State v Burns, 168 NC App 596 (03-1474) 02/15/2005

Appeal by defendant from judgment entered 24 July 2003 by Judge Gary L. Locklear in Robeson County Superior Court. Heard in the Court of Appeals 25 October 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Celia Grasty Lata, for the State.

Jeffrey Evan Noecker for defendant-appellant.

TIMMONS-GOODSON, Judge.

    A jury found defendant guilty of first-degree statutory sexual offense with a child under thirteen years of age. N.C. Gen. Stat. § 14-27.4 (2003). The trial court sentenced defendant within the applicable mitigated range to a term of 173 to 217 months of imprisonment. Defendant gave notice of appeal in open court.
    Monica,   (See footnote 1) who was born on 11 December 1990, testified that her mother had a serious romantic relationship with defendant when Monica was “[s]even or eight years old.” A few months after they started living with defendant, he began to “mess with” her. Afterher mother left for work in the morning, defendant would come into Monica's bedroom, lift her shirt, put his hands inside her panties and touch her “below the waist, in the privates, where [she] didn't want to be messed with.” Monica said that defendant “use[d] his fingers, mostly.” When asked what he did with his fingers, Monica replied, “Just played around. Sometimes he'd stick them up in me.” She further stated that defendant had done this to her “a lot, but not very often” and more than five times. Defendant told Monica not to tell anyone or “he'd get in trouble.” Monica knew she would tell someone “sooner or later[,]” but decided, “I'll just keep it to myself while I'm living under his roof, but I'll tell my mom when we move.” She did not want to tell her mother while she was living with defendant, because she “was afraid of what he might do.” One year after they had moved out of defendant's house and were living with Monica's grandfather, Monica told her mother about the abuse.
    Monica's mother, Cathy, testified that she, Monica and Becky   (See footnote 2) lived with defendant “off and on” in 1987 and 1988, at a residence in Vanderick's Trailer Park on State Highway 41. During a portion of her relationship with defendant, Cathy worked at a hotel as a housekeeper and “had to be at work at 8:00 o'clock in the morning.” Defendant's workday began at 9:00 a.m., but his work schedule was irregular and he would sometimes watch her daughters while she was at work. Cathy recalled instances when Monica would “stand at thescreen door crying and screaming, wanting to go with me to the store, or wherever I was going. . . . She would stand at the door and just cry because she wanted to go with me; she didn't want to stay there.” Cathy stated that she was born in 1971 and that defendant was “about the same age as I am” and was at least four years older than Monica. She broke up with defendant in September of 1998, and moved back into her parents' home. Monica first told her about defendant's inappropriate sexual contact in October of 1999. Cathy contacted the Robeson County Department of Social Services, which sent Monica to Fayetteville for a medical examination. Since first reporting defendant's actions to her mother, Monica never recanted or changed her account of what had happened.
    Amy Morgan, a Child Protective Services Investigator with Robeson County DSS, testified that she interviewed Monica at St. Paul's Elementary School in October of 1999. Monica gave Morgan a history of defendant's conduct which tended to corroborate Monica's trial testimony. Dr. Howard Loughlin, who examined Monica at Southern Regional Area Health Education Center (“Southern Regional”) in Fayetteville upon a referral from Morgan, further corroborated Monica's testimony by recounting a consistent statement made by Monica during a pre-examination interview.
    Defendant testified in his own defense, denying that he sexually abused Monica or touched her improperly. Defendant described an argument with Cathy in February or March of 1999, in which she told him “that she would do whatever she could to makesure that [he] didn't get custody of [his] son.” Defendant's ex- wife, Tabitha Graham, also claimed that Cathy had vowed to prevent defendant from gaining custody of Graham's son and had asked Graham if she could convince her own daughter “to say [defendant] had messed with her.”
    Five defense witnesses characterized defendant as truthful and law-abiding. Two of these witnesses further testified that they trusted defendant with their young children.
    Defendant first claims the trial court erred in allowing Dr. Loughlin to offer expert opinion testimony “that the results of his examination of [Monica] were consistent with sexual abuse.” As shown below, defendant's argument mis-characterizes the nature of Dr. Loughlin's testimony, which was both relevant and admissible under Evidence Rule 702.
    Dr. Loughlin was a board-certified pediatrician and had practiced general pediatrics in Fayetteville for nineteen years before moving to the child abuse evaluation clinic at Southern Regional in 1994. In addition to “state, regional, [and] national training in the evaluation of child abuse[,]” Dr. Loughlin had performed an estimated “500 or more” child abuse examinations and evaluations. The court certified the doctor as an expert in pediatric medicine and child abuse.
    Dr. Loughlin testified that he interviewed Monica before conducting his physical examination. She reported that defendant did “something with his fingers. He'd stick it up in me, in front.” Monica said, “It hurt a little” when defendant “put hishand inside.” In examining Monica, however, Dr. Loughlin found no evidence of scarring, tearing, or of sexually transmitted diseases in Monica's genital area. He further reported “no findings that I felt were abnormal, either related to the concerns about abuse or her general health.” The prosecutor then asked Dr. Loughlin whether the results of his examination were “consistent with what [Monica] told you happened to her?” Over defendant's objection, Dr. Loughlin responded, “Yes, they were[,]” and noted that “in fact, I would not have expected tears or scars or sexually transmitted diseases from the history that [Monica] had given me.” He then explained his response as follows:
            One of the factors that -- that I weighed in that was the fact that [Monica] had said that it hurt when this interaction occurred. The tissues in that area, in the genital area of little girls before they start into puberty, before they start getting estrogen, are very sensitive tissues. Unlike an adolescent or an older woman, where they're less sensitive, and the sensation of hurt or pain could have come from pressure or stretching and would not have required tearing to have occurred.

