State v. King
Annotate this Case
Download PDF
NO. COA13-1402 NORTH CAROLINA COURT OF APPEALS Filed: 15 July 2014 STATE OF NORTH CAROLINA v. Buncombe County No. 11 CRS 488 JOSHUA NEAL KING Appeal by defendant from judgment entered 14 January 2013 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 21 May 2014. Attorney General Roy Cooper, by Assistant Attorney General LaShawn S. Piquant, for the State. M. Alexander Charns for defendant-appellant. BRYANT, Judge. Where a physician testified to common characteristics she had observed in sexually abused children, the trial court did not err in allowing her testimony, and where the trial court denied the State s motion to hold defense counsel in criminal contempt, defendant did not receive ineffective assistance of counsel. On 12 September 2011, a Buncombe County Grand Jury indicted defendant on thirteen counts of indecent liberties with a child, -2two counts of rape of a child by an adult, and eleven counts of statutory rape. Each indictment alleged that the victim was Kimberly1, a girl age twelve or thirteen years old depending on the date of the offense. A jury trial commenced during the 7 January 2013 Criminal Session of Buncombe County Superior Court, the Honorable Alan Z. Thornburg, Judge presiding. The evidence presented tended to show that Kimberly was born in 1997 and that she had two younger brothers. From the time she was six months old, Kimberly lived with her paternal grandmother. In 2009, when she was twelve years of age, Kimberly left her grandmother s residence and went to live with her mother and two brothers. Kimberly s mother was living with defendant Joshua Neal King, whom she later married. Living with her mother provided Kimberly with more freedom: I got to go out with my friends a lot more. They got to come over a lot more. I used to drink and do drugs. Kimberly testified that she and her mother used drugs together. On the evening of 16 March 2010, Kimberly s mother was at work; Kimberly was at home with defendant and her two brothers. A. 1 . . . I went to bed earlier that night and woke up and [defendant] was on top of me, and I had all my clothes off and Pursuant to Rule 3.1(b) of our Rules of Appellate Procedure, we use a pseudonym to protect the identity of the juvenile. -3I was in their bed. . . . Q. Do you remember what he had on? A. A shirt. . . . Q. And what happened? A. He did what I said he did. Q. Okay. Is that when you said that he put his penis in your vagina? A. Yes. Q. What did you do? A. I yelled for my brother. Kimberly testified that defendant had her perform sexual acts on many occasions from March through August 2010. Detective David Shroat, working in the Criminal Investigations Unit of the Buncombe County Sheriff s Department, became involved with the case on 30 August 2010 after receiving a report from the Department of Social Services. Detective Shroat testified that per the report, [Kimberly s] mother was working nights and [Kimberly] went to bed. And at some point in time, she woke up and [defendant] was on top of her, and she screamed. Detective September 2010. Shroat spoke with defendant on 21 After having his statement transcribed and read -4back to him, defendant verbally acknowledged signed his name to the statement. his words and The statement was admitted at trial. Per his statement, defendant drunk probably a twelve pack one night; he told the children to go to sleep; and he went to bed. At some point, defendant thought his wife had gotten into the bed. I discovered it was [Kimberly] . . . I told her to go back to her room. . . . I did rub on her under the blanket with my penis. I don t know if I penetrated her or not. did not admit to any other instance of Defendant sexual contact or activity with Kimberly. Pediatrician Dr. Mission Children s 2012. Dr. examination Sarah Hospital, Monahan-Estes and in part Monahan-Estes, examined testified to Kimberly to common working the on at 29 results characteristics the August of her she had observed in sexually abused children. Following the close of the evidence, the jury found defendant not guilty on twenty-five charges and found defendant guilty on one count of indecent liberties with a child occurring on 16 March 2010. that Defendant confidence . . The jury also found as an aggravating factor took . to advantage commit the of a position offense. The of trust trial or court -5entered judgment sentenced in defendant accordance to an with active the term of jury 16 verdict to 20 and months. Defendant appeals. ________________________________ On whether testify; appeal, the defendant trial and court (II) raises erred whether the by following allowing defendant a issues: (I) physician to received ineffective assistance of counsel. I Defendant allowing Dr. first argues Monahan-Estes, that the the trial court pediatrician who erred in examined Kimberly following her report of sexual assaults, to testify as to Kimberly s veracity. Specifically, defendant contends that Dr. Monahan-Estes written report, which was published to the jury, explained why Kimberly did not initially tell the whole truth and that Dr. Monahan-Estes testimony presumed Kimberly was telling the truth and presumed a history of sexual abuse. We disagree. Defendant cites the opinion of this Court in State v. Ryan for the proposition that [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 -6the truth is inadmissible evidence. ___ N.C. App. ___, ___, 734 S.E.2d 598, 604 (2012) (citation and quotations omitted), rev. dismissed, 366 N.C. 433, 736 S.E.2d 188, and writ denied, rev. denied, 366 N.C. 433, 736 S.E.2d 189 (2013). Initially, we note that Dr. Monahan-Estes was not formally qualified as an expert. guidance in Aguallo, 322 the To address this discrepancy, we find opinion N.C. 818, defendant challenged witnesses addressing abused children. of 370 the the our Supreme S.E.2d 676 admission Court of typical in (1988), State wherein testimony characteristics from of v. the two sexually One witness, a Department of Social Services case worker, having