An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 02 January 2007
STATE OF NORTH CAROLINA
No. 02 CRS 52454
No. 04 CRS 7045-7053
EDGAR E. EDWARDS
Appeal by defendant from judgments entered 21 April 2005 by
Judge C. Philip Ginn in Buncombe County Superior Court. Heard in
the Court of Appeals 14 September 2006.
Attorney General Roy Cooper by Assistant Attorney General Amy
C. Kunstling for the State.
Russell J. Hollers III for defendant-appellant.
The issues presented in this appeal are whether: 1) expert
testimony in a child sexual abuse case amounted to opinion as to
the victim's credibility; 2) the trial court erred in refusing to
allow defendant to cross-examine the victim regarding certain prior
statements; 3) the trial court should have intervened ex mero motu
during the State's closing argument; and 4) the trial court should
have instructed the jury specifically as to each element of the
charges against defendant and require unanimous verdicts. For the
reasons stated herein, we find no error.
The State's evidence tended to show that defendant had married
the mother (G.M.) of the victim (K.M.) in June of 2001. On 21
February 2002, G.M. went to bed early due to illness. Defendant
insisted on closing the door to her bedroom. K.M. was nine years
old at the time and had also gone to bed. Around nine o'clock in
the evening, G.M. got up to go to the bathroom and walked past
K.M.'s bedroom. She saw K.M. in a corner of the bed with her legs
kind of spread and defendant humping the bed with his genitals
visible. G.M. screamed and told defendant to leave the home, but
was prevented from calling the police because defendant repeatedly
disconnected the telephone. After defendant finally left the
premises, G.M. called the police. Defendant was arrested when he
attempted to return to the residence while the police were present.
On 22 February 2002, K.M. was taken to Mission Children's
Clinic (MCC) by G.M. MCC houses a child maltreatment evaluation
program for children who may be victims of physical or sexual abuse
and neglect. When children are brought to MCC, the routine
protocol requires a medical and social history from a family
member, an interview with the child regarding the incident(s) that
brought them there, and a physical examination. On 22 February
2002, K.M. was interviewed by Hope Pace, a social worker employed
by MCC, regarding the incident with defendant. Dr. Cynthia Brown,
a pediatrician employed by MCC, did not participate in the
interview with K.M., but observed it from an adjacent room. During
the interview, K.M. discussed with Ms. Pace the events of the priorevening involving defendant as well as other incidents involving
defendant. After the interview, Dr. Brown physically examined K.M.
Defendant was indicted 7 June 2004 on five counts of first
degree sexual offense in violation of N.C. Gen. Stat. § 14-
27.4(a)(1) and on five counts of taking indecent liberties with a
child in violation of N.C. Gen. Stat. § 14-202.1. These charges
were tried before a jury at the 18 April 2005 Criminal Session of
Buncombe County Superior Court. Defendant was found guilty of all
charges, and was sentenced to three consecutive active sentences of
16-20 months, 192-240 months and 192-240 months imprisonment.
A. Dr. Brown's Testimony
Defendant assigns as error the overruling of his objection to
the following question posed to Dr. Brown:
Q: And did you have an opinion with regards
to [K.M.]'s disclosure, as to whether or
not it was consistent with sexual abuse?
This question was never answered by Dr. Brown. Rather, following
defendant's objection, Dr. Brown requested that the question be
The question was then asked:
Q: Did you -- Based upon [K.M.]'s disclosure
that you observed, did you form an
opinion to yourself as to whether or not
it was consistent with sexual abuse?
Q: What was that opinion?
A: That it -- That her disclosure was
consistent with sexual abuse.
We note that this was not the first time this precise evidence was
introduced during the trial. During the course of defendant's
cross-examination of K.M., a transcript of K.M.'s interview with
Ms. Pace (which included the case conference report) was identified
as a defense exhibit, and was used to cross-examine K.M. When the
State conducted its re-direct examination of K.M., this document
was offered and received into evidence as State's Exhibit 3. This
exhibit was received without objection by defendant. At the
beginning of the State's examination of Dr. Brown, the State
tendered the witness a copy of the examination report of K.M.
