IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-556
Filed 5 March 2024
Mecklenburg County, No. 19 CRS 238696
STATE OF NORTH CAROLINA
v.
ALEJANDRO CORDOVA AGUILAR.
Appeal by Defendant from Judgments entered 9 January 2023 by Judge Reggie
E. McKnight in Mecklenburg County Superior Court. Heard in the Court of Appeals
24 January 2024.
Attorney General Joshua H. Stein, by Assistant Attorney General Hilary R. Ventura, for the State.
Joseph P. Lattimore for Defendant-Appellant.
HAMPSON, Judge.
Factual and Procedural Background
Alejandro Cordova Aguilar (Defendant) appeals from Judgments entered
pursuant to jury verdicts finding Defendant guilty of Sexual Battery, Assault on a
Female, and False Imprisonment. The Record before us, including evidence produced
at trial, tends to show the following:
The alleged victim in this case is S.S.1 At the time of the incident at issue in
1 A pseudonym stipulated to by the parties. STATE V. AGUILAR
Opinion of the Court
this case, S.S. was fifteen years old, working as a hostess at Azteca Mexican
Restaurant in Matthews, North Carolina. Defendant worked as a waiter at the same
restaurant. S.S. testified at trial that around 2:00 p.m. on 5 October 2019, she took
her break and went to a closet to retrieve her belongings. S.S. stated after picking up
her book bag, she turned around and saw Defendant right in front of her, holding the
door with one hand. S.S. testified Defendant began kissing her and grabbing her
inappropriately. According to S.S., Defendant then abruptly stopped and walked out
of the closet. She exited the closet shortly thereafter and encountered two other
employees near the closet. S.S. told those employees Defendant had just said “hi” to
her.
S.S.’s cousin testified she was supposed to drive S.S. home after her shift at
the restaurant on 5 October; however, S.S. asked her to come inside, and she found
S.S. in the bathroom. When her cousin asked S.S. what happened, S.S. began to cry
and told her Defendant “put his hands on her and started kissing her forcefully.” S.S.
and her cousin then told S.S.’s mother about the incident, and they called the police.
Detective Danielle Helms of the Matthews Police Department interviewed
S.S., her mother, and her cousin. The statement Detective Helms reported S.S. made
was consistent with S.S.’s trial testimony.
At trial, during the State’s direct examination of Detective Helms, the
following exchange occurred:
[State’s Counsel]: And, Detective Helms, you said you
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investigated felonies and serious misdemeanors for the better part of 18 years; is that right?
[Detective Helms]: Correct.
[State’s Counsel]: At any point in your investigation, did you question the validity of [S.S.]’s sorry? [sic]
[Detective Helms]: I did not.
[Defense Counsel]: Objection.
[Trial Court]: Sustained. If you can rephrase your question.
The State then asked for clarification as to the basis for the trial court’s decision and
each side was heard. Defense counsel specifically raised the issue of the Detective
offering opinion testimony, stating: “So what she’s trying to do is invade that
providence [sic] of the jury. This is the jury’s determination whether someone’s
telling the truth or not.” The trial court then, hearing the State repeat its question,
overruled the objection and allowed Detective Helms to answer. The State then
continued this line of questioning:
[State’s Counsel]: And why did you feel that you didn’t have any reason to question the truthfulness of [S.S.]?
[Detective Helms]: During her-- you know, during the course of the investigation, she came forward immediately with the accusation, as soon as it happened. Her cousin picked her up, and she was obviously very volatile, crying, upset, went home, contacted her mom, told her the story. They immediately contacted the police, came in. I was able to talk to her. The story stayed the same, consistent with the statement that she gave the first officer, with my interview, and I know we have corroborating evidence of the Aztec video.
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[State’s Counsel]: And you said that the story stayed the same as far as her statements that she gave to the other officer and to you.
[State’s Counsel]: Anything about the fact that she mentioned details about talking to those other witnesses after she left the storage closet or any of the other details that she added that are not in State’s Exhibit 2 give you any reason to feel differently?
[Detective Helms]: No.
