Opinion
No. 07-472.
Filed March 4, 2008.
Davidson County Nos. 04CRS62473, 04CRS62474, 04CRS62475, 04CRS62479.
Appeal by Defendant from judgments entered 14 September 2006 by Judge Kimberly Taylor in Davidson County Superior Court. Heard in the Court of Appeals 26 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for Defendant
Defendant Dale Robert Larson was convicted by a jury of two counts of taking indecent liberties with a child, N.C. Gen. Stat. § 14-202.1 (2005), and four counts of first-degree sexual offense, N.C. Gen. Stat. § 14-27.4(a)(1) (2005). The trial court sentenced Defendant to two consecutive terms of 240 to 297 months in prison. On appeal, Defendant contends he is entitled to a new trial on the basis of the trial court's evidentiary errors. We disagree and conclude Defendant received a fair trial, free of error.
FACTS
In June 2004, Defendant lived with his wife and son a few doors down from Mr. and Mrs. "Smith" and their three daughters, M.S., A.S., and K.S. At that time, M.S. was seven years old, A.S. was five, and Defendant was fifty-seven. Defendant's wife and Mr. Smith were cousins. On 7 March 2005, Defendant was indicted on the charges of which he was later found guilty: two counts of taking indecent liberties with A.S., two counts of first-degree sexual offense with A.S., and two counts of first-degree sexual offense with M.S. The State called the matter for trial on 12 September 2006.
We use the pseudonym, "Smith," and the initials, M.S., A.S., and K.S., to protect the children's privacy.
M.S. testified that in June 2004 Defendant touched her "private places" on multiple occasions. Defendant digitally penetrated her vagina and anus in the computer room of Defendant's house. In his living room, Defendant digitally penetrated M.S.'s vagina and rubbed her chest underneath her clothes. Defendant kissed her and "put his tongue in [her] mouth." M.S. testified that on one occasion at Vacation Bible School, she was waiting in line at a water slide with a "bunch of people" standing around, and Defendant "touched" her underneath her swimming suit. M.S. also testified that she saw Defendant stick his hand in A.S.'s pants.
A.S. testified that Defendant put his hand on her "private places." In Defendant's computer room, Defendant touched her vagina and kissed her. A.S. testified that Defendant touched her "[t]he same way" at Vacation Bible School.
Mrs. Smith testified that in November 2004, while she was sitting on her couch with M.S., she reached over to get a gluestick out of M.S.'s hand and touched M.S.'s leg. M.S. got "frantic[,]" and said Defendant "liked to rub her legs and mess in her panties." Mrs. Smith contacted the sheriff's department, and the deputies began an investigation. Mrs. Smith testified that M.S. "drew a picture of what happened to her at the water slide" because "she was having difficulty talking about some of the incidents[.]" M.S. drew the picture herself in front of Mrs. Smith, but Mrs. Smith labeled some of the things on the drawing "with [M.S.'s] words as to basically help illustrate what occurred to her at the Vacation Bible School[.]" The State's attorney moved to introduce the drawing "both for illustrative and corroborative purposes[.]" Defendant's attorney objected to the drawing's admission on the ground that its admission violated Defendant's right to cross-examine M.S. The trial court admitted the drawing into evidence.
Two pediatricians who examined M.S. and A.S. after the events in June also testified at trial. Dr. Keith Thompson, who examined M.S., testified that M.S. told him Defendant had "frequently touched her private parts." Dr. Thompson did not find any abnormalities in his physical examination of M.S., but testified that a normal exam was not inconsistent with the history provided by M.S. Dr. Andrea Bennett-Cain, who examined A.S., testified that A.S. told her Defendant touched her bottom and "[dug] in [her] britches[.]" Like Dr. Thompson's examination of M.S., Dr. Bennett-Cain's physical examination of A.S. was "normal[,]" and Dr.Bennett-Cain testified that a normal exam was not inconsistent with the history provided by A.S.
The jury returned its verdicts on 14 September 2006, and the trial court entered its judgments that day. Defendant appeals.
ANALYSIS 1. Drawing
By his first and second assignments of error, Defendant argues the trial court committed prejudicial error in admitting the drawing made by M.S. Defendant asserts the admission of this drawing violated (1) the Confrontation Clause of the Sixth Amendment, U.S. Const. amend. VI, and (2) the rules of evidence, in that the drawing was inadmissible hearsay, N.C. Gen. Stat. § 8C-1, Rule 802 (2005). Central to Defendant's argument on both points is his contention that the drawing was admitted to prove the truth of the matter asserted. See State v. Walker, 170 N.C. App. 632, 635, 613 S.E.2d 330, 333 (stating that "where evidence is admitted for a purpose other than the truth of the matter asserted, the protection afforded by the Confrontation Clause against testimonial statements is not at issue") (citing Crawford v. Washington, 541 U.S. 36, 59-60 n. 9, 158 L. Ed. 2d 177, 197-98 n. 9 (2004)), disc. review denied, 359 N.C. 856, 620 S.E.2d 196 (2005); N.C. Gen. Stat. § 8C-1, Rule 801 (2005) ("`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). Thus, if the drawing was admitted for a purpose other than to prove the truth of the matter asserted, Defendant's argument must fail.
We disagree with Defendant's contention in his reply brief that "the trial court explicitly admitted the drawing as `corroborative' evidence" at the time the drawing was admitted. Although the trial court stated during voir dire that the drawing would be admissible for "corroborative purposes," Defendant's attorney did not request, and the trial court did not give, any instruction when the drawing was admitted into evidence:
[DISTRICT ATTORNEY]: I move to introduce [the drawing], both for illustrative and corroborative purposes, Your Honor.
