Appeal by defendant from judgments entered 8 November 2006 by
Judge Henry W. Hight, Jr. in Vance County Superior Court. Heard in
the Court of Appeals 15 October 2007.
Roy Cooper, Attorney General, by Laura E. Crumpler, Assistant
Attorney General, for the State.
Glenn Gerding for defendant-appellant.
MARTIN, Chief Judge.
Defendant was charged with one count of first degree rape of
a child under thirteen years of age, one count of statutory rape of
a thirteen-year-old, two counts of vaginal intercourse with a minor
by a person in a parental role, and two counts of indecent
liberties with a child. Upon defendant's motion to dismiss, the
trial court dismissed the charge of first degree rape and one of
the charges of indecent liberties. Defendant was convicted of the
remaining charges. Defendant was sentenced to imprisonment for
consecutive terms of 288 to 355 months, 29 to 44 months, 29 to 44
months, and 19 to 23 months.
The evidence presented at trial tended to show that T.K., born
5 August 1991, lived with her mother and brothers. Defendant begandating T.K.'s mother in July 2004, shortly after he had been
injured in a fight with his brother. On 23 July 2004, T.K.'s
mother invited defendant to spend the night at her apartment, and
defendant lived in the apartment from then until November 2004.
While defendant lived in their residence, he ate dinner with the
family, was in charge of the household, would spend time with T.K.
every day until her mother left for work, and would walk T.K. to
school every day.
During the summer of 2004, there were times when defendant and
T.K. were alone in the apartment. One time, T.K. was in her
mother's room when defendant entered the room. Defendant told T.K.
to take off her clothes, and then he forced hi[m]self inside of
[her] on her mother's bed. T.K. testified that defendant's
private went inside her private parts and that the incident did
not last long because someone started coming up the driveway. T.K.
also testified that a couple of weeks later defendant touched her
again. She was in her brother's room playing a game and talking on
the telephone when defendant came into the room, closed the door,
and sat beside her. Defendant took off his shorts, laid on top of
her, and pulled her shorts off. T.K. testified that, then,
defendant forced hi[m]self against me a little bit again. T.K.
indicated that she was referring to defendant's private, that it
hurt, and that the whole incident lasted about five to ten minutes.
When asked if defendant touched T.K. anywhere else on her body
during these incidents, she responded affirmatively and indicated
[h]e would just rub my legs. The State also introduced evidence through the testimony of
expert witness Dr. Karen St. Claire, a board-certified pediatrician
who served as Medical Director of the consult team for child abuse
at Duke Medical Center and also as Medical Director of the Center
for Child and Family Health. Dr. St. Claire examined T.K. in March
2005 after the incidents. Dr. St. Claire testified that, in her
opinion, T.K. had been sexually abused based on the history given
and the medical findings of a defect in T.K.'s hymen consistent
with penetrating trauma.
Defendant first argues that the trial court erred in denying
his motion to dismiss the charge of statutory rape of a thirteen-
year-old and the charge of vaginal intercourse with a minor by a
substitute parent because the State failed to present substantial
evidence of the element of vaginal intercourse necessary for the
crimes. Our review of a denial of a motion to dismiss is as
In ruling on a motion to dismiss at the
close of evidence made pursuant to G.S. §
15A-1227, a trial court must determine whether
there is substantial evidence of each
essential element of the offenses charged.
If, viewed in the light most favorable to the
State, the evidence is such that a jury could
reasonably infer that defendant is guilty, the
motion must be denied.
State v. Williams
, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620-21
(2002) (citation omitted).
The crime of statutory rape of a thirteen-year-old and the
crime of vaginal intercourse with a minor by a substitute parenteach require, as an element of the crime, vaginal intercourse
between defendant and the victim. N.C. Gen. Stat. §§ 14-27.7(a)
and 14-27.7A (2005). '[V]aginal intercourse' in a legal sense
means the slightest penetration of the sexual organ of the female
by the sexual organ of the male. State v. Johnson
, 317 N.C. 417,
435, 347 S.E.2d 7, 18 (1986), superseded by statute on other
grounds as stated in State v. Moore
, 335 N.C. 567, 440 S.E.2d 797
Defendant contends that the second sexual assault described by
T.K. did not constitute substantial evidence of vaginal
intercourse. T.K. testified that during the second encounter with
defendant, he forced hi[m]self against
me a little bit again.