[Defense Counsel]: I’ll renew my objection. This is all just opinion.
[Trial Court]: Overruled.
Defendant challenged the veracity of S.S.’s account at various points during
the trial by illustrating inconsistencies in prior statements given by S.S., pointing out
discrepancies between the video footage and S.S.’s statements, and eliciting an
admission from S.S. that she did not report the alleged assault to the coworkers she
encountered when she left the closet.
On 9 January 2023, the jury returned verdicts finding Defendant guilty of
Sexual Battery, Assault on a Female, and False Imprisonment. The trial court
consolidated the convictions for Sexual Battery and Assault on a Female into one
Judgment and sentenced Defendant to 75 days of imprisonment, which was
suspended with supervised probation for 12 months. The trial court imposed a
suspended sentence of 45 days of imprisonment for the False Imprisonment
conviction and ordered 12 months of unsupervised probation to run consecutive to the
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other sentence. Defendant timely filed written Notice of Appeal on 11 January 2023.
Issue
The issue before us is whether the trial court erred by allowing Detective
Helms to vouch for the alleged victim’s credibility.
Analysis
I. Preservation
As a threshold issue, the State contends Defendant failed to preserve this issue
for appeal. The State argues Defendant’s objection did not preserve this issue
because Defendant did not object to all of the challenged testimony. Thus, in the
State’s view, Defendant’s prior and subsequent objections were waived. See State v.
Walters, 357 N.C. 68, 104, 588 S.E.2d 344, 365 (2003). Contrary to the State’s
assertion, pursuant to N.C. Gen. Stat. § 15A-1446(d)(10), even if a party fails to object
to the admission of evidence at some point during trial, that party may nevertheless
challenge “[s]ubsequent admission of evidence involving a specified line of
questioning when there has been an improperly overruled objection to the admission
of evidence involving that line of questioning.” N.C. Gen. Stat. § 15A-1446(d)(10)
(2023); see also State v. Corbett, 376 N.C. 799, 826, 855 S.E.2d 228, 248 (2021).
Here, Defendant immediately objected when the State asked Detective Helms
whether she had questioned S.S.’s story. The trial court heard the parties’ arguments
on the objection and Defendant explicitly stated the State’s question was asked for a
credibility judgment: “So what [the State] is trying to do is invade that providence
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[sic] of the jury. This is the jury’s determination whether someone’s telling the truth
or not.” Thus, Defendant timely objected and gave a proper foundation for the
objection, which Defendant argues here. The trial court then overruled Defendant’s
objection and the State was allowed to ask the question again and proceeded to ask a
few follow-up questions. At the conclusion of the follow-up, Defendant renewed his
objection, stating: “This is all just opinion.” Although Defendant did not object to
each additional question on this issue, our Supreme Court has held N.C. Gen. Stat. §
15A-1446(d)(10) provides litigants the right to challenge subsequent evidence
admitted in a specific line of questioning “when there has been an improperly
overruled objection to the admission of evidence involving that line of questioning.”
Corbett, 376 N.C. at 826, 855 S.E.2d at 248 (quoting N.C. Gen. Stat. § 15A-1446(d)(10)
(2019)).
This Court has recently addressed this issue, applying the statute to a similar
set of facts in State v. Graham, 283 N.C. App. 271, 276-78, 872 S.E.2d 573, 578-79
(2022). There, defense counsel initially objected to an improper question about the
defendant’s communications with his attorney but failed to renew his objection when
the State asked subsequent questions on this issue. Id. This Court rejected the
State’s argument the defendant had failed to preserve the issue for appellate review,
concluding: “Defendant did object to the State’s initial question regarding the
substance of Defendant’s communications with counsel. Accordingly, any further
questions regarding the substance of those communications is preserved as a matter
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of law if the objection was erroneously overruled.” Id. at 278, 872 S.E.2d at 579. The
facts of this case are the same, except that here Defendant did renew his objection
after the State’s subsequent questions. Thus, Defendant’s objection to Detective
Helms’ testimony as improper opinion testimony is preserved if we conclude
Defendant’s initial objection was erroneously overruled. Because we so conclude, this
issue is properly before this Court.
