Opinion
No. COA04-297
Filed 7 June 2005 This case not for publication
Appeal by defendant from judgment signed 13 November 2003 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 17 February 2005.
Attorney General Roy Cooper, by Assistant Attorney General Tina Lloyd Hlabse, for the State. Thomas R. Sallenger for defendant.
Onslow County, No. 02 CRS 59178.
Robert Shellhammer, IV (defendant) appeals a judgment signed 13 November 2003, entered consistent with jury verdicts finding him guilty of indecent liberties with a child and assault on a child under the age of 12 years.
On 14 January 2003, defendant was indicted for indecent liberties with a child, contributing to the delinquency of a juvenile and assault on a child under the age of 12 years. These matters came for jury trial at the 10 November 2003 criminal session of Onslow County Superior Court with the Honorable Charles H. Henry presiding. Defendant filed a motion to dismiss the charge of contributing to the delinquency of a juvenile, which was allowed and the jury only considered the remaining two charges. Defendant was found guilty of indecent liberties with a child and assault on a child under the age of 12 years.
Based on defendant's prior record level of II, the trial court ordered that the offenses be consolidated for judgment and sentenced defendant to 15-18 months imprisonment with credit for time spent in confinement awaiting trial.
Defendant gave notice of appeal in open court.
Facts
The State's evidence presented at trial is as follows: B.C., the six-year old victim in this case, alleged that on 19 July 2002, her mother's live-in boyfriend, defendant, "touched [her] in the wrong place" by putting his hand in her pants and rubbing hard. On that date, the victim's mother was in the hospital having a baby, so defendant took the victim and some other children to the beach to play. While at the beach, the victim and the others played in the water and sand, although the victim testified that she did not play in the water much. The victim had trouble remembering what she was wearing that day and whether or not she had on a bathing suit. However, there was testimony that she was wearing a top, shorts and no underwear.
Initials have been used throughout to protect the identify of the juvenile(s).
After spending the day at the beach, defendant, the victim, and the others returned home. The victim changed into some dry clothes and then they all went to her friend's house.
After playing at her friend's house, the victim, her sister and defendant went home. The victim played in her room for a while and then sat on the couch, watched television and ate supper. Sometime thereafter, defendant put his hand in the victim's pants and rubbed her hard six or seven times. The victim told him to stop which he initially did not do, but then he finally stopped.
Between six and seven that night, the victim's grandmother came to pick up the victim and her sister so they could stay with her over the weekend. As they got in the car, the grandmother noted that the girls were very quiet, appeared tired and needed a bath. When they arrived at the grandmother's house, she gave the girls a snack and then prepared them for a bath. When the victim stepped into the bathtub and went to sit down, she began screaming "it burns, it burns. I've got to pee." As soon as the victim sat on the toilet and began to urinate she started screaming again. The grandmother thought that maybe the victim had just gotten sand on her and she attempted to rinse her off in the bathtub. The victim was so sore, she would barely let her grandmother touch her.
The grandmother got both girls out of the bath with the victim still crying. When asked whether she scratched herself too hard,
the victim responded "no grandma, no grandma." The grandmother then asked her if anyone else had scratched her or touched her. The victim proceeded to tell her grandmother that defendant touched her in her "loo loo," which is what she calls her private parts. The grandmother testified that the victim's vaginal area was "red and raw and swollen."
The next morning, 20 July 2002, the grandmother took the victim to see Saundra McKellar, a family nurse practitioner who had been treating the victim since she was five months old. At trial, Nurse McKellar testified that she has her own practice, Topsail Family Medicine. Nurse McKellar has fifteen years experience in emergency medicine, both as a registered nurse and nurse practitioner. After working in numerous emergency room settings, Nurse McKellar worked at the health department. Thereafter, she worked at the Naval Hospital Camp Lejeune in the OB-GYN department, taking care of patients of various age groups, doing gynecological and obstetrical work. She left there and went to Planned Parenthood where she took care of females of every age group including teenagers, adolescents, and women; assisting with all of their gynecological needs, including examination and treatment.
