Converted WP file 051042-1

Appeal by defendant from judgment entered 15 November 2004 by Judge J. B. Allen, Jr., in Durham County Superior Court. Heard in the Court of Appeals 9 March 2006.

Attorney General Roy Cooper, by Assistant Attorney General Jennie W. Hauser, for the State.

Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant-appellant.

    LEVINSON, Judge.

    Allen Frye (defendant) appeals from judgment entered upon his conviction of first degree sexual offense. We find no error.
    The defendant was charged by indictment dated 3 May 2004 with first degree sexual offense, taking indecent liberties with a child, and felonious sex act with a minor by one in a parental role. The case was tried beginning 8 November 2004. The State's trial evidence is summarized, in relevant part, as follows: K.H.   (See footnote 1) was six years old and in the first grade at the time of trial. In2003 she lived in Greensboro, North Carolina with her mother, T.S., and her younger brother. In October 2003 T.S. and her two children moved to Durham. T.S. and defendant had a romantic relationship and, shortly after T.S. moved to Durham, the defendant moved in with them. In the mornings, defendant usually drove T.S. to work and then took K.H.'s brother to day care before driving K.H. to school. K.H. testified that, after leaving her brother at day care, the defendant sometimes took her home before driving her to school. On more than one occasion, defendant brought K.H. into the bedroom he shared with her mother, showed K.H. pornographic videos, and fondled her genitals. K.H. testified that defendant “touched me in my private” and that it hurt. She also testified that defendant asked her “[t]o lick it.”
    K.H.'s testimony was corroborated by several other witnesses. T.S. testified that the defendant moved in with her in October or November of 2003, and that he generally drove her and her children to their respective locations in the mornings. T.S. identified sign-in sheets maintained by K.H.'s school, which indicated that on several occasions K.H. arrived at school later than could be accounted for by the short distance between the school and her brother's day care. She also testified that defendant kept pornographic videos at her house.
    On 17 February 2004 T.S. noticed that the children were unusually quiet when she saw them in the afternoon. When she questioned K.H., the child told T.S. that the defendant had made her watch a “scary movie,” had directed her to take off herclothes, and told her to “get on top of him and move up and down.” The next time T.S. saw the defendant she confronted him with K.H.'s accusations. The defendant told her that he was “sorry”, that he had a talk with K.H., and that “it wasn't going to happen again.” When T.S. told him that K.H. claimed there were “hundreds” of incidents, the defendant said “it only happened three times.” The next day T.S. called defendant and pretended to have received a call from K.H.'s school, to which defendant responded, “[w]hy would she talk now?” On 19 February 2004 T.S. contacted the Durham City Police Department and reported that defendant had molested K.H. She took K.H. to her family doctor, who referred her to the Center for Child and Family Health (“the Center”), in Durham. On 3 March 2004 K.H. was seen at the Center, where she was interviewed and given a physical examination.
    On cross-examination, T.S. admitted that, in her initial interview with law enforcement officers, she falsely claimed not to have any address or phone number where defendant might be reached. She was also questioned about accepting defendant's collect calls from jail, her jealousy of defendant's other girlfriends, and whether she had tried to have the charges dropped. On redirect examination, T.S. explained that she initially lied to the police because she was frightened of the defendant, and that she had wanted to drop the charges because she heard that defendant was trying to get someone to kill her.
    The testimony of several law enforcement officers corroborated the testimony of K.H. and T.S. Officer Harmon and InvestigatorBaker, both of the Durham Police Department, recounted interviews with T.S. in which she provided an account that was substantially similar to her trial testimony. Further corroboration came from clinical personnel at the Center. Jeanne Arnts, a clinical social worker at the Center, testified that she conducted a videotaped interview with K.H. on 3 March 2004. K.H. told her that defendant had taken her clothes off and had touched her “on [her] bottom and he hurt it.” She also said that defendant “had his thing out,” and that he told her that when she turned eight he would “put it in [her].” Arnts testified that K.H. used anatomical dolls and drawings to indicate that defendant had molested her. The jury was shown a videotape of her interview with K.H. Arnts also interviewed T.S., who essentially told her the same thing as what T.S. testified to during the trial.
    Dr. Edith Kocis, a physician working at the Center, was qualified by the trial court as an expert in child sexual abuse. On 3 March 2004 Dr. Kocis conducted a comprehensive physical examination of K.H., including an examination of the child's genitalia. Dr. Kocis observed an abnormal capillary break or bruise on K.H.'s hymen. She offered an expert opinion that the hymeneal hemorrhage (1) was consistent with K.H.'s description of defendant's actions, and (2) could have come only from some object entering her vagina and making contact with her hymen. On cross- examination, Dr. Kocis explained further that a girl K.H.'s age often could not distinguish between the “inside” and “outside” of her genitals. Dr. Dana Hagele, also employed at the Center, wasqualified as an expert in child abuse. When she conducted a follow-up exam on K.H. on 10 March 2004, the hymeneal bruising had healed. Drs. Hagele and Kocis each testified that this finding enabled the physicians to rule out a congenital abnormality as the cause of the bleeding.
    The witnesses presented by the defendant included defendant's ex-wife; his mother; his twenty-one year old daughter; a long-time female friend; two women with whom defendant had been romantically involved; and a young man whose mother was defendant's friend. The general import of their testimony was that: (1) defendant was a loving and appropriate father; (2) defendant had a good relationship with K.H.; and (3) T.S., who was jealous and possessive, was angry when defendant moved back to Greensboro. The defendant also testified, denying he ever touched K.H. inappropriately or molested her.
    Following the presentation of evidence, the jury returned verdicts finding defendant guilty as charged on all offenses. Upon these verdicts, the trial court sentenced defendant to a prison term of 384 to 470 months for first degree sex offense, and continued prayer for judgment on the other two convictions. Defendant timely appealed.