II. Detective Helms’ Testimony
On appeal, “[w]e review a trial court’s ruling on the admissibility of lay opinion
testimony for abuse of discretion.” State v. Belk, 201 N.C. App. 412, 417, 689 S.E.2d
439, 442 (2009) (citations omitted). North Carolina Rule of Evidence 701 governs lay
opinion testimony. It provides: “If the witness is not testifying as an expert, his
testimony in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the witness and (b)
helpful to a clear understanding of his testimony or the determination of a fact in
issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2023). Our Courts have consistently held
“[i]t is improper for one witness to vouch for the veracity of another.” State v. Bellamy,
172 N.C. App. 649, 663, 617 S.E.2d 81, 91 (2005) (citing State v. Robinson, 355 N.C.
320, 334-35, 561 S.E.2d 245, 255 (2002)); see also State v. Bailey, 89 N.C. App. 212,
219, 365 S.E.2d 651, 655 (1988) (citations omitted) (noting ordinarily the State may
not present testimony “to the effect that a prosecuting witness is believable, credible,
or telling the truth[.]”).
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Further, “[t]he admission of opinion testimony intended to bolster or vouch for
the credibility of another witness violates N.C. Gen. Stat. § 8C-1, Rule 701.” State v.
Harris, 236 N.C. App. 388, 403, 763 S.E.2d 302, 313 (2014) (citing Robinson, 355 N.C.
at 334-35, 561 S.E.2d at 255). “[T]he trial court commits a fundamental error when
it allows testimony which vouches for the complainant’s credibility in a case where
the verdict entirely depends upon the jurors’ comparative assessment of the
complainant’s and the defendant’s credibility.” State v. Warden, 376 N.C. 503, 504,
852 S.E.2d 184, 186 (2020). Our Supreme Court has explained the rationale behind
the exclusion of lay opinion testimony as follows:
[T]he truthfulness of a particular witness should be determined by the jury rather than by a witness for one party or the other, as the “jury is the lie detector in the courtroom” and “is the only proper entity to perform the ultimate function of every trial— determination of the truth[.]”
State v. Caballero, 383 N.C. 464,475, 880 S.E.2d 661, 669 (2022) (quoting State v.
Kim, 318 N.C. 614, 621, 350 S.E.2d 347, 351 (1986)).
Considering the Record before us and applicable precedent, we are persuaded
the challenged portion of Detective Helms’ testimony was inadmissible. We have
noted a detective or other law enforcement officer may testify as to why they made
certain choices in the course of an investigation, including their basis for believing a
particular witness. See State v. Taylor, 238 N.C. App. 159, 168-69, 767 S.E.2d 585,
591-92 (2014) (Bryant, J. dissenting), rev’d 368 N.C. 300, 776 S.E.2d 680 (reversing
the Court of Appeals opinion “[f]or reasons stated in the dissenting opinion.”).
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Here, in contrast, the challenged testimony was clearly unrelated to Detective
Helms’ investigatory decision-making. First, unlike the exchange at issue in Taylor,
Detective Helms’ statement was not made in connection with a direct question about
her investigative choices. In Taylor, counsel for the State asked the lead investigator
on the case, “What made you go forward [with the investigation]?” Id. at 165, 767
S.E.2d at 589. The investigator responded she believed the alleged victim was telling
her the truth because she had given the investigator “all the information possible[.]”
Id. Similarly, in State v. Richardson, the police department’s investigatory decisions
were a key issue. 346 N.C. 520, 488 S.E.2d 148 (1997). There, law enforcement had
initially investigated a person as the perpetrator and obtained a warrant for his
arrest, but then changed course and arrested the defendant instead. Id. at 527-28,
488 S.E.2d at 152-53. After interviewing the person the defendant identified as the
perpetrator, law enforcement then believed the defendant was the perpetrator. Id.
at 528, 488 S.E.2d at 152. At trial, the State’s questioning asked law enforcement
officers to explain that shift and their choice to believe the witness’ story instead of
the defendant’s. Id. at 533-34, 488 S.E.2d at 156.
