State v. Lopez

An unpublished opinion of the North Carolina Court of Appeals does not constitute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

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-60

Filed: 1 September 2015

Wake County, No. 13 CRS 201434

STATE OF NORTH CAROLINA,

v.

PATRICIO GUILEBALDO LOPEZ.

Appeal by defendant from judgments entered 3 July 2014 by Judge Henry W.

Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 12 August

2015.

Attorney General Roy Cooper, by Special Deputy Attorney General William V.

Conley, for the State.

W. Michael Spivey, for defendant.

CALABRIA, Judge.

Patricio Guilebaldo Lopez (“defendant”) appeals from judgments entered upon

jury verdicts finding him guilty of three counts of first-degree rape of a child by an

adult and one count of sexual offense with a child by an adult. Defendant contends

the trial court committed plain error by admitting the following evidence: (1) an

expert’s opinion allegedly bolstering the victim’s credibility; (2) an officer’s allegedly

irrelevant and improper testimony; and (3) an unredacted pre-arrest video

STATE V. LOPEZ

Opinion of the Court

interrogation of defendant. We conclude defendant received a fair trial free from

error.

I. Background

The State presented evidence that Kate1 was ten years old when defendant,

her uncle and pastor, began sexually abusing her. Kate was friends with defendant’s

daughter and regularly spent the night at defendant’s house to visit. Kate testified,

and defendant later admitted—after being confronted by Kate in front of family and

friends who testified at trial—his sexual abuse of Kate occurred during these

sleepovers for approximately two years. According to Kate, defendant started

touching her by fondling her breasts and vagina. Eventually, the fondling escalated

to vaginal and anal intercourse during the times she slept at defendant’s house.

At trial, the State also called Holly Warner (“Nurse Warner”), who testified

that she examined Kate’s genitalia for evidence of sexual abuse approximately six

months after Kate reported defendant last penetrated her. At that time, Kate’s

medical examination yielded no physical evidence of penetration. Nurse Warner

testified the absence of physical evidence of penetration was common in children even

when multiple episodes of penetrative abuse had occurred. When asked if Kate

exhibited symptoms suggestive of penetrative abuse, Nurse Warner testified that

1 A pseudonym is used to protect the minor’s identity.

-2-

STATE V. LOPEZ

Opinion of the Court

Kate’s reported pain while urinating and the pain Kate experienced while defecating

were suggestive of vaginal and anal penetrative abuse.

The State’s investigating officer, Sergeant Walter Adams (“Investigator

Adams”), testified he had never seen a child sexual assault case with physical

evidence of abuse, especially with the time that elapsed between Kate’s last reported

episode of penetration and her medical examination. The State also published to the

jury a DVD recording of defendant’s interview on the day he was arrested, in which

Investigator Adams asked defendant multiple questions about the specifics of how he

had sexually abused Kate, in an attempt to determine if defendant had penetrated

Kate with his penis.

Defendant testified on his own behalf and admitted he had sexually abused

Kate, but he denied ever penetrating her with his penis. The jury returned a verdict

finding defendant guilty on all four counts, in which actual penetration by the male

sexual organ was an essential element of the offenses. The trial court sentenced

defendant to four consecutive sentences of a minimum of 300 months to a maximum

of 369 months for the rape offenses and sexual offense of a child to be served in the

North Carolina Department of Adult Corrections. Defendant appeals.

II. Analysis

Defendant argues on appeal that the trial court erred by admitting the

following: (1) the victim’s medical examiner’s opinion that, even in the absence of

-3-

STATE V. LOPEZ

Opinion of the Court

physical evidence of penetration, the victim reported symptoms suggestive of

penetration; (2) the investigating officer’s testimony that he had never seen a minor

sexual abuse case with physical evidence of abuse; and (3) the interrogating officer’s

statements he made during a pre-arrest video interrogation of defendant, that

implied the officer believed the victim was being truthful about defendant

penetrating her with his sexual organ and that defendant was not. Because

defendant did not object at trial to the evidence he challenges on appeal, this Court’s

review is for plain error. See N.C.R. App. P. 10(a)(4) (2013) (“In criminal cases, an

issue that was not preserved by objection noted at trial and that is not deemed

preserved by rule or law without any such action nevertheless may be made the basis

of an issue presented on appeal when the judicial action questioned is specifically and

distinctly contended to amount to plain error.”); see also State v. Goss, 361 N.C. 610,

622, 651 S.E.2d 867, 875 (2007).

