Opinion
No. COA12–816.
2013-03-5
STATE of North Carolina v. Gregory Allen BOYKIN, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State. Kevin P. Bradley for defendant-appellant.
Appeal by defendant from judgments entered 8 December 2011 by Judge W. Osmond Smith, III in Wake County Superior Court. Heard in the Court of Appeals 25 October 2012. Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State. Kevin P. Bradley for defendant-appellant.
GEER, Judge.
Defendant Gregory Allen Boykin appeals from his convictions of sexual offense with a child and taking indecent liberties with a child. Defendant primarily contends on appeal that the trial court erred in admitting testimony of a clinical social worker that defendant argues improperly vouched for the credibility of the child. Because the testimony did not amount to an expert opinion that the child was credible, but rather only provided the context for the child's prior consistent statements to the social worker, the trial court did not err in admitting the testimony.
Facts
The State's evidence tended to show the following facts. Ann was five or six years old and living with her mother, her younger sister Brandy, and defendant (whom she treated as a stepfather). Ann saw her biological father on weekends and every other holiday. There was tension between defendant and Ann's biological father because Ann called defendant “Daddy.”
The pseudonyms “Ann” and “Brandy” are used throughout this opinion for ease of reading and to protect the identity of the minor children.
On more than one occasion, defendant positioned Ann on a couch in the living room and inserted his penis into her bottom. Defendant also had Ann put her mouth on his penis and, according to Ann, a soupy yellow substance came out of his penis. Ann spit the substance in a trash can. Ann's mother was not home when these incidents happened, but Brandy was in her bedroom. Defendant told Ann not to tell anyone about what he did.
On 6 May 2010, one of Ann's teachers contacted a guidance counselor because a teacher assistant in the cafeteria had noticed that Ann was having trouble sitting. Ann explained to the teacher assistant that she had been spanked for getting a mark the previous school day indicating that she “could have done better” behaviorally. When, however, the guidance counselor questioned Ann about why she was sore, Ann indicated that it was because her “daddy put[ ] his thing” in her vagina. After calling one of the administrators in to listen in on the interview and after confirming that Ann was talking about defendant and not her biological father, the guidance counselor called child protective services.
Melissa Williams, who was an after-hours social worker for Wake County Human Services, went to Ann's home in response to the school's report of child sexual abuse. When Ms. Williams arrived at Ann's home, she found defendant, Brandy, and Ann there. Ms. Williams conducted a private one-on-one interview with Ann. In the course of that interview, Ann indicated to Ms. Williams that defendant had touched her vagina with his “thingy,” which she identified as defendant's penis. Ann also reported that defendant had had her perform fellatio on him. Ms. Williams was not able to establish a timeframe for when the abuse occurred or a specific number of times that it had happened. Ann indicated, however, that the abuse occurred in the living room while her mother was away at work.
Ms. Williams also interviewed defendant who admitted that he was often at home alone with Ann and Brandy. Ann's mother returned home while Ms. Williams was still there. Ms. Williams outlined the accusations for Ann's mother, and the mother agreed to have defendant leave the home.
On 24 May 2010, Ann Parsons, a pediatric nurse practitioner with the Teddy Bear Children's Advocacy Center at East Carolina University, performed an examination of Ann. That examination did not reveal any evidence of sexual abuse. Mary Curry, a forensic interviewer with the Teddy Bear Children's Advocacy Center, conducted a videotaped interview of Ann. During that interview Ann stated that she had seen defendant's penis at home while on the couch and that he put his penis into her vagina and her rectum. During the incidents, her pants were around her ankles, and defendant's pants were around his ankles. Ann reported that yellow stuff came out of defendant's penis both during the penetration of her rectum and vagina, as well as when defendant made her put his penis in her mouth. Defendant told her not to tell anyone about the incidents, and she was scared.
