State v. Taylor
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-988 NORTH CAROLINA COURT OF APPEALS Filed: 15 April 2014 STATE OF NORTH CAROLINA v. Catawba County No. 11 CRS 5731 WILLARD MARSHALL TAYLOR, JR. Appeal by defendant from judgment entered 7 March 2013 by Judge Timothy S. Kincaid in Catawba County Superior Court. Heard in the Court of Appeals 19 February 2014. Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for the State. Dianne Jones McVay, for defendant-appellant. HUNTER, Robert C., Judge. Defendant Willard Marshall Taylor, Jr. appeals the judgment entered after a jury found him guilty of one count of taking indecent liberties with a child. that: On appeal, defendant argues (1) the trial court committed plain error when it allowed a physician s assistant and an investigator for Child Protective Services to testify about statements made to them by the victim s mother, (2) the trial court committed plain error by -2allowing a credibility, State s witness and the (3) to trial vouch court for erred the when victim s it denied defendant s motion to dismiss for insufficiency of the evidence. After careful review, we find no error. Background On 1 August 2011, defendant was indicted in Catawba County on one count of granddaughter, M.T. taking indecent liberties with his The offense was alleged to have occurred between 1 November and 31 December 2010 when M.T. was five years old. The State s following: evidence at trial tended establish the M.T. s parents, Brad defendant s son and Cara,1 were separated and living apart in October 2009. alleged to abuse, Brad resided with At the time of the defendant. Although M.T. continued to reside with Cara, an informal custody agreement provided that Brad would keep M.T. every other weekend. Sometime around the end of 2010 and the beginning of 2011, after a weekend visit with Brad, Cara first became concerned about M.T. s behavior after M.T. refused to allow her in the bathroom to help her shower or dry off. Cara also claimed that M.T. began humping a stuffed animal. M.T. allegedly told Cara that her vaginal area hurt and burned. After one weekend visit, 1 For purposes of this opinion, to protect the identity of the minor child, we have used initials and pseudonyms for the victim and her parents. -3Cara examined M.T. and saw vaginal discharge; M.T. s vagina also appeared really red. When Cara asked M.T. what happened, M.T. responded that defendant put his finger in her rose. M.T. referred to her genital area as her rose. On 4 February 2011, Cara took M.T. to Gary Poston ( Poston ), a physician s assistant at a local medical clinic. Poston testified that Cara told him that M.T. grandfather of putting his finger in her vagina. accused her After learning of the possibility of sexual abuse, Poston declined to examine M.T.; instead, he referred Cara to the Department of Social Services ( DSS ) for follow-up as he had been trained to do in alleged sexual abuse situations. After leaving the clinic, Cara took M.T. directly to the Newton Police Department where she met with Child Protective Services investigators Thomas Neff ( Neff ) and Brian Cloninger ( Cloninger ). done. Cara told them what M.T. claimed defendant had Neff and Cloninger arranged an interview and medical exam for M.T. at the Children s Advocacy Protection Center ( CAPC ). On 9 pediatric February nurse 2011 at practitioner, CAPC, Beth performed examined M.T. for signs of sexual abuse. Osbahr the ( Osbahr ), medical exam a and Osbahr testified that she did not observe any physical evidence of sexual abuse during M.T. s examination, but the time-frame between the alleged abuse and examination would make it unlikely to find physical -4evidence. After the medical exam, Neff, a trained forensic interviewer, performed a recorded interview with M.T.; no one else was in the room with them. During the interview, M.T. claimed that defendant had touched her vagina while she was at defendant s home. A recording of that interview was played to the jury at trial. Following the CAPC interview and examination, Brad sought an additional interview of M.T. in his presence, which was later conducted by Adrienne Opdyke ( Opdyke ). This later interview was conducted at the District Attorney s office with M.T., Brad, Opdyke, and the district attorney present. testified as interviewing. an expert witness in the At trial, Opdyke field of She testified that M.T. told her that defendant touched her rose in the bathroom of his home. testified as forensic to the proper method of Opdyke also conducting a forensic interview with a child. At trial, the following witnesses testified on defendant s behalf: his two sons, Brad and Justin; defendant s wife, Rhonda; and defendant himself. that after Neff s All four defense witnesses testified interview with M.T., each questioned M.T. about the alleged sexual abuse even though Neff had instructed them not to. All four defense witnesses claimed that M.T. denied that defendant touched her; instead, M.T. alleged that Cara told her to say that she had been touched. Brad recorded -5one of these conversations he had with M.T. where she claimed that