State v. King

NO. COA13-1402

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

STATE OF NORTH CAROLINA

v. Buncombe County

No. 11 CRS 488

JOSHUA NEAL KING

Appeal by defendant from judgment entered 14 January 2013

by Judge Alan Z. Thornburg in Buncombe County Superior Court.

Heard in the Court of Appeals 21 May 2014.

Attorney General Roy Cooper, by Assistant Attorney General

LaShawn S. Piquant, for the State.

M. Alexander Charns for defendant-appellant.

BRYANT, Judge.

Where a physician testified to common characteristics she

had observed in sexually abused children, the trial court did

not err in allowing her testimony, and where the trial court

denied the State’s motion to hold defense counsel in criminal

contempt, defendant did not receive ineffective assistance of

counsel.

On 12 September 2011, a Buncombe County Grand Jury indicted

defendant on thirteen counts of indecent liberties with a child,

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two counts of rape of a child by an adult, and eleven counts of

statutory rape. Each indictment alleged that the victim was

Kimberly1, a girl age twelve or thirteen years old depending on

the date of the offense. A jury trial commenced during the 7

January 2013 Criminal Session of Buncombe County Superior Court,

the Honorable Alan Z. Thornburg, Judge presiding.

The evidence presented tended to show that Kimberly was

born in 1997 and that she had two younger brothers. From the

time she was six months old, Kimberly lived with her paternal

grandmother. In 2009, when she was twelve years of age,

Kimberly left her grandmother’s residence and went to live with

her mother and two brothers. Kimberly’s mother was living with

defendant Joshua Neal King, whom she later married. Living with

her mother provided Kimberly with more freedom: “I got to go out

with my friends a lot more. They got to come over a lot more. I

used to drink and do drugs.” Kimberly testified that she and

her mother used drugs together.

On the evening of 16 March 2010, Kimberly’s mother was at

work; Kimberly was at home with defendant and her two brothers.

A. . . . I went to bed earlier that night

and woke up and [defendant] was on top

of me, and I had all my clothes off and

1

Pursuant to Rule 3.1(b) of our Rules of Appellate Procedure, we

use a pseudonym to protect the identity of the juvenile.

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I was in their bed.

. . .

Q. Do you remember what he had on?

A. A shirt.

. . .

Q. And what happened?

A. He did what I said he did.

Q. Okay. Is that when you said that he put

his penis in your vagina?

A. Yes.

Q. What did you do?

A. I yelled for my brother.

Kimberly testified that defendant had her perform sexual acts on

many occasions from March through August 2010.

Detective David Shroat, working in the Criminal

Investigations Unit of the Buncombe County Sheriff’s Department,

became involved with the case on 30 August 2010 after receiving

a report from the Department of Social Services. Detective

Shroat testified that per the report, “[Kimberly’s] mother was

working nights and [Kimberly] went to bed. And at some point in

time, she woke up and [defendant] was on top of her, and she

screamed.” Detective Shroat spoke with defendant on 21

September 2010. After having his statement transcribed and read

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back to him, defendant verbally acknowledged his words and

signed his name to the statement. The statement was admitted at

trial.

Per his statement, defendant “drunk probably a twelve pack”

one night; he told the children to go to sleep; and he went to

bed. At some point, defendant thought his wife had gotten into

the bed. “I discovered it was [Kimberly] . . . I told her to go

back to her room. . . . I did rub on her under the blanket with

my penis. I don’t know if I penetrated her or not.” Defendant

did not admit to any other instance of sexual contact or

activity with Kimberly.

Pediatrician Dr. Sarah Monahan-Estes, working at the

Mission Children’s Hospital, examined Kimberly on 29 August

2012. Dr. Monahan-Estes testified to the results of her

examination and in part to common characteristics she had

observed in sexually abused children.

Following the close of the evidence, the jury found

defendant not guilty on twenty-five charges and found defendant

guilty on one count of indecent liberties with a child occurring

on 16 March 2010. The jury also found as an aggravating factor

that “Defendant took advantage of a position of trust or

confidence . . . to commit the offense.” The trial court

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entered judgment in accordance with the jury verdict and

sentenced defendant to an active term of 16 to 20 months.

