Converted WP file 060356-1

    The State's evidence tended to show that in September or October 2001, when Cathy was twelve years old, Defendant began to touch and squeeze her breasts over her clothing. This would occur “mostly anywhere in the house.” At the time, Cathy and her younger sister were being home-schooled by their mother.   (See footnote 2) Defendant would touch Cathy when her mother and sister were in their sun room studying. Later in 2001, Defendant, who was unemployed, progressed to touching Cathy's breasts under her clothing and started putting his fingers in Cathy's vagina. Most times this behavior occurred in the afternoons, when the girls got home from school. Usually, Cathy's sister was in the living room watching TV. Defendant would call Cathy into his bedroom, telling her he had to talk to her or asking her to bring him a drink. Cathy testified that “[s]ometimes every day but at least maybe three times a week[,]” Defendant would call her into his bedroom, close the door to the room, place his fingers inside her vagina and “move them around[,]” and then order her out of the room. Cathy's sister, who was two years younger than Cathy, testified that she often saw Cathy leave her parents' bedroom crying. Cathy would tell her sister that she was crying because Defendant “was being his normal self, that he was just being mean again, yelling about stuff.” Cathy's sister stated that Cathy would be in Defendant's bedroom anywhere from five minutes to an hour. Cathy testified that she never told her sister what was really happening in Defendant's bedroom.    Cathy testified further that when she was “about thirteen[,]” Defendant “would make [her] come into his room and he would . . . tell [her] to take off [her] clothes[.]” If Cathy refused, Defendant removed her clothes “forcefully.” Cathy tried to fight him off, but he would be on top of her so she could not move. Cathy testified that her father had intercourse with her more than ten times by placing his penis inside her vagina. Asked how it felt to her, Cathy replied that “[i]t felt weird[]” and that, after the act, she would be “wet.” When these acts occurred, Cathy's mother was at work and her sister was either finishing her homework or watching TV in the living room.
    Cathy testified that she did not “yell out” for her sister to help her because she was “scared [her] dad would hurt [her sister][,]” too. She said she did not report the abuse to her mother because she did not want to be the reason her parents divorced or for her father to have to move out of the house. She recognized that her parents already had marital problems.
    Cathy's mother testified that in November 2001, following a head injury, Defendant began to have seizures. Defendant also had extreme mood swings and developed an anger problem. Defendant's health problems prevented him from being able to hold a job, so Cathy's mother became the family's wage earner, and the girls were enrolled in a private school. Cathy's mother generally left for her job at 7:30 in the morning and arrived home in the evenings between 6:00 and 6:30. Defendant was home with the girls in the afternoons when they got home from school around 3:30.     On 12 February 2003, both Cathy and her sister stayed home from school because they were sick with colds and a fever. Their mother gave them cough syrup prescribed by their doctor and Tylenol before she left for work. Around 11:00 a.m., she called Defendant to remind him to give the girls their medicine. He told her he had, and she told him she would call again in another four hours to remind him to give them their next dose. Before she could do so, about 3:00 p.m., Cathy called her and told her that Defendant had given her a blue pill that “made her feel funny.” Defendant told Cathy it was her cold medicine. Cathy's mother instructed Cathy to find out if Defendant had given her sister anything. Cathy's sister was “really hard to wake up,” but was finally able to tell Cathy that Defendant had given her a blue pill and a white pill. The sister then fell back to sleep. Cathy's mother told Cathy to try to find the pills. Cathy and her grandfather looked for the pills, but were not able to find them in the house.
    Cathy testified that right after giving her the blue pill, Defendant removed her clothes and “had sex” with her. When he finished, he went outside, and she got up and called her mother. Cathy did not report the sexual abuse to her mother, but told her only about the pills Defendant gave her and her sister. Cathy's mother left work immediately and came home to take her daughters to the doctor.
    The family's physician testified that when he saw the girls that evening, he performed urine tests, which were positive for codeine for Cathy and positive for codeine, morphine, and ametabolite of Valium for Cathy's sister. The cough syrup he had prescribed for the girls' colds contained only codeine.
    Later that night, Defendant attempted suicide and was subsequently admitted to John Umstead Hospital in Butner, where he remained until the middle of March. About a week before Defendant was discharged, Cathy told her mother that Defendant “had tried to touch her[.]” Cathy's mother called Defendant and asked him if Cathy's allegation was true. Defendant denied the allegation and asked to speak to Cathy. Her mother held the telephone between her and Cathy so that she could hear the conversation. She testified that Defendant asked Cathy, “[W]hat have you said to her?” Cathy replied that she had told her mother “everything.” Defendant then said, “[D]id you tell her everything everything?” Cathy gave the phone back to her mother and refused to speak further with Defendant.
    Cathy's mother reported her conversation with Cathy to the social worker at John Umstead Hospital and obtained a restraining order against Defendant after he was released from the hospital. Shortly thereafter, Angela Todd of the Department of Social Services contacted Cathy's mother and began an investigation of the abuse charges. This included having both girls evaluated by Dr. Sarah Sinal, professor of pediatrics and community and family medicine at Wake Forest School of Medicine and staff physician in pediatrics at North Carolina Baptist Hospital. The examinations were conducted on 14 April 2003. Cathy's sister's examination was“normal[,]” and she did not give a history of any abuse by Defendant.
    Cathy gave a history that Defendant first began touching her in September or October 2001, that he started out touching her on her breasts and vagina on top of her clothes, that he then began to touch her under her clothes and to put his fingers in her vagina, and that he put his penis in her vagina five to ten times. The physical examination conducted by Dr. Sinal revealed that Cathy had minimal hymenal tissue, an abnormal finding compatible with the penile/vaginal intercourse reported by Cathy. Dr. Sinal further found evidence of high grade, moderate to severe squamous dysplasia, which is an early malignant change or a precancerous finding in the cervix. According to Dr. Sinal, “[f]ar and away the leading, if not the only cause of cervical cancer, is human papillomavirus, which . . . is most commonly passed in this age child through intercourse.” Dr. Sinal opined that Cathy's physical examination findings were “suggestive and compatible with a child who had been penetrated vaginally with a penis.” She testified that the dysplasia she diagnosed “is virtually unheard of in non- sexually active girls.”
    In addition to receiving medical treatment for the dysplasia, Cathy received counseling from licensed professional counselor Shannon Warden. Ms. Warden specializes in counseling children, has been trained in the treatment of sexually abused children and, in her practice, has observed the characteristics of sexually abused children. She performed her initial assessment of Cathy in July2003 and saw her at least seventeen times thereafter. Cathy reported to Ms. Warden that Defendant had sexually abused her “multiple times[,]” that she had tried to protect her sister, that Defendant told her not to tell her mother and she did not tell her mother, that Defendant told her each time would be the last time, and that she tried to go to sleep immediately after the abuse “so that she could forget that it happened.” Ms. Warden testified that when she talked about the abuse, Cathy's demeanor would change “dramatically.” In particular, she would hide behind the pillows on Ms. Warden's couch and would discuss the abuse “in a distant, detached way . . . consistent with what sexual abuse victims do.” Cathy also exhibited fearfulness and avoidance behaviors, had difficulty sleeping and had nightmares, experienced low self- esteem, was depressed, and displayed withdrawal symptoms. Ms. Warden testified that these behaviors are characteristic of a child who has been sexually abused and that, in her opinion, Cathy “had been sexually abused and was being genuine with her report.”
    The State also offered evidence from the law enforcement officers who investigated Cathy's allegations, to whom Cathy gave a history consistent with her report to Dr. Sinal and Ms. Warden and with her testimony at trial. Both detectives also interviewed Defendant. To one officer, Defendant denied sexually abusing Cathy and claimed that he “would kill anyone who hurt his children.” He also reported an inability to sustain an erection due to the medication he took for his seizures. To the other detective,Defendant reported that his seizures caused memory lapses and “he had no memories of the allegations.”
    Defendant offered no evidence. His motion to dismiss the charges was denied, and the jury found him guilty on all charges. He received consecutive prison sentences of 250 to 309 months for the first-degree rape, first-degree sexual offense, and statutory rape charges; a consecutive sentence of nineteen to twenty-three months for the incest charge; and concurrent sentences of 250 to 309 months for statutory sexual offense involving a thirteen-year- old child, and nineteen to twenty-three months for taking indecent liberties with a child. From judgment imposed upon his conviction on these charges, Defendant appeals. Finding no error in his trial, we uphold Defendant's conviction.

