State v. Pettigrew
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-672 NORTH CAROLINA COURT OF APPEALS Filed: 16 December 2014 STATE OF NORTH CAROLINA Franklin County No. 05-CrS-51895 v. NATHAN RANDALL PETTIGREW Appeal by defendant from judgments entered 18 December 2013 by Judge Robert H. Hobgood in Franklin County Superior Court. Heard in the Court of Appeals 19 November 2014. Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State. Russell J. Hollers III for Defendant. ERVIN, Judge. Defendant Nathan Randall Pettigrew appeals from judgments entered based upon his convictions for statutory rape and taking indecent liberties with a child. On appeal, Defendant contends that plain the trial court committed error by allowing the admission of expert testimony that the alleged victim had been sexually assaulted. After careful consideration of Defendant’s challenge to the trial court’s judgments in light of the record -2and the applicable law, we conclude that the trial court’s judgments should remain undisturbed. I. Factual Background A. Substantive Facts On 1 July 2005, D.B.1 was a 15-year-old high school girl who attended Darla Wake was Forest-Rolesville visiting two of her High School. cousins, Angelica Alisha Wilson, at her uncle’s house in Bunn. wife pulled a gun on her uncle, Darla On that date, Wilson and After her uncle’s left the house with Angelica and her boyfriend, Frankie Batchelor, and went to Mr. Batchelor’s apartment in Youngsville at some point between 9:00 p.m. and 11:00 p.m. Upon arriving at the apartment complex, Defendant, who lived upstairs, to come Angelica, and Mr. Batchelor. Angelica and talk with called Darla, Prior to the date in question, Darla had never met Defendant. At some point, Angelica and Mr. Batchelor entered Mr. Batchelor’s apartment, leaving Darla alone with Defendant, who asked Darla if she wanted to go upstairs to his apartment. After entering the apartment, Darla and Defendant sat in the living room and talked. 1 During their conversation, someone D.B. will be referred to throughout the remainder of this opinion as Darla, a pseudonym used for ease of reading and to protect the individual’s privacy. -3knocked on the apartment door. At that point, Defendant told Darla that the visitor might be his girlfriend, Peggy Woodlief, and told Darla to wait in his bedroom. A minute or so later, Defendant joined Darla, who was seated on his mattress in the bedroom, and started kissing her. Although Darla pleaded with Defendant to stop, Defendant forced his hands down the front of her pants before entering the closet to retrieve a condom. Upon returning to the location at which Darla was situated, he pushed her legs up to her chest and vaginally penetrated her. After about thirty seconds to two minutes had elapsed, Defendant rose, went into the bathroom, and flushed the condom down the toilet. had ended, Darla Once Defendant’s assault left Defendant’s apartment and went to Mr. Batchelor’s apartment, where she remained for the rest of the night. On the following morning, Darla and Angelica returned to the residence of Angelica’s parents in Bunn. After their arrival, Darla told Angelica’s mother and Alisha everything that had happened during the preceding evening. Approximately two hours and took her Darla gave a later, Youngsville Darla’s Police parents Department, arrived where to the statement describing the events of the preceding evening to investigating officers. -4After their departure from the Youngsville Police Department, Darla and her parents went to Maria Parham Hospital in Henderson, where Darla was examined by Theresia Blackwell, a sexual assault nurse examiner. statement from Darla about Ms. Blackwell took a detailed the events that occurred on the preceding evening and performed a physical examination, which did not disclose any indication of any signs of trauma in or around Darla’s vaginal area, the presence of semen or other bodily fluids, or any other physical evidence that a sexual assault had occurred. B. Procedural History On 5 July 2005, a warrant for arrest was issued charging Defendant with statutory rape of a person who was 13, 14, or 15 years old and taking indecent liberties with a child. On 29 November 2005, the Franklin County grand jury returned a bill of indictment charging Defendant with statutory rape of a person who was 13, 14, or 15 years old and taking indecent liberties with a child. before the The charges against Defendant came on for trial trial court and a jury at the 16 December criminal session of the Franklin County Superior Court. 2013 On 18 December 2013, the jury returned verdicts convicting Defendant of statutory rape of a person who was 13, 14, or 15 years old and taking indecent liberties with a child. At the conclusion -5of the ensuing sentencing hearing, the trial court entered judgments sentencing Defendant to a term of 288 to 355 months imprisonment based upon his conviction for statutory rape of a person who was 13, 14, or 15 years old and to a concurrent term of 19 to 23 months based liberties with a child. upon his conviction for indecent Defendant noted an appeal to this Court from the trial court’s judgments. II. Substantive Legal Analysis In his sole challenge to the trial court’s judgments, Defendant contends that the trial court committed plain error by allowing the admission of testimony to the effect that Darla was the victim of a sexual assault. More specifically, Defendant contends that the trial court erroneously allowed Ms. Blackwell to provide an expert opinion that Darla had been the victim of a sexual assault despite the absence of any physical evidence tending to show that a sexual assault had, in fact, occurred. Defendant is not entitled to relief from the trial court’s judgment on the basis of this contention. A. Relevant Facts As we have already noted, the