Opinion
No. COA09-1627
Filed 17 August 2010 This case not for publication
Appeal by defendant from judgments entered 28 August 2009 by Judge William Z. Wood, Jr., in Superior Court, Forsyth County. Heard in the Court of Appeals 25 May 2010.
Attorney General Roy Cooper, by Assistant Attorney General Sonya M. Calloway-Durham, for the State. Wyrick Robbins Yates Ponton LLP, by K. Edward Greene, Tobias S. Hampson, and Edward Eldred, for defendant-appellant.
Forsyth County No. 08 CRS, 59127-30.
When a defendant fails to object at trial to the admission of evidence, he has the burden on appeal of showing that such evidence, if improperly admitted, "`tilted the scales' and caused the jury to reach its verdict convicting the defendant." In the present case, Defendant Lucas Allen Bratton argues that the trial court improperly admitted the testimony of two lay witness that the State neglected to tender as experts. Because Defendant fails to show that the erroneous admission of this lay testimony caused the jury to reach its verdict convicting him of nine counts of taking indecent liberties with a child, we hold that Defendant's trial was free of prejudicial error.
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
At trial the State's evidence tended to show that ZZ was born in 1996 and was the step-daughter of Defendant. The alleged incidents occurred while Defendant lived with ZZ and her younger sister during 2003 to January 2008. Defendant acted as caregiver for the children while their mother was at work.
The psuedo-initials, ZZ, are used to refer to the alleged female victim in this matter.
Beginning when ZZ was around 9, Defendant and the children would play "hide and seek." ZZ's younger sister would hide, and ZZ and Defendant would go into her mother's bedroom. Defendant directed ZZ to put her hands on his penis and rub it until he ejaculated. The episodes lasted for two to three minutes. In exchange, Defendant provided privileges to ZZ including trips to the mall, and getting highlights for her hair. On one occasion, Defendant instructed ZZ to take off her pants or skirt and lie of the bedroom floor. Defendant told her to open her legs and he rubbed her vagina on top of her underwear. On another occasion, when ZZ was approximately ten or eleven years old, Defendant produced a sex toy and covered it in lubricant while ZZ watched. Defendant, who was completely naked, then made ZZ watch him as he inserted the sex toy into his anus.
ZZ's mother testified that Defendant was born in 1980. Some time after January 2008, ZZ told her mother that she did not want to live at home anymore because she did not want to stay there with Defendant. Defendant eventually moved out in March 2008. In May 2008, ZZ told her stepmother about what Defendant had done to her. ZZ later told her mother that the incidents took place two to three times a week; that they started when she was in fourth grade; and that she did not tell anyone because she was afraid she would get in trouble.
At trial, the State called Cynthia Stewart, a licensed professional counselor with the State of North Carolina. Although Stewart testified regarding her education, training, and experience, the State did not tender Stewart as an expert. Stewart testified that she interviewed ZZ on 19 May 2008 during a child medical examination. The prosecutor asked Stewart about the ways that children disclose sexual abuse.
Q. And are there different ways that children disclose sexual abuse?
A. Yes ma'am.
Q. Can you tell the jury some of those ways?
A. Children often delay disclosing, they also disclose in stages, they disclose parts of what may have happened to them to see what's going to happen, and see whether somebody is going to believe them or not; and they oftentimes will then add other pieces of what's happened to them as they get more comfortable and more sure about what's going to happen. They delay disclosing many times because they are not sure what's happening to them, they are not sure how the adults are going to react, and they are very young, and realize that this is an adult who's in control and authority over them as well. So they often delay for a variety of reasons. In my eighteen years I've come to the conclusion that —
A bit later, and without objection, the prosecutor asked Stewart if she was familiar with the term "accommodation syndrome."
Q. What is that?
A. It is a description of how children deal with sexual abuse.
Q. And what does it describe?
A. It talks about how children respond to trauma, sexual abuse trauma by accommodating to it, by adjusting to it, by either being a very normal child, functioning in school, functioning at home, or sometimes the reverse, which is acting out. It's the emotional characteristics of — that can happen when children are abused.
Q. Does accommodation syndrome affect disclosure?
A. No, ma'am, it's really just a description.
The State also presented the testimony of Leslie Berenson, a licensed clinical social worker employed as a therapist. Berenson also testified to her education, training, and experience, but the State did not tender Berenson as an expert. Berenson testified that she evaluated ZZ, beginning in September 2008. Berenson testified that her purpose in evaluating ZZ was "[t]o understand what her chief symptoms were, to develop a treatment plan, and determine if there was any other services that would be appropriate for her to help her with her struggles.' Without objection, Berenson testified that:
A. Her chief complaint was that she had intrusive thoughts of her trauma throughout the day, that she had nightmares, where she had felt threatened and fearful, she had worries that if her perpetrator were —
. . . .
