An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1513

NORTH CAROLINA COURT OF APPEALS

Filed: 3 January 2006

STATE OF NORTH CAROLINA

v .                         Forsyth County
                            No. 02 CRS 56313
ISSAC LUTHER HOLIFIELD;
aka ISAAC LUTHER HOLYFIELD;
aka ISSAC LUTHER HOLYFIELD

    Appeal by defendant from judgment entered 20 November 2003 by Judge L. Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 16 June 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Jennie Wilhelm Hauser, for the State.

    Anne Bleyman, for defendant-appellant.

    JACKSON, Judge.

    Issac Luther Holifield (“defendant”) was arrested on 6 June 2002 on charges of indecent liberties with a child and first degree sex offense with a child. Defendant was indicted for one count of indecent liberties with a child and one count of statutory sexual offense on 24 June 2002. That indictment was superceded by an indictment issued 27 January 2003 charging the same offenses.
    Prior to trial, defendant filed a Motion to Allow an Independent Psychological Evaluation of the victim. After a hearing, the motion was denied. A jury trial was held 17 through 20 November 2003. The jury returned verdicts of guilty on both counts and defendant was sentenced to 288 to 355 monthsimprisonment on the conviction for first-degree sexual offense and the trial judge arrested judgment on the indecent liberties conviction. Defendant gave notice of appeal in open court.
    At trial, the State's evidence tended to show that on 7 March 2002, defendant attended a family cookout held at the home of his niece, Eugenia “Tootie” Blair (“Tootie”). Tootie's two bothers, Torrance Holifield and the fourteen-year-old victim, F.H., lived with Tootie and also were at the cookout. It is undisputed that F.H. is mentally retarded with an I.Q. below seventy. At approximately 9:00 p.m. the cookout ended and the majority of the guests left. Only the residents of the house and defendant remained. F.H. went to bed shortly after the cookout ended.
    Between 10:30 and 11:00 p.m., Tootie got up from watching television to check the thermostat and heard a noise coming from F.H.'s bedroom. She went into F.H.'s room to investigate and saw defendant run from the bedroom into the bathroom. While defendant was running to the bathroom, Tootie saw part of his penis or scrotum. Tootie asked defendant what he was doing and he replied that he was using the bathroom. When Tootie went into the bedroom, F.H. was under the covers. Upon pulling the covers off F.H., Tootie discovered that he was naked from the waist down. When asked why his clothes were off, F.H. responded “Uncle Luke”(defendant).
    Tootie called the police to report that she suspected defendant of molesting F.H. Prior to the arrival of the police, Tootie instructed F.H. to take a bath, which he did. F.H. told theinvestigating officers that defendant had hurt him by “putting his penis in [his] butt.” The police transported F.H. to the hospital for a sexual assault examination. Officers also seized F.H.'s underwear, bed sheets and bed cover as evidence.
    At the hospital, F.H. was examined by Dr. David Cline (“Dr. Cline”), an emergency physician on duty. F.H. told Dr. Cline that his uncle (defendant) had “put his dick in my butt.” F.H. was calm and cooperative during the examination and did not complain of pain. Dr. Cline observed two small tears at the entrance to F.H.'s rectum that were red but not bleeding. Dr. Cline did not observe any extraneous bodily fluids or hairs and did not attempt to collect evidence of such materials. Dr. Cline testified that the tears could have occurred within five to seven days of the examination and that sexual assault was not the only possible cause of such tears. Dr. Cline testified that, in his opinion, the physical examination findings were consistent with the history of sexual assault that was provided.
    A Sexual Assault Nurse Examiner (SANE), Tammy Sydenstricker (“Sydenstricker”), examined F.H. after Dr. Cline had finished his examination. Sydenstricker did a visual exam of F.H., collected evidence for a sexual assault kit, drew blood, and took pictures with a colposcope. Sydenstricker found no foreign material in her examination and also noted the same two tears that Dr. Cline had observed during his examination. Sydenstricker testified regarding statements made to her by F.H. during the course of herexamination, and defendant objected. Defendant's objection was overruled.
    Defendant presented no evidence. Defendant was convicted of first degree sexual offense of a thirteen, fourteen, or fifteen year-old and taking indecent liberties with a minor. Defendant was sentenced to 288 to 355 months confinement on the first degree sexual offense verdict and the trial court arrested judgment on the indecent liberties verdict. Defendant appeals from the verdicts and judgment.
    Defendant first contends that the trial court erred in allowing Dr. Cline to offer his opinion on direct examination, over defendant's objection, that F.H. had experienced probable sexual abuse. We first note that this is a mischaracterization of Dr. Cline's testimony. On direct examination, Dr. Cline testified, without objection, that the purpose of the examination conducted on F.H. at the emergency room was to determine whether or not there was any evidence of the sexual assault that was alleged in the history provided. Later, Dr. Cline was asked:
    Q:    What other information did you gather that would help you in this examination in regards to [F.H.] and the events that occurred that night?