    By his first assignment of error, Defendant argues that the admission in evidence of certain opinion testimony of Cathy's counselor, Ms. Warden, constitutes plain error requiring a new trial. Specifically, Defendant challenges Ms. Warden's testimony that, in her opinion, Cathy “had been sexually abused and was being genuine with her report.” Ms. Warden expressed this opinion in response to the question whether she had observed any characteristics of Cathy that were consistent with a child who had been sexually abused. Following her response, the prosecutor asked her to describe the characteristics she had observed, and Ms. Warden did so in detail. Defendant did not object at trial to any of the prosecutor's questions or Ms. Warden's answers.    On appeal, Defendant contends that the challenged testimony constitutes inadmissible expert opinion on Cathy's credibility and that, consequently, even though Defendant did not object to the testimony at the time, the expert's opinion “unfairly tipped the scales in favor of the State and against the defendant[,]” thereby creating plain error in Defendant's trial. Plain error is an error so fundamental that it amounts to a miscarriage of justice or a denial of a fundamental right, or had a probable impact on the jury's verdict. See State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) (adopting the plain error rule as articulated in United States v. McCaskill, 676 F.2d 995 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)); see also State v. Lawson, 159 N.C. App. 534, 583 S.E.2d 354 (2003). It is axiomatic that the plain error rule must always be applied cautiously and only in the exceptional case where, after reviewing the entire record, the appellate court is convinced that, absent the alleged error, the jury probably would have reached a different result. See, e.g., State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991).
    It is equally well settled in this State that “expert testimony as to the credibility of a witness is not admissible[,]” State v. Wise, 326 N.C. 421, 426, 390 S.E.2d 142, 145 (citation omitted), cert. denied, 498 U.S. 853, 112 L. Ed. 2d 113 (1990), and that, absent physical evidence to support a diagnosis of sexual abuse, it is error to admit expert testimony that sexual abuse has in fact occurred because “such testimony is an impermissible opinion regarding the victim's credibility.” State v. Stancil, 355N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (citations omitted). “However, an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.” Id. at 267, 559 S.E.2d at 789.
    Here, Ms. Warden's testimony that (1) she has “had training with children that entails sexual abuse[,]” (2) she has been trained on the profiles and characteristics of sexually abused children, and (3) she has observed those characteristics in her counseling work with children, established the proper foundation for her to express her opinion whether Cathy exhibited symptoms or characteristics consistent with the profiles of sexually abused children. Accordingly, the prosecutor's question to Ms. Warden as to whether, based on her counseling sessions with Cathy, she had “form[ed] an opinion as to whether or not you observed any characteristics of a child who had been sexually abused[]” was proper. We agree with Defendant, however, that Ms. Warden's answer, that Cathy “had been sexually abused and was being genuine with her report[,]” was not responsive to the question and constitutes an inadmissible expert opinion on Cathy's credibility.
    On the other hand, we do not agree with Defendant that the admission of this testimony created plain error warranting a new trial. The evidence supporting Cathy's allegations was overwhelming and included her reports to her mother, Dr. Sinal, and the social workers and law enforcement officers who investigated her allegations. Cathy's allegations were consistent not only inreporting the fact of her father's abuse, but also in the details that abuse took. Additionally, and significantly, Dr. Sinal described the abnormal physical findings she noted upon examination of Cathy, findings which were uncontroverted and which conclusively established penile penetration of Cathy's vagina resulting in the development of a condition “virtually unheard of” in the absence of sexual intercourse in girls Cathy's age. Further, Ms. Warden described the behaviors and characteristics she observed during at least seventeen counseling sessions with Cathy which, in her properly admitted opinion, were consistent with the profiles of sexually abused children. Given this evidence and based upon a thorough review of the entire record in this case, we are not convinced that, absent the admission of Ms. Warden's impermissible opinion testimony on Cathy's credibility, the jury probably would have reached a different verdict. Admission of the testimony, consequently, does not constitute plain error. This assignment of error is overruled.