(emphasis added). Defendant distinguishes that T.K. never
testified that defendant's privates went inside her privates, as
she did when describing the first incident. Defendant's argument
takes T.K.'s testimony out of context. Although T.K. used the word
against to describe the second encounter, the other evidence of
the encounter constituted substantial evidence of the penetration
required for vaginal intercourse. T.K. used the word forced to
describe the encounter and described that the defendant was laying
on top of her, it hurt, and it lasted about . . . five or ten
minutes. This evidence was sufficient for the jury to reasonably
infer that the defendant had engaged in vaginal intercourse and was
guilty of the crimes charged; therefore, defendant's assignment of
error is overruled. Defendant also argues that the trial court erred in denying
his motion to dismiss the charge of vaginal intercourse with a
minor child by a substitute parent because the State failed to
present substantial evidence that defendant acted as a substitute
parent. The motion to dismiss, with respect to this argument, is
reviewed under the same standard as the previous argument. See
, 154 N.C. App. at 178, 571 S.E.2d at 620-21.
The crime of vaginal intercourse with a minor child by a
substitute parent requires that the defendant assumed the position
of a parent in the home of a minor victim. N.C. Gen. Stat. § 14-
27.7(a). This Court has held:
[T]o convict a defendant of violating G.S. §
14-27.7(a), the evidence of the relationship
between the defendant and child-victim must
provide support for the conclusion that the
defendant functioned in a parental role. Such
a parental role will generally include
evidence of emotional trust, disciplinary
authority, and supervisory responsibility
State v. Bailey
, 163 N.C. App. 84, 93, 592 S.E.2d 738, 744 (2004)
(emphasis added). This Court has also looked for quasi-parental
qualit[ies], such as whether defendant was authorized to make
disciplinary decisions, assist with homework, treat minor injuries,
decide whether the children could leave the apartment, or take them
out of the apartment himself, and considered whether defendant
functioned as a de facto
stepfather, and whether defendant and
the victim had a relationship based on trust that was analogous to
that of a parent and child. Id.
at 94, 592 S.E.2d at 745.
In the present case, T.K. testified that she called defendant
her father, her relationship with him was as my father, and whenshe went out with her mother and defendant, it was a family
thing. This testimony evidences the type of emotional trust found
in a parent-child relationship. T.K. also indicated that, when her
mother was not home, defendant was in charge of the household,
which tends to support a conclusion that defendant had disciplinary
authority and supervisory responsibility. Defendant testified that
he took T.K. to school every morning, and T.K. testified that
defendant spent time with her every day until her mother went to
work. This evidence further suggests defendant's supervisory
responsibility in the household. Based on this evidence, the jury
could reasonably conclude that defendant functioned in a parental
role, and the court did not err in denying defendant's motion to
dismiss the charge.
Defendant next argues that the trial court erred in denying
his motion to dismiss the charge of indecent liberties with a child
for failure to present substantial evidence to show that defendant
committed the crime. The trial court submitted the charge of
indecent liberties to the jury with respect to defendant's conduct
on 1 September 2004. Defendant contends that the evidence
presented did not support the charge of indecent liberties on that
date. Defendant claims that the only evidence supporting the
charge was T.K.'s response when asked whether defendant touched her
anywhere else on her body during the time when the other encounters
occurred, and T.K. responded: He would just rub my legs.
Although T.K. did not specify on which date defendant rubbed her
legs, T.K.'s testimony was sufficient to meet the burden ofsubstantial evidence, when viewed in the light most favorable to
the State, that the jury could reasonably infer that defendant had
committed indecent liberties on that date. Therefore, the trial
court did not err in denying the motion to dismiss.
