al-Bayyinah, 356 N.C. at 155, 567 S.E.2d at 123. Defendant argues that the lapse of time between the 1983 convictions and the allegations in the indictments have made it far less plausible that an ongoing, continuous plan existed to molest little girls.
     Defendant fails to recognize that he was imprisoned during most of the intervening time. The incidents in this case occurred only months after his release from serving his sentence on the offense committed against L.H. This is very similar to the facts of State v. Davis, 101 N.C. App. 12, 20, 398 S.E.2d 645, 650(1990), disc. review denied, appeal dismissed, 328 N.C. 574, 403 S.E.2d 516 (1991), where the Supreme Court held that a prior conviction, ten and one-half years before the charged offense at issue, was not too remote when the charged offense occurred only 132 days after the defendant's release. See also State v. Hall, 85 N.C. App. 447, 451, 355 S.E.2d 250, 253, disc. review denied, 320 N.C. 515, 358 S.E.2d 525 (1987) (Where defendant was indicted for first-degree attempted rape, defendant's nine-year-old conviction for assault with intent to rape was admissible to prove intent was not too remote under Rules 403 and 404(b) because “defendant had been released from prison for that offense only two days before the charged offense occurred, a fact which enhances its probative value.”).
    We therefore hold defendant's bad acts as to L.H. are sufficiently similar and of temporal proximity to be admitted under Rule 404(b) for the purpose of identification, opportunity, and preparation.
    2. C.B.
    Defendant also contends the acts he allegedly committed against his granddaughter, evidenced through the testimony of five- year-old C.B., were also generic in nature and not “sufficiently similar” for Rule 404(b) purposes. However, the court allowed the evidence offered for the State's purpose of showing intent, opportunity, and the existence of a common scheme or plan.
    C.B.'s testimony, found to be competent, stated that defendant hurt C.B.'s bottom (meaning her front) with his “private part.” Hedid so outside the presence of C.B.'s mother. While this case possesses less characteristics of similarity, we conclude that the trial court did not commit error. We find the following factors of similarity, in the aggregate, sufficient: (1) young child; (2) girl; (3) the rapist's role had a relationship of inherent trustworthiness in the eyes of the child, as a family friend or relative; (4) the child was isolated from her parent when the incident occurred; and (5) the intercourse was vaginal. These factors are common to both C.B. and B.F., and under the trial court's discretion meet the sufficiently similar test under Rule 404(b) for the purpose of intent, opportunity, and the existence of a common scheme or plan.
    B. Rule 403

    Despite finding evidence admissible under Rule 404(b) analysis, a trial court must determine whether its probative value is substantially outweighed by its prejudicial effect. State v. Everhardt, 96 N.C. App. 1, 18, 384 S.E.2d 562, 572 (1989), aff'd, 326 N.C. 777, 392 S.E.2d 391 (1990). Pursuant to Rule 403, relevant evidence may be excluded if
        its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

N.C. Gen. Stat. § 8C-1, Rule 403. This probative value must not merely be outweighed by the prejudicial effect, but substantially outweighed. State v. Lyons, 340 N.C. 646, 669, 459 S.E.2d 770, 782(1995). Determinations made under this rule are in the sound discretion of the trial court. State v. Hoffman, 349 N.C. 167, 178- 79, 505 S.E.2d 80, 87 (1998), cert. denied, 526 U.S. 1053, 143 L. Ed. 2d 522 (1999). The court's decision may be reversed for abuse of discretion only upon a showing that the court's ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988), overruled in part in State v. Hinnant, 351 N.C. 277, 287, 523 S.E.2d 663, 669 (2000).
    Defendant argues that, when admitting both L.H.'s and C.B.'s testimony for Rule 404(b) purposes, the effect was to confuse and overwhelm the jury as to the evidence of the sex crimes at issue in the instant case in relation to B.F. Defendant believes the Rule 404(b) evidence was far more heinous than the evidence actually having to do with B.F. for which he was indicted. Therefore, defendant claims the determination of guilt was falsely placed on these similar, but uncharged, bad acts.
     We disagree and conclude the State's direct evidence is easily distinguishable in this case. The evidence offered by the State as to the charge of raping the nine-year-old victim B.F. possessed an independent level of heinousness that a reasonable jury would not easily confuse or be overwhelmed by similar bad act evidence. The record is sufficiently distinct as to the crimes at issue in the case. There is testimony by the victim B.F., her aunt, her sister, the investigating detective, and Nurse Osbahr. While there was surely a prejudicial effect by admission of the Rule404(b) evidence, it by no means substantially outweighed the probative value of L.H.'s testimony as to identification, opportunity, and/or preparation of defendant; and C.B.'s testimony establishing the existence of intent, opportunity, and/or a common scheme or plan by defendant.

