Appeal by defendant from judgments entered 19 August 2004 by
Judge Richard D. Boner in Mecklenburg County Superior Court. Heard
in the Court of Appeals 21 February 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Sonya M. Allen, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Matthew D. Wunsche, for defendant-appellant.
Defendant Moua Vang appeals from two convictions for taking
indecent liberties with a child. On appeal, defendant primarily
argues that he was erroneously denied his constitutional right to
a unanimous jury because the State offered evidence of a greater
number of incidents of misconduct than charges submitted to the
jury, and the trial court did not distinguish among those incidents
in its jury instructions or verdict sheets. Defendant's arguments
were, however, rejected in State v. Lawrence, 360 N.C. 368, 627
S.E.2d 609 (2006), which compels us to hold that no unanimity
problem occurred in this case.
The State's evidence at trial tended to show the following
facts. Prior to January 2002, defendant and his wife lived in a
four bedroom house in Charlotte, North Carolina with their seven
children, including "Kathy," "Sarah," and "Melissa."
(See footnote 1)
Melissa shared a room, initially sleeping together in a king size
bed, but eventually sleeping separately in bunk beds.
Sarah, who at the time of trial in 2004 was 16 and in the 11th
grade, testified that defendant, her father, did "inappropriate
things to [her]" from the time she was in the third grade until
some point during the sixth or seventh grade. She estimated the
overall number of inappropriate events to be "below 15."
Sarah testified that when she was in "[p]robably fourth
grade," defendant came into her room, pulled down the covers,
removed her underwear, caressed her "private area," and inserted
his fingers inside her vagina. Prior to this incident, defendant
"would just feel around" her vagina and chest and kiss her.
According to Sarah, subsequent to this incident, incidents similar
to the one when she was in fourth grade continued to occur until
she reached sixth grade.
To defend against defendant, Sarah wore more clothing to bed,
such as a bathing suit covered by a long-sleeve shirt, long pants,
and a belt. She recalled one night when defendant came into her
bedroom, picked up her covers, and, after seeing her multi-layeredclothing, left without touching her or saying anything. Sarah
could not recall what grade she was in when this occurred.
While in the fourth grade, Sarah spoke with her younger sister
Melissa and learned that defendant had been doing similar things to
Melissa as well. Sarah did not, however, tell anyone else until
middle school when she told several of her friends. In January
2002, while Sarah was in eighth grade, she told a friend's mother,
Mrs. Eubanks, and the police were contacted.
Sarah and Melissa stayed with the Eubanks for several days,
and each gave statements reporting that defendant had molested
them. While Sarah and Melissa were with the Eubanks, they received
a phone call from their sister Kathy that was recorded by Mrs.
Eubanks. In that call, Kathy implored them to change their stories
because, otherwise, they would not "have a daddy any more [sic]"
since he would "be locked up for 30 years." Kathy also told them
that "[m]ommy is going to kill herself; and then, we're all going
to be out by ourselves, living on the street."
On 4 November 2004, defendant was indicted with two counts of
taking indecent liberties with Sarah, the first during the time
frame of 1 January and 31 December 2000 and a second during the
time frame of 1 January and 31 December 2001. Defendant was also
indicted with two counts of taking indecent liberties with Melissa.
At trial, however, Melissa recanted and testified that she had lied
when she told police that inappropriate conduct had occurred
between her and defendant. Following this testimony, the trialcourt instructed Melissa on the consequences of perjury. The
following exchange occurred:
THE COURT: . . . . All right. Young
lady, I want to tell you something. It is a
very serious crime for a witness to lie, under
oath. I want you to understand that. You
swear to tell the truth, your obligation is to
tell the truth, whatever it may be.
And so, before we go any further, I want
you to understand that it is a crime; its
[sic] perjury; and, a very serious crime when
a witness lies, under oath. And, it's
punishable by a fine and or imprisonment.
Do you understand that?
[Melissa]: Yes. Can I ask you
THE COURT: . . . [Y]es, ma'am.
[Melissa]: How long would the imprisonment be?
The jury found defendant guilty of both indecent liberties counts
regarding Sarah, but not guilty as to either count regarding
The trial court sentenced defendant to a mitigated range
sentence of 10 to 12 months on one count of indecent liberties.
With respect to the second count of indecent liberties, the court
imposed a concurrent presumptive range sentence of 16 to 20 months
imprisonment, which was suspended and defendant was placed on 36
months supervised probation. Defendant timely appealed to this
Defendant first argues that he was deprived of his
constitutional right to a unanimous jury. Under the North CarolinaConstitution, "[n]o person shall be convicted of any crime but by
the unanimous verdict of a jury in open court." N.C. Const. art.
1, § 24. Although defendant did not argue unanimity to the trial
court or object to the verdict sheets, "[v]iolations of
constitutional rights, such as the right to a unanimous verdict, .