been employed as such for fourteen years, had investigated between twenty-five and thirty cases of child sexual abuse. abuse the The victim confided in the witness about the defendant had inflicted. The second witness, a Sheriff s Department juvenile investigator, had been employed as such for seven years and had investigated over one hundred cases of child sexual abuse. defendant argued on Id. at 820 21, 370 S.E.2d at 677. appeal that the evidence was improper because the witnesses were not qualified as experts and their testimony fail[ed] as lay opinion because it rationally based on the perceptions of the witness. The was [] not Id. at -7820, 370 S.E.2d at 677. Our Supreme Court reasoned that [i]t [was] evident that the nature of their jobs and the experience which [the witnesses] possessed made them better qualified than the jury to form an opinion as to the characteristics of abused children. Id. at 821, 370 S.E.2d at 677. The Court went on to hold that the finding that [each] witness [was] an expert is implicit in the trial court's ruling admitting the opinion testimony. Id.; see also N.C. Gen. Stat. ยง 8C-1, Rule 702(a) (2013) ( 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 . . . . ). Dr. Monahan-Estes background, including testimony where she began with completed her her educational undergraduate studies, her medical school education, where she completed her pediatric residency, and where she completed an additional twoyear fellowship in child abuse pediatrics during which she saw only sexually abused, physically abused, or neglected children. Dr. Monahan-Estes testified that she currently worked in a child abuse clinic seeing children who are suspected of having any history of sexual abuse, physical abuse or neglect. During the -8course of the investigation into allegations of sexual abuse, Dr. Monahan-Estes interviewed Kimberly. At trial, Dr. Monahan-Estes testified that when a child is suspected of suffering from abuse, you want to assure that they don't have any injuries or issues that are resulting because of that abuse attention. that need medical attention or mental health Dr. Monahan-Estes testified to the typical process she goes through in performing a child medical evaluation, with specific regard to an evaluation done where sexual abuse is suspected. She examination and also common testified behaviors to the she limitations has observed experience. [W]e very rarely see kids who [sic] the abuse or trauma has occurred and then they immediately tell someone so we can examine them. . . . In the cases that I typically see in clinic, these disclosures have occurred days, weeks, months, years after the sexual abuse has occurred . . . . . . . [W]e see all kinds of behavioral and emotional dysfunction or disorders in children who have a history of sexual abuse. These kids typically have an increased frequency of being depressed or having mental health issues, substance abuse. They tend to act out, aggressive behavioral issues in school. They have increased risk of school failure. These children typically get in trouble with of the in her -9the law, delinquency, they'll be arrested, they sexually act out. There's a whole host of issues that are increased in children who have a history of sexual abuse. We hold that the trial court s qualification of Dr. Monahan-Estes as an expert in pediatric medicine as well as the evaluation and treatment of child sexual abuse is implicit in the trial court s admission of her testimony regarding common behaviors in children who have suffered from sexual abuse. In challenging the admission of Dr. Monahan-Estes written report into evidence, defendant contends that Dr. Monahan-Estes explained truth. why [Kimberly] didn t initially tell the entire We first note that defendant did not object to the admission of the report at trial. Thus, the admission of this evidence would be subject to plain error review only, and upon the request of defendant. Defendant has failed to request plain error review of this issue. Further, defendant has failed to make Dr. Monahan-Estes report a part of the record on appeal. Therefore, we are precluded from considering the contents of the report, and we must consider defendant s argument abandoned. See N.C. R. App. P. 9(a) ( In appeals from the trial division of the General Court of Justice, review is solely upon the record on appeal . . . . ); Neal v. Craig Brown, Inc., 86 N.C. App. 157, 161, 356 S.E.2d 912, 915 (1987) ( This Court may not -10consider documents which have not properly been made a part of the record on appeal. (citing Elliott v. Goss, 254 N.C. 508, 119 S.E.2d 192 (1961))). Defendant challenges Dr. Monahan-Estes presuming that Kimberly was telling the truth. testimony as Specifically, defendant challenges the following: Q. . . . In your training and experience, are there reasons that you have personally observed that children may not always tell all of the allegations to start? . . . THE WITNESS: Yes. It's very common that a child either does not initially disclose or only partially discloses. One of the biggest issues is frequently the alleged perpetrator is a parent or a parental figure or someone that they love and trust, so they don't want to get them in trouble. They're ashamed, they're afraid, they've been threatened or bribed to try not to disclose. If another family member who is not the alleged perpetrator, but say another parent or another parental figure doesn't believe the child, then they'll frequently encourage them not to tell, or children sometimes there will be negative consequences to their disclosure. So they tell a little bit about what happens and then all kinds of things come into play. They're taken out of their home, they're taken away from their siblings, they're taken away from both of their parents. And they see these negative consequences and they don't want them to -11continue, so they'll only tell little bits of what happened. In State v. Hall, our Supreme Court, analyzing its prior opinion in State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987), stated