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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
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. KENNETH WAYNE GOFORTH
Filed: 7 June 2005
1. Sexual Offenses--first-degree--instructions--anal intercourse--evidence supporting
There was sufficient evidence of anal intercourse with each of two children to support
inclusion of anal intercourse in the enumerated acts in a first-degree sexual offense instruction
and there was no plain error in the instruction.
2. Evidence--sexual abuse--expert medical opinion--foundation in physical evidence
Expert medical testimony that two children had been repeatedly abused sexually was
properly admitted where there was a proper foundation of physical evidence consistent with
3. Evidence--corroboration of child's statement--variation
A detective's testimony corroborating statements by a child who was the victim of sexual
abuse was admissible, even though there was some variation from the child's statement.
Appeal by defendant from a judgment dated 26 August 2003
Judge Susan C. Taylor in Cabarrus County Superior Court. Heard in
the Court of Appeals 13 January 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Office of the Public Defender, by Assistant Public Defender
Julie Ramseur Lewis, for the defendant-appellant.
Kenneth Wayne Goforth (defendant) appeals from judgments
entered consistent with guilty verdicts dated 26 August 2003
of tencounts of first-degree statutory sexual offense, four counts of
statutory rape, and one count of taking indecent
liberties with a child. Defendant was sentenced to a minimum of
240 months and a maximum of 297 months for six counts of first-
degree sexual offense and three counts of first-degree rape. The
remaining four counts of first-degree sexual offense, one count of
first-degree rape, and one count of taking indecent liberties with
a child were consolidated and the court imposed a sentence of 240
to 297 months to run consecutive to the first sentence.
The State's evidence tended to show the following: Defendant
the stepgrandfather of the two child victims in this case
(See footnote 1)
, born 22 May 1990, was thirteen years old at the time of
trial. From November 1997 until April 1998,
when B.F. was seven
years old, she lived at defendant's house with defendant, her
mother, father and brother. B.F. slept in a room with a pantry,
her parents slept in the bedroom, and defendant slept in the living
room on the couch bed. At times, B.F.'s parents left her and her
brother alone with defendant. During these times, defendant would
tell B.F.'s brother to go outside and would push him out and lock
the door. When B.F. and defendant were alone, defendant would
touch B.F. sexually. After moving out in April 1998, B.F. and her family visited
defendant on weekends
and they often spent the night. When B.F.
and her family visited defendant in June, July and August of 2001,
defendant touched B.F. sexually. Defendant told her not to tell or
she would get in trouble. However, B.F.
eventually told her mother
and Detective Chris Nesbitt of the Kannapolis Police Department
about defendant's conduct after defendant's sexual abuse of T.B.
T.B., who is B.F.'s cousin
, was born 26 December 1994 and was
eight years old at the time of trial. From May 1998 until June
, T.B. and her mother lived with defendant. For those two
years, T.B. and her mother slept in the bedroom, while
slept in the living room on the couch.
Defendant cared for T.B. frequently while her mother worked.
While alone, defendant would touch T.B.'s privates - in her bottom
private, in her mouth and in her back private. Defendant touched
T.B. in her bottom private with his hot dog and it hurt. At
first, T.B. did not tell her mother because defendant threatened
her and told her they would be in a whole lot of trouble. After
T.B. and her mother moved out of defendant's home, T.B. told her
mother, a police officer and a nurse about defendant's conduct.
On 13 August 2001,
T.B. was interviewed by Nurse Julie
Brafford. T.B., who referred to defendant as papa
, stateddefendant put his privates in her privates and in her mouth and
told T.B. not to tell anyone about these acts or they would get in
Approximately five weeks later, on 24 September 2001, B.F. was
seen at the Children's Advocacy Center (CAC) at Northeast Medical
by Nurse Brafford, Dr. Rosalina Conroy and Detective
Before being seated, B.F. said she was scared to tell
them what that guy did. When Nurse Brafford asked her who the
guy was, B.F. said Kenneth Wayne Goforth. B.F. told Nurse
Brafford defendant touched her and put his private in her private
Defendant raises three issues on appeal: whether the trial
court erred in (I) instructing the jury on first-degree sexual
offense with regard to anal intercourse as to B.F.; (II) allowing
Dr. Conroy to testify to her medical conclusions that T.B. and B.F.
had been repeatedly sexually abused; and (III)
Detective Nesbitt to testify regarding B.F.'s statements.
 Defendant first argues the trial court erred in its jury
charge by including anal intercourse among the enumerated acts that
could support the charge of first-degree sexual offense because the evidence did not show anal intercourse had occurred with B.F.,
only with T.B.
