State v. Gaspar

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavo red, but may be permitted in

accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of

A p p e l l a t e P r o c e d u r e .

NO. COA13-970

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Wayne County

Nos. 11 CRS 055331–32

GUSTAVO GASPAR,

Defendant.

Appeal by defendant from judgments entered 2 November 2012

by Judge Arnold O. Jones, II in Wayne County Superior Court.

Heard in the Court of Appeals 17 February 2014.

Roy Cooper, Attorney General, by Kathleen N. Bolton,

Assistant Attorney General, for the State.

Mark Montgomery, for defendant–appellant.

MARTIN, Chief Judge.

Defendant Gustavo Gaspar was charged in true bills of

indictment with two counts of statutory rape of a thirteen-year-

old child, one count of statutory sexual offense of a thirteen-

year-old child, one count of felonious rape of a child by an

adult offender, and one count of taking indecent liberties with

a child. He appeals from judgments entered upon jury verdicts

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finding him guilty of the charged offenses. We find no

prejudicial error.

The evidence presented at trial tended to show that, from

the time that defendant’s biological daughter, M.G., was eleven

years old until she was thirteen years old, defendant sexually

abused her. M.G. testified that defendant had vaginal

intercourse with her “more than five times,” and also made her

perform oral sex on him. M.G. said that defendant made her

perform these acts in the family residence that she shared with

defendant, her stepmother, and her younger sister and brother,

as well as in the fenced-in shelter on the property where a

horse was kept (“the horse barn”), in and around the garage

located about twenty feet from the residence where defendant did

general mechanic work, and at a motel.

M.G. testified that the first time defendant sexually

abused her was at nighttime in the family’s residence, the

evening before the family was planning to go to the beach. M.G.

testified that she was asleep in her bed when she awoke to

defendant touching her “[i]n [her] private parts.” M.G. said

that defendant was drunk at the time and that her sister was

asleep in the next bed in the same room while defendant fondled

her.

On another occasion, defendant told M.G. to go with him so

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that they could clean up trees and debris that had fallen around

the horse barn during a recent storm. After they finished

picking up the debris, the two went inside the horse barn and

defendant “asked [M.G.] if [she] wanted to have sex with him.”

M.G. testified that she told defendant “no, because [she] was on

[her] period.” She testified that, in response, defendant “told

[her] to give him oral sex.” She further testified that, “when

he was done he told [her] to get out of the little barn,” which

she did, and said that defendant stayed there. M.G. testified

that while she had been in the horse barn with defendant, her

stepmother was inside the residence and her brother and sister

were playing outside.

M.G. also testified about a time when defendant was working

outside and told M.G. to go behind a pick-up truck that was

parked outside the garage; when she did so, defendant told her

he wanted to have sex with her. M.G. told him “no, because

[her] [step]mom was inside and [she] didn’t want to do it like

in front of like——outside. [She] just didn’t want to do it.”

Defendant told her “not to be scared,” and told her that if she

had sex with him, that “he’ll give [her] something that [she]

needed.” Defendant then pulled down his pants, unbuttoned her

pants, put on a condom, and had vaginal intercourse with her.

When he was finished, defendant told M.G. to go inside the house

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and he stayed by the pick-up truck. When she went back in the

house, M.G. did not tell her stepmother, because she said she

was afraid and “didn’t want to get out of [her] family” and she

“wanted [the family] to be together.” The next day, defendant

gave M.G. twenty dollars, which M.G. testified she received in

exchange for having sex with defendant behind the truck the day

before.

On another occasion, after school, while M.G. was working

for defendant as a mechanic in his garage, and while her younger

sister and brother were still at school, defendant told M.G.

that he wanted to have sex with her. M.G. testified that when

she refused, defendant said he would give her something if she

had sex with him. Then defendant put on a condom and had

vaginal intercourse with M.G. in the corner of the garage. M.G.

said that when it was over, defendant told her to go outside and

defendant stayed in the garage. M.G. testified that defendant

kept a toolbox that contained condoms and pornographic videos in

the garage. M.G. testified that she did not watch the videos,

but that defendant had told her that “if [she] wanted to watch

[the videos] to see how to do it because [she] told him [she]

don’t know how to do that stuff. And he told [her] to watch

that movie then.”

