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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
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STATE OF NORTH CAROLINA v. JAMES EARL EWELL
Filed: 18 January 2005
1. Evidence-_expert medical testimony--sexual abuse in absence of physical evidence--
The trial court committed plain error in a first-degree sex offense, attempted statutory sex
offense, statutory rape, and indecent liberties with a child case by admitting the opinion
testimony of a doctor indicating it was probable that the minor child was a victim of sexual
abuse in the absence of any physical evidence, because: (1) the improperly admitted opinion by a
medical expert on the child's credibility prejudiced defendant in the eyes of the jury; and (2) the
State presented no other evidence beyond what the child told other witnesses, and as such, the
child's credibility was the strength of the State's case.
2. Indecent Liberties; Rape; Sexual Offenses--defense of lawful marriage--validity of
The trial court did not err by denying defendant's motion to dismiss the charges of first-
degree sex offense, attempted statutory sex offense, statutory rape, and indecent liberties with a
child based on the State's alleged failure to show that defendant and the child were not lawfully
married during the period of time at issue, because: (1) even though the defense of marriage is
valid for the charges of attempted statutory sex offense and statutory rape, defendant and the
child could not be lawfully married when N.C.G.S. § 51-2(b1) states it is unlawful for any
person under 14 years of age to marry, and the child in this case was between the ages of 11 and
13 during all the times and events at issue; and (2) the remaining charges of attempted first-
degree sex offense of a child under the age of thirteen years, taking indecent liberties with a child
who was thirteen years old, first-degree rape of a female under the age of thirteen years, and
taking indecent liberties with a child under the age of thirteen, do not permit lawful marriage as a
Appeal by defendant from judgments entered 5 November 2003 by
Judge Thomas D. Haigwood in Martin County Superior Court. Heard in
the Court of Appeals 18 November 2004.
Attorney General Roy Cooper, by Assistant Attorney General Sue
Y. Little, for the State.
Jeffrey Evan Noecker, for defendant-appellant.
James Earl Ewell (defendant)
appeals from judgments entered
after a jury found him to be guilty of:
(1) attempted first-degreesex offense of a child under the age of thirteen years (03 CRS
1673); (2) attempted statutory sex offense of a victim who was
thirteen years old (03 CRS 1674); (3) statutory rape of a victim
who was thirteen years of age (03 CRS 1675); (4) taking indecent
liberties with a child who was thirteen years old (03 CRS 1675);
(5) first-degree rape of a female under the age of thirteen years
(03 CRS 1676); and (6) taking indecent liberties with a child under
the age of thirteen (03 CRS 1676). We vacate defendant's
convictions and order a new trial.
Defendant dated J.H., a single mother of four children. T.G.
is J.H.'s daughter, born on 22 May 1989. J.H. and her children
lived in a small mobile home. Defendant occasionally stayed over
at J.H.'s home.
The State's evidence tended to show defendant initially
engaged in nonconsensual sexual intercourse with T.G. on 27 January
2001, when T.G. was eleven. T.G. testified that from that day
until September 2002 defendant allegedly forced her to engage in
sexual intercourse on more than thirteen occasions.
In October 2002, T.G. was diagnosed with Trichomonas, a
sexually transmitted disease. T.G. initially told her mother that
she had engaged in sexual relations with defendant's stepson, who
may have transmitted the disease to her. However, defendant's
stepson tested negative for the disease. T.G. then told her mother
that defendant was sexually abusing her. She also spoke with Dr.
Warren Webster, the school counselor, and Investigator Gregory
Daniels (Investigator Daniels) of the Martin County Sheriff'sOffice about the abuse. Dr. Webster reported the incidents to the
Martin County Department of Social Services (DSS), who conducted
an investigation. T.G. spoke with Investigator Daniels two more
times. When T.G. initially returned with her mother, she recanted
her story and stated that she had made it up because she thought
defendant was trying to hurt her mother. During her third
interview, T.G. told Investigator Daniels that defendant had
sexually abused her and that she lied earlier because she was
scared of defendant.
