State v. Carroll ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-14
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Randolph County
No. 10 CRS 050590
TREMAYNE WENDELL CARROLL
Appeal by defendant from judgment entered 26 April 2013 by
Judge L. Todd Burke in Randolph County Superior Court. Heard in
the Court of Appeals 20 May 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Jill A. Bryan, for the State.
Russell J. Hollers III for defendant-appellant.
HUNTER, Robert C., Judge.
Tremayne Wendell Carroll (“defendant”) appeals from
judgment entered after a jury convicted him on four counts each
of first degree rape, taking indecent liberties with a child,
and sex offense in a parental role. On appeal, defendant argues
that the trial court erred by: (1) allowing a physician to
diagnose the alleged victim as having been sexually assaulted by
defendant; and (2) admitting improper expert testimony vouching
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for the credibility of the child witness.
After careful review, we hold that the trial court erred in
both instances, but neither amounts to plain error.
Background
The alleged victim in this case, T.S.1, was born in December
1998. In 2009, she lived with her mother (“Lorraine”), her
siblings, and defendant, who was her stepfather. Defendant and
Lorraine experienced difficulties with their marriage and
separated for a period of time in the summer of 2009.
In fall of 2009, T.S.’s maternal grandmother (“Doris”) came
into town to help Lorraine take care of her children. While
doing laundry, Doris noticed a brownish, unusual discharge on
T.S.’s underwear that made her suspicious. She confronted T.S.
about the stain on 19 October 2009, and T.S. told her that
defendant had sex with her. That night, Doris told Lorraine
what T.S. had told Doris.
After hearing T.S.’s allegation, Lorraine took T.S. to the
emergency department at Randolph Hospital. At the hospital,
Lorraine approached Officer Gary Rippey (“Officer Rippey”) of
the Asheboro Police Department and told him that T.S. had been
sexually assaulted. Officer Rippey interviewed T.S. in one of
1
Pseudonyms will be used to refer to the alleged victim and her
family to protect the child’s privacy and for ease of reading.
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the hospital rooms. T.S. told Officer Rippey that defendant
sexually assaulted her five or six times between February 2009
and October 2009. She said that defendant would pick her up out
of her bed, carry her into his bedroom, remove her panties, and
engage in vaginal intercourse with her until ejaculating onto
her stomach. After speaking with T.S., Officer Rippey contacted
the Department of Social Services.
Lisa Powell (“Ms. Powell”), an employee with the Randolph
County Child Protective Services, responded to Officer Rippey’s
call. She arrived at the hospital and conducted another
interview with T.S. T.S. told Ms. Powell that beginning in
February 2009, defendant engaged in vaginal intercourse with her
three or four times, using the same method she had described to
Officer Rippey—defendant would take her out of her bedroom and
lay her onto his bed, remove her clothing, and have sex with her
until ejaculating onto her stomach. T.S. also told Ms. Powell
that defendant told her not to tell Lorraine, because Lorraine
would not believe T.S.
After the interviews with Officer Rippey and Ms. Powell,
T.S. was examined by Dr. Marcus Gentry (“Dr. Gentry”). Dr.
Gentry was accepted at trial as an expert in emergency room
medicine. Dr. Gentry conducted a pelvic exam and noticed a
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whitish discharge coming from T.S.’s vagina. He obtained a
sample of the discharge for testing. The sample returned
positive for chlamydia, a sexually transmitted disease that Dr.
Gentry testified could only be present after sexual activity
with an infected partner. Dr. Gentry also examined T.S.’s
hymen. He noted that although the hymen was intact, it had
tearing and scarring indicative of older trauma. When asked at
trial whether he had an opinion regarding T.S.’s symptoms and
the positive test for chlamydia, Dr. Gentry testified that he
believed T.S. had been sexually abused, and that since she was
implicating defendant, Dr. Gentry believed defendant was
responsible for the sexual abuse.
After the physical examination by Dr. Gentry, T.S. was
taken to Baptist Hospital in Winston-Salem, North Carolina,
where she met with Joyce Latham (“Ms. Latham”), a sexual assault
nurse examiner. T.S. told Ms. Latham that beginning in February
2009, defendant would come into her room, carry her into his
bedroom, remove her clothing, and then have vaginal intercourse
with her before ejaculating onto her stomach. Ms. Latham did a
“blind sweep” for vaginal discharge that may be indicative of a
sexually transmitted disease but found none. However, she
testified that a lack of discharge at that time did not
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necessarily mean that T.S. did not have chlamydia. Ms. Latham
took photos of T.S.’s genitals and testified at trial that they
appeared abnormal; specifically, she observed irregularities in
T.S.’s hymen that could be related to an older injury, but there
were no signs of any recent trauma.
