Opinion
No. COA15–388.
01-05-2016
STATE of North Carolina, v. Peter Michael VALLEJO, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Natalie Whiteman Bacon, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender John F. Carella, for defendant.
Attorney General Roy Cooper, by Assistant Attorney General Natalie Whiteman Bacon, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender John F. Carella, for defendant.
Opinion
Appeal by defendant from judgments entered 1 August 2014 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 5 October 2015.
On 1 August 2014, a jury found Peter Michael Vallejo (defendant) guilty on three counts of sexual offense with a child in violation of N.C. Gen.Stat. § 14–27.4A, and on two counts of taking indecent liberties with a child in violation of N.C. Gen.Stat. § 14–202.1. On appeal, defendant argues that (1) the trial court erred in denying his motion to dismiss based on insufficient evidence, (2) the trial court erred in admitting evidence that defendant's parental rights to the victim had been terminated, and (3) the trial court erred in qualifying a State's witness as an expert in the treatment of children with allegations of sexual abuse. We conclude that defendant received a trial free from error.
I. Background
This case arises out of the alleged sexual abuse by defendant against his adopted daughter, AJ. Defendant was indicted on three counts of sexual offense with a child and three counts of taking indecent liberties with a child. Two of the sexual offense charges, set forth in 12 CRS 1843, were alleged to have occurred between December 2009 and June 2010 when the family lived in Fuquay–Varina. The third sexual offense charge, set forth in 12 CRS 202268, was alleged to have occurred on or about 13 January 2012 at defendant's apartment in Apex. The cases were tried together before a jury beginning 28 July 2014.
We use this pseudonym to protect the identity of the minor child.
Richard Hayner, a social work supervisor with Wake County Human Services, offered a brief summary at trial of a prior Child Protective Services (CPS) case in which defendant's parental rights were terminated. Hayner testified that on 15 July 2010, CPS received three reports on the Vallejo family related to sexual abuse and domestic violence. CPS implemented a safety plan, in which defendant was to leave the home and have no further contact with AJ. Services were also put in place for the family, including a sex abuse treatment program, substance abuse assessments, intensive family preservation services, parenting classes, psychiatric and therapeutic services, and marital counseling. In January 2012, Hayner learned that the safety plan had been violated and defendant had, again, sexually abused AJ—this time at his home in Apex. CPS subsequently petitioned for and received legal custody of AJ. A series of hearings was held in November and December 2012, followed by an order terminating the parental rights of defendant and AJ's mother. AJ has since been adopted.
The State's evidence also included AJ's testimony and that of Lauren Rockwell, a psychologist who conducted a child and family evaluation on the Vallejo family in August and September 2010. Rockwell testified that during the first interview of AJ's 2010 evaluation, AJ disclosed to Rockwell that defendant touched AJ's “front privates,” including “the one I pee out of,” and that it was “painful.” Rockwell further testified that during a second interview, AJ disclosed to Rockwell that when defendant touched AJ's “private parts,” defendant told AJ “that women and girls have a feel-good spot and that he was trying to find it.” At trial, AJ testified that when the family lived in Fuquay–Varina, defendant touched her vagina underneath her clothes, that “sometimes he would stay on the outside and sometimes he would go on the inside,” and that it would happen “more than once a week.” AJ further testified that “around October-ish” of 2011, at defendant's apartment in Apex, she “was touched again” in “the same way it had happened before,” and she thought “it happened more than once.”
Michelle Worrix, a licensed professional counselor, was tendered by the State as an expert in the field of treatment of children with allegations of sexual abuse. Worrix began treating AJ in September 2010 when AJ presented to Worrix with concerns of sexual abuse and exposure to domestic violence. Worrix diagnosed AJ with post-traumatic stress disorder (PTSD) and used the diagnosis to formulate a plan of treatment. Worrix was still seeing AJ for weekly therapy at the time of trial.
A video-taped disclosure made by AJ to Worrix and a social worker, Rosalia Bealer, on 25 January 2012 was also admitted and published to the jury as State's Exhibit 7. During the disclosure, AJ described the specific incident that took place on 13 January 2012. AJ told Worrix and Bealer that she, her mother, and her brother had gone to defendant's home for dinner. Later that night, when defendant was alone with AJ, he touched her “private spot” underneath her clothes. AJ clarified that defendant touched her using his fingers, and when asked to describe the touching, AJ stated that defendant “would put his hand in my private spot and rub.”
Although defendant did not present any evidence at trial, his recurrent theme during opening statements and cross-examination of the State's witnesses was that he had been falsely accused as a result of a domestic custody dispute with AJ's mother. Defense counsel asserted the following in his opening statement to the jury:
And all the while, ladies and gentlemen, all the while that this is going on, there are these custody issues because they have a biological child together. There are all these custody issues going on. One's wanting custody; one is wanting visitation. That is the backdrop against which all of these accusations have been hurled against [defendant], and there's not one shred of physical evidence on [AJ] that he did anything to her. Not one shred.