Defendant next argues that the trial court erred in submitting
verdict sheets to the jury that did not match the indictment and
the evidence presented at trial. The indictment charged defendant
with crimes of engaging in vaginal intercourse with T.K., the
evidence presented at trial related to vaginal intercourse with
T.K., and the jury was instructed on the charges of vaginal
intercourse, but the verdict sheet submitted to the jury described
the crimes as engaging in a sexual act with a minor. Defendant
notes that the term sexual act excludes vaginal intercourse
from its definition. N.C. Gen. Stat. § 14-27.1(4) (2005) ('Sexual
act' . . . does not
include vaginal intercourse. (emphasis
added)). Accordingly, defendant notes that the crimes of which he
was convicted were not the crimes for which he was indicted or a
lesser included offense thereof. Defendant argues that an
indictment will not support a conviction for a crime all the
elements of which crime are not accurately and clearly alleged in
the indictment. State v. Perry
, 291 N.C. 586, 592, 231 S.E.2d
262, 266 (1977). Therefore, defendant argues that the trial court
erred in convicting him of crimes involving engaging in a sexual
act with a minor where the indictment was for crimes involving
vaginal intercourse with a minor. Although it is obvious that the court made a mistake in the
language printed on the verdict sheet, such a mistake is not
necessarily reversible error. We note that a verdict is
sufficient if it 'can be properly understood by reference to the
indictment, evidence and jury instructions.' State v. Tucker
N.C. App. 53, 60, 575 S.E.2d 770, 774 (quoting State v. Connard
N.C. App. 327, 336, 344 S.E.2d 568, 574 (1986)), rev'd on other
, 357 N.C. 633, 588 S.E.2d 853 (2003). Furthermore, this
Court has held that unless such an error is fundamental, it will
not be considered prejudicial. State v. Gilbert
, 139 N.C. App.
657, 673-74, 535 S.E.2d 94, 103 (2000).
This Court has decided an issue virtually the same as the one
raised by defendant in Tucker
, 156 N.C. App. at 60-61, 575 S.E.2d
at 775, and defendant has not distinguished this case from Tucker
The defendant in Tucker
was indicted for statutory sexual offense
of a thirteen-, fourteen-, or fifteen-year-old, and the evidence
and jury instructions related to that charge. Id.
verdict sheet referenced a charge of first degree sexual offense.
at 60, 575 S.E.2d at 775. This Court held this was not
fundamental error requiring arrest of judgment. Id.
the present case, the indictment, evidence, and jury instructions
contained the proper charge, while the verdict sheet recited a
similar but different charge; therefore, we conclude there was no
fundamental error requiring arrest of judgment.
Defendant ultimately argues that the trial court erred in
admitting, under Rule 702, evidence of Dr. St. Claire's expertopinion that T.K. had been sexually abused. Defendant argues that
the State failed to lay a sufficient foundation to admit the
testimony and that the testimony improperly constituted an opinion
on the truthfulness of T.K.'s testimony rather than an opinion on
the significance of the medical evaluation. [A] trial court's
rulings under Rule 702 will not be reversed on appeal absent an
abuse of discretion. State v. Morgan
, 359 N.C. 131, 160, 604
S.E.2d 886, 904 (2004).
Dr. St. Claire testified as follows:
A. . . . My medical opinion is that she is a
victim of sexual abuse.
Q. And what do you base that opinion on?
A. The information that I obtained during the
course of her medical evaluation, primarily
based on the elements of her evaluation, which
were her exam findings with there being a
notch _ angular notch, or defect in her hymen,
and having spoken with the chid and
. . . .
Q. And, in your opinion, was the abuse a
A. I believe it was because of the defect
that's in the hymen or that little angular
notch where the hymen is either stretched
beyond its capacity to tolerate the
penetration, or was actually a penetrating
force to the hymen in that area.
Q. This finding of the notch in the hymen, is
that unusual in adolescent or adult women?