On 11 May 2010, John Carter, an investigator with the Wake County Sheriff's department, collected as evidence the couch cushions at Ann's home after learning that the alleged abuse occurred on the couch and that defendant and Ann's mother did not have sexual relations on the couch. He also took DNA swabs from both Ann and defendant.
Special Agent Jody West, an expert in forensic serology and forensic DNA analysis, received and tested the items collected by Investigator Carter. Special Agent West found defendant's DNA as well as contributing DNA from Ann on areas of the couch cushions that looked like they were stained with semen.
After an initial assessment by Wake County Human Services, it was determined that Ann should participate in trauma focused cognitive behavioral therapy with the Wake County Child Sexual Abuse Team. Megan Muzychka, a clinical social worker and expert in child mental health and sexual abuse treatment, conducted that therapy. The therapy evolved from talking about feelings to dealing with Ann's psychosomatic symptoms that included headaches, stomach aches, and a racing heart. Ann also narrated a book about her experiences and completed a victim impact statement in which she said she felt mad because of the abuse, but sad because defendant loved her, and she no longer saw him. Ultimately, the therapy was successful in alleviating Ann's symptoms.
Defendant was indicted for one count of rape of a child, five counts of indecent liberties with a child, and three counts of sexual offense with a child. At the close of the State's evidence the trial court dismissed the charge of rape and two counts of indecent liberties with a child. Defendant then testified in his own defense, asserting in relevant part that he had masturbated on the couch on which his semen had been found and that Ann had seen him watching pornography on the computer. He denied having abused Ann.
A jury found defendant guilty of one count of sexual offense with a child and two counts of taking indecent liberties with a child. The trial court sentenced defendant to a term of 300 to 369 months for the consolidated charges of sexual offense with a child and indecent liberties with a child. For the remaining charge of indecent liberties with a child, the trial court sentenced defendant to a consecutive presumptive-range term of 16 to 20 months. Defendant timely appealed to this Court.
I
Defendant contends that the trial court improperly admitted, over his objection, testimony of Ms. Muzychka that improperly vouched for Ann's credibility. With respect to expert witness testimony in cases involving sexual offenses, our Supreme Court has held:
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. However, an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.
State v. Stancil, 355 N.C. 266, 266–67, 559 S.E.2d 788, 789 (2002) (internal citations omitted).
In this case, when asked to describe the treatment protocol used in the sexual abuse treatment program, Ms. Muzychka responded in relevant part: “Sure. We actually used evidence based treatment that's called trauma-focused cognitive behavioral therapy. It's evidence based in that developers created this treatment in response to children who have experienced traumatic events.” In explaining one technique used in this type of therapy—the gradual exposure narrative—Ms. Muzychka testified further: “The narrative is a book that child writes about the trauma that he or she experienced, so in this case, it was the sexual abuse allegations.”
Defendant argues that the name of the therapy itself—trauma focused cognitive behavioral therapy—“communicated to the jury [the] expert conclusion [Ann] had suffered trauma which, absent any physical finding indicative of sexual abuse ..., can only have resulted from belief in [Ann's] accusations of Boykin.” He further points to Ms. Muzychka's explanation that this form of therapy was created “in response to children who have experienced traumatic events” and that part of the therapy was to write “about the trauma that ... [Ann] experienced,” which she identified as the “sexual abuse allegations.” Defendant argues that this testimony amounted to Ms. Muzychka's telling the jury that Ann had in fact been sexually abused.
In making this argument, defendant relies upon State v. Towe, –––N.C. ––––, 732 S.E.2d 564 (2012). In Towe, our Supreme Court reviewed the admission of expert testimony that “ ‘approximately 70 to 75 percent of the children who have been sexually abused have no abnormal findings, meaning that the exams are either completely normal or very non-specific findings, such as redness' “ and that the expert would place the victim in that category of children despite the absence of physical evidence of sexual abuse. Id. at ––––, 732 S.E.2d at 566. The Court characterized this testimony as a “conclusory assertion that the victim had been sexually abused.” Id. at ––––, 732 S.E.2d at 568. Because the expert did not base this opinion on physical evidence and the opinion was sufficiently prejudicial, the Court found the admission of the testimony to be plain error. Id. at ––––, 732 S.E.2d at 569.
