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1. Evidence--expert testimony--sexual abuse--victim's history combined with
physical findings
The trial court did not err by admitting a medical expert's opinion that a child had
been sexually abused based on the child's statements and physical evidence found during an
examination, because: (1) the expert's opinion never implicated the defendant as the perpetrator,
and thus, the opinion that the trauma was consistent with the victim's story was not the same as
an opinion that the witness was telling the truth; (2) the interlocking factors of the victim's
history combined with the physical findings constituted a sufficient basis for the expert opinion
that sexual abuse had occurred; and (3) in light of the expert's specialized knowledge in
pediatrics and child physical and sexual abuse, her opinion testimony assisted the jury in
understanding the evidence presented.
2. Evidence--expert opinion-_belief of sexual abuse absent physical evidence--
plain error analysis
The trial court did not commit plain error by admitting an expert's opinion that
she would believe the child and diagnose abuse even in the absence of physical evidence,
because while the expert's statements vouching for the minor child were improper, the jury
would not have acquitted defendant if the challenged statements had been excluded when: (1) the
case at bar did not rest solely on the victim's credibility; and (2) in addition to the minor child's
consistent statements and testimony that defendant had abused her sexually, the jury was able to
consider properly admitted evidence that the child exhibited physical signs of repeated sexual
abuse, defendant's admissions of bizarre bathing habits with the child, and defendant's
thoroughly impeached denials that his showers with the child had any sexual aspect.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the
decision of a divided panel of the Court of Appeals, 175 N.C.
App. 597, 625 S.E.2d 168 (2006), reversing a judgment entered 11
February 2004 by Judge Steve A. Balog in Superior Court, Cabarrus
County and granting defendant a new trial. Heard in the Supreme
Court 13 September 2006.
Roy Cooper, Attorney General, by Kelly L. Sandling,
Assistant Attorney General, for the State-appellant.
Mark Montgomery for defendant-appellee.
EDMUNDS, Justice.
In this case, we consider whether the trial court
committed error in admitting a medical expert's opinion that a
child had been sexually abused, based on the child's statements
and physical evidence found during an examination. We also
consider whether admission of the expert's additional opinion
that she would believe the child and diagnose abuse even in the
absence of physical evidence constitutes plain error. Because we
conclude that admission of the former was proper and admission of
the latter did not rise to the level of plain error, we reverse
the Court of Appeals decision, vacate its order for a new trial,
and remand to that court for consideration of defendant's
remaining issues.
On 9 June 2003, defendant was indicted in Cabarrus
County for three counts of sexual offense against a
thirteen-year-old child, in violation of N.C.G.S. . 14-27.7(a),
and seven counts of taking indecent liberties with a child, in
violation of N.C.G.S. . 14-202.1(a)(2). In each case, the victim
was C.H., who is defendant's daughter. The offenses were alleged
to have occurred between late January and early April 2003.
Defendant was tried at the 9 February 2004 criminal
session of Cabarrus County Superior Court. The State's evidence
included testimony from C.H.; E.O., C.H.'s friend to whom she
first described the abuse; Sherry Cook, the nurse at the
Children's Advocacy Center where C.H. was taken for evaluation;
Rosalina Conroy, M.D. (Dr. Conroy), the pediatrician who examined
C.H.; and Detective Larissa Cook, the arresting officer. C.H.
testified that, before going to live with defendant, she had beensexually abused by her mother's former boyfriend. However, this
early abuse had not involved any penetration of her vagina. C.H.
later went to live with defendant. She testified that defendant
had committed various sexual acts on her while she lived with him
between January and April 2003, including, inter alia, fondling
her breasts, putting his tongue into her vagina, shaving her
pubic hair, having her wash his genitals, and twice penetrating
her vagina with his fingers while taking a shower with her.
Defendant testified in his own defense and denied most of C.H.'s
allegations. However, he acknowledged that he had showered with
C.H. on two occasions and washed her private areas while his
hand was covered by a wash cloth.
