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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 19 June 2007
STATE OF NORTH CAROLINA
Nos. 05 CRS 50607
KRIS THEODORE DAVIS 05 CRS 50610 - 50611
05 CRS 50613
05 CRS 50616
Appeal by defendant from judgments entered 13 January 2006 by
Judge James U. Downs in Haywood County Superior Court. Heard in
the Court of Appeals 4 June 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Chris Z. Sinha, for the State.
Al Messer and David Belser, for defendant-appellant.
Kris Theodore Davis (defendant) appeals from judgment
entered after a jury found him to be guilty of two counts of
first-degree sexual offense with a child under the age of thirteen
years and three counts of taking indecent liberties with a child.
We find no error.
A. State's Evidence
B.M. (the victim) was fourteen years old at the time of
trial. She resided in Haywood County with her mother, father, and
younger half-sister. Defendant is the father of B.M.'s younger
half-sister. Defendant was married to B.M.'s mother for a coupleof years around the time B.M. was eight years old. Defendant was
thirty-one years old at the time of trial.
After B.M.'s mother and defendant divorced, B.M. would
occasionally go with her half-sister to defendant's house where he
resided with Jane, defendant's girlfriend. B.M. testified she
accompanied her half-sister to defendant's residence in December
2004, because she was afraid defendant would molest her half-
In December 2004, B.M. and her half-sister stayed at
defendant's residence for about one week. B.M. usually slept in
the living room at defendant's residence. One night, in December
2004, B.M. and her half-sister fell asleep in defendant and Jane's
bed while watching a movie. B.M. was wearing a shirt, long
underwear, and shorts. B.M. testified she awoke when defendant
came into the bedroom. Defendant lifted B.M.'s half-sister off the
bed and placed her on the floor.
B.M. testified that defendant laid in bed and spooned her by
laying . . . with his front part facing [her] back part. B.M.
testified she felt defendant's penis becoming hard and became
scared. Defendant put one arm around B.M.'s chest and began
rubbing her vagina with his other hand. B.M. testified that
defendant rubbed her vagina for about five minutes. B.M. was
unable to move because defendant was holding her down, but remained
Defendant then placed B.M. on top of him so that she straddled
him. B.M. testified that defendant placed her on his penis areaand moved [her] in an upward/downward movement for about ten
minutes. Defendant then pushed B.M. off of him and told her, If
you tell anyone, I'll kill your mother and [your half-sister], but
I love you to death. B.M. believed defendant because he ha[d]
been in so much trouble and everything with weapons and stuff.
B.M. testified that she laid there and thought . . . why has this
happened to me once again.
B.M. testified that defendant would threaten to kill her
mother and half-sister every time he did that to her. She
testified that defendant engaged in the same behavior on several
occasions when defendant was married to her mother, when B.M. was
between the ages of eight and thirteen. B.M. also testified
defendant's act of placing her on [his] penis was always pretty
much the same, but that defendant's actions became worse on one
On that occasion, B.M. went to stay with her half-sister at
defendant's sister's house when she was ten or eleven years old.
B.M. was asleep in the guest bedroom when defendant came in. He
removed B.M.'s shirt, bra, and underwear. B.M. testified that
defendant kissed her chest, licked her vagina, and placed his
fingers and tongue inside her vagina. B.M. attempted to hit her
head against the wall so that someone would hear her, but defendant
had placed a pillow on her head. B.M. told defendant to stop and
he left the room. B.M. testified that she told her mother about
defendant's abuses and assaults after the December 2004 incident
because she was fed up with it. Jerry Szlivewski (Szlivewski), a forensic interviewer at
Mission Children's Clinic, interviewed B.M. on 3 February 2005.
B.M. told Szlivewski about the first time defendant molested her.
B.M.'s mother left for work and defendant came into her bedroom.
Defendant got into bed with B.M., spooned her, placed his hand
inside her pants, and rubbed her vagina. Defendant threatened to
kill B.M.'s mother and half-sister if she told anyone. B.M. also
told Szlivewski about the December 2004 incident and the incident
at defendant's sister's house.