M.G. also testified that defendant took her to a motel

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twice to have sex; once after she finished school for the day,

and once during school hours. On the occasion that defendant

took M.G. to the motel during school hours, defendant picked her

up from school at around 2:00 p.m. and told her that they were

going to the auto parts store. Instead, defendant drove to a

gas station, bought a soda for M.G. and a box of condoms for

himself, and then drove to a motel. M.G. did not remember the

name of the motel, but reported that it was a one-level motel on

William Street. Before they got out of defendant’s vehicle,

defendant told her to put on his hoodie so that no one would see

her face as she entered the motel. Once they were in the motel

room, defendant told M.G. to go to the bathroom to “wash up,”

and when she was finished in the bathroom, defendant went into

the bathroom and took a shower. Defendant then emerged from the

bathroom without any clothes on and told M.G., who was also

undressed, to get on the bed. He asked her if she wanted to put

the condom on for him; when she refused, he put the condom on

himself and had vaginal intercourse with M.G. Afterwards,

defendant told M.G. to go to the bathroom again to “wash up” and

to get dressed, which she did. Defendant told M.G. to put the

hoodie back on so that no one would see her face as she left the

motel and got into his vehicle.

M.G. testified that defendant often made her perform sexual

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acts in exchange for giving her permission to go somewhere she

wanted to go or to get something that she wanted to have. On

one occasion, M.G. testified that she wanted to go to a dance

that was being held at her school, but that defendant “told

[her] if [she] wanted to go [she] had to give him something,”

which she said was “sex.”

M.G. reiterated throughout her testimony that, for the two

years that defendant sexually abused her, she did not tell

anyone because she was afraid and “didn’t want to get away from

[her] family.” When questioned by defense counsel as to why she

did not report the sexual abuse and why she wanted to stay with

her family when that meant she would also be staying with her

father——the man who had been sexually abusing her for two years—

—M.G. simply said, “But he’s my dad.” Detective Sergeant Tammy

Mozingo with the Wayne County Sheriff’s Office testified that

M.G. told her that “she loved her dad and she just wanted him to

stop having sex with her. That’s the only thing that she

wanted.” M.G. also told the detective sergeant that “her dad

had told her in the past that if she told anybody that they

wouldn’t have anywhere to live, she wouldn’t have anywhere to

live.” She told Detective Sergeant Mozingo that she just

“wanted a normal life.”

According to her testimony, when M.G. was thirteen, a

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friend invited her to go to her house. M.G. declined the

invitation, telling the friend that she knew “[t]hat if [she]

went to her house[, M.G.’s] dad would have want[ed] something

back from [her].” M.G. then told her friend about being

sexually abused by defendant and, the next day, M.G. visited her

school’s health center to report the abuse.

Amanda Whaley Anderson, a nurse who works at the school’s

health center called the Wish Center, testified at trial that,

in the early morning hours of 25 October 2011, M.G. visited the

Wish Center and said that she needed to talk to someone. Ms.

Anderson said that M.G. “said that her dad had been sexually

abusing her over the past year, couple of years. And that she

just wanted it to stop. And she didn’t know what else to do.”

She said: “[M.G.] had told a friend of hers because she wanted—

—she told me she wanted——she was asked to go to this friend’s

house.” “And she didn’t want to go because she knew what she

would have to do and the friend was the one that encouraged her

to come talk to me.”

Ms. Anderson invited the school guidance counselor to be

present during her conversation with M.G. to have “a second set

of ears” to hear M.G.’s statement. Ms. Anderson testified that

M.G. went into detail about the sexual abuse perpetrated against

her by defendant. She testified that M.G. reported that

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defendant “had been asking her for favors any time she would get

minutes on her cell phone or the privilege of going to a school

dance or something like that that she would have to perform

sexually for him.” Ms. Anderson testified that, based on the

account given to her by M.G., the abuse occurred “a lot.”