    Rule 702(a) of the North Carolina Rules of Evidence provides that "[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, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." An expert may not offer an opinion that a person is credible or is telling the truth, “as [the expert] is in no better position than the jury to assess credibility.” In re Butts, 157 N.C. App. 609, 617, 582 S.E.2d 279,285 (2003) (citing State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988)). “However, otherwise admissible expert testimony is not rendered inadmissible merely because it enhances a witness's credibility.” Id. (citing State v. Dick, 126 N.C. App. 312, 315, 485 S.E.2d 88, 89 (1997)).
    Contrary to defendant's assertion on appeal, Dr. Loughlin did not opine that Monica had been sexually abused or that her physical condition was suggestive of or consistent with sexual abuse. Rather, he testified merely that Monica's physical examination was consistent with the history she reported to him. He then explained this opinion by pointing out specific physiological and hormonal characteristics of pre-pubescent females. The challenged testimony was thus grounded in specialized knowledge not generally held by lay persons and was thus consistent with the purpose of expert testimony under N.C.R. Evid. 702(a). Furthermore, “[t]his expert opinion did not comment on the truthfulness of the victim or the guilt or innocence of defendant. The questions and answers were properly admitted to assist the jury in understanding the results of the physical examination and their relevancy to the case being tried.” State v. Aguallo, 322 N.C. 818, 823, 370 S.E.2d 676, 678 (1988) (allowing doctor's testimony that physical examination was "consistent with" victim's earlier statements). Defendant's assignment of error is overruled.
    Defendant next claims the trial court erred in denying his motion to dismiss, in light of a fatal variance between the charge contained in the indictment and the evidence at trial. Defendantwas convicted of first-degree sexual offense under N.C. Gen. Stat. § 14-27.4 (a)(1). The statute provides that a defendant is guilty of the offense if he “engages in a sexual act . . . [w]ith a victim who is a child under the age of thirteen years and the defendant is at least 12 years old and is at least four years older than the victim.” (2003) (emphasis added). The indictment alleged that defendant “did engage in a sexual offense with [Monica], a child under the age of 13 years and the defendant is at least 12 years old and four years older than the victim[.]” (emphasis added). Defendant maintains the text of the indictment accuses him of being “at least 12 years old” but only “four years older than the victim[.]” Noting evidence that Monica was eight years old when she was lived with him in 1998, defendant avers the indictment charges him with being twelve years old when he committed the offense. Because the State's evidence tended to show that he was in his twenties in 1998, defendant asserts a fatal variance between the allegations in the indictment and the State's proof at trial.
    With the enactment of N.C. Gen. Stat. § 15-144.2(b), the North Carolina General Assembly authorized the use of short-form indictments to charge persons with statutory sexual offenses under N.C. Gen. Stat. § 14-27.4. See State v. Wallace, 351 N.C. 481, 505, 528 S.E.2d 326, 342 (2000). The statute sets forth the requirements of a short-form indictment in this context as follows:
        If the victim is a person under the age of 13 years, it is sufficient to allege that the defendant unlawfully, willfully, and feloniously did engage in a sex offense with a child under the age of 13 years, naming the child, and concluding as aforesaid. Any billof indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for a sex offense against a child under the age of 13 years and all lesser included offenses.

