State v. Clark ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-13
No. 286A20
Filed 11 February 2022
STATE OF NORTH CAROLINA
v.
JAMES CLAYTON CLARK, JR.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the unpublished decision of a
divided panel of the Court of Appeals, No. COA 19-634, 2020 WL 1274899 (N.C. Ct.
App. Mar. 17, 2020), finding no error in part in a judgment entered on 18 July 2018
by Judge Jeffrey B. Foster Jr. in Superior Court, Pitt County. On 14 August 2020, the
Supreme Court allowed, in part, defendant’s petition for discretionary review. Heard
in the Supreme Court on 19 May 2021.
Joshua H. Stein, Attorney General, by Lisa B. Finkelstein, Assistant Attorney
General, for the State-appellee.
Paul F. Herzog for defendant-appellant.
HUDSON, Justice.
¶1 James Clayton Clark, Jr. (defendant) appeals from a divided decision of the
Court of Appeals, arguing the majority erred in upholding his conviction for taking
indecent liberties with a child on the basis that the trial court erred in allowing the
State’s expert to testify that the minor child was “sexually abused” in the absence of
physical evidence confirming her opinion. Defendant further argues that testimony
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by the State’s expert identifying defendant as the perpetrator of the charged offense
constituted plain error and that the dissenting opinion in the Court of Appeals
correctly determined that the record of this case is sufficient to determine that Mr.
Clark’s trial counsel committed ineffective assistance of counsel. For the reasons
stated, we affirm in part and reverse in part the decision of the Court of Appeals, and
remand for a new trial.
I. Factual and Procedural Background
¶2 In the summer of 2015, six-year-old “Jane”1 started bed-wetting, having
nightmares, and withdrawing socially. Around a year later, Jane told her stepmother
that defendant, Jane’s aunt’s boyfriend at the time, called Jane into the bathroom,
“grabbed her forcefully by her arm,” and “attempted to put her hand inside of his
underwear in his pants.” The alleged incident occurred in the summer of 2015 while
Jane was staying with her aunt.2 Jane told her stepmother that she was “afraid of
[defendant]” because “he had tried to force her to do something that she felt like was
wrong.”
¶3 Jane’s stepmother reported the incident to law enforcement the following day,
and the Pitt County Sheriff’s Office interviewed Jane. The sheriff’s office scheduled
an appointment for Jane with the TEDI Bear Children’s Advocacy Center (CAC) and
1A pseudonym is used to protect the identity of the child victim.
2 The charging indictment alleged the date of the offense to be “BETWEEN 06-01-
2015 and 8-31-2015.”
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subsequently recommended she receive trauma-based therapy. In her testimony,
Jane’s stepmother stated that Jane’s behavioral problems “improved greatly” after
over one year of therapy, yet there remained “a distance that wasn’t there before.”
¶4 At trial, Jane testified that defendant “called [her] into the bathroom…grabbed
[her] hand...tried to make -- make [her] touch his private…was pulling [her] hand to
his pants.” According to Jane’s testimony, she eventually got loose from defendant’s
grip and returned to playing with her cousins. Defendant was the only adult present
at the time of the incident, but Jane could not remember how he reacted after the
incident. Jane also testified that she informed her aunt and biological mother about
the alleged abuse, but neither took any action. A year later, Jane told her stepmother
about the incident.
¶5 Andora Hankerson testified about her experience as a forensic interviewer and
that she interviewed Jane at CAC on 12 September 2016 about the alleged abuse.
Ms. Hankerson testified to the following brief summary of the interview based on the
written report from CAC:
Rapport was established with [Jane] and she was able to
engage in the process. [Jane] was able to demonstrate the
difference between truth and lie. She promised to discuss
true things during her interview. The alleged offender, she
stated the alleged offender called [Jane] into the bathroom,
grabbed her hand, and tried to make her touch his private
part. The incident occurred at her Aunt[‘s] house.
Ms. Hankerson also testified about her training to recognize whether a child had been
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“coached” by a parent or another person and, over defendant’s objection, testified that
she saw no indications Jane had been “coached” based on the 12 September 2016
interview.
¶6 The nurse who evaluated Jane at CAC, Ann Parsons, also testified. Ms.