Ms. Anderson testified that M.G. told her about an incident

when defendant “signed her out of school and carried her to a

motel in Goldsboro and had sex with her.” Ms. Anderson’s

testimony mirrored M.G.’s account during M.G.’s direct

testimony, including that M.G. thought she was being taken out

of school to get auto parts but, instead, defendant drove her to

a motel, and that this visit to the motel was M.G.’s second with

defendant. Ms. Anderson also testified that defendant used

condoms when he had sex with M.G., and that he kept condoms in

the garage, along with pornographic videos. When asked by the

prosecutor whether in the two years that she had known M.G. as a

student that she would “characterize her as truthful,” Ms.

Anderson responded, without objection from defense counsel,

“Yes.” Ms. Anderson testified that she documented everything

that M.G. told her, and reported the information to the Wayne

County Department of Social Services (“DSS”).

The State also presented the testimony of numerous

witnesses, including: Luis Antonio Carrasquillo, Jr., a social

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worker supervisor with the Wayne County DSS; Latonya Ann

Woodard, an investigator with the Wayne County DSS; Maria–

Angelica Taylor, a physician’s assistant employed by the TEDI

BEAR Children’s Advocacy Center; Andora Copeland–Hankerson, a

forensic interviewer at the TEDI BEAR Children’s Advocacy

Center; Donna Anderson, a bookkeeper with M.G.’s middle school;

Natvarlal Parmar, the owner of the Carolina Motel; and Detective

Larry Norwood Mitchell, Detective Sergeant Robert D. Chunn, and

Detective Sergeant Mozingo, each with the Wayne County Sheriff’s

Office. With the exception of the school bookkeeper, the motel

owner, and Detective Sergeant Chunn, who testified about

executing the search warrant, each witness recounted how M.G.

disclosed to them personally or by way of written statement the

same incidents of sexual abuse revealed in M.G.’s direct

testimony, sometimes in greater detail than fourteen-year-old

M.G. provided while seated in the courtroom in front of the

jury.

For instance, Mr. Carrasquillo testified that, on the day

that M.G. reported the abuse to Ms. Anderson, he went to the

school to interview M.G. and the guidance counselor present

during M.G.’s meeting with Ms. Anderson. Mr. Carrasquillo

recounted M.G.’s report about the event when defendant picked

her up from school and took her to the motel and had vaginal

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intercourse with her. Mr. Carrasquillo corroborated M.G.’s

account about wearing defendant’s hooded sweatshirt so that she

would not be recognized, about washing in the bathroom, and

about defendant being on the bed “on top of her” and “put[ting]

his penis in her for about ten minutes.” Further, Mr.

Carrasquillo and Ms. Taylor also both testified about M.G.’s

disclosure that, when she lived in Mexico at the age of eight or

nine, her paternal grandfather also “touched her private parts.”

In addition, the bookkeeper from M.G.’s middle school

authenticated State’s Exhibit 3, which was the school’s sign

in/sign out log from 10 October 2011, and established that M.G.

was signed out from school by defendant at 2:18 p.m. that day.

Mr. Parmar then authenticated State’s Exhibit 4, which was the

customer registration card completed for a room rented on

10 October 2011 by defendant at Mr. Parmar’s motel, which is a

one-level motel on North William Street in Goldsboro, North

Carolina.

Ms. Taylor further testified that, although her examination

of M.G. did not reveal physical indications of sexual abuse, the

absence of such evidence “neither supports nor discounts the

concerns raised by [M.G.’s] clear and consistent disclosure of

sexual abuse. The lack of physical findings is not unexpected

given the time since the last contact occurred and due to

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[M.G.’s] development.” Ms. Taylor also testified that, during

her physical examination of M.G., she found “lighter pigmented

scars, linear scars,” which M.G. “told [her] that she marked

every time her father did something to her.”

When executing a search warrant on defendant’s garage, in

several toolboxes, detectives found three unopened condoms and

X-rated videos, including one titled “Barely 18 # 32,” and a

case for another video titled “Back Shot Queens Gone Wild.”