Investigator Daniels and DSS referred T.G. to Dr. Kathleen
Previll (Dr. Previll) for a medical examination. Dr. Previll
examined T.G. on 5 February 2003 and interviewed J.H. Dr. Previll
found no signs of trauma surrounding T.G.'s vaginal area and could
not reach an opinion of whether T.G. was sexually active based on
the physical evidence. She noted that although Trichomonas could
be contracted without sexual contact, it was unlikely.
Defendant was arrested on 23 June 2003. Defendant was later
indicted for: (1) attempted first-degree sex offense; (2)
attempted statutory sex offense; (3) statutory rape of person 13,
14, or 15; (4) indecent liberties with child; (5) first-degree
statutory rape; and (6) indecent liberties with child.
Defendant pled not guilty and did not testify or offer any
evidence at trial. He was found guilty of: (1) attempted first-
degree sex offense of a child under the age of thirteen years; (2)
attempted statutory sex offense of a victim who was thirteen years
old; (3) statutory rape of a victim who was thirteen years of age;
and (4) taking indecent liberties with a child who was thirteenyears old. The trial court found defendant possessed a prior
record level of IV based on ten misdemeanor convictions. The trial
court sentenced defendant to two consecutive active sentences of
not less than 339 nor more than 416 months each. Defendant
Defendant's assignments of error are whether the trial court
erred: (1) in admitting the testimony of Dr. Previll opining that
T.G. probably suffered sexual abuse; and (2) by failing to
dismiss the charges due to insufficiency of the evidence that
defendant and T.G. were not lawfully married. Defendant also
asserts he was denied his constitutional rights to effective
assistance of counsel when defendant's counsel failed to object to
Dr. Previll's opinion testimony.
III. Admission of Dr. Previll's Opinion Testimony
 Defendant argues the trial court committed plain error by
admitting the opinion testimony of Dr. Previll indicating it was
probable that T.G. was a victim of sexual abuse in the absence of
any physical evidence. We agree.
A. Preservation of Potential Error for Appellate Review
Rule 10(b)(1) of the North Carolina Rules of Appellate
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion. Any
such question which was properly preserved forreview by action of counsel taken during the
course of proceedings in the trial tribunal by
objection noted or which by rule or law was
deemed preserved or taken without any such
action, may be made the basis of an assignment
of error in the record on appeal.
N.C.R. App. P. 10(b)(1) (2004). Assignments of error are generally
not considered on appellate review unless an appropriate and timely
objection was entered. State v. Short, 322 N.C. 783, 790, 370
S.E.2d 351, 355 (1988) (citing State v. Reid, 322 N.C. 309, 367
S.E.2d 672 (1988)); N.C. Gen. Stat. § 15A-1446(a) (2003).
Our review of the transcripts and record fails to show that
defendant made a timely and specific objection when the State
proffered Dr. Previll's opinion testimony into evidence. The State
prefaced its question to Dr. Previll by stating to the trial court,
I'm not sure whether [defendant's counsel] is going to object to
my next question . . . . Following Dr. Previll's response, the
trial court asked defendant's counsel, Are you going to object to
that? She answered, No, sir.
Under Rule 10(b)(1), defendant failed to preserve this
assignment of error for review.
B. Plain Error Rule
Our Supreme Court adopted the plain error rule as an exception
to Rule 10 in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)
(applied to assignments of error regarding jury instructions). A
defendant seeking plain error review must specifically and
succinctly argue that any error committed by the trial court
amounted to plain error. State v. Nobles, 350 N.C. 483, 514-15,
515 S.E.2d 885, 904 (1999). The proponent must show that: [A]fter reviewing the entire record, it can be
said the claimed error is a fundamental
error, something so basic, so prejudicial, so
lacking in its elements that justice cannot
have been done, or where [the error] is
grave error which amounts to a denial of a
fundamental right of the accused, or the
error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted),
cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). Our Supreme
Court has extended plain error review to issues concerning
admissibility of evidence. State v. Black, 308 N.C. 736, 741, 303
S.E.2d 804, 807 (1983).
