State v. Ryan
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NO. COA12-228 NORTH CAROLINA COURT OF APPEALS Filed: 6 November 2012 STATE OF NORTH CAROLINA v. Johnston County Nos. 10 CRS 1615-16, 51438 STEVEN FRANKLIN RYAN Appeal by defendant from judgments entered 31 May 2011 by Judge Ola M. Lewis in Johnston County Superior Court. Heard in the Court of Appeals 30 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Jane Rankin Thompson, for the State. Robert H. Hale, Jr. & Associates, Attorneys at Law, P.C., by Daniel M. Blau, for defendant appellant. McCULLOUGH, Judge. On 31 convicted May of 2011, one Steven count of Franklin Ryan first-degree ( defendant ) sex offense counts of taking indecent liberties with a child. defendant contends he is entitled to a new and was two On appeal, trial for the following reasons: (1) the trial court s failure to reinstruct the deadlocked jury unconstitutionally coerced guilty verdicts; (2) the trial court abused its discretion in denying defendant s motion for a mistrial based upon the existence of a deadlocked -2jury; (3) the testimony of a State s witness vouching for the credibility of the minor child constituted plain error; (4) the State s closing argument was so improper as to necessitate ex mero motu intervention; and (5) the admission of the State s evidence regarding defendant s living arrangements granddaughter constituted plain error. with his Defendant also contends the trial court erred in ordering him to register as a sex offender and ( SBM ). enroll in lifetime satellite-based monitoring We hold the testimony of the State s expert witness vouching for the credibility of the minor child constituted plain error in this case, and therefore we order a new trial for defendant. I. Background The child testified eighth that grade victim she at was the in the present 13 years old time of trial. case and ( the was She child ) completing lived with the her grandmother, Donna Allen ( Allen ) from the time she was two until she was age ten. In 2007, the child and Allen were living with defendant in his three-bedroom trailer home. The child testified she was left alone with defendant while Allen worked at night. She testified that at the end of her fourth grade year, when she was approximately ten years old, -3defendant began rubbing her back while wearing only his robe, and she could see his penis under his opened robe. She testified that defendant also kissed her. The child told Allen about the back rubs, but not about seeing defendant s penis or that he had kissed her. Allen confronted defendant about the back rubs, but the child testified the back rubs continued. By the beginning of her fifth grade year, the child testified defendant put his mouth on her breasts and her vagina and put his penis in her vagina and butt. She testified that when she went to the bathroom to urinate afterward, [i]t was burning and hurting. The child testified defendant also put his fingers in her vagina. She testified that defendant told her that if she said anything about the encounters, he would break up with her grandmother. The child testified that during the encounters, she asked defendant to stop, and on one occasion she hit defendant. On one occasion, around her tenth birthday in August 2007, the child testified defendant held her arms down, kissed her, and then kissed her breasts and licked her vagina. The child testified defendant also took her hand and put it on his penis. Sometime in late 2007 or early 2008, Allen s relationship with defendant deteriorated and the two broke up. Criminal -4charges were filed by both Allen and defendant against the other but were subsequently dropped. Evidence was introduced that at the time of the breakup, defendant had been drinking and threw Allen s belongings into the yard, at which point Allen left the residence. Evidence was also introduced indicating that Allen had threatened defendant, saying that he would not live in his house without her. Further evidence was introduced that following the breakup, defendant and Allen were civil to each other and performed favors for each other, such as providing transportation, haircuts, and machine maintenance. The child went to live with her mother, Cailey, after her grandmother approximately and two defendant years broke after the up. In alleged September sexual 2009, abuse, the child told her mother defendant had raped her without providing any details. The child testified that she waited two years to tell anyone because she was scared and thought the sexual contact was her fault. The child also testified she came forward with the allegations because defendant was living with his seven-year-old granddaughter and she was afraid defendant would abuse her as well. After the child told Cailey that defendant had raped her, Cailey informed Allen of what the child had said, and the two -5immediately took the child to speak with a relative who was a detective with Massengill remained the Johnston ( Detective in the Sheriff s Massengill ). vehicle while initially Detective defendant. Detective Massengill then spoke with the child about and advised assault child informed Allen sexual Kevin of accusations child s The Office, Massengill the the County Allen to accusations seek a child against