    Defendant first argues that the trial court erred by denying his motion to dismiss the charge of first degree sex offense for insufficient evidence, contending there was no evidence that defendant penetrated K.H.'s genital opening. We disagree.     “A defendant's motion to dismiss must be denied if the evidence considered in the light most favorable to the State permits a rational jury to find beyond a reasonable doubt the existence of each element of the charged crime and that defendant was the perpetrator.” State v. Trull, 349 N.C. 428, 447, 509 S.E.2d 178, 191 (1998) (citation omitted). “In considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference that may be drawn from the evidence. The standard of review for a motion to dismiss based on insufficiency of the evidence is 'the substantial evidence test.' Substantial evidence is defined as the amount of 'relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” State v. Verrier, __ N.C. App. __, __, 617 S.E.2d 675, 678 (2005) (quoting State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d 597, 602 (1993), and State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)) (citations omitted). Further, the “'test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both. . . . If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances[.]'” State v. Roberts, __ N.C. App. __, __, 625 S.E.2d 846, 849 (2006) (quoting State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002)).
    “Under the circumstances of this case, the elements essential to the proof of first degree sexual offense are that (1) thedefendant engaged in a 'sexual act,' (2) the victim was at the time of the act twelve years old or less, and (3) the defendant was at least twelve years old and four or more years older than the victim. N.C.G.S. [§]14-27.4(a)(1) [(2005)].” State v. Griffin, 319 N.C. 429, 433, 355 S.E.2d 474, 477 (1987). N.C. Gen. Stat. § 14-27.1 (2005) defines a “sexual act” to include, in relevant part “the penetration, however slight, by any object into the genital . . . opening of another person's body[.]”
    In the instant case, defendant contends there was no evidence that defendant penetrated K.H.'s genital opening. Accordingly, we confine our review to this issue. The record shows that K.H. testified, in pertinent part, as follows:

        PROSECUTOR: Okay. Now are you ready to tell the jury what happened?

        K.H.: Yes.

        PROSECUTOR: Okay. Go ahead and tell these ladies and gentlemen over here what happened.

        K.H.: [The defendant] took me in my mom's room and he turned the TV on.

        PROSECUTOR: He took you in your mom's room?

        K.H.: Yes.

        PROSECUTOR: What happened when you were in your mom's room?

        K.H.: He turned the TV on.

