State v. Meeks

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in a ccordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-340

NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

STATE OF NORTH CAROLINA

v. Jackson County

Nos. 13 CRS 146-47

CHRISTOPHER MEEKS

Appeal by Defendant from judgments entered 9 October 2013

by Judge Marvin P. Pope, Jr., in Jackson County Superior Court.

Heard in the Court of Appeals 27 August 2014.

Attorney General Roy Cooper, by Special Deputy Attorney

General Olga Vysotskaya, for the State.

Appellate Defender Staples S. Hughes, by Assistant

Appellate Defender Jason Christopher Yoder, for Defendant.

STEPHENS, Judge.

Evidence and Procedural Background

Defendant Christopher Meeks appeals from judgments entered

upon his conviction of two counts of indecent liberties with a

child. The evidence at trial tended to show the following: In

late 2010, Defendant began dating “Jan,” the mother of two

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daughters, “Elizabeth” and “Ellen.”1 In late December 2012, Jan

and her daughters, then ages eight and five, respectively, were

living with Defendant. Jan and Defendant had been fighting a

great deal and were in the process of ending their relationship.

On 23 December, Jan took a Xanax and fell asleep on the sofa.

At the girls’ grandmother’s home the next evening, Ellen told

her mother that the girls had showered with Defendant that

morning. Jan questioned Defendant over the phone about Ellen’s

report, and Defendant denied showering with the girls. Later

that night, the girls told Jan about an additional incident

which had occurred on 23 December:

Q. Okay. What did they tel1 you on the

ride home?

A. That [Defendant] had got out [of] the

shower the night before and was laying on

the bed, and [E11en] kept shaking him and

shaking him and like over and over and over.

And then that they touched his pee-pee.

Q. Okay. And did they tell you anything

else that had happened once they had touched

his pee-pee?

A. They told me that he had special pee

come out.

1

To protect the identities of the minor victims in this case, we

use pseudonyms to refer to the girls and their mother. See

N.C.R. App. P. 4(e).

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Jan reported the girls’ claims to their father and to the

Jackson County Sheriff’s Department (“JCSD”). Elizabeth and

Ellen were examined at Mission Children’s Hospital on 3 January

2013 by a team which included Cindy McJunkin, a registered

nurse; Melissa Lillie, a licensed clinical social worker; and

Dr. Cynthia Brown, who later testified as an expert in child

abuse pediatrics.

Defendant was indicted on four counts of indecent liberties

with a child, two stemming from the alleged events of 23

December 2012 and two based on the alleged incident on 24

December 2012. The jury acquitted Defendant of the 24 December

charges and found him guilty of those which occurred on 23

December. The trial court sentenced Defendant to consecutive

21-35 month terms in prison but suspended the second term upon

service of 36 months of supervised probation. Defendant gave

notice of appeal in open court.

Discussion

Defendant argues that the trial court erred in (1) allowing

Dr. Brown to vouch for the credibility of Ellen’s and

Elizabeth’s disclosures and (2) admitting as substantive

evidence hearsay statements the girls allegedly made to their

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mother, as well as Jan’s written statement to the JCSD which

contained additional hearsay statements. We find no error.

I. Vouching by Dr. Brown

Defendant first argues that the trial court improperly

allowed Dr. Brown to vouch for the credibility of Ellen’s and

Elizabeth’s disclosures. We disagree.

Specifically, Defendant contends that the following three

statements by Dr. Brown constituted improper vouching: that

Elizabeth (1) “certainly demonstrated knowledge of sexual acts

beyond her developmental level” and that Ellen (2) “falls into

the category of a child who is very much struggling with talking

about what happened[,]” and eventually (3) “did talk around it

and at the end acknowledged that some rules were broken and that

[Defendant] lied about it and that it was true. But she wasn’t

able to articulate the way her sister did what happened.”

Defendant objected to each of these statements at trial, and, on

appeal, asserts that this “testimony amounted to an

impermissible opinion regarding Ellen[’s] and Elizabeth’s

credibility and a tacit statement that Ellen and Elizabeth were

sexually abused by [Defendant].”