Dr. Angela Stanley (“Dr. Stanley”) examined T.S. on 16
November 2009. Dr. Stanley testified at trial that the
irregularities with T.S.’s hymen were not specific to sexual
abuse. However, she clarified that T.S.’s physical exam was
“supportive” of T.S.’s statement that “contact occurred.” She
also noted that a finding of chlamydia “would be a definite
indicator that sexual contact has occurred to transmit that
infection to the child.”
Lorraine provided three articles of T.S.’s clothing to law
enforcement personnel—one t-shirt and two pairs of panties.
T.S. testified that the t-shirt her mother gave to the police
had been ejaculated onto by defendant during one of the sexual
assaults. Forensic scientist Jessica Posto (“Ms. Posto”)
testified that she examined particles from all three pieces of
clothing and found sperm from the sample taken from T.S.’s t-
shirt. Thereafter, Jennifer Elwell (“Ms. Elwell”), who was
accepted at trial as an expert in the field of DNA analysis,
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testified that the DNA profile obtained from the semen on T.S.’s
shirt matched that of defendant.
The State also called T.S.’s therapist, Michelle Noble
(“Ms. Noble”) to testify at trial. Ms. Noble testified that she
is a licensed professional counselor in North Carolina and
specializes in sexual abuse cases involving children. Ms. Noble
met with T.S. roughly twenty-five times. At trial, Ms. Noble
testified that T.S. kept her account of abuse consistent
throughout their counselling sessions. Ms. Noble also testified
that in regard to child victims in general, consistency is an
important indication of the child’s truthfulness and that in
T.S.’s case she “never felt like there was any kind of
manipulation.”
Defendant took the stand in his own defense at trial and
denied having abused T.S. Defendant testified that he had a
good relationship with T.S. and that although he and T.S. would
often sleep in the same bed, no sexual contact ever occurred
between them. Defendant also testified that he believed
investigators tampered with evidence against him and that a
mentally handicapped relative had been accused of molesting T.S.
before.
The jury returned guilty verdicts on all charged crimes.
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The trial court consolidated the charges into a single B1 felony
and sentenced defendant to 240 to 297 months imprisonment, with
credit given for 1,177 days spent in confinement prior to
judgment. Defendant gave notice of appeal in open court.
Discussion
I. Dr. Gentry’s Opinion as to Defendant’s Guilt
Defendant first argues that the trial court erred by
allowing Dr. Gentry to testify that in his opinion, defendant
was the individual who sexually abused T.S. We agree that the
trial court erred by admitting this testimony, but we find no
plain error.
Since defendant failed to object to the admission of Dr.
Gentry’s testimony, we review this issue for plain error. See
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334
(2012).
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice—that,
after examination of the entire record, the
error had a probable impact on the jury’s
finding that the defendant was guilty.
Id. (citation and quotation marks omitted). Plain error is to
be “applied cautiously and only in the exceptional case,” or one
that “seriously affect[s] the fairness, integrity or public
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reputation of the judicial proceedings.” Id. (citation and
quotation marks omitted).
At trial, Dr. Gentry testified as follows: “[m]y opinion is
that [T.S.] was engaged in sexual activity with someone who had
chlamydia, and had passed it to her. And as she was accusing
[defendant] at the time, that was my opinion, that it was the
sexual abuse from [defendant].” Defendant does not challenge
Dr. Gentry’s opinion that T.S. had been sexually abused. He
contends only that Dr. Gentry’s identification of defendant as
the perpetrator of the sexual abuse amounts to plain error.
“With respect to expert testimony in child sexual abuse
prosecutions, our Supreme Court has approved, upon a proper
foundation, the admission of expert testimony with respect to
the characteristics of sexually abused children and whether the
particular complainant has symptoms consistent with those
characteristics.” 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).
However, even where an expert opinion that a victim has been
abused is based on a proper foundation, an expert opinion that
the victim was abused specifically by a particular defendant is
generally not admissible. See State v. Figured, 116 N.C. App.
1, 9, 446 S.E.2d 838, 843 (1994) (holding that a doctor’s expert
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opinion that the child victim was abused by the defendant
constituted improper opinion testimony because it did not relate
to a diagnosis derived from physical examination of the witness
in the course of medical treatment).
The State does not contest that Dr. Gentry’s opinion that
T.S. was sexually abused by defendant was admitted into evidence
erroneously. Indeed, based on Dr. Gentry’s own admission that
the basis for his opinion as to defendant’s guilt stemmed only
from T.S.’s allegations, we conclude that this constituted
improper expert opinion testimony. See Figured, 116 N.C. App.
at 9, 446 S.E.2d at 843. However, the State argues that in the
face of the overwhelming evidence indicating defendant’s guilt,
where the case did not turn solely on the credibility of the
prosecuting witness, the erroneous admission of Dr. Gentry’s
testimony did not amount to plain error. We agree.