A. Plain Error Standard of Review

“[Our Supreme] Court and the United States Supreme Court have emphasized

that plain error review should be used sparingly, only in exceptional circumstances,

to reverse criminal convictions on the basis of unpreserved error[.]” State v.

Lawrence, 365 N.C. 506, 517, 723 S.E.2d 326, 333 (2012) (citations omitted). “The

North Carolina plain error standard of review . . . requires the defendant to bear the

-4-

STATE V. LOPEZ

Opinion of the Court

heavier burden of showing that the error rises to the level of plain error.” Id. at 516,

723 S.E.2d at 333.

Our Supreme Court has elucidated the following framework for plain error

review:

For error to constitute plain error, a defendant must

demonstrate that a fundamental error occurred at trial. 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. Moreover, because

plain error is to be applied cautiously and only in the

exceptional case, the error will often be one that seriously

affects the fairness, integrity or public reputation of

judicial proceedings[.]

Id. at 518, 723 S.E.2d at 334 (internal citations, quotation marks, and brackets

omitted). Because “[a] prerequisite to our engaging in a ‘plain error’ analysis is the

determination that the [trial court's ruling] constitutes ‘error’ at all,” State v. Torain,

316 N.C. 111, 116, 340 S.E.2d 465, 468 (1986), we initially determine if the trial court

erred by admitting the challenged evidence and, if so, then determine whether any

error rose to the level of plain error.

B. Challenged Admission of Expert’s Testimony

Defendant contends the trial court committed plain error by admitting

testimony by the State’s expert that, although Kate’s medical examination was

unremarkable for physical evidence of penetration, Kate exhibited symptoms

suggestive of penetrative abuse. Specifically, defendant contends “[Nurse] Warner’s

-5-

STATE V. LOPEZ

Opinion of the Court

testimony that Kate had symptoms suggestive of penetration rests solely upon the

assumption that Kate’s statements about penetration and pain were true.” According

to defendant, “[Nurse Warner’s] testimony was nothing more than expert vouching

for the truth of the child’s statements.” We disagree.

Rule 702 of the North Carolina Rules of Evidence provides:

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 (2013). Rule 703 provides in pertinent part: “The

facts or data in the particular case upon which an expert bases an opinion or inference

may be those perceived by or made known to him at or before the hearing.” N.C. Gen.

Stat. § 8C–1, Rule 703 (2013). “In determining whether expert medical opinion is to

be admitted into evidence the inquiry should be . . . whether the opinion expressed is

really one based on the special expertise of the expert, that is, whether the witness

because of his expertise is in a better position to have an opinion on the subject than

is the trier of fact.” State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987)

(citation omitted). Our Supreme Court has held:

In a sexual offense prosecution involving a child victim, the

trial court should not admit expert opinion that sexual

abuse has in fact occurred because, absent physical

evidence supporting a diagnosis of sexual abuse, such

testimony is an impermissible opinion regarding the

victim’s credibility. However, an expert witness may

-6-

STATE V. LOPEZ

Opinion of the Court

testify, upon a proper foundation, as to the profiles of

sexually abused children and whether a particular

complainant has symptoms or characteristics consistent

therewith.

State v. Stancil, 355 N.C. 266, 266–67, 559 S.E.2d 788, 789 (2002) (per curiam).

At trial, Nurse Warner, the State’s expert witness, testified without objection.

As a Board Certified Nurse Practitioner and a certified Sexual Assault Nurse

Examiner, Nurse Warner testified she had performed over 300 medical evaluations

on children suspected of being sexually abused. When she examined Kate in

conjunction with another witness, Sara Kirk (“Ms. Kirk”), who conducted Kate’s

interview, Nurse Warner testified she found no visual signs of acute or chronic

trauma to Kate’s genitalia. When the State asked if this was unusual, Nurse Warner

replied: “It is not, in fact. The majority of children have a normal physical exam even

when they have been the victim of multiple episodes of penetrative abuse.” When the

State asked if Kate exhibited any symptoms suggestive of penetration, Nurse Warner

replied that she did, in that Kate described to her and Ms. Kirk that “it hurt when

she went number one and it hurt when she went number two[] . . . after the episodes

of abuse.”

Defendant challenges Nurse Warner’s testimony elicited from the following

exchanges:

[State]: And in speaking with Ms. Kirk, were there any

symptoms that were relayed to you that were suggestive of

penetration?

-7-

STATE V. LOPEZ

Opinion of the Court

[Nurse Warner]: Yes, the pain, when [Kate] described pain

with urination and pain with having a bowel movement

after an event.