    A:    Well, as I said, we were trying to determine, as we do, how consistent the history is with the examination findings and also whether or not there was any other logical alternative explanations for the findings that we found. And in fact there was nothing else in the history that would explain what we found upon examination.
Defendant objected to Dr. Cline's answer on the basis that it was a conclusion without a foundation and moved to strike the answer. The trial court overruled the objection. Nowhere in the testimony to which defendant objected did Dr. Cline give his opinion regarding a diagnosis. Dr. Cline merely stated nothing in the history provided other than the allegation of sexual assault could explain the tears around F.H.'s anus.
    “Our Supreme Court stated in State v. Stancil, 'In a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in fact occurred because, absent physical evidence supporting a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding the victim's credibility.' 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (citation omitted) (emphasis supplied).” State v. Ewell, 168 N.C. App. 98, 102-03, 606 S.E.2d 914, 918, disc. review denied, 359 N.C. 412, __ S.E.2d __ (2005), accord State v. Couser, 163 N.C. App. 727, 594 S.E.2d 420 (2004) (finding plain error in the admission of doctor's diagnosis of “probable sexual abuse with abrasions consistent with the victim's history of sexual assault” when the diagnosis was based on the reported history of sexual abuse and the presence of two abrasions that “were not diagnostic nor specific to sexual abuse”). Defendant relies upon both Ewell and Couser in support of his argument that the trial court erred in allowing Dr. Cline's testimony.
    These cases clearly are distinguishable, however. The experts in those cases testified that, in their opinion, sexual assaulthad, in fact or probably, occurred based solely upon the history provided while the testimony to which defendant assigns error in the case sub judice does not contain a diagnosis that sexual abuse or probable sexual abuse had occurred. The testimony to which defendant objected was that nothing else in the history provided an explanation for Dr. Cline's observations upon examination and that those findings were consistent with sexual assault. Moreover, testimony regarding Dr. Cline's diagnosis rendered at the time of the examination was first introduced by defendant on cross- examination. As defendant first elicited the testimony regarding Dr. Cline's opinion of whether sexual assault had, in fact, occurred, and does not argue that he received ineffective assistance of counsel at trial, he cannot now complain that the admission of such evidence was erroneous. see State v. Brown, 64 N.C. App. 637, 645, 308 S.E.2d 346, 351 (1983), aff'd 310 N.C. 563, 313 S.E.2d 585 (1984). Accordingly, this assignment of error is overruled.
    Defendant next argues that the trial court erred in denying his motions to dismiss the charges of first degree sexual offense and taking indecent liberties for insufficient evidence. The standard of review for the denial of a motion to dismiss for insufficient evidence is whether there was substantial evidence of each element of the offense charged and of the defendant's being the perpetrator of the offense. State v. Goblet, ___ N.C. App. __, __, 618 S.E.2d 257, 262 (2005) (citing State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620 (2002)). The evidence must betaken in the light most favorable to the State and all reasonable inferences to be drawn from the evidence must be afforded to the State. State v. Frogge, 351 N.C. 576, 585, 528 S.E.2d 893, 899, cert. denied, 531 U.S. 994, 148 L. Ed. 2d 459 (2000).
    To survive a motion to dismiss the charge of first degree sexual offense, as charged under the indictment and bill of particulars in the case sub judice, there must have been substantial evidence that: (1) defendant penetrated F.H.'s anus with his penis; (2) F.H. was thirteen, fourteen, or fifteen years- old; (3) defendant was at least six years older than F.H.; and (4) defendant was not lawfully married to F.H. N.C. Gen. Stat. . 14- 27.7A(a) (2003). Defendant does not contend that there was insufficient evidence of elements two through four. Defendant's only argument is that the evidence that he had engaged in anal intercourse with F.H. was insufficient to defeat his motion to dismiss.
    Defendant's primary argument regarding the insufficiency of the evidence is that the only evidence of anal penetration is circumstantial and not credible. The evidence of anal penetration included F.H.'s statement to medical personnel at the emergency room while seeking treatment that his uncle had “put his dick in [F.H.'s] butt.” This evidence alone is sufficient to withstand defendant's motion to dismiss. State v. Quarg, 334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993)(citing State v. Vehaun, 34 N.C. App. 700, 705, 239 S.E.2d 705, 709 (1977), cert. denied, 294 N.C. 445, 241 S.E.2d 846 (1978)). Defendant argues that this testimony is notcredible. However, the weight and credibility of a witness's testimony is for the jury to determine. State v. Moses, 350 N.C. 741, 767, 517 S.E.2d 853, 869 (1999), cert. denied, 528 U.S. 1124, 145 L. Ed. 2d 826 (2000). This assignment of error is overruled.