On the first day of trial, Dr. Conroy was accepted by
the court as an expert in pediatric medicine specializing in
child physical and sexual abuse. She testified that she met C.H.
on 28 April 2003. Dr. Conroy obtained a medical history from
C.H., then conducted a physical examination. During the
examination, she observed a notch in the six o'clock position of
C.H.'s hymenal ring. She stated that sexual abuse is one of the
only things that will cause that kind of injury at that
location. In addition, Dr. Conroy discovered an irregular scar
on C.H.'s posterior fourchette, at the bottom of the hymenal
ring. She explained that only ten percent of the sexually abused
children she sees show physical signs of the abuse. Dr. Conroy
testified that it was her opinion that these physical findings
resulted from repeated abuse and were caused by penetration of
C.H.'s vagina with a hard object. Over defendant's objection, the trial court allowed the
State to recall Dr. Conroy as a witness the following day to
clarify her medical findings. Dr. Conroy repeated her testimony
that, based on the physical findings, she believed C.H.'s vagina
had been penetrated and that it happened more than once. When
asked if C.H.'s account was consistent with the two injuries
that Dr. Conroy had found and whether C.H.'s case was consistent
of [sic] sexual abuse, she answered affirmatively. Dr. Conroy
then added that she based the bulk of [her] conclusion on
[C.H.'s] history and even if there were absolutely no physical
findings, [her] conclusion would still be the same, based on
[C.H.'s] history . . . [and] plenty of details in that history
. . . that she has been sexually abused.
The jury found defendant guilty on all counts and
defendant appealed his conviction to the Court of Appeals. On 7
February 2006, a divided panel of that court held that the trial
court committed plain error in admitting portions of Dr. Conroy's
second day of testimony. Accordingly, the Court of Appeals
ordered that defendant receive a new trial on all counts. State
v. Hammett, 175 N.C. App. 597, __, 625 S.E.2d 168, 172-74 (2006).
In so ruling, the Court of Appeals did not address other issues
raised by defendant on appeal. The dissent argued that the trial
court had not erred in admitting the statements. The State
appealed to this Court based on the dissent.
[1] Before this Court, defendant does not challenge Dr.
Conroy's physical findings but argues that all of her opinion
testimony was improperly admitted. In response, the State arguesthat Dr. Conroy's testimony was admissible or, in the
alternative, that its admission did not constitute plain error.
As to Dr. Conroy's testimony on the first day of trial,
she stated without objection that she reached her conclusion that
C.H. had been abused on the twin bases of C.H.'s history and the
physical symptoms consistent with that history. The facts of the
case control our determination of whether these two factors are
sufficient to support an expert opinion that abuse has occurred.
For example, in State v. Trent, the defendant was convicted of
first-degree rape and taking indecent liberties with a minor.
320 N.C. 610, 359 S.E.2d 463 (1987). The victim told the
examining pediatrician that her father had sexual intercourse
with her. Id. at 613, 359 S.E.2d at 465. The pediatrician
testified that a pelvic examination of the victim revealed that
her hymen was not intact, but no lesions, tears, abrasions,
bleeding, or other abnormal conditions had been found. Id. The
expert acknowledged that the condition of the hymen would justify
a conclusion that the victim had been sexually active, but would
not by itself support a diagnosis of abuse. Id. at 614, 359
S.E.2d at 465-66. Noting that the examination had been conducted
four years after the alleged abuse, we concluded that the State
had failed to establish a sufficient basis for the pediatrician's
expert opinion that the victim had been abused. Id. at 614-15,
359 S.E.2d at 465-66.
In State v. Aguallo, we held that an expert's opinion
that the victim in a sexual abuse case was believable was
erroneously admitted when the examination finding physicalevidence of penetration had been conducted more than six months
after the alleged offense, the victim's credibility was
questioned, and the defendant denied any physical or sexual
contact with the victim. 318 N.C. 590, 593, 599, 350 S.E.2d 76,
78, 82 (1986). On retrial, the expert testified that a physical
examination revealed a lacerational cut in the victim's hymen.
State v. Aguallo, 322 N.C. 818, 822, 370 S.E.2d 676, 678 (1988).