[State]: How is that suggestive of penetration?

[Nurse Warner]: The medical research shows that there’s

a correlation between children who disclose penetrative

events and those children — a high proportion of children

who disclose penetration complain of some urogenital

symptom, such as pain with urination, pain with bowel

movement, soreness and/or bleeding.

Additionally, defendant challenges the following response by Nurse Warner

elicited during re-direct examination:

[State]: And the history provided by [Kate] of these abusive

events, was that consistent with symptoms that your

experience and research shows are symptoms of

penetration?

[Nurse Warner]: Yes.

In the instant case, based on her training and experience, Nurse Warner

certainly was in a better position than jurors to opine as to whether Kate’s reported

pain after an event was suggestive or symptomatic of penetrative abuse. Moreover,

contrary to defendant’s assertion, Nurse Warner never testified Kate in fact had been

sexually abused or penetrated by defendant. Therefore, defendant’s reliance on this

Court’s decisions in State v. Ryan, 223 N.C. App. 325, 734 S.E.2d 598 (2012); State v.

Delsanto, 172 N.C. App. 42, 615 S.E.2d 870 (2005); State v. Bush, 164 N.C. App. 254,

595 S.E.2d 715 (2004); and State v. Couser, 163 N.C. App. 727, 594 S.E.2d 420 (2004),

-8-

STATE V. LOPEZ

Opinion of the Court

are misplaced. Rather, Nurse Warner laid a proper foundation that “medical

research shows . . . a high proportion of children who disclose penetration complain

of some urogenital symptom, such as pain with urination, pain with a bowel

movement, soreness and/or bleeding[,]” before stating her opinion that Kate’s

reported pain urinating or defecating after episodes of vaginal or anal penetration

was “suggestive” or “symptom[atic]” of penetration. Moreover, this testimony could

assist the jury understand the symptoms of sexually abused children and help it

assess the credibility of Kate. Therefore, Nurse Warner’s testimony was not an

impermissible expert opinion regarding Kate’s credibility, and the trial court did not

err in admitting it. See State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 367 (1987)

(holding there was no error in admitting expert testimony describing the symptoms

of sexually abused children and stating their opinions that the symptoms of the victim

were consistent with abuse, noting: “[t]he fact that this evidence may support the

credibility of the victim does not alone render it inadmissible”). Therefore,

Defendant’s argument is overruled.

C. Challenged Admission of Investigator’s Testimony

Defendant next contends “[t]he trial court plainly erred by permitting

[Investigator] Adams to testify that he had never seen a case of child sexual abuse

where there was any physical evidence of penetration.” We disagree.

-9-

STATE V. LOPEZ

Opinion of the Court

Because defendant failed to cite any legal authority in support of this assertion

except Rules 401 and 402 of the North Carolina Rules of Evidence which pertain to

relevancy, our review is limited. See State v. Velazquez-Perez, __ N.C. App. __, __,

756 S.E.2d 869, 876 (2014) (“Failure to cite to supporting authority is a violation of

Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure, and constitutes

abandonment of th[e] argument.”), appeal dismissed, disc. review denied, 367 N.C.

509, 758 S.E.2d 881 (2014); see also Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596,

606, 615 S.E.2d 350, 358 (2005) (“It is not the duty of this Court to supplement an

appellant's brief with legal authority[.]”).

Rule 402 of the North Carolina Rules of Evidence provides that all relevant

evidence is admissible at trial. N.C. Gen. Stat. § 8C–1, Rule 402 (2013). “ ‘Relevant

evidence’ means evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” N.C. Gen. Stat. § 8C–1, Rule 401 (2013).

“This Court reviews questions of relevancy de novo, but accords deference to the trial

court's ruling.” State v. Glenn, 220 N.C. App. 23, 34, 725 S.E.2d 58, 67 (2012) (citing

State v. Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 223 (2011)).

At trial, Investigator Adams of the Wake County Sheriff’s Office, who

responded to and investigated Kate’s sexual assault accusations against defendant.

- 10 -

STATE V. LOPEZ

Opinion of the Court

Defendant challenges Investigator Adams’ statements elicited in the following

exchange:

[State]: And going back to your interview with the

defendant, you talked a lot about medical examinations

and penetration. Were you also present for [Nurse]

Warner’s testimony yesterday?

[Investigator Adams]: Yes, ma’am, I was.

[State]: And you heard her testimony about how it’s the

exception to have physical findings in these types of cases

with delayed reporting; is that correct?