A. Standards of review

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We first note that, at trial, Defendant objected to Dr.

Brown’s statement about Elizabeth’s knowledge on what appears to

be hearsay grounds, not as an impermissible comment on the

girl’s credibility. Defendant’s trial counsel stated,

“Objection to what she would not have knowledge of.” Our Rules

of Appellate Procedure provide that, “[i]n 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.R. App. P. 10(a)(1). Where a defendant objects

to the admission of evidence on one basis in the trial court, he

may not argue that the admission of the evidence was erroneous

on another basis on appeal. See, e.g., State v. Tellez, 200

N.C. App. 517, 521, 684 S.E.2d 733, 736 (2009) (“It is well-

established that where a theory argued on appeal was not raised

before the trial court, the law does not permit parties to swap

horses between courts in order to get a better mount in the

appellate courts.” (citations and internal quotation marks

omitted)). In such cases, a defendant is limited to plain error

review. N.C.R. App. P. 10(a)(4). Further, where

an [evidentiary] issue is not preserved in a

criminal case, we apply plain error review.

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We find plain error only in exceptional

cases where, after reviewing the entire

record, it can be said the claimed error is

a fundamental error, something so basic, so

prejudicial, so lacking in its elements that

justice cannot have been done. Thus, the

appellate court must study the whole record

to determine if the error had such an impact

on the guilt determination, therefore

constituting plain error. Accordingly, we

must determine whether the jury would

probably have reached a different verdict if

this testimony had not been admitted.

State v. Hammett, 361 N.C. 92, 98, 637 S.E.2d 518, 522 (2006)

(citations and internal quotation marks omitted; emphasis in

original).

Defendant did object to Dr. Brown’s testimony about Ellen

as improper vouching, and we consider that question de novo.

See State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598,

affirmed, 356 N.C. 428, 571 S.E.2d 584 (2002). If we determine

that the testimony was vouching and thus erroneously admitted,

we must next consider whether it was prejudicial to Defendant.

Id. at 53, 637 S.E.2d at 599.

Error is prejudicial when there is a

reasonable possibility that, had the error

in question not been committed, a different

result would have been reached at the trial

out of which the appeal arises. The burden

is upon the defendant to show prejudice.

This Court has held that it is fundamental

to a fair trial that a witness’s credibility

be determined by a jury, that expert opinion

on the credibility of a witness is

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inadmissible, and that the admission of such

testimony is prejudicial when the State’s

case depends largely on the testimony of the

prosecuting witness.

Id. (citations and internal quotation marks omitted). In sum,

to prevail on his arguments regarding any of the challenged

testimony by Dr. Brown, Defendant must show that its admission

was both erroneous and likely altered the outcome of his trial.

B. Analysis

It is well settled that expert opinion

testimony is not admissible to establish the

credibility of the victim as a witness.

However, those cases in which the disputed

testimony concerns the credibility of a

witness’s accusation of a defendant must be

distinguished from cases in which the

expert’s testimony relates to a diagnosis

based on the expert’s examination of the

witness. With respect to expert testimony

in child sexual abuse prosecutions, our

Supreme Court has approved, upon a proper

foundation, the admission of expert

testimony with respect to the

characteristics of sexually abused children

and whether the particular complainant has

symptoms consistent with those

characteristics.

In order for an expert medical witness to

render an opinion that a child has, in fact,

been sexually abused, the State must

establish a proper foundation, . . .

physical evidence consistent with sexual

abuse. Without physical evidence, expert

testimony that sexual abuse has occurred is

an impermissible opinion regarding the

victim’s credibility.

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State v. Frady, __ N.C. App. __, __, 747 S.E.2d 164, 167

(citations, internal quotations marks, and brackets omitted),

disc. review denied, 367 N.C. 273, 752 S.E.2d 465 (2013).

However, “[t]he fact that this evidence may support the

credibility of the victim does not alone render it

inadmissible.” State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d

359, 367 (1987).

Defendant urges that Dr. Brown’s “testimony in Frady was

identical to her testimony in this case.” We disagree. Dr.