Defendant objected, and the trial court conducted a voir dire
hearing. Defendant's objection was to the language in the report
stating [t]he history and physical exam and behaviors are
consistent with sexual abuse. The trial court overruled the
objection because this language was virtually identical to language
contained in the conference report, already received into evidence
as State's Exhibit 3:
THE COURT: Which is virtually the same
sentence that appears on the
first page, is that correct?
MR. HILL: That's correct.
THE COURT: All right, I'll deny your
objection - - or overrule your
objection. This is already
into evidence. It came in
without objection into
evidence. It's been used by
both of you to examine and
cross-examine witnesses, and Ithink it's fair game at this
point in time.
State's Exhibit 7 was admitted into evidence and published to the
jury. We note that while defendant did assign error to this
ruling, it was not argued in his brief, and is therefore deemed
abandoned. N.C. R. App. P. 28(b)(6) (2006).
It has long been the law of North Carolina that: Where
evidence is admitted over objection and the same evidence has been
previously admitted or is later admitted without objection, the
benefit of the objection is lost. State v. Alford, 339 N.C. 562,
570, 453 S.E.2d 512, 516 (1995) (citing State v. Whitley, 311 N.C.
656, 661, 319 S.E.2d 584, 588 (1984); State v. Maccia, 311 N.C.
222, 229, 316 S.E.2d 241, 245 (1984); State v. Chapman, 294 N.C.
407, 412-13, 241 S.E.2d 667, 671 (1978)). Thus, defendant waived
any objection that he might have to this portion of Dr. Brown's
We further note that defendant failed to include in the record
on appeal any of the exhibits introduced at trial. It is the
responsibility of the appealing party to insure that the appellate
record contains all materials necessary for the appellate court to
review his assignments of error. N.C. R. App. P. 9 (2006); see
also State v. Berryman, 360 N.C. 209, 216, 624 S.E.2d 350, 356
(2006) (citations omitted). In the absence of the exhibits in the
record, we must presume that the trial judge was correct in finding
that the evidence objected to had been previously received into
evidence. Even assuming arguendo that defendant has not waived this
assignment of error, we would hold that the testimony of Dr. Brown
was admissible. Dr. Brown's physical examination revealed that
K.M.'s hymen was narrow with a v-shaped notch at the 6:00 position
and that there was a circular abrasion which she found to be
consistent with K.M.'s report of genital to genital contact
(interlabial intercourse). Under the holding of State v. Hammett,
__ N.C. __, __, __ S.E.2d __, __ (No. 83A06 2006), this evidence
was sufficient to support Dr. Brown's testimony that K.M.'s
physical examination was consistent with sexual abuse. This
assignment of error is without merit.
In defendant's second argument, he contends that the trial
court erred in denying him the opportunity to cross-examine K.M.
concerning her prior allegations of sexual abuse. He further
contends that this violated his constitutional right to confront
the witnesses against him. We disagree.
A voir dire hearing conducted by the trial court during the
cross-examination of K.M. established that on 27 June 2000, K.M.
made an allegation of sexual abuse against a person other than
defendant. The substance of the allegations were that a person
fondled K.M. over her clothing. K.M. was interviewed concerning
these allegations at the same clinic where she was interviewed
concerning the 22 February 2002 incident. There was a written
record of this interview. Defendant sought to cross-examine K.M.
concerning these allegations. In addition, during the laterinterview concerning the 22 February 2002 incident, K.M. was asked
whether anything like this happened before...? and she responded
No. Defendant sought to use the 27 June 2000 incident to impeach
K.M.'s credibility, since defendant contends that K.M.'s answer
denying that anything like this had happened before was
Assuming that the trial court erred in sustaining the State's
objection to this evidence, we are satisfied that any error was
harmless beyond a reasonable doubt under N.C. Gen. Stat. § 15A-
1443(b). See State v. McCarroll, 336 N.C. 559, 563, 445 S.E.2d 18,
The 2000 incident was factually different from the 2002
incident. In 2000, K.M. was fondled over her clothes, whereas in
2002, defendant made direct contact with his genitals on the
genitals of K.M. There was no evidence that the 2000 allegations
were in fact false. Given the difference of the two incidents,
K.M.'s denial that anything like this had happened before becomes
much less significant.