that expert testimony on the symptoms and characteristics of sexually abused children is admissible to assist the jury in understanding the behavior patterns of sexually abused children. Furthermore, [the Court] allowed evidence that a particular child s symptoms were consistent with those of sexual or physical abuse victims, but only to aid the jury in assessing the complainant's credibility. State v. Hall, 330 N.C. 808, 817, 412 S.E.2d 883, 887 (1992) (citation omitted); compare State v. Stancil, 355 N.C. 266 67, 559 S.E.2d 788, 789 (2002) ( In a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in fact occurred . . . such testimony is credibility. proper an impermissible However, foundation, an as opinion expert to the regarding the witness may testify, profiles of sexually victim's upon a abused children and whether a particular complainant has symptoms or characteristics consistent therewith. (citing State v. Hall, 330 888 N.C. omitted)). 808, 818, 412 S.E.2d 883, (1992)) (citations -12We view Dr. Monahan-Estes testimony as properly providing common characteristics she observed in sexually abused children and a possible basis for those characteristics, and not opinion testimony on Kimberly s credibility. error by the trial court in Therefore, as there was no allowing the testimony of Dr. Monahan-Estes, defendant s argument is overruled. II Next, defendant argues he was denied effective assistance of counsel. counsel s Specifically, the trial court s denial of defense request for an evening recess following defense counsel having to defend himself against a criminal contempt charge prejudiced defendant. defense counsel s ability to represent We disagree. The right to effective assistance of counsel includes the right to interest. representation that is free from conflicts of State v. Choudhry, 365 N.C. 215, 219, 717 S.E.2d 348, 352 (2011) (citations and quotations omitted). When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness. State v. Augustine, 359 N.C. 709, 718, 616 S.E.2d 515, 524 (2005) (quoting State v. Braswell, 312 N.C. 553, 561 62, 324 S.E.2d 241, 248 (1985)). -13In order to meet this burden defendant must satisfy a two part test. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's error were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 694 (1984)); see also, e.g., Choudhry, 365 N.C. at 219, 717 S.E.2d at 352 ( [W]hen the claim of ineffective assistance is based upon an actual, as opposed to a potential, conflict of interest . . . a defendant may not be required to demonstrate prejudice under Strickland to obtain relief. (citations omitted)). Defendant s argument is predicated on the assertion that defense counsel was burdened by a conflict of interest; however, the record does not reveal such a conflict. On 9 January 2010, in the morning of the third day of trial, the prosecutor filed a motion requesting that defense counsel be held in criminal contempt as well as a corresponding -14motion for a mistrial following defendant s cross-examination of the victim the day before. In its motion, the prosecutor contended that following an in camera hearing to address the admissibility of evidence in light of Rule 412, Rape or sex offense cases; relevance of victim's past behavior, and the trial court s exclusion of the evidence proffered, defendant proceeded to question Kimberly about her prior sexual encounters in violation of the court s order. motion was held that morning. reveals a brief hearing. A hearing on the State s A review of the trial transcript The State presented its motion; defense counsel introduced an attorney who would represent him; defense counsel s attorney notified the court unfamiliar with any of the underlying facts that he was including the allegations in the State s motion, and asked that if the trial court was seriously considering the motion that the hearing be postponed. The hearing; which at State consented point, the to trial a postponement court declared of the that the State s motion was one for direct contempt and that the court had reviewed the transcript of defense counsel s examination. The trial court ruled that defense counsel did not act willfully or with gross negligence, and the acts were not done deliberately and purposefully in violation of the law without -15regard or justification or excuse, and [this court] fails to find him in contempt of court. denied the denial, State s defense motion counsel for asked The trial court subsequently a for mistrial. an Following adjournment: I'm this very offended by this and it's sort of knocked me off my game, if you will. And I don't want to be sitting here thinking about my issues about interest this to my when I'm client. supposed Defense to be counsel giving my requested best an adjournment until the next morning to kind of calm down and get over this[.] At 11:38 a.m., the trial court called a recess until 2:00 p.m. We see no conflict of interest between trial counsel and defendant. Furthermore, defendant neither points to an error committed as a result of trial counsel s participation in the criminal contempt hearing nor asserts what burden would have been alleviated by an overnight recess. Even though counsel was the subject of a contempt hearing during his representation of defendant, counsel was found to be not in contempt of court. There is nothing in the record to support defendant s assertion of a conflict of interest. On the contrary, defendant was found not guilty on twenty-five of twenty-six charges considered by the jury. Defense counsel s zealous representation of -16defendant, clearly revealed in the record, can in no way be deemed ineffective based on a conflict of interest or any other theory. Defendant has failed to show that defense counsel s performance fell below an objective standard of reasonableness. See Braswell, 312 N.C. at 561 62, 324 Accordingly, we overrule defendant s argument. No error. Judges CALABRIA and GEER concur. S.E.2d at 248.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
