Opinion
No. COA10-741
Filed 18 January 2011 This case not for publication
Appeal by defendant from judgments entered 29 September 2009 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 15 December 2010.
Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State. Duncan B. McCormick for defendant-appellant.
Brunswick County Nos. 07 CRS 52264-79.
Defendant Norman Ray Roberts III appeals from his convictions of 16 counts of first degree sexual offense of a child under the age of 13. After careful review, we find no error.
Facts
The State presented evidence at trial tending to establish the following facts: "Helen" and her younger brother "David" lived with their mother and step-father until Helen was four, when they moved in with defendant, who is their biological father, and their paternal grandmother. When Helen was almost nine, she, David, and defendant moved into a trailer with her great-grandmother. Helen and her great-grandmother each had a bedroom on one side of the trailer and, on the other side, David and defendant shared a bedroom with bunk beds. Defendant slept on the bottom bunk and David slept on the top.
Pseudonyms are used throughout this opinion to protect the minor's privacy and for ease of reading.
During Helen's third grade year (2005-06), defendant would come home from work in the evenings, take a shower, and then come into the bedroom he shared with David, where David and Helen would be playing or watching television. Defendant would shut the door, make David get on the top bunk, and then have Helen lie down next to him in bed under the covers. Defendant would put his hand up her shirt and "mess[] with [her] breasts." Defendant would also put his hand down Helen's pants and "mess[] with [her] private area." Defendant would "start out rubbing the outside" of her vagina and then "take his index finger and put it inside [her] private area." Defendant touched Helen every night except Sunday nights, when she would sleep over at her cousin's house, and continued until the end of her fourth grade year (2006-07).
At first, Helen did not tell anyone about defendant touching her because he threatened to beat her if she told anyone. Defendant often spanked Helen and David when they did not "do what he said to do." In early April 2007, however, Helen told her cousin, her aunt, and her great-grandmother about defendant touching her. On 19 April 2007, after receiving an anonymous tip that the children were being sexually abused by defendant, Detective Laurie Smith with the Brunswick County Sheriff's Office went to the children's school to interview Helen and David. During the interview, Helen told Detective Smith that defendant touched her breasts and digitally penetrated her vagina and that it had been happening since the third grade. Diana Setaro, a social worker with Brunswick County Department of Social Services ("DSS"), also interviewed Helen on 19 April 2007. Helen told Ms. Setaro that defendant had put his hands down her pants and put his fingers in her vagina.
On 23 April 2007, Helen was taken to the Carousel Center, where she was examined by nurse practitioner Diane Guida, a child medical examiner. Helen explained to Ms. Guida that defendant had "fondle[d] her breasts" and "rub[bed] on her private part." Helen's genital exam was normal. Helen began seeing Nikki Croteau-Johnson, a licensed psychological associate at Coastal Psychological Center in May 2007. Helen told Ms. Croteau-Johnson that starting when she was nine, defendant would put his hand up her shirt and down her pants and would rub her vaginal area. In October 2008, Helen also began seeing Billie Whitley-Gates, a child and adolescent therapist. Ms. Whitley-Gates diagnosed Helen as suffering from post-traumatic stress disorder ("PTSD").
Defendant was charged with 16 counts of first degree sexual offense with a child under the age 13. Defendant pled not guilty and the case proceeded to trial. The jury convicted defendant of all 16 counts and the trial court consolidated the charges into three judgments and sentenced defendant to three consecutive presumptive-range terms of 336 to 413 months imprisonment. Defendant timely appealed to this Court.
I
Defendant's primary argument on appeal is that the trial court erred in admitting the report and testimony of Helen's therapist, Ms. Whitley-Gates, indicating that she had diagnosed Helen with PTSD. At trial, prior to testifying as an expert, the trial court conducted a voir dire on Ms. Whitley-Gates' qualifications. After questioning Ms. Whitley-Gates about the factual foundation for her opinion, defense counsel objected to her testifying at trial regarding her diagnosis that Helen suffered from PTSD. The trial court ruled that Ms. Whitley-Gates was qualified to give her expert opinion that Helen suffered from PTSD, explaining that it would give the jury a limiting instruction that Ms. Whitley-Gates' testimony was being admitted solely for corroborative purposes.
