STATE OF NORTH CAROLINA
v. Beaufort Cou
nty
No. 03 CRS 2620
BOBBY RAY BUCK
Attorney General Roy Cooper, by Assistant Attorney General
Susan R. Lundberg, for the State.
Jeffrey Evan Noecker for defendant appellant.
McCULLOUGH, Judge.
Defendant Bobby Ray Buck was charged in a true bill of
indictment with first-degree statutory sexual offense against his
four-year-old daughter (hereinafter "D.B.") and taking indecent
liberties with her. A jury found defendant guilty of taking
indecent liberties. Defendant appeals from the judgment entered
upon the verdict.
The State's evidence tended to show that while D.B. was
spending the night at her aunt's house in April of 2003, she told
her aunt that “my daddy touches me here” and pointed to her genital
area. D.B. told her aunt that she had told her mother and her
grandmother but they had not believed her. The next day, D.B.'saunt and grandfather took D.B. to Washington Pediatrics for an
examination. D.B. told the examining physician, Dr. Gigi Anchan,
that defendant touched her in her private area with his finger and
that it occurred while she was sitting next to her father on the
sofa watching T.V. Dr. Anchan, who was qualified as an expert,
testified that she did not find any apparent abrasions or bruises
in the external area of D.B.'s vaginal area during the examination.
She testified that the lack of physical signs is especially true
when the child is not examined within the first twenty-four to
seventy-two hours after the alleged abuse has occurred. Dr. Anchan
also testified that pediatricians are mandated by state law to
report to Child Protective Services “if there is even a suspicion
of child abuse.” Dr. Anchan further testified that “[i]f you have
a child that's telling you something, you have to give that child
the benefit of the doubt and further investigation needs to be
done. Our job is to listen to the story [of the child], examine
the child, treat the acute problem, and make sure the appropriate
referral and calls are made so that this child doesn't go back in
that same situation and go through this over and over again.” Dr.
Anchan notified Child Protective Services who, in turn, contacted
the Tedi Bear Clinic of East Carolina University Pediatrics for a
comprehensive evaluation of D.B. D.B told a forensic interviewer,
that her father “puts his finger in my hinny and he pushes on it
and it hurts.”
D.B., who was escorted to the witness stand by her foster
mother, testified that defendant stuck his finger between her legsin her vaginal area. She further testified that the touching
occurred while she and her father were lying on the couch under a
blanket in their home. During D.B.'s testimony, D.B.'s foster
mother sat by D.B. and held her hand.
On appeal, defendant first contends the trial court erred in
permitting Dr. Anchan to testify as to her opinion that D.B had
been sexually abused when there was no physical evidence of abuse
in violation of N.C.R. Evid. 702. The assignment of error arises
out of the following redirect examination of Dr. Anchan by the
district attorney:
Q. [Counsel for defendant] asked you about the
diaper rash and itching that could often cause
some redness; is that right?
A. Yes.
Q. With a four- or five-year-old child,
female, would it be possible for fondling or
possible penetration of her vagina causing
redness, also?
A. It's possible in the acute setting. But
not necessarily.
Q. Explain what you mean by “acute”.
A. The perineal area, the area of the private
region of the child's body, heals over very
quickly, and if we don't see them in the acute
setting, in the first 24 to 72 hours, there
might not be anything. You know, abuse that
took place a couple of months before that or a
couple of weeks before that may not show up as
anything. And that's why we don't -- we don't
-- when we get a complaint like this, we
examine the child, and, if we don't see
anything, that does not mean we don't report.
If you have a child that's telling you
something, you have to give that child the
benefit of the doubt and further investigation
needs to be done. Our job is to listen to thestory, examine the child, treat the acute
problem, and make sure that appropriate
referrals and calls are made so that this
child doesn't go back in that same situation
and go through this over and over again.
Defendant argues that Dr. Anchan's statement “this child
doesn't go back in that same situation and go through this over and
over again” demonstrated her opinion that D.B. was abused and
amounts to an impermissible expert opinion as to D.B's credibility.
Defendant did not object to Dr. Anchan's statement, and therefore,
asks this Court for plain error review. Plain error arises when
the error is “'so basic, so prejudicial, so lacking in its elements
that justice cannot have been done[.]'” State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983)(quoting United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459
U.S. 1018, 74 L. Ed. 2d 513 (1982)). Defendant, therefore, "must
convince this Court not only that there was error, but that absent
the error, the jury probably would have reached a different
result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697
(1993).
Under Rule 702(a), 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(a) (2003). An 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. Stancil,
355 N.C. 266, 559 S.E.2d 788 (2002). 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. State v. Grover, 142 N.C. App. 411, 418-19, 543 S.E.2d
179, 183-84, aff'd, 354 N.C. 354, 553 S.E.2d 679 (2001).
Contrary to defendant's assertion, Dr. Anchan's statement
does not amount to an opinion that sexual abuse had in fact
occurred. Rather, it was part of Dr. Anchan's explanation of an
“acute setting” and the responsibilities/roles of medical personnel
when a minor child is not seen in an acute setting. Dr. Anchan's
testimony was elicited to help the jury understand the acute
setting and did not express an opinion that sexual abuse had
occurred. Thus, the trial court properly admitted Dr. Anchan's
statement.
Defendant also contends the trial court erred by not making an
inquiry before allowing the victim's foster mother to accompany the
victim to the witness stand and hold her hand throughout the
victim's testimony. Defendant did not object to the procedure, and
again, asks this Court to review for plain error. Our Supreme
Court has held that review of such unpreserved questions or issues
for plain error is limited to those issues involving "either (1)
errors in the judge's instructions to the jury, or (2) rulings on
the admissibility of evidence." State v. Gregory, 342 N.C. 580,
584, 467 S.E.2d 28, 31 (1996), cert. denied, 525 U.S. 952, 142 L.Ed. 2d 315 (1998). The specific plain error alleged by defendant
involves neither issues of jury instructions nor admissibility of
evidence offered by the State. This assignment of error is
overruled.
No error.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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