Because defendant failed to object to the jury instructions at
trial, the standard of review therefore is plain error. N.C. R.
App. P. 10(b)(2); 10(c)(4). Under the plain error standard,
defendant must show that the instructions were erroneous and that
absent the erroneous instructions, a jury probably would have
returned a different verdict. N.C. Gen. Stat. § 15A-1443(a)
(2003); State v. Lucas, 353 N.C. 568, 584, 548 S.E.2d 712, 723
(2001) (citation omitted). The error in the instructions must be
so fundamental that it denied the defendant a fair trial and quite
probably tilted the scales against him. Id. (quoting State v.
Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993)). It is the
rare case in which an improper instruction will justify reversal of
a criminal conviction when no objection has been made in the trial
court. State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378
(1983) (citation and quotation omitted). In deciding whether a
defect in the jury instruction constitutes plain error, the
appellate court must examine the entire record and determine if the
instructional error had a probable impact on the jury's finding of
In the present case, defendant was charged with ten counts of
first-degree sexual offense; six counts involving victim T.B. andfour counts involving victim B.F. The crime of first-degree sexual
offense is committed when a defendant engages in a sexual act with
a child under the age of 13 years and the defendant is at least 12
years old and at least four years older than the victim. N.C. Gen.
Stat. § 14-27.4(a) (2003). A sexual act is defined by statute as
cunnilingus, fellatio, analingus, anal intercourse, or the
penetration, however slight, by any object into the genital or anal
opening of another person's body. N.C. Gen. Stat. § 14-27.1(4)
(2003). The trial court instructed the jury in one charge as to
all of the counts of sexual offense for which defendant was
accused, as follows:
The defendant has been charged with ten counts
of first degree sexual offense. For you to
find the defendant guilty in each of these
offenses, the state must prove three things
beyond a reasonable doubt, in each of these
First, that the defendant engaged in a sexual
act with the victim. A sexual act means
fellatio, which means any touching by lips or
tongue of one person of the male sex organ of
another, anal intercourse which is any
penetration, however slight, of the anus of
any person by the male sexual organ of
another; any penetration, however slight, by
an object into the anal opening of a person's
body; second, that at the time of the acts
alleged, the victim was a child under the age
of thirteen; third, that at the time of the
alleged offense, the defendant was at least
twelve years old and was four years older than
In considering each of those counts
separately, if you find from the evidence,
beyond a reasonable doubt, that on or about
the alleged date the defendant engaged in a
sexual act with a victim, and that, at the
time, the victim was a child under the age of
thirteen years old and was at least four years
older than the victim, it would be your duty
to return a verdict of guilty. If in
considering each of these counts separately,
if you do not so find, or if you have a
reasonable doubt as to one or more of these
things, it would be your duty to return a
verdict of not guilty.
After hearing the charge, the jury left the courtroom. The trial
court asked the parties whether, before the jury began
deliberations, they had any requests, corrections, or additions to
the jury instructions given. Defendant did not object to the
charge as given or propose additional instructions or suggest a
different charge be given as to each victim involved. Defendant
now complains, however, he was prejudiced by the trial court having
included anal intercourse in the instruction. Defendant does not
contend there was any lack of evidence defendant engaged in anal
intercourse with T.B. At trial T.B. testified defendant had
engaged in numerous acts of anal intercourse with her: defendant
touched her in her bottom private with his hot dog and it hurt;
defendant put his private in her back private in the living room;
and defendant put his private in her back private a lot and in her
mouth a lot. As to B.F., there is evidence defendant committed acts of anal
intercourse. Nurse Brafford testified that B.F. said defendant
tried to put his dick in her butt and that it didn't feel good
whenever he tried to put it in her butt. Defendant refers to
Brafford as a corroboration witness, and indeed she was. However,
Brafford's testimony was admissible as corroborative and
substantive evidence because defendant did not object to her
testimony or request a limiting instruction. See State v. Ford,
136 N.C. App. 634, 640, 525 S.E.2d 218, 222 (2000) (citing State v.
Goodson, 273 N.C. 128, 129, 159 S.E.2d 310, 311 (1968)) (if
offering party does not designate purpose for which evidence is
offered, evidence is admissible as either corroborative evidence or
competent substantive evidence; trial court not required to provide
limiting instruction unless requested by party objecting to use of
evidence as substantive). The admission of evidence, competent
for a restricted purpose, will not be held error in the absence of
a request by defendant for a limiting instruction. State v.
