STATE OF NORTH CAROLINA
v. Buncombe County
Nos. 04CRS052784-85
DAVID MATTHEW JONES
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Jane Rankin Thompson, for the State.
Don Willey for defendant-appellant.
HUNTER, Judge.
A jury found David Matthew Jones (“defendant”) guilty of first
degree statutory rape and taking indecent liberties with a child.
The trial court consolidated the offenses for judgment and
sentenced defendant to an active prison term of 288 to 355 months.
Defendant gave notice of appeal in open court. For the reasons
stated herein, we find no error.
Complainant S.L. testified that in late June 2003 she went
roller-skating at the Skate-A-Round with her sister. While she was
skating, a friend invited complainant to a party at the home of
Linda Jones (“Jones”), the grandmother of her best friend, Ashley
Powell (“Powell”). Complainant telephoned her mother and obtainedpermission to attend the party, telling her mother that Powell
would be there. When complainant arrived at the party, she saw
Powell's cousins, Jonathan Sumner (“Jonathan”) and Crystal Sumner
(“Crystal”), and defendant's sister, Candice. Defendant, who is
the son of Jones and the uncle of Powell, Jonathan, and Crystal,
arrived at the party with some Smirnoff alcoholic beverages and
told “everybody [to] get drunk.” After complainant drank three
Smirnoffs, “everything sort of started spinning[,]” and she “went
and laid down” in a bedroom. When she woke up, defendant was
behind her having vaginal intercourse with her. Complainant rolled
over in an effort to “make him quit[,]” but defendant “just sort of
pulled [her] in and kept on doing it.” She then “got up and . . .
walked out of the room.” Defendant followed complainant, “trying
to hug [her] and telling [her] that everything was okay.”
Complainant told Candice what had happened prior to leaving to walk
to Powell's house.
As a result of the assault, complainant testified that her
vaginal area “hurt really bad, like [she] couldn't walk right.”
She felt as though she “had done something wrong[,]” because she
had “lied to [her] parents and went and got drunk and then that had
happened.” When she arrived at Powell's house, Powell “could tell
something was wrong[.]” The two girls walked to Powell's father's
house, where complainant told Powell that defendant had raped her.
When complainant reported the incident to her mother the next day,
her mother “looked at [her] and said, don't lie.” Believing that
“if [her] mom didn't believe [her], then nobody else would[,]”complainant did not tell anyone else about the rape until the
Department of Social Services interviewed her at school.
Powell testified that defendant is her uncle, and Jones is her
grandmother. In late June 2003, complainant walked past her house
without speaking to her on the morning after the party at Jones's
house. After they walked to Powell's father house, complainant
“took [her] in the back bedroom and told [her] that [defendant]
raped her” at Jones's house. As complainant was talking about the
rape, “her voice kind of changed and her eyes started watering.”
Complainant told Powell not to tell anyone what had happened to
her.
Jonathan testified he attended a party in June 2003 at the
home of his grandmother Jones, who is defendant's mother.
Jonathan's sister, defendant, and complainant were at the party.
Complainant went to sleep on a mattress in the back bedroom.
Jonathan got onto the mattress and was preparing to go to sleep
when defendant entered the room and laid down on the mattress
behind complainant. Concerned because of “the age difference”
between defendant and complainant, he “looked up, and . . . saw
[defendant's] penis go in [complainant's] vagina.” Complainant,
who had been sleeping, appeared to be “confused.” After telling
defendant that what he was doing was “sick[,]” Jonathan walked out
of the bedroom into the living room and told Crystal what was
happening. Approximately one week later, complainant confronted
Jonathan and “was wondering why [he] told her sister about it, and
she was pretty upset with [him].” Jonathan did not report theincident until he was approached by police “six months to a year”
later. He gave a written statement to police on 27 June 2004.
Crystal testified that she was “pretty close” to defendant and
loved him. She was not good friends with complainant and had only
met her “once or twice.” During the party at Jones's house,
defendant was drinking Smirnoff Ice and gave alcohol to
complainant. When complainant began to remove her shirt, Crystal
“told her that she couldn't do that and . . . helped her put her
shirt back on.” Complainant eventually went to sleep. At some
point during the night, Crystal's brother, Jonathan, came out of
the bedroom where complainant had gone to sleep and entered the
living room. Jonathan was “[u]pset” and “said that [complainant]
was riding [defendant].” Hearing complainant scream, Crystal went
into the bedroom and saw defendant “on top of [complainant]” having
sex with her. Crystal pulled her uncle off of complainant and
brought her into the living room. Crystal did not report the
incident but subsequently gave a written statement to police on 27
February 2004.