Parsons was tendered as an expert witness in child abuse and forensic evaluation of
abused children. Ms. Parsons testified that after performing a physical examination,
she determined Jane “was healthy” and “looked normal for [her] age from head to
toe.” In her evaluations, Ms. Parsons considered “questions about [Jane’s] behaviors,
how was she doing at school, how’s she sleeping, does she seem afraid of anything,
how’s her appetite, has she been more aggressive,” and emphasized that “[a]fter
having been dry for a period of time, she was wetting the bed.” Ms. Parsons testified
that she determined “[Jane] had been sexually abused.” She testified the diagnosis
was based “predominantly [on] the history of her disclosures to family, law
enforcement and Ms. [ ]Hankerson at TEDI Bear, and her behavioral change.”
¶7 Defendant did not object to Ms. Parson’s testimony about her diagnosis of Jane
as “sexually abused.” Ms. Parsons also testified, again without objection, about her
treatment recommendations for Jane, specifically that Jane have (1) “primary care
with her regular doctor, mental health evaluation,” (2) “an evidence-based trauma-
focused treatment program,” (3) “no contact with [defendant] during the
investigation, and [(4)] any future contact with [defendant] only to address
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therapeutic needs as determined by [Jane’s] therapist.” A report summarizing these
recommendations was published to the jury without objection.
¶8 At the conclusion of the evidence, the jury found the defendant guilty of taking
indecent liberties with a child. Defendant was sentenced to twenty-nine months in
prison and required to register as a sex offender for thirty years. Defendant appealed.
¶9 In a divided opinion authored by then-Judge Berger, the North Carolina Court
of Appeals held that the trial court did not commit plain error by permitting Ms.
Parsons to use the word “disclosure” in describing Jane’s allegations, by permitting
her to testify regarding treatment recommendations that identified defendant, and
by permitting her to testify that, in her opinion, Jane had been sexually abused. State
v. Clark, No. COA 19-634, 2020 WL 1274899, at *2–5 (Mar. 17, 2020) (unpublished).
The majority further held the trial court did not commit plain error by allowing Ms.
Hankerson to testify that Jane had not been “coached.” Finally, the majority
dismissed defendant’s ineffective assistance of counsel claim without prejudice. Id. at
*5.
¶ 10 First, the majority found no plain error in the trial court’s admission of Ms.
Parsons’s use of the term “disclosure” in her testimony. Id. at *3. The majority
reasoned “[t]here is nothing about use of the term ‘disclose,’ standing alone, that
conveys believability or credibility.” Id. at *3 (citing State v. Betts, 267 N.C. App. 272,
281 (2019)). Second, the majority determined that Ms. Parsons’s recommendations
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identifying defendant “in no way amounted to an assertion that Defendant was, in
fact, responsible for Jane’s alleged sexual abuse,” but merely that Jane “subjectively
believes defendant to be her abuser.” Id. Finally, the majority held it was improper
to allow Ms. Parsons’s testimony stating “[Jane] had been sexually abused” but
concluded defendant failed to establish the error sufficiently prejudiced him so as to
constitute plain error. Id. at *4. The majority concluded the admission of Ms.
Parsons’s improper testimony did not result in plain error because “the State
presented substantial evidence from which the jury could find Defendant guilty,”3
and the jury had ample opportunity to assess Jane’s credibility. Id.
¶ 11 The majority also addressed defendant’s argument that the trial court erred in
permitting Ms. Hankerson to testify that Jane showed no indication of having been
“coached.” Id. Again, the majority found no abuse in the trial court’s discretion,
explaining that Ms. Hankerson provided “helpful [testimony] in assisting the trier of
fact and did not improperly bolster Jane’s testimony.” Id. at *5.
¶ 12 Finally, the majority declined to address the ineffective assistance of counsel
claim on direct appeal, dismissing the claim without prejudice to defendant’s right to
assert the claim in a subsequent motion for appropriate relief. Id.
3The majority cited to the following evidence: “(1) Jane’s testimony at trial; (2) a video-
recorded interview with Jane at the CAC; (3) evidence of Jane’s lasting behavioral problems
after the incident—including bed-wetting, nightmares, and social withdrawal; and (4) the
consistency of Jane’s accounts of the incident to her family, law enforcement, and medical
personnel at the CAC.” Clark, 2020 WL 1274899 at *4.