    Defendant next argues that the trial court committed plain error in its instruction to the jury on reasonable doubt. Specifically, Defendant contends that the court's instruction was “disjointed and confusing [and] unintelligible . . . and thereby lowered the State's burden of proof resulting in a denial of [Defendant's] due process rights” under the United States and North Carolina constitutions. Because defense counsel failed to object to the jury instructions at trial, on appeal we consider thisassignment of error under the previously described plain error standard, requiring Defendant to convince us that error in the jury charge caused the jury to reach a different result than it would have reached but for the alleged error. We are unpersuaded.
    Here, the trial judge charged the jury on reasonable doubt as follows:
        [T]he defendant has entered a plea of not guilty. The fact that he has been so charged is no evidence of his guilt. When a defendant pleads not guilty, he is not required to prove his innocence. He is presumed to be innocent. The State of North Carolina must prove to you that the defendant is guilty beyond a reasonable doubt.
            Now a reasonable doubt is not a vain or imaginary or fanciful doubt but it's a sane and rational doubt. It's a doubt based on common sense. When it's said that you, the jury, must be satisfied of the defendant's guilt beyond a reasonable doubt, it is meant that you must be fully satisfied or entirely satisfied or satisfied to an evidentiary certainty of the charge.
            If, after considering the evidence and comparing and weighing the evidence or lack of evidence, the minds of the jury are left in such a condition that you cannot say that you can say you are satisfied to a moral certainty -- to an evidentiary certainty -- excuse me, in the defendant's guilt -- if you are not so satisfied, then you have a reasonable doubt. If you are so satisfied of the guilt beyond a reasonable doubt, then you would return a verdict of guilty.

