Opinion
No. COA09-1342
Filed 15 June 2010 This case not for publication
Appeal by Defendant from judgment entered 21 April 2009 by Judge Lindsay R. Davis Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 10 March 2010.
Attorney General Roy A. Cooper, by Assistant Attorney General David Gordon, for the State. Wyatt Early Harris Wheeler LLP, by Stanley F. Hammer, for Defendant.
Forsyth County No. 07 CRS 59191, 07 CRS 59194.
David Young O'Shields (Defendant) appeals from judgment entered on his convictions of one count of taking indecent liberties with a child and one count of statutory rape. For the reasons stated below, we conclude there is find no prejudicial error but remand for correction of a clerical error.
On 28 January 2008, Defendant was indicted on seventeen counts of sexual misconduct involving his step-granddaughter K.F., allegedly occurring at various times between 14 June 2003 through 1 February 2007. Pertinent to this appeal, the indictment in 07 CRS 059191 charged Defendant with two counts of indecent liberties with a child in violation of N.C. Gen. Stat. § 14-202.1; the indictment in 07 CRS 059194 charged Defendant with one count of first degree rape of a child in violation of N.C. Gen. Stat. § 14-27.2(a)(1); and the indictment in 07 CRS 059195 charged Defendant with three counts of statutory rape of a 13, 14, or 15-year-old in violation of N.C. Gen. Stat. § 14-27.7A(a). These matters were joined and tried before a jury at the 15 April 2009 Criminal Session of Forsyth County Superior Court. The State's evidence included testimony from: K.F., the child complainant; Dr. Sarah Sinal, qualified and tendered as an expert in pediatrics and child abuse evaluations; Susan Vaughn, a forensic interviewer tendered as an expert witness; Officer J.R. Pritchard of the Winston-Salem Police Department; and K.F.'s grandmother and aunt.
Initials are used to protect the identity of the juvenile.
At the close of the State's case, Defendant moved to dismiss the charges against him. The trial court partially granted Defendant's motion, dismissing, inter alia, the second count of indecent liberties in 07 CRS 059191, the sole count of first degree rape in 07 CRS 059194, and the second and third counts of statutory rape in 07 CRS 059195. Defendant elected not to present evidence on his behalf and renewed his motion to dismiss at the close of all the evidence, which was denied by the trial court. The jury returned verdicts finding Defendant guilty of taking indecent liberties with a child between 14 June 2006 and 1 February 2007; guilty of statutory rape of a child who was 13 years old between 14 June 2006 and 1 February 2007, and not guilty of the remaining rape and indecent liberties charges that had survived Defendant's motion to dismiss. The trial court sentenced Defendant to a minimum term of imprisonment of 216 months and a maximum term of 269 months. Defendant noted his appeal in open court.
On appeal, Defendant argues the trial court committed plain error by: (1) entering judgment against Defendant in 07 CRS 059194; (2) denying Defendant's motion to dismiss the charge of statutory rape; (3) failing to intervene ex mero motu and strike the forensic interviewer's testimony; and (4) failing to specify Defendant's sentence in 07 CRS 059191.
I.
Defendant argues it was plain and reversible error for the trial court to enter judgment against him in 07 CRS 059194, which alleged first degree rape of a child occurring between 14 June 2004 and 13 June 2006, where the jury verdict indicated Defendant's guilt of statutory rape occurring between 14 June 2006 and 1 February 2007, requiring arrest of judgment. We disagree.
"A motion in arrest of judgment is directed to some fatal defect appearing on the face of the record." State v. McGaha, 306 N.C. 699, 702, 295 S.E.2d 449, 451 (1982); see also State v. Davis, 282 N.C. 107, 117, 191 S.E.2d 664, 670 (1972) ("A motion in arrest of judgment is generally made after verdict to prevent entry of judgment based on a defective indictment or some fatal defect on the face of the record proper."). Although Defendant did not make a motion in the trial court for arrest of judgment, our Supreme Court has held that the issue may be raised for the first time on appeal. See State v. Sellers, 273 N.C. 641, 645, 161 S.E.2d 15, 18 (1968); see also State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998) ("When such a defect is present, it is well established that a motion in arrest of judgment may be made at any time in any court having jurisdiction over the matter, even if raised for the first time on appeal.").