Defendant contends that the facts of this case are
comparable to State v. Ryan, __ N.C. App. __, 734 S.E.2d 598(2012), disc. review denied, __ N.C. __, 736 S.E.2d 189 (2013).
In Ryan, this Court held that the erroneous admission of an
expert’s opinion that the defendant was guilty of sexually
abusing the alleged child victim amounted to plain error. Id.at __, 734 S.E.2d at 606-07. The Court noted that “[a]ll of the
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State’s evidence relied in whole or in part on the child’s
statements concerning the alleged sexual abuse.” Id. at __, 734
S.E.2d at 606. The only physical evidence tending to indicate
that the child had been sexually abused was a hymenal notch and
the presence of bacterial vaginosis, the latter of which, the
Court noted, is not determinative of sexual abuse and can have
unrelated causes. Id. at __, 734 S.E.2d at 601-06. Except for
the erroneously admitted testimony of the physician who
identified defendant as the perpetrator of the abuse, all of the
other evidence presented by the State “amounted to conflicting
accounts from the child, defendant, and their families.” Id. at
__, 734 S.E.2d at 607. Thus, because the physician was an
expert in treating sexually abused children, the Court concluded
that “her opinion likely held significant weight with the jury”
and “had a probable impact on the jury’s finding defendant
guilty by enhancing the credibility of the child in the jurors’
minds.” Id.
Ryan is distinguishable from the present case in material
aspects. First, there is significant physical evidence in
addition to Dr. Gentry’s opinion that both corroborates T.S.’s
testimony and directly implicates defendant in the crimes
charged. T.S. consistently told her family, law enforcement
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personnel, and medical experts that defendant would ejaculate
onto her stomach after engaging in vaginal intercourse with her.
She testified that the t-shirt submitted for examination
contained defendant’s semen. This testimony was corroborated
when the t-shirt returned a positive sample for semen and
further testing showed that the semen matched defendant’s DNA.
Additionally, T.S. tested positive for chlamydia during her
examination with Dr. Gentry. Both Dr. Gentry and Dr. Stanley
testified that chlamydia can only be transmitted by sexual
intercourse, unlike the bacterial vaginosis in Ryan which can
have many causes. See Ryan, __ N.C. App. at __, 734 S.E.2d at
601. Lorraine testified that defendant infected her with
chlamydia sometime in 2007, but defendant never sought
treatment. Thus, the jury could have permissibly and reasonably
inferred from this circumstantial evidence that defendant served
as the source of T.S.’s infection. See State v. Parker, 354
N.C. 268, 279, 553 S.E.2d 885, 894 (2001) (noting that the law
does not distinguish between the weight given to circumstantial
and direct evidence). Furthermore, in both Dr. Gentry’s and Ms.
Latham’s unchallenged expert opinions, the notches observed in
T.S.’s hymen and the “fullness” of her genitals indicated trauma
consistent with sexual abuse. Dr. Gentry testified that the
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irregularity of T.S.’s hymen was consistent with older trauma,
which would corroborate T.S.’s testimony that the abuse occurred
throughout the approximately eight months prior to being
examined by Dr. Gentry. Finally, Lorraine testified that she
came home from work one day around February 2009, which was
within time frame that T.S. identified as when the abuse took
place, and found T.S. and defendant in bed together, with T.S.
only wearing her bra and underwear. Lorraine testified that she
was very upset when she saw them in bed and told T.S. to not
sleep with defendant any more.
Aside from Dr. Gentry’s identification of defendant as the
perpetrator, substantial evidence was admitted at trial to
support the jury’s guilty verdicts. In this respect, the facts
here are comparable to those in cases where the erroneous
admission of expert identification of the defendant as the
perpetrator of sexual abuse did not amount to plain error. See,
e.g., Figured, 116 N.C. App. at 9, 446 S.E.2d at 843 (holding
that where physical examination by two physicians of the child
victims revealed symptoms consistent with sexual abuse, there
was no reasonable probability that the admission of the improper
expert testimony that identified the defendant as the
perpetrator affected the jury’s decision).
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Accordingly, after reviewing the entire record, we conclude
that the erroneous admission of Dr. Gentry’s opinion did not
rise to the level of plain error.
II. Ms. Noble’s Expression of Opinion on T.S.’s Credibility
Defendant next argues that the trial court erred by
allowing Ms. Noble to offer an expert opinion that improperly
commented on T.S.’s credibility. We agree. However, we
conclude that the admission of this testimony also does not
amount to plain error.
Because defendant failed to object to this testimony at
trial, we review for plain error. See Lawrence, 365 N.C. at
518, 723 S.E.2d at 334.
