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1. Evidence--expert opinion--child sex abuse--credibility
The trial court committed plain error in a first-degree sexual offense case by admitting the testimony of a doctor that she had diagnosed the minor victim as having been sexually abused by defendant, and defendant is entitled to a new trial, because: (1) the only evidence that defendant sexually abused the victim is the victim's own statements to the testifying witnesses; (2) there was no physical evidence, yet the doctor testified that this lack of physical evidence was absolutely consistent with the victim's account; (3) the doctor conclusively stated that defendant sexually assaulted the minor child when the doctor testified that she diagnosed the minor child as having been sexually abused by defendant; (4) the doctor's inadmissible opinion likely had an impact on the jury's finding of guilt; (5) admission of expert testimony on a victim's credibility prejudices defendant in the eyes of the jury when the minor child's credibility is the central issue in the case; (6) there was no other permissible expert testimony, there was no evidence that the victim exhibited behaviors that were consistent with having suffered from sexual assault, and the State did not present other overwhelming evidence of defendant's guilt; and (7) the only physical manifestation of injury suffered by the minor child in this case was pain, which is subjective and not independently verifiable.
2. Evidence--prior crimes or bad acts-_child sex abuse
The trial court erred in a first-degree sexual offense case by overruling defendant's objection and permitting a witness to testify that defendant had sexually abused her twenty-three years earlier, because: (1) evidence that a defendant engaged in previous sexual abuse is inadmissible when a significant lapse of time exists between the instances of alleged sexual abuse; (2) the lapse of time between the alleged instances of abuse merits against finding that defendant was engaged in an ongoing plan or scheme of sexual abuse; (3) unlike in State v. Jacob, 113 N.C. App. 605 (1994), the State offered no evidence that defendant did not have access to his preferred victim during the twenty-three year time span between the alleged instances of abuse, or that his plan was interrupted and then resumed twenty-three years later; and (4) although the State for the first time on appeal relies on Rule 404(b) to show identity and intent, this argument is not properly before the Court of Appeals.
3. Evidence--prior crimes or bad acts--possession of pornographic magazines and
women's underwear--impermissible character evidence
Although the trial court did not commit plain error in a first-degree sexual offense case by allowing the State to elicit a witness's testimony that defendant possessed pornographic magazines and women's underwear, the admission of the testimony should not be presented at defendant's new trial (granted on other grounds) for the purpose of showing defendant's propensity to commit the crime, because: (1) the State presented no evidence that defendant's possession of pornographic magazines and women's underwear played any part in the alleged offenses; and (2) the evidence was not relevant to prove the charges against him and was merely impermissible character evidence.
4. Appeal and Error--preservation of issues--failure to argue
Assignments of error that were not addressed in defendant's brief are deemed abandonedpursuant to N.C. R. App. P. 28(b)(6).
Judge BRYANT concurring in part and dissenting in part.
Attorney General Roy Cooper, by Special Deputy Attorney
General Celia Grasty Lata, for the State.
Daniel Shatz for defendant-appellant.
Stephen M. Delsanto (defendant) was indicted on one count of
first degree sexual offense, in violation of N.C. Gen. Stat. § 14-
27.4 (2003), and one count of taking indecent liberties with a
child, in violation of N.C. Gen. Stat. § 14-202.1 (2003).
The State's evidence at trial tended to show that defendant stayed at the home of his daughter (Bonnie) from 30 September 2002 to 3 October 2002. Defendant's ex-wife (Brenda), son-in-law (Bobby), and twin grandchildren (H.B. and W.B.) were also living in the home. H.B. and W.B. were three years old at the time. Bobby testified that on the evening of 3 October 2002, he was watching television with H.B. and W.B., when H.B. began rubbing her genital area. H.B. complained of pain and said "Pawpaw [defendant] touched me down there." H.B. also said "Pawpaw messed with [W.B.'s] penis." Bobby reported this information to Brenda, but did not tell Bonnie because Bonnie was sleeping at the time.
The following day, Brenda told Bonnie what Bobby had learned. Bonnie asked H.B. and W.B. whether they spoke with Bobby the night before. H.B. said yes, and that defendant had touched her "ginny," her shortened term for vagina. Bonnie retrieved a doll and asked H.B. to show Bonnie where defendant had touched H.B. H.B. spread the doll's legs and put her finger on the genital area. Bonnie called the Davie County Department of Social Services and Detective John Stephens (Detective Stephens) with the Davie County Sheriff's Department.
Detective Stephens interviewed H.B. He testified that H.B. told him that her "Pawpaw touched her gina and put his finger in there, and it hurt." H.B. also stated that defendant touched W.B.'s genitals. Detective Stephens was unable to successfully interview W.B. Detective Stephens made an appointment for H.B. to visit a pediatrician, Dr. Kathleen Russo (Dr. Russo), for an evaluation. Detective Stephens did not make an appointment for W.B. because, based on the allegations, there would have been no physical evidence of abuse.