In determining whether to arrest judgment, we are guided by several principles. "Where there is a fatal defect in the indictment, verdict or judgment which appears on the face of the record, a judgment which is entered notwithstanding said defect is subject to a motion in arrest of judgment." Wilson, 128 N.C. App. at 691, 497 S.E.2d at 419. Neither do our statutes "specify what constitutes a proper verdict sheet," nor do "our Courts require[] the verdict forms to match the specificity expected of the indictment." State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 240-41 (2002). While it may be reversible error for a trial court to enter judgment on a verdict that is "imperfect, informal, insensible, or one that is not responsive to the indictment," State v. Ingram, 271 N.C. 538, 540, 157 S.E.2d 119, 121 (1967), a verdict is sufficient if it "can be properly understood by reference to the indictment, evidence and jury instructions." State v. Connard, 81 N.C. App. 327, 336, 344 S.E.2d 568, 574 (1986). Moreover, "where the defendant appeals based on the content of the verdict sheet but failed to object when the verdict sheet was submitted to the jury, any error will not be considered prejudicial unless the error is fundamental." State v. Wiggins, 161 N.C. App. 583, 592, 589 S.E.2d 402, 409 (2003) (citing State v. Gilbert, 139 N.C. App. 657, 672-74, 535 S.E.2d 94, 103 (2000)).
Defendant argues this case is controlled by State v. Tucker, where the defendant was indicted on fourteen counts of statutory sexual offense of a 13, 14, or 15-year-old, but the verdict sheets incorrectly listed those counts as first degree sexual offense. State v. Tucker, 156 N.C. App. 53, 59, 575 S.E.2d 770, 774, rev'd in part on other grounds, 357 N.C. 633, 588 S.E.2d 853 (2003). In Tucker, however, as in the instant case, the trial court had properly instructed the jury on the counts, and the jury then returned the verdict sheets marked guilty, which were accepted by the trial court without objection from either party. In fact, both the State and Defendant's counsel in this case specifically informed the trial court that they had no objection "to the verdict in 59194 . . . read[ing] guilty of statutory rape of a child who was thirteen years old at the time of the offense which allegedly occurred between approximately June 14, `06, February 1, `07," notwithstanding the fact that this count applied to case number 07 CRS 059195 and that 07 CRS 059194 had been dismissed. Defendant now contends that the judgment, which references both an incorrect indictment and incorrect dates, is senseless and must be arrested.
Tucker, however, held there was no fundamental error because:
While the jury returned verdict sheets stating that defendant was guilty of the crime of first degree sexual offense, the jury had been "well-acquainted" with the charge of statutory sexual offense of a 13, 14 or 15 year old. The jury had heard the indictments which included that crime, heard the evidence, and were properly instructed on that crime.
Id. at 60-61, 575 S.E.2d at 775. Here, among the indictments joined for Defendant's trial was one charging statutory rape; the State presented evidence at trial to prove that offense; the jury instructions — oral and written — accurately charged the elements of the offense; and the verdict sheet, albeit identifying the wrong case number, contained language correctly describing the statutory rape count and indisputably reflected the charge and the dates specified in the indictment to which it obviously corresponded. Moreover, the jury was polled after the verdicts were returned, and each juror assented to a verdict of guilty for the statutory rape charge. See Gilbert, 139 N.C. App. at 674, 535 S.E.2d at 104. The State concedes that the verdict sheet referenced the wrong case number. We conclude, however, that the record in this case — including the indictments, the evidence introduced at trial, and the jury instructions — clearly indicates that statutory rape was at issue and listed on the verdict sheet, which was consistent with and the indictment to which it truly applied. See State v. Sanderson, 62 N.C. App. 520, 524, 302 S.E.2d 899, 902 (1983) (considering the several indictments, the court's charge, and the verdict sheet together to conclude "that the form itself, although improperly omitting [an] element, sufficiently identified the offenses found by the jury to enable the court to pass judgment on the verdict and sentence defendant appropriately"); see also Connard, 81 N.C. App. at 336, 344 S.E.2d at 574 ("The record, including the indictment and the instructions, makes it abundantly clear, beyond mistake by the jury, that [the crime charged] was at issue."). Thus, Defendant suffered no prejudice, and there was no fundamental error requiring arrest of judgment.