N.C. Gen. Stat. § 15-144.2(b)(2003). Where the legislature has provided for the use of short-form indictments, “an indictment which meets the statutory requirements for sufficiency need not include additional allegations of fact or theory and, if included, these should be treated as surplusage.” State v. Moore, 311 N.C. 442, 462, 319 S.E.2d 150, 157 (1984).
    Defendant's indictment meets the statutory requirements for a short-form indictment. The indictment's caption reads, “STATUTORY SEXUAL OFFENSE” and denotes an “OFFENSE IN VIOLATION OF G.S. 14- 27.4[.]" The body of the indictment alleges that defendant “unlawfully, willfully and feloniously did engage in a sexual offense with [Monica], a child under the age of 13 years[.]” By tracking the language of N.C. Gen. Stat. § 154.2(b) and identifying the victim by name, the indictment “contains all the information necessary to charge defendant” with a first-degree statutory sexual offense by short-form indictment. State v. Dillard, 90 N.C. App. 318, 320, 368 S.E.2d 442, 444 (1988); see also State v. Edwards, 305 N.C. 378, 380, 289 S.E.2d 360, 362 (1982) (upholding the use of a short-form indictment to charge statutory sexual offense). While we believe the indictment's “at least” unmistakably modifies both subsequent descriptors, “12 years old” and “four years older[,]” these statements concerning defendant's age are mere surplusage which are properly disregardedin evaluating the sufficiency of the State's evidence. Accordingly, we find “no fatal variance between the indictment and the proof” at trial. State v. Kornegay, 313 N.C. 1, 31, 326 S.E.2d 881, 902 (1985); see also State v. Pelham, 164 N.C. App. 70, 79, 595 S.E.2d 197, 203 (2004).
    In his final argument on appeal, defendant claims the trial court made an “inappropriate” remark before the jury which “humiliated” defense counsel and cast a negative light on defendant's evidence. The trial judge may not make comments before the jury which reflect a bias for or against a party, or which convey the judge's opinion on a material fact at issue. See State v. Holden, 280 N.C. 426, 429, 185 S.E.2d 889, 892 (1972); see also N.C. Gen. Stat. § 15A-1222 (2003). In keeping with this general principle of neutrality, our courts have recognized that “remarks from the bench which tend to belittle and humiliate counsel, or which suggest that counsel is not acting in good faith, reflect not only on counsel but on the defendant as well[.]” Holden, 280 N.C. at 429, 185 S.E.2d at 892. Such statements “must be viewed in light of all the facts and circumstances,” however, “'and unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.'" Id. at 430, 185 S.E.2d at 892 (quoting State v. Perry, 231 N.C. 467, 57 S.E.2d 774 (1950)).
    Viewing the trial in its entirety, we find no evidence of judicial favoritism toward the prosecutor or against defense counsel. The transcript reflects that the trial court admonishedboth attorneys in an effort to maintain control over the examination and cross-examination of witnesses. See State v. Alverson, 91 N.C. App. 577, 579, 372 S.E.2d 729, 730 (1988). Twice during her cross-examination of defendant, the trial court corrected the prosecutor in front of the jury for interrupting defendant. In a third instance, the court called both attorneys to the bench to address their behavior. The remark now challenged by defendant came at the end of a hotly contested trial, during the prosecutor's re-direct examination of a surrebuttal witness on a matter unrelated to defendant's guilt or innocence. In asking the witness to expand upon a matter addressed on cross-examination, the prosecutor characterized defense counsel as “refusing” to hear the witness' explanation. Defense counsel protested the characterization, and the trial court intervened, as follows:
        [DEFENSE COUNSEL]: I didn't refuse anything. I didn't need to hear an explanation. I'm tired of these characterizations, Judge.

        THE COURT: [Counsel], I'm kind of tired of your extraneous comments. It's not necessary. It's simply not necessary. Let me try to keep order here the best we can. . . . I'm the judge. Okay?

        [DEFENSE COUNSEL]: Yes, sir.
The court had earlier cautioned defense counsel against commenting upon the prosecutor in the course of raising an objection. The court's remark did not suggest an unfavorable view of defendant or his evidence, but was merely one in a series of responses to the attorneys' editorial asides. See id. We note counsel did not object or move for a mistrial in response to the court'scorrection.
    The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.
    No error.
    Judges CALABRIA and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1