medical evaluation. Detective Massengill testified that the child did not provide any details of the alleged incidents, but that she only stated following she day, had Allen been and touched Cailey inappropriately. took the child to On the WakeMed Hospital and were referred to a specialist. Also on the following day, Detective Massengill referred the case to his supervisor at the Sheriff s Office. Detective Toni Lee ( Detective Lee ) was assigned to the case. Detective Lee was an acquaintance of the child s family. Detective Lee interviewed the child about the allegations for approximately thirty minutes. Allen was present in the room while Detective Lee interviewed the child. During the interview, the child informed Detective Lee that once when she was home alone with defendant, he had kissed her. She also stated that defendant had rubbed her back twice and she had told him to stop. She -6further stated that one night, defendant held her down, kissed her on the mouth and on her breasts, stuck his fingers and tongue in her private area, and put his penis in her vagina. Following her interview with the child, Detective Lee attempted to contact defendant at his residence and left her business card asking him to contact her. Defendant contacted her 23 minutes later and informed her he would be glad to speak with her and that she was welcome to come by. Detective Lee returned to defendant s residence and spoke with him about the child s allegations. The conversation lasted approximately six minutes, during which defendant denied the allegations and suggested to Detective Lee that Allen had influenced the child to fabricate the allegations against him. Following her interview with defendant, Detective Lee concluded that the child s accusations against defendant were not fabricated and did not conduct any further investigation. On referral from WakeMed, the child was seen by Dr. Laura Gutman ( Dr. Gutman ), a pediatrician specializing in child maltreatment and child sexual abuse. Dr. Gutman was qualified as an expert witness in the field at trial. Dr. Gutman interviewed Cailey about the child s medical history and then talked at length with the child about the sexual abuse allegations. The -7child informed Dr. Gutman about the back rubs and defendant s exposing himself to her. Dr. Gutman then used anatomically correct dolls and proceeded to lead the child to various body parts, asking her if anything had happened there. During the body inventory, the child informed Dr. Gutman that defendant had placed his tongue in her mouth and had put his penis in her private area. The child also informed Dr. Gutman that defendant had felt her breasts and private area with his fingers. When Dr. Gutman asked the child if anything happened in the anal area, the child responded defendant had put his penis in her butt. The child also stated defendant had put his penis in her mouth. Dr. Gutman testified about the child s ability to describe sensory detail[s] about these alleged incidents, such as the taste of defendant s tongue and the warmth of his penis. Dr. Gutman further testified that the child reported mental health symptoms that are common in sexually abused children, including nightmares, embarrassment, dissociation, and anger. The child told Dr. Gutman that no one else had touched her sexually. Following her lengthy interview with the child, Dr. Gutman performed a physical exam on the child. She observed a deep notch in the child s hymen, which she testified was highly suggestive of vaginal penetration. Dr. Gutman also examined the -8child s anus and found it to be normal, although she testified that physical findings of anal abuse are uncommon. Finally, Dr. Gutman tested the child for sexually transmitted diseases. The tests were negative, except that the child was diagnosed with the presence of bacterial vaginosis. the presence of bacterial Dr. Gutman testified that vaginosis can be indicative of a vaginal injury, although it is the most common genital infection in women and can have many causes. Cailey had indicated the child had symptoms of vaginosis as early as 2006, which predated the alleged abuse. Based on the presence of the hymenal notch and bacterial vaginosis, and the child s history as taken from both Cailey and the child, Dr. Gutman testified as to her conclusion that the child had been sexually abused, that she had no indication the child s story was fictitious or that the child had been coached, and that defendant was the perpetrator. The child also met with licensed clinical social worker Stacey Drake ( Drake ). Drake testified she provided therapy for the child s mental health issues and encouraged the child to keep a private journal about the alleged abuse as a coping method. Drake testified that when she first met with the child, the child was shy, made no eye contact, had a difficult time talking, and was acting very angry at home. Drake also testified -9the child was doing poorly in school and had gained weight. Drake testified the child had made progress with her mental health issues as of June 2010. Defendant testified at trial in his own defense. He admitted to rubbing the child s back twice but stated he had stopped when Allen asked him to. Defendant repeatedly denied the allegations