In contrast, here, the State merely asked Detective Helms whether she had
questioned the validity of S.S.’s story. Rather than asking the detective to explain
her decision-making process in the course of the investigation, the State elicited an
evaluation of S.S.’s credibility. The follow-up question after Defendant’s objection
was overruled asked Detective Helms to explain why she thought S.S. was credible.
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Again, this question went precisely to the issue of credibility, or as the State put it in
the question, “the truthfulness of [S.S.][.]”
Moreover, these questions were not posed in the context of examining law
enforcement’s decisions made during the course of the investigation. Unlike the law
enforcement officers in Richardson and Taylor, Detective Helms was not asked in this
exchange why she made certain decisions or why she did or did not do something; she
was merely asked whether she had doubted S.S. and to explain why she believed S.S.
was truthful. Although whether an officer believes a witness is telling them the truth
certainly may influence his or her decision-making in an investigation, that issue was
not raised by the questioning in this case. The challenged testimony came after
Detective Helms testified as to what S.S. had told her in the initial interview and
stated that she had reviewed the footage from Azteca Restaurant. Immediately
preceding the challenged exchange, the State asked: “And, Detective Helms, you said
you investigated felonies and serious misdemeanors for the better part of 18 years; is
that right?” This underscores that the question was posed for the foundational
purpose of reminding the jury of Detective Helms’ experience so that they would trust
her judgment of S.S.’s credibility rather than making an independent determination
based on the evidence presented. Thus, the challenged testimony was not offered for
a permissible purpose. Therefore, the testimony impermissibly vouched for another
witness’ credibility.
The State further contends even if the challenged portion of Detective Helms’
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testimony had been improperly admitted, Defendant had opened the door to such
evidence through the cross-examination of S.S., and thus this testimony was
admissible under N.C.R. Evid. 608(a). The State argues Defendant “raised inferences
concerning the lead detective’s investigation and about S.S.’s credibility” during his
cross-examination of S.S. Consequently, in the State’s view, the State had the right
to offer rebuttal and explanatory testimony on those issues. See State v. Johnston,
344 N.C. 596, 605-06, 476 S.E.2d 289, 294 (1996). We disagree.
Rule 608(a) of the North Carolina Rules of Evidence provides:
The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
N.C. Gen. Stat. § 8C-1, Rule 608(a) (2023). “Put another way, Rule 608(a) allows the
party that called a witness to bolster the credibility of that witness’ ‘character for
truthfulness’ in the event that the credibility of that witness has been attacked ‘by
evidence in the form of reputation or opinion.’ ” Caballero, 383 N.C. at 479, 880 S.E.2d
at 671. Our Supreme Court in Caballero rejected a similar challenge to a police
officer’s testimony regarding a witness’ credibility. Id. at 478-79, 880 S.E.2d at 671.
In dismissing this argument, the Court characterized the defendant’s cross-
examination as “pointing out what he believed to be inconsistencies between the
information contained in [the victim’s] trial testimony and the statements that [the
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victim] gave to investigating officers.” Id. at 479, 880 S.E.2d at 671. It continued,
“the challenged portion of [the officer]’s testimony constituted a direct assertion that
[the victim] had passed the credibility test that he had administered to her rather
than ‘evidence of truthful character.’ ” Id.
Likewise in this case, Defendant did not attack S.S.’s credibility “by opinion or
reputation evidence or otherwise.” Instead, Defendant attempted to challenge S.S.’s
credibility by pointing out inconsistencies in prior statements given by S.S., showing
discrepancies between the video footage and S.S.’s statements, and eliciting an
admission from S.S. that she did not report the alleged assault to the coworkers she
encountered when she left the closet. These methods are consistent with those our
Supreme Court held in Caballero do not implicate Rule 608(a). Moreover, just as in
Caballero, Detective Helms’ testimony was a direct assertion S.S. was credible; it
cannot be characterized as mere “evidence of truthful character.” Id.