In addition to the lack of fundamental error, we hold that the mislabeled caption of the verdict sheet, as opposed to the above-cited cases cited dealing with incorrect language in the body of the document, amounted to nothing more than clerical error. While not explicitly adopting the definition, our Court has noted that "clerical error" has been defined as "`[a]n error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.'" State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quoting BLACK'S LAW DICTIONARY 563 (7th ed. 1999)). "When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record speak the truth." State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (internal quotation marks and citations omitted); see also Jarman, 140 N.C. App. at 202, 535 S.E.2d at 878 (internal quotation marks omitted) (stating "a court of record has the inherent power to make its records speak the truth and, to that end, to amend its records to correct clerical mistakes or supply defects or omissions therein"). The only error in this case was that the case number for the dismissed charge of first degree rape was inadvertently listed at the top of the verdict sheet for statutory rape, which was entirely accurate in all other respects. Therefore, we remand to the Forsyth County Superior Court for the sole purpose of correcting the case number. See, e.g., State v. McBride, 173 N.C. App. 101, 110, 618 S.E.2d 754, 760-61 (2005) (remanding for re-filing where the wrong case number had been used on the judgment and commitment form); State v. Fountain, 13 N.C. App. 337, 337-38, 185 S.E.2d 446, 447 (1971) (remanding for correction of superior court records where the wrong case number was affixed to the plea, verdict, judgment, and commitment).
II.
Defendant argues the trial court committed plain and reversible error in denying his motion to dismiss the charge of statutory rape because the evidence presented was insufficient to sustain a conviction. We disagree.
As a question of law, we review de novo the denial of a criminal defendant's motion to dismiss for insufficient evidence. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). The appropriate standard of review "`is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.'" State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "`Substantial evidence' is relevant evidence that a reasonable person might accept as adequate or would consider necessary to support a particular conclusion[.]" State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (internal citations omitted). "When determining the sufficiency of the evidence to support a charged offense, we must view the evidence `in the light most favorable to the State, giving the State the benefit of all reasonable inferences'" which may be drawn therefrom. State v. Ridgeway, 185 N.C. App. 423, 433, 648 S.E.2d 886, 893-94 (2007) (quoting State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)). "`Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.'" State v. Parker, 185 N.C. App. 437, 440-41, 651 S.E.2d 377, 380 (2007) (quoting State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996)).
Defendant was charged pursuant to N.C. Gen. Stat. § 14-27.7A(a), which provides that a defendant is guilty of statutory rape "if the defendant engages in vaginal intercourse . . . with another person who is 13, 14, or 15 years old and the defendant is at least six years older than the person, except when the defendant is lawfully married to the person." N.C. Gen. Stat. § 14-27.7A(a) (2009). Defendant argues that the evidence was insufficient for any rational trier of fact to find him guilty of all the elements of statutory rape beyond a reasonable doubt. Specifically, he contends the State failed to present substantial evidence that Defendant had vaginal intercourse with K.F. after her thirteenth birthday.
The record reflects that the child victim, K.F., was born on 14 June 1993 and was 15 years old at the time of trial. A review of the transcript in this case shows that K.F. testified that the last incident of sexual intercourse between her and Defendant occurred when she was in his room, and he "led [her] over to the bed and bent [her] over and started putting his penis in" her. K.F explained that Defendant put his penis in her hole, the one that is used "[t]o have kids and periods." Although there was some ambiguity in her testimony, as K.F. initially stated that she did not remember how old she was when this last incident occurred, she later testified that it happened "[r]ight about when [she] was about to turn fourteen, or kind of in the middle of thirteen." Additionally, K.F. testified that this incident occurred after Defendant had first touched her during Christmas of 2006. When later pressed by defense counsel, however, she stated that she could not remember the date of the initial incident. Portions of K.F.'s testimony were corroborated by forensic interviewer Susan Vaughn, Officer Pritchard, and Dr. Sinal. Ms. Vaughn testified that K.F. told her that Defendant had inflicted "inappropriate sexual contact" upon K.F. on multiple occasions from the time "when she was approximately ten years old until she was approximately thirteen years old." Officer Pritchard interviewed K.F. during his investigation on 26 May 2007, a few weeks before her fourteenth birthday, and testified that K.F. told him that the last time Defendant had put his penis in her was approximately two months earlier. See Wiggins, 161 N.C. App. at 590, 589 S.E.2d at 407-08 (quoting State v. Brothers, 151 N.C. App. 71, 81, 564 S.E.2d 603, 609 (2002)) ("`[A] child's uncertainty as to the time or particular day the offense charged was committed goes to the weight of the testimony rather than its admissibility, and nonsuit may not be allowed on the ground that the State's evidence fails to fix any definite time when the offense was committed where there is sufficient evidence that the defendant committed each essential act of the offense.'"); see also State v. Moore, 167 N.C. App. 495, 606 S.E.2d 127 (2004) (concluding evidence that the victim was 15 years old and had not yet turned 16 was sufficient to support statutory rape conviction). Medical evidence was also presented by Dr. Sinal, who testified that her examination of K.F. revealed penetrating trauma to the girl's hymenal tissue.