Q. What worries were there about her perpetrator?
A. That, you know, he would retaliate in some way. She knew that he knew where she lived, what her phone number was, and that created some anxiety for her.
Q. And what other problems or complaints, I'm sorry, were there?
A. Well, she complained that she had just a lot of anxiety, a lot of irritability, anger. She had a difficult time, you know, regulating her emotions. She admitted that she often displaced her anger onto other people when she was feeling worried or concerned, and those were some things that she wanted to address in therapy.
Q. And what other information did you gather at the initial evaluation?
A. Well, I gathered that she struggled with some depression, she had difficulty in concentrating at times. She had early morning awakenings and difficulty falling asleep. She had a lot of stress with, regarding the upcoming criminal proceedings. . . .
. . . .
Q. And did [ZZ] tell you who the person was that she alleged had abused her?
A. Yes, she referred to her perpetrator as Lucas.
. . . .
Q. So on the first initial interview that was just to get to — diagnose a treatment for her?
A. Right, it was to develop a treatment plan.
Q. Did you develop a treatment plan?
A. Yes, I did.
Q. What were you planning to do to help [ZZ] in her therapy?
A. Well, our treatment goals were, you know, improving relationships with family members; learning how to appropriately express her anger; process separation and loss issues regarding her parents divorce; improve her coping skills; and address issues relating to her victimization, such as her somaticize symptoms; her recurrent thoughts of her trauma; her anxieties that her perpetrator may hurt her or her family; and stress related to upcoming court proceedings and sleep disorderliness.
Defendant was tried at the 24 August 2009 Criminal Session of Superior Court in Forsyth County. A jury convicted Defendant of ten counts of taking indecent liberties with a child. On appeal, Defendant argues that the trial court erred in (I) allowing Berenson to testify that one of the treatment goals she diagnosed and developed was to address issues relating to ZZ's "victimization;" and (II) allowing Stewart to testify about the different ways that children disclose sexual abuse and to explain accommodation syndrome.
Because Defendant did not object to the testimony at trial, we review these issues under the higher standard of plain error. It is well established that, "[a] reversal for plain error is only appropriate in the most exceptional cases." State v. Duke, 360 N.C. 110, 138, 623 S.E.2d 11, 29 (2005), cert. denied, Duke v. North Carolina, 549 U.S. 855, 166 L. Ed. 2d 96 (2006). "[T]he appellate court must determine that the error in question `tilted the scales' and caused the jury to reach its verdict convicting the defendant. Therefore, the test for `plain error' places a much heavier burden upon the defendant than that imposed . . . upon defendants who have preserved their rights by timely objection." State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
I
Defendant first argues that the trial court erred in admitting Leslie Berenson's testimony regarding ZZ's treatment goals because such testimony was beyond her perception as a non-expert under Rule 701. That rule provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
N.C. Gen. Stat. § 8C-1, Rule 701 (2009). Defendant relies on State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992), for the proposition that "[o]nly an expert in the field may testify on the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent with this profile." Id. at 818, 412 S.E.2d at 888.
Defendant directs us to State v. Hutchens, 110 N.C. App. 455, 429 S.E.2d 755, disc. review denied, 334 N.C. 437, 433 S.E.2d 181 (1993). The defendant in Hutchens was tried for first-degree rape and taking indecent liberties with a child. Id. at 457, 429 S.E.2d at 756. At trial, the State presented the lay testimony of a counselor who described the alleged victim's "emotional state." Id. at 457, 429 S.E.2d at 757. The State then introduced expert testimony to describe "the characteristics of sexually abused children." Id. at 458, 429 S.E.2d at 757. "Defendant testified in his own behalf, and denied sexually molesting [the alleged victim]." Id.
On appeal, the defendant in Hutchens argued that the trial court erred in admitting lay witness testimony describing the alleged victim's emotional state. Id. at 459, 429 S.E.2d at 758. This Court agreed. "Allred [i.e. the lay witness] described behavioral patterns . . . and symptoms . . . exhibited by [the alleged victim] which, as recognized in State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992), are outside the perception of a non-expert." Id. at 460, 429 S.E.2d at 758. Following Hutchens, we must agree with Defendant that the trial court erred in admitting Berenson's lay testimony regarding behavioral patterns and symptoms exhibited by ZZ. See id.
However, Hutchens did not end with the identification of this error. Rather, in that case, we refused to countenance the State's two-step strategy of introducing witnesses (1) to describe the alleged victim's behavior, and then (2) to describe the characteristics of sexually abused children in the same terms. "The `emotions' Allred described are in essence the characteristics of sexually abused children . . . delineated by expert witness Whitman, who testified immediately after Allred." Id. In Hutchens, we described this two-step process as "a back-door attempt to introduce non-expert testimony that [the alleged victim] exhibited symptoms consistent with those exhibited by sexual abuse victims." Id. at 461, 429 S.E.2d at 759. The prejudice involved in such a procedure is plain, as the lay testimony then effectively establishes abuse. We concluded that " in light of the conflicting evidence presented at trial, . . . had the trial court not committed the aforementioned errors, there is a reasonable possibility that the jury would have reached a different verdict." Id. (emphasis added).