Defendant appeals.

________________________________

On appeal, defendant raises the following issues: (I)

whether the trial court erred by allowing a physician to

testify; and (II) whether defendant received ineffective

assistance of counsel.

I

Defendant first argues that the trial court erred in

allowing Dr. Monahan-Estes, the pediatrician who examined

Kimberly following her report of sexual assaults, to testify as

to Kimberly’s veracity. Specifically, defendant contends that

Dr. Monahan-Estes’ written report, which was published to the

jury, explained why Kimberly did not initially tell the whole

truth and that Dr. Monahan-Estes’ testimony presumed Kimberly

was telling the truth and presumed a history of sexual abuse.

We disagree.

Defendant cites the opinion of this Court in State v. Ryan

for the proposition that “[o]ur appellate courts have

consistently held that the testimony of an expert to the effect

that a prosecuting witness is believable, credible, or telling

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the truth is inadmissible evidence.” ___ N.C. App. ___, ___,

734 S.E.2d 598, 604 (2012) (citation and quotations omitted),

rev. dismissed, 366 N.C. 433, 736 S.E.2d 188, and writ denied,

rev. denied, 366 N.C. 433, 736 S.E.2d 189 (2013).

Initially, we note that Dr. Monahan-Estes was not formally

qualified as an expert. To address this discrepancy, we find

guidance in the opinion of our Supreme Court in State v.

Aguallo, 322 N.C. 818, 370 S.E.2d 676 (1988), wherein the

defendant challenged the admission of testimony from two

witnesses addressing the typical characteristics of sexually

abused children. One witness, a Department of Social Services’

case worker, having been employed as such for fourteen years,

had investigated between twenty-five and thirty cases of child

sexual abuse. The victim confided in the witness about the

abuse the defendant had inflicted. The second witness, a

Sheriff’s Department juvenile investigator, had been employed as

such for seven years and had investigated over one hundred cases

of child sexual abuse. Id. at 820—21, 370 S.E.2d at 677. The

defendant argued on appeal that the evidence was improper

because “the witnesses were not qualified as experts and []

their testimony fail[ed] as lay opinion because it was not

rationally based on the perceptions of the witness.” Id. at

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820, 370 S.E.2d at 677. Our Supreme Court reasoned that “[i]t

[was] evident that the nature of their jobs and the experience

which [the witnesses] possessed made them better qualified than

the jury to form an opinion as to the characteristics of abused

children.” Id. at 821, 370 S.E.2d at 677. The Court went on

to hold that “the finding that [each] witness [was] an expert is

implicit in the trial court's ruling admitting the opinion

testimony.” Id.; see also N.C. Gen. Stat. § 8C-1, Rule 702(a)

(2013) (“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 . . . .”).

Dr. Monahan-Estes’ testimony began with her educational

background, including where she completed her undergraduate

studies, her medical school education, where she completed her

pediatric residency, and where she completed an additional two-

year fellowship in child abuse pediatrics – during which she saw

only sexually abused, physically abused, or neglected children.

Dr. Monahan-Estes testified that she currently worked in a child

abuse clinic seeing children who are suspected of having any

history of sexual abuse, physical abuse or neglect. During the

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course of the investigation into allegations of sexual abuse,

Dr. Monahan-Estes interviewed Kimberly.

At trial, Dr. Monahan-Estes testified that when a child is

suspected of suffering from abuse, “you want to assure that they

don't have any injuries or issues that are resulting because of

that abuse that need medical attention or mental health

attention.” Dr. Monahan-Estes testified to the typical process

she goes through in performing a child medical evaluation, with

specific regard to an evaluation done where sexual abuse is

suspected. She also testified to the limitations of the

examination and common behaviors she has observed in her

experience.

[W]e very rarely see kids who [sic] the

abuse or trauma has occurred and then they

immediately tell someone so we can examine

them. . . . In the cases that I typically

see in clinic, these disclosures have

occurred days, weeks, months, years after

the sexual abuse has occurred . . . .

. . .

[W]e see all kinds of behavioral and

emotional

dysfunction or disorders in children who

have a history of sexual abuse. These kids

typically have an increased frequency of

being depressed or having mental health

issues, substance abuse. They tend to act

out, aggressive behavioral issues in school.

