STATE OF NORTH CAROLINA
v
.
Johnston County
No. 03 CRS 53978
SAMUEL ANDREW FITZGERALD
Attorney General Roy Cooper, by Assistant Attorney Anita
LeVeaux, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellee.
ELMORE, Judge.
Samuel Fitzgerald (defendant) appeals from judgements entered
consistent with jury verdicts finding him guilty of one count of
first-degree sex offense and one count of indecent liberties with
a child. Defendant argues that the trial court erred by allowing
certain witnesses to enhance the credibility of the victim. We
disagree; defendant received a trial free from prejudicial error.
In February 2003 twelve-year-old K.G. reported to a teacher
that she had been sexually abused several years earlier by
defendant. Defendant was living with his girlfriend, Jennifer
Johnson, at this time. The two had lived together for nearly
thirteen years and owned a business together. Jennifer's son,
Chris Johnson, is K.G.'s step-father. At the time of theallegations K.G. lived with Chris and her mother, Kim Johnson, just
down the road from defendant and his girlfriend. Defendant is
K.G.'s step-grandfather.
K.G. testified that during her third-grade year she would
spend afternoons at defendant's house waiting for her mom to get
off from work. She testified that she generally watched TV, played
with pets, or did homework until her mother arrived. On one
afternoon defendant asked her to come watch television in his
bedroom. She did, and when defendant came out of the adjacent
bathroom, he was naked. K.G. testified that defendant asked her to
lie on the bed next to him and then on top of him. When she did
not want to, he pulled her up on top of him. She stated that
defendant asked her to kiss him and tried to insert his tongue in
her mouth. She got scared, got off the bed, and left the room.
She said that defendant told her not to tell anyone about what
happened.
K.G. testified that the next day defendant invited her out to
his R.V. that was parked at the house. Once inside, he unzipped
his pants and exposed his penis. She stated that defendant asked
her to hold his balls and she cupped her hand around them. When
she did, K.G. testified that defendant began running his hand up
and down his penis until he ejaculated. K.G. said that again
defendant told her not to say anything.
K.G. next testified that several days after the incident in
the R.V., she and defendant rode a four-wheeler_not an uncommon
event for the two_to an abandoned house across the field fromdefendant's house. There, defendant brought her in and exposed
himself to her. He asked her to perform fellatio on him and
instructed her how to do so. K.G. testified that she did, and
stopped when her throat began to hurt. She went outside followed
shortly thereafter by defendant. He again told her not to say
anything and the two rode back to defendant's house.
After K.G. finished the third grade, she and her family moved
to a different town and she did not stay with defendant anymore in
the afternoons. Several years after the move, K.G. told one of her
fifth-grade teachers what defendant had done. This was the first
time K.G. mentioned anything about she and defendant.
Following the allegations, K.G. was interviewed at the school
by Melissa Williams, a child protective services investigator.
K.G. also talked with Nivien Carey, a licensed clinical social
worker at Wake Medical Center, and Dr. Vivian Everett, a board
certified specialist in child sexual abuse. Since these witnesses'
testimony sits at the heart of defendant's appeal, we will discuss
that testimony as part of our analysis.
Defendant presented evidence at trial. He denied the
allegations and stated that K.G. was rarely at his house. He said
she regularly went to other relatives' houses after school and he
rarely spent any time alone with her. He also had several
character witnesses.
On appeal, defendant argues that the trial judge erred in
allowing several witnesses to support the credibility of K.G.'s in-
court testimony. The State called Melissa Williams and NivienCarey to testify in corroboration of K.G.'s testimony. Williams
was the DSS social worker assigned to investigate K.G.'s
allegations against defendant; she interviewed K.G. following the
report of abuse from K.G.'s teacher. Carey is a clinical social
worker with the sexual abuse team at Wake Medical. She interviewed
K.G. when Williams referred K.G. to the team for a sexual abuse
evaluation. Both testified as to the process of their
investigations and corroborated K.G.'s trial testimony as to the
allegations against defendant.
When being questioned by the State regarding her
investigation, Williams blurted out her office's conclusion
regarding their investigation:
STATE: After you spoke with the different
people that you spoke with and went to the
child medical exam, what other action did you
take in connection with this investigation?
WILLIAMS: We staffed the case . . . . I went
over the allegations as to what was reported,
the information that I had obtained from my
investigation and we made a case decision. At
that time, we substantiated that Mr.
Fitzgerald had sexually abused --
DEFENSE: Objection.
COURT: Sustained. Ladies and gentlemen,
totally disregard that. This is a trial.