        PROSECUTOR: Then what happened?

        K.H.: He touched me in my private.

        PROSECUTOR: Touched you in your private?

        K.H.: Yes.
        PROSECUTOR: When you say your “private,” do you know what part of your body that is?

        K.H.: Yes.

        PROSECUTOR: Could you describe it to the jury. What do you call it?

        K.H.: Where I use the bathroom.

        PROSECUTOR: Where you use the bathroom from?

        K.H.: Yes.

        PROSECUTOR: Is that where you pee-pee from?

        K.H.: Yes.

        PROSECUTOR: With what part of his body did he touch you in your private?

        K.H.: With his hand.

        PROSECUTOR: With his hand?

        K.H.: Yes.

(emphasis added). Thus, in her testimony before the jury, K.H. expressly stated that defendant touched her in her “private” area. This testimony, considered with the medical evidence of hymeneal bruising and the balance of the record, constitutes sufficient evidence of penetration to submit the case to the jury. This assignment of error is overruled.

    Defendant next argues that the trial court abused its discretion by denying his motion for a mistrial. During cross- examination, defendant questioned T.S. extensively about the fact that, in her initial interview with law enforcement officers, T.S. lied and told the officers that she did not know defendant'saddress or phone number. When T.S. indicated that she “worr[ied] about Mr. Frye to this day,” the defendant pressed T.S. to admit that, when she gave the statement, she was in a safe place away from defendant. The defendant also cross-examined T.S. about her earlier attempt to drop the charges against defendant. On redirect examination, T.S. explained that she had asked to drop the charges because she was told by a law enforcement officer that defendant was trying to hire someone to kill her, and that this threat was the reason she worried “to this day” about the defendant. The defendant subsequently moved for a mistrial, on the grounds that this testimony was inadmissible and was so prejudicial as to require a mistrial. Defendant argues that the trial court erred by denying his motion for mistrial. We disagree.
    Under N.C. Gen. Stat. § 15A-1061 (2005), the trial court “must declare a mistrial upon the defendant's motion if there occurs during the trial an error . . . resulting in substantial and irreparable prejudice to the defendant's case.” “The decision of the trial judge is entitled to great deference since he is in a far better position than an appellate court to determine whether the degree of influence on the jury was irreparable.” State v. Williamson, 333 N.C. 128, 138, 423 S.E.2d 766, 772 (1992) (citation omitted). Not every error requires a mistrial. See, e.g., State v. Mills, 39 N.C. App. 47, 50-51, 249 S.E.2d 446, 448 (1978) (“Although the conversation between the breathalyzer operator and the juror was improper and should not have occurred, there has been no showing that the trial court abused its discretion or that theconversation had a prejudicial effect on the outcome of the case.”). Accordingly, the “decision to grant or deny such a motion will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion.” State v. Diehl, 353 N.C. 433, 436, 545 S.E.2d 185, 187 (2001).
    In the instant case, the State argues that the trial court correctly admitted the challenged testimony, based on the court's finding that defendant “opened the door” on cross-examination to questions about T.S.'s fear of defendant. However, even assuming, arguendo, that admission of this testimony was error, such error did not require the trial court to order a mistrial.
    As discussed above, the State presented substantial evidence against the defendant, including: (1) direct testimony by K.H.; (2) corroborative testimony by T.S. and by Arnts; (3) testimony by T.S. that defendant had admitted molesting K.H.; (4) the testimony of several law enforcement officers corroborating the trial testimony of T.S.; and (5) the presence of hymeneal bruising and hemorrhage that, in the expert opinion of Dr. Kocis, could only have been caused by some foreign object penetrating her genital opening.
    Under N.C. Gen. Stat. § 15A-1443(a) (2005), “[a] defendant is prejudiced by errors . . . when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial. . . . The burden of showing such prejudice . . . is upon the defendant.” In the instant case, we conclude that, in the context of the evidence against the defendant, the admission of T.S.'s testimony, even iferror, would not have changed the outcome of the trial. Here, where the testimony would not have changed the outcome of the trial, we cannot conclude the trial abused its discretion by denying defendant's motion for mistrial. This assignment of error is overruled.