They have increased risk of school failure.

These children typically get in trouble with

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the law, delinquency, they'll be arrested,

they sexually act out. There's a whole host

of issues that are increased in children who

have a history of sexual abuse.

We hold that the trial court’s qualification of Dr.

Monahan-Estes as an expert in pediatric medicine as well as the

evaluation and treatment of child sexual abuse is implicit in

the trial court’s admission of her testimony regarding common

behaviors in children who have suffered from sexual abuse.

In challenging the admission of Dr. Monahan-Estes’ written

report into evidence, defendant contends that Dr. Monahan-Estes

“explained why [Kimberly] didn’t initially tell the entire

truth.” We first note that defendant did not object to the

admission of the report at trial. Thus, the admission of this

evidence would be subject to plain error review only, and upon

the request of defendant. Defendant has failed to request plain

error review of this issue. Further, defendant has failed to

make Dr. Monahan-Estes’ report a part of the record on appeal.

Therefore, we are precluded from considering the contents of the

report, and we must consider defendant’s argument abandoned.

See N.C. R. App. P. 9(a) (“In appeals from the trial division of

the General Court of Justice, review is solely upon the record

on appeal . . . .”); Neal v. Craig Brown, Inc., 86 N.C. App.

157, 161, 356 S.E.2d 912, 915 (1987) (“This Court may not

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consider documents which have not properly been made a part of

the record on appeal.” (citing Elliott v. Goss, 254 N.C. 508,

119 S.E.2d 192 (1961))).

Defendant challenges Dr. Monahan-Estes’ testimony as

presuming that Kimberly was telling the truth. Specifically,

defendant challenges the following:

Q. . . . In your training and experience,

are there reasons that you have personally

observed that children may not always tell

all of the allegations to start?

. . .

THE WITNESS: Yes. It's very common that a

child either does not initially disclose or

only partially discloses.

One of the biggest issues is frequently the

alleged perpetrator is a parent or a

parental figure or someone that they love

and trust, so they don't want to get them in

trouble. They're ashamed, they're afraid,

they've been threatened or bribed to try not

to disclose.

If another family member who is not the

alleged perpetrator, but say another parent

or another parental figure doesn't believe

the child, then they'll frequently encourage

them not to tell, or children sometimes –

there will be negative consequences to their

disclosure. So they tell a little bit about

what happens and then all kinds of things

come into play. They're taken out of their

home, they're taken away from their

siblings, they're taken away from both of

their parents. And they see these negative

consequences and they don't want them to

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continue, so they'll only tell little bits

of what happened.

In State v. Hall, our Supreme Court, analyzing its prior

opinion in State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987),

stated

that expert testimony on the symptoms and

characteristics of sexually abused children

is admissible to assist the jury in

understanding the behavior patterns of

sexually abused children. Furthermore, [the

Court] allowed evidence that a particular

child’s symptoms were consistent with those

of sexual or physical abuse victims, but

only to aid the jury in assessing the

complainant's credibility.

State v. Hall, 330 N.C. 808, 817, 412 S.E.2d 883, 887 (1992)

(citation omitted); compare State v. Stancil, 355 N.C. 266—67,

559 S.E.2d 788, 789 (2002) (“In a sexual offense prosecution

involving a child victim, the trial court should not admit

expert opinion that sexual abuse has in fact occurred . . . such

testimony is an impermissible opinion regarding the victim's

credibility. However, an 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.” (citing State v. Hall,

330 N.C. 808, 818, 412 S.E.2d 883, 888 (1992)) (citations

omitted)).

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We view Dr. Monahan-Estes’ testimony as properly providing

common characteristics she observed in sexually abused children

and a possible basis for those characteristics, and not opinion

testimony on Kimberly’s credibility. Therefore, as there was no

error by the trial court in allowing the testimony of Dr.

Monahan-Estes, defendant’s argument is overruled.

II

Next, defendant argues he was denied effective assistance

of counsel. Specifically, the trial court’s denial of defense

counsel’s request for an evening recess following defense

counsel having to defend himself against a criminal contempt

charge prejudiced defense counsel’s ability to represent

defendant. We disagree.

