An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-12


Filed: 02 January 2007

v .                         Buncombe County
                            No. 02 CRS 52454
                            No. 04 CRS 7045-7053

    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.

    STEELMAN, Judge.

    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.

I.     Facts
    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. Defendant appeals.
II. Issues
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 asked again.
    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?

        A:    Yes

        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 testimony.
    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.
B. Cross-Examination

    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 untruthful.
    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, 21 (1994).
    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 without merit.
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 disagree.
    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 merit.
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) (2006).
III. Conclusion
    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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