    We next consider defendant's argument that the trial court committed plain error by ruling that K.H. was competent to testify and admitting her testimony.
    Under N.C.R. App. P. 10(b)(1), “to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion.” The defendant concedes that he did not object at trial to the trial court's determination that K.H. was competent to testify. Therefore, we review only for plain error. See N.C.R. App. P. 10(c)(4); State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983):
        The plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' . . . or where the error is such as to 'seriously affect the fairness, integrity or public reputation of judicial proceedings[.]'

Id. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)) (citations omitted).
    Rule of Evidence 601(a) provides that “[e]very person is competent to be a witness except as otherwise provided in these rules.” N.C.R. Evid. 601 (a). However, under Rule 601(b), awitness may be “disqualified to testify as a witness when the court determines that [she] is . . . (2) incapable of understanding the duty of a witness to tell the truth.”
        The law in this State regarding a child's competency to testify was [articulated] in State v. Jones, 310 N.C. 716, 722, 314 S.E.2d 529, 533 (1984):

        There is no age below which one is incompetent, as a matter of law, to testify. The test of competency is the capacity of the proposed witness to understand and to relate under the obligation of an oath facts which will assist the jury in determining the truth of the matters as to which it is called upon to decide. This is a matter which rests in the sound discretion of the trial judge in the light of his examination and observation of the particular witness.

State v. Fearing, 315 N.C. 167, 173, 337 S.E.2d 551, 554-55 (1985) (internal quotation marks omitted).
    It is undisputed that K.H. testified several times that she knew the difference between the truth and a lie; that she correctly identified several statements as either true or “a story”; and that she stated several times that she would tell the truth. Defendant's contention that K.H. was not competent to testify is based solely on the fact that, when K.H. was asked if she knew “what happens when you don't tell the truth,” she answered “No.” The defendant argues that this demonstrates that K.H. did not understand “the duty of a witness to tell the truth.” In the only case cited by defendant to support this argument, the North Carolina Supreme Court considered a challenge to the competency of a child witness who, like K.H., indicated she did not know what would happen if a person lied. The Court held:         It is true that certain of the child's answers during the voir dire were somewhat vague and self-contradictory, just as might be expected of a little child of such tender years. Nevertheless, at points in her testimony she said quite clearly that she knew what it meant to tell the truth and to tell a lie and that it was bad to tell a lie. She also said that she was going to tell the truth and was not going to tell a lie. Since the trial judge's discretionary ruling was supported by such evidence, the defendant has failed to show that the ruling could not have been the result of a reasoned decision. Therefore, we leave the ruling undisturbed.

State v. McNeely, 314 N.C. 451, 457-58, 333 S.E.2d 738, 742 (1985).     In the instant case, we conclude that defendant has failed to show that the trial court's ruling was an abuse of discretion, and thus has not shown error or plain error in the admission of K.H.'s testimony. This assignment of error is overruled.

    Finally, defendant argues that the trial court committed reversible error by admitting the testimony of two pediatricians that their findings were consistent with K.H.'s statements. We again disagree.
    Defendant filed a pretrial motion to exclude expert medical testimony on the probability that sexual abuse had occurred. During trial the issue was revisited, and the trial court asked defendant if his motion was directed at “any opinion” of the physicians. Defense counsel clarified that defendant sought exclusion of “specifically any opinion as to the probability of sexual abuse having occurred.” The prosecutor responded that the State did not intend to question its expert medical witness on theprobability that a sexual assault had occurred, but the injury she saw would have been consistent with what the child had said happened.” Defendant did not object to this proposed testimony.
    At trial, the State's expert medical witnesses did not testify to the probability that sexual abuse had occurred, but to their opinion that K.H.'s testimony was consistent with the physical injury they observed. Defendant's motion in limine did not seek to exclude testimony that specific findings were “consistent with” a witness's account. Nor does defendant cite any cases holding that such expert opinion testimony is inadmissible. This assignment of error is overruled.
    For the reasons discussed above, we conclude that defendant had a fair trial, free of reversible error.
    No error.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).

Footnote: 1