“The right to effective assistance of counsel includes the

right to representation that is free from conflicts of

interest.” State v. Choudhry, 365 N.C. 215, 219, 717 S.E.2d

348, 352 (2011) (citations and quotations omitted). “When a

defendant attacks his conviction on the basis that counsel was

ineffective, he must show that his counsel's conduct fell below

an objective standard of reasonableness.” State v. Augustine,

359 N.C. 709, 718, 616 S.E.2d 515, 524 (2005) (quoting State v.

Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 248 (1985)).

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In order to meet this burden defendant must

satisfy a two part test.

First, the defendant must show that

counsel's performance was deficient.

This requires showing that counsel made

errors so serious that counsel was not

functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment.

Second, the defendant must show that

the deficient performance prejudiced

the defense. This requires showing that

counsel's error were so serious as to

deprive the defendant of a fair trial,

a trial whose result is reliable.

State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)

(quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed.

2d 674, 694 (1984)); see also, e.g., Choudhry, 365 N.C. at 219,

717 S.E.2d at 352 (“[W]hen the claim of ineffective assistance

is based upon an actual, as opposed to a potential, conflict of

interest . . . a defendant may not be required to demonstrate

prejudice under Strickland to obtain relief.” (citations

omitted)).

Defendant’s argument is predicated on the assertion that

defense counsel was burdened by a conflict of interest; however,

the record does not reveal such a conflict.

On 9 January 2010, in the morning of the third day of

trial, the prosecutor filed a motion requesting that defense

counsel be held in criminal contempt as well as a corresponding

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motion for a mistrial following defendant’s cross-examination of

the victim the day before. In its motion, the prosecutor

contended that following an in camera hearing to address the

admissibility of evidence in light of Rule 412, “Rape or sex

offense cases; relevance of victim's past behavior,” and the

trial court’s exclusion of the evidence proffered, defendant

proceeded to question Kimberly about her prior sexual encounters

in violation of the court’s order. A hearing on the State’s

motion was held that morning. A review of the trial transcript

reveals a brief hearing. The State presented its motion;

defense counsel introduced an attorney who would represent him;

defense counsel’s attorney notified the court that he was

unfamiliar with any of the underlying facts – including the

allegations in the State’s motion, and asked that if the trial

court was “seriously considering” the motion that the hearing be

postponed. The State consented to a postponement of the

hearing; at which point, the trial court declared that the

State’s motion was one for direct contempt and that the court

had reviewed the transcript of defense counsel’s examination.

The trial court ruled that defense counsel “did not act

willfully or with gross negligence, and the acts were not done

deliberately and purposefully in violation of the law without

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regard or justification or excuse, and [this court] fails to

find him in contempt of court.” The trial court subsequently

denied the State’s motion for a mistrial. Following this

denial, defense counsel asked for an adjournment: “I'm very

offended by this and it's sort of knocked me off my game, if you

will. And I don't want to be sitting here thinking about my

issues about this when I'm supposed to be giving my best

interest to my client.” Defense counsel requested an

adjournment until the next morning “to kind of calm down and get

over this[.]” At 11:38 a.m., the trial court called a recess

until 2:00 p.m.

We see no conflict of interest between trial counsel and

defendant. Furthermore, defendant neither points to an error

committed as a result of trial counsel’s participation in the

criminal contempt hearing nor asserts what burden would have

been alleviated by an overnight recess. Even though counsel was

the subject of a contempt hearing during his representation of

defendant, counsel was found to be not in contempt of court.

There is nothing in the record to support defendant’s assertion

of a conflict of interest. On the contrary, defendant was found

not guilty on twenty-five of twenty-six charges considered by

the jury. Defense counsel’s zealous representation of

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defendant, clearly revealed in the record, can in no way be

deemed ineffective based on a conflict of interest or any other

theory. Defendant has failed to show that defense counsel’s

performance fell below an objective standard of reasonableness.

See Braswell, 312 N.C. at 561—62, 324 S.E.2d at 248.

Accordingly, we overrule defendant’s argument.

No error.

Judges CALABRIA and GEER concur.