[Investigator Adams]: Yes, ma’am.

[State]: Is that also consistent with your training and

experiences in the cases you’ve investigated involving

sexual assault?

[Investigator Adams]: Yes, ma’am. I have never — in my

career doing juvenile sex offences [sic], I’ve never had a

case come across where there was physical evidence,

especially not with the time that had elapsed.

In the instant case, Investigator Adams’ challenged testimony that, in his

experience, a normal physical examination was common in child sexual abuse

investigations, is evidence of consequence to whether defendant may have penetrated

Kate, even in the absence of physical findings of abuse. Put another way, Investigator

Adams’ testimony was relevant in that it tended to make more probable the fact that

Kate’s normal medical examination was not proof sexual abuse did not occur.

- 11 -

STATE V. LOPEZ

Opinion of the Court

Therefore, the trial court did not err in admitting the challenged testimony on the

grounds it was relevant, and defendant’s argument is overruled.

D. Challenged Admission of Unredacted Video Interrogation

Defendant’s final argument is that the trial court plainly erred by admitting

and publishing to the jury an unredacted pre-arrest video interview of defendant.2

According to defendant, Investigator Adams made statements during the interview

that were irrelevant and that constituted impermissible opinion evidence as to

defendant’s truthfulness and Kate’s credibility. Specifically, defendant challenges

what he described as a “six-minute monologue [by Investigator Adams] repeatedly

asserting that Kate was telling the truth about penetration and [defendant] was not.”

[Def Br. p. 31] We disagree.

“ ‘[I]t is fundamental to a fair trial that the credibility of the witness be

determined by the jury’ and that testimony ‘to the effect that a witness is credible,

believable, or truthful is inadmissible.’ ” State v. Castaneda, 215 N.C. App. 144, 149,

715 S.E.2d 290, 294 (2011) (quoting State v. Hannon, 118 N.C. App. 448, 451, 455

2 A DVD recording of the interrogation published to the jury was included in the record on

appeal. Although the DVD failed to depict video, the interrogation—which contained the challenged

statements—was clearly audible.

- 12 -

STATE V. LOPEZ

Opinion of the Court

S.E.2d 494, 496 (1995)). However, where statements made by an interrogating officer

are relevant and not unfairly prejudicial, they are admissible even if they contain

comments on a witness’s credibility that would otherwise be inadmissible. See State

v. Garcia, __ N.C. App. __, __, 743 S.E.2d 74, 81–82 (2013), disc. review denied, 367

N.C. 326, 743 S.E.2d 74 (2014); Castaneda, 215 N.C. App. at 151–52, 715 S.E.2d at

295–96; State v. Miller, 197 N.C. App. 78, 85–94, 676 S.E.2d 546, 550–56 (2009).

In Miller, the trial court admitted into evidence a DVD recording of the

defendant’s interview with police, without redacting the detectives’ questions posed

to the defendant which contained statements by non-testifying third parties that

implicated the defendant. 197 N.C. App. at 85–86, 676 S.E.2d at 550–51. During the

interrogation, the defendant conceded the truth of many statements attributed to the

non-testifying third parties during the interrogation. Id. at 87, 676 S.E.2d at 552.

The defendant in Miller argued the officer’s statements and the defendant’s responses

were improperly admitted because they were irrelevant. Id. at 86, 676 S.E.2d at 551.

This Court held the detectives’ statements were relevant, explaining:

The circumstances under which these concessions were

made were relevant to understanding the concessions

themselves and therefore to the subject matter of the case.

At other times, after being confronted with the purported

statements of others via the detectives’ questions,

defendant changed his story substantially. In these

instances, the questions were also relevant to explain and

provide context to defendant’s subsequent conduct of

changing his story. In sum, the detectives’ questions were

clearly relevant.

- 13 -

STATE V. LOPEZ

Opinion of the Court

Id. at 87, 676 S.E.2d at 552.

In Castaneda, an unredacted DVD interrogation of the defendant was played

for the jury, and the defendant challenged the admissibility of the interrogator’s

statements made during the interview that the defendant was being untruthful. 215

N.C. App. at 148–49, 715 S.E.2d at 294. In deciding this issue, the Castaneda Court

noted “[t]he majority of appellate courts of other jurisdictions that have considered

such statements have held them admissible based on the rationale that such

‘accusations’ by interrogators are an interrogation technique and are not made for

the purpose of giving opinion testimony at trial.” Id. at 149, 715 S.E.2d at 294

(citations omitted). This Court held that while an interrogator’s comments are not

always admissible, they were proper where, as there, the interrogator’s statements

provided context to the defendant’s inculpatory statements. Id. at 151, 715 S.E.2d at

295. The Castaneda Court explained:

Because [the detective’s] statements were part of an

interrogation technique designed to show defendant that

the detectives were aware of the holes and discrepancies in

his story and were not made for the purpose of expressing

an opinion as to defendant’s credibility or veracity at trial,

the trial court properly admitted the evidence.