Ladies and gentlemen, I ask you to look at this in the context that it is, a dysfunctional family embroiled in domestic dispute. And at the end of this case, ladies and gentlemen, you're going to understand that that's why these accusations have come up.
At the close of evidence, the trial court dismissed one count of taking indecent liberties with a child; the jury found defendant guilty on all remaining charges. The trial court arrested judgment on the two convictions of taking indecent liberties with a child, and sentenced defendant to consecutive terms of 300 to 420 months' imprisonment for the sexual offense conviction in 12 CRS 202268, and 300 to 372 months' imprisonment for the two remaining sexual offense convictions in 12 CRS 1843. The trial court also ordered defendant to register as a sex offender and enroll in satellite-based monitoring. Defendant gave notice of appeal in open court, and appellate entries were entered 1 August 2014.
II. Analysis
A. Defendant's Motion to Dismiss
First, defendant argues that the trial court erred in denying his motion to dismiss the charge of sexual offense with a child in 12 CRS 202268, alleged to have occurred on 13 January 2012. At trial, AJ testified that when defendant touched her in 2009 and 2010, penetration would sometimes-but not always-occur, and that in October 2011, the touching happened “the same way it had happened before.” Defendant argues that this is the only substantive evidence of penetration to support the offense in 12 CRS 202268, and because it is ambiguous whether penetration occurred on 13 January 2012, the State failed to present sufficient evidence to survive defendant's motion to dismiss. We disagree.
“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘Upon defendant's motion for dismissal, the question for the Court 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. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 32 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818 (1995).
“A person is guilty of sexual offense with a child if the person is at least 18 years of age and engages in a sexual act with a victim who is a child under the age of 13 years.” N.C. Gen.Stat. § 14–27.4A(a) (2013). “Sexual act” is defined by statute to mean “cunnilingus, fellatio, analingus, or anal intercourse” and also “the penetration, however slight, by any object into the genital or anal opening of another person's body....” N.C. Gen.Stat. § 14–27.1(4) (2013). An “object,” for purposes of the statute, includes “parts of the human body as well as inanimate or foreign objects.” State v. Lucas, 302 N.C. 342, 346, 275 S.E.2d 433, 436 (1981). Mere separation of the labia is sufficient to prove penetration. State v. Bellamy, 172 N.C.App. 649, 658, 617 S.E.2d 81, 88 (2005).
In the prosecution of a sexual offense case, “where the only evidence of penetration is uncorroborated, ambiguous testimony, our Supreme Court has held that there is insufficient evidence to withstand a motion to dismiss.” State v. Combs, 226 N.C.App. 87, 90, 739 S.E.2d 584, 587 (2013) (citing State v. Hicks, 319 N .C. 84, 90, 352 S.E.2d 424, 427 (1987)). In Hicks, for example, the only evidence introduced by the State to support the charge of first-degree sexual offense was the victim's “ambiguous testimony that defendant ‘put his penis in the back of me.’ “ Hicks, 319 N.C. at 90, 352 S.E.2d at 427. The court explained that “[g]iven the ambiguity of [the victim's] testimony as to anal intercourse, and absent corroborative evidence (such as physiological or demonstrative evidence) that anal intercourse occurred, ... the evidence was insufficient to support a verdict, and the charge of first degree sexual offense should not have been submitted to the jury.” Id. Additionally, in State v. Whittemore, our Supreme Court concluded that a victim's testimony was insufficient to establish the element of penetration where she testified that the defendant “put his hands on my privates,” “kept it there about two or three minutes,” and “had his privates at my privates rubbing it up and down.” State v. Whittemore, 255 N.C. 583, 586, 122 S.E.2d 396, 398 (1961) (emphasis added).
Although the challenged testimony in the present case may be ambiguous, it is not the only substantive evidence that penetration occurred on 13 January 2012. In the video-taped disclosure made by AJ to Worrix and Bealer on 25 January 2012, AJ described the 13 January 2012 incident. AJ stated that defendant “would put his hand in my private spot and rub.” The video was admitted and published to the jury as State's Exhibit 7. Defendant's only objection to the introduction of the video was based on Rule 702 regarding the admissibility of testimony by an expert witness. Defendant never requested that the video be admitted solely to corroborate AJ's testimony at trial, and the trial court gave no such limiting instruction. Rather, the trial court instructed the jury that the video may be considered “as evidence of the facts that they illustrate or show.” As defendant does not contest that the disclosure shows substantial evidence of penetration on 13 January 2012, we conclude that the trial court did not err in denying defendant's motion to dismiss.