They also found a .22 caliber revolver with the serial number

filed off of it. After executing the search warrant, Detective

Mitchell and Detective Sergeant Mozingo brought defendant to the

sheriff’s office for questioning. Once in the station, they

advised defendant of his Miranda rights, and defendant

acknowledged his understanding of those rights and demonstrated

his intent to waive those rights. Although defendant “initially

denied having sexual intercourse with his daughter,” after being

shown a copy of the sign in/sign out log from the school, and a

copy of the receipt from the motel, Detective Mitchell said that

defendant described the incident that occurred at the Carolina

Motel. Defendant admitted that “they stopped at a store where

he bought some condoms, and then they proceeded out to the

Carolina Motel, where he engaged in sexual intercourse and oral

sex with his daughter, [M.G.]” Detective Mitchell said that

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defendant also described an incident “that occurred inside the

garage behind his house.” Defendant told the detective that “he

was on a roller, which is a device that he uses to roll under

cars that he’s working on,” and that “he was laying on that and

he had [M.G.] sit on top of him, and played with her boobies,

and they had sexual intercourse and he penetrated her there.”

Defendant also described another incident that occurred “[j]ust

adjacent to and slightly behind the garage is a——he called it a

horse barn, and then they——he said there was an incident ah——

where they had sex rather inside the horse barn.” At the

conclusion of the thirty- to forty-five-minute interview,

defendant signed his name to the statement transcribed by

Detective Sergeant Mozingo, and told Detective Mitchell that

“[h]e wanted [the detectives] to understand that it was never

forced on [M.G.]; that she wanted him to do that.” Detective

Sergeant Mozingo also testified that, according to M.G.,

defendant told M.G. that she looked like her deceased biological

mother and said that “that’s the reason why he done [sic] these

things to her.”

The defense offered testimony from defendant’s younger

brother, Emilio Gaspar, and defendant’s wife and M.G.’s

stepmother, Imelda Juarez, and then called defendant to testify

on his own behalf. Emilio Gaspar testified that he “would

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always try to hug [M.G.], but lately she was, like, distracted.

[He] would try to give her some advice, but she begin [sic] to

be a little rebellious.” He also testified that M.G. “changed

boyfriends frequently,” and that he believed his brother and did

not believe M.G. Emilio Gaspar also testified that he did not

think M.G. showed “symptoms” of someone who had been raped or

sexually abused, in his opinion, because

she would have her little short shorts or

little short shirts and always right around

there, and like a normal girl would do, not

like someone who was embarrassed or was kind

of shy. I mean, if she had been molested by

my brother, I mean, I think there would have

been a little bit embarrassment or maybe she

wouldn’t want to come near there. She was

always there. And she was helping with the

mechanic work, and she did it voluntarily.

Voluntarily; it wasn’t just because she was

forced to or something. So I don’t know why

this accusation is now here.

Mrs. Juarez testified that M.G. never accepted her as the new

wife of her father and said M.G. never listened to her. Mrs.

Juarez also testified that, although she first believed M.G.

when she accused defendant of sexually abusing her, she said she

later changed her mind and testified that she now no longer

believes M.G.’s allegations.

Defendant testified on his own behalf. Defendant testified

that the X-rated movies and the condoms were just items that he

“would find in cars and things and [would keep them]——to see if

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the people were going to come and pick them up.” Defendant also

gave testimony that he signed his name in three places on the

Miranda form without knowing what the form was,1 but said that

Detective Sergeant Mozingo did explain his rights to him and

said that he did understand them. Nonetheless, despite

defendant’s admission that law enforcement officers explained

his Miranda rights to him, that he signed a form in three places

at the sheriff’s station, and that when he was questioned by

investigators, he “didn’t speak with them,” “[he] remained

silent,” defendant appears to have alternatively testified that

he has never been interviewed or been asked any questions by

anyone identifying themselves as law enforcement officers about

M.G.’s allegations prior to trial. Defendant also testified

that the reason he brought M.G. to the motel was that he was

introduced by the motel owner, Mr. Parmar, to a woman named

Shantel who lived at the motel and who wanted someone to work on

1

Defendant was assigned two interpreters during the course of

the trial. However, the trial court questioned defendant’s need

for these interpreters, based on defendant’s animated and

lengthy discussions with defense counsel in English, as well as

his ability to respond to questions before the interpreters

finished interpreting them. Nonetheless, the court continued to

allow the interpreters to participate in the proceedings.