We examine the entire record to decide whether the error had
a probable impact on the jury's finding of guilt. Odom, 307 N.C.
at 661, 300 S.E.2d at 379 (citation omitted). We determine
whether, absent the error, would the jury have returned a different
verdict. State v. Riddle, 316 N.C. 152, 161, 340 S.E.2d 75, 80
Defendant properly argued in his brief with citations to
relevant authority that the admission of Dr. Previll's opinion
testimony constitutes plain error, warranting this Court's review
of an otherwise unpreserved assignment of error.
1. Expert Medical Testimony on Sexual Abuse
N.C. Gen. Stat. § 8C-1, Rule 702(a) (2003) provides, If
scientific, technical or other specialized knowledge will assistthe trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion. However, an expert's opinion testimony may not be
used to establish or bolster the credibility of a witness. State
v. Heath, 316 N.C. 337, 342, 341 S.E.2d 565, 568 (1986).
Our Supreme Court stated in State v. Stancil, 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. 355 N.C. 266, 266-67, 559
S.E.2d 788, 789 (2002) (citation omitted) (emphasis supplied).
In State v. Dixon, this Court stated:
[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.
150 N.C. App. 46, 52, 563 S.E.2d 594, 598 (emphasis supplied)
(citing State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002)), per
curiam aff'd, 356 N.C. 428, 571 S.E.2d 584 (2002); see also State
v. Grover, 142 N.C. App. 411, 418-19, 543 S.E.2d 179, 183-84
(Expert opinion testimony that a child has been sexually abused
based solely on the child's statements lacks a proper foundation
where no physical evidence of abuse is shown), aff'd, 354 N.C. 354,
553 S.E.2d 679 (2001); State v. Dick, 126 N.C. App. 312, 315, 485S.E.2d 88, 90 (Where there was no clinical evidence to support a
diagnosis of sexual abuse, experts' opinions that sexual abuse had
occurred merely attested to truthfulness of the child witness and
were inadmissible), disc. review denied, 346 N.C. 551, 488 S.E.2d
813 (1997); State v. Trent, 320 N.C. 610, 614, 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).
However, [w]hile it is impermissible for an expert, in the
absence of physical evidence, to testify that a child has been
sexually abused, it is permissible for an expert to testify that a
child exhibits 'characteristics [consistent with] abused
children.' Grover, 142 N.C. App. at 419, 543 S.E.2d at 184
(alteration in original) (quoting State v. Aguallo, 322 N.C. 818,
821, 370 S.E.2d 676, 677 (1988)); see also Stancil, 355 N.C. at
267, 559 S.E.2d at 789 (an expert witness may testify, upon
proper foundation, as to the profiles of sexually abused children
and whether a particular complainant has symptoms or
characteristics consistent therewith.). This testimony is
permitted to inform the jury that the lack of physical evidence of
abuse is not conclusive that abuse did not occur. State v. Bush,
164 N.C. App. 254, 258, 595 S.E.2d 715, 718 (2004) (citations
2. State v. Couser
This Court recently ruled on a similar issue in State v.
Couser, 163 N.C. App. 727, 594 S.E.2d 420 (2004). In Couser, the
defendant was charged with
first-degree statutory rape and taking
indecent liberties with a child
. Id. at 729, 594 S.E.2d at 422. The victim testified that the defendant forced her to engage in
sexual intercourse. Id. at 728 594 S.E.2d at 421.
offered further corroborating evidence from the victim's mother,
father, sister, and another acquaintance
. Id. at 729, 594 S.E.2d
at 422. Finally, the medical doctor who examined the victim
following the alleged incident 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 and
her diagnosis was probable sexual abuse with abrasions consistent
with the victim's history of sexual assault. Id. at 729, 594
S.E.2d at 422. On cross examination, the doctor testified that
the abrasions on the introitus could be caused by something other
than a sexual assault. Id. at 729, 594 S.E.2d at 422. The
defendant's counsel failed to object to the doctor's testimony.
