State v. Grover

WALKER, Judge,

dissenting.

I respectfully dissent from the majority’s decision to award defendant a new trial on the basis of opinion testimony by the State’s expert witnesses.

The testimony at issue is that of Jeanne Arnts, a clinical social worker, and Susie Rowe, a pediatric nurse practitioner. Ms. Arnts was qualified as an expert in the field of child sexual abuse. She was employed by Duke University Medical Center in the Center for Child and Family Health (the Center). She testified that she had worked with sexually abused children for sixteen years and had given dozens of lectures during that time span concerning recognizing and responding to child sexual abuse. She further testified that after interviewing S twice and performing psychological tests on him, she came to the conclusion that he had been sexually abused. Notably, she testified that she reached this conclusion with *422 out waiting to learn the results of the physical tests because “there wasn’t anything that [S] said — or that [S] described, which would leave physical findings.”

Ms. Rowe, a pediatric nurse practitioner also with the Center, was qualified as an expert in the area of medical evaluation and diagnosis of child sexual abuse. She testified she had worked in the area of child abuse for more than ten years and had testified as an expert twenty-five to thirty times. She examined M and stated that there was an absence of physical evidence indicating abuse. When asked on direct examination what conclusions she had made as a result of her examination, Ms. Rowe testified that it was the conclusion of the Center that M was an abused child. Defendant did not object to this testimony but later objected when the Center’s report outlining its conclusion was introduced. Ms. Ruth Lee, a child therapist at the Center, was involved in the evaluation of M and contributed to the report.

I agree with the majority that experts may testify as to their opinion if they possess “scientific, technical or other specialized knowledge” which will assist the jury to “understand the evidence or to determine a fact in issue.” N.C.R. Evid. 702(a) (1999). However, this Court has held that, in the course of that testimony, experts may not testify as to the veracity of another witness. State v. Dick, 126 N.C. App. 312 , 485 S.E.2d 88 , disc. review denied, 346 N.C. 551 , 488 S.E.2d 813 (1997). Thus, in order for experts to properly assert their belief as to a fact in issue, they must be “in a better position to have an opinion than the jury.” State v. Oliver, 85 N.C. App. 1, 11 , 354 S.E.2d 527, 533 (1987).

The majority interprets these rules to prohibit an expert from testifying that a victim has been sexually abused unless there is physical evidence to support such a conclusion. In support of this holding, the majority relies on a series of cases which hold that in the absence of physical evidence, a medical doctor’s testimony that abuse has occurred is merely an affirmation of the victim’s version of events and thus an impermissible opinion as to the victim’s credibility. State v. Bates, 140 N.C. App. 743 , 538 S.E.2d 597 (2000); State v. Dick, 126 N.C. App. 312 , 485 S.E.2d 88 (1997); State v. Parker, 111 N.C. App. 359 , 432 S.E.2d 705 (1993); State v. Trent, 320 N.C. 610 , 359 S.E.2d 463 (1987). However, these are distinguishable from the case at bar. Each of the cases cited involves a medical doctor who conducted a physical examination of the victim but did not find physical evidence of the victim having been sexually abused. Thus, in the absence of physical *423 evidence of abuse, the medical doctor’s ability to evaluate psychological or emotional symptoms is no greater than that of the jury. On that basis, our courts have excluded such testimony.

The case of State v. Reeder, 105 N.C. App. 343 , 413 S.E.2d 580 (1992) supports the admissibility of Ms. Arnts’ testimony. The defendant appealed his conviction of first-degree sexual offense and taking indecent liberties with a three-year-old child and a four-year-old child. The defendant contended that opinion testimony by two clinical psychologists that these children were sexually abused was merely an improper assertion "as to the credibility of the children since no physical evidence of sexual abuse was admitted. Both children had been evaluated and treated by psychologists. This Court held a sufficient foundation was established to allow their expert opinions to be admitted into evidence. Id. at 350 , 413 S.E.2d at 584 .

Similarly in this case, the conclusion reached by Ms. Amts and the Center was the result of psychological evaluations undertaken for the purposes of detecting characteristics of sexual abuse in the victim’s demeanor, emotions and actions. The absence or existence of physical evidence of sexual abuse was not the basis for her conclusion. Thus, the fact that Ms. Amts’ conclusion may have corroborated the testimony of S does not make it inadmissible. Like the experts in Reeder , Ms. Amts was in a better position than the jury to evaluate the facts and testimony as a result of her training and experience. The record reveals the trial court properly determined a sufficient foundation had been established to allow the evidence from Ms. Arnts, Ms. Rowe and the report of the Center.

Furthermore, assuming arguendo that the trial court erred in admitting the testimony of Ms. Amts and Ms. Rowe, I do not believe such error was prejudicial. Defendant must show that a reasonable probability exists that, had such evidence been excluded, the jury would have reached a different conclusion. N.C. Gen. Stat. § 15A-1443(a) (1999). Even without the disputed testimony, the jury had sufficient evidence from which to conclude defendant committed the act of sexual abuse. Here, we have the testimony of M who was fourteen years old and S who was thirteen years old when they were seen by the experts at the Center. Their testimonies are consistent with their previous descriptions of the sexual abuse by defendant. Therefore, I find the trial court did not commit reversible error.