Ms. Whitley-Gates then testified at trial, without objection from defendant, that she had diagnosed Helen with PTSD, and detailed the symptoms of PTSD Helen displayed. When the State subsequently moved to admit Ms. Whitley-Gates' report, defense counsel objected and requested that the jury be given a limiting instruction. The trial court "noted" defense counsel's objection and instructed the jury:
Members of the jury, you have received testimony from Ms. Billie Whitley-Gates who was admitted as an expert; that [Helen] suffers from post-traumatic stress disorder or P.T.S.D. This expert opinion testimony is being admitted solely for the purpose of corroborating the testimony of [Helen], if you find it does, in fact, so corroborate and not as substantive evidence tending to show whether the crimes charged, in fact, occurred. . . .
The trial court repeated this limiting instruction to the jury during its final charge to the jury.
It is well-established that "[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial." State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845 (1995). Thus, when a defendant does not "object when the evidence that [i]s the subject of the motion in limine [i]s offered at trial," the defendant "fail[s] to preserve for appeal the question of the admissibility of such evidence." State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam). As defendant failed to object to Ms. Whitley-Gates' testimony at the time it was offered, he has not properly preserved for appellate review his challenge to its admission. While defendant did object to the admission of Ms. Whitley-Gates' report, which also included her diagnosis of PTSD, evidence of her diagnosis had already been admitted in the form of her trial testimony. "[T]he admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character." State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979). Consequently, defendant also failed to properly preserve for review the issue of the admissibility of the report.
Defendant nonetheless seeks plain error review of the admission of the evidence concerning Helen's PTSD diagnosis. See Conaway, 339 N.C. at 521, 453 S.E.2d at 846 (reviewing admissibility of evidence for plain error where defendant failed to object to evidence at trial after denial of a motion in limine); State v. Patterson, 194 N.C. App. 608, 616, 671 S.E.2d 357, 362 (2009) (same). Under plain error analysis, defendant bears the burden of demonstrating that "the error was so fundamental that, absent the error, the jury probably would have reached a different result." State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
Although evidence that a prosecuting witness suffers from PTSD is inadmissible "for the substantive purpose of proving that a [sexual offense] has in fact occurred," it may be admitted for "certain corroborative purposes," such as "cast[ing] light onto the victim's version of events," "corroborating the victim's story," or "help[ing] to explain delays in reporting the crime or to refute the defense of consent." State v. Hall, 330 N.C. 808, 821-22, 412 S.E.2d 883, 890-91 (1992); accord State v. Chavis, 141 N.C. App. 553, 565, 540 S.E.2d 404, 413-14 (2000) ("Evidence from an expert that a prosecuting witness is suffering from PTSD is admissible, for corroborative purposes, to assist the jury in understanding the behavioral patterns of sexual assault victims." (internal citations omitted)).
In ruling on the admissibility of evidence that the complainant suffers from PTSD, the trial court "should balance the probative value of evidence . . . against its prejudicial impact under Evidence Rule 403" as well as determine whether the evidence "would be helpful to the trier of fact under Evidence Rule 702." Hall, 330 N.C. at 822, 412 S.E.2d at 891; accord State v. Jones, 105 N.C. App. 576, 580, 414 S.E.2d 360, 363 (1992) ("[I]f the trial court determines that the proffered evidence [of PTSD] meets the criteria of N.C.G.S. § 8C-1, Rules 403 and 702 . . ., the trial court may admit the evidence for purposes of corroboration."). If the trial court determines that the evidence of PTSD is admissible under Rules 403 and 702 of the Rules of Evidence, the trial court "should take pains to explain to the jurors the limited uses for which the evidence is admitted." Hall, 330 N.C. at 822, 412 S.E.2d at 891.
