two judges concurring that there was no plain error where in addition to testimony of the victim and corroborating testimony, there was evidence of prior sexual assaults by defendant, evidence that victim exhibited characteristics consistent with sexual abuse, and the victim and defendant had been treated for the same sexually transmitted disease at about the same time
How later courts described this case
- two judges concurring that there was no plain error where in addition to testimony of the victim and corroborating testimony, there was evidence of prior sexual assaults by defendant, evidence that victim exhibited characteristics consistent with sexual abuse, and the victim and defendant had been treated for the same sexually transmitted disease at about the same time
- defendant convicted of three counts of incest with his daughter that occurred when victim visited defendant “every weekend” between the ages of twelve and seventeen and had intercourse with defendant “every single time” she visited
Written by the judges who cited it.
The opinion
GREENE, Judge,
concurring in the result.
Although I agree with the result reached by the majority, the trial court’s admission of the expert opinion that “A” was in fact sexually abused was error. The admission of this testimony, however, did not constitute plain error.
As the majority recognizes, an expert in a child abuse prosecution “cannot base [her] conclusions solely on the [child’s] statements that [she has] been abused.” State v. Stancil, 146 N.C. App. 234, 240 , 552 S.E.2d 212, 215 (2001), modified and aff'd, 355 N.C. 266 , 559 S.E.2d 788 (2002). Further, “in the absence of physical evidence to support a diagnosis of sexual abuse, expert testimony that sexual abuse has in fact occurred is not admissible because it is an impermissible opinion regarding the victim’s credibility.” State v. Dixon, 150 N.C. App. 46, 52 , 563 S.E.2d 594, 598 (2002), aff'd, 356 N.C. 428 , 571 S.E.2d 584 (2002) (per curiam).
In this case, Hebert, an expert witness, 1 testified “A” was in fact sexually abused. Specifically, she testified “A“ ‘s relationship issues “almost certainly ... at least in part relate back to the sexual abuse [“A”] experienced.” This opinion was based on statements given to Hebert by “A.” Indeed, Hebert testified she based her opinion on the responses she received from questions posed to “A.” There is no testimony Hebert based her opinion of any physical evidence of sexual abuse. It was thus error to admit Hebert’s opinion that “A” was sexually abused. Dixon, 150 N.C. App. at 52 , 563 S.E.2d at 598 ; see State v. Grover, 142 N.C. App. 411, 418 , 543 S.E.2d 179, 183 (2001), aff'd, 354 N.C. 354 , 553 S.E.2d 679 (2001) (per curiam).
The admission of this expert testimony, however, does not rise to the level of plain error. The remaining evidence in this case, excluding the improper expert testimony, included testimony from: “A” that she had been sexually abused by Defendant; Defendant’s ex-wife *20 about learning from “A” of the abuse; and Defendant’s ex-wife’s two other children who recounted, without objection, prior instances of abuse by Defendant. The evidence also included testimony from Hebert that victims of sexual abuse by a primary caretaker often exhibit problems with trust, confuse boundaries between themselves and others, have decreased self-esteem, and do not respect themselves and that “A” exhibited all these characteristics. Further, there was evidence Defendant and “A” were both treated for the same sexually transmitted disease at about the same time. Thus, even if the improper expert testimony is not considered, the remaining evidence in this case is such that it is not probable the jury would have reached a different result. See State v. Perkins, 154 N.C. App. 148, 152 , 571 S.E.2d 645, 648 (2002).
. It is not disputed that Hebert was an expert witness in the field of child abuse.