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¶ 13 Judge Arrowood dissented from the majority’s dismissal of defendant’s
ineffective assistance of counsel claim, arguing the claim could be determined on the
face of the record and that, in his view, defendant is entitled to a new trial. Id. at *6
(Arrowood, J., dissenting). In dissent, Judge Arrowood asserted that defendant
satisfied this standard, citing to his counsel’s failure to object to Ms. Parsons’s
testimony that “[Jane] had been sexually abused” and “her implication of defendant
as the perpetrator of the abuse.” Id. Judge Arrowood further maintained that trial
counsel’s failure to object prejudiced defendant because Jane was the only direct
witness of the alleged abuse and, absent any physical evidence, her credibility was
“crucial to the outcome of the case.” Id. at *7. Accordingly, the dissenting opinion
would have held that there was a reasonable probability that but for trial counsel’s
failure to object to expert testimony that impermissibly bolstered the victim’s
credibility, there is a reasonable probability there would have been a different result
at trial. Thus, in his view, defendant was entitled to a new trial.
¶ 14 Defendant timely appealed as of right on the basis of the dissenting opinion
under N.C.G.S. § 7A-30. This Court allowed discretionary review of two further issues
pursuant to N.C.G.S. § 7A-31.
II. Analysis
¶ 15 Defendant argues three issues on appeal: (1) testimony by the State’s expert,
Ann Parsons, that Jane was “sexually abused,” with respect to the absence of physical
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evidence confirming Parsons’s opinion, constituted plain error in violation of State v.
Towe, 366 N.C. 56 (2012), (2) testimony by the State’s expert witness, Ms. Parsons,
identifying Jamie Clark as the perpetrator of the charged offense, constituted plain
error, and (3) the dissenting opinion correctly determined that the record of this case
is sufficient to determine that Mr. Clark’s trial counsel provided ineffective assistance
of counsel. We agree in part, specifically in issues (1) and (2), and reverse the decision
of the Court of Appeals on those issues.
A. Testimony of the State’s expert that Jane was “sexually abused”
¶ 16 Defendant first argues that testimony by the State’s expert, Ms. Parsons, that
Jane was “sexually abused,” in the absence of physical evidence confirming Parsons’s
opinion, constituted plain error under this Court’s decision in State v. Towe, 366 N.C.
56 (2012). When trial counsel fails to object to the admission of evidence, the trial
court’s admission of the evidence is reviewed for plain error. State v. Lee, 348 N.C.
474, 482 (1998) “[T]o establish plain error defendant must show that a fundamental
error occurred at his trial and that the error had a probable impact on the jury’s
finding that the defendant was guilty.” Towe, 366 N.C. at 62 (cleaned up). We agree
and conclude that the Court of Appeals misapplied our decision in Towe.
¶ 17 We first consider whether Ms. Parsons’s testimony was improper. Rule 702 of
the North Carolina Rules of Evidence provides that experts may testify in the form
of an opinion when they have “scientific, technical or other specialized knowledge
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[which] will assist the trier of fact to understand the evidence or to determine a fact
in issue . . . .” N.C.G.S. § 8C-1, Rule 702 (2019). However, this Court has repeatedly
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.” Stancil, 355 N.C. 266,
266–67 2002) (emphasis in original) (cleaned up).
Moreover, even when physical evidence of abuse existed
and was the basis of an expert’s opinion, where the expert
added that she would have determined a child to be
sexually abused on the basis of the child’s story alone even
had there been no physical evidence, we found this
additional testimony inadmissible. However, if a proper
foundation has been laid, an expert may testify about the
characteristics of sexually abused children and whether an
alleged victim exhibits such characteristics.
Towe, 366 N.C. at 61–62 (cleaned up).
¶ 18 Here, Ms. Parsons testified that there were no injuries or physical symptoms
of sexual abuse. Rather, Ms. Parsons testified that she based her diagnosis of sexual
abuse “predominantly [on] the history of [Jane’s] disclosures to family, law
enforcement and Ms. [ ]Hankerson at TEDI Bear, and her behavioral change.” But
evidence of the victim’s history of disclosures to family, social workers, and others in
the absence of physical evidence is precisely the evidentiary basis we held in Towe
was “insufficient to support an expert opinion that a child was sexually abused.” Id.STATE V. CLARK
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at 62. The Court of Appeals unanimously concluded this testimony was improper
vouching and hence its admission by the trial court was improper. We agree.