Nurse McKellar testified that on 20 July 2002, the grandmother told her she had been taking care of the victim the night before and the victim complained her private area hurt. The grandmother further explained the victim could not sit in the bathtub water and was having a lot of trouble emptying her bladder as it was very painful. Nurse McKellar spent approximately fifteen minutes talking with the victim trying to find out what happened and trying to calm her down a little bit as she was upset and crying. During this time, Nurse McKellar asked the victim what happened and the victim said "he had been rubbing really hard down there."
The evidence at trial showed Nurse McKellar then performed a physical examination on the victim. She noted the victim's genitalia were very red and swollen on the inside and outside and she was tender to touch. Nurse McKellar also noted scratches on the victim's genitalia, and areas where the skin had been rubbed off. Right at the opening to the vagina, she noted the skin was abraded and raw. Nurse McKellar could not tell if the hymen was intact or not because of the excessive swelling. After examining the victim, Nurse McKellar contacted the Pender County Sheriff's Department and told the grandmother the victim needed to have a further examination, and perhaps pictures taken of the area by a child sexual abuse specialist.
At trial, Nurse McKellar testified that the victim's injuries were consistent with the victim's story of being rubbed in her vaginal area. When asked to describe the type of force that would cause such injury, Nurse McKellar replied "I think as [the victim] described it would have been appropriate. The way she described it to me, someone rubbing really hard in the area." Nurse McKellar admitted she was not aware that the victim had been to the beach that day. However, when asked whether or not in her opinion sand would have caused this type of injury, Nurse McKellar stated "not to this extent, no" because she did not think sand would have caused localized injuries "this painful, this swollen, this red."
On 31 July 2002, the Pender County Department of Social Services (DSS) brought the victim in to see Dr. Sonja Brown with the Carousel Center. Dr. Brown testified that she does medical evaluations of children who are suspected of being abused. DSS, law enforcement, and primary physicians refer patients to her. Dr. Brown also attends the New Hanover County Child Protection team meetings, which is a diverse group of professionals that evaluate all the cases of child abuse in New Hanover County. She was appointed by the New Hanover County Commissioners to the Child Fatality Review Committee, where she reviews the deaths of all children in New Hanover County. Dr. Brown has given lectures to pediatricians on diagnosing child abuse. Dr. Brown further testified that she has had training in child interviewing. Dr. Brown was tendered and admitted as an expert in the field of medicine and in the areas of child abuse and child sexual abuse with no objections from defendant.
Dr. Brown testified that on 31 July 2002, she interviewed the victim alone. Dr. Brown asked the victim if she knew why she was there and the victim said defendant touched her "loo loo" and pointed to her genital area as being what she called her "loo loo." The victim told Dr. Brown this occurred at her house on the couch after she got back from visiting a friend who lives at the beach.
Dr. Brown performed a physical examination. Using a colposcope, Dr. Brown noted the victim had erythema (redness) of the posterior fossa, which is the area around the vaginal opening. The victim's hymen was normal for her age group. As part of her examination of the victim, Dr. Brown also reviewed the victim's previous medical records from Nurse McKellar. Based on her examination, Dr. Brown was not able to confirm or deny abuse. Dr. Brown was able to say the victim's injury was consistent with being rubbed hard in her vaginal area and was consistent with the victim's report of what occurred. Based on her evaluation, Dr.Brown concluded that there was "a high likelihood that mal-treatment occurred."
Dr. Brown testified that a normal exam does not rule out abuse. When specifically asked about the degree of force that would cause such an injury, Dr. Brown testified force is a difficult quality to assess, however, it would require some force. She stated "it's not a trivial type of injury [sic] that would cause the injuries described." She based her opinion on the history given to her by the victim during her interview, her physical examination and her review of the victim's prior medical records.
On direct examination, Dr. Brown testified it was possible the victim could cause such an injury to herself. She stated she was aware the victim had played in the sand and the water that day and was not wearing underwear. However, Dr. Brown did not think sand would have caused the internal injuries that were drawn and described by Nurse McKellar.
When questioned about Nurse McKellar's qualifications, Dr. Brown stated, "based on what [I] heard of Nurse McKellar's experience, [I] think [Nurse McKellar] is more than qualified to examine the external genitalia and internal genitalia of a child."
