STATE OF NORTH CAROLINA
v
.
Cherokee County
Nos. 04 CRS 2727-30
ROY LEE BYERS
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Sonya M. Calloway-Durham, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
JACKSON, Judge.
Roy Lee Byers (“defendant”) was convicted of two counts of
Taking Indecent Liberties with a Child and two counts of First
Degree Statutory Sex Offense on 5 January 2006. The Indecent
Liberties charges were consolidated into the Sex Offense charges
for sentencing purposes, and defendant was sentenced to two
consecutive terms of 335 to 411 months imprisonment in the North
Carolina Department of Correction. At trial, the child victim's
therapist testified that the child's behavior upon disclosing the
alleged sexual abuse indicated the “he was saying something that
was truthful.” The therapist later testified that he had “not
noticed any behavior that would indicate that [the child was]
fabricating.” Defendant argues that this testimony wasinadmissible expert testimony vouching for the child's
truthfulness. We hold that defendant has failed to demonstrate
plain error.
By failing to object to testimony when it is first admitted,
a defendant waives any possible objection to it. State v. Davis,
353 N.C. 1, 19, 539 S.E.2d 243, 256 (2000), cert. denied, 534 U.S.
839, 151 L. Ed. 2d 55 (2001). A criminal defendant may appeal a
question that has not been otherwise preserved by specifically and
distinctly contending the questioned judicial action amounted to
plain error. See N.C. R. App. P. 10(c)(4) (2007). Under plain
error analysis, if this Court is “not persuaded that the jury
probably would have reached a different result had the alleged
error not occurred, we will not award defendant a new trial.”
State v. Ridgeway, 137 N.C. App. 144, 147, 526 S.E.2d 682, 685
(2000) (citing State v. Bronson, 333 N.C. 67, 75, 423 S.E.2d 772,
777 (1992)).
Defendant did not object to the allegedly inadmissible
testimony. Thus, he argues plain error. Presuming, without
deciding, that the therapist's testimony was inadmissible, we hold
there would be no probable impact on the jury's decision in light
of the otherwise overwhelming evidence of defendant's guilt.
The witnesses were sequestered during the trial, with only the
mother being allowed in the courtroom while the child was
testifying. The State first presented the child victim. Although
the child clearly was uncomfortable with testifying, he eventually
testified that defendant touched him in the back and on the kneewith his penis. When asked if defendant touched the child's butt
with his penis, the child continually said, “I want my mama.” The
child then testified that defendant touched his penis.
The next witness, the child's aunt, testified that when the
child was about two and one-half years old, she saw him come into
the living room after getting out of the bathtub, and go straight
to defendant. “He turned around, spread his butt cheeks and
[defendant] tapped his butt.” She then testified that she had seen
this occur two other times.
The child's mother testified next. She testified that the
child started engaging in sexually related behavior around three to
three and one-half years old. At that time, she noticed that he
would play with his anus; he would stick his finger in it.
Towards the age of four, he started being sexual toward his
younger brother. At first it was just touching his “brother's
privates.” She also caught the child after a bath trying to stick
his penis in his brother's butt. When she asked if he had ever
seen anybody do that, the child said that he had. One time after
catching the child touching his brother, she asked him “Is somebody
doing this to you, touching your privates[?] Is this _ what's
bringing this on? Why are you doing this?” He told her, yes When
she asked who, he would not tell her; he put his head down and
acted ashamed. Eventually, he told her that defendant had touched
him “down there.”
Most of the child's sexual behavior occurred after baths.
Almost every time the child would visit defendant, he had beenbathed and had his clothes changed; sometimes after only visiting
for a couple of hours. The mother also testified that one time
after a bath at her home, she saw the child run into the living
room, bend over in front of defendant and that defendant “smacked
him on the butt.”
A law enforcement officer testified as to what the child's
mother had told him during his investigation of the case. Much of
his testimony corroborated the statements the mother made during
her testimony.
The next witness was an investigator for the Cherokee County
Department of Social Services (“DSS”) who had been assigned to the
child's case. She testified that she interviewed the child during
one of his therapy sessions, during which he stated that defendant
had “touched his butt and put his penis up his butt.”
The child's therapist also testified. He stated that the
child initially was brought in for oppositional and defiant
behaviors. He also was very aggressive and somewhat sexually
inappropriate. The mother had described problems with the child of
a sexual nature. This sort of sexual behavior was not typical for
a child of his age.
During one session, the therapist was complimenting the child
for having done well in the past week, when the child “got real
still and quite [sic] and his head dropped down and he wouldn't
make eye contact . . . .” When asked if there was something he
wanted to talk about, the child revealed that defendant had hurt
him on his penis and his butt. The therapist also testified to thedisclosure the child made during the interview with the DSS
investigator that defendant put his penis in his butt.
Given the extensive testimony presented, we are not persuaded
that the jury probably would have reached a different result had
the alleged error not occurred.
No error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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