State v Harris, (04-1335) 06/07/2005

Appeal by defendant from judgments entered 5 May 2004 by Judge W. David Lee in Cabarrus County Superior Court. Heard in the Court of Appeals 18 May 2005.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Sonya M. Calloway, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.

    HUNTER, Judge.

    Tyrone Harris (“defendant”) presents the following issues for our consideration: The trial court committed plain error when it (I) failed to strike sua sponte an expert opinion that sexual abuse occurred; (II) admitted characteristics of sexually abused children without a limiting instruction; and (III) failed to strike sua sponte testimony that the juvenile had never lied to her mother. After careful review we find no error occurred in defendant's trial.
    The evidence tends to indicate that defendant was married to M.H. and had four stepdaughters. S.S. was the oldest stepdaughter and was in middle school. In July 2003, S.S. moved to Concord, North Carolina, and began living with her mother and defendant. Prior to moving, S.S. had been living with her maternal grandmother in Rockingham, North Carolina.
    Defendant worked for a medical waste transport company and his work shift began at 3:30 a.m. As he had difficulty waking up, his stepdaughter was asked to set the alarm clock on her cell phone for 2:00 a.m. At 2:00 a.m., she would awaken her mother and stepfather. However, on a few occasions, her mother would not awaken.
    In September 2003, S.S. testified that her stepfather began having sexual intercourse with her during the early morning hours when he would awaken to go to work. She testified that he would tongue-kiss her, kiss her neck, fondle and kiss her breasts, and had licked her vagina. She indicated that during the first encounter, her stepfather was unsuccessful in his attempt to have sexual intercourse with her. However, she described three episodes of sexual intercourse that occurred during September and October 2003. During the last encounter on 20 October 2003, her twelve year old sister saw them engaging in sexual intercourse. After defendant went to work, A.A. told her younger sisters and mother what occurred.
    The mother called the police and S.S. was taken to the hospital for evaluation. Testing by the North Carolina State Bureau of Investigation did not find any of defendant's pubic hairs or body fluids on or in S.S. The treating physician testified that S.S.'s hymen appeared normal. However, she also indicated that an area just below the hymen had abrasions which she opined was causedby something rubbing against the skin. The doctor also stated a UV light indicated the presence of some type of fluid on S.S.'s inner thigh. Although the UV light had the capability of highlighting lint, the doctor opined the characteristics of the area highlighted by the UV light were more consistent with seminal fluid than lint.
    After trial, defendant was convicted of attempted statutory rape, two counts of statutory rape, one count of statutory sex offense, and two counts of indecent liberties with a child. Defendant received consecutive sentences amounting to more than thirty years in prison. Defendant appeals.
    Defendant presents three evidentiary issues for our consideration. Defendant argues the trial court committed plain error when it (I) failed to strike sua sponte an expert opinion that sexual abuse occurred; (II) admitted characteristics of sexually abused children without a limiting instruction; and (III) failed to strike sua sponte testimony that the juvenile had never lied to her mother. As defendant did not object to any of these alleged errors at trial, they are not properly preserved for appellate review. See N.C.R. App. P. 10(b)(1). However, defendant asks this Court to review these issues for plain error.
    “'[P]lain error . . . is . . . “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or . . . “grave error which amounts to a denial of a fundamental right of the accused[.]”'” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (emphasis omitted) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982)). “'To prevail under a plain error analysis, a defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result.'” State v. Perkins, 154 N.C. App. 148, 152, 571 S.E.2d 645, 648 (2002) (quoting State v. Jones, 137 N.C. App. 221, 226, 527 S.E.2d 700, 704 (2000)).
    Defendant first contends the trial court committed plain error when it failed to strike Dr. Rosolena Conroy's (“Dr. Conroy”) testimony that sexual abuse occurred. Under N.C. Gen. Stat. § 8C- 1, Rule 702(a) (2003): “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.” Id. In State v. Dixon, 150 N.C. App. 46, 563 S.E.2d 594 (2002), this Court explained that in a sexual abuse case,
        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. 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.

Id. at 52, 563 S.E.2d at 598 (citations omitted). However,
        our Supreme Court has approved, upon a proper foundation, the admission of expert testimony with respect to the characteristics of sexually abused children and whether the particular complainant has symptoms consistent with those characteristics. “The fact that this evidence may support the credibility ofthe victim does not alone render it inadmissible.”

Id. (citations omitted).
    In this case, Dr. Conroy testified during direct examination that the physical findings she observed during the exam of S.S. were consistent with sexual abuse. She did not state that sexual abuse in fact occurred. During cross-examination, however, the following exchange occurred between defense counsel and Dr. Conroy:
            Q.    But with regard to your conclusion -- or your opinion is any sexual abuse occurred?

            A.    That is my professional opinion.

            Q.    But you base that opinion on what she's told you occurred with Mr. Harris ---

            A.    I think that ---

            Q.    --- and that she had consistent physical findings of sexual abuse?

            A.    Right. I make a conclusion based on the child's history and any physical findings add to my conclusion. And so in this case there were both, there was her disclosure and there were physical findings.

To the extent that Dr. Conroy's answers to defense counsel's questions may be construed as an expert opinion that sexual abuse in fact occurred, defendant may not be afforded any relief from any alleged error. Pursuant to N.C. Gen. Stat. § 15A-1443(c) (2003), “[a] defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct.” Id. As explained in State v. Chatman, 308 N.C. 169, 177, 301 S.E.2d 71, 76 (1983), “'[d]efendant cannot invalidate a trial by introducing evidence or by eliciting evidence on cross-examination which hemight have rightfully excluded if the same evidence had been offered by the State. Neither is invited error ground for a new trial.'” Id. (citations omitted). Accordingly, we conclude no plain error occurred in admitting Dr. Conroy's expert opinion.
    Next, defendant contends the trial court committed plain error by not giving a limiting instruction when it admitted a nurse's testimony about the characteristics of sexually abused children.
“It is the general rule that '[t]he admission of evidence which is relevant and competent for a limited purpose will not be held error in the absence of a request by the defendant for a limiting instruction. “Such an instruction is not required unless specifically requested by counsel.”'” State v. Wade, 155 N.C. App. 1, 17-18, 573 S.E.2d 643, 654 (2002) (citations omitted). As defendant did not request a limiting instruction, no plain error occurred in admitting the testimony.
    Finally, defendant contends the trial court committed plain error in admitting the mother's testimony that S.S. had never lied to her. Defendant contends this testimony was inadmissible under N.C. Gen. Stat. § 8C-1, Rule 608(a) (2003), which states:
            (a)    Opinion and reputation evidence of character. -- The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
Id. During the mother's testimony on direct examination, the mother testified as follows: “Q. And do you have an opinion as to her truthfulness? A. She's never told me a lie.” Prior to this testimony, defendant questioned S.S.'s character for truthfulness during cross-examination: “Q. So when you talked with her back in October what you told her wasn't completely true, is that correct? A. In October it was true.” As defendant challenged S.S.'s veracity, it was permissible for the State to ask S.S.'s mother her opinion as to S.S.'s character for truthfulness. Accordingly, we conclude no plain error occurred in admitting the mother's testimony.
    No error.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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