¶ 19 Nevertheless, the State argues that this Court should hold that Ms. Parsons’s
expert testimony about the diagnosis of sexual abuse was admissible because it was
“based on her examination of the child and based on her expert knowledge concerning
abused children in general.” The State relies upon State v. Bailey, 89 N.C. App. 212(1988), a decision of the Court of Appeals that is not binding on this Court and that
precedes our decision in Towe by over twenty years. In Bailey, the defendant was
convicted of sex offenses against a child, and, on appeal, the defendant argued the
trial court erred in admitting the expert testimony of a social worker and a
pediatrician who both testified that the victim had been sexually abused, based on
the contention that their testimony was impermissible vouching. Id. at 219. The
Court of Appeals rejected that argument on the basis that “cases in which the
disputed testimony concerns the credibility of a witness’s accusation of a defendant
must be distinguished from cases in which the expert’s testimony relates to a
diagnosis based on the expert’s examination of the witness,” citing cases from this
Court in which the expert’s testimony to diagnoses of assault was admissible where
the diagnosis was on the basis of physical evidence. See id. at 219 (citing State v.
Smith, 315 N.C. 76 (1985); State v. Stanley, 310 N.C. 353 (1984); State v. Starnes, 308
N.C. 720 (1983)). The Bailey decision did not indicate whether the expert opinions of
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sexual abuse expressed therein were based on physical evidence. Nevertheless, in
both the decisions of this Court relied on in Bailey and those decided since, this Court
has permitted an expert to testify to a diagnosis of sexual abuse only where there has
been some physical evidence upon which to base the opinion. See, e.g., Stancil, 355
N.C. at 266–67 (“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.”); Towe, 366 N.C. at 57–
58; State v. Chandler, 364 N.C. 313, 318 (2010); State v. Hammett, 361 N.C. 92, 94
(2006). Accordingly, whether Bailey is entirely consistent with these decisions or not,
it cannot support the State’s position. We hold the trial court erred in permitting Ms.
Parsons to testify that she diagnosed Jane as sexually abused on the evidence before
us.4
¶ 20 We must next consider whether admission of this testimony was plain error.
To establish plain error, defendant must show that a
fundamental error occurred at his trial and that the error
had a probable impact on the jury’s finding that the
defendant was guilty. Moreover, because plain error is to
4 Notably, the State does not argue in its brief that Jane’s subsequent behaviors,
including bed-wetting, nightmares, and social withdrawal, could form an independent basis
for the expert’s diagnosis of sexual abuse, either because they are psychological and hence
physical evidence, or because behavioral evidence taken alone is sufficient. Even if that
argument were made, however, there is no support in our caselaw for the proposition that
such evidence is sufficient, absent other physical evidence, to render an expert’s testimony
admissible and not impermissible vouching for the victim’s credibility.
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be applied cautiously and only in the exceptional case, the
error will often be one that seriously affects the fairness,
integrity or public reputation of judicial proceedings.
Towe, 366 N.C. at 62 (cleaned up). “Thus, we must consider whether the erroneous
admission of expert testimony had the ‘prejudicial effect necessary to establish that
the error was a fundamental error.’ ” Id. at 62–63 (quoting State v. Lawrence, 365
N.C. 506, 519 (2012)).
¶ 21 In Towe, the victim testified that the defendant, her father, sexually assaulted
her by rubbing her vagina and by penetrating her with his fingers three times and
with his penis at least twice. Id. at 57. A pediatrician testified that the victim’s vagina
was red and inflamed, and the victim relayed through her mother that the defendant
had been touching her private parts all the time. Id. A detective testified that the
victim told him that her father had touched her genitals with his fingers and penis
and had asked if he could put his penis in her vagina. Id. at 58. Although this Court
noted that the mother testified to the victim’s behavior, and the victim’s aunt testified
to a similar prior assault on her by the defendant under N.C.G.S. § 8C–1, Rule 404(b),
we reasoned that Towe “turned on the credibility of the victim, who provided the only
direct evidence against defendant.” Id. at 63. In particular, we noted there were
“discrepancies in the record” that impacted the evaluation of the improper expert
testimony on the jury’s verdict. Id. We held that, due to the expert’s testimony that
“even absent physical symptoms, the victim had been sexually abused, we [were]
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satisfied that [the expert]’s testimony stilled any doubts the jury might have had
about the victim’s credibility or defendant’s culpability, and thus had a probable
impact on the jury’s finding that [the] defendant [was] guilty.” Id. at 64.
¶ 22 Here, as in Towe, the only direct evidence of sexual abuse was the statements
of the victim from her testimony at trial and her video-recorded interview, as well as
corroborative evidence through testimony regarding her accounts to family, law
enforcement, and medical personnel. Accordingly, the evidence in this case “turned
on the credibility of the victim.” Id. at 63.
