Opinion
No. COA11–1588.
2012-09-18
STATE of North Carolina v. David Dwight RAMAN, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State. Duncan B. McCormick, for Defendant.
Appeal by Defendant from judgments entered 29 April 2011 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 15 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State. Duncan B. McCormick, for Defendant.
STEPHENS, Judge.
In connection with his alleged sexual relationship with his child “Mollie,” Defendant David Dwight Raman, Jr., was indicted on three counts of first-degree rape of a child, six counts of first-degree sexual offense with a child, and nine counts of indecent liberties with a child. Raman pled not guilty to the charges and was tried by a jury in Guilford County Superior Court, the Honorable R. Stuart Albright presiding. Following the State's presentation of evidence, the trial court dismissed one charge of first-degree sexual offense with a child and one count of indecent liberties with a child. Thereafter, the jury returned verdicts finding Raman guilty of the remaining charges, and the trial court entered judgment for nine sentences of 240 to 297 months imprisonment. Raman appeals.
A pseudonym is used to protect the child's identity.
In his only argument on appeal, Raman asserts that the trial court erroneously admitted “expert testimony that improperly enhanced the credibility of [Mollie].” The challenged testimony was given by Susan Vaughan, a “forensic interviewer at Family Services,” who testified based on her review of a video of Mollie's interview with another forensic interviewer. Raman contends that the portions of Vaughan's testimony where she “opined that Mollie resisted making false statements and that [Mollie's] detailed and graphic description of what had allegedly happened showed that Mollie had ‘actually had that experience’ “ “constituted improper opinion with respect to Mollie's credibility.” However, as acknowledged in his brief, Raman failed to object to the admission of this testimony. Thus, we review this issue only for plain error. N.C. R.App. P. 10(b), (c).
Plain error exists “only in exceptional cases 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.” State v. Davis, 349 N.C. 1, 29, 506 S.E.2d 455, 470 (1998) (emphasis and internal quotation marks omitted), cert. denied,526 U.S. 1161, 144 L.Ed.2d 219 (1999). “Thus, the appellate court must study the whole record to determine if the error had such an impact on the guilt determination, therefore constituting plain error.” Id. (citation omitted). We therefore determine whether the jury would probably have reached a different verdict if this testimony had not been admitted. See State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987) (explaining that “plain error” is error “so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached”), cert. denied,485 U.S. 1036, 99 L.Ed.2d 912 (1988).
In State v. Hammett, our Supreme Court held that although the trial court erroneously admitted evidence of an expert “improperly vouch[ing] for [the victim's] credibility,” that error did not amount to plain error where the jury properly considered other evidence of the defendant's abuse beyond the victim's testimony. 361 N.C. 92, 97–99, 637 S.E.2d 518, 522–23 (2006) (“[I]n addition to [the victim's] consistent statements and testimony that [the] defendant had abused her sexually, the jury was able to consider properly admitted evidence that [the victim] exhibited physical signs of repeated sexual abuse, [the] defendant's admissions of bizarre bathing habits with [the victim], and [the] defendant's thoroughly impeached denials that his showers with [the victim] had any sexual aspect. Thus, while [the expert's] statements vouching for [the victim] were improper, we believe the jury would not have acquitted [the] defendant if the challenged statements had been excluded.”).
Likewise, in this case, beyond Mollie's consistent statements and testimony regarding abuse by Raman, there was evidence of Raman's abuse of Mollie: Mollie's brother testified to seeing Mollie come out of Raman's room trying to put her clothes back on; Mollie's brother testified to being shocked at the sight of Raman going into the bathroom where Mollie was sitting without underwear; Mollie's mother testified about trying to get into the bedroom while she suspected Raman was sexually abusing Mollie; Mollie's aunt stated that she'd seen Raman on top of Mollie and Raman replied that he thought Mollie was her aunt; Mollie's enuresis, sexualized behavior, sexual relationship with her brothers and another girl in foster care, sleep disturbances, and difficult peer interactions, which are symptoms consistent with abuse; and corroboration by multiple witness of Mollie's testimony. Assuming arguendo that the challenged testimony was erroneously admitted, we believe that, in light of the foregoing evidence considered by the jury, the jury would not have acquitted Raman if the challenged statements by Vaughan had been excluded. Therefore, we conclude that the trial court's admission of the challenged testimony did not amount to plain error.
NO ERROR. Judges BRYANT and THIGPEN concur.
Report per Rule 30(e).