Dr. Russo testified that she had received advanced recognition by the University of North Carolina Child Medical Evaluation Program, which signified that she had received advanced training in child sexual abuse. Dr. Russo testified that she examined H.B. on 18 October 2002. Dr. Russo asked H.B. if anyone had "touched [her] or hurt [her] some place that [she] did not like." H.B. responded that defendant touched her "inside" her genitals. H.B. also demonstrated this act on an anatomically correct doll.
Dr. Russo then completed a physical examination but did notnote any trauma or indications of abuse in H.B.'s genital area. Dr. Russo testified that although she did not observe any physical manifestations of sexual abuse, the examination was "absolutely consistent" with H.B.'s assertion that defendant touched her genital area. Dr. Russo explained that the anatomy of the female genital area is such that healing and return to the pre-trauma condition can occur very rapidly. Dr. Russo then testified that she diagnosed H.B. as having "suffered from the sexual abuse that she disclosed to [Dr. Russo] and [H.B.'s] family."
L.B., defendant's twenty-seven-year-old niece, also testified at trial that defendant was her babysitter when she was about four years old. L.B. testified that defendant would tell her to lie on the bed, then he would remove her pants and underwear, touch her genital area and perform oral sex on her. She also stated that on one occasion defendant made her touch and kiss his penis. L.B. testified that she only told her parents and stepmother about this abuse, but that she was aware that other family members had discussed the abuse with Bonnie.
Deborah Gordon (Gordon) testified on behalf of defendant. On cross-examination, Gordon testified that she helped retrieve some of defendant's belongings from Bonnie's home. Gordon testified that defendant had a backpack of "vulgar" magazines and some pairs of women's underwear.
The jury convicted defendant of first degree sexual offense with H.B., but acquitted defendant on the charge of indecent liberties with W.B. The trial court entered judgment on 15September 2003 and sentenced defendant to a minimum term of 288 months and a maximum term of 355 months in prison. Defendant appeals.
BRYANT, Judge concurring in part and dissenting in part.
I dissent from the majority opinion granting defendant a new trial upon finding plain error in the admission of Dr. Russo's testimony. I disagree that the trial court committed any error byadmitting the testimony of Dr. Russo, and I strongly disagree that there was plain error committed. The majority states the expert medical opinion of Dr. Russo was impermissible testimony on the victim's credibility. However, the record shows Dr. Russo's expert medical opinion was based on her training and experience. Dr. Russo was tendered and admitted as an expert in pediatric gynecology and in child [sexual] abuse. The record also shows that in addition to extensive medical training in pediatrics and child abuse, Dr. Russo had interviewed and examined child victims of physical and sexual abuse, on average, once a week for seven years prior to her testimony.
Rule 702 provides in part:
If scientific, technical or other specialized knowledge will assist the 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.
N.C. Gen. Stat. § 8C-1, Rule 702 (2003).
In determining whether expert medical opinion is to be
admitted into evidence the inquiry should be . . . whether the
opinion expressed is really one based on the special expertise of
the expert, that is, whether the witness because of his expertise
is in a better position to have an opinion on the subject than is
the trier of fact. State v. Trent, 320 N.C. 610, 614, 359 S.E.2d
463,465 (1987). Here, based on training and experience, Dr. Russo
was certainly in a better position to have an opinion on whether
the child in the instant case had been sexually abused. Dr. Russoevaluates each child's intellectual ability as a part of her
examination. As a medical professional she must determine whether
a child can accurately relay medical information in order for her
to use that information in medically diagnosing or treating a child
When asked at trial if her physical examination of the child was consistent with the history given, Dr. Russo replied:
It was absolutely consistent. With what [the
child] stated happened, I would expect a
normal examination. The tissues down there are
very elastic. In other words, they can stretch
and then return to their normal shape. Also,
healing is very rapid in that area. . . and 
takes place very quickly. So with the type of
abuse that she disclosed, I would not expect
to see signs of trauma or damage. . . .
Dr. Russo was then asked her diagnosis:
My diagnosis was that [the child] had suffered from the sexual abuse that she disclosed to me and her family. And my feelings were that [the child] being a three[-]year[-]old child could not fantasize that these events occurred. She could not make them up. Children that young do not have the ability to fantasize or [OBJECTION OVERRULED] an act like that they have not experienced. It's not within their mental ability to do that. So based on what she told me, the consistency of what she told me, what she told the parents, what she told law enforcement was just all very striking, and that I felt like she was -- that she did experience that abuse.