The expert then confirmed this physical finding was consistent
with the victim's pre-examination statement to the expert that
the defendant had vaginal intercourse with her. Id. Because the
expert's opinion never implicated the defendant as the
perpetrator, we held the opinion that the trauma was consistent
with the victim's story was not the same as an opinion that the
witness was telling the truth. Id. at 822-23, 370 S.E.2d at 678.
Accordingly, the opinion was admissible. Id.
In the case at bar, Dr. Conroy obtained C.H.'s history,
then conducted a physical examination shortly after the last
alleged act of abuse. Dr. Conroy described the results of the
examination as evidence of sexual abuse:
[Dr. Conroy] Sexual abuse is generally the --
one of the only things that will cause [a
hymenal notch], especially in the position
where she's -- where that is, which is at the
six o'clock position, and that's the position
that we spent a lot of time looking at
because if there is penetrating trauma,
that's where we're going to see it.
Q So you see a notch and then you also see it at a
specific point that meant something to you?
A Right, exactly.
Thus, Dr. Conroy testified that her findings were consistent with
abuse, though not necessarily by defendant.
Under these facts, we conclude that the interlocking
factors of the victim's history combined with the physical
findings constituted a sufficient basis for the expert opinion
that sexual abuse had occurred. Cf. State v. Stancil, 355 N.C.
266 passim, 559 S.E.2d 788 passim (2002) (per curiam) (finding an
inadequate foundation for expert opinion that sexual assault
occurred when opinion based only upon an interview with
complaining witness unsupported by any physical evidence of abuse
despite two physical examinations and a series of tests on the
alleged victim). In light of Dr. Conroy's specialized knowledge
in pediatrics and child physical and sexual abuse, her opinion
testimony assisted the jury in understanding the evidence
presented. N.C.G.S. . 8C-1, Rule 702(a) (2005) (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 . . . may testify thereto in the
form of an opinion.). For the same reason, Dr. Conroy's similar
opinion on the second day of trial that C.H.'s symptoms were
consistent with sexual abuse was properly admitted. See Stancil,
355 N.C. at 266-67, 559 S.E.2d at 789.
[2] The more difficult issue before us is whether the
trial court committed error in admitting Dr. Conroy's subsequent
expert testimony that, based on C.H.'s statements, she would
conclude that C.H. had been abused even in the absence of
physical symptoms and, if so, whether the error was plain error. Defendant argues the statement reveals that Dr. Conroy reached
her opinion because she believed C.H.'s statements and therefore,
her testimony was a direct comment on [C.H.'s] veracity. The
State responds that Dr. Conroy's comment was a hypothetical
scenario inapplicable to this case.
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.
Stancil, 355 N.C. at 266-67, 559 S.E.2d at 789. See also State
v. Grover, 142 N.C. App. 411, 417-19, 543 S.E.2d 179, 182-84
(holding the experts' opinion testimony lacked a proper
foundation when there was no physical evidence of sexual abuse
and the experts admitted that their conclusions were based solely
on the children's statements that they had been abused), aff'd
per curiam, 354 N.C. 354, 553 S.E.2d 679 (2001). Accordingly,
Dr. Conroy improperly vouched for C.H.'s credibility when she
added to her previous admissible testimony the remark that she
would reach the same conclusion based on C.H.'s history alone and
that the physical evidence was not a necessary basis for her
conclusions. Admission of this part of Dr. Conroy's testimony
was error.
We next consider whether admission of this evidence
constituted plain error. Defendant raised only a general
objection to the recalling of Dr. Conroy on the second day of
trial. Defendant did not object specifically to Dr. Conroy'stestimony regarding C.H.'s credibility, nor did defendant later
move to strike this testimony. See N.C.G.S. . 8C-1, Rule
103(a)(1) (2005) (stating that when asserting error regarding a
ruling admitting evidence, [n]o particular form is required in
order to preserve the right to assert the alleged error upon
appeal if the motion or objection clearly presented the alleged
error to the trial court (emphasis added)); N.C. R. App. P.
10(b) (In order to preserve a question for appellate review, a
party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the ruling
the party desired the court to make if the specific grounds were
not apparent from the context. It is also necessary for the
complaining party to obtain a ruling upon the party's request,
objection or motion. (emphasis added)). Accordingly,
defendant's general objection was insufficient to preserve this
issue for appellate review.
