Opinion
NO. COA12-1377-2
02-17-2015
STATE OF NORTH CAROLINA v. ROBERT T. WALSTON, SR. Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Sherri Horner Lawrence, for the State. Mark Montgomery for Defendant-Appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Dare County
Nos. 09 CRS 85-88, 91
Appeal by Defendant from judgments entered 17 February 2012 by Judge Cy A. Grant in Superior Court, Dare County. Heard originally in the Court of Appeals 21 May 2013, and opinion filed 20 August 2013. Reversed and remanded to the Court of Appeals by the North Carolina Supreme Court in an opinion rendered on 19 December 2014 for consideration of an unresolved issue. Attorney General Roy Cooper, by Assistant Attorney General Sherri Horner Lawrence, for the State. Mark Montgomery for Defendant-Appellant. McGEE, Chief Judge.
Robert T. Walston, Sr. ("Defendant") was indicted for offenses involving two sisters, E.C. and J.C., ranging from June 1988 to October 1989. In 1994, E.C. and J.C. were interviewed by "law enforcement and/or Social Services[.]" E.C. and J.C. did not report the offenses with which Defendant was later charged. E.C. and J.C. told each other of the incidents in January 2001, but they did not share details or specifics. They also told their parents, but no one called law enforcement.
J.C. contacted law enforcement to report the offenses "near the end of 2008." Indictments against Defendant were filed on 12 January 2009, with superseding indictments filed on 14 November 2011. At the time of trial, E.C. was twenty-nine years old, and J.C. was twenty-seven years old. Defendant was convicted on 17 February 2012 of one count of first-degree sex offense, three counts of first-degree rape, and five counts of indecent liberties with a child. Defendant appealed, and this Court reversed and remanded for a new trial in part, and found no error in part. State v. Walston, ___ N.C. App. ___, 747 S.E.2d 720 (2013) (Walston I). The State petitioned our Supreme Court for discretionary review, and review was granted. The Supreme Court reversed the portions of Walston I where this Court had granted Defendant a new trial, and remanded for this Court to address one specific issue. State v. Walston, ___ N.C. ___, ___, 766 S.E.2d 312, 319 (2014) (Walston II).
In Walston I, we determined that the trial court, in making its determination whether to admit certain expert testimony, had applied a version of N.C. Gen. Stat. § 8C-1, Rule 702 that had been superseded by amendment. Walston I, ___ N.C. App. at ___, 747 S.E.2d at 728. The amended version of Rule 702 applies to actions "arising on or after" 1 October 2011. 2011 N.C. Sess. Laws ch. 317, § 1.1; 2011 N.C. Sess. Laws ch. 283, § 4.2. We instructed the trial court to apply the amended version of Rule 702 upon remand should it again need to rule on the admissibility of expert testimony. Walston I, ___ N.C. App. at ___, 747 S.E.2d at 728. Upon remand from the Supreme Court to this Court, our Supreme Court directed: "On remand the Court of Appeals should address fully whether the trial court's application of the former expert witness standard was prejudicial error." Walston II, ___ N.C. at ___, 766 S.E.2d at 319. We conduct the review directed by our Supreme Court and determine that Defendant was not prejudiced by the application of the incorrect expert witness standard.
The admissibility of expert testimony is controlled by Rule 702 of the North Carolina Rules of Evidence. The prior version of Rule 702(a), applied by the trial court in this case, stated: "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." N.C. Gen. Stat. § 8C-1, Rule 702(a) (2009). The amended standard, which was in effect at the time of Defendant's trial, states in relevant part:
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:N.C. Gen. Stat. 8C-1, Rule 702(a) (2013). The amended standard is identical to the prior standard except for the words "or otherwise," which suggests that an expert may testify in a form other than opinion, and the addition of three additional requirements that must be met before the expert is allowed to testify at trial.
(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.
In this case, Defendant was seeking to present expert opinion testimony. The trial court, erroneously applying the prior version of Rule 702, ruled that the expert would not be allowed to testify. However, because the amended version of Rule 702 related to expert opinion testimony is identical to the prior version except for additional requirements, Defendant was not prejudiced by the application of the incorrect standard. The addition of the three new requirements make meeting the standard for admission of expert testimony more difficult, not less. Because Defendant failed to meet the prior standard, he could not have met the amended standard. We hold that Defendant was not prejudiced by the trial court's erroneous use of the prior version of Rule 702.
No prejudicial error.
Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).