¶ 23 The Court of Appeals majority held and the State on appeal argues that
evidence of changes in Jane’s behavior following the incident, namely “bed-wetting,
nightmares, and social withdrawal,” Clark, 2020 WL 1274899 at *4, is substantial
evidence that is a sufficient substitute for physical evidence of sexual abuse. But
bedwetting, nightmares, and social withdrawal and other behavioral or psychological
changes may have causes besides sexual abuse. As one of our sister supreme courts
has reasoned, “[m]any of the symptoms considered to be indicators of sexual abuse,
such as nightmares, forgetfulness, and overeating, could just as easily be the result
of some other problem, or simply may be appearing in the natural course of the
children’s development.” New Hampshire v. Cressey, 137 N.H. 402, 408 (1993). While
behavioral change such as bedwetting, nightmares, and social withdrawal is relevant
circumstantial evidence of sexual abuse, it can have many other causes; therefore, it
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cannot serve as substantial evidence that supports a verdict for a sexual offense
independent of testimony of the victim or other direct evidence of abuse. In contrast,
physical evidence of sexual abuse of a child can be substantial evidence of abuse even
independent of testimony alleging abuse. Circumstantial evidence in the form of
testimony about changes in a victim’s behavior must be coupled with some other
direct evidence, either physical evidence or testimony from the victim or another
alleging that abuse occurred that causally links the behavior changes to abuse.
¶ 24 In summary, where, as here, the sole direct evidence of sexual abuse is
testimony from the victim, the case necessarily “turn[s] on the credibility of the
victim,” and expert opinion to the effect that the victim was sexually abused based on
a combination of the victim’s testimony and behaviors of the victim in the absence of
“definitive” physical evidence is likely to weigh heavily on the jury’s assessment of
the victim’s credibility. Towe, 366 N.C. at 64; Chandler, 364 at 318. Thus, admission
of the improper testimony here had a probable impact on the jury’s finding that
defendant was guilty of taking indecent liberties with a child, and we must conclude
the error had the “prejudicial effect necessary to establish that the error was a
fundamental error.” Lawrence, 365 N.C. at 519. Accordingly, we hold that permitting
Ms. Parsons to testify that Jane was “sexually assaulted” in the absence of definitive
physical evidence, irrespective of testimony concerning the victim’s behavioral
changes, constituted plain error.
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B. The State’s expert’s opinion identifying defendant as the perpetrator
¶ 25 Defendant next argues the Court of Appeals erred in holding admission of Ms.
Parsons’s expert testimony identifying defendant as the perpetrator of the victim’s
assault while describing her treatment recommendations was not plain error. Again,
we agree.
¶ 26 In State v. Aguallo, this Court held that an expert opinion by a doctor that the
physical trauma to the genitals revealed by physical examination “was consistent
with the abuse the child alleged had been inflicted upon her” was admissible. 322
N.C. 818, 822 (1988). In so holding, we distinguished that circumstance from one in
which the expert states “that the victim is ‘believable’ or ‘is not lying.’ ” Id. Our
reasoning for this distinction was that “[t]he important difference in the two
statements is that the latter implicates the accused as the perpetrator of the crime
by affirming the victim’s account of the facts. The former does not.” Id.¶ 27 In State v. Hammett, this Court relied on Aguallo to hold that a doctor’s expert
opinion diagnosing the victim with sexual abuse based in part on a physical
examination was admissible where the doctor “testified that her findings were
consistent with abuse, though not necessarily by defendant,” although a subsequent
statement by the doctor that she would hold the same opinion without considering
the physical examination was held to be improper. 361 N.C. 92, 96–97 (2006). We
specifically summarized the rationale in Aguallo as follows: “Because the expert’s
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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 96 (citing Aguallo, 322 N.C. at 822–23).
The Court of Appeals has similarly held that an expert opinion that victims were
sexually abused by the defendant in particular was inadmissible because it “did not
relate to a diagnosis derived from his expert examination of the prosecuting witnesses
in the course of treatment,” and, accordingly, “constituted improper opinion
testimony as to the credibility of the victims’ testimony.” State v. Figured, 116 N.C.
App. 1, 9 (1994). More recently, in State v. Ryan, the Court of Appeals held that an
expert’s testimony expressing the opinion that “there was no evidence of any other
perpetrators” other than the defendant, based on the witness’s interview with the
child, amounted to plain error. 223 N.C. App. 325, 340–41 (2012).