When such an issue is not preserved in a criminal case,
we apply plain error review. State v. Gregory, 342 N.C. 580,
584, 467 S.E.2d 28, 31 (1996) (citations omitted). We find plain
error only in exceptional cases where, 'after reviewing the
entire record, it can be said the claimed error is a fundamental
error, something so basic, so prejudicial, so lacking in its
elements that justice cannot have been done.' Thus, the
appellate court must study the whole record to determine if the
error had such an impact on the guilt determination, therefore
constituting plain error. State v. Davis, 349 N.C. 1, 29, 506
S.E.2d 455, 470 (1998) (citations omitted), cert. denied, 526U.S. 1161, 144 L. Ed. 2d 219 (1999). Accordingly, we must
determine whether the jury would probably have reached a
different verdict if this testimony had not been admitted. See
State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987)
(explaining that plain error is error so fundamental as to
amount to a miscarriage of justice or which probably resulted in
the jury reaching a different verdict than it otherwise would
have reached), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912
(1988).
Defendant contends that the State's case was not
overwhelming and was totally dependent on the relative
believability of C.H. and defendant. Therefore, defendant
argues, Dr. Conroy's impermissible vouching for C.H.'s
credibility was a fundamental flaw in the proceedings comparable
to other cases in which the Court of Appeals has ordered a new
trial under plain error review. However, in all but one of the
cases cited by defendant in support of this argument, admission
of the expert's testimony was held to be plain error because the
opinion that sexual abuse occurred was formed in the absence of
any physical findings and the expert relied exclusively upon the
victim's credibility. See State v. Delsanto, 172 N.C. App. 42,
46-49, 615 S.E.2d 870, 873-75 (2005); State v. Ewell, 168 N.C.
App. 98, 105-06, 606 S.E.2d 914, 919-20, disc. rev. denied, 359
N.C. 412, 612 S.E.2d 326 (2005); State v. Bush, 164 N.C. App.
254, 259-60, 595 S.E.2d 715, 718-19 (2004); State v. O'Connor,
150 N.C. App. 710, 712, 564 S.E.2d 296, 297 (2002). In the
single remaining case cited by defendant, the only physicalevidence was abrasions on the victim's introitus that were not
diagnostic of or specific to sexual abuse. State v. Couser, 163
N.C. App. 727, 729-32, 594 S.E.2d 420, 422-24 (2004).
In contrast, the case at bar did not rest solely on the
victim's credibility. Dr. Conroy appropriately testified that
she could tell from [C.H.'s] physical findings . . . that [C.H.]
has been penetrated and . . . it has happened more than once.
As the Court of Appeals majority correctly noted, That C.H. was
likely 'repeatedly sexually abused' by someone was not seriously
challenged at trial. Hammett, 175 N.C. App. at __, 625 S.E.2d
at 173. In addition, while defendant denied abusing C.H., he
corroborated her testimony that he had taken showers with her and
admitted washing her private areas on two occasions.
Defendant's stated reason for entering naked into the shower with
his thirteen-year-old daughter was that [s]he had bad personal
hygiene. When defendant denied instructing C.H. to wash him in
the shower, he was impeached with a prior statement in which he
admitted to having C.H. wash [his] arms and legs. Defendant
then acknowledged instructing C.H. to wash the upper part of my
chest. When asked to explain to the jury how having C.H. wash
him would help her personal hygiene, defendant conceded, I have
no explanation of that.
Therefore, in addition to C.H.'s consistent statements
and testimony that defendant had abused her sexually, the jury
was able to consider properly admitted evidence that C.H.
exhibited physical signs of repeated sexual abuse, defendant's
admissions of bizarre bathing habits with C.H., and defendant'sthoroughly impeached denials that his showers with C.H. had any
sexual aspect. Thus, while Dr. Conroy's statements vouching for
C.H. were improper, we believe the jury would not have acquitted
defendant if the challenged statements had been excluded.
We reverse the decision of the Court of Appeals and
vacate its order for a new trial. We remand this case to the
Court of Appeals for consideration of the remaining issues raised
by defendant.
VACATED; REVERSED AND REMANDED.
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