Id. at 729, 594 S.E.2d at 423.
This Court found the admission of the doctor's testimony to be
plain error due to several factors: (1) the only evidence that
directly linked defendant to the alleged incident was the victim's
testimony as corroborated by
the mother, father, sister, and an
; (2) the defendant submitted to a rape suspect kit
with negative results; (3) the doctor's
opinion was based on her
examination and the history of the victim as given to her
abrasions the doctor observed on the victim's introitus were not
diagnostic nor specific to sexual abuse;
(5) no evidence was
proffered to show the victim's behavior or symptoms following the
assault were consistent with being sexually abused;
and (6) the
doctor's opinion testimony of probable sexual abuse, could beconstrued by the jury to include an attempted rape and
. Id. at 731-32, 594 S.E.2d at 423-24.
Here, the State offered expert medical opinion testimony
through Dr. Previll based upon: (1) her physical examination of
T.G.; (2) T.G.'s medical history; and (3) the existence of a
sexually transmitted disease. The only physical indication of any
sexual activity was T.G.'s diagnosis and treatment for Trichomonas.
Dr. Previll testified that based upon the physical exam, [t]here's
no way . . . I could prove or disprove that she's had sexual
intercourse or been sexually active. She found none of the
physical indicators for sexual activity, such as vaginal trauma,
tears in the hymen, or other associated injuries, despite T.G.'s
allegations of more than thirteen separate instances of sexual
intercourse. See State v. Moore, 103 N.C. App. 87, 94, 404 S.E.2d
695, 699 (indications of sexual abuse include: (1) no hymenal
tissue; (2) ragged scar tissue; (3) a urinary tract infection;
and (4) a significantly larger than normal vaginal opening for a
child that age), disc. rev. denied, 330 N.C. 122, 409 S.E.2d 607
(1991); State v. Herring, 322 N.C. 733, 739, 370 S.E.2d 363, 367-68
(1988) (bruising around throat indicated defendant choked victim in
process of rape; red and swollen eyes showed defendant tried to
put her eyes out with his thumbs). Rather, T.G.'s genital exam
was within the normal limits. Finally, on cross examination, Dr.
Previll acknowledged that I'm relying on the history [i.e., T.G.'s
statements] being true, in giving her opinion of probable sexual
Following this Court's analysis in Dixon and Couser and our
Supreme Court's decision in Stancil, we conclude the admission of
Dr. Previll's testimony that it was probable that [T.G.] was a
victim of sexual abuse was not based on any physical evidence or
behaviors consistent with sexual abuse and was error.
defendant did not object to Dr. Previll's opinion testimony, we
consider whether this error constitutes plain error.
3. Plain Error
Our review of the entire transcript and record on appeal
indicates the only evidence linking defendant to T.G. were her
statements and other witnesses' corroborative testimony. A medical
exam conducted six months after the last of at least thirteen
alleged sexual assaults returned no evidence of vaginal trauma.
T.G.'s contraction of Trichomonas is the sole physical evidence
that any sexual activity occurred. Dr. Previll testified that
sexual intercourse was not the only path of the disease's
transmission, although she acknowledged that nonsexual transmission
was unlikely. T.G. initially told J.H. that defendant's stepson
gave her the disease during intercourse. The stepson tested
negative for the disease. No evidence was presented that defendant
ever tested positive for Trichomonas. T.G.'s post-incident anger
management at school was described to be like many students. See
Couser, __ N.C. at __, 594 S.E.2d at 423. In addition, T.G.
recanted her allegations to Investigator Daniels.
In the absence of any physical evidence, the admission of Dr.