Although defendant’s case-in-chief, as well as the State’s and

defendant’s rebuttal evidence, raised challenges to and concerns

regarding defendant’s ability to understand both written and

conversational English, because none of the issues on appeal

concern this matter, we do not include any further recitation of

the evidence related to this issue.

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her vehicle, and said that defendant and M.G. went to the motel

“to pick up this car,” which is why, defendant explained, that

M.G. knew about the motel.

At the close of the State’s evidence, defendant moved to

dismiss the charges based on his assertion that the State had

not met its burden to establish the ages of both M.G. and

defendant at the time the offenses were alleged to have been

committed, which motions were denied. At the close of all of

the evidence, defendant moved to dismiss the charges based on

his assertion that there was insufficient evidence that the

offenses were perpetrated on the dates identified in the

indictments, which motions were also denied. The jury found

defendant guilty of each of the charged offenses. The court

sentenced defendant to the following consecutive terms of

imprisonment: 300 months to 369 months for felonious rape of a

child by an adult offender; 240 months to 297 months for each of

the two counts of statutory rape of a thirteen-year-old child;

240 months to 297 months for statutory sexual offense of a

thirteen-year-old child; and 16 months to 20 months for taking

indecent liberties with a child. Defendant appeals.

_________________________

Defendant first contends the trial court committed plain

error when it allowed Ms. Woodard, an investigator with the

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Wayne County DSS, to testify that, after conducting her

investigation into the allegations that defendant sexually

abused M.G., she agreed that she would have characterized such

allegations as substantiated. Defendant argues that such

testimony constituted impermissible opinion vouching for M.G.’s

credibility, and directs our attention to State v. Giddens,

199 N.C. App. 115, 681 S.E.2d 504 (2009), aff’d per curiam,

363 N.C. 826, 689 S.E.2d 858 (2010), to support his argument.

We conclude the admission of the testimony did not constitute

plain error.

“For error to constitute plain error, a defendant must

demonstrate that a fundamental error occurred at trial.” State

v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “To

show that an error was fundamental, a defendant must establish

prejudice——that, after examination of the entire record, the

error ‘had a probable impact on the jury’s finding that the

defendant was guilty.’” Id. (quoting State v. Odom, 307 N.C.

655, 660, 300 S.E.2d 375, 378 (1983)).

In Giddens, this Court considered whether the trial court

committed plain error by allowing a child protective services

investigator with the Buncombe County Department of Social

Services to testify that her investigation had substantiated the

defendant as the perpetrator of the sexual abuse alleged by two

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minor children. Giddens, 199 N.C. App. at 117, 119, 681 S.E.2d

at 506, 507. At trial, the defendant failed to object to this

testimony, but argued that the “testimony was admitted in error

because it resolved the factual issue of [d]efendant’s guilt for

the jury by expressing an opinion on [the complainants’]

credibility.” Id. at 119, 120, 681 S.E.2d at 507. Because “the

conclusion reached by DSS was not based solely on the children’s

accounts of what happened, and thus, was not merely a

corroboration of their testimony,” id. at 120, 681 S.E.2d at

507, and because “DSS conducted its own investigation to

determine whether any of the children’s caregivers were

participants in the alleged abuse,” id. at 120–21, 681 S.E.2d at

507, this Court determined that “[t]he cumulative effect of [the

investigator’s] testimony was to tell the jury that based upon a

thorough investigation, DSS concluded that of the children’s

three caregivers, [d]efendant had sexually abused them.” Id. at

121, 681 S.E.2d at 508. Since “[o]ur case law has long held

that a witness may not vouch for the credibility of a victim,”

id., we concluded that “[the investigator’s] testimony was

clearly improper, as she testified that DSS had concluded

[d]efendant was guilty of the alleged criminal acts,” id., and

“it was error to admit [the investigator’s] testimony regarding

the conclusion reached by DSS.” Id. at 122, 681 S.E.2d at 508.

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Consequently, we held that it was plain error to admit the

investigator’s testimony and that the defendant was entitled to

a new trial because, “without [the investigator’s] testimony,

the jury would have been left with only the children’s testimony

and the evidence corroborating their testimony”——although such

was “strong evidence”——and “our prior case law instructs that

this alone is insufficient to survive plain error review of the

testimony of a witness vouching for the children’s credibility.”