Jones, 322 N.C. 406, 414, 368 S.E.2d 844, 848 (1988). Such an
instruction is not required to be given unless specifically
requested by counsel. State v. Smith, 315 N.C. 76, 82, 337 S.E.2d
833, 838 (1985).
In the instant case there was significant evidence of repeated
acts of sexual touching, including anal intercourse, by defendantas to B.F. and T.B., therefore, the trial court properly included
anal intercourse among the enumerated acts that would support a
finding of first-degree sexual offense.
This assignment of error
 Defendant next argues the trial court erred in allowing
Dr. Conroy to testify to her medical conclusions that T.B. and B.F.
had been repeatedly sexually abused.
Defendant neither objected to nor moved to strike this
testimony. The standard of review therefore is plain error. N.C.
R. App. P. 10(b)(2); 10(c)(4); see State v. Walker
, 316 N.C. 33,
38-39, 340 S.E.2d 80, 83 (1986) (citation omitted); State v. Black
308 N.C. 736, 741, 303 S.E.2d 804, 806-07 (1983).
Dr. Conroy was admitted as an expert in the fields of
pediatrics and child abuse and allowed to testify p
ursuant to Rule
702. N.C. Gen. Stat. § 8C-1, Rule 702 (2003) ([A] witness
qualified as an expert . . . may testify thereto in the form of an
It is well settled that [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. State v. Dixon
150 N.C. App. 46, 52, 563 S.E.2d 594, 598 (2002) (citationomitted). See also State v. Dick
, 126 N.C. App. 312, 315, 485
S.E.2d 88, 90 (distinguishing the facts of that case, where there
was physical evidence of the abuse, from those cases where there
was no physical evidence, as in State v. Trent
, 320 N.C. 610, 359
S.E.2d 463 (1987), and State v. Parker
, 111 N.C. App. 359, 432
S.E.2d 705 (1993)
, in finding the rendering of the doctor's opinion
to be without error).
In the present case, there was physical evidence of abuse; the
hymenal tissues of B.F. and T.B. reflected penetrating trauma.
Defendant, however, cites extensive caselaw in which there was no
such physical evidence of sexual abuse, and which states where
there is no physical evidence to support a diagnosis of sexual
abuse, the trial court should not admit expert opinion that sexual
abuse has in fact occurred because such testimony amounts to an
impermissible opinion regarding the victim's credibility. See
State v. Stancil
, 355 N.C. 266, 267, 559 S.E.2d 788, 789; see also
at 614-15, 359 S.E.2d
State v. Couser
, 163 N.C.
App. 727, 730, 594 S.E.2d 420, 422 (2004)
; State v. Grover
N.C. App. 411, 543 S.E.2d 179 (2001)
. These cases are clearly
distinguished from the present case, where there was strong
physical evidence of abuse.
Generally, Dr. Conroy testified that when penetration is
alleged, the findings could be anything from absolutely nothing toscar tissue. Probably less than 5% of the children that Dr. Conroy
examines who allege abuse will have physical findings because
children are groomed and learn very quickly that if something hurts
to relax. Dr. Conroy testified that if there are physical
findings, this is usually indicative of repeated abuse.
During T.B.'s examination on 13 August 2001
physical findings of sexual abuse.
Pictures of T.B.'s vagina were
taken with the culposcope
, revealing the vascularity reflected in
the color of the hymen. Dr. Conroy testified during a genital exam
of a young girl, they look at the hymenal ring, which if normal is
supposed to be a uniform thickness all the way around with no
indentations; the edge should be smooth. If there has been trauma
to the hymen, scar tissue may form at the location where the hymen
has been split and comes back together. The normal hymen also has
very pink color but when a scar is present, there is a loss of
blood vessels in the area of the scar. Dr. Conroy concluded T.B.
was sexually abused because her hymen had a relatively smooth edge
except for two notches around an area of pallor, visibly pink, then
pale, then pink. This color variance indicated there had been
trauma to the hymen, it had healed and a loss of vascularity
existed in that area in between the notches. Based on her
experience and training,
Dr. Conroy's observations of T.B.'s vagina
indicated this loss of vascularity would be caused by anintentional, penetrating vaginal trauma.