III. Prejudice
“[E]ven if the admission of [evidence] was error, in order to reverse the trial
court, the appellant must establish the error was prejudicial. If the other evidence
presented was sufficient to convict the defendant, then no prejudicial error occurred.”
State v. James, 224 N.C. App. 164, 166, 735 S.E.2d 627, 629 (2012) (quoting State v.
Bodden, 190 N.C. App. 505, 510, 661 S.E.2d 23, 26 (2008) (citation omitted)). “The
burden of showing such prejudice . . . is upon the defendant.” Bellamy, 172 N.C. App.
at 661, 617 S.E.2d at 90 (citations omitted). “A defendant is prejudiced by errors
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relating to rights arising other than under the Constitution of the United States when
there is a reasonable possibility that, had the error in question not been committed,
a different result would have been reached at the trial out of which the appeal arises.”
N.C. Gen. Stat. § 15A-1443(a) (2023).
The State contends there was sufficient evidence beyond Detective Helms’
vouching for S.S.’s credibility to convict Defendant. The State points to S.S.’s
testimony, video of her interview with Detective Helms and her victim statement, the
video of Defendant entering the closet with S.S. at Azteca Restaurant, and testimony
from S.S.’s cousin and mother. However, much of that evidence relied on S.S.’s
credibility, including her testimony, interview, and witness statement. Further,
S.S.’s cousin and mother were not witnesses to the alleged incident; rather, they
testified only to their interactions with S.S. after the alleged incident. While the video
from Azteca Restaurant does show Defendant entering the closet after S.S., it does
not show what happened inside the closet. All of the evidence about what happened
in the closet came from S.S. Thus, her credibility was the most significant issue in
the case.
Our Supreme Court has stated:
[C]oncern for the fairness and integrity of criminal proceedings requires trial courts to exclude testimony which purports to answer an essential factual question properly reserved for the jury. When the trial court permits such testimony to be admitted, in a case where the jury’s verdict is contingent upon its resolution of that essential factual question, then our precedents establish that the jury’s verdict must be overturned.
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Warden, 376 N.C. at 510, 852 S.E.2d at 190.
The Court’s analysis in State v. Aguallo is instructive. 318 N.C. 590, 350
S.E.2d 76 (1986). There, in addition to the victim’s testimony, the State offered
evidence the victim had consistently told the same story to others. Id. at 599, 350
S.E.2d at 82. Although there was some physical evidence, the Court determined “the
State’s case hinged on the victim’s testimony and thus upon her credibility.” Id. The
Court noted cross-examination of the victim “raised some doubts about the victim’s
credibility” and consequently concluded admission of testimony improperly vouching
for the victim’s credibility was prejudicial error “[b]ecause it is likely that any doubts
the jurors may have had about the victim’s credibility were allayed by the
pediatrician’s testimony that she found the victim to be ‘believable[.]’ ” Id. Absent
that testimony, the Court concluded there was a “reasonable possibility that a
different result would have been reached by the jury.” Id. at 599-600, 350 S.E.2d at
82.
In the present case, defense counsel likewise worked to undermine S.S.’s
credibility by illustrating inconsistencies in prior statements given by S.S., pointing
out discrepancies between the video footage and S.S.’s statements, and eliciting an
admission from S.S. that she did not report the alleged assault to the coworkers she
encountered when she left the closet. Thus, not only was S.S.’s credibility the central
issue of the case but also the other evidence offered was not substantial in the face of
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doubts raised by Defendant. Considering these circumstances and consistent with
our Supreme Court’s holding in State v. Aguallo, we conclude there is a reasonable
possibility the jury would have reached a different result absent Detective Helms’
testimony vouching for S.S.’s credibility. Therefore, Defendant was prejudiced by the
erroneous admission of Detective Helms’ challenged testimony.
Conclusion
Accordingly, for the foregoing reasons, we vacate the trial court’s Judgments
and remand for a new trial.
NEW TRIAL.
Judges CARPENTER and GORE concur.
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