Id. at 123, 681 S.E.2d at 509.

We agree with defendant that, in the present case, as in

Giddens, Ms. Woodard’s testimony——which was admitted by the

trial court without objection by defendant——that DSS had

substantiated the allegations of sexual abuse against defendant

was not properly admitted. Nonetheless, unlike Giddens, “absent

the challenged testimony, the present case involved more

evidence of guilt against the defendant than simply the

testimony of the child victim and the corroborating witnesses.”

See State v. Sprouse, 217 N.C. App. 230, 242, 719 S.E.2d 234,

243 (2011), disc. review denied, 365 N.C. 552, 722 S.E.2d 787

(2012). Here, in addition to M.G.’s detailed testimony and the

numerous corroborative witnesses presented by the State, the

State also presented evidence from two law enforcement officers

that defendant gave a detailed confession——the voluntariness of

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which defendant does not challenge on appeal——about three

separate occasions during which defendant had vaginal

intercourse with M.G., fondled her breasts, put his mouth on her

vagina, and had her put her mouth on his penis. The State also

admitted into evidence the sign in/sign out log dated 10 October

2011 from M.G.’s middle school, as well as a customer

registration card from the same date for a motel room rented by

defendant, which corroborated M.G.’s direct testimony and

defendant’s confession that defendant took M.G. out of school

and brought her to the motel to have sexual intercourse with

her. Thus, we conclude that defendant’s confession, along with

the unchallenged independent evidence establishing that

defendant took M.G. out of school and then rented a room at Mr.

Parmar’s motel on the same day, coupled with the extensive

testimony by M.G. and by the other corroborating witnesses, the

jury probably would have reached the same verdict even without

the challenged testimony of Ms. Woodard. See Sprouse, 217 N.C.

App. at 243, 719 S.E.2d at 244. Thus, although the trial court

erroneously admitted the challenged testimony of Ms. Woodard,

“we are not convinced the error tilted the scales against

defendant, and therefore does not rise to the level of plain

error.” See id.

Defendant next contends the trial court committed plain

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error when it allowed Ms. Anderson, the nurse who works at

M.G.’s school’s health center, to testify without objection as

to M.G.’s truthfulness. Defendant asserts that Ms. Anderson was

“not formally qualified” as an expert, and that her testimony

constituted inadmissible lay opinion testimony. We disagree.

“The credibility of a witness may be attacked or supported

by evidence in the form of reputation or opinion as provided in

Rule 405(a), but [this evidence is] subject to . . . limitations

. . . .” N.C. Gen. Stat. § 8C-1, Rule 608(a) (2013). The

limitations to this Rule are: “(1) the evidence may refer only

to character for truthfulness or untruthfulness, and

(2) evidence of truthful character is admissible only after the

character of the witness for truthfulness has been attacked by

opinion or reputation evidence or otherwise.” Id.

In the present case, defendant challenges the following

testimony from Ms. Anderson:

Q. In the time that you knew Maria, would

you characterize her as truthful?

A. Yes.

Our review of the context of this exchange shows that Ms.

Anderson was not asked whether it was her opinion that M.G. was

truthful about her allegations that she was sexually abused by

defendant. Rather, Ms. Anderson was asked simply whether,

during the two years that she had known M.G. and had seen her

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once or twice weekly, she knew M.G. to be “a truthful child.”

Additionally, Ms. Anderson’s now-challenged testimony was

offered only after defense counsel had attacked M.G.’s character

for truthfulness during his cross-examination of her, which

attacks were sufficient to permit the presentation of evidence

as to her truthfulness in accordance with the second limitation

of N.C.G.S. § 8C-1, Rule 608(a). See, e.g., State v. Hall,

98 N.C. App. 1, 10, 390 S.E.2d 169, 174 (1990) (determining

that, because “[o]n cross-examination of the victim, the

defendant’s attorney repeatedly attempted to impeach her by

asking her about prior inconsistent statements made to her

doctor, her mother, and at the preliminary hearing,” such cross-

examination of a child alleging she had been raped by her

stepfather “constituted an attack on her credibility such that

the State could then present reputation or opinion evidence as

to the victim’s reputation for truthfulness”), rev’d on other

grounds, 330 N.C. 808, 412 S.E.2d 883 (1992). Accordingly, we

conclude that the trial court neither erred, nor committed plain

error, when it allowed Ms. Anderson to offer the now-challenged

testimony.