After discussing T.B.'s
medical history and conducting the physical examination, Dr. Conroy
reached a medical conclusion that T.B. had been repeatedly sexually
In B.F.'s case, Dr. Conroy learned from Nurse Brafford of
B.F.'s alleged penetration by a male private part into her private
Dr. Conroy physically examined B.F. on 24 September 2001,
after having reviewed a February 1998
(See footnote 2)
culposcope photograph of
B.F.'s hymen, which showed an area of pallor on the hymen
suspicious for sexual abuse. Based upon Dr. Conroy's training and
experience, she testified the cause of such irregularity would be
sexual abuse, penetrating trauma, not accidental. In comparison,
the 2001 photographs of B.F.'s hymen show physical evidence of
sexual abuse _ loss of vascularity, linear pallor that is in the
same position as the earlier photographs, only more advanced and
more extensive than in the 1998 photograph. After physically
examining B.F., discussing her medical history and looking at her
culposcope photographs, Dr. Conroy reached a medical conclusion
that B.F. also had been repeatedly sexually abused.
As we said in Dixon
, where there is a proper foundationshowing physical evidence consistent with sexual abuse, an expert
medical witness may properly render an opinion pursuant to Rule 702
that sexual abuse has in fact occurred. Dixon
at 52, 563 S.E.2d at
598. Here, there was a sufficient foundation of physical evidence
of abuse for Dr. Conroy to properly render her expert opinion that
both child victims had been repeatedly sexually abused.
Conroy's testimony was properly admitted. This assignment of error
 Defendant contends
the trial court erred in permitting
Detective Nesbitt to testify regarding statements made by B.F.
Where testimony which is offered to corroborate the testimony
of another witness does so substantially, it is not rendered
incompetent by the fact that there is some variation. State v.
, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980). 'Such
variations affect only the weight of the evidence which is for the
jury to determine.' State v. Benson
, 331 N.C. 537, 552, 417
S.E.2d 756, 765 (1992) (quotation omitted). Prior consistent
statements are admissible even though they contain new or
additional information so long as the narration of events is
substantially similar to the witness' in-court testimony. State
, 333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992). The
admission of evidence which is competent for a restricted purposewill not be held error in the absence of a request by the defendant
for limiting instructions. State v. Jones
, 322 N.C. 406, 414, 368
S.E.2d 844, 848 (1988).
However, the witness's prior
contradictory statements may not be admitted under the guise of
corroborating his testimony. State v. Ramey
, 318 N.C. 457, 469,
349 S.E.2d 566, 574 (1986); State v. Frogge
, 345 N.C. 614, 618, 481
S.E.2d 278, 280 (1997) (error to admit statement of witness where
prior statement contained information manifestly contradictory to
his testimony at trial and did not corroborate the testimony).
At trial B.F. responded no
to the question of whether she
had spent the night at defendant's house in June and August 2001.
Defendant maintains B.F.'s statement, as rendered by Detective
Nesbitt at trial, was fatally contradictory:
The weekend before my paw-paw got arrested,
me, [my brother], mom and dad were at my
paw-paw's. I don't remember if it was a
Saturday or Sunday, but it was in the morning
I came out of the bathroom and paw-paw stopped
me in the hallway to keep me from going back
to the bedroom that I fell asleep in - or that
I sleep in. He grabbed my right hand and put
it on his privates. He had on skimpy shorts
and no shirt. He pulled his shorts down until
his privates hung out. He put his privates in
my mouth for about five minutes. Paw-paw said,
oops, and white stuff came out of his
privates. He heard a door open and he pulled
his shorts back up.
Later that same night, I was asleep in my bed_ - or in bed and I woke up. Paw-paw had his
hands at my privates and he licked my
privates. I had on my panties, but he moved
them to the side. I told him to stop and he
left the room. He came back into my room later
while I was still asleep and put his privates
in my privates. I told him to stop and he did.
Without having objected at trial, defendant argues admitting B.F.'s
statement to Detective Nesbitt was plain error because the
statement was inadmissible hearsay and failed to corroborate her
response at trial. We reject defendant's portrayal of B.F.'s prior
statement to Detective Nesbitt as fatally contradictory to her
single response at trial. In addition to Detective Nesbitt's
statement, B.F. and her mother also testified after the family
moved out, they would visit defendant on weekends and spend the
night. B.F. and her mother testified the family did spend nights
with defendant when they went to his house for cookouts. B.F.'s
statement to Detective Nesbitt was not manifestly contradictory
but rather a slight variation from B.F.'s response at trial to
whether she had spent the night at defendant's in 2001. B.F.'s
statement to Detective Nesbitt was competent, corroborative
testimony and the trial court did not err in admitting the
detective's testimony. This assignment of error is overruled.
Judges HUNTER and JACKSON concur.
Initials have been used throughout to protect the identity of
B.F. was examined at the CAC in 1998, however there are no
additional facts in the record regarding B.F.'s visit to the center
prior to 2001.
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