Further, all of the reports of the 2000 incident were
presented to the jury during Dr. Brown's testimony, including a
number of questions concerning K.M.'s denial of prior incidents.
Dr. Brown was specifically cross-examined as to whether the
knowledge of the 2000 incident would change her opinions in this
matter. Given the fact that the same evidence which defendant
sought to introduce on the cross-examination of K.M. was presented
during Dr. Brown's testimony, any error of the trial court washarmless beyond a reasonable doubt. This assignment of error is
C. Closing Argument
In his third argument, defendant contends that multiple
portions of the State's closing argument were so grossly improper
that the trial court should have intervened ex mero motu. We
Counsel are given wide latitude during closing arguments.
State v. Anderson, __ N.C. App. __, __, 624 S.E.2d 393, 400 (2006).
At trial, defendant failed to object to the prosecutor's closing
argument. Therefore, he must establish that the argument was so
grossly improper that the trial court abused its discretion in
failing to intervene ex mero motu. State v. Thompson, 359 N.C. 77,
109-10, 604 S.E.2d 850, 873 (2004) (citations omitted). To
establish such an abuse, defendant must show that the [State]'s
comments so infected the trial with unfairness that they rendered
the conviction fundamentally unfair. State v. Davis, 349 N.C. 1,
23, 506 S.E.2d 455, 467 (1998). The State's argument is to be
considered in light of the facts to which it refers and in the
context in which it was made. State v. Augustine, 359 N.C. 709,
725-26, 616 S.E.2d 515, 528 (2005) (citing State v. Jaynes, 353
N.C. 534, 559, 549 S.E.2d 179, 198 (2001)).
We have carefully examined each of the portions of the State's
argument to which defendant assigns error. None of the arguments
rise to the level which would have required the trial court to
intervene ex mero motu. The arguments of the State did not soinfect the trial with unfairness as to render defendant's
conviction fundamentally unfair. This argument is without merit.
D. Jury Instructions
Finally, defendant argues that the trial court failed to
instruct the jury specifically on each crime alleged in the
indictments and require unanimous jury verdicts. We disagree.
The trial court conducted the jury charge conference in
accordance with Rule 21 of the General Rules of Practice for the
Superior and District Courts. Counsel were given a written copy of
the trial court's proposed instructions. Neither party objected.
At the conclusion of the jury charge, the trial court afforded
counsel the opportunity to object to the charge as given. Although
defendant did object to a portion of the charge, it was not the
portion he now contends was in error.
Because defendant did not object to the portion of the charge
he complains of, this assignment is reviewable only for plain
error. Plain error is proven if the defendant shows that the error
probably would have affected the jury's verdict. State v. Ewell,
168 N.C. App. 98, 101-02, 606 S.E.2d 914, 917 (2005).
Defendant contends that because there were more incidents
alleged than he was indicted for, he cannot plead double jeopardy
if he is ever again charged with respect to the allegations of K.M.
We note that defendant does not cite any authority for this
proposition. Under N.C. R. App. P. 28(b)(6), the argument is
therefore abandoned. Further, defendant did not argue that the
error he alleges amounted to plain error. In his brief, defendant also contends that the jury verdicts
were not unanimous. He acknowledges that the Supreme Court's
recent decision of State v. Markeith Lawrence, 360 N.C. 368, 627
S.E.2d 609 (2006), is controlling, and raises the issue solely for
purposes of preservation. Under Lawrence, this argument is without
E. Other Assignments of Error
Defendant does not argue his remaining assignments of error in
his brief, and they are deemed abandoned. N.C. R. App. P. 28(b)(6)
We hold that defendant received a fair trial, free from error.
Judge LEVINSON concurs.
Judge STEPHENS concurs prior to 31 December 2006.
Report per Rule 30(e).
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