“Our appellate courts have consistently held that the
testimony of an expert to the effect that a prosecuting witness
is believable, credible, or telling the truth is inadmissible
evidence.” State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d
651, 655 (1988). “[T]estimony that [the expert] was not
concerned that the child was giving a fictitious story is
tantamount to her opinion that the child was not lying about the
sexual abuse.” Ryan, __ N.C. App. at __, 734 S.E.2d at 604
(citation and quotation marks omitted). Furthermore, the
Supreme Court has found that it is reversible error when
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“experts have testified that the victim was believable, had no
record of lying, and had never been untruthful.” State v.
Aguallo, 322 N.C. 818, 822, 370 S.E.2d 676, 678 (1988).
Here, Ms. Noble testified extensively as to whether or not
T.S. was being truthful. Specifically, Ms. Noble testified as
follows:
[T.S. is] one of the clients that I’ve had
that was so consistent with her story from
day one. She told me what happened and her
story stayed consistent throughout the time
that I worked with her. . . .
[I]f something is so traumatic to you that
your story stays consistent, then that it
is—that’s very telling; you know, that this
is something that—you know, a lot—it’s hard
to—it’s hard to keep a lie going, you know?
And that’s in my—in my line of business,
when—you know, when kids are having behavior
problems, that’s—that’s one thing that we
can always count on, that, you know, if it’s
a lie, we’re gonna find out sooner or later,
you know. So for [T.S.] to be consistent,
you know, that tells me something.
At a later point in the trial, Ms. Noble further testified that:
You know, I—I don’t have a truth detector in
my office, but I—I have a pretty good gut,
and I never, I never felt like there was any
kind of manipulation. I felt like [T.S.]
showed up and told her story and she stayed
consistent throughout that time.
In light of the long-standing rule in North Carolina that
an expert may not vouch for the credibility of a child witness,
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we conclude that the portions of Ms. Noble’s testimony
specifically addressing the credibility of T.S.’s account of the
abuse were erroneously admitted. Particularly, Ms. Noble
testified that “[s]o for [T.S.] to be consistent, you know, that
tells me something” and “[y]ou know, I—I don’t have a truth
detector in my office, but I—I have a pretty good gut, and I
never, I never felt like there was any kind of manipulation.”
The former statement is similar to the testimony in Ryan that
the expert “was not concerned that the child was giving a
fictitious story,” which this Court held was improper since it
was “tantamount to her opinion that the child was not lying
about the sexual abuse.” Ryan, __ N.C. App. at __, 734 S.E.2d
at 604. With the latter statement, Ms. Noble went farther than
the witness in Ryan; she directly testified that she did not
think T.S. was lying. Thus, because these statements vouched
for the credibility of T.S.’s account of abuse, we conclude that
they were admitted erroneously. See, e.g., Figured, 116 N.C.
App. at 9, 446 S.E.2d at 843; Bailey, 89 N.C. App. at 219, 365
S.E.2d at 655.
Although some of Ms. Noble’s comments were erroneously
admitted, we conclude that such error does not rise to the level
of one that “seriously affects the fairness, integrity or public
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reputation of judicial proceedings.” Lawrence, 365 N.C. at 518,
723 S.E.2d at 334. The State presented substantial evidence in
addition to Ms. Noble’s testimony that directly implicated
defendant and independently corroborated T.S.’s testimony, such
as: (1) a semen stain on T.S.’s shirt that matched defendant’s
DNA; (2) T.S.’s positive diagnosis for chlamydia, a sexually
transmitted disease that can only be transferred by sexual
intercourse; (3) Lorraine’s testimony that she was infected with
chlamydia by defendant and that defendant never sought
treatment; (4) Lorraine’s testimony that she walked in on
defendant and T.S. sleeping in the same bed, with T.S. only
wearing a bra and panties; and (5) the expert opinions of Dr.
Gentry and Ms. Latham, built on a proper foundation of physical
evidence, that T.S. had been sexually abused. Thus, there was
considerable evidence directly implicating defendant in the
charged crimes and having the effect of independently
corroborating T.S.’s testimony that defendant sexually abused
her.
In light of this evidence, we conclude that there is no
reasonable probability that the jury would have returned a
different verdict had Ms. Noble’s erroneous opinion as to T.S.’s
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credibility been excluded. Accordingly, we find no plain error.2
See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.
Conclusion
After careful review, we hold that the trial court erred by
admitting portions of Dr. Gentry’s and Ms. Noble’s testimony,
but because these errors did not have a probable impact on the
jury’s verdict, they do not amount to plain error.
NO PREJUDICIAL ERROR.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
2
We note that there is currently no caselaw supporting a
cumulative plain error analysis in North Carolina. See State v.
Bellamy, 172 N.C. App. 649, 662, 617 S.E.2d 81, 90 (2005)
(“Where, as here, defendant contests separate admissions of
evidence under the plain error rule, each admission will be
analyzed separately for plain error, not cumulatively.”)