    “Absent a specific request, the trial court is not required to define reasonable doubt, but if the trial court undertakes to do so, the definition must be substantially correct.” State v. Miller, 344 N.C. 658, 671, 477 S.E.2d 915, 923 (1996) (citations omitted). “[N]o particular formation of words is necessary to properly define reasonable doubt, but rather, the instructions, intheir totality, must not indicate that the State's burden is lower than 'beyond a reasonable doubt.'” State v. Taylor, 340 N.C. 52, 59, 455 S.E.2d 859, 862-63 (1995) (citing Victor v. Nebraska, 511 U.S. 1, 127 L. Ed. 2d 583 (1994)). “[T]he proper standard of review for challenges to the constitutionality of reasonable doubt instructions . . . 'is not whether the instruction “could have” been applied in [an] unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it.'” State v. Bryant , 337 N.C. 298, 305, 446 S.E.2d 71, 75 (1994) (quoting Victor, 511 U.S. at 6, 127 L. Ed. 2d at 591); see also State v. Smith, 360 N.C. 341, 347, 626 S.E.2d 258, 261 (2006) (“In reviewing a jury instruction which may be subject to erroneous interpretation, this Court has stated that we inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.”) (quotations and citations omitted) . The burden is on the defendant to “show more than a 'possibility' that the jury applied the instruction in an unconstitutional manner[.]” State v. Jennings, 333 N.C. 579, 621, 430 S.E.2d 188, 209 (citing Boyde v. California, 494 U.S. 370, 108 L. Ed. 2d 316 (1990)), cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993).
    In this case, Defendant argues that the trial court's reasonable doubt charge was “confusing and unintelligible.” Specifically, Defendant contends that the last sentence of the second paragraph “could be interpreted by the jury as giving disparate standards of proof” and that the jury could construe thephrase “satisf[ied] to an evidentiary certainty” as a lesser standard of proof than reasonable doubt. Defendant also argues that the third paragraph “cannot be said to convey a clear thought nor a correct concept of reasonable doubt” to the jury. Taken as a whole, however, we conclude that the trial judge correctly and unambiguously defined reasonable doubt for the jury.
    We agree with the State that it appears the trial judge “briefly lost his train of thought” during the charge. After using the phrase “moral certainty,” the trial judge immediately corrected it to “evidentiary certainty.” Following the United States Supreme Court's decision in Victor, supra, our Supreme Court reexamined the use of the phrase “moral certainty” in defining reasonable doubt and held that instructions employing this language are not automatically constitutionally infirm so long as the jury is instructed to base its decision on the evidence in the case. Bryant, supra; Taylor, supra. In Bryant and Taylor, the juries were instructed that they were to consider, compare, and weigh all the evidence to determine whether reasonable doubt of the defendants' guilt existed. Likewise, here, the jury was instructed that “[i]f, after considering the evidence and comparing and weighing the evidence or lack of evidence, . . . you cannot say that you . . . are satisfied . . . to an evidentiary certainty . . . in the defendant's guilt -- if you are not so satisfied, then you have a reasonable doubt.” Reading the court's charge as a whole, we conclude that the instruction in no way lowered the State's burden of proof to less than beyond areasonable doubt. Accordingly, we are not convinced that alleged error in the jury instructions caused the jury to reach a different verdict on any of the charges against Defendant than it would otherwise have reached. This assignment of error is overruled.

    By his final assignments of error, Defendant argues that the evidence on the charges of first-degree sexual offense and first- degree rape was insufficient and that, therefore, the trial court erred in failing to dismiss these charges. In particular, Defendant takes issue with the State's evidence regarding his daughter's age when these acts occurred, arguing that, at most, the evidence raised a “strong suspicion” that Cathy was under the age of thirteen when Defendant first committed a sexual offense against and engaged in intercourse with her. We find Defendant's contention wholly without merit and conclude that the trial court properly denied Defendant's motion to dismiss these charges.
     As a threshold matter, we must determine if Defendant has preserved these assignments of error for our review. Pursuant to Rule 10(b)(1) of our Rules of Appellate Procedure,
        [i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion. Any such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any suchaction, may be made the basis of an assignment of error in the record on appeal.