Brown also testified as an expert in child sexual abuse in

Frady, where she

stated that [the victim]’s “disclosure” was

“consistent with sexual abuse.” The alleged

“disclosure” was [the victim]’s description

of the abuse. . . . While Dr. Brown did not

diagnose [the victim] as having been

sexually abused, she essentially expressed

her opinion that [the victim] is credible.

We see no appreciable difference between

this statement and a statement that [the

victim] is believable. The testimony

neither addressed the characteristics of

sexually abused children nor spoke to

whether [the victim] exhibited symptoms

consistent with those characteristics.

Frady, __ N.C. App. at __, 747 S.E.2d at 167 (citation omitted;

emphasis added). Accordingly, we held that the admission of Dr.

Brown’s testimony was error. Id.

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Here, in contrast, Dr. Brown did not testify that either of

the girls’ “disclosures” or descriptions of what occurred were

consistent with sexual abuse. Rather, she testified about “the

characteristics of sexually abused children [and] spoke to

whether [Elizabeth and Ellen] exhibited symptoms consistent with

those characteristics.” See id. The following exchange

occurred during Dr. Brown’s direct examination:

Q. Now, have you observed in your practice

common characteristics in children that have

been sexually abused?

A. Yes.

Q. And have you read and researched and

had studies in children who are sexually

abused?

A. Yes.

Q. Now, ha[ve] your research and studies

regarding sexual abuse provided

characteristics that are exhibited by

children who have claims of sexual abuse?

A. Yes.

Q. And what types of claims are commonly

made?

A. So going, again, to how they tell when

they do decide to tell, and this is – I’m

going to go back to another study where they

looked at children who they knew had been

sexually abused because the perpetrator made

videotapes, so on the videotapes they could

see a number of sex acts that were performed

on the child. And when they compared what

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they knew had happened on the videotape to

what the child actually told, what they

found is that most of the children only told

a little bit about what happened and did not

tell every single act that had occurred to

them. So, again, that highlights it’s a

very difficult thing for them to tell, and

many times they only tell little bits of it

in the beginning. A sexually abused child

may have other behaviors that are of

concern. They may have sleeping problems.

They may regress in some other developmental

things like children who are toilet trained

may regress and have accidents. They may be

more fearful and clingy and won’t sleep

alone. Some children will exhibit

sexualized behaviors where they will act out

on peers and mimic sexual acts they have

experienced and, again, demonstrating

knowledge that they shouldn’t have at that

age that tells us that something has

happened to them.

Q. Do you have an opinion based upon your

knowledge, experience, training and in your

professional capacity as to whether

[Elizabeth] exhibited characteristics of

sexually abused children?

A. Yes.

Q. And what is that opinion?

A. That she demonstrated, in our

evaluation, characteristics that were

consistent with a child who had been

sexually abused.

Q. And what are some of those

characteristics?

A. She had problems sleeping, was clingy,

very emotional. After the — after she

started talking about what happened and had

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to experience — and she certainly

demonstrated knowledge of sexual acts beyond

her developmental level and was able to

demonstrate that during her interview. She

certainly had knowledge of what was

ejaculate, which was not something that she

would have knowledge of.

[DEFENSE COUNSEL]: Objection to what she

would not have knowledge of.

THE COURT: Objection overruled.

BY [THE STATE]:

Q. And how would you compare her ability

to disclose as opposed to [Ellen]’s ability

to talk?

A. So [Ellen], I think, falls into the

category of a child who is very much

struggling with talking about what happened.

[DEFENSE COUNSEL]: Objection; opinion on

credibility as to what happened.

THE COURT: Overruled.

[A.] She did talk around it and at the

end acknowledged that some rules were broken

and that [Defendant] lied about it and that

it was true. But she wasn’t able to

articulate the way her sister did what

happened.