In contrast, there is no evidence in the present case that the State attempted the same two-step process, buttressing lay opinion with expert testimony. On the contrary, the State did not offer any expert testimony in this case. Also unlike Hutchens, Defendant here did not present any evidence to contradict the sworn testimony of the alleged victim. The error here is not analogous to that for which we reversed the trial court in Hutchens.
In light of the fact that Berenson testified only to ZZ's behavioral patterns and symptoms, it is difficult to see how this testimony could have prejudiced Defendant and tilted the scales, resulting in a guilty verdict. Defendant argues that the testimony improperly bolstered ZZ's credibility. The cases relied upon by Defendant for this conclusion are distinguishable. See State v. Giddens, ___ N.C. App. ___, ___, 681 S.E.2d 504, 508 (2009) (trial court erred in admitting witness' testimony that DSS concluded the defendant was guilty of the alleged criminal acts), aff'd per curiam, 363 N.C. 826, 689 S.E.2d 858 (2010); State v. Streater, ___ N.C. App. ___, ___ 678 S.E.2d 367, 374 (trial court erred in admitting expert witness testimony that specifically identified defendant as perpetrator), appeal dismissed, disc. review denied, 363 N.C. 661, 687 S.E.2d 294 (2009); State v. Couser, 163 N.C. App. 727, 732, 594 S.E.2d 420, 424 (2004) (trial court erred in admitting expert witness opinion that alleged victim was probably sexually abused).
Unlike the witnesses in the cases relied upon by Defendant, the witness in this case expressed no opinion that ZZ was probably sexually abused, or that Defendant was likely the perpetrator. It is true that Berenson testified to her treatment goals for ZZ, which included addressing "issues related to her victimization[.]" This testimony does not constitute the sort of opinion on another witness's credibility that is prohibited by our precedent.
II
Defendant next argues that the trial court erred in allowing Cynthia Stewart to testify about the different ways children disclose sexual abuse and to define "accommodation syndrome." Defendant relies on State v. Stallings, 107 N.C. App. 241, 419 S.E.2d 586 (1992), disc. review improvidently allowed, 333 N.C. 784, 429 S.E.2d 717 (1993).
The defendant in Stallings was convicted of first-degree sexual offense and first-degree rape. Id. at 242, 419 S.E.2d at 587. On appeal, the defendant argued that the trial court erred in permitting a pediatrician to testify that the alleged victim was suffering from Child Sexual Abuse Accommodation Syndrome ("accommodation syndrome"). Id. at 248, 419 S.E.2d at 590. Following Hall, this Court held that evidence of accommodation syndrome was improperly admitted, in part because "the jury may accord too much weight to expert opinions stating medical conclusions." Id. at 251, 419 S.E.2d at 592 (quoting Hall, 330 N.C. at 820, 412 S.E.2d at 889).
It is worth noting that in Stallings, the witness testified that the alleged victim showed signs of the syndrome. Id. at 248, 419 S.E.2d at 591. It is evident that such testimony implies the cause, i.e. abuse; but nothing in Stallings indicates that the term is talismanic. Stallings does not mandate reversal where no link to the alleged victim is established. Indeed, the Stallings Court found the error did not amount to prejudicial error in light of the other evidence presented. Id. at 251, 419 S.E.2d at 592.
In the present case, Stewart testified regarding the ways that children disclose sexual abuse. Stewart also provided the jury with a definition of accommodation syndrome. "It's the emotional characteristics of — that can happen when children are abused." Following Hall, we conclude that it was error for the trial court to allow a lay witness to testify regarding the profiles of sexually abused children.
However, Defendant acknowledges that Stewart never indicated that ZZ's behavior was consistent with how children disclose sexual abuse, or that ZZ was suffering from accommodation syndrome. Defendant argues that the error was prejudicial because Stewart's testimony, like Berenson's, bolstered ZZ's credibility. On the contrary, because Stewart did not testify that ZZ suffered from accommodation syndrome, her testimony does not constitute an opinion on another witness's credibility such as is prohibited by our precedent.
Defendant's argument on appeal amounts to the allegation that the State's witnesses were not properly tendered as experts. But Defendant fails to demonstrate the prejudice attendant upon this error. Indeed, had the State properly tendered these witnesses, Defendant could not argue that the admission of their testimony was erroneous. See State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002) ("[A]n 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.").
In sum, we conclude that the State's failure properly to tender its witnesses as experts did not tilt the scales against Defendant. Accordingly, we hold that Defendant received a fair trial that was free from prejudicial error.
No prejudicial error.
Judges HUNTER, Robert C., and CALABRIA concur.
Report per Rule 30(e).
Judge WYNN concurred in this opinion prior to 9 August 2010.