That was not a trial. Disregard that, strike
it. That's inappropriate. The question of
the guilt or innocense of this Defendant is
for the jury to decide, not for a conference
some where. Now I'm going to caution you not
to do that anymore; you understand me?
WILLIAMS: Yes, sir.
COURT: You know better than that. You've
testified time after time in Court. You
cannot testify to that.
WILLIAMS: Alright.
Defendant contends that Williams's answer and the trial court's
response was insufficient; he indicates the trial court erred by
sua sponte failing to order a mistrial. We disagree. The trial
court's curative instruction here was swift and complete, and we
presume the jury followed the trial court's instructions. See
State v. Thornton, 158 N.C. App. 645, 652-53, 582 S.E.2d 308, 312
(2003) (no error in a sexual abuse case in which State elicited
impermissible opinion testimony, the trial court instructed the
jury to disregard it, and defendant argued on appeal mistrial was
necessary). As such, there was no need for a mistrial. Id.
Defendant alleges similar inadmissible credibility enhancement
from Carey's testimony. Specifically he argues that her statement
to K.G. that “what [defendant] did to her was not her fault and
that it was very good that she told someone about what happened,”
was inadmissible hearsay that required a mistrial. Again, we
disagree.
A motion for a mistrial is addressed to the
sound discretion of the trial judge and is
only appropriate when there are such serious
improprieties as would make it impossible for
the defendant to have a fair trial and
impartial verdict under the law. [State v.
Black, 328 N.C. 191, 200, 400 S.E.2d 398, 403
(1991)] 'Absent a showing of gross abuse of
that discretion, the trial court's ruling will
not be disturbed on appeal.' State v. Roland,
88 N.C. App. 19, 26, 362 S.E.2d 800, 805
(1987), affirmed, 322 N.C. 469, 368 S.E.2d 385
(1988).
Id. at 652, 582 S.E.2d at 312. The context of Carey's remark was
what she typically tells victims of sexual abuse as their interviewdraws to a close. While perhaps marginally implicating defendant
as the perpetrator, in this context, we do not agree that this
comment warranted the trial court to intervene by ordering a
mistrial.
Further, defendant argues that following his cross-examination
of Carey the trial court errantly allowed Carey to testify that due
to the child's age she would not expect exacting dates for the
incidents. The trial court overruled defense counsel's objections
to these questions. Although the objection was to the fact that
this testimony did not corroborate K.G.'s testimony, the trial
court noted that defendant inquired of these very discrepancies in
cross-examination and overruled the objection. It has been the
longstanding view of the courts that a child's relative lack of
precision in recalling dates, while not grounds for dismissal, is
an area of consideration for jurors who must weigh that testimony
against someone else's. See e.g. State v. Everett, 328 N.C. 72,
75, 399 S.E.2d 305, 306 (1991) (quoting State v. Wood, 311 N.C.
739, 742, 319 S.E.2d 247, 249 (1984)). And since the scope of
cross-examination, and any redirect, is a matter within the trial
court's discretion, we can see no prejudicial error or abuse of
that discretion in the questioning here. See State v. Trogden, 135
N.C. App. 85, 91, 519 S.E.2d 64, 67 (1999) (discussing the zeal of
prosecutor's questions on cross-examination in a sexual abuse
trial).
In line with previous arguments, defendant also alleges that
the trial court erred by not ordering a mistrial after Dr. VivianEverett's comments. Dr. Everett was tendered and accepted as an
expert in the evaluation of child sexual abuse. She testified
regarding the medical examination performed on K.G. and ultimately
concluded there were no physical signs of abuse. But, after that
conclusion, the State asked Dr. Everett if she reviewed the
interview conducted by Carey_the social worker who is part of
Everett's team. She testified that she had, and the State asked
her:
STATE: Did you form an opinion as to whether
or not [K.G] was sexually abused?
DEFENSE: Objection.
COURT: Sustained.
STATE: I don't have any further questions.
COURT: All she did was do a physical
examination.
It is settled law in North Carolina that absent physical
evidence supporting abuse, an expert cannot testify that it is
their opinion the child has been sexually abused, because “such
testimony is an impermissible opinion regarding the victim's
credibility.” State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d
788, 789 (2002). However, as noted supra, the trial court
sustained the objection before any opinion was rendered, and
instructed the jury that Dr. Everett only performed a physical
examination. Since no opinion was rendered, we cannot agree with
defendant that a mistrial was warranted. Thornton, 158 N.C. App.
at 652, 582 S.E.2d at 312. Although defendant briefs several other assignments of error,
after having reviewed them, we find them to be without merit.
Thus, we are left with a review of defendant's case that yields no
prejudicial error.
No error.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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