Here, in contrast to the Towe expert testimony expressly identifying the child as a victim of sexual abuse, the name given by professionals to Ann's type of therapy and an explanation of that therapy as involving treatment for trauma does not amount to an opinion that Ann was in fact sexually abused. Rather, this testimony served only to provide context for Ms. Muzychka's testimony by explaining what she did with Ann and how Ann came to make the statements to Ms. Muzychka regarding the sexual abuse allegations. Indeed, Ms. Muzychka specifically referred to “sexual abuse allegations” instead of actual sexual abuse. Ms. Muzychka did not testify that Ann was in fact sexually abused.
Even assuming that Ms. Muzychka's testimony fell within Towe and Stancil, defendant has not shown that there is a reasonable possibility that the jury would have reached a different conclusion if the therapist had not described Ann's therapy program. Given the DNA evidence, Ann's own detailed testimony regarding the sexual abuse, Ann's prior consistent statements, and the remainder of Ms. Muzychka's testimony, we believe any error, if it occurred, was harmless.
II
Defendant next contends that the trial court erred because it failed to intervene ex mero motu during the State's closing argument. During that argument, the prosecutor urged the jury to find Ann credible because, given Ann's age, she would not have had knowledge to provide the sexual details included in her testimony if she had not actually experienced sexual abuse. Defendant points to the prosecutor's rhetorical question: “How would she be so knowledgeable about the fact that something comes out of a penis other than—and I grant she called it pee, but I would submit that if she came in [and] called it semen, you would be suspect about that.” Defendant also points to the following statement: “And I submit to you again that [Ann] could not have come in here and testified about the things that she testified about, and given the level of details that she could give absent these things really happening.”
In arguing that these portions of the closing were improper, defendant points to the State's motion in limine to exclude evidence of allegations made by Ann against her biological father in 2008. The trial court granted that motion in limine. The excluded evidence showed that Ann had previously made allegations that included language and content mirroring certain parts of her allegations in this case. According to the excluded evidence, Ann had claimed that her biological father “popped” her in her genital area and in her rectal area; that it hurt and bled when he did that; that her biological father also had her touch his genital area; and that he “ ‘pee'd’ on himself” when her hand was on his genital area. A Child Sexual Abuse Evaluation ultimately concluded that “it could not be determined that the incidents were sexual in nature.”
Defendant made no objection at trial to the State's closing argument. “The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made.” State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (internal citation omitted).
“[O]nly an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.” State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693 (1996). “Such [unobjected-to] remarks constitute reversible error only when they render the proceeding fundamentally unfair.” State v. Phillips, 365 N.C. 103, 144, 711 S.E.2d 122, 150 (2011), cert. denied,––– U.S. ––––, 182 L.Ed.2d 176, 132 S.Ct. 1541 (2012).
Here, defendant contends that this Court's decision in State v. Bass, 121 N.C.App. 306, 465 S.E.2d 334 (1996), is controlling. In Bass, the prosecutor argued in closing that the child victim in that case could not have fantasized about the alleged sexual abuse because she lacked the sexual knowledge to do so. Id. at 311–12, 465 S.E.2d at 337. The prosecutor was aware, however, that evidence existed that the child had previously been abused by an uncle and as a result may have gained sexual knowledge she otherwise would not have had. Id. at 313, 465 S.E.2d at 338. This Court held:
While the trial court ... did not err in excluding the evidence of prior abuse of the victim, the trial court did err and abuse its discretion in allowing the prosecutor to use this absence of evidence of the victim's prior abuse to mislead the jury. That a six-year-old child would know nothing of sexual activity but for defendant's alleged abuse can be fairly implied. The jury could draw such an inference from the evidence before it in this case. Nevertheless, the prosecutor may not properly argue to the jury that the inference would be correct where the prosecutor is aware that the contrary is true.