of sexual abuse and maintained that he and the child had always had a good relationship. Defendant testified there were other men, some with known criminal records, who had visited with Allen in the presence of the child following their breakup. Defendant testified concerning his belief that Allen had compelled the child to fabricate the allegations against him. Defendant s ex-wife also testified on defendant s behalf, stating that some time in 2007, after defendant s breakup with Allen, she was giving defendant a ride when they saw the child in her yard. She testified the child ran towards the truck waving and calling defendant s name and appeared happy to see him. On 5 April 2010, defendant was indicted on two counts of first-degree rape, two counts of first-degree sex offense, and two counts of taking indecent liberties with a child. dismissed one count of first-degree rape prior The State to trial. -10Defendant was tried on the remaining five charges before a jury beginning 23 May 2011. Following three indications of deadlock by the jury, defendant moved for a mistrial, which was denied by the trial court. After approximately four hours of deliberations over two days, the jury returned unanimous verdicts on all five counts. The jury found defendant not guilty of first-degree rape and one count of first-degree sex offense. The jury found defendant guilty of the remaining charges one count of firstdegree sex offense and two counts of taking indecent liberties with a child. The trial court entered judgment on the verdicts, sentencing defendant to consecutive terms of 288-355 and 19-23 months imprisonment. The trial court also ordered defendant to register as a sex offender and enroll in lifetime SBM. Defendant gave oral notice of appeal in open court following his convictions and has filed a petition for writ of certiorari with this Court seeking review of the trial court s sex offender registration and SBM orders. II. Improper Expert Opinion Testimony Vouching For Credibility of Minor Child We first address defendant s argument that the trial court both erred and committed plain error in allowing the State s expert witness, Dr. Gutman, to credibility of the minor child. improperly vouch for the Defendant objected to some -11portions of Dr. Accordingly, this Gutman s Court testimony, reviews but those not to portions to others. which defendant objected for prejudicial error and those portions to which defendant did not object for plain error. Generally, an alleged error is prejudicial if there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial[.] N.C. Gen. Stat. § 15A-1443(a) (2011). [e]videntiary errors are harmless unless a Nonetheless, defendant proves that absent the error a different result would have been reached at trial. State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d 889, 893, disc. review denied, 354 N.C. 223, 554 S.E.2d 650 (2001). 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. N.C.R. App. P. 10(a)(4) (2012); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007). Plain error arises when the error is so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.] -12State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the different result. jury probably would have reached a State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). In its recent opinion in State v. Towe, ___ N.C. ___, ___ S.E.2d ___, No. 121PA11 (June 14, 2012), our Supreme Court reiterated the plain error standard, stating that to establish plain error [a] defendant must show that a fundamental error occurred at his trial and that the error had a probable impact on the jury s finding that the defendant was guilty. Id. at ___, ___ S.E.2d at ___, No. 121PA11, slip. op. at 11 (quoting State v. Lawrence, ___ N.C. ___, ___, 723 S.E.2d 326, 333 (2012) (quoting Odom, 307 N.C. at 660, 300 S.E.2d at 378)). Here, those portions of Dr. Gutman s testimony challenged by defendant on appeal can be classified into three categories: (1) expert opinion testimony concluding that the child had been sexually abused, (2) expert opinion testimony that the child s story was not fictitious, and (3) expert opinion testimony that the child had not been coached. Defendant also challenges Dr. -13Gutman s testimony as to her conclusion that defendant was the perpetrator of the sexual abuse on the child. A. Conclusion of Sexual Abuse It is well-settled law that [e]xpert opinion testimony is not admissible to establish the credibility of the victim as a witness. State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598, aff'd, 356 N.C. 428, 571 S.E.2d 584 (2002). [w]ith respect prosecutions, our to expert Supreme testimony Court has in Nonetheless, child approved, sexual upon a abuse proper foundation, the admission of expert testimony with respect to the characteristics of sexually abused children and whether the particular complainant characteristics. has symptoms consistent with those Id. (citing State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002); State v. Kennedy, 320 N.C. 20, 31-32, 357 S.E.2d 359, 366-67 (1987)). In opinion occurred addition, pursuant if the an to expert Rule State 702 medical that establishes witness sexual a may abuse proper render in fact foundation, i.e. physical evidence