¶ 28 Here, Ms. Parsons not only testified that she diagnosed Jane as “sexually
abused” but also testified about medical recommendations for treatment that
included as recommendations that Jane have “no contact with [defendant] during the
investigation,” and have “any future contact with [defendant] only to address
therapeutic needs as determined by [Jane’s] therapist.” Moreover, a written report
summarizing these recommendations was published to the jury. While we have held
that permitting Ms. Parsons to testify to the diagnosis of sexual abuse in the absence
of physical evidence was error, testimony and a written report identifying defendant
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as the perpetrator whether explicitly or by implication compounds that error. Under
Aguallo and its progeny, this testimony is precisely the sort that we have held is
impermissible because it “implicates the accused as the perpetrator of the crime by
affirming the victim’s account of events.” 322 N.C. at 822. As in Figured, this
testimony “constituted improper opinion testimony as to the credibility of the victims’
testimony.” Figured, 116 N.C. App. at 9.
¶ 29 The State argues Aguallo, Hammett, and Figured are inapplicable because the
expert here did not expressly identify defendant as the perpetrator. But the
distinction between an explicit identification of the defendant as the perpetrator and
an implicit one is not a distinction recognized by our caselaw. In both cases, the
statement “implicates the accused as the perpetrator of the crime” and hence runs
afoul of the prohibition against vouching for the victim. Aguallo, 322 N.C. at 822(emphasis added).
¶ 30 The Court of Appeals majority similarly rejected defendant’s argument by
reasoning that the medical recommendations “in no way amounted to an assertion
that Defendant was, in fact, responsible for Jane’s alleged sexual abuse,” and “[a]t
most, this testimony implies that Jane should not have continued contact with
Defendant because she subjectively believes Defendant to be her abuser.” Clark, 2020
WL 1274899 at *3. We believe the Court of Appeals misconstrues the import of this
testimony. Even if one implication of the recommendation is that Jane believed
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defendant to be her abuser, another reasonable implication is that Ms. Parsons
believed Jane’s allegation enough to recommend she not see defendant out of concern
for her health and safety. In Aguallo, we held this sort of implication impermissible.
Moreover, since this case turns on the credibility of the victim, even an implicit
statement that the defendant is the one who committed the crime is plain error
necessitating a new trial. See Ryan, 223 N.C. App. at 341. Accordingly, we hold the
trial court also committed plain error in permitting Ms. Parsons to testify to the
medical recommendations identifying defendant as the perpetrator and in publishing
the same recommendations to the jury.
C. Ineffective assistance of counsel
¶ 31 Finally, defendant argues, following Judge Arrowood in his dissent, that the
record of this case is sufficient to determine that Mr. Clark’s trial counsel committed
ineffective assistance of counsel by failing to object. Whether a defendant was denied
the effective assistance of counsel is a question of law that is reviewed de novo. State
v. Braswell, 312 N.C. 553 (1985).
To successfully assert an ineffective assistance of counsel
claim, defendant must satisfy a two-prong test. First, he
must show that counsel’s performance fell below an
objective standard of reasonableness. Second, once
defendant satisfies the first prong, he must show that the
error was so serious that a reasonable probability exists
that the trial result would have been different absent the
error.
State v. Blakeney, 352 N.C. 287, 307–08 (2000) (cleaned up). Although ineffective
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assistance of counsel (IAC) claims are generally litigated in a motion for appropriate
relief, we have held admissible that:
IAC claims brought on direct review will be decided on the
merits when the cold record reveals that no further
investigation is required, i.e., claims that may be developed
and argued without such ancillary procedures as the
appointment of investigators or an evidentiary hearing.
This rule is consistent with the general principle that, on
direct appeal, the reviewing court ordinarily limits its
review to material included in “the record on appeal and
the verbatim transcript of proceedings, if one is
designated.”
State v. Fair, 354 N.C. 131, 166 (cleaned up) (quoting N.C. R. App. P. 9(a)).
¶ 32 Here, the majority determined that defendant’s IAC claim was premature and
dismissed it without prejudice to defendant’s ability to file a later motion. Clark, 2020
WL 1274899 at *5. Defendant asks this Court to instead adopt Judge Arrowood’s
approach in his dissenting opinion, in which he would have held that the face of the
record showed sufficient evidence of ineffective assistance of counsel to decide the
claim. Id. at *6 (Arrowood, J., dissenting). After reviewing the record, we conclude
that the majority did not err in dismissing defendant’s IAC claim without prejudice
to defendant’s right to file a subsequent motion for appropriate relief, and in light of
our disposition of the case, we decline to address the issue further. Accordingly, we
affirm the Court of Appeals majority on this issue.