Laurie R. Dotson (“Dotson”), an investigative social worker
for the Buncombe County Department of Social Services, testified
that complainant disclosed the rape to her during an interview at
North Buncombe Middle School on 24 October 2003. After initially
stating that defendant “tried to put his hands down her pants” at
Jones's house, complainant began “crying uncontrollably” and said
“that she woke up from sleep and that [defendant] was having sex
with her.” When Dotson asked her what “having sex” meant,complainant “pointed to her vaginal area and said, 'He was inside
of me with his dick.'” Complainant also told Dotson that Powell
was with her at Jones's house and did not reveal that she had been
drinking. Dotson reported the conversation to the Woodfin Police
Department.
Woodfin Police Officer James Marsh (“Officer Marsh”) testified
that he interviewed complainant on 5 January 2004, and “she said
that, 'I went to bed. When I woke up [defendant] was behind me
having intercourse with me.'” On 3 February 2004, Officer Marsh
interviewed defendant about the party at Jones's house. Defendant
“denied any involvement in it,” and claimed he had spent the
evening at a church singing group in Bardnardsville with a friend
named Will. Defendant did not know Will's last name or where he
lived. Officer Marsh repeatedly called the telephone number
provided by defendant for Will, but was unable to make contact with
him. On 27 February 2004, Officer Marsh spoke to Jonathan and
Crystal. Jonathan told Officer Marsh that he “saw [defendant]
penetrate [complainant] from behind.” Crystal “stated . . . that
she was in the other room when she heard [complainant] screaming.
She went in and [defendant] had her down raping her, and she said
that he was on top of [complainant] from the front.” Officer Marsh
interviewed defendant a second time on 2 March 2004. Asked by
Officer Marsh about his whereabouts on the night of the alleged
rape, defendant said that “he and Will left Will's work and went to
the Jones house for a few minutes, and that they then went to Pizza
Hut and ate pizza and drank beer for about an hour-and-a-half”before visiting two friends. When Marsh reminded defendant of his
previous claim that he spent the evening in question singing at
church, defendant replied “that he didn't think that he should have
to tell [Officer Marsh] his life story.”
The State adduced evidence that complainant was born on 5
March 1990, and was thirteen years old at the time of Jones's
party. Defendant was born on 9 February 1983, and was thus twenty
years old in June 2003.
On appeal, defendant claims the trial court committed plain
error by allowing the State's expert witness to opine that
complainant had been sexually assaulted despite the lack of any
physical evidence of assault. Defendant avers that the expert's
testimony was inadmissible under N.C.R. Evid. 702, amounting to an
improper endorsement of complainant's credibility. Acknowledging
that he failed to object to the challenged testimony at trial, see
N.C.R. App. P. 10(b)(1), defendant assigns plain error to its
admission pursuant to N.C.R. App. P. 10(c)(4).
Where, as in this case, a defendant has failed
to object, the defendant has the burden of
showing that the error constituted plain
error, that is, (i) that a different result
probably would have been reached but for the
error or (ii) that the error was so
fundamental as to result in a miscarriage of
justice or denial of a fair trial.
State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)
(citing State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251
(1987)).
Elizabeth Osbahr (“Osbahr”), who examined complainant at
Mission Children's Clinic on 28 October 2003, was received by thecourt as an expert in medicine and pediatric nursing. Osbahr
testified that, because complainant had entered puberty, her hymen
was fully “estrogenized and distensible.” Therefore, although
Osbahr found no tearing or other injury to complainant's vagina,
she explained that “it would have been very unlikely to have found
evidence of sexual assault.” When asked what conclusions she drew
from her examination of complainant, Osbahr testified without
objection as follows:
I concluded by way of the history that I got
that she had been sexually assaulted. Her
exam, genital exam, was normal which in my
opinion did not preclude the possibility that
she was assaulted. I also had gotten history
from her mother that she had been angry, she
had been depressed, she was feeling a lot of
blame and feeling that everyone at school knew
about it.