consistent with sexual abuse. has an Id. However, 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 -14opinion regarding the victim's credibility. Id.; see also Stancil, 355 N.C. at 266-67, 559 S.E.2d at 789 ( 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 [t]estimony that the a victim's child has credibility. ). been sexually Thus, abused solely on interviews with the child [is] improper. based State v. Grover, 142 N.C. App. 411, 419, 543 S.E.2d 179, 183, aff'd, 354 N.C. 354, 553 S.E.2d 679 (2001); see also State v. Bates, 140 N.C. App. 743, 748, 538 S.E.2d 597, 601 (2000) (acknowledging that where an expert physical examination sexually abused, and witness of a where conducted child the who an interview claimed she child s physical and had a been examination revealed no evidence that the child had been sexually abused, expert testimony diagnos[ing] the child as a victim of sexual abuse based solely on the child's statement that she had been abused lacked admitted). a proper foundation and should not have been Our Supreme Court reaffirmed these legal principles in its recent opinion in Towe, ___ N.C. at ___, ___ S.E.2d at ___, No. 121PA11, slip. op. at 9-10. -15In the present case, Dr. Gutman testified that based upon her training, education, and experience, as well as her examination of the child, she concluded that the history given by the child and her physical findings were consistent with sexual abuse[.] Similarly, in Dr. Gutman s written report, she concluded that the child had been sexually assaulted based upon her medical evaluation of the child. We hold Dr. Gutman s conclusions in this regard were properly admitted, given the physical evidence of the child s unusual hymenal notch and bacterial vaginosis. We note that in both her testimony and in her written report, Dr. Gutman did not state which acts of alleged sexual abuse she concluded had occurred, although she noted the various types of sexual acts alleged by the child in both her testimony and her written report. Had Dr. Gutman testified as to her specific conclusion that the child had been the victim of both vaginal and anal sexual abuse, we would hold the admission of such testimony to be error, as the State presented no physical evidence of anal sexual abuse, and Dr. Gutman admitted on crossexamination that such a conclusion would be based solely on her interview with the child. -16However, Dr. Gutman did not give an opinion as to which specific assault she concluded had occurred. stated only her conclusions that the Rather, Dr. Gutman child s history and physical findings were consistent with sexual abuse and that based on her medical evaluation of the child, the child had been sexually assaulted. Because the State introduced a proper foundation of physical evidence the unusual deep hymenal notch and the presence of Gutman s stating her conclude it was the conclusion error general conclusions. child s for Dr. vaginosis of sexual Gutman to prior abuse, testify to we as Dr. cannot to her Cf. Towe, ___ N.C. at ___, ___ S.E.2d at ___, No. 121PA11, slip. op. at 10 (expert witness testified that she observed no injuries during her physical examination of the smooth, victim, and that that the the victim s victim hymen displayed appeared no normal physical and symptoms diagnostic of sexual abuse ). B. Truthfulness of Child and Coaching [O]ur appellate courts have consistently held that the testimony of an expert to the effect that a prosecuting witness is believable, credible, or telling the truth is inadmissible evidence. State v. Dick, 126 N.C. App. 312, 315, 485 S.E.2d 88, 89 (1997) (quoting State v. Bailey, 89 N.C. App. 212, 219, -17365 S.E.2d 651, 655 (1988)). Accordingly, our Supreme Court has found reversible error when experts have testified that the victim was believable, had no record of lying, and had never been untruthful. State v. Aguallo, 322 N.C. 818, 822, 370 S.E.2d 676, 678 (1988) (citing State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986); State v. Kim, 318 N.C. 614, 350 S.E.2d 347 (1986); State v. Heath, 316 N.C. 337, 341 S.E.2d 565 (1986)). However, our Supreme Court has agreed that a statement that a child was not truthfulness. coached is not a statement on the child's State v. Baymon, 336 N.C. 748, 752, 446 S.E.2d 1, 3 (1994). In the present case, the following exchange occurred on redirect examination of Dr. Gutman: Q. [H]ave you ever diagnosed finding that [a] child is truthful? or made a not being A. I have done that on several occasions. Q. Can you explain to the jurors what you look for, the clues that you look for, and do you do that in every case? A. I do it in every case. . . . . Q. Was there anything about your examination of [the child] that gave you any concerns in this regard? -18A. That gave me concerns that she was giving a fictitious story? Q. Yes. A. Nothing. There was nothing about the evaluation which led me to have those concerns. And again, as I was getting into her history and considering this as a possibility, nothing came out. We conclude Dr. Gutman s testimony that she was not concerned that the child was giving a fictitious story is tantamount to her opinion that the child was not lying about the sexual abuse. See, e.g., Heath, (prosecutor s 316 question N.C. to at 