Detective Heidi Van Dine (Detective Van Dine), a child abuse
investigator with the Haywood County Sheriff's Office, interviewed
B.M. on 24 January 2005. B.M. told Detective Van Dine about the
incidents on December 2004, the incident at defendant's sister's
house, and that defendant began abusing her when she was about
seven or eight years old. She said it would happen very often
and more times than she could count when her mother went to work
and she was left alone with defendant.
Detective Van Dine interviewed defendant on 3 February 2005.
With regard to the December 2004 incident, defendant told Detective
Van Dine that B.M.'s half-sister was sick and he put her to sleep
in his bed. At some point thereafter, B.M. got into the bed with
her half-sister. Defendant came into the bedroom, placed B.M.'s
half-sister on the floor, laid beside B.M., and fell asleep.
Defendant denied touching B.M. Detective Van Dine interviewed
defendant again on 11 February 2005 and questioned him regarding
the December 2004 incident. Defendant told her after he laid inthe bed beside B.M., she kissed him on the cheek and hugged him,
and it went from there. He denied touching B.M. under her
clothes and told Detective Van Dine that B.M. rolled up on him and
started dry humping him. He stated that he may have brushed her
vagina with his hands and . . . may have grabbed her butt while
she was riding him. Detective Van Dine testified defendant denied
the other allegations and told her he was never alone with B.M. at
his sister's house.
Dr. Cindy Brown (Dr. Brown), a pediatrician with Mission
Children's Clinic, examined B.M. and testified at trial. Dr. Brown
testified that B.M.'s hymen was without physical defects,
interruptions, or injury, but that digital penetration in a child
is very unlikely to cause damage to the hymen. B.M.'s mother told
Dr. Brown that B.M. had flashbacks of being molested by another
man, her Papaw, when she was two-and-one-half years old.
Special Agent Christopher Smith (Agent Smith) with the North
Carolina State Bureau of Investigation interviewed defendant
regarding the December 2004 incident. Defendant told Agent Smith
that he got into bed with B.M. and began fondling and kissing her.
He rubbed her breasts and vaginal area over her clothing. He then
rolled B.M. on top of him and began grinding on her in a sexual
manner. At that point, defendant realized he was doing something
wrong, got up, and went into the bathroom.
B. Defendant's Evidence
B.M.'s mother, C.V. testified she was married to defendant
from 1997 through 2000 or 2001. B.M. mentioned to her mother thatdefendant had bothered her, and her mother responded that, This
is a serious allegation that you have made. You know, you need to
think about this. You need to be sure that you . . . know what
you're telling me is, in fact, true. C.V. testified that she
never once ever said [she] didn't believe her. C.V. mentioned
the allegations to defendant. Until the allegations, defendant
continued to see B.M. and her half-sister, and B.M. would sometimes
go with her half-sister to defendant's house. C.V. could not
understand why B.M. would go with her half-sister to visit
defendant because B.M. didn't like defendant.
C.V. recalled B.M. standing and screaming and begging her
to take B.M. with her when she left B.M. home alone with defendant.
C.V. testified that everything started coming together and that's
when it all hit [her] that something had happened. B.M. disclosed
the December 2004 incident to her grandmother, defendant's
girlfriend, C.V.'s husband, law enforcement, and social services.
B.M. then described the incident to C.V.
C.V. testified that B.M. and her half-sister were at
defendant's house in December 2004 while she was shopping after
Christmas in Tennessee. When she returned from Tennessee, B.M.
told her mother that defendant had sexually molested her, and that
the molestation began when B.M. was in the first grade. B.M. also
described the December 2004 incident. B.M. told her mother that
when she and her half-sister were on defendant's bed, defendant
came in, lifted B.M.'s half-sister from the bed, put her on thefloor, and got into bed with B.M. Defendant began fondling her
breasts and rubbing her vagina.
Michael Bumgarner (Bumgarner) was a friend of B.M. in
December 2004. Bumgarner's mother, Jane, lived with defendant.