Defendant presented the following evidence at trial: defendant called one witness — the victim's mother. The mother testified she talked to the victim the day following this incident and that the victim told her defendant had rubbed her really hard in her private parts. She further explained the victim often called defendant "daddy" because he was the only daddy she knew at that time.
The issues on appeal are whether the trial court erred by: (I) allowing Nurse McKeller to testify that the victim's injuries were consistent with the victim's account of how she was injured; (II) overruling defendant's objection to the testimony of Nurse McKeller as to the type of force that could cause the victim's injuries; (III) overruling defendant's objection to Dr. Brown's opinion testimony that sand would not have caused the internal injuries described by Nurse McKellar; and (IV) allowing the victim's grandmother to testify that the out-of-court statements told to her by the victim were consistent with the victim's testimony.
I
Defendant first argues the trial court erred by allowing Nurse McKeller to testify that the victim's injuries were consistent with the victim's account of how she was injured.
As a preliminary matter, we note Nurse McKeller was not tendered as an expert witness. Our Supreme Court, however, has stated that absent a specific request to the trial court to make findings regarding the witness' qualifications as an expert, "a finding that the witness is qualified as an expert is implicit in the trial court's ruling admitting the opinion testimony." State v. Wise, 326 N.C. 421, 431, 390 S.E.2d 142, 148 (1990); see also Guyther v. Nationwide Mut. Fire Ins. Co., 109 N.C. App. 506, 428 S.E.2d 238 (1993) (stating the trial court ruled by implication that witnesses were experts by permitting them to give expert testimony); 2 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 185 (6th ed. 2004) (objections to the qualifications of a witness are waived if not timely made and if there is no explicit finding in the record as to the witness' qualifications, it will be assumed the judge found the witness qualified.)
Expert testimony is admissible when it "can assist the jury to draw certain inferences from facts because the expert is better qualified." State v. Bullard, 312 N.C. 129, 139, 322 S.E.2d 370, 376 (1984). The test for admissibility is whether the jury can receive "appreciable help" from the expert witness. State v. Knox, 78 N.C. App. 493, 495, 337 S.E.2d 154, 156 (1985). The court is "afforded wide latitude of discretion when making a determination about the admissibility of expert testimony." Bullard, 312 N.C. at 140, 322 S.E.2d at 376.
Our Supreme Court has held:
[Expert] testimony is properly admitted if (1) the witness because of his expertise is in a better position to have an opinion on the subject than the trier of fact, (2) the witness testifies only that an event could or might have caused an injury but does not testify to the conclusion that the event did in fact cause the injury, unless his expertise leads him to an unmistakable conclusion and (3) the witness does not express an opinion as to the defendant's guilt or innocence.
State v. Brown, 300 N.C. 731, 733, 268 S.E.2d 201, 203 (1980). Moreover, "consistent with" testimony is admissible expert opinion testimony. State v. Aguallo, 322 N.C. 818, 822, 370 S.E.2d 676, 678 (1988) (stating "consistent with" testimony is "vastly different from an expert stating on examination that the victim is `believable' or `is not lying'").
In the instant case, when asked on direct examination whether the victim's injuries were consistent with the victim's story of being rubbed in her vaginal area, Nurse McKellar responded "yes, they were." Nurse McKellar has fifteen years experience in emergency medicine, both as a registered nurse and nurse practitioner. She also has extensive experience working in the OB-GYN department at Camp Lejeune Naval Hospital and Planned Parenthood, where she took care of various age groups, examining and treating all of their gynecological needs.
Nurse McKellar did not testify the victim had been sexually abused or that the victim was truthful. Rather she stated the victim's injuries were consistent with her statement of being rubbed in her vaginal area. Nurse McKellar was asked on direct examination whether she was able to describe the type of force that would cause the victim's injuries. Nurse McKellar testified "I think as the victim described it would have been appropriate. The way she described it to me, someone rubbing really hard in the area." Nurse McKellar did not state that the victim had been sexually abused, nor did she express any opinion regarding defendant's guilt or innocence.