341-42, expert whether 341 S.E.2d child at 568 victim was suffering from a mental condition which could have caused her to make up a story about sexual assault was designed to elicit expert s opinion as to whether child victim might have lied about the alleged assault and constituted inadmissible opinion testimony as to child s credibility). this Court have repeatedly held Our Supreme Court and that such testimony is inadmissible, and we hold the trial court erred in allowing Dr. Gutman to so testify. The State argues that defendant opened the door to this particular testimony by contending that the child was coached into bringing the sexual abuse allegations against defendant. The State maintains that because defendant revealed this theory -19in his opening arguments to the jury and in his cross- examination of the child and her grandmother, he opened the door to Dr. Gutman s opinion testimony that the child had not been coached. We are not persuaded by the State s argument. Dr. Gutman testified separately regarding indications that a child has been coached and that, based upon her examination of the child, she concluded there were no indications that the child had been coached in any way[.] This testimony was elicited on direct examination, prior to Dr. Gutman s testimony that she had no concerns that the child was giving a fictitious story. Dr. Gutman testified again on redirect examination that she had no concerns that the child had been coached in any way[.] above, Given our Supreme Court s holding in Baymon, as denoted such opinion testimony coached was admissible. at 3. that the child had not been Baymon, 336 N.C. at 752, 446 S.E.2d The State, therefore, addressed defendant s coaching argument through opinion testimony separate, that a admissible child has testimony. not been However, coached is distinguishable from opinion testimony that a child is not lying or is not giving a fictitious story testimony that is clearly inadmissible under our case law. -20Our Supreme Court has noted, as the State contends, that [u]nder certain circumstances, . . . otherwise inadmissible evidence may be admissible if the door has been opened by the opposing party's cross-examination of the witness. Id. Thus, [t]his evidence is allowed only if defendant opened the door by addressing the victims credibility on cross-examination of the witness presently testifying. State v. Thaggard, 168 N.C. App. 263, 274, 608 S.E.2d 774, 782 (2005). Despite the State s argument to the contrary, defendant s theory of the case, his opening arguments, and his cross-examination of other witnesses do not open the door to otherwise inadmissible testimony by a different witness. Otherwise, defendant s ability to put on a defense would be severely impaired. As to defendant s cross- examination of Dr. Gutman, the only questions relevant to the child s credibility consisted of questions [s]ome people make up stories of abuse concerning and whether whether some children make false accusations or false representations[.] We cannot say such generalized questions on cross-examination opened the door for Dr. Gutman to testify as to her opinion that the child in this case was not giving a fictitious story. C. Defendant as Perpetrator -21In addition to this testimony, Dr. Gutman further concluded that there perpetrator was no other evidence than that defendant. there Dr. was a Gutman different based her conclusion on her interview with the child. In State v. Brigman, 178 N.C. App. specializing in 78, 632 S.E.2d the diagnosis 498 of (2006), sexual a assault pediatrician injuries in children testified as an expert concerning her conclusion that the child victims had suffered sexual abuse by [defendant]. Id. at 85-86, 632 S.E.2d at 503. defendant argued the doctor s On appeal in Brigman, the testimony testimony on the guilt of the defendant. at 507. holding This Court agreed with that such testimony was the expert Id. at 91, 632 S.E.2d defendant s contention, improper concerning the victims credibility. at 507. constituted opinion testimony Id. at 91-92, 632 S.E.2d Similarly, in State v. Figured, 116 N.C. App. 1, 446 S.E.2d 838 (1994), this Court held that testimony by an expert stating that in his opinion the children were sexually abused by this defendant constituted an expression of opinion as to the defendant's guilt and was thus improper. S.E.2d at 842-43. This Court reasoned Id. at 8-9, 446 that the doctor s opinion that the children were sexually abused by defendant did not relate to a diagnosis derived from his expert examination of -22the prosecuting witnesses in the course of treatment. It thus constituted improper opinion testimony as to the credibility of the victims testimony. Here, we find Id. at 9, 446 S.E.2d at 843. no discernible difference between Dr. Gutman s testimony that there was no evidence that there was a different perpetrator other than defendant and the testimony by the doctors in Brigman and Figured sexually abused by the defendant. testimony constituted improper that the child had been Thus, the admission of such opinion testimony as to the credibility of the child s testimony and was also error. D. Prejudicial Error Because we hold Dr. Gutman s testimony that she had no concerns the child was giving a fictitious