(Emphasis added). Dr. Brown first (1) identified numerous

characteristics of sexually-abused children, including having

difficulty talking about what happened in complete detail and

“demonstrating knowledge that they shouldn’t have at that age”

and then (2) opined that both girls exhibited certain of those

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characteristics. This type of testimony is permitted under our

case law and does not constitute vouching for the credibility of

the victim. In other words, Dr. Brown did not testify that the

girls’ descriptions of what occurred were consistent with their

having been abused, which would “essentially [be an expression

of] her opinion that [Elizabeth and Ellen are] credible.” See

id. Instead, she testified about the behaviors and

characteristics of sexually-abused children and identified

specific behaviors and characteristics of Elizabeth and Ellen

which were consistent therewith, to wit, that Elizabeth

“certainly demonstrated knowledge of sexual acts beyond her

developmental level” and that Ellen “falls into the category of

a child who is very much struggling with talking about what

happened[,]” but “did talk around it and at the end acknowledged

that some rules were broken and that [Defendant] lied about it

and that it was true.” Because the testimony was properly

admitted, we need not consider its prejudicial impact. This

argument is overruled.

II. Hearsay statements

Defendant next argues that the trial court erred in

admitting as substantive evidence hearsay statements the girls

allegedly made to their mother, as well as Jan’s written

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statement to the JCSD which contained additional hearsay

statements. We disagree.

“‘Hearsay’ is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” N.C. Gen.

Stat. § 8C-1, Rule 801(c) (2013). In general, hearsay is not

admissible. N.C. Gen. Stat. § 8C-1, Rule 802. However, our

Rules of Evidence contain numerous exceptions to this general

rule by which hearsay may be properly admitted at trial.

Specifically, Defendant challenges the admission of the

following portions of Jan’s testimony on direct examination:

Q. Okay. On Christmas Eve of last year,

did one of the girls say something to you

that took you by surprise?

A. Yeah.

Q. What — what did [she] say?

[DEFENSE COUNSEL]: Objection for the truth

of the matter asserted, your Honor.

THE COURT: Overruled. Go ahead.

BY [THE STATE]:

Q. And what did they tell you or which

daughter talked to you?

A. [Ellen] told me that they had taken a

shower with [Defendant] that morning.

. . . .

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Q. Okay. So after you got off the phone,

did you talk with the girls anymore or what

did you do?

A. Yeah. I asked them if they were sure

and they told me yes.

[DEFENSE COUNSEL]: Objection; hearsay, move

to strike.

THE COURT: Overruled.

Q. Repeat what you said.

A. I just asked them if they was [sic]

sure that it happened.

Q. And what did they say?

A. Yes.

Q. And did they tell you something else

after talking to you about the shower?

[DEFENSE COUNSEL]: Objection; hearsay.

THE COURT: Overruled.

[A.] Yes.

BY [THE STATE]:

Q. What else?

A. On the ride home they did.

Q. Okay. What did they tell you on the

ride home?

A. That [Defendant] had got out [of] the

shower the night before and was laying on

the bed, and [Ellen] kept shaking him and

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shaking him and like over and over and over.

And then that they touched his pee-pee.

Q. Okay. And did they tell you anything

else that had happened once they had touched

his pee-pee?

A. They told me that he had special pee

come out.

[DEFENSE COUNSEL]: Move to strike.

Hearsay.

THE COURT: Overruled.

In addition, Defendant contends that Jan’s statement to the JCSD

given 25 December 2012 was hearsay and thus improperly admitted

over his hearsay objection:

At my mother’s house, the girls, [Ellen] and

[Elizabeth], told me that they had taken a

shower with [Defendant] that morning while I

was at work. Upon questioning them, they

told me that the night before while I was

asleep on the couch [Defendant] took a

shower and laid down on the bed. They told

me [Ellen] shaked [sic] him. He only had on

boxers. Then they told me they touched his

penis and his balls. When I asked why they

touched it, [Ellen] didn’t give an answer

and [Elizabeth] said [Ellen] made her. And

they also told me he had special pee come

out onto his stomach.

We first observe that, although Defendant made several

hearsay objections during the quoted portion of Jan’s testimony,

he did not object to her statement that the girls told her

“[t]hat [Defendant] had got out [of] the shower the night before

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and was laying on the bed, and [Ellen] kept shaking him and

shaking him and like over and over and over. And then that they

touched his pee-pee.” Defendant urges that his objections

constituted a “single objection to [a] line of questions.”