One evening in December 2004, Bumgarner was watching television in
a chair near defendant's bedroom door. Jane was asleep on the
couch in the living room. Bumgarner testified he was able to hear
what was going on in the bedroom but did not hear anything from
inside the bedroom. Bumgarner remembered B.M. and her half-sister
were in defendant's bedroom watching television and he saw
defendant go into the bedroom and shut the door. Bumgarner and
B.M. have continued to be friends since the allegations, but have
not discussed the incidents.
On 27 September 2005, a jury found defendant to be guilty of
two counts of first-degree sex offense with a child under the age
of thirteen and three counts of indecent liberties with a child.
On 13 January 2006, defendant was sentenced to a minimum of 384
months and a maximum of 470 months imprisonment for each
first-degree sex offense with a child conviction to run
consecutively. Defendant was sentenced to a minimum of twenty-five
months and a maximum of thirty months for the three counts of
indecent liberties with a child, which were consolidated into one
Class F felony for sentencing purposes, to run consecutively to the
sentences for first-degree sex offense with a child. Defendant
Defendant argues the trial court committed plain error by:
(1) permitting the State to improperly comment on his failure to
testify; (2) allowing the State to ask Dr. Brown whether the
medical exam was consistent with what B.M. told the forensic
interviewer and the jury; and (3) allowing Detective Van Dine to
testify regarding B.M.'s credibility.
III. Standard of Review
In order to preserve a question for appellate review, a party
must have presented the trial court with a timely request,
objection or motion, stating the specific grounds for the ruling
sought if the specific grounds are not apparent. State v.
Perkins, 154 N.C. App. 148, 151, 571 S.E.2d 645, 647 (2002).
Defendant failed to preserve the assignments of error he argues on
appeal. Our review is limited to plain error. N.C.R. App. P.
10(b)(2) (2007); State v. Allen, 339 N.C. 545, 554-56, 453 S.E.2d
150, 154-55 (1995), overruled on other grounds by State v. Gaines,
345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 139 L.
Ed. 2d 177 (1997).
Plain error is:
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done, or where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,
or the error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(internal quotations omitted). To be awarded a new trial due to
plain error, a defendant must show the error complained of was so
fundamental that a different result would have probably occurred
without the error. State v. Parker, 350 N.C. 411, 444, 516 S.E.2d
106, 127 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681
IV. State's Closing Argument
Defendant argues the trial court committed plain error in
permitting the State to improperly comment on his failure to
testify during the State's closing argument. We disagree.
In its closing argument, the State referred to statements
defendant allegedly made to Detective Van Dine during the course of
the investigation. The prosecutor stated defendant testified
when referring to what defendant had told Detective Van Dine. The
prosecutor further stated that defendant will not stand up and
tell the complete truth, Ladies and Gentlemen, because he's got
something to hide.
Our Supreme Court has addressed similar arguments in prior
cases. In State v. Hester, the defendant argued he was entitled to
a new trial because the prosecutor commented on his exercise of his
right to silence during closing argument. 343 N.C. 266, 272, 470
S.E.2d 25, 28 (1996). The prosecutor, in reference to the fact
that the victim was found nude from the waist down, stated, 'Now
how that happened back here we do not know. The defendant did not
tell the officers what his role was in stripping [the victim] fromthe waist down.' Id. The prosecutor also stated that there were
a lot of unanswered questions, that the defendant did not subpoena
a relative who allegedly could have provided an alibi for the
defendant, and that the defendant's 'confession [was]
At trial the defendant in Hester, like defendant in this case,
did not object to these statements. 343 N.C. at 272, 470 S.E.2d at
28. The Court held that none of these remarks spoke to defendant's
failure to testify at trial. Id. at 272, 470 S.E.2d at 29. The
trial court found these remarks were a proper comment on the
evidence adduced at trial. Id.