Peepaw didn t touch her. A transcript of the recording was trial. admitted into evidence at On rebuttal, Opdyke testified that she had concerns about Brad s recording of his interview with M.T. In her opinion, Opdyke claimed that several of his questions were ambiguous and confusing. On 7 March 2013, a jury found defendant guilty on one count of taking indecent liberties with a child. Defendant was sentenced to a minimum of 13 months and a maximum of 16 months imprisonment. defendant was The trial placed on court suspended supervised the probation sentence, for 36 and months. Defendant gave notice of appeal in open court. Discussion A. Hearsay Defendant error by hearsay. first admitting argues the testimony Specifically, trial that defendant court committed constituted contends that plain inadmissible Poston s and Neff s testimony concerning statements Cara made to them about what M.T. had told her constituted double hearsay. Defendant did not object at trial to the We disagree. admission of Poston s or Neff s testimony; thus, the trial court s admission of their statements is reviewed for plain error, State Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). v. For error to constitute plain error, a defendant must demonstrate -6that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish . . . the error had a probable defendant was guilty. Hearsay is a impact on the jury s finding that the Id. (citations and quotations omitted). statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. State v. Stanley, 213 N.C. App. 545, 552, 713 S.E.2d 196, 201 (2011). When evidence of such statements by one other than the witness testifying is offered for a proper purpose other than to prove the truth of the matter asserted, it is not hearsay and is admissible. Specifically, statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made. State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990) (internal citations and quotation marks omitted). Defendant challenges the testimony of Poston and Neff concerning statements Cara made to them about things M.T. had told her. Specifically, defendant claims that Poston s testimony that Cara told him that M.T. told her pawpaw had touched her in the vaginal area and rubbed her very hard and Neff s testimony that Cara told him that M.T. claimed that defendant had touched [M.T.] in a private part constituted inadmissible double hearsay. However, neither Cara s out-of- court statements to them nor M.T. s out-of-court statements to -7Cara constituted hearsay because neither were offered at trial as substantive truth that defendant had touched M.T. Instead, these statements were offered for a purpose other than asserting the truth of the matter asserted; they were used to explain subsequent actions by Poston and Neff. Specifically, these statements explained why Poston referred Cara to DSS and why Neff initiated Therefore, an since investigation neither Poston s into the nor Neff s alleged abuse. testimony was offered to prove the truth of the matter asserted, the out-ofcourt statements by M.T. and her mother were not hearsay, and the trial court did not err, much less commit plain error, in admitting Poston s and Neff s testimony. B. Opdyke s Testimony Regarding M.T. s Credibility Defendant next argues the trial court committed plain error when it allowed the State s expert witness to vouch for M.T. s credibility. We disagree. 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, testify thereto in the form of an opinion. or education, may State v. Green, 209 N.C. App. 669, 675-76, 707 S.E.2d 715, 720 (2011); N.C. R. Evid. 702(a). However, [i]t is fundamental to a fair trial that the credibility of the witnesses be determined by the jury . . . -8[and thus] an expert s opinion to the effect that a witness is credible, believable, or truthful is inadmissible. State v. Boyd, 200 N.C. App. 97, 103, 682 S.E.2d 463, 468 (2009) (quoting State v. Hannon, 118 N.C. App. 448, 451, 455 S.E.2d 494, 496 (1995)). Defendant argues his case is similar to State v. Giddens, 199 N.C. App. 115, 121-22, 681 S.E.2d 504, 508 (2009), where this Court held that the trial court committed prejudicial error when the State s witness, a DSS investigator, testified that her investigation substantiated that the defendant had committed the crime. See also State v. Couser, 163 N.C. App. 727, 730-31, 594 S.E.2d 420, 422-23 (2004) (holding that the trial court committed prejudicial error when the expert witness testified after speaking sexually with abused ); the State child v. that Ryan, __ the child N.C. App. was probably __, __, 734 S.E.2d 598, 604 (2012) (concluding the trial court committed prejudicial error by allowing the expert witness to testify that she was not concerned that the child was giving a fictitious story ). Defendant contends Opdyke substantiated M.T. s testimony through her description of her forensic interview with M.T. and her analysis of Brad s recorded interview with M.T. However, unlike Giddens where the DSS investigator actually said she substantiated that defendant was guilty, 199 N.C. App. at 121-22, 681 S.E.2d at 508, or other cases where