These are very common things that
adolescents feel when a situation like that
has happened to them. That there was some
problem with her grades, that they had gone
down. So all of this seemed to corroborate
the fact that she had gone through a traumatic
event and was suffering the consequences of
that.
(Emphasis added.) On cross-examination, defendant elicited an
admission from Osbahr that she did not personally discern a
downward trend in complainant's grades after the alleged rape, but
had relied on information provided by complainant's mother.
It is well-established that, “'[i]n 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 thevictim's credibility.'” State v. Bush, 164 N.C. App. 254, 258, 595
S.E.2d 715, 718 (2004) (quoting State v. Stancil, 355 N.C. 266,
266-67, 559 S.E.2d 788, 789 (2002)). Here, notwithstanding a
“normal” genital exam, Osbahr offered her conclusion that
complainant had been sexually assaulted based on the history
reported to her by complainant's mother. This testimony was
improper, and it was error to allow it into evidence.
Having found error, we must now determine whether the
admission of Oshahr's opinion testimony amounted to “plain error”
under Rule 10(c)(4). In conducting plain error review, “[w]e
examine the entire record to decide whether the error 'had a
probable impact on the jury's finding of guilt[]' . . . [and]
whether, without this error, the jury would have 'reached a
different verdict.'” State v. Blizzard, 169 N.C. App. 285, 293,
610 S.E.2d 245, 251 (2005) (quoting State v. Odom, 307 N.C. 655,
661, 300 S.E.2d 375, 379 (1983); State v. Riddle, 316 N.C. 152,
161, 340 S.E.2d 75, 80 (1986)).
The admission of improper expert opinion of sexual abuse has
been held to be plain error where the State's case against a
defendant was essentially limited to “the mere testimony of the
victim and the other witnesses's corroboration” thereof. State v.
Delsanto, ___ N.C. App. ___, ___, 615 S.E.2d 870, 875 (2005)
(citing State v. Couser, 163 N.C. App. 727, 731, 594 S.E.2d 420,
423 (2004)); accord 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); Bush, 164 N.C. App. at 260, 595 S.E.2d at 719 (findingplain error where “any and all corroborating evidence is rooted
solely in [the victim]'s telling of what happened, and that her
story remained consistent”). In such cases, we have reasoned, the
victim's “credibility was the strength of the State's case and
. . . any comment on [the victim]'s credibility weighed heavily”
against the defendant. Ewell, 168 N.C. App. at 106, 606 S.E.2d at
920. By contrast, this kind of improper expert testimony has been
deemed not to constitute plain error where the State introduces
substantial additional evidence of the sexual assault beyond the
testimony and corroborative statements of the victim. See Stancil,
355 N.C. at 267, 559 S.E.2d at 789 (“[t]he overwhelming evidence
against defendant leads us to conclude that the error committed did
not cause the jury to reach a different verdict than it otherwise
would have reached”); Blizzard, 169 N.C. App. at 294-95, 610 S.E.2d
at 252 (finding no plain error where witnesses observed the
defendant running naked from the victim's house, heard the victim
scream, and found the victim crying and claiming that the defendant
had raped her); cf. also State v. Figured, 116 N.C. App. 1, 11, 446
S.E.2d 838, 844 (1994) (finding no plain error where expert
improperly opined that defendant was the perpetrator of sexual
abuse).
The State adduced compelling direct evidence of defendant's
rape of complainant independent from her testimony and her prior
consistent statements to other witnesses. Specifically,
defendant's niece and nephew both testified that they saw him
having vaginal intercourse with complainant at Jones's party inJune 2003. Their testimonies were corroborated by their statements
to Officer Marsh during the course of his investigation. Moreover,
the record contains no evidence that Jonathan and Crystal were
estranged from their uncle or otherwise possessed a motive to
testify falsely against him in a criminal prosecution for rape. In
light of these two additional eyewitnesses, the State's case
against defendant was not dependent upon the complainant's
credibility. Therefore, we hold Osbahr's opinion testimony did not
have a probable impact on the jury's verdict or otherwise undermine
the fundamental fairness of defendant's trial. See Blizzard, 169
N.C. App. at 294-95, 610 S.E.2d at 252. Accordingly, defendant's
assignment of plain error is overruled.
The record on appeal includes additional assignments of error
not addressed by defendant in his brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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