In State v. Taylor, the defendant explained to officers the
reason why his vehicle was at the bottom of a ravine near where the
murder victim's body was found. 337 N.C. 597, 601, 447 S.E.2d 360,
363 (1994). The defendant explained he and his friend had smoked
crack and wanted to go four-wheeling. Id. The prosecution's
theory was that the defendant and his friend attempted to go
through the ravine to escape after they murdered the victim. Id.
at 611-12, 447 S.E.2d at 369-70. In closing argument, the
prosecutor stated, The defendant has got to explain something to
you. But what he has explained is absurd. Id. at 612, 447 S.E.2d
370 (quotation omitted). As in the present case, the defendant did
not object. Id. Our Supreme Court held:
Taken in context, this portion of the
prosecutor's argument was a comment on the
lack of credibility of the defendant's
statements to the police and the defendant's
failure to produce evidence to corroborate or
explain those statements. This portion of theprosecutor's argument . . . did not amount to
gross impropriety, and the trial court did not
err by failing to intervene ex mero motu.
Id. at 614, 447 S.E.2d at 371.
Other cases follow similar reasoning. See State v. Erlewine,
328 N.C. 626, 633, 403 S.E.2d 280, 284 (1991) (The prosecutor may
argue that the State's evidence was uncontradicted and that such an
argument is not an improper reference to the defendant's failure to
testify ); see also State v. Williams, 317 N.C. 474, 481, 346
S.E.2d 405, 410 (1986) (Counsel entitled to argue to the jury facts
in evidence and all reasonable inference to be drawn therefrom.).
The defendant in Williams, as here, did not object to the
prosecutor's statements. 317 N.C. at 481, 346 S.E.2d at 410.
The record and transcripts before us indicate defendant did
not testify or object to the prosecutor's closing argument.
Similar to these cases, the prosecutor did not comment on
defendant's failure to testify. In the contested portion of the
prosecutor's closing argument, the prosecutor was summarizing the
progression of defendant's confessions. The prosecutor stated,
and then when he finally does tell the truth, he only tells part
of it. The prosecutor told the jury that defendant said, 'Oh, I
was kind of rubbing on her breasts and we were kissing and
hugging,' and 'Okay; okay. She came onto me and she climbed on
top of me.' The prosecutor continued in her closing argument and
stated, [b]ut then he testified after he goes further, 'Well, did
anything else happen?' 'Okay. I may have brushed her vagina.'
In relating these statements to the jury, the prosecutor commented,He will not stand up and tell the complete truth, Ladies and
Gentlemen, because he's got something to hide.
In the final part of her closing argument, the prosecutor
You, Ladies and Gentlemen, are the ones who
will determine the credibility of all the
witnesses you've heard on the stand and I'm
going to ask that you use your common sense,
your knowledge of people, your knowledge of
children, . . . and then decide who is telling
the truth, and common sense is going to tell
you that this child had no reason to make
these up or not to get up here and tell you
the truth and [defendant] had every reason not
to tell the detective the truth back on that
The prosecutor contrasted B.M.'s motive to tell the truth with
defendant's motive to give varying and evolving accounts and
statements. The prosecutor was arguing against defendant's
credibility and pointed out the changing and apparent
inconsistencies in his statements that a ten-year-old child was
sexually aggressive with a thirty-year-old man, who was her
mother's husband and the father of her half-sister.
Defendant cites several cases and argues a per se rule of
reversal [is required] where, as here, improper argument about a
defendant's decision not to testify goes totally uncured. The
authority defendant cites differs from the facts before us. The
defendants in all four cited cases properly preserved their issues
for appeal by objecting at trial to the State's closing arguments.
Defendant failed to object or show the prosecutor commented on his
failure to testify. The trial court did not commit plain error bydeclining to intervene ex mero motu during the prosecutor's closing
argument to the jury. This assignment of error is overruled.
V. Medical Expert Testimony
Defendant argues that the trial court erred in allowing the
State to ask Dr. Brown whether B.M.'s medical exam was consistent
with statements she had told the forensic interviewer and the jury.