an -9expert testifies as to the credibility of the victim, Opdyke never provided her expert opinion that M.T. had been truthful during their interview. Q: What interview? Opdyke testified as follows: is the goal of the forensic A: To allow the child to talk about an event, if it happened, in their own words without leading. And it has to be developmentally correct, so I m going to the use terms and words that a six-year-old may use. Q: What efforts are made to try to get the truth from the child? A: Just by asking the open-ended questions, real open questions. You know, the best is when a child tells you the narrative form where you re not asking this -- you know, asking specific questions but open questions, Tell me what happened or tell me more about that, and then it comes directly from the child. Q: Now, specifically about the interview you did with [M.T.]. Please describe what you remember of the interview and what you did and, of course, what the child told you. A: the she and Okay . . . I asked her to tell me about event that happened with her pawpaw. And told me about pawpaw touching her rose happening in the bathroom. Opdyke never testified as to her opinion of M.T. s truthfulness or credibility; instead, she testified as to how she conducted her interview and what M.T. told her. Thus, her testimony does not substantiation constitute the type Giddens, Couser, or Ryan. of victim found in Accordingly, the trial court did not -10err, much less commit plain error, in allowing her testimony into evidence. C. Motion to Dismiss Next, defendant argues the trial court erred by denying his motion to dismiss for insufficiency of the evidence. Specifically, defendant contends that the State did not present sufficient evidence that defendant touched M.T. for the purpose of arousing and gratifying his sexual desires. The evidence novo. denial is a of a question motion of law, to dismiss which this We disagree. for Court insufficient reviews de State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007) (citations omitted). A motion to dismiss is reviewed for whether the State presented substantial evidence of each element of the offense and defendant s being the perpetrator. State v. Hernandez, 188 N.C. App. 193, 196, 655 S.E.2d 426, 429 (2008) (quotations omitted). Here, defendant was charged with taking indecent liberties with a child in violation of N.C. Gen. Stat. § 14-202.1. The essential elements required for conviction under N.C. Gen. Stat. § 14-202.1 are: (1) the defendant was at least 16 years of age; (2) he was five years older than his victim; (3) he willfully took or attempted to take an indecent liberty with the victim; (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred; and (5) the action by the -11defendant was for the purpose of arousing or gratifying sexual desire. State v. Thaggard, 168 N.C. App. 263, 282, 608 S.E.2d 774, 78687 (2005); N.C. Gen. Stat. § 14-202.1 (2011). Defendant only challenges the third and fifth elements on appeal. First, defendant argues that the State did not present substantial evidence that he willfully took an indecent liberty with M.T. This Court has continuously held that [t]he uncorroborated testimony of the victim is sufficient to convict under N.C.G.S. § 14-202.1 if the testimony establishes all of the elements of the offense. State v. McClary, 198 N.C. App. 169, 175, 679 S.E.2d 414, 419 (2009) (quoting State v. Quarg, 334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993)). During defendant s trial, M.T. testified that defendant pulled down her pants and put his finger in her vagina while M.T. was visiting defendant s home. Moreover, the State provided additional witness testimony that corroborated M.T. s allegations. Thus, the State presented substantial evidence that defendant willfully took an indecent liberty with M.T. Next, defendant argues the State failed to present substantial evidence that his actions were for the purpose of sexual arousal defendant s or actions gratification. were for the The purpose requirement of arousing that or gratifying sexual desire may be inferred from the evidence of -12the defendant s actions. McClary, 198 N.C. App. at 174, 679 S.E.2d at 419 (holding an inference of sexual gratification was not in error when defendant only sent the victim letters but never had sexual intercourse with the victim). Here, M.T. testified that defendant actually carried out the sexual act of inserting his finger into M.T. s vagina. Such evidence was sufficient to permit the jury to infer that defendant s purpose in doing so was to arouse himself or to gratify his sexual desire. See generally State v. Rogers, 109 N.C. App. 491, 505- 06, 428 S.E.2d 220, 228-29 (1993) (holding the evidence that the defendant touched the victim s chest and vaginal sufficient to permit the jury to infer that the area was defendant s purpose in doing so was to arouse himself or to gratify his sexual desire). Conclusion Based on the foregoing reasons, defendant s trial was free from error. NO ERROR. Judges GEER and McCULLOUGH concur. Report per Rule 30(e).
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.