Where any contradictions in K.F.'s testimony are resolved in favor of the State and left to the jury for reconciliation, and giving the State the benefit of all reasonable inferences, the combined testimony by K.F. and the State's other witnesses provide substantial evidence for each essential element of statutory rape. Therefore, the evidence was such that a reasonable mind might accept as adequate to support a conclusion that (1) Defendant engaged in vaginal intercourse with K.F.; (2) K.F. was thirteen at the time; (3) Defendant was at least six years older than K.F. at the time of the intercourse; and (4) Defendant was not married to K.F. at the time of the intercourse. Accordingly, we hold the evidence was sufficient to withstand Defendant's motion to dismiss.
III.
Defendant argues that the trial court committed plain error by failing to intervene ex mero motu and strike or offer a limiting instruction as to the forensic interviewer's testimony because it implied to the jury that the child complainant was credible. We disagree.
Initially, "[w]e note that where a criminal defendant has not objected to the admission of evidence at trial, the proper standard of review is a plain error analysis rather than an ex mero motu or grossly improper analysis." State v. Gary, 348 N.C. 510, 518, 501 S.E.2d 57, 63 (1998). Pursuant to the plain error standard, "[w]e examine the entire record to decide whether the error had a probable impact on the jury's finding of guilt. We determine whether, without this error, the jury would have reach[ed] a different verdict." State v. Blizzard, 169 N.C. App. 285, 293, 610 S.E.2d 245, 251 (2005) (internal quotation marks and citations omitted).
It is well established that "an expert witness may not testify that the prosecuting child-witness in a sexual abuse trial is believable, or that the child is not lying about the alleged sexual assault[.]" State v. Thaggard, 168 N.C. App. 263, 273, 608 S.E.2d 774, 782 (2005) (internal quotation marks and citations omitted). At the instant trial, Susan Vaughn testified as an expert in forensic interviewing, and Defendant failed to timely object to any statements she made during her testimony. The portions to which Defendant now objects include: (1) Ms. Vaughn's explanation of a forensic interview as one that applies certain standards to verbal evidence to determine if the information given by the child can be considered "compelling or consistent or convincing;" (2) her statement that "in [K.F.'s] estimation it happened a lot, so it happened a lot" in response to the State's question whether K.F. ever indicated "how many times or how often this occurred"; and (3) Ms. Vaughn's statement that when she "reminded [K.F.] about her obligation to report information truthfully," K.F. responded that "everything that she had told [Ms. Vaughn] was, in fact, truthful." Defendant argues that the combination of these statements amounted to prohibited and inadmissible expert testimony on a child complainant's veracity. In particular, Defendant claims that the admission of Ms. Vaughn's testimony that K.F. stated Defendant sexually assaulted her "a lot" and, "so it happened a lot," when combined with her testimony that K.F. said she was telling the truth when Ms. Vaughn reminded K.F. of the importance of doing so, prejudiced Defendant by bolstering the credibility of his accuser.