A. It's unusual in even sexually active people
who are already into puberty, the estrogen
effect that you have on the hymen makes the
hymen thicker, plumper and much more
stretchable, so there are certainly a large
number of women and adolescents who can besexually active without tearing or stretching
the hymen too much causing the [sic] sort of
In fact, most sexually active teenagers
would not even have a tear or defect and when
we see that, again, it is a finding that we
should not see there and it indicates that
there's been trauma to the hymen in that area.
. . . .
Q. And the notch described, or illustrated in
State's number 4 is a clear notch. In other
words, the hymenal tissue is away, except for
at the bottom, is that correct?
A. That's right. And you can actually see the
_ the edge of the hymen, which is elevated.
The hymen is _ is several millimeters wide.
Then you get to that one area and it just
drops off. It's a very clear defect between
those two areas.
Dr. St. Claire also testified that she could not tell from her
evaluation exactly what, who, or how many contacts caused the
The trial court admitted this testimony pursuant to Rule 702,
If scientific, technical or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of
N.C. Gen. Stat. § 8C-1, Rule 702 (2005). In cases of expert
opinion testimony about sexual abuse, our Supreme Court has noted
that testimony based upon the results of the pelvic exam and the
history given . . . by the victim does not meet the requirements
of Rule 702 unless the State lays a foundation sufficient to show
that the opinion was really based upon [the witness's] specialexpertise, or stated differently, that [the witness] was in a
better position than the jury to have an opinion on the subject.
State v. Trent
, 320 N.C. 610, 614, 359 S.E.2d 463, 465-66 (1987).
Our Supreme Court has also found expert opinions to be reversible
error when experts have testified that the victim was believable,
had no record of lying, and had never been untruthful. State v.
, 322 N.C. 818, 822, 370 S.E.2d 676, 678 (1988). Defendant
argues that the State failed to lay a sufficient foundation for Dr.
St. Claire's testimony and also that Dr. St. Claire's opinion was
'in effect' an expression that T.K. was telling the truth.
[A]n expert medical witness may render an
opinion pursuant to Rule 702 that sexual abuse
has in fact occurred if the State establishes
a proper foundation, i.e. physical evidence
consistent with sexual abuse. However, in the
absence of physical evidence to support a
diagnosis of sexual abuse, expert testimony
that sexual abuse has in fact occurred is not
admissible because it is an impermissible
opinion regarding the victim's credibility.
State v. Dixon
, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598, aff'd
, 356 N.C. 428, 571 S.E.2d 584 (2002) (citation omitted).
In a case factually similar to the present case, our Supreme Court
held that the expert witness's opinion testimony was admissible.
State v. Hammett
, 361 N.C. 92, 96, 637 S.E.2d 518, 521 (2006). In
, the expert witness obtained the victim's history and
conducted a physical examination which revealed a hymenal notch in
a particular location that the expert testified was consistent with
The Court concluded, [u]nder these facts, . . . the
interlocking factors of the victim's history combined with thephysical findings constituted a sufficient basis for the expert
opinion that sexual abuse had occurred. Id.
Dr. St. Claire's
detailed explanation of her medical findings upon examining T.K.
was clearly based on her specialized knowledge and experience and
was admitted to assist the jury in understanding the evidence.
Therefore, we conclude that the State laid a sufficient foundation
for admitting her opinion that T.K. had been sexually abused.
With regard to the argument that Dr. St. Claire's testimony
improperly expressed her opinion about the truthfulness of T.K.'s
testimony, we are guided by an opinion from our Supreme Court.
Where [t]he statement of the doctor only revealed the consistency
of her findings with the presence of vaginal trauma, and [t]his
expert opinion did not comment on the truthfulness of the victim or
the guilt or innocence of defendant, the Court held [t]he
questions and answers were properly admitted to assist the jury in
understanding the results of the physical examination and their
relevancy to the case being tried. Aguallo
, 322 N.C. at 823, 370
S.E.2d at 678. Similarly, in the present case, Dr. St. Claire did
not comment on the truthfulness of T.K.'s testimony and instead
revealed the consistency between her medical findings and the
history T.K. gave. Accordingly, the trial court did not err in
admitting her expert opinion.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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