Id. at 150–51, 715 S.E.2d 295 (citation omitted). However, the Castaneda Court

cautioned:

A suspect’s answers to police questioning are only

admissible to the extent that they are relevant. Thus, an

- 14 -

STATE V. LOPEZ

Opinion of the Court

interrogator’s comments that he or she believes the suspect

is lying are only admissible to the extent that they provide

context to a relevant answer by the suspect. Otherwise,

interrogator comments that result in an irrelevant answer

should be redacted.

Id. at 151, 715 S.E.2d at 295 (citation omitted).

In Garcia, a case where this Court similarly considered the admissibility of a

detective’s statements made during a pre-trial interrogation, this Court applied the

principles promulgated in Castaneda, and held admissible the detective’s statements

because they provided relevant context to answers by the defendant that related to

the credibility of his claim of self-defense, which was made for the first time at trial.

__ N.C. App. at __, 743 S.E.2d at 81–82. In that case, this Court addressed the

defendant’s argument that an interrogator’s statements were admissible as relevant

under Miller only if they provided “context” by causing a defendant to concede the

truth or change his or her story. Id. at __, 743 S.E.2d at 80. This Court concluded:

“Miller does not limit ‘context’ to those two situations. Rather, whether an

interrogator’s remarks provide relevant ‘context’ for a defendant’s responses depends

on the facts of each case.” Id. at __, 743 S.E.2d at 80.

In the instant case, Investigator Adams’ challenged remarks during

defendant’s pre-arrest interview were similar to the detectives’ statements in

Castaneda because they were designed to show defendant that Investigator Adams

was aware of the holes and inconsistencies in his story and provided context to

- 15 -

STATE V. LOPEZ

Opinion of the Court

defendant’s relevant responses. Although defendant never admitted to penetrating

Kate during the pre-arrest interview, after Investigator Adams’ increased pressure,

defendant eventually conceded he came as close as possible to penile penetration.

Indeed, Investigator Adams’ remarks eventually elicited the following relevant

exchange:

[Investigator Adams:] [Did] you have intercourse with her?

[defendant:] Not really, not really. Like, like, have sex?

Sex, no. No, no, not, not at that, not at point [sic], you

know.

Furthermore, after Investigator Adams’ pressing remarks, defendant

eventually conceded that he touched Kate’s vagina with his penis on six occasions,

that he put on a condom during three of those occasions, and that he ejaculated on all

six occasions. Defendant also conceded he touched Kate’s vagina with his hand ten

times. However, at trial, defendant testified he touched Kate’s vagina with his penis

only three times and her vagina with his hand only six times.

Since Investigator Adams’ statements were not made for the purpose of giving

opinion testimony as to a witness’s credibility, we conclude his statements were

properly admitted. Just as the Courts in Miller, Castaneda, and Garcia concluded

that the officer’s statements and the defendant’s responses were admissible if they

provided relevant context, in the instant case, Investigator Adams’ statements

provided context that is relevant in considering defendant’s responses and

- 16 -

STATE V. LOPEZ

Opinion of the Court

admissions about his sexual abuse of Kate, which bore directly on the credibility of

his claim that defendant never penetrated Kate with his penis.

The statements and responses elicited during the entire pre-arrest interview

were relevant for the jury to determine the extent that defendant sexually abused

Kate, including whether defendant actually penetrated Kate with his penis.

Therefore, it was not error for the trial court to admit these challenged statements.

III. Conclusion

Defendant has failed to demonstrate the trial court erred in admitting the

challenged evidence. Moreover, even absent the admission of the challenged

evidence, the State presented sufficient evidence for the jury to return a verdict

finding defendant guilty of all four offenses. Thus, defendant has not shown a

“different result probably would have been reached but for the [trial court’s] error” in

admitting the challenged evidence. See State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d

769, 779 (1997). We conclude defendant received a fair trial free from error.

NO ERROR.

Judges ELMORE and DILLON concur

Report per Rule 30(e).

- 17 -