However, the transcript reveals that defense counsel never

requested, and thus the trial court did not note, a standing or

continuing objection to this line of questioning. See, e.g.,

State v. Goins, __ N.C. App. __, __, 754 S.E.2d 195, 201 (2014)

(quoting a defense counsel’s request for and a trial court’s

noting of the defendant’s standing objection to an entire line

of questioning).

Having failed to object to this testimony at trial,

Defendant is entitled only to argue plain error. See State v.

Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012).

However, Defendant does not specifically allege plain error in

his brief. N.C.R. App. P. 10(a)(4) (stating that, in order to

preserve an argument pursuant to plain error, the defendant must

“specifically and distinctly contend[]” the challenged ruling

amounted to plain error). Accordingly, Defendant’s argument as

to that portion of Jan’s testimony is deemed abandoned.

Further, where the substance of challenged evidence is admitted

without objection either before or after the challenge is made,

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a defendant loses the effect of his objection. See State v.

Collins, 50 N.C. App. 155, 158, 272 S.E.2d 603, 605 (1980)

(citation omitted). Thus, we do not consider Defendant’s

argument regarding the following portion of Jan’s written

statement which recounts the substance of her unchallenged

testimony: “Upon questioning them, they told me that the night

before while I was asleep on the couch [Defendant] took a shower

and laid down on the bed. They told me [Ellen] shaked [sic]

him. . . . Then they told me they touched his penis . . . .”

“When preserved by an objection, a trial court’s decision

with regard to the admission of evidence alleged to be hearsay

is reviewed de novo.” State v. Johnson, __ N.C. App. __, __,

706 S.E.2d 790, 797 (2011) (citation omitted). However,

“[e]videntiary errors are harmless unless a defendant proves

that absent the error a different result would have been reached

at trial.” State v. Ferguson, 145 N.C. App. 302, 307, 549

S.E.2d 889, 893 (citation omitted), disc. review denied, 354

N.C. 223, 554 S.E.2d 650 (2001).

Only two portions of Jan’s testimony and her written

statement were properly objected to as hearsay: (1) that Ellen

reported the girls had taken a shower with Defendant on the

morning of 24 December 2012 while Jan was at work and (2) that

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on the previous night, 23 December 2012, “special pee came out”

of Defendant’s penis.2 As noted supra, the jury acquitted

Defendant of the 24 December charges. Defendant cannot

demonstrate prejudice from the allegedly erroneous admission of

evidence regarding the incident the girls reported to have

occurred on 24 December 2012 as the jury apparently did not find

such evidence credible. As for the girls’ report that “special

pee came out” of Defendant’s penis on 23 December 2012, we do

not believe “that absent the [admission of this evidence] a

different result would have been reached at trial.” Id. The

indecent liberty Defendant was alleged to have taken with the

girls was inducing them to touch his penis. Whether Defendant

ejaculated after this touching was not relevant to the issues

before the jury, and therefore, Defendant cannot establish that

the allegedly erroneous admission of Jan’s testimony prejudiced

him.

Further, videotapes of Ellen’s and Elizabeth’s interviews

with Mission Children’s Hospital staff members were played for

the jury over Defendant’s objections.3 In Ellen’s interview, she

2

The State’s theory at trial was that this was a reference to

Defendant ejaculating.

3

On appeal, Defendant does not challenge the trial court’s

overruling of these objections.

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described, inter alia, showering with Defendant and Elizabeth,

Defendant laying down on a bed naked, and Defendant making her

do something she did not want to do. In her interview,

Elizabeth described Ellen laying on a bed with Defendant, who

was naked; touching Defendant’s penis at his request; and

Defendant “peeing . . . gray pee” and moaning. Elizabeth also

reported that Ellen had taken a shower with Defendant. In light

of this additional evidence that Defendant showered with the

girls and persuaded Ellen to touch his penis until he

ejaculated, we do not believe that any of the allegedly

inadmissible hearsay evidence altered the outcome of Defendant’s

trial. See id. Accordingly, this argument is overruled.

NO ERROR in part; NO PREJUDICIAL ERROR in part.

Judges CALABRIA and ELMORE concur.

Report per Rule 30(e).