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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1399

NORTH CAROLINA COURT OF APPEALS

Filed: 19 June 2007

STATE OF NORTH CAROLINA

v .                         Haywood County
                            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.

    TYSON, Judge.

    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.

I. Background
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- sister.
    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 clothed.
    Defendant then placed B.M. on top of him so that she straddled him. B.M. testified that defendant placed her “on his penis area”and “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 occasion.
    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 appeals.
II. Issues
    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 (2000).
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] unrebutted.'” Id.
    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 stated:
        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 day.

    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 penetration.
    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.
VII. Conclusion
    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.
    No Error.
    Chief Judge MARTIN and Judge MCCULLOUGH concur.
    Report per Rule 30(e).

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