State v. Giddens

BRYANT, Judge

dissenting.

Because I do not believe the admission of testimony by DSS child protéctive services investigator Kay Kent amounted to plain error, I respectfully dissent.

[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case 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, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.

State v. Thornton, 158 N.C. App. 645, 649 , 582 S.E.2d 308, 310 (2003) (citation omitted).

Under our North Carolina Rules of Evidence, section 8C-1, Rule 701,

[i]f the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

N.C. Gen. Stat. § 8C-1, Rule 701 (2009).

In State v. O’Hanlan, 153 N.C. App. 546 , 570 S.E.2d 751 (2002), the defendant challenged the admission of a law enforcement officer’s testimony as improper opinion testimony tantamount to expert testimony. Id. at 561 , 570 S.E.2d at 761 . The defendant argued that the officer improperly bolstered the credibility of the complaining witness by testifying that she had been assaulted, raped, and kidnapped. *125 Id. On re-direct examination by the State, following up on cross-examination questions regarding why the officer did not perform a more thorough investigation, the officer testified as follows:

I had a victim that survived her attack. She could positively identify her assailant, the person that kidnapped, raped, and brutally beat her. If she had died ... I would have done more fingerprinting, more checking under fingernails, more, fiber transfer, because I wouldn’t have known who done it. But she positively told me who done it and I arrested him.

Id. at 562 , 570 S.E.2d at 761 .

This Court held that the officer was not offering his opinion that the victim had been assaulted, kidnapped, and raped by the defendant but rather was explaining the course of his investigation. In accordance with Rule 701, the testimony was rationally based upon the officer’s perception and was helpful to the jury in understanding the investigative process. Id. at 562-63 , 570 S.E.2d at 761-62 .

Here, DSS investigator Kent offered lay witness testimony which defendant argues was tantamount to expert opinion testimony that improperly bolstered J.B. and V.G.’s credibility. Kent testified that when interviewing children she uses a forensic model that does not lead the child, and she establishes that the child knows the difference between a truth and a lie. Kent testified that her role, when speaking with children about sexual abuse, is “[t]o see if we get statements that are consistent with the report to see if they disclose any information of concern. With sexual abuse a big piece of that is consistency.” After testifying to the interview process followed with J.B. and V.G., as well as the substance of those individual interviews and consistent with the trial testimony of both J.B. and V.G., Kent testified as follows:.

State: And as a result of your investigation with both of these children, did you fill out a North Carolina Case Decision Summary/Initial Case Plan?

Kent: Yes, that’s a mandated form.

State: Okay, and on that where it lists parent/guardian/custodian would you read out who — who’s listed underneath that?

*126 Kent: Amanda G[], Misty Burch who were the housemates at that time. Also, [defendant]. He was the father and stepfather of the children.

You list each of the children and all of the caregivers involved and then there’s a perpetrator section which we go down through each of the caregivers listed and we make a decision to substantiate or not substantiate as far as their being a perpetrator.

State: Okay, and did you make a decision on Amanda G[]?

Kent: We unsubstantiated.

State: And what about Misty Burch?

Kent: We unsubstantiated.

State: And what about [defendant]?

Kent: We substantiated.

State: And was that on both children?

Kent: Yes.

State: And if you’ll explain, please, what substantiated means?

Kent: It means that we found evidence throughout the course of our investigation to believe that the alleged abuse and neglect did occur.

On cross-examination, defendant questioned Kent about the steps taken to insure the veracity of the childrens’ statements. In response, Kent stated “[w]e use a forensic interview model that is used Statewide in order to gather information from children that is not leading which they- — we look at consistency and we interview everyone separately.” Defendant next asked how Kent arrived at the decision to substantiate defendant as a perpetrator and found there was not evidence to substantiate Amanda or Misty Burch.

We look at case history being involved and I was investigating these specific allegations that were reported and then I also do a global assessment. I mean I don’t just go in and ask about allegations. I ask about anything from their mental needs being *127 met in the home, supervision. Based on all the information I gathered during the course of the investigation I never had any information to substantiate that Misty or Amanda were abusive or neglectful.

DSS investigator Kent testified in accordance with Rule 701 based on her perception, in a manner that was helpful to the jury with regard to the process of her DSS investigation. This testimony — in which she explained that the word “substantiated” written on a standardized DSS form mandated for use in a DSS investigation of child sexual abuse — does not amount to error, or error so fundamental that justice cannot have been done. In fact, much of the testimony about which defendant now complains as amounting to plain error was elicited by defendant on cross examination of Kent.

The majority opinion in analyzing prejudice focuses solely on Kent’s testimony, testimony that the majority says, “the jury most likely gave . . . more weight than a lay opinion.” Although acknowledging that Kent was not admitted as an expert witness, the majority nevertheless discusses the probable impact of her testimony as if it were indeed expert testimony.

This is not an exceptional case. This is not a case of fundamental or grave error which amounts to a miscarriage of justice as required in a plain error review. See Thorton, 158 N.C. App. at 649 , 582 S.E.2d at 310 . Even assuming arguendo that it was error, lack of objection by defendant notwithstanding, to admit Kent’s testimony that DSS had substantiated abuse of the child victims by defendant, my review of the record does not reveal that the error alleged had a probable impact on the jury’s verdict of guilty.

Here, two child victims, J.B. and V.G., took the witness stand and testified fully and completely to the acts of sexual abuse committed upon them by defendant three years before. J.B., fourteen years old at the time of trial, testified to being sexually and physically abused by defendant on a daily basis for about two years. V.G., ten years old at the time of trial, testified that defendant committed forcible sexual acts upon her at least two times over the period of a year. Several other witnesses provided strong corroborating testimony regarding the sexual abuse of the children. Further, medical expert testimony was introduced to show that while there was a lack of physical injuries, this was not uncommon, especially when, as in the present case, children do not immediately disclose the abuse and the injuries heal over time.

*128 In light of the clear, competent, and compelling evidence put before the jury, including evidence elicited by defendant regarding how Kent reached her decision on substantiating a case of child sexual abuse, even if the admission of Kent’s testimony was error, “it did not rise to the level of plain error.” Stancil, 355 N.C. at 267, 559 S.E.2d at 789. Accord Locklear, 320 N.C. 754 , 360 S.E.2d 682 ; Teeter, 85 N.C. App. 624 , 355 S.E.2d 804 ; and Freeland, 316 N.C. 13 , 340 S.E.2d 35 .

For the reasons stated herein, I would find no error in the judgment of the trial court.