    Defendant next contends that the trial court erred in allowing admission of Dr. Brown's testimony of C.B.'s statement that defendant allegedly molested her “last Saturday.” We disagree.
    Defendant confuses the issue, alleging the statement was offered for the truth of the matter asserted under the hearsay exception of Rule 803(4), “Statements for Purposes of Medical Diagnosis or Treatment.” N.C. Gen. Stat. § 8C-1, Rule 803(4). However, nothing in the record suggests this statement was offered for the truth of the matter asserted under this exception, and the trial court properly gave adequate limiting instructions to the jury as to how to use Dr. Brown's testimony.
    As a general rule, out-of-court statements offered as evidence for the truth of the matter asserted in those statements are inadmissible hearsay. See N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003). One exception to this general rule allows admissions of prior out-of-court statements, which are consistent with a witness's trial testimony, offered for the limited purpose of corroborating that testimony. These are not hearsay statements because they are not offered for the truth of the matter asserted. State v. Gilbert, 96 N.C. App. 363, 365, 385 S.E.2d 815, 816 (1989).
    At trial, C.B. testified that defendant “hurt [her] in the wrong way” with his “private.” Dr. Brown was later brought forth to testify as a corroborating witness for C.B.'s testimony, where any testimony he offered as to her out-of-court prior consistent statements was to be used only to corroborate her in court testimony. Dr. Brown testified as to the day C.B. said she was hurt by defendant. This was used for the limited purpose of showing that prior to her testimony in court, C.B. had said she was hurt by defendant. It was not offered for the truth that she was in fact hurt by defendant, only to bolster her credibility. The trial judge gave the following limiting instruction before Dr. Brown's testimony:
        You'll consider it for corroboration purposes only, members of the jury. That means if you find that whatever the child told this doctor is consistent with what you remember the child [C.B.'s] testimony to have been, you can let that be reflected in what credibility you give her sworn testimony. If you find it's inconsistent, you will let that be reflected in what lack of credibility you give the child [C.B.'s] sworn testimony about those particular points, whatever those points might be.

The judge went on further to remind the jury that C.B.'s testimony was only to be considered for Rule 404(b) purposes:
        [F]or the limited purpose of showing whether or not the defendant possessed the requisite intent to commit one or both the charges he's facing in this case and/or whether or not he had the opportunity to - or took an opportunity to commit one or both the chargesthat he's faced in this case, and/or that he had a common scheme or plan with regard to the charge or charges that he's faced in this case. Consider it if you see fit to consider it at all, and if you do, you would have to find that such evidence or events were believable to the extent of beyond a reasonable doubt. But for considering it for that limited purpose, very limited purpose, you can't consider it for any other purpose.

    We conclude that the trial judge committed no error in allowing the admission of the testimony of Dr. Brown for the limited purpose of corroborating C.B.'s testimony. In so doing, the trial court went a step further to remind the jury of the very limited Rule 404(b) purposes for which C.B.'s testimony was to be used. The trial court's instructions are clear, and properly focus the jury as to how to use both C.B.'s and Dr. Brown's testimony.