    To withstand a motion to dismiss on the charge of taking indecent liberties with a child, the State must have presented substantial evidence that: (1) defendant was at least sixteen years-of-age; (2) defendant was at least five years older than F.H.; (3) defendant willfully took, or attempted to take an immoral, lewd, or indecent act with F.H. or willfully committed or attempted to commit any lewd or lascivious act on F.H.'s body; (4) F.H. was under sixteen years-of-age; and (5) defendant's actions were for the purpose of arousing or gratifying sexual desire. N.C. Gen. Stat. . 14-202.1(a) (2003). Defendant makes no additional argument regarding this assignment of error, nor does he indicate which element or elements he contends are not supported by sufficient evidence, but simply adopts his previous argument in support of this assignment of error. As we already have found his prior argument unpersuasive and he makes no additional argument in support of this assignment of error, this assignment of error also is overruled.
    Defendant next argues that the trial court erred in refusing to admit the opinion testimony of his expert, Dr. Brad Fisher (“Dr. Fisher”), regarding F.H.'s personal suggestibility or acquiescent traits. The trial court admitted Dr. Fisher as an expert in forensic psychology, but ruled that his testimony would be limitedto his general opinion regarding the suggestibility and acquiescent traits of retarded people. The trial court ruled that Dr. Fisher would not be allowed to testify as to F.H.'s specific, personal susceptibility or acquiescent traits. The basis for the trial court's ruling was that Dr. Fisher had not interviewed F.H. personally. Dr. Fisher testified that personally interviewing F.H. would have allowed him to determine specifically F.H.'s level of suggestibility and secondary motivation factors.
    Defendant chose not to present the testimony of Dr. Fisher to the extent that the trial court had allowed. Consequently, his expert opinion regarding the general level of suggestibility and acquiescent traits of mentally retarded individuals was not presented to the jury as a result of defendant's own litigation strategy. On voir dire, Dr. Fisher testified that, based on his review of F.H.'s records and his observations of F.H.'s testimony at the competency hearing and at trial, F.H.'s acquiescent traits and suggestibility were consistent with others functioning in the same range of mental capacity. This testimony was substantially similar to the opinion testimony that the trial court ruled Dr. Fisher would be allowed to give. “A defendant is not prejudiced by . . . error resulting from his own conduct.” N.C. Gen. Stat. . 15A-1443(c) (2003); State v. Morgan, 359 N.C. 131, 155, 604 S.E.2d 886, 901 (2004), cert. denied, __ U.S. __, 163 L. Ed. 2d 79 (2005).
    Defendant's next assignment of error is that the trial court erred in denying his motion to compel an independent psychological evaluation of F.H. Defendant concedes in his brief, however, thewell established precedent in this State that “a trial judge has neither statutory authority nor discretionary power to compel an unwilling witness to submit to a psychiatric examination.” State v. Horn, 337 N.C. 449, 451-52, 446 S.E.2d 52, 53 (1994). Defendant urges us to reconsider the policy underlying the decision in Horn. As this Court does not have the authority to overrule decisions of our Supreme Court, Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993), this assignment of error is overruled.
    Defendant's final assignment of error is that the trial court erred in overruling his objections to the testimony of Sydenstricker regarding statements made to her by F.H. and Tootie on the grounds that the testimony was hearsay which was not subject to an exception. Defendant makes no contention or argument, however, that this alleged error was prejudicial to him. “[A] defendant is not entitled to a new trial based on trial errors unless such errors were material and prejudicial.” State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983). “Defendant has the burden of showing that he was prejudiced by the admission of the evidence.” State v. Wingard, 317 N.C. 590, 599-600, 346 S.E.2d 638, 645 (1986).
    To demonstrate prejudice caused by an error, other than one based on constitutional grounds, a defendant must show that “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached . . . .” N.C. Gen. Stat. . 15A-1443(a) (2003); State v. Augustine, 359 N.C. 709, 731, 616 S.E.2d 515, 531 (2005). Defendant makes no argumentwhatsoever that a different result probably would have resulted absent any alleged error. Accordingly, as defendant has demonstrated no prejudice from the alleged error, we hold any error in the admission of Sydenstricker's testimony regarding F.H. and Tootie's statements to her to be harmless. This assignment of error is overruled.
    No error in part, no prejudicial error in part.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30 (e).

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