Finally, defendant contends the trial court committed plain

error when it charged the jury by using the term “victim” to

describe the complaining witness. We disagree.

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Defendant concedes that the court instructed the jury by

using the same language as that which is set forth in the North

Carolina Pattern Jury Instructions for the charged offenses,

which use the term “victim” to identify the person against whom

the charged offenses are alleged to have been committed.

Defendant also concedes that defense counsel did not object to

the court’s use of this term in its instructions to the jury at

trial, and that any review of this unpreserved issue must be

reviewed for plain error on appeal.

This Court has already concluded that “it is clear from

case law that the use of the term ‘victim’ in reference to

prosecuting witnesses does not constitute plain error when used

in instructions.” State v. Henderson, 155 N.C. App. 719, 722,

574 S.E.2d 700, 703, appeal dismissed and disc. review denied,

357 N.C. 64, 579 S.E.2d 569 (2003); see also State v.

Richardson, 112 N.C. App. 58, 67, 434 S.E.2d 657, 663 (1993)

(“The word ‘victim’ is included in the pattern jury instructions

promulgated by the North Carolina Conference of Superior Court

Judges and is used regularly to instruct on the charges of

first-degree rape and first-degree sexual offense.”), disc.

review denied, 335 N.C. 563, 441 S.E.2d 132 (1994).

Nevertheless, defendant urges this Court to conclude that the

trial court’s use of this term in its instruction was

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prejudicial in accordance with our decision in State v. Walston,

__ N.C. App. __, __, 747 S.E.2d 720, 726–28 (2013) (concluding

the trial court’s use of the term “victim” in its instruction to

the jury was prejudicial error), disc. review denied, __ N.C.

__, __ S.E.2d __ (No. 023P14) (filed Mar. 6, 2014).

Our Court recently considered the same argument on appeal

in State v. Jones, __ N.C. App. __, __, 752 S.E.2d 212, 214–15

(2013), disc. review denied, __ N.C. __, 755 S.E.2d 616 (2014).

In Jones, we determined that Walston was distinguishable

because, unlike in the defendant in Walston, the Jones defendant

“made no . . . request to modify the language in the instruction

and did not raise any objection to the use of this term at

trial,” see Jones, __ N.C. App. at __, 752 S.E.2d at 215, “there

were [no] disputed issues of fact as to whether the sexual

offenses even occurred,” see id., and the Jones defendant

“ma[de] no specific argument that he ha[d] suffered any

prejudice as a result of the trial court’s uncontested use of

the term ‘victim’ in its jury instructions.” See id.

In the present case, as in Jones, defendant did not object

at trial to the use of the term “victim” in the jury

instructions or request to modify the language of the pattern

jury instructions, and does not make any specific argument that

he suffered any prejudice, aside from a general assertion that

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the use of the term was an “inadvertent bolstering of the

complainants’ [sic] credibility.” We recognize that the defense

elicited testimony from Ms. Taylor, the physician’s assistant

with the TEDI BEAR Children’s Advocacy Center who examined M.G.,

that her examination did not reveal physical indications of

sexual abuse, which is similar to one of the facts in Walston

that this Court considered when determining that the use of the

term “victim” was prejudicial error. See Walston, __ N.C. App.

at __, 747 S.E.2d at 727. Nevertheless, we are not persuaded

that this alone is sufficient to overcome the distinctions

between the present case and Walston. Thus, as we did in Jones,

we conclude that Walston is distinguishable from the present

case, see Jones, __ N.C. App. at __, 752 S.E.2d at 215, and hold

that the trial court did not commit plain error when it used the

term “victim” in its instruction to the jury.

No prejudicial error.

Judges ELMORE and HUNTER, JR. concur.

Report per Rule 30(e).