With respect to whether the evidence of Helen's being diagnosed with PTSD is admissible under Rule 403, this determination "is a matter within the sound discretion of the trial court and its decision will not be disturbed on appeal absent a showing of an abuse of discretion." State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995). Plain error review does not apply to "issues which fall within the realm of the trial court's discretion. . . ." State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001). We, therefore, do not address defendant's Rule 403 argument.
As for whether the expert evidence was helpful to the jury, as required by Rule 702, Helen testified that the sexual abuse began during her third grade year (2005-06) but did not report the abuse until the end of her fourth grade year (2006-07). The evidence that Helen was suffering from PTSD was helpful to the jury in explaining the delay in reporting defendant's sexual abuse. See State v. Hughes, 114 N.C. App. 742, 747, 443 S.E.2d 76, 79 ("One way in which expert testimony regarding PTSD can be helpful to the jury is when it tends to explain the victim's delays in reporting the offenses. In the present case, the victim delayed reporting the offenses for several years. Thus, the expert testimony tended to help explain to the jury the cause of this delay. Accordingly, defendant's contention that the evidence was inadmissible is without merit." (internal citation omitted)), disc. review denied, 337 N.C. 697, 448 S.E.2d 536-37 (1994). The trial court, therefore, did not err in admitting the evidence of Helen's PTSD diagnosis.
We note, moreover, that defendant requested and received a limiting instruction explaining to the jury, both at the time the evidence was admitted and during jury instructions, that the evidence was being admitted solely for corroborative purposes. Hall, 330 N.C. at 822, 412 S.E.2d at 891.
Even assuming that the trial court erred in admitting Ms. Whitley-Gates' testimony and report, defendant has failed to demonstrate on appeal that the erroneous admission of the evidence had an impact on the jury's determination of defendant's guilt. Setting aside Ms. Whitley-Gates' testimony and report, Helen testified unequivocally about defendant's continuous course of conduct of fondling her breast and "messing with [her] private area." Detective Laurie Smith, social worker Diana Setaro, and nurse practitioner Diane Guida all testified that during interviews with Helen, she told them that defendant had fondled her breasts, rubbed her vagina, and digitally penetrated her vagina. Psychologist Nikki Croteau-Johnson also testified that Helen exhibited characteristics consistent with sexually abused children. This evidence, unchallenged on appeal, overwhelmingly supports defendant's convictions. Thus, even assuming error, defendant has failed to establish plain error. See State v. Brigman, 178 N.C. App. 78, 93, 632 S.E.2d 498, 508 (finding no plain error in admission of expert testimony regarding victim's symptoms of PTSD where "evidence against defendant was overwhelming"), appeal dismissed and disc. review denied, 360 N.C. 650, 636 S.E.2d 813 (2006); see also State v. Davis, 106 N.C. App. 596, 604, 418 S.E.2d 263, 268 (1992) (holding admission of expert testimony concerning victim's symptoms of PTSD did not constitute prejudicial error under N.C. Gen. Stat. § 15A-1443(a) due to "strong and convincing" evidence of defendant's guilt), disc. review denied, 333 N.C. 347, 426 S.E.2d 710-11 (1993).
II
Defendant also contends that "[t]he trial court erred by instructing the jury in a manner that permitted the jury to convict [him] without reaching a unanimous verdict as to the incident that formed the basis for each count." Defendant claims that because Helen testified to more instances of digital penetration than where charged, the court's instructions deprive him of his right to unanimity because "the instructions did not require the jury to reach a unanimous verdict as to the act that constituted the basis for each verdict."