Defendant argues Dr. Brown was improperly allowed to testify to and
bolster B.M.'s credibility. We disagree.
In State v. Stancil, our Supreme Court held 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 the victim's credibility. 355 N.C. 266, 266-67, 559
S.E.2d 788, 789 (2002). The Court further held that 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.
Defendant admits that Dr. Brown did not testify that sexual
abuse had in fact occurred. Id. Dr. Brown was asked if her
findings were consistent with B.M.'s report to the doctor's
forensic interviewer and B.M.'s testimony. Dr. Brown responded in
the affirmative, but offered no opinion on whether any abuse had
in fact occurred. Id. Defendant cites State v. Hammett, where
the doctor testified she believed the victim had been sexuallyabused and would have so believed in the absence of the physical
evidence. 361 N.C. 92, 97, 637 S.E.2d 518, 522 (2006). The
doctor's testimony in Hammett is far different than Dr. Brown's
testimony. 361 N.C. at 97, 637 S.E.2d at 522. Dr. Brown simply
agreed that the presence of an intact hymen and the lack of a
physical finding of entry could be consistent with digital
Defendant fails to argue, and our complete review of the
record and transcripts does not disclose, any alleged error in
admitting Dr. Brown's comments that was something so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done. Odom, 307 N.C. at 660, 300 S.E.2d at 378. Dr. Brown's
expert opinion that B.M.'s physical examination results were
consistent with statements B.M. had made did not constitute plain
error and was not so prejudicial to defendant to warrant a new
trial. This assignment of error is overruled.
VI. Officer's Testimony
Defendant argues the trial court improperly permitted
Detective Van Dine to testify as to the credibility of B.M. when
Detective Van Dine explained the steps she took to determine
whether B.M. was telling the truth and what other evidence that
corroborated what B.M. had told her. We disagree.
In State v. O'Hanlon, this Court reviewed the detective's
testimony regarding the steps he took during an investigation under
plain error review. 153 N.C. App. 546, 561, 570 S.E.2d 751, 761
(2002). The detective stated the victim had been raped. Id. at562, 570 S.E.2d at 761. This Court held the detective was not
giving his opinion that the victim had, in fact, been raped, but
explained what his investigation showed and why he did not take all
possible steps. Id. at 561, 570 S.E.2d at 761-62.
Here, the prosecutor asked Detective Van Dine what steps she
took to determine whether B.M. was telling the truth. This
question was asked after a series of questions where defense
counsel repeatedly asked the forensic interviewer, Szlivewski, what
she did to determine whether B.M. was telling the truth.
Each time, Szlivewski responded that it was not within the
scope of her position to make that determination. When the
prosecutor called Detective Van Dine to the stand, the prosecutor
asked the detective whose job it was to determine the validity of
B.M.'s claims. Detective Van Dine responded, That's my job.
Detective Van Dine continued by describing the actions she took
during the course of her investigation: (1) she interviewed people
in the vicinity of the events, (2) arranged for a child's medical
examination, and (3) interviewed defendant, whose second statement
matched B.M.'s accusations in a number of key respects. Defendant
did not object to this line of questioning and dissected on cross-
examination the job the detective had done. It is not the function
of this Court to second-guess counsel's tactical decisions. State
v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986). The trial
court did not commit plain error by failing to exclude this
testimony ex mero motu. This assignment of error is overruled.
The trial court did not commit plain error in: (1) declining
to intervene ex mero motu
when the prosecutor mistakenly said
defendant testified and allegedly commented on defendant's
credibility; (2) allowing the prosecutor to ask the State's medical
expert whether B.M.'s medical exam was consistent with what she had
told the forensic interviewer and the jury in her own testimony;
and (3) allowing Detective Van Dine to explain what steps she took
during her investigation to determine whether B.M. was telling the
truth and explained other evidence that corroborated what B.M. had
told her. Defendant received a fair trial, free from plain errors
he asserted on appeal.
Chief Judge MARTIN and Judge MCCULLOUGH concur.
Report per Rule 30(e).
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