State v Walton

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NO. COA14-402 NORTH CAROLINA COURT OF APPEALS Filed: 21 October 2014 STATE OF NORTH CAROLINA v. Johnston County No. 11CRS052914 MALIK JAQUEZ WALTON, Defendant. Appeal by defendant from judgments entered 10 July 2013 and 30 July 2013 by Judge Thomas H. Lock in Superior Court, Johnston County. Heard in the Court of Appeals 9 September 2014. Attorney General Roy A. Cooper, III, by Special Attorney General William V. Conley, for the State. Deputy Mark Montgomery, for defendant-appellant. STROUD, Judge. Defendant appeals judgments convicting him of first degree sexual offense and second degree kidnapping. For the following reasons, we find no error. I. Background The State s evidence tended to show that in May of 2011, Stacy1 was in a bedroom with defendant and her fifteen-month old son. 1 Defendant was the father of Stacy s son. Defendant A pseudonym will be used to protect the identity of those involved. -2slapped Stacy and began repeatedly choking her and threatened to kill her as he held a knife to her neck. Defendant then put both his fingers and his penis in Stacy s vagina and her anus. Defendant was kidnapping, indicted and first for second degree degree sexual rape, offense. first degree Defendant was tried by a jury, and the jury found him guilty of second degree kidnapping and first degree sexual offense. entered judgments accordingly. II. The trial court Defendant appeals. Medical History Testimony Defendant first contends that the trial court committed plain error in allowing two medical witnesses to testify that [Stacy] s history was (Original in all caps.) Nurse Tonia Nowak consistent with sexual assault. Defendant argues that Emergency Room testified that [Stacy] s injuries were consistent with her history. . . . Emergency Room Physician Dr. Brendan Berry testified that [Stacy] s demeanor, history and examination, was consistent with the sexual assault that she described. . . . This was reversible error. As defendant did not object to the testimony, he now asks that we review his contentions for plain error. See State v. Harding, 110 N.C. App. 155, 161, 429 S.E.2d 416, 420 (1993) ( Due to defendant s -3failure to object at trial, we must review this objection under the plain error rule. ) For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations, quotation marks, and brackets omitted). Furthermore, our Supreme Court has established that [a] prerequisite to our engaging in a plain error analysis is the determination that the instruction complained of constitutes error at all. State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, (quotation marks omitted), cert. denied, 479 U.S. 836, 93 L.Ed. 2d 77 (1986). Here, both Nurse Nowak and Dr. Berry testified as expert witnesses. An expert witness may not testify as to the credibility of a witness. Nonetheless, an expert witness may testify, upon particular a proper complainant consistent therewith. foundation, has as symptoms to . or . . whether a characteristics State v. Khouri, 214 N.C. App. 389, 401, -4716 S.E.2d omitted), (2012). expert 1, 9-10 (2011) (citations disc. review denied, and quotation marks 365 N.C. 546, 742 S.E.2d 176 Here, even by defendant s own summary in his brief, the witnesses testified that the physical evidence they observed was consistent with Stacy s allegations of abuse; the witnesses did not state that Stacy s allegations were credible. Defendant directs this Court to State v. Frady, but in that case the testifying witness had not examined the individual alleging sexual abuse, but here both Dr. Brown and Nurse Nowak examined Stacy and testified regarding Frady is not applicable. ___, 747 S.E.2d 164, the examination; accordingly, See State v. Frady, ___ N.C. App. ___, 167 ( It is well settled that expert opinion testimony is not admissible to establish the credibility of the victim as a witness. However, those cases in which the disputed the testimony concerns credibility of a witness s accusation of a defendant must be distinguished from cases in which the expert s testimony relates to a diagnosis based on the expert s examination of the witness. With respect to expert testimony in child sexual abuse prosecutions, our Supreme Court has approved, upon a proper foundation, the admission of expert testimony with respect to the characteristics of sexually abused children and whether the particular complainant has symptoms -5consistent with those characteristics. In order for an expert medical witness to render an opinion that a child has, in fact, been sexually foundation, abuse. abused, i.e. the State physical (citations, must evidence quotation marks, establish consistent and a proper with sexual brackets omitted)), disc. review denied, 367 N.C. 273, 752 S.E.2d 465 (2013). This argument is overruled. III. Trial Court s Instructions Defendant committed plain victim. the jury next contends error in that identifying (Original in all caps.) instructions, so the we trial . . court . erred [Stacy] or as a Defendant did not object to review for plain error. See Harding, 110 N.C. App. at 161, 429 S.E.2d at 420. This Court has previously determined that use of the word victim by the trial court is generally not plain error, see State v. Surratt, 218 N.C. App. 308, 309-10, 721 S.E.2d 255, 256, disc. review denied, 365 N.C. 559, 722 S.E.2d 600 (2012). We agree that in a case where there is a jury question as to whether an act is actually a criminal offense or as to whether the alleged act actually happened to the complaining witness, there is technically a question of whether there was a victim. See State v. Walston, ___ N.C. App. ___, ___, 747 S.E.2d 720, 727 (2013) ( The issue -6of whether sexual offenses occurred and whether E.C. and J.C. were victims were issues of fact for the jury to decide. ), disc. review denied, 367 N.C. 290, 753 S.E.2d 666 (2014). Black s Law Dictionary defines victim as [a] person harmed by a crime, tort, or other wrong. (9th ed. 2009). Black s Law Dictionary 1703 So use of the word victim, both in denotation and connotation, means that the complaining witness was harmed by a crime, tort, or other wrong. Id. But in this case, defendant did not object to use of the term victim. Stacy testified that defendant choked her, threatened to kill her as he held a knife to her neck, and then inserted both his fingers and penis into her vagina and anus. In addition, the physical evidence of Stacy s injuries corroborated her testimony. We cannot determine that the jury might reasonably have reached a different verdict if the reference to victim in the jury instructions had not occurred, so we do not find plain error. See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. IV. Conclusion For the foregoing reasons, we find no error. NO ERROR. Judges MCGEE and BRYANT concur.

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