State presented the testimony of Ms. Blackwell, who discussed the interview with and examination of Darla that she conducted on the day following the -6alleged sexual assault, at trial. During the course of her testimony, Ms. Blackwell testified that: [Prosecutor]: Describe throughout this. [Darla’s] demeanor [Ms. Blackwell]: She was very cooperative and she was – I said she was tearful but you could see that she was scared. She was – when we have victims of sexual assault it’s – you have – they have to understand and we have to understand that it’s – that the test and the process that we have to go through is sort of – it is almost like repeating the incident again. And to explain that to her and to her to understand that and she – her – she just wanted to get it over. She knew, after I explained it, she wanted to get it over with and during the process it was like – it was tightening or you could sense this feel [sic] [or] I just – tightening or just nervousness or just shakiness. But she was very cooperative during that. And you didn’t have to say, okay, in calming her down. She cooperated during the whole exam. [Prosecutor]: Is that common behavior to sexual assault victims? [Ms. Blackwell]: Defendant did not lodge Yes, sir, yes, sir. an objection to any portion of the testimony that Ms. Blackwell delivered during this colloquy with the prosecutor in the court below. B. Standard of Review According to well-established North Carolina law, the admission of evidence without objection during the course of a criminal trial is reviewed on appeal for plain error. State v. -7Locklear, 172 N.C. App. 249, 259, 616 S.E.2d 334, 341 (2005). “For error to constitute plain error, a defendant demonstrate that a fundamental error occurred at trial. that an error was prejudice--that, error had a fundamental, after probable 723 S.E.2d 326, 334 citation omitted). examination impact defendant was guilty.” a on defendant of the the must entire jury’s must To show establish record, finding that the the State v. Lawrence, 365 N.C. 506, 518, (2012) (internal quotation marks and We will now review Defendant’s challenge to the trial court’s judgments utilizing the applicable standard of review. C. Admissibility of Ms. Blackwell’s Testimony 1. Relevant Legal Principles As we have already noted, Defendant contends that the trial court committed plain error by allowing Ms. Blackwell to give an expert opinion assault. Carolina that Darla had been the victim of a sexual N.C. Gen. Stat. § 8C-1, Rule 702(a) of the North Rules of Evidence provides that, “[i]f 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.” “Our appellate courts have consistently -8held that the prosecuting testimony witness is of an expert believable, truth is inadmissible evidence.” abuse, evidence their attest[] to that opinions the inadmissible. would that effect or that telling a the State v. Bailey, 89 N.C. App. Where “experts [find] no support sexual truthfulness the credible, 212, 219, 365 S.E.2d 651, 655 (1988). clinical to of a abuse the diagnosis child sexual occurred had of merely witness” and are State v. Grover, 142 N.C. App. 411, 413, 543 S.E.2d 179, 181 (quoting State v. Dick, 126 N.C. App. 312, 315, 485 S.E.2d 88, 90, disc. review denied, 346 N.C. 551, 488 S.E.2d 813 (1997)), “However, an aff’d, expert 354 N.C. witness 354, may 553 S.E.2d testify, 679 upon a (2001). proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.” State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002) (citing State v. Hall, 330 N.C. 808, 818, 412 S.E.2d 883, 888 (1992)). 2. Ms. Blackwell’s Status as Expert In its brief, the State asserts that any opinions that Ms. Blackwell expressed should be viewed as having been provided by a lay witness rather than an expert. In support of this contention, the State points out that Ms. Blackwell was never formally tendered as, or found to be, an expert. However, we do -9not believe that the absence of a formal determination concerning the extent to which Ms. Blackwell should be allowed to testify as an expert is controlling in this instance. As the Supreme Court and this Court have clearly held, in the event that the nature of the witness’ job and the experience that the witness possesses make the witness better qualified than the jury to form an opinion concerning the characteristics of abused children or any other subject, “the finding that the witness is an expert is implicit in the trial court’s ruling admitting the opinion testimony.” State v. Aguallo, 322 N.C. 818, 821, 370 S.E.2d 676, 677 (1988); see State v. King, __ N.C. App. __, __, 760 S.E.2d 377, 379-80 (2014) (finding that the trial court implicitly treated the witness as an expert given the witness’ education and experience concerning child abuse-related issues). The Blackwell, undisputed who was record a evidence registered establishes nurse, worked assault nurse examiner at Maria Parham Hospital. that as a Ms. sexual In view “of the nature of [her] job and the experience which [s]he had had, [s]he was better qualified than the jury to form an opinion on this matter,” State v. Phifer, 290 N.C. 203, 213, 225 S.E.2d 786, 793 (1976), cert. denied, 429 U.S. 1123, 97 S. Ct. 1160, 51 L. Ed. 2d 573 (1977), making Ms. Blackwell’s status as an expert in “the evaluation [of] sexual abuse [] implicit in the trial -10court’s admission of her testimony regarding common behaviors in [individuals] who have suffered from sexual abuse.” N.C. App. at __, 760 S.E.2d at 380. Blackwell delivered during the King, __ Thus, any opinions that Ms. course of her testimony were expert, rather than lay, in nature. 