Previll's opinion testimony that it was probable that [T.G.] was
a victim of sexual abuse was error. See Couser, __ N.C. at __,594 S.E.2d at 423. The improperly admitted opinion by a medical
expert on T.G.'s credibility prejudiced defendant in the eyes of
the jury. See Odom, supra; see also Grover, 142 N.C. App. at 421,
543 S.E.2d at 185 ([W]e note that because all of the State's
charges against defendant rest upon the alleged sexual abuse of
defendant's two children, and because the inadmissible expert
opinion lent credibility to the children's testimonies with no
other supporting evidence, defendant is entitled to a new trial as
to all charges.).
The State presented no other evidence beyond what T.G. told
other witnesses. As such, T.G.'s credibility was the strength of
the State's case and evidence was presented to put T.G.'s honesty
in doubt. Consequently, any comment on T.G.'s credibility weighed
heavily on all charges. The jury could have interpreted Dr.
Previll's testimony of probable sexual abuse to include all of
the sexual offenses defendant was charged with, even those not
associated with physical injuries. See Couser, __ N.C. at __, 594
S.E.2d at 423. We hold the admission of Dr. Previll's expert
medical opinion testimony was prejudicial to defendant and
constitutes plain error.
We vacate defendant's convictions of: (1) attempted first-
degree sex offense of a child under the age of thirteen years; (2)
attempted statutory sex offense of a victim who was thirteen years
old; (3) statutory rape of a victim who was thirteen years of age;
and (4) taking indecent liberties with a child who was thirteen
years old. In light of our holding, we do not address defendant's
assignment of error regarding ineffective assistance of counsel.
IV. Motion to Dismiss
 Defendant asserts the trial court erred in denying his
motion to dismiss on all the charges due to the State's failure to
show T.G. and defendant were not lawfully married during the period
of time at issue. We address this issue because it may arise
during any retrial of defendant and we disagree.
Defendant was charged with: (1) attempted first-degree sex
offense of a child under the age of thirteen years; (2) attempted
statutory sex offense of a victim who was thirteen years old; (3)
statutory rape of a victim who was thirteen years of age; (4)
taking indecent liberties with a child who was thirteen years old;
(5) first-degree rape of a female under the age of thirteen years;
and (6) taking indecent liberties with a child under the age of
The charges of attempted statutory sex offense and statutory
rape allow for the defense of marriage. However, it only applies
if the victim and perpetrator are lawfully married. See N.C. Gen.
Stat. § 14-27.7A (2003). Under N.C. Gen. Stat. § 51-2(b1) (2003),
defendant and T.G. could not be lawfully married. N.C. Gen. Stat.
§ 51-2(b1) states, It shall be unlawful for any person under 14
years of age to marry. T.G. was between the ages of 11 and 13
during all the times and events at issue.
The remaining charges of: (1) attempted first-degree sex
offense of a child under the age of thirteen years; (2) taking
indecent liberties with a child who was thirteen years old; (3)
first-degree rape of a female under the age of thirteen years; and
(4) taking indecent liberties with a child under the age ofthirteen do not permit lawful marriage as a defense. See N.C. Gen.
Stat. § 14-27.4 (First-degree sexual offense), § 14-202.1 (Taking
indecent liberties with children), and § 14-27.2(a)(1) (First-
degree rape). This assignment of error is overruled.
The admission of Dr. Previll's expert medical opinion
testimony that it was probable that [T.G.] was a victim of sexual
abuse was plain and prejudicial error concerning all charges
against defendant. A new trial is ordered for: (1) attempted
first-degree sex offense of a child under the age of thirteen
years; (2) attempted statutory sex offense of a victim who was
thirteen years old; (3) statutory rape of a victim who was thirteen
years of age; and (4) taking indecent liberties with a child who
was thirteen years old. Lawful marriage is not a defense to the
charges brought against defendant. We decline to address
defendant's assertion of ineffective assistance of counsel.
We order a new trial in 03 CRS 1673, 03 CRS 1674, 03 CRS 1675,
and 03 CRS 1676.
Judges TIMMONS-GOODSON and GEER concur.
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