THE COURT: Do you wish to be heard, Mr. Harp?
MR. HARP: Excuse me? I'm sorry.
THE COURT: He made a motion to introduce the . . .
MR. HARP: I still renew my objection.
THE COURT: All right. I'll note your objection for the record, Mr. Harp, and I will allow the drawing to be . . .
[DISTRICT ATTORNEY]: I'll ask for it to be published . . .
THE COURT: . . . published to the jury. . . .
Even if it was limited to corroborative purposes at the time it was admitted, such a limitation eviscerates Defendant's Sixth Amendment argument. Walker, 170 N.C. App. at 635, 613 S.E.2d at 333 ("[W]here evidence is admitted for . . . corroboration . . . there is no constitutional infirmity.") (citations omitted). In any event, the trial court expressly limited the drawing's admission to illustrative purposes in its jury charge:
Photographs and a drawing were introduced into evidence in this case for the purpose of illustrating and explaining the testimony of a witness. These exhibits may not be considered by you for any other purpose.
Since the trial court specifically admitted the drawing only for illustrative purposes, the Sixth Amendment is not implicated. State v. Baymon, 336 N.C. 748, 759, 446 S.E.2d 1, 7 (1994) ("A defendant's right to confrontation is not implicated unless the challenged statement" is "`offered in evidence to prove the truth of the matter asserted.'") (quoting N.C. Gen. Stat. § 8C-1, Rule 801(c)). Defendant's argument to the contrary is overruled.
As for Defendant's hearsay argument, we note that Defendant made no such argument to the trial court, there arguing solely that the admission of the drawing violated Defendant's Sixth Amendment right, and, thus, Defendant has not preserved this issue for appellate review. N.C. R. App. P. 10(b)(1) ("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."). Nevertheless, Defendant's hearsay argument is misplaced. As discussed above, the drawing was expressly limited to illustrative purposes and was not admitted as substantive evidence. Thus, it was not hearsay. N.C. Gen. Stat. § 8C-1, Rule 801. Furthermore, a jury presumably follows the trial court's instructions. State v.Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). Defendant's hearsay argument is overruled.
2. Pediatricians' Testimony
By his final argument, Defendant asserts the trial court committed plain error in allowing the pediatricians to testify that the girls' normal examinations were not inconsistent with their reported histories of sexual abuse. Dr. Thompson testified as follows:
Q. With the history that you had of her indicating that there was touching of her vaginal area by [Defendant] and that it happened on many occasions and that it was painful for her, would you find that that history, then followed by a physical exam which you found to be normal, would you find those things to be inconsistent with each other?
A. No, sir, not at all. As a matter of fact, maybe 25 to 30 percent of children that have a history of that, including definite penetration of the vaginal area, only about 30 percent will actually have an abnormal examination.
Similarly, Dr. Bennett-Cain testified:
Q. Based on the history that you had of the touching of the bottom and digging her britches, that type of language that you heard from [A.S.], and then comparing that to the fact that you had a normal exam, did you find those two things to be inconsistent with each other?
A. No. If you look at the literature, even in cases of admitted penetration from a perpetrator, 70 to 80 percent of those cases will have a completely normal exam. . . .
Defendant argues that, in offering such testimony, the doctors "vouched for the girls' claims[.]" We are unpersuaded.
The plain error rule
is always to be applied cautiously and only in the exceptional case 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," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "`resulted in a miscarriage of justice or in the denial to appellant of a fair trial'" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)) (citation omitted).
"`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.'" State v. Hammett, 361 N.C. 92, 97, 637 S.E.2d 518, 522 (2006) (quoting State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (per curiam)) (citation omitted). However, a trial court does not err in admitting expert testimony that a sexually abused child's normal physical examination is consistent with that child's reported history of sexual abuse. In re T.R.B., 157 N.C. App. 609, 582 S.E.2d 279 (2003), appeal dismissed and disc. review improvidently allowed, 358 N.C. 370, 595 S.E.2d 146 (2004). In T.R.B., a pediatrician testified that a child had recounted acts of sexual abuse to her, but that her physical exam indicated no physical or medical signs of abuse. The pediatrician was then asked:
[PROSECUTOR]: And how did your findings on the physical exam compare with the interview that you had with [the child].
[PEDIATRICIAN]: It[']s consistent because there — often times physical evidence and history do not collaborate. So lots of times you don't find physical evidence even if there has been some penetration unless you can — I mean, sometimes you will see tears and you will see scars and you will see some increase in anal tone, but that's not necessarily a given.
Id. at 617, 582 S.E.2d at 285. The respondent argued that such testimony "had the effect of vouching for [the child's] credibility[.]" Id. This Court disagreed, holding that the admission of this testimony "was neither error nor plain error." Id. at 618, 582 S.E.2d at 286.
In the case at bar, neither pediatrician testified that sexual abuse had in fact occurred or that, in their opinions, the histories reported by the girls were accurate. Rather, both doctors testified that their examinations of the girls were not inconsistent with the girls' earlier statements. We conclude that the admission of this testimony was neither error nor plain error. T.R.B., 157 N.C. App. 609, 582 S.E.2d 279. Defendant's argument is overruled. Assignments of error set out in the record on appeal but not brought forward in Defendant's brief are deemed abandoned. N.C. R. App. P. 28(b)(6).
No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).