Id. at 313–14, 465 S.E.2d at 338. The Court, therefore, ordered a new trial. Id. at 314, 465 S.E.2d at 338.
Although, in this case, the knowledge Ann exhibited from the alleged prior abuse was not completely identical to the knowledge she demonstrated in connection with the allegations against defendant, the similarities were sufficient to bring this case within the holding of Bass. Despite the prosecutor's knowledge that Ann had sexual knowledge in 2008, the prosecutor argued repeatedly during the closing that Ann's sexual knowledge had to have come from this instance of abuse. Here, as in Bass, the trial court erred “in allowing the prosecutor to use this absence of evidence of the victim's prior abuse to mislead the jury.” Id . at 313, 465 S.E.2d at 338.
Because defendant did not object, he must still establish that the trial court's error in not intervening rendered the proceedings “fundamentally unfair.” Phillips, 365 N.C. at 144, 711 S.E.2d at 150. Ann's detailed testimony and statements to investigators and her therapist showed knowledge of sexual acts beyond that which she may have possessed in 2008. There was no suggestion in the 2008 allegations that Ann had participated in fellatio or that she knew, as she testified at trial, about the soupy consistency of ejaculate. Moreover, even without the 2008 evidence, defendant had made a showing that Ann had access to sexual information apart from the alleged abuse, including evidence of an educational book that her mother read to her and defendant's own testimony that Ann had seen him watching pornography. Given all of this evidence and the DNA evidence, we cannot say that the closing arguments by the State rendered the proceedings fundamentally unfair.
Defendant alternatively contends that his trial counsel's failure to object constituted ineffective assistance of counsel. However, as this Court has said in the context of plain error review, a failure to establish prejudice sufficient to demonstrate fundamental error precludes a finding of prejudice sufficient to establish ineffective assistance of counsel. State v. Pratt, 161 N.C.App. 161, 165, 587 S.E.2d 437, 440 (2003) (“A successful ineffective assistance of counsel claim based on a failure to request a jury instruction requires the defendant to prove that without the requested jury instruction there was plain error in the charge.”). Therefore, our conclusion that the prosecutor's closing argument did not render the proceedings fundamentally unfair disposes of defendant's ineffective assistance of counsel claim.
III
Defendant finally contends that the trial court misconstrued the language of N.C. Gen.Stat. § 14–27.4A(b) (2011) in sentencing defendant. N.C. Gen. Stat § 14–27.4A(b), which governs sentencing of a defendant convicted of sexual offense with a child, reads: “A person convicted of violating this section is guilty of a Class B1 felony and shall be sentenced pursuant to Article 81B of Chapter 15A of the General Statutes, except that in no case shall the person receive an active punishment of less than 300 months, and except as provided in subsection (c) of this section.” (Emphasis added.)
Defendant asserts that the language of N.C. Gen.Stat. § 14–27.4A(b) should not be read as requiring that a person convicted of N.C. Gen.Stat. § 14–27.4A actually serve 300 months imprisonment. Rather, defendant argues, a sentence with a maximum term of 300 months and a lower minimum term (such as 242 months) would comply with N.C. Gen.Stat. § 14–27.4A(b). Defendant contends that the trial court abused its discretion when it construed the statute as requiring that the minimum term be 300 months.
The statute, however, provides for “active punishment” of at least 300 months in all cases. The legislature chose to refer to “punishment” and not “sentence.” Consequently, N.C. Gen.Stat. § 14–27.4A(b) requires that a defendant sentenced under that statute serve an active term of imprisonment of no less than 300 months. The trial court, therefore, did not err in concluding that the statute required that the minimum term be 300 months.
No error. Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).