State v. Aguallo

370 S.E.2d 676, 322 N.C. 818, 1988 N.C. LEXIS 476
CourtSupreme Court of North Carolina
DecidedJuly 28, 1988
Docket326A87
StatusPublished
Cited by47 cases

This text of 370 S.E.2d 676 (State v. Aguallo) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Aguallo, 370 S.E.2d 676, 322 N.C. 818, 1988 N.C. LEXIS 476 (N.C. 1988).

Opinion

FRYE, Justice.

Defendant’s appeal of his conviction and resulting sentence of life imprisonment reaches this Court for a second time. Defendant’s first appeal resulted in a new trial. See State v. Aguallo, 318 N.C. 590, 350 S.E. 2d 76 (1986). A thorough review of the record and assignments of error reveals that defendant’s second trial was free of error.

We need only repeat those facts that are necessary to dispose of the case on this appeal. The State presented evidence which tended to show that defendant had vaginal intercourse with his stepdaughter, age nine, on 12 December 1984. During the course of the trial, the State called as witnesses a social services case worker and a juvenile investigator, both of whom had questioned the young victim following the assault. The two witnesses testified to the general characteristics of sexually abused children. The State also presented testimony from an examining pediatrician to corroborate the testimony of the child.

Defendant testified on his own behalf, essentially contending that the testimony of the prosecutrix was untrue. The jury returned a verdict of guilty of first degree rape, and the trial judge sentenced defendant to the mandatory life term. Defendant again appeals as a matter of right.

Defendant, by his first assignment of error, contends that the trial court erred by allowing two witnesses to testify to the characteristics of sexually abused children. Defendant argues that such evidence was improper since the witnesses were not qualified as experts and that their testimony fails as lay opinion because it was not “rationally based on the perceptions of the witness.” N.C.G.S. § 8C-1, Rule 701 (1986).

During the State’s case-in-chief, the prosecutor called Amy Collins as a witness. Collins testified on direct examination that she was a case worker with the Davie County Department of Social Services in child protective services. She had been employed in that capacity for fourteen years and had investigated between *821 twenty-five and thirty cases of child sexual abuse. She interviewed the victim in this case, who told her about the abuse inflicted upon her by defendant. The prosecutor also called Juvenile Investigator Linda Sturgill of the Forsyth County Sheriffs Department. Ms. Sturgill had been employed in that capacity for seven years and had investigated over one hundred cases of child sexual abuse. The substance of both witnesses’ testimony was a portrayal of the typical sexually abused child. Defendant offered general objections to most of this testimony.

In considering this assignment of error, we find instructive this Court’s decision in State v. Phifer, 290 N.C. 203, 225 S.E. 2d 786 (1976). There, the defendant objected to the trial judge’s decision to allow into evidence the testimony of two SBI agents. One agent gave his opinion as to whether the washing of one’s hands would destroy any possibility of a valid gun residue test, and a second agent explained the differences between a latent lift and a fingerprint. Neither of the agents had been formally qualified as experts. We held that because of the nature of their jobs and the experience which they had, they were better qualified than the jury to form an opinion on these matters. Id. at 213, 225 S.E. 2d at 793. The Court further held that because the defendant never requested a finding by the trial court as to the witnesses’ qualifications as experts, such a finding was deemed implicit in the ruling admitting the opinion testimony. Id. at 213-14, 225 S.E. 2d at 793.

In the instant case, Ms. Collins had over fourteen years in child protective services and had during that time worked on between twenty-five and thirty cases of child sexual abuse. Investigator Sturgill, likewise, was experienced in the area of child sexual abuse by having investigated some one hundred cases. It is evident that the nature of their jobs and the experience which they possessed made them better qualified than the jury to form an opinion as to the characteristics of abused children. In any event, defendant interposed only general objections to the testimony which is the subject of this assignment of error. He, like defendant in Phifer, never requested a finding by the trial court as to the witnesses’ qualifications as experts. In the absence of such a request, the finding that the witness is an expert is implicit in the trial court’s ruling admitting the opinion testimony. Id. Moreover, since defendant did not object on the grounds that *822 the testifying witnesses were not qualified as experts, he has waived his right to later make the challenge on appeal. State v. Hunt, 305 N.C. 238, 287 S.E. 2d 818 (1982).

By defendant’s second assignment of error, he contends that the pediatrician’s testimony that the results of the physical examination weré consistent with the victim’s pre-examination statement was a comment on the victim’s truthfulness or the guilt or innocence of defendant. We disagree.

Dr. Sinai, who performed a complete examination of the victim, testified that there had been a “lacerational cut” in the hymen area of the child. When asked if the findings from the physical examination were consistent with what the child had told her, the doctor responded affirmatively. At a later time during direct examination, the prosecutor again asked the doctor if, in her opinion, the lacerations and adhesions she found were consistent with what the child had told her. Over objection she responded, “I felt it was consistent with her history.”

Defendant relies on a line of cases in which this Court has held it reversible error for medical experts to testify as to the veracity of the victim. This Court has found reversible error when experts have testified that the victim was believable, had no record of lying, and had never been untruthful. See State v. Aguallo, 318 N.C. 590, 350 S.E. 2d 76; 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). This case, however, is distinguishable.

Essentially, the doctor testified that the physical trauma revealed by her examination of the child was consistent with the abuse the child alleged had been inflicted upon her. We find this vastly different from an expert, stating on examination that the victim is “believable” or “is not lying.” The latter scenario suggests that the complete account which allegedly occurred is true, that is, that this defendant vaginally penetrated this child. The actual statement of the doctor merely suggested that the physical examination was consistent with some type of penetration having occurred. The important difference in the two statements is that the latter implicates the accused as the perpetrator of the crime by affirming the victim’s account of the facts. The former does not.

*823 The statement of the doctor only revealed the consistency of her findings with the presence of vaginal trauma. This expert opinion did not comment on the truthfulness of the victim or the guilt or innocence of defendant. The questions and answers were properly admitted to assist the jury in understanding the results of the physical examination and their relevancy to the case being tried. N.C.G.S.

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Bluebook (online)
370 S.E.2d 676, 322 N.C. 818, 1988 N.C. LEXIS 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-aguallo-nc-1988.