STATE OF NORTH CAROLINA
v. Forsyth County
No. 06 CRS 51434
JOSE LUIS DOMINGUEZ
Attorney General Roy Cooper, by Special Deputy Attorney
General Belinda A. Smith, for the State.
Richard G. Roose, for defendant-appellant.
CALABRIA, Judge.
Jose Luis Dominguez (“defendant”) appeals from judgments
imposed upon jury verdicts finding him guilty of first degree
statutory rape and taking indecent liberties with a child. We find
no error.
The State presented evidence tending to show that between
January and September 2005, the defendant resided in a house
inhabited by a friend as well as the friend's wife and children.
Defendant slept in a bedroom upstairs close to a bedroom in which
a female child, then age ten, and two male children slept. The
female child (hereinafter “victim”) slept in one bed while the two
boys slept in another. The victim's father and mother slept in a
downstairs bedroom. The victim testified that on a Friday night defendant came
into her bedroom and touched her breast underneath her bedclothes.
Defendant pulled her from the bed onto the carpet, removed her
shorts, and caused her pain when he inserted his penis into her
vagina. Defendant placed his hand over her mouth to prevent her
from screaming. After defendant finished with the victim and left
her room, she went into the bathroom and saw “water” coming from
her vaginal area. She washed herself and returned to bed but she
could not go back to sleep. Defendant subsequently returned to the
victim's bedroom on other weekend nights and repeated the same
activity. Each time, defendant unlocked the door to enter the
bedroom and turned off the nightlight in the bedroom before
engaging in the sexual activity. Each time she cleaned herself
afterward and also observed “water” coming from her vaginal area.
Defendant told the victim not to tell anyone or else she would be
beaten.
The victim subsequently developed a discharge, pain, and
itching in her vaginal area. Her mother sought treatment for her
at a medical clinic called Today's Woman Health and Wellness Center
(“Today's Woman”). Ayonna Galloway (“Galloway”), a physician's
assistant at Today's Woman, testified that she examined the victim
on 2 February 2006. Investigating the possible cause of the
victim's complaint of burning during urination, she asked the
victim whether “she had been touched in a manner that she did not
want to be touched.” The victim initially denied being touched but
when Galloway asked the question again with an explanation, thevictim became very emotional and admitted being touched by “Jose.”
The victim stated that it happened more than once before Christmas.
Galloway conducted a pelvic exam. She observed the victim's labia
majora was positive for chafing, her introitus was irregular, her
hymen was absent, and her vaginal canal was relaxed. Galloway
contacted the police and arranged an appointment for an examination
by Dr. Sara Sinal (“Dr. Sinal”), a child sexual abuse specialist.
Dr. Sinal testified as an expert in child sexual abuse
examination. When she examined the victim on 27 March 2006, she
observed that the victim had a “redundant or overlapping hymen.”
She also was unable to find any interruption in the hymen and
characterized the examination as normal. However, Dr. Sinal also
testified that there are cases in which the hymen heals itself and
increased estrogen production when a child enters puberty may cause
the hymen to thicken and may obscure any prior injury to the hymen.
The victim had experienced her first menstrual cycle four months
prior to the examination.
Cynthia Stewart (“Stewart”), a social worker at North Carolina
Baptist Hospital, testified that she interviewed the victim and the
victim's mother in preparing a history prior to the victim's
examination by Dr. Sinal. She interviewed the victim twice, once
in the presence of a male Spanish language interpreter and the
second time in the presence of a female Spanish language
interpreter. The victim did not say much during the first
interview interpreted by the male. However, she talked more during
the interview in the presence of the female interpreter. Specifically, the victim stated that defendant inserted his penis
into her vagina.
The victim's mother testified that she always checked to see
that the victim's bedroom door was locked when she went to bed and
that she noticed the doorknob to the bedroom became loose and
scratched while defendant was staying with the family. She also
related that the children went to sleep with a nightlight on and
that it was usually illuminated each morning but on some mornings,
she observed the nightlight had been removed and placed on the
floor.
Defendant did not present any evidence.
As an initial matter, defendant argues only one of the two
assignments of error in the record. Therefore, the remaining
assignment of error is deemed abandoned per N.C. R. App. 28(b)(6)
(2007). See also State v. Hall, 23 N.C. App. 553, 554, 209 S.E.2d
408, 409 (1974). By the sole assignment of error brought forward
in his brief, defendant contends the court committed plain error by
admitting opinion testimony of Cynthia Stewart
that the child's
“behaviors and the characteristics, the statements, and her
disclosure are consistent with a child who has experienced sexual
abuse.” By assigning plain error, defendant concedes that he did
not object to admission of the evidence in the trial court. See
State v. Oliver, 309 N.C. 326, 335, 307 S.E.2d 304, 312 (1983).
The burden is therefore upon defendant to show “(i) that a
different result probably would have been reached but for the error
or (ii) that the error was so fundamental as to result in amiscarriage of justice or denial of a fair trial.” State v.
Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). We conclude
defendant has shown neither.
Our Supreme Court has succinctly summarized the governing law
as follows:
In 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. ... 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. . . . (Citations omitted.)
State v. Stancil, 355 N.C. 266, 266-267, 559 S.E.2d 788, 789
(2002). We conclude Stewart's testimony did not constitute an
opinion that the victim had actually been sexually abused. Rather,
she permissibly testified that the victim's statements, profiles,
and symptoms were consistent with those of sexually abused
children. Neither are we persuaded that had the evidence not
been admitted, a different verdict would have resulted. The jury
heard compelling and uncontradicted testimony from the victim and
her mother. The victim consistently told the same story to several
witnesses. Our Supreme Court found similar evidence in Stancil to
be overwhelming evidence of guilt sufficient to overcome erroneous
admission of opinion testimony that the victim in that case had
actually been sexually assaulted. Id. at 267, 559 S.E.2d at 789.
No error.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).
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