III. Conclusion
¶ 33 We conclude the Court of Appeals majority erred in part in holding there was
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no plain error below. First, we hold that the trial court committed plain error in
permitting Ms. Parsons to testify in the absence of physical evidence that Jane was
“sexually abused.” Second, we hold the trial court also committed plain error by
permitting Ms. Parsons to implicitly identify defendant as the perpetrator of the
alleged abuse. However, we affirm the Court of Appeals’ dismissal of defendant’s IAC
claim. For the foregoing reasons, we conclude defendant is entitled to a new trial.
Accordingly, we affirm in part and reverse in part the decision of the Court of Appeals.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Justice BERGER did not participate in the consideration or decision in the case.
Chief Justice NEWBY dissenting.
¶ 34 This case requires us to determine whether the trial court plainly erred when
it permitted Ann Parsons—a qualified nurse practitioner—to testify based on her
education, training, and experience that she diagnosed the seven-year-old Jane as
sexually abused. To demonstrate plain error, defendant must show that the error
deprived him of a fair trial and that it prejudiced the outcome—i.e., that the error
had a probable impact on the jury’s verdict. When viewed as a whole, the record shows
the physical and psychological evidence corroborates the victim’s consistent account
of the sexual abuse she suffered. Thus, defendant cannot show that the alleged error
in admitting Parsons’s testimony had a probable impact on the jury’s verdict. I
respectfully dissent.
¶ 35 Where a defendant does not object to an error at trial, appellate review is
limited to determining whether the trial court committed plain error. See State v.
Hammett, 361 N.C. 92, 98, 637 S.E.2d 518, 522 (2006) (holding claimed error in
admission of expert vouching testimony was subject to plain error review). “[P]lain
error is to be ‘applied cautiously and only in the exceptional case.’ ” State v. Towe, 366
N.C. 56, 65, 732 S.E.2d 564, 569 (2012) (Newby, J., dissenting) (alteration in original)
(quoting State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012)). “Under
Lawrence ‘a defendant must demonstrate that a fundamental error occurred at trial’
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Newby, C.J., dissenting
and ‘must establish prejudice.’ ” Id., 732 S.E.2d at 570 (quoting Lawrence, 365 N.C.
at 518, 723 S.E.2d at 334). A fundamental error is “something so basic, so prejudicial,
so lacking in its elements that justice cannot have been done,” or that “amounts to a
denial of a fundamental right of the accused.” Id. (quoting State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983)). A fundamental error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (alteration in
original) (quoting Odom, 307 N.C. at 660, 300 S.E.2d at 378). Moreover, the error
must be prejudicial to the defendant. To demonstrate prejudice, a defendant must
show “that, after examination of the entire record, the error ‘had a probable impact
on the jury’s finding that the defendant was guilty.’ ” Id. (quoting Lawrence, 365 N.C.
at 518, 723 S.E.2d at 334).
¶ 36 Given the consistency of Jane’s testimony during the investigation and at trial,
as well as the physical and psychological evidence, Parsons’s challenged testimony
did not rise to the level of plain error. The jury’s verdict did not hinge on Parsons’s
allegedly erroneous testimony. Rather, a review of the record shows Jane’s credibility
was well established through other means. Jane, seven years old at the time, gave a
consistent account of the abuse in multiple conversations with her stepmother, law
enforcement, and two different experts in forensic child abuse investigation at the
Child Advocacy Clinic. Then, three years after the abuse, Jane’s testimony at trial
was consistent with this account. Jane’s stepmother also testified that when Jane
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Newby, C.J., dissenting
originally told her of the abuse, her stepmother “could see that [Jane] was troubled
and worried about something.” Andora Hankerson, the forensic interviewer at the
Child Advocacy Center, testified that Jane did not appear to be “coached” as to the
details of the story. The State published Hankerson’s report and played a video
recording of Hankerson’s interview of Jane for the jury, which were also consistent
with Jane’s account.
