State v. Parks

386 S.E.2d 748 (1989)

STATE of North Carolina v. Henry Clarence PARKS.

No. 8915SC291.

Court of Appeals of North Carolina.

December 19, 1989.

*750 Attorney Gen. Lacy H. Thornburg by Asst. Atty. Gen. David R. Minges, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Mark D. Montgomery, Raleigh, for defendant-appellant.

WELLS, Judge.

We note at the outset that defendant failed to discuss his second, third, sixth, and eleventh assignments of error in the brief. These assignments of error are therefore deemed abandoned. N.C.R. App.P., Rule 28. We further note that defendant's discussion contained in part C, sections 3-4, of his first argument is directed to matters not properly preserved under N.C. Gen.Stat. 15A-1446 and N.C.R.App.P., Rule 10. Therefore, we do not consider it. Defendant consolidates his remaining assignments of error into three arguments challenging respectively the court's qualifying two witnesses as expert witnesses, the court's failure to instruct the jury on a character trait of defendant, and the court's denial of defendant's motion to dismiss. We find no error.

Defendant first challenges the court's qualification of two witnesses, a child sexual abuse counselor and a social worker, as experts in child sexual abuse. Defendant contends that the admission of their opinion testimony was error in that such testimony was of no assistance to the jury as factfinder. We disagree.

Rule 702 of the North Carolina Rules of Evidence governs the admissibility of expert testimony. It states:

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 (1988). Our courts construe this rule to admit expert testimony when it will assist the jury "in drawing certain inferences from facts, and the expert is better qualified than the jury to draw such inferences." State v. Anderson, 322 N.C. 22, 366 S.E.2d 459 (1988), cert. denied, ___ U.S. ___, 109 S. Ct. 513, 102 L. Ed. 2d 548 (1989) (citations omitted). A trial court is afforded wide latitude in applying Rule 702 and will be reversed only for an abuse of discretion. Id. Moreover, the determination whether the witness has the requisite level of skill to qualify as an expert witness is ordinarily within the exclusive province of the trial judge, and "[a] finding by the trial judge that the witness possesses the requisite skill will not be reversed on appeal unless there is no evidence to support it." State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984) (citation omitted).

Applying these standards to the record before us, we conclude that the trial court did not err in qualifying the witnesses as experts in child sexual abuse and admitting their testimony. Both witnesses testified to receiving advanced degrees in psychology and counselling, to having extensive experience in evaluating victims of child abuse, and to having testified on numerous prior occasions before the courts of this State as experts in the field of child sexual abuse. This evidence clearly suffices to support the trial court's determination that the witnesses possessed the requisite level of skill to qualify as experts in child sexual *751 abuse. State v. Bullard, supra. Moreover, the witnesses explained to the jury, in clear terms, the accepted profile of indicators of child sexual abuse, how this profile was applied to evaluate the alleged victim in this case, and how the alleged victim's behavior was consistent with this profile. "The nature of the sexual abuse of children... places lay jurors at a disadvantage." State v. Oliver, 85 N.C.App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987). The testimony under scrutiny here was clearly instructive and helpful to the jury. This assignment of error is overruled.

Defendant next challenges the court's failure to instruct the jury on a pertinent character trait, namely, that he is "a good father," arguing that such failure constitutes plain error. It is axiomatic that "[a] prerequisite to ... engaging in a `plain error' analysis is the determination that the [action] complained of constitutes `error' at all." State v. Johnson, 320 N.C. 746, 360 S.E.2d 676 (1987); see also State v. Walker, 316 N.C. 33, 340 S.E.2d 80 (1986) (and cases cited therein). "Evidence of the good character of the defendant ... is a subordinate and not a substantive feature of the trial and the failure of the judge to charge the jury relative thereto will not generally be held for reversible error unless there be a request for such an instruction." State v. Thompson, 50 N.C.App. 484, 274 S.E.2d 381, cert. denied, 302 N.C. 633, 280 S.E.2d 448 (1981) (citation omitted). The record discloses that, although defendant presented character witnesses who testified that he is "an excellent father," he did not request a special jury instruction on this character trait. The court therefore did not err in omitting such an instruction from its charge to the jury, and a plain error analysis is consequently inapplicable. State v. Johnson, supra.

Finally, defendant challenges the court's denial of his motion to dismiss the charge of second-degree rape in that the State failed to produce evidence sufficient to establish the element of force.

N.C. Gen.Stat. 14-27.3 provides in pertinent part:

(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person: (1) By force and against the will of the other person[.]

Constructive force in the form of fear, fright, or coercion suffices to establish the element of force in second-degree rape and may be demonstrated by proof of a defendant's acts which, in the totality of the circumstances, create the reasonable inference that the purpose of such acts was to compel the victim's submission to sexual intercourse. See State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987) (and cases cited therein). Moreover, where explicit threats or displays of force are absent, constructive force may nevertheless be inferred from the "unique situation of dominance and control" which inheres in the parent-child relationship. Id. Finally, a parent-child relationship exists for purposes of a constructive force analysis under G.S. 14-27.3 where the defendant's "relationship with the victim encompassed nearly all the practical incidents of parenthood," notwithstanding the absence of a biological or legal parent-child relationship. State v. Morrison, 94 N.C.App. 517, 380 S.E.2d 608 (1989).

Defendant's motion to dismiss for insufficiency of evidence to establish the element of force under G.S. 14-27.3 raises the question of whether there is substantial evidence to support this element of the crime. In resolving this question, we must consider the evidence in the light most favorable to the State. State v. Bates, 313 N.C. 580, 330 S.E.2d 200 (1985). The State is also entitled to all reasonable inferences to be drawn from the evidence. Id. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. When substantial evidence supports a finding that the crime was committed, and that a defendant is the criminal agent, the case must be submitted to the jury. Id. The evidence need not exclude every reasonable hypothesis of innocence in order to support the denial of a defendant's motion to dismiss. State v. Earnhardt, 307 N.C. 62, *752 296 S.E.2d 649 (1982). This test for sufficiency of the evidence is the same for both direct and circumstantial evidence. Id.

The State contends that, in the present case, the requisite force may be inferred from the de facto parent-child relationship which existed between defendant and the alleged victim. See State v. Etheridge and State v. Morrison, supra. We need not, however, reach this question. For measuring the State's evidence against the above standards, we conclude that there was sufficient evidence of threats and displays of force by defendant for the purpose of compelling the alleged victim's submission to sexual intercourse on the relevant dates to constitute constructive force within G.S. 14-27.3. Defendant's motion to dismiss was therefore properly denied.

For the reasons stated we find

No error.

PHILLIPS and GREENE, JJ., concur.