story and that there was no evidence that there was a different perpetrator other than defendant was inadmissible, we must address whether the error was prejudicial to defendant in this case. Defendant did not object to these particular lines of questioning, therefore we review for plain error. Under our plain error review, we must consider whether the erroneous admission of expert testimony that impermissibly bolstered the victim s credibility had the prejudicial effect necessary to establish that the error was a fundamental error. -23Towe, ___ N.C. at ___, ___ S.E.2d at ___, No. 121PA11, slip. op. at 11 (quoting Lawrence, ___ N.C. at ___, 723 S.E.2d at 335). This Court has held that it is fundamental to a fair trial that a witness s credibility be determined by a jury, that expert opinion on the credibility of a witness is inadmissible, and that the admission of such testimony is prejudicial when the State s case depends largely on the testimony of the prosecuting witness. Dixon, 150 N.C. App. at 53, 563 S.E.2d at 599. Notably, a review of relevant case law reveals that where the evidence is fairly evenly divided, or where the evidence consists largely of the child victim s testimony and testimony by corroborating witnesses with minimal physical evidence, especially where the defendant has put on rebuttal evidence, the error is generally found to be prejudicial, even on plain error review, since the expert s opinion on the victim s credibility likely swayed the jury s decision in favor defendant guilty of a sexual assault charge. of finding the See Aguallo, 318 N.C. at 599-600, 350 S.E.2d at 82; State v. Trent, 320 N.C. 610, 615, 359 S.E.2d 463, 466 (1987); State v. Bush, 164 N.C. App. 254, 259-60, 595 S.E.2d 715, 718-19 (2004); State v. O'Connor, 150 N.C. App. 710, 712, 564 S.E.2d 296, 297 (2002); State v. Parker, 111 N.C. App. 359, 366, 432 S.E.2d 705, 710 (1993). -24In the present case, the State's evidence consisted of testimony from the child, her family members, her therapist, the lead detective on the case who was family, and an expert witness. an acquaintance of the All of the State s evidence relied in whole or in part on the child's statements concerning the alleged sexual abuse. The only physical evidence presented that bolstered the State s case that the child had been sexually abused was a deep hymenal notch in the child s vagina and the presence of bacterial vaginosis. However, Cailey testified that the child s symptoms of bacterial vaginosis predated the alleged sexual assaults by defendant. In addition, more than two years had elapsed since the alleged sexual contact and the child s medical examination. that bolstered the Further, there was no physical evidence State s case that the child was anally assaulted or that defendant was the perpetrator of any such abuse. There was no testimony presented by the State that did not have as its origin the accusations of the child. For this reason, the credibility of the child was central to the State's case. In addition, the State presented Dr. Gutman as a specialist in child maltreatment and child sexual abuse. Dr. Gutman described her training and experience, specifically focusing on -25child infectious diseases, including infections, and child sexual abuse. sexually transmitted Dr. Gutman testified that she helped found a hospital clinic for child maltreatment, that she had authored numerous publications on child sexual abuse, that she had seen approximately 1300-1400 cases of child maltreatment or child sexual abuse, that she had testified as an expert in the field 28 times in the five years prior to the trial of the present case, and that she had helped to train or teach other pediatricians in this field. Upon review of the record, it is clear that Dr. Gutman s testimony was central to the State s case, as her testimony comprises approximately 161 pages of the trial transcript, which is roughly equivalent to the testimony of the child, Cailey, Allen, Detective Massengill, and Detective Lee combined. Defendant's evidence consisted of his testimony that he did not sexually abuse the child. Defendant's ex-wife also testified that she was with defendant on one occasion following the alleged sexual abuse and the child seemed happy defendant drive by and was shouting and waving at him. to see Evidence was also introduced that other men, some with known criminal records, had been in the presence of the child following defendant s split with Allen and prior to the child s sexual -26assault allegations, investigate these although other men. the The lead detective child's failed account of to what happened evolved over time, and new allegations of what happened to her, particularly the anal assault, came out during her evaluation by Dr. Gutman. Except for Dr. Gutman s testimony, the evidence presented at trial amounted to conflicting defendant, and their families. accounts from the child, Because Dr. Gutman was an expert in treating sexually abused children, her opinion likely held significant weight with the jury. Considering Dr. Gutman s testimony in light of the other evidence, we must conclude the testimony in question had a probable impact on the jury's finding defendant guilty by enhancing the credibility of the child in the jurors