Opinion
No. COA14–514.
01-20-2015
STATE of North Carolina v. Eddy Shane HEAVNER, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Lauren M. Clemmons, for the State. Law Office of Charles M. Oldham, PLLC, by Charles M. Oldham, III, for Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Lauren M. Clemmons, for the State.
Law Office of Charles M. Oldham, PLLC, by Charles M. Oldham, III, for Defendant.
McGEE, Chief Judge.
Facts
Eddy Shane Heavner (“Defendant”) was convicted on 18 October 2013 on one count each of felony statutory rape, taking indecent liberties with a child, and felony statutory sex offense. Defendant was tried for events alleged to have occurred in late 2011 and early 2012 when the accuser (“the juvenile”) was fourteen years old. Defendant was living with the juvenile's aunt (“the aunt”) at the time of the events alleged, and these events occurred in the aunt's house. The juvenile was a close friend of her cousin, the aunt's daughter. The juvenile testified that Defendant approached her on several occasions when she was sleeping at the aunt's house and sexually assaulted and raped her.
The juvenile did not report the events right away, but she eventually told a boyfriend (“the boyfriend”). The boyfriend wrote a letter on his computer detailing the alleged assaults. The aunt saw this letter on the boyfriend's computer, and informed the juvenile's parents. Police were contacted, and an investigation was initiated. The juvenile was sent to the Children's Advocacy Center where she was interviewed by a forensic investigator. The juvenile began therapy with Sara Vela (“Vela”), a licensed clinical social worker at the Children's Advocacy Center.
Defendant was arrested on 21 September 2012, and charged with multiple sex offenses, including felony statutory rape, taking indecent liberties with a child, and felony statutory sex offense. Defendant's trial began 14 October 2013. The juvenile testified, as did her mother, Vela, and Defendant. The jury returned guilty verdicts on the charges of felony statutory rape, taking indecent liberties with a child, and felony statutory sex offense, but could not reach a verdict on another charge of taking indecent liberties with a child. Defendant was sentenced to 180 to 276 months' imprisonment. Defendant appeals.
Analysis
In Defendant's first argument, he contends that the trial court committed plain error “in permitting inadmissible opinion testimony from a clinical social worker, and inadmissible lay opinion from the mother of an alleged child sex abuse victim.” We disagree.
In order to prevail in a plain error analysis, Defendant must show that “absent the error, the jury probably would have returned a different verdict.” State v. Lawrence, 365 N.C. 506, 519, 723 S.E.2d 326, 335 (2012).
Defendant first argues that Vela improperly testified that the juvenile had in fact been abused when there was no physical evidence of abuse. Our Supreme Court has determined:
In a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in factoccurred 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) (citations omitted). In the process of qualifying Vela as an expert, the State questioned Vela extensively concerning her background and methods in evaluating and treating children. When asked how many children she had treated throughout her career, Vela estimated “approximately 120.” The following exchange then occurred:
Q. So all the children that you've treated then have been through some type of trauma? Would that be accurate?
A. Absolutely.
Q. So there are just different ways that you treated the first handful and different ways that you treated the second, different models?
A. Right.
Q. But all are in some type of physical or sexual abuse; would that be accurate?
A. Yes.
[THE STATE:] Your Honor, we would like to tender Ms. Vela as an expert at this time.
Defendant did not object to Vela testifying as an expert, or to the above line of questioning. It is clear that this questioning by the State was not specifically related to Vela's opinions regarding the juvenile. Rather, the State was simply establishing Vela's credentials and experience in treating children traumatized by abuse. Questioning concerning Vela's evaluation of the juvenile did not begin until after Vela was tendered and accepted as an expert. Defendant fails in his burden of proving the trial court committed plain error in not intervening ex mero motuto exclude this testimony.
Defendant next argues that lay testimony of the juvenile's mother “regarding the mental condition of the child” constituted “inadmissible lay opinion[.]”
However, Defendant fails to argue that the mother's testimony amounts to plain error. When the mother was asked how the juvenile was acting after the alleged abuse came to light, the juvenile's mother testified in part:
She wanted ... to stay in her bedroom. She tried to shut down. She was just fearful, she would have nightmares. Like she would wake up in the middle of the night and she would just be screaming, and she would just be screaming, screaming, screaming. And we would sit with her and she would calm down. And she would have these awful nightmares, I mean, horrible, horrible nightmares.
Defendant argues that “[t]aken in conjunction with the testimony of Ms. Vela, the testimony of the alleged victim's mother may very well, in the minds of the jurors, have given greater credibility to the testimony given by the alleged victim, and was therefore improperly admitted.” However, this is not the standard for plain error. Even assuming arguendothat the mother's testimony constituted error, Defendant needed to show that absent this testimony, “the jury probably would have returned a different verdict.” Lawrence, 365 N.C. at 519, 723 S.E.2d at 335. “It is not the job of this Court to make Defendant's argument for him.” State v. Mills,––– N.C.App. ––––, ––––, 741 S.E.2d 427, 433 (2013). This argument is abandoned. Id.
No error.
Judges STEPHENS and DIETZ concur.
Report per Rule 30(e).
Opinion
Appeal by Defendant from judgments entered 18 October 2013 by Judge William R. Bell in Superior Court, Lincoln County. Heard in the Court of Appeals 6 October 2014.