3. Admissibility of Ms. Blackwell’s Opinion As Defendant acknowledged contends during her that and as testimony, would Ms. Blackwell the support a record effectively contains clinical evidence diagnosis of abuse.” Grover, 142 N.C. App. at 413, 543 S.E.2d at 181. “no sexual In light of that fact, any testimony that Ms. Blackwell might have given to the effect that Darla had been sexually assaulted would have been inadmissible. challenged portion of We do not believe, however, that the Ms. Blackwell’s testimony violated the evidentiary principle upon which Defendant relies. A close reading of the relevant portion of Ms. Blackwell’s testimony indicates that, rather than making an assertion that Darla had been the victim of a sexual assault, Ms. Blackwell’s testimony consisted of a description of the characteristics of sexually abused children and a discussion of the extent, if any, to which Darla’s conduct was consistent with the manner in which sexually abused children typically acted. request that she describe Darla’s In response to a demeanor, Ms. Blackwell -11testified, in essence, that Darla was both scared and cooperative; that the process of performing a sexual assault examination is “almost like repeating the incident”; that Ms. Blackwell had to explain the nature of the process to Darla, who just wanted to get “it over with”; and that, while she could “sense this feel” or “tightening or just nervousness or just shakiness” in Darla, Ms. Blackwell did not have to calm Darla down. After giving this description of Darla’s demeanor, Ms. Blackwell responded in the affirmative when the prosecutor asked, “[i]s that common behavior to sexual assault victims?” As a result, the challenged portion of Ms. Blackwell’s testimony consisted of a description of Darla’s demeanor during the examination as cooperative leavened with a degree of nervousness and inquietude. In the course of answering the prosecutor’s question concerning Darla’s demeanor, Ms. Blackwell did state that Darla “was – when we have victims of sexual assault it’s – you have – they have to understand and we have to understand” that “the test and the process that we have to go through is sort of – it is almost like repeating the incident again.” Although this portion of Ms. Blackwell’s testimony does contain a reference to the attitudes of victims of sexual assault toward the examination process, we believe, when read in context, that this -12very brief explanation statement that Ms. is, at Blackwell most, gave one component for Darla’s of the nervousness rather than an assertion that Darla had been the victim of a sexual assault. In view of the fact that Ms. Blackwell, who served as the sexual assault nurse examiner at the hospital at which she worked, was clearly competent to describe the manner in which the victims of sexual assault typically respond to the examination process and the fact that this information would tend to explain the reason for Darla’s nervousness during that process, the statement in question, “if believed, could help the jury understand the assist behavior it in patterns assessing of the sexually credibility abused children and of the victim.” State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 366 (1987). As a result, we do not believe that Ms. Blackwell’s brief reference to the manner in which victims of sexual assault typically react impermissible to the expression examination of process opinion constituted concerning an Darla’s credibility. 4. Plain Error Analysis In addition, we are unable to conclude that the admission of any inadmissible testimony that Ms. Blackwell may have given in the course of discussing Darla’s demeanor examination process constituted plain error. during the In support of his -13request for a contrary determination, Defendant places principal reliance on our decision in State v. Ryan, __ N.C. App. __, __, 734 S.E.2d 598, 606 (2012), disc. review denied, 366 N.C. 433, 736 S.E.2d 189 (2013), in which we stated 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 of finding the defendant guilty of a sexual assault charge. Although the record does not, as we have already noted, contain any physical evidence tending to indicate that a sexual assault had occurred, overwhelming. that the evidence of Defendant’s guilt was In addition to Darla’s testimony to the effect Defendant had had vaginal intercourse with her, Ms. Woodlief testified that, after knocking on Defendant’s door on the night of the assault, she peered through a crack in the window blinds and saw Darla lying on her back on a blow-up mattress in the living room wearing only a T-shirt and socks. Similarly, Angelica Wilson testified that Darla was in Defendant’s apartment during the time when the assault allegedly occurred. Darla’s father testified that, when he called Defendant and told him that Darla was only 15, Defendant replied -14that “he did not mean for this to happen like it did.” Officer Ron Atkins of the Youngsville Police Department testified that Defendant actively evaded arrest until he was taken into custody in Mississippi on unrelated charges in 2011. Defendant did not present any evidence tending to cast doubt on the credibility of Darla’s description of his conduct. Thus, even if the jury had been precluded from hearing Ms. Blackwell’s passing reference to the effect of the examination process on the victims of sexual assault, we cannot say that the outcome at Defendant’s trial would probably have been different. As a result, for all of these reasons, Defendant is not entitled to relief from the trial court’s judgments on the basis of the admission of the challenged portion of Ms. Blackwell’s testimony. III. Conclusion Thus, Defendant for is the not reasons entitled set to forth relief above, from the we hold trial that court’s judgments on the basis of the argument that he has advanced before this Court. As a result, the trial court’s judgments should, and hereby do, remain undisturbed. NO ERROR. Judges ELMORE and DAVIS concur. Report per Rule 30(e).
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