Defendant relies on State v. Keen, 309 N.C. 158, 305 S.E.2d 535 (1983), and State v. Hunter, 299 N.C. 29, 261 S.E.2d 189 (1980) in support of his argument concerning Nurse McKellar's testimony. However, defendant's reliance is misplaced. In Keen, the defendant argued that the trial court erred in failing to strike the expert testimony of a psychiatrist who treated the victim over an eight-day period following the assault. Specifically, when asked at trial whether he had an opinion as to whether the victim was fantasizing in his account of the incident, the psychiatrist affirmatively stated an attack had occurred. Our Court reversed the defendant's conviction, holding the trial court had erred in denying the motion to strike as the psychiatrist's answer that the victim had been attacked, in effect, impermissibly expressed an opinion as to the defendant's guilt, and there was a reasonable possibility the opinion evidence might have contributed to the conviction.
In Hunter, even though the defendant argued the trial court erred in allowing the examining physician to give expert opinion testimony regarding the very question which the jury was charged to answer (whether the victim had been raped), our Court held no error and concluded, "[i]nsofar as [the physician] testified as to the fact of penetration and the consequential injuries suffered by the prosecutrix, the testimony was competent." Hunter, 299 N.C. at 37, 261 S.E.2d at 195.
In the instant case, Nurse McKellar did not testify that sexual abuse had occurred, rather that the victim's injuries were consistent with being rubbed in the vaginal area. Further, Nurse McKellar did not testify the victim was truthful. Rather, she testified the victim's injuries were consistent with the victim's report of what occurred and the type of force described by the victim was appropriate given those injuries. Such testimony was therefore entirely proper.
This assignment of error is overruled.
II
Defendant next argues the trial court erred by overruling defendant's objection to the testimony of Nurse McKellar as to the type of force that could cause the victim's injuries.
For the reasons stated in Issue I supra, this assignment of error is overruled.
III
Defendant next argues that the trial court erred by overruling defendant's objection to Dr. Brown's opinion testimony that sand would not have caused the internal injuries described by Nurse McKellar.
Expert testimony is properly admitted when the expert is in a better position than the jury to have an opinion on a subject, the expert limits his testimony to what might have caused the injury rather than what did in fact cause the injury ("unless his expertise leads him to an unmistakable conclusion") and the expert does not testify that the defendant is guilty or not guilty. Brown, 300 N.C. at 733, 268 S.E.2d at 203.
When asked on direct examination whether or not sand could have caused the victim's injuries, Dr. Brown replied, "I do not feel that sand would have caused the internal injuries that are drawn and described by Nurse McKellar." She went on to explain that she would have expected sand to injure the labia majora (outer vaginal lips) and that she would not expect sand to abrade and scrape the labia minora (inner vaginal lips) and vaginal opening in the manner described. Dr. Brown based her opinions on the history given to her by the victim, her physicial examination of the victim and her review of the victim's prior medical records.
Defendant argues the opinion testimony rendered by Dr. Brown was not supported by an adequate foundation and its admission into evidence was error. We disagree. Dr. Brown has extensive experience in performing medical evaluations of children who are suspected of being abused. She is also a member of the New Hanover County Child Protection team, where she helps evaluate all cases of child abuse in New Hanover County. Dr. Brown has received specialized training in child interviewing and has given lectures to pediatricians on diagnosing child abuse. Furthermore, in the instant case, Dr. Brown was admitted without objection as an expert in the field of medicine and in the areas of child abuse and child sexual abuse.
Defendant contends Dr. Brown improperly relied on Nurse McKellar's description of the victim's injuries the day after the alleged abuse rather than her own examination of the victim, and such reliance rendered Dr. Brown's testimony inadmissible. However, Dr. Brown testified she examined the victim eleven days after the alleged incident in addition to reviewing Nurse McKellar's medical notes. Rule 703 of the North Carolina Rules of Evidence states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
N.C. Gen. Stat. § 8C-1, Rule 703 (2003). Dr. Brown testified that "based on what [she] heard of Nurse McKellar's experience, [she] thinks [Nurse McKeller was] more than qualified to examine the external genitalia and internal genitalia of a child." Accordingly, there was sufficient foundation for the admission of Dr. Brown's testimony.
Defendant attempts to extract from Dr. Brown's testimony, statements that sexual abuse did in fact occur. Dr. Brown never testified that sexual abuse occurred. Instead, Dr. Brown testified that her examination of the victim neither confirmed nor denied abuse.