[I]t is well-settled that testimony based on the witness's examination of the child witness and expert knowledge concerning the abuse of children in general is not objectionable because it supports the credibility of the witness or states an opinion that abuse has occurred. State v. Dick, 126 N.C. App. 312, 315, 485S.E.2d 88, 89 (1997) (internal citations omitted). Here, the child described to Dr. Russo pain inside her vaginal area and described where they were sitting when the incident occurred. She also demonstrated for Dr. Russo using anatomical dolls, where she was touched. Therefore, when Dr. Russo conducted her examination of the vaginal area of the child, the results were consistent with what she had been told. In other words, one would not necessarily expect to see scarring or trauma or other physical evidence of abuse based on the history given.
The majority discusses many cases including State v. Bush, 164 N.C. App. 254, 595 S.E.2d 715 (2004), State v. Couser, 163 N.C. App. 727, 594 S.E.2d 420 (2004) and State v. Dixon, 150 N.C. App. 46, 563 S.E.2d 594 (2002) for the proposition that it is error to admit expert opinion testimony in child sexual assault cases where no physical evidence of abuse exists. To the extent that these cases stand for that proposition, such a conclusion is reasonably applicable only in sexual assault cases where one would expect to find physical evidence of abuse. Such cases might include forcible sexual assault or repeated sexual abuse. See, e.g., State v. Goforth, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (June 7, 2005) (No. COA04-608) (where child medical expert testified if there are physical findings [in a child's examination], this is usually indicative of repeated abuse). The instant case is factually similar to many, many child sexual assault cases where the nature of the assault, a sexual touching, is such that one would not expect physical evidence of abuse. See, Id. Therefore, in thosecases where the clinical evidence of sexual abuse is based on expert medical testimony that the acts of sexual abuse alleged are unlikely to leave physical evidence, that testimony is valid and states the basis for the expert's opinion. For these reasons, I would hold Dr. Russo's testimony to be permissible medical opinion from an expert in child abuse, and would find no error in its admission.
Nevertheless, even assuming arguendo the admission of this expert medical opinion testimony was erroneous, it did not arise to the level of plain error. As our Supreme court has stated time and again, plain error is error 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.' State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (citations omitted), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000). Plain error does not simply mean obvious or apparent error. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). The plain error rule must be applied cautiously and only in exceptional cases where, 'after 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.' State v. Davis, 349 N.C. 1, 29, 506 S.E.2d 455, 470 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d. 219 (1999) (citations omitted).
The majority states that Dr. Russo's inadmissible opinion likely had an impact on the jury's finding. . . and that [i]n theabsence of overwhelming evidence of defendant's guilt, . . . the admission of Dr. Russo's diagnosis was plain error. I disagree as there is significant additional evidence in the record regarding the sexual abuse of this three year old child such that absent the testimony of Dr. Russo, the jury would nevertheless have reached a verdict of guilty. The jury heard the testimony of the child's father who testified in pertinent part:
Q. During that time period while you were in the living room that evening with your children, did you observe anything unusual take place?
A. Well, my little girl, she was messing. . . . She was messing with herself, like rubbing --
Q. Okay. And when you indicate that she was messing with herself and rubbing, what part of her body was she doing that to?
. . .
A. Her private part.
Q. Okay. At that point in time when you observed that, did you say anything to [the child]?
A. I said [H], what are you doing? . . .
She said, It hurts[.]
Q. Okay. Did she make any other comments at
A. She said that -- that Pawpaw -- she calls him Pawpaw. . . . Pawpaw touched me down there. . . She said he touched her down there with his finger.
Detective John Stephens of the Davie County Sheriff's Department reported to the home on the date of the incident and spoke to the three-year-old child. Detective Stephens told thejury that: She was a real sweet young lady. She told me that her Pawpaw touched her 'gina' and put his finger in there and it hurt. He further testified the child got a doll to indicate what her grandfather did to her. [S]he put the doll on the table . . . [s]he opened the doll's legs and put her finger inside between the doll's legs at the vaginal area.
The mother of the child testified before the jury and stated the child said Pawpaw touched her and that it hurt, and that the child, using a doll, demonstrated where her grandpa touched her. The mother also testified the child's attitude and behavior had changed since the incident in that the child had more attitude and she did not want any men in the bathroom with her, even her twin brother. In addition, the mother testified about two conversations with her father; one in which he denied touching the child; and another in which he said I'm sorry for what I've done. I know what I've done wrong and I'm where I need to be[.] Given this strong testimonial evidence against defendant, it is not probable the jury would have reached a different verdict absent Dr. Russo's testimony.
In part II the majority holds that admission of evidence that defendant sexually abused his niece twenty-three years ago was in error and should not be admitted during [defendant's] new trial[.] As stated infra, I would hold defendant is not entitled to a new trial based on the admission of Dr. Russo's testimony. Because of the strong evidence otherwise of defendant's guilt, I would hold the other crimes evidence involving defendant's niece tobe harmless error.
As to part III of the majority opinion, I agree with the majority's conclusion that the admission of evidence of defendant's possession of pornographic magazines and women's underwear did not arise to the level of plain error.
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