minds. Thus, we hold Dr. Gutman s improper expert opinion testimony vouching for the credibility of the child constituted plain error in this case. We must, therefore, vacate the judgments and order a new trial for defendant. III. Remaining Issues Having ordered a new trial for defendant on this issue, we shall comment only briefly upon those remaining issues raised by -27defendant that are likely to recur on retrial. address defendant s first two arguments We will not regarding the trial court s failure to reinstruct the deadlocked jury or his request for a mistrial, nor will we address his fourth argument regarding his objection to the prosecutor s closing argument, as these issues are not likely to recur. In his fifth argument on appeal, defendant argues the trial court committed plain error in allowing testimony by Dr. Gutman regarding her concern that defendant was living with his sevenyear-old granddaughter at the time of the child s allegations. Defendant argues this testimony was irrelevant, and therefore inadmissible, as it made it no more probable that he had sexually abused the child. In the present case, the entirety of the testimony concerning defendant s living with his granddaughter consisted of the following. On direct examination of the child, following exchange took place: Q. What made you wait two years and tell your mom in 2009? A. I was scared because I thought it was my fault. Q. Did you think about the defendant lived with the defendant (sic)? A. Uh-huh. who the -28Q. Did you think about who was living with [defendant] at that time? A. Yeah. Q. Who was living with him? A. His granddaughter. Q. How old was she? A. I m not sure. Q. Younger or older than you? A. She s younger than me. Q. And the fact that he was living with his granddaughter, how did that make you feel? A. It made me feel bad. Q. Why? What were you thinking? A. That he might do it to her. Q. So because of that, what did you tell your mom? A. I told her what he had done. Such evidence is relevant to the child s motives for reporting the alleged sexual abuse. See State v. Whitman, 179 N.C. App. 657, 668, 635 S.E.2d 906, 913 (2006) (photographs of two other children admissible because they were relevant to child victim s motives for coming forward against the defendant). with allegations of sexual abuse -29Subsequently, during the direct examination of Dr. Gutman, Dr. Gutman testified that she had learned from the child s mother that defendant had a granddaughter who is seven, who lived with him at that time currently and that in her written report, she noted with concern that [defendant] is reported to be living with a granddaughter who is age seven. not object to any of the foregoing testimony. Defendant did Although we believe the admission of such evidence did not rise to the level of plain Gutman s error in testimony determination of inadmissible. this as his case, to defendant this guilt fact or is was correct not innocence that relevant and was Dr. to a therefore Accordingly, if Dr. Gutman s written report is introduced into evidence on retrial, such notation should be redacted from the report. Finally, because we vacate defendant s judgments in the present case, we need not address his arguments concerning the trial court s sex offender registration and SBM orders. However, we note that the trial court s findings that defendant had been convicted of a reportable conviction, specifically an offense against a minor under G.S. 14-208.6(1m), as well as rape of a child, G.S. 14-27.2A, or sexual offense with a child, G.S. 14-27.4A were erroneous. Defendant s convictions for -30first-degree sex offense, a violation of N.C. Gen. Stat. § 1427.4, and taking indecent liberties with a child, a violation of N.C. Gen. Stat. § 14-202.1, do not fall within the statutory definition of an offense against a minor or a sexual offense with a child pursuant to N.C. Gen. Stat. § 14-27.4A. However, both of defendant s convictions for first-degree sex offense and taking indecent liberties with a child are encompassed in the definition of a sexually violent offense under N.C. Gen. Stat. § 14-208.6(5), and therefore they are both reportable convictions under the statute. IV. Conclusion We hold Dr. Gutman s testimony that she had no concerns the child victim was giving a fictitious story was tantamount to expert opinion testimony that the child was not lying about the sexual abuse inadmissible. allegations, and therefore such testimony was Similarly, Dr. Gutman s testimony that there was no evidence of any other perpetrators of sexual abuse on the child other than defendant likewise constituted improper expert opinion testimony concerning both the guilt of defendant and the credibility of the child. Given that Dr. Gutman s testimony was central to the State s case, and in light of the minimal physical evidence and -31other conflicting testimony presented at trial, we hold Dr. Gutman s improper opinion testimony vouching for the credibility of the child had a probable impact on the jury s finding defendant guilty, and therefore, the admission of such testimony constituted plain error, necessitating a new defendant. New trial. Judges HUNTER, JR., (Robert N.) and ERVIN concur. trial for
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