N.C. R. App. P. 10(b)(1). “Our Supreme Court has long held that where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts.” State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (citations and quotations omitted); see also State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988). When a party changes theories between the trial court and an appellate court, an assignment of error is not properly preserved and is considered waived. Id.
    In addressing the sufficiency of the evidence on the charges against Defendant, Defendant's attorney engaged in the following exchange with the trial court:
        Mr. Crump: Your Honor . . . there has been evidence from the witness stand to get those charges to the jury. I can't stand here in good conscience and argue to you the State hasn't put forth evidence as to the incest charge and the first degree sex offense charge, the first degree rape charge.
            Although, Your Honor, I would argue to you on the first degree rape charge that she was [not] forced; however, I do realize there is case law which says that when a parent is involved, that could be force in and of itself.

        The Court: Against her will.

        Mr. Crump: Yes, sir, Your Honor. At any rate, I don't have an argument as to those offenses to make to dismiss at the close of the State's evidence.
        The Court: Well, are you making a motion to dismiss them? I mean, I've got to know how to rule.

        Mr. Crump: I am, Your Honor, but I suspect you're going to deny it.

        The Court: Denied.

        Mr. Crump: Thank you, sir.

With this exchange, Defendant specifically argued to the trial court that the charge of first-degree rape should have been dismissed only because the State did not present substantial evidence that Defendant forced Cathy to have sex with him. Defendant cannot now argue before this Court that the charge of first-degree rape should have been dismissed because the State failed to present substantial evidence that Cathy was under the age of thirteen at the time of the offense. Defendant's argument on appeal as to the charge of first-degree rape has been waived.
    It is questionable whether Defendant preserved his right to appeal the issue of the sufficiency of the evidence regarding Cathy's age as it pertains to the charge of first-degree sexual offense given defense counsel's acknowledgment of the sufficiency of the evidence. Nonetheless, we hold that the trial court properly denied the motion to dismiss.
    In reviewing the denial of a motion to dismiss for insufficient evidence, the question for this Court is whether there is substantial evidence (1) of each essential element of the offense charged and (2) of defendant's being the perpetrator of such offense. State v. Scott, 356 N.C. 591, 573 S.E.2d 866 (2002). “Substantial evidence is that amount of relevant evidence necessaryto persuade a rational juror to accept a conclusion.” Id. at 597, 573 S.E.2d at 869 (citation omitted). This Court “'must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.'” Id. at 596, 573 S.E.2d at 869 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “'Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.'” Id.
    Under North Carolina law, a person is guilty of a first-degree sexual offense if the person engages in a “sexual act” with a child under the age of thirteen, the person being at least twelve years old and at least four years older than the victim. N.C. Gen. Stat. § 14-27.4(a)(1) (2001). “Sexual act” is defined as cunnilingus, fellatio, analingus, and anal intercourse, as well as any penetration, however slight, by any object into the genital or anal opening of the child's body. N.C. Gen. Stat. § 14-27.1(4) (2001); see also State v. Fuller, 166 N.C. App. 548, 603 S.E.2d 569 (2004). As the only element of the crime at issue on appeal is Cathy's age at the time of the offense , there must be substantial evidence, given Cathy's date of birth, that Defendant committed a sexual offense with Cathy before her thirteenth birthday in July 2002.
    Reviewing the evidence in the light most favorable to the State and resolving contradictions and discrepancies in the State's favor, we conclude that the State presented substantial evidence that Cathy was under the age of thirteen when Defendant began to put his fingers in her vagina, constituting a first-degree sexual offense. This evidence included Cathy's testimony that Defendantbegan to fondle her on top of her clothing in September or October 2001, when she was twelve years old. She testified that this touching then progressed, a couple of weeks to a month or so later, to touching her under her clothes on her breasts and her vagina, and then putting his fingers in her vagina. This evidence was sufficient to take the case to the jury for its determination of whether Defendant was guilty of the charge.
    We also note that the trial judge thoroughly charged the jury that, in order to find Defendant guilty of first-degree sexual offense, the State had to prove, and the jury had to find, that Cathy was under the age of thirteen when the offense occurred. This included charging the jury a second time, in response to a question asked by one of the jurors, on the age distinctions raised by the various charges (that Cathy “[h]ad not reached her 13th birthday” on the charge of first-degree sexual offense, and that she was thirteen, fourteen, or fifteen on the charges of indecent liberties with a child, statutory sexual offense, and statutory rape).
    Defendant's assignment of error as to the charge of first- degree rape has been waived. Because there was substantial evidence to support submission of the first-degree sexual offense charge to the jury, Defendant's assignment of error as to that charge is overruled.
    NO ERROR.
    Judges STEELMAN and GEER concur.
    Report per Rule 30(e).

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