¶ 37 The jury also heard significant evidence regarding Jane’s physical and
psychological symptoms that supported her account. Though Jane was an outgoing,
confident child, when the abuse occurred, Jane’s behavior changed drastically. She
became “fearful around strangers” and would “cling to [her stepmother] more in
public,” behaviors her stepmother “hadn’t noticed before.” Jane also began “wetting
her bed four and five times a week. She became withdrawn. She had nightmares. She
would wake up crying sometimes.” Though Jane had successfully overcome
bedwetting in the past and had experienced “a long stretch of time where she wasn’t
wetting the bed,” her bedwetting began again after the sexual abuse. After receiving
trauma therapy, Jane’s symptoms subsided, though not completely.
¶ 38 Parsons, on the other hand, testified for approximately ninety minutes during
the two-and-a-half-day trial. When asked “what was [her] diagnosis” of Jane, Parsons
stated that she diagnosed Jane as “sexual[ly] abuse[d].” After discussing the
foundation for her diagnosis, Parsons again stated that her finding was “that [Jane]
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Newby, C.J., dissenting
had been sexually abused.” Moreover, Parsons testified that her treatment report
recommended that Jane have “[n]o contact with [defendant] during the investigation”
and that “any future contact with [defendant be] only to address therapeutic needs
as determined by [Jane]’s therapist.” Parsons’s report was admitted into evidence and
published to the jury. Even assuming these portions of Parsons’s testimony were
admitted in error,1 defendant cannot demonstrate plain error because he cannot show
prejudice—i.e., that these alleged errors had a probable impact on the jury’s verdict.
¶ 39 The majority mischaracterizes this record and holds this case turned on Jane’s
credibility alone because there was no “direct evidence of sexual abuse.” Therefore,
the majority concludes that Parsons’s testimony “stilled any doubts” in the jury’s
1 While the Court of Appeals and the majority of this Court have determined that
Parsons’s testimony regarding Jane’s diagnosis is error, this is a unique case. Here the State
laid the proper foundation for expert opinion testimony by demonstrating Parsons’s
education, training, and experience in “child maltreatment and the healthcare needs and
requirements of children in that circumstance.” The trial court then admitted Parsons to
testify on “child abuse and forensic evaluation of children that have been abused.” Parsons,
along with Jane’s stepmother, testified that Jane’s psychological symptoms manifested
physically in the form of Jane’s bedwetting. Thus, it is questionable whether Parsons’s
testimony about Jane’s diagnosis constitutes error. See State v. Stancil, 355 N.C. 266, 266–67,
559 S.E.2d 788, 789 (2002) (holding that expert witness may testify as to sexual abuse
diagnosis when there is physical evidence of the abuse). Notably, however, the State did not
petition this Court for review of that issue.
The majority of this Court also concludes that admission of Parsons’s written report
containing her treatment recommendations, along with Parsons’s testimony about those
recommendations, is error because Parsons’s recommendations identified “defendant [a]s the
one who committed the crime.” As the Court of Appeals correctly noted, however, “[t]hat Jane
alleged [d]efendant of the abuse cannot reasonably be disputed.” State v. Clark, No.
COA19-634, 2020 WL 1274899, at *3 (N.C. Ct. App. March 17, 2020) (unpublished). Simply
put, it was not disputed at trial that Jane alleged defendant was the person who committed
the sexual abuse. Thus, Parsons’s testimony purportedly identifying defendant as the
perpetrator cannot be error.
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Newby, C.J., dissenting
mind and had a probable impact on the jury’s verdict. In so concluding, the majority
erroneously relies on State v. Towe, which is distinguishable from this case. In Towe,
this Court stated that the case “turned on the credibility of the victim” because the
victim’s “recitations of defendant’s actions were not entirely consistent” and there
was no physical evidence of the abuse. Towe, 366 N.C. at 63, 732 S.E.2d at 568. Here,
however, Jane’s testimony was consistent every time she recounted the events; her
testimony did not raise the issue of credibility in the same manner as the victim’s
inconsistent testimony in Towe. Moreover, Jane’s consistent testimony was supported
by testimony about her physical symptoms—i.e., bedwetting—as well as
psychological symptoms, including fearfulness, social withdrawal, and nightmares.
Thus, Towe presented a different factual scenario than the case here.
¶ 40 When the evidence is viewed as a whole, taking into account the several
witnesses who testified and the nature of Jane’s symptoms, it is unlikely that
Parsons’s isolated statements regarding Jane’s diagnosis or the treatment
recommendations in her report had a probable impact on the jury’s verdict. As such,
defendant cannot demonstrate prejudice and these alleged errors did not amount to
plain error. Therefore, the opinion of the Court of Appeals should be affirmed. I
respectfully dissent.
Justice BARRINGER joins in this dissenting opinion.