. . are not waived by the failure to object at trial and may be
raised for the first time on appeal." State v. Wiggins
, 161 N.C.
App. 583, 592, 589 S.E.2d 402, 409 (2003), disc. review denied
N.C. 241, 594 S.E.2d 34 (2004).
Defendant contends on appeal that "if evidence is presented at
trial that a defendant might have engaged in more specific episodes
of a particular offense than the defendant is charged with, then
there is a risk of a nonunanimous verdict." (Emphasis omitted.)
In making this argument, defendant relies upon State v. Lawrence
165 N.C. App. 548, 599 S.E.2d 87 (2004), which, subsequent to the
filing of defendant's appellate brief, was reversed by our Supreme
Court, State v. Lawrence
, 360 N.C. 368, 627 S.E.2d 609 (2006).
While the State concedes that it presented evidence of a
greater number of separate, criminal acts than charges submitted to
the jury, the Supreme Court in Lawrence
held that "a defendant may
be unanimously convicted of indecent liberties even if: (1) the
jurors considered a higher number of incidents of immoral or
indecent behavior than the number of counts charged, and (2) the
indictments lacked specific details to identify the specific
at 375, 627 S.E.2d at 613. The Court reached this
conclusion because, in the context of indecent liberties, "whileone juror might have found some incidents of misconduct and another
juror might have found different incidents of misconduct, the jury
as a whole found that improper sexual conduct occurred." Id.
374, 627 S.E.2d at 612-13.
Here, defendant was convicted of two counts of indecent
liberties based upon indictments using nearly identical language to
those in Lawrence
, the jury was instructed on unanimity generally,
and the jury received separate verdict sheets for each count. We
can conceive of no basis upon which to distinguish Lawrence
consequently, this assignment of error is overruled. See State v.
, __ N.C. App. __, __, __ S.E.2d __, __, 2006 N.C. App.
LEXIS 1298, at *31, 2006 WL 1675363, at *10 (June 20, 2006) ("Here,
as in Markeith Lawrence
, the jury was instructed on all issues,
including unanimity; [and] separate verdict sheets were submitted
to the jury for each charge. Therefore, defendant's argument
regarding jury unanimity is overruled." (internal citation and
quotation marks omitted)).
Defendant next argues that the State's expert witness
improperly "vouched for" Sarah's version of events. It is well-
established that "the trial court should not admit expert opinion
that sexual abuse has in fact
occurred . . . absent physical
evidence supporting a diagnosis of sexual abuse, [as] 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). Here, the State's expert witness, Dr. Preeti Matkins, was a
physician in the pediatrics department at Carolinas Medical Center.
Dr. Matkins performed a "full physical exam" on Sarah in March
2002, which was "a normal exam." Dr. Matkins then testified that
a normal examination was "consistent with the history that [Sarah]
gave." She explained that "several scientific studies [have shown
that] where there has been known abuse . . . a young woman
[Sarah's] age, with the _ with the genital maturity that she has,
those kind of penetrations may not show abnormalities, outside of
possible abrasions or bruising or things like that, which heal very
quickly. So that several years later, the exam would appear
This testimony is unlike the expert testimony in Stancil
where, despite the absence of any physical abnormalities, the
State's expert testified "that the child 'was sexually assaulted
and [that there was] maltreatment, emotionally, physically and
sexually.'" State v. Stancil
, 146 N.C. App. 234, 238, 552 S.E.2d
212, 214 (2001) (alteration in original), modified and aff'd per
, 355 N.C. 266, 559 S.E.2d 788 (2002). Contrary to
defendant's position, however, Dr. Matkins neither stated that
Sarah was in fact abused nor expressed an opinion on her veracity.
Instead, Dr. Matkins merely testified that, in Sarah's case, a
physical examination showing no abnormalities does not necessarily
mean the alleged abuse did not occur. In other words, while her
testimony was relevant to Sarah's credibility _ as is much evidence
_ it did not amount to the expression of an expert opinion as toSarah's credibility. See State v. Aguallo
, 322 N.C. 818, 822, 370
S.E.2d 676, 678 (1988) ("Essentially, the doctor testified that the
physical trauma revealed by her examination of the child was
consistent with the abuse the child alleged had been inflicted upon
her. We find this vastly different from an expert stating on
examination that the victim is 'believable' or 'is not lying.' The
latter scenario suggests that the complete account which allegedly
occurred is true, that is, that this defendant vaginally penetrated
this child. The actual statement of the doctor merely suggested
that the physical examination was consistent with some type of
penetration having occurred."). Accordingly, this assignment of
error is overruled.
Defendant's brief brings forth and argues only assignments of
error 9, 10, and 12, which we have already addressed. The
remaining nine assignments of error are deemed abandoned. N.C.R.
App. P. 28(b)(6) ("Assignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.").
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).