Our sexual abuse cases citing the prohibition of expert testimony regarding a child witness's credibility tend to address the situation where the expert testifies as to whether or not he believes the victim or as to his opinion of the victim's character for truthfulness. See, e.g., State v. Aguallo, 318 N.C. 590, 599, 350 S.E.2d 76, 81-82 (1986) (testimony that child victim was "believable" inadmissible); State v. Kim, 318 N.C. 614, 621, 350 S.E.2d 347, 351 (1986) (expert testimony that child had "never been untruthful with me" inadmissible); State v. Heath, 316 N.C. 337, 342, 341 S.E.2d 565, 567 (1986) (testimony that child victim had no record of lying inadmissible); State v. Hannon, 118 N.C. App. 448, 450, 455 S.E.2d 494, 495 (1995) (testimony that child victim was truthful inadmissible); State v. Holloway, 82 N.C. App. 586, 587, 347 S.E.2d 72, 73 (1986) (opinion testimony that child had testified truthfully inadmissible). We acknowledge the State's argument that whether K.F. had indicated to Ms. Vaughn how often the abuse occurred was not "designed to elicit an opinion of the witness as to whether K.F. had invented a story, or lied, about [D]efendant's alleged attack on her." Heath, 316 N.C. at 341, 341 S.E.2d at 568. Moreover, we agree that Ms. Vaughn did not directly state any opinion as to K.F.'s general character for truthfulness or testify that the alleged abuse had in fact occurred.
Defendant's argument, however, that Ms. Vaughn's response implies that because K.F. estimated that the abuse happened a lot, it happened a lot is also meritorious. Although unsolicited, the expert's deduction that "it happened a lot" suggests that Ms. Vaughn was either stating her opinion as to the fact of the abuse or as to K.F.'s credibility. Still, the prosecutor's question did not necessarily call for the response given by Ms. Vaughn, nor does Ms. Vaughn's response clearly express any opinion on K.F.'s credibility. See State v. Marine, 135 N.C. App. 279, 283, 520 S.E.2d 65, 68 (1999) ("Admittedly, the line between proper and improper questioning can be quite narrow, especially in the context of sexual assault and rape cases.").
While the State encourages this Court to adopt the line of reasoning used in State v. Wise, 326 N.C. 421, 390 S.E.2d 142 (1990), and conclude that Ms. Vaughn's testimony was admissible because she neither testified that she believed K.F. nor opined as to K.F.'s truthful character, the facts of Wise are distinguishable. See id. at 428, 390 S.E.2d at 146 (permitting expert in child counseling to state that the rape victim was "genuine" in reporting the incident because her testimony "was merely a description of her observation of the victim's emotional state during the sessions"); see also Heath, 316 N.C. at 341, 341 S.E.2d at 568 (stating the situation would be different had the witness been asked about any mental condition which may cause the victim to fantasize in general). However, the instant facts are distinguishable not only from Wise, as Ms. Vaughn never described K.F.'s emotions, but also from each case addressing the issue presented. Although Ms. Vaughn's statement is closer to an opinion that sexual abuse in fact occurred than an observation of the child's emotional state, translating her actual answer into a reflection on K.F.'s veracity requires an inferential step, unlike the direct testimony objected to in the above-cited cases. We need not, however, determine whether the rule at issue extends to indirect expert testimony because Defendant has not established plain error in this case.
Particularly instructive is our Supreme Court's warning that "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. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 788 (2002) ( per curiam). This Court has held that the admission of "an expert's opinion to the effect that a witness is credible, believable, or truthful . . . is plain error when the State's case depends largely on the prosecuting witness's credibility." Hannon, 118 N.C. App. at 451, 455 S.E.2d at 496. Here, in addition to evidence corroborating K.F.'s testimony, there was physical evidence supporting a diagnosis of sexual abuse. Moreover, because of the nature of Ms. Vaughn's unsolicited response to the district attorney's question, it is questionable whether her answer had any palpable impact on the jury. We conclude that even if the admission of the challenged testimony was error, it did not cause the jury to reach a different verdict than it would have otherwise reached. Accordingly, the trial court did not commit plain error in failing to intervene ex mero motu and strike the testimony or offer a curative instruction.
IV.
Defendant argues that the trial court committed plain error in failing to specify his sentence in case number 07 CRS 059191 for taking indecent liberties, which was consolidated with the count of statutory rape that Defendant contends should be arrested. Because we held above that an arrest of judgment is not warranted in this case, we do not address this final argument.
For the foregoing reasons, we hold there is no error, and remand this case to the trial court for the limited purpose of correcting clerical errors. Based upon the record, file number 07 CRS 059194 should be removed and file number 07 CRS 059195 substituted therefor on the verdict sheet finding Defendant guilty of statutory rape, the judgment and commitment form, the Judicial Findings and Order for Sex Offenders form, and the Appellate Entries form.
No Error; Remand for correction of clerical errors.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).