Defendant also argues Dr. Brown's testimony was an impermissible opinion regarding the victim's credibility. Defendant relies on State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002), State v. Dixon, 150 N.C. App. 46, 563 S.E.2d 594 (2002), and State v. Dick, 126 N.C. App. 312, 485 S.E.2d 88 (1997), for this proposition. In Stancil, our Supreme Court held that, in the absence of physical evidence to support a diagnosis of sexual abuse, expert testimony the sexual abuse has in fact occurred "is an impermissible opinion regarding the victim's credibility." Stancil, 355 N.C. at 266-67, 559 S.E.2d at 789. In Dixon, this Court held the testimony of the expert treating physician that sexual abuse had occurred amounted to an impermissible expert opinion regarding the victim's credibility. Dixon, 150 N.C. App. at 53, 563 S.E.2d at 598-99. Finally, in Dick, this Court held, where there was no clinical evidence to support a diagnosis of sexual abuse, experts' opinions that sexual abuse had occurred merely attested to truthfulness of the child witness and were inadmissible. Dick, 126 N.C. App. at 315, 485 S.E.2d at 89-90. However, neither Stancil, Dixon, nor Dick are applicable to the instant case.
Dr. Brown did not testify that sexual abuse did in fact occur. Dr. Brown testified the injuries described were consistent with the victim's report of what occurred. Aguallo, 322 N.C. at 822, 370 S.E.2d at 678 (stating "consistent with" testimony is "vastly different from an expert stating on examination that the victim is `believable' or `is not lying'"). This was proper expert testimony. Finally, Dr. Brown did not express an opinion as to defendant's guilt or innocence. Therefore, under our Supreme Court's holding in Brown, the trial court properly admitted Dr. Brown's testimony.
This assignment of error is overruled.
IV
Defendant lastly argues the trial court erred by allowing the victim's grandmother to testify that the statements told to her by the victim were consistent with what the victim testified to at trial.
The victim's grandmother testified the victim's account of what happened was consistent from the first time the victim told the grandmother, until the victim's testimony on the stand. The grandmother did not testify that the victim was telling the truth. She simply concluded, based on the victim's prior statements and testimony at trial, the victim's account was consistent.
Defendant argues the grandmother's testimony should not have been allowed as it constituted an improper attempt to bolster the victim's credibility, particularly in light of the inconsistencies between the victim's, Nurse McKellar's, and Dr. Brown's testimony regarding the victim's account of the events in question. Here, the grandmother's testimony was admissible as corroborative evidence.
Corroboration is "[t]he process of persuading the trier of the facts that a witness is credible." 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 162 (6th ed. 2004). Our Supreme Court has defined `corroborate' as "to strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence." State v. Higginbottom, 312 N.C. 760, 769, 324 S.E.2d 834, 840 (1985); see Aguallo, 322 N.C. at 825, 370 S.E.2d at 679 (concluding testimony was corroborative if it tended to add weight or credibility to earlier testimony of witnesses); State v. Riddle, 316 N.C. 152, 160, 340 S.E.2d 75, 79 (1986) (holding the trial court did not err in admitting testimony of a protective services worker as corroborating evidence of testimony of the victim). Thus, by its very nature, corroborative evidence tends to bolster the credibility of the testimony of a victim; however, it is ultimately for the jury "to weigh the evidence, determine the credibility of the witnesses and the probative force to be given their testimony." State v. Martin, 6 N.C. App. 616, 617, 170 S.E.2d 539, 540 (1969).
Defendant relies on the case of State v. Hannon, 118 N.C. App. 448, 455 S.E.2d 494 (1995), in support of his argument that grandmother's statements were inadmissible. However, Hannon is distinguishable. In Hannon, a school principal testified as an expert and expressly stated the child witness was truthful. Upon plain error review and where there was no evidence of sexual intercourse other than the victim's testimony, this Court noted the victim's credibility was critically important; therefore, the principal's testimony that the victim was telling the truth, amounted to prejudicial error.
Unlike the principal in Hannon, the grandmother did not testify that the victim was truthful. She simply stated the victim's account of the incident was consistent from the beginning. Such corroborative evidence is clearly admissible and does not invade the province of the jury.
This assignment of error is overruled.
No error.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).