    Defendant next contends that, in the absence of physical evidence, it was reversible error to admit the testimony of Dr. Brown and Nurse Osbahr   (See footnote 1) . Though the physical evidence was lacking, their testimony stated that the victim's histories and physicals were consistent with sexual abuse. Defendant claims that the sole purpose and resulting effect of this testimony gave impermissible credibility to B.F. and C.B.'s testimony alleging sexual abuse. We disagree.     A witness, qualified as an expert, may provide testimony in the form of an opinion pursuant to Rule 702 of the North Carolina Rules of Evidence “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]” N.C. Gen. Stat. § 8C-1, Rule 702 (2003). An expert opinion that sexual abuse has occurred is not admissible unless that opinion is based on special expertise, i.e., that the expert was in a better position than the jury to have an opinion on the subject. State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987).
    “'[I]n 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. Wade, 155 N.C. App. 1, 7-8, 573 S.E.2d 643, 648 (2002) (emphasis added) (quoting State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598 (2002), aff'd per curiam, 356 N.C. 428, 571 S.E.2d 584 (2002)), disc. review denied, appeal dismissed, 357 N.C. 169, 581 S.E.2d 444 (2003). It is well settled that “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.” State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002). An expert may also give an opinion based on his/her examination of the child and on his/her expert knowledge concerning abused children in general. State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 656 (1988). “'The fact that thisevidence may support the credibility of the victim does not alone render it inadmissible.'” Dixon, 150 N.C. App. at 52, 563 S.E.2d at 598 (quoting State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 367 (1987)).
    As a threshold matter, neither of these experts testified that sexual abuse had in fact occurred. Both Nurse Osbahr and Dr. Brown provide care at the Graham Children's Health Center in the center's department specializing in child maltreatment. In their testimony, they both stated that the physical examinations of B.F. and C.B. were “consistent” with a determination of sexual abuse, and it is clear from the record that this was offered to show that lack of physical evidence did not preclude sexual abuse. The intended effect of their testimony was to assist the jury in giving proper weight and understanding as to this lack of physical evidence of sexual abuse.
    Nurse Osbahr and Dr. Brown's testimony imparted upon the jury an academic and clinical understanding of the occurrence of physical manifestations of child sexual abuse cases generally. In her testimony, Nurse Osbahr stated:
        My understanding at the time was that this incident with [B.F.] had occurred a year and a half, quite a bit of time before the date of the exam.

        I do think because she said it hurt a little bit that there must have been some small tears or abrasions at the time, but the tissue that's in the genital area is like that in the inside of your mouth. It can definitely get cut and it hurts, but it heals very, very quickly, within a matter of a few days or a week. So I saw her over a year and a halflater. So I think anything that would have been there would have very easily been healed where I couldn't see it.

Dr. Brown stated, in her testimony on cross-examination by defendant:
        A:    If we examine a child immediately after an event, very often we'll see redness or abrasion of the skin around the vaginal opening. There may be some trauma to the hymen, swelling of the tissue. The tissue may be torn. If enough time goes by, many of those findings will disappear completely.

        Q:    Now as time goes by, you say many of those findings will disappear. Well, they may still be around though; correct?

        A:    In some cases if the injury is forceful enough, the tear to the hymen causes an actual defect in the hymen to appear, so that there's an actual loss of tissue. But in the majority of cases we actually don't see residual findings.

        A:    But there are cases that you do?

        Q:    Yes.

        A:    And there are studies that have said that when a prepubescent female has been vaginally penetrated, there's going to be evidence; correct? There's studies that say that?

        Q:    There are studies that say a prepubertal child because their hymen is more delicate is more likely to have findings, but that's - still the majority are likely not to because of the delay in disclosure.

    The crux of defendant's argument is that any examination that has a finding of no physical abuse will be “consistent” with sexual abuse. Therefore, defendant argues any expert testimony as tofindings that sexual abuse may still be “consistent” with no physical findings, merely gives impermissible credibility to the bald allegations of an alleged victim. However, the material difference in this case, as testified by the experts, is the time period between the alleged abuse and the examination. For B.F., this was a matter of years; and for C.B., this was at least a week. The focus of the expert testimony was to show that lack of physical findings does not preclude sexual abuse when such a time period has lapsed.
    We acknowledge that there is a rather fine line between an expert finding as fact that a victim has been sexual abused based on nothing more than the victim's own statements (impermissible under Stancil, 355 N.C. at 267, 559 S.E.2d at 789), and the case at bar, where an expert testifying sexual abuse can be consistent with no physical findings of abuse in light of the victim's physical and history (permissible under id.). However, there is indeed a line of rational distinction. The former goes to the credibility of the victim's statements, where the later goes to the weight to be placed upon the lack of physical evidence by the jury. To hold otherwise would be to prohibit expert medical testimony, which assists the trier of fact, in the many cases of child sexual abuse where physical evidence is lacking.
    Therefore, we find the expert testimony of Dr. Brown and Nurse Osbahr was properly founded for making a determination that lack of physical evidence can be consistent with, and does not preclude,that B.F. and C.B. were sexually abused. Therefore, all assignments of error on this issue are overruled.