B. Evidence that Defendant's Parental Rights had been Terminated
Next, defendant argues that the trial court erred in allowing Hayner to testify that defendant's parental rights to AJ had been terminated. Defendant, who offered only a general objection to the evidence at trial, maintains that the evidence is barred by N.C. Gen.Stat. § 1–149, is not relevant for any purpose, and is highly prejudicial. We disagree.
We first note that defendant's general objection is insufficient to properly preserve his challenge pursuant to N.C. Gen.Stat. § 1–149. See N.C.R.App. P. 10(a)(1) (2009) (“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.”). N.C. Gen.Stat. § 1–149 (2013) prohibits the use of any pleading “in a criminal prosecution against the party as proof of a fact admitted or alleged in it.” The Supreme Court of North Carolina recently held that “N.C.G.S. § 1–149 is not a ‘mandatory’ statute the violation of which is cognizable on appeal despite the absence of an objection in the trial court.” State v. Young, –––N.C. ––––, ––––, 775 S.E.2d 291, 305 (Aug. 21, 2015) (No. 124PA14). Thus, as is the case here, if the defendant does not object on the basis of N.C. Gen.Stat. § 1–149 to the admission of the evidence at trial, he is not entitled to do so on appeal. Id.
Defendant's general objection is effective, however, to preserve his remaining contentions to the admission of Hayner's testimony, though he is not entitled to a review de novo. “[U]nless, on the face of the evidence, there is no purpose for which the evidence could have been admissible, a general objection is ineffective.” State v. McKoy, 317 N.C. 519, 525, 347 S.E.2d 374, 378 (1986). To prevail on appeal, therefore, defendant “must demonstrate that the evidence would not be admissible for any purpose.” Id. at 525, 347 S.E.2d at 378.
“The admissibility of evidence is governed by a threshold inquiry into its relevance. In order to be relevant, the evidence must have a logical tendency to prove any fact that is of consequence in the case being litigated.” State v. Griffin, 136 N.C.App. 531, 550, 525 S.E.2d 793, 806 (citation and quotation marks omitted), appeal dismissed and disc. review denied, 351 N.C. 644, 543 S.E.2d 877 (2000).
The State offered Hayner's testimony to rebut defendant's claim that AJ's mother had falsely accused defendant to gain custody of AJ. Evidence that defendant's parental rights to AJ had been terminated was relevant to show that defendant had no legal right to custody of AJ at the time of trial. Accordingly, we conclude that no error occurred in the admission of Hayner's testimony regarding the termination of defendant's parental rights.
C. Qualification of Michelle Worrix as an Expert
Finally, defendant argues that the trial court abused its discretion (1) by qualifying Worrix, over his objection, as an expert in the “treatment of children in allegations of sexual abuse,” and (2) by permitting Worrix to testify that she diagnosed AJ with PTSD. Defendant raised no objection at trial to AJ's diagnosis and has failed to properly preserve the second issue for appellate review. N.C.R.App. P. 10(a)(1). As to the first issue, we disagree.
The trial courts “decide preliminary questions concerning the qualifications of experts to testify or the admissibility of expert testimony” and, when doing so, “are afforded wide latitude of discretion.” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citations and quotation marks omitted). “[A] trial court's ruling on the qualifications of an expert or the admissibility of an expert's opinion will not be reversed on appeal absent a showing of abuse of discretion.” Id.
The admissibility of expert testimony is governed by Rule 702 of the North Carolina Rules of Evidence:
(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the facts of the case.
N.C. Gen.Stat. § 8C–1, 702(a) (2013) (emphasis added).
During voir dire, Worrix testified as follows: she works in private practice with children and families that have experienced trauma, abuse, and neglect; she has been doing this type of work for about twenty-one years; she is a licensed professional counselor and an art therapist; she is qualified and licensed to make mental health diagnoses; she has a bachelor's degree in psychology, a master's degree in art therapy counseling, and she has performed post-master's training in abuse, trauma, crisis, intervention, and supervision of other professionals who work with children who have experienced trauma; she was trained in trauma-focused cognitive behavioral therapy at Duke University; and she has testified in court approximately twelve times and has previously been tendered as an expert in the areas of trauma and sexual abuse. Based on the foregoing, we conclude that the trial court did not abuse its discretion in qualifying Worrix as an expert in the treatment of children in allegations of sexual abuse.
III. Conclusion
We conclude that no error occurred in the judicial actions challenged by defendant. First, there was sufficient evidence of penetration to support the charge of sexual offense with a child in 12 CRS 202268. Second, with respect to Hayner's testimony that defendant's parental rights to AJ had been terminated, defendant has failed to show that the evidence was not admissible for any purpose. Finally, the trial court did not abuse its discretion in qualifying Worrix as an expert.
NO ERROR.
Chief Judge McGEE and Judge INMAN concur.
Report per Rule 30(e).