As an initial matter, we note that defendant did not object at trial to the court's instructions on the basis of a possible unanimity violation. As a general rule, "when a defendant fails to object to errors committed by the trial court during the trial, [the defendant] is precluded from raising the issue on appeal." State v. Davis, 188 N.C. App. 735, 739, 656 S.E.2d 632, 635, cert. denied, 362 N.C. 364, 664 S.E.2d 313 (2008); N.C. R. App. P. 10(a)(1). Our courts have, however, "recognized an exception for [contentions] which allege that a defendant's constitutional right to a unanimous jury verdict has been violated." State v. Haddock, 191 N.C. App. 474, 479, 664 S.E.2d 339, 343 (2008). Thus, "[a] defendant's failure to object at trial to a possible violation of his right to a unanimous jury verdict does not waive his right to appeal on the issue, and it may be raised for the first time on appeal." State v. Mueller, 184 N.C. App. 553, 575, 647 S.E.2d 440, 456, cert. denied, 362 N.C. 91, 657 S.E.2d 24 (2007); accord State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985) (holding that, despite "general rule" that a "defendant's failure to object to alleged errors by the trial court operates to preclude raising the error on appeal," where the alleged "error violates defendant's right to a trial by a jury of twelve, defendant's failure to object is not fatal to his right to raise the question on appeal"). Consequently, defendant's failure to raise the issue at trial does not preclude appellate review of his argument on appeal. See Davis, 188 N.C. App. at 739, 656 S.E.2d at 635 (reviewing "defendant's unanimity argument despite the lack of any objection at trial").
The North Carolina Constitution and North Carolina Statutes require a unanimous jury verdict in a criminal jury trial. N.C. Const. art. 1, § 24; N.C. Gen. Stat. § 15A-1237(b) (2009). Consequently, "the jurors must unanimously agree that the State has proven beyond a reasonable doubt each and every essential element of the crime charged." State v. Jordan, 305 N.C. 274, 279, 287 S.E.2d 827, 831 (1982). Because "first-degree sexual offense is a single wrong for unanimity purposes," simply "criminaliz[ing] the performance of a sexual act with a child," State v. Petty, 132 N.C. App. 453, 462-63, 512 S.E.2d 428, 434-35, appeal dismissed and disc. review denied, 350 N.C. 598, 537 S.E.2d 490-91 (1999), "`the risk of a nonunanimous verdict does not arise,' even if the jury `considered a greater number of incidents than . . . charged in the indictments,' because `while one juror might have found some incidents of misconduct and another juror might have found different incidents of misconduct, the jury as a whole found that improper sexual conduct occurred.'" Brigman, 178 N.C. App. at 93, 632 S.E.2d at 508 (quoting State v. Lawrence, 360 N.C. 368, 374, 627 S.E.2d 609, 612 (2006)) (alteration in original); accord State v. Wallace, 179 N.C. App. 710, 720, 635 S.E.2d 455, 462 (2006) (holding that "[t]he reasoning our Supreme Court set forth in Lawrence may be imputed to sexual offense charges. . . .").
Here, as in Brigman, 178 N.C. App. at 94, 632 S.E.2d at 508 (quoting Lawrence, 360 N.C. at 376, 627 S.E.2d at 613), "`the jury was instructed on all issues, including unanimity; [and] separate verdict sheets were submitted to the jury for each charge.'" See also State v. Burgess, 181 N.C. App. 27, 37-38, 639 S.E.2d 68, 75-76 (2007) (rejecting, based on Brigman, defendant's contention that the "jurors may not have been unanimous about any particular sex act" where trial court (1) instructed the jury on all issues, including unanimity and (2) submitted separate verdict sheets for each charge); State v. Bullock, 178 N.C. App. 460, 469-71, 631 S.E.2d 868, 875-76 (2006) (rejecting "defendant's argument that there was evidence of more incidents than actual charges" where "[d]efendant raised no objections at trial concerning juror unanimity"; the court instructed the jury on all issues, including unanimity; each count was broken down separately on single verdict sheet; jury deliberated for a little over three hours on 11 counts of first degree rape; and jury did not raise any questions regarding unanimity), disc. review denied, 361 N.C. 222, 642 S.E.2d 708 (2007). Defendant's unanimity argument is overruled.
No Error.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).