State v. Buck

• Court: Court of Appeals of North Carolina
• Decided: July 1, 2014
• Docket: 13-1044
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1044 NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

STATE OF NORTH CAROLINA

v. Burke County No. 11 CRS 2390 RUSSELL SCOTT BUCK, Defendant.

Appeal by defendant from judgment entered 13 February 2013

by Judge Robert C. Ervin in Burke County Superior Court. Heard

in the Court of Appeals 19 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General Elizabeth J. Weese, for the State.

Michael E. Casterline for defendant-appellant.

GEER, Judge.

Defendant Russell Scott Buck was tried for 16 offenses and

found guilty of one count of first degree sexual offense under

N.C. Gen. Stat. § 14-27.4 (2013). On appeal, defendant

primarily argues that the trial court erred in denying his

motion to dismiss when the State failed to present evidence that

defendant committed a sex offense on any particular date or in

any particular place. Because North Carolina courts have not -2- required evidence of a specific incident to convict a defendant

of first degree sex offense with a child and because the record

contains sufficient evidence to support defendant's conviction,

we hold that the trial court properly denied the motion to

dismiss.

Facts

The acts that were the basis for the indictments in this

case occurred while defendant was living with his daughter,

"Cheyenne," and two sons, "Mark" and "Ricky," in a single-wide

trailer in a Morganton trailer park.1 Cheyenne, Mark, and Ricky

are defendant's only children. Defendant had primary custody of

the children, with their mother, Rachel, having visitation

rights every other weekend.

Allegations that defendant was abusing his daughter

surfaced after Mark had an argument with defendant on 3 August

2011. That evening, Mark rode his bike "across the county to

his mother's house." After Mark told his mother that defendant

had beaten him, she took Mark to the Burke County Sheriff's

Office. There, Mark reported that defendant had physically

abused him and his brother and sexually abused Cheyenne.

Following an investigation by the Sheriff's Office that involved

1 Pursuant to N.C.R. App. P. 3.1(b), we refer to the alleged victim and her siblings by pseudonyms to protect the minors' privacy and for ease of reading. -3- interviews with defendant, Rachel, the children, and others,

defendant was indicted for 10 counts of first degree statutory

sex offense and six counts of statutory rape, allegedly

committed against Cheyenne from 2002 to 2011.

At trial, the jury found defendant guilty of one count of

first degree sexual offense with a child under 13 years of age

occurring in 2007 and not guilty of the remaining charges. The

trial court sentenced defendant to a presumptive-range term of

216 to 269 months imprisonment. Defendant timely appealed to

this Court.

I

Defendant first contends that the trial court erred in

denying his motion to dismiss the charge of first degree sexual

offense occurring in 2007. Defendant notes that "Cheyenne

referenced the year 2007 only once" when she testified that

defendant would give her extra money and other things "whenever

I'd give him sexual favors," which Cheyenne stated happened in

"2010, 2009, 2008, 2007." Defendant argues that because the

State failed to establish that "sexual favors" is synonymous

with the definition of "sexual act," set forth in N.C. Gen.

Stat. § 14-27.1(4) (2013), the State failed to present

sufficient evidence that defendant committed a "sexual act"

against Cheyenne in 2007. -4- When ruling on a motion to dismiss for insufficient

evidence, "the trial court's inquiry is limited to a

determination of 'whether there is substantial evidence of each

essential element of the offense charged and of the defendant

being the perpetrator of the offense.'" State v. Butler, 356

N.C. 141, 145, 567 S.E.2d 137, 139 (2002) (quoting State v.

Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)).

"'Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.'" State

v. Outlaw, 159 N.C. App. 423, 426, 583 S.E.2d 625, 627 (2003)

(quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587

(1984)). "'In reviewing challenges to the sufficiency of

evidence, we must view the evidence in the light most favorable

to the State, giving the State the benefit of all reasonable

inferences.'" State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866,

869 (2002) (quoting State v. Fritsch, 351 N.C. 373, 378-79, 526

S.E.2d 451, 455 (2000)).

First degree sexual offense may be established by a showing

of (1) a "sexual act," (2) with a victim who is under 13 years

of age, (3) a defendant who is at least 12 years old, and (4)

who is also at least four years older than the victim. See N.C.

Gen. Stat. § 14-27.4(a)(1). A "sexual act" is defined as -5- fellatio, cunnilingus, analingus, or anal intercourse, but it

excludes vaginal intercourse. N.C. Gen. Stat. § 14-27.1(4).

Defendant does not dispute that evidence exists regarding

each of these elements, but rather contends that the evidence is

insufficient that a sexual act occurred in 2007, the sole count

on which the jury convicted defendant. Mark, however, testified

that he saw Cheyenne performing oral sex on defendant "like --

six years" from "this year," which was 2013. From this

testimony, the jury could have found that an act of fellatio had

occurred in 2007. Defendant's arguments that Mark's response

was "confused" and "imprecise and vague" go to the credibility

and weight to be given the testimony, questions solely within

the purview of the jury.

Moreover, although Cheyenne testified generally that she

gave defendant "sexual favors" in 2007, she explained in other

testimony what she meant by sexual favors. According to

Cheyenne, she performed fellatio on defendant beginning in 2002,

when she was six years old and that defendant began performing

cunnilingus on her when she was about 10 years old, which would

have been in 2005. She testified that the last time she had

"sexual contact" with defendant was "a couple days before I was

taken away from him" and that "all of this stuff" -- which a

jury could find included the fellatio and cunnilingus -- -6- continued until Cheyenne was removed from defendant's home in

2011. Notably, Cheyenne never testified that she stopped

performing fellatio on defendant or that defendant ever ceased

performing cunnilingus on her.

When Mark's and Cheyenne's testimony is viewed in the light

most favorable to the State, with all reasonable inferences

drawn in its favor, this testimony is sufficient to support a

reasonable juror's conclusion that defendant, in 2007, performed

a sexual act on Cheyenne within the meaning of N.C. Gen. Stat. §

14-27.1(4). While defendant argues that Mark's and Cheyenne's

testimony did not provide "evidence of any specific sexual act

occurring in any particular place at a particular time,"

defendant does not cite any authority requiring such

specificity. Indeed, this Court has acknowledged "the realities

of a continuous course of repeated sexual abuse" as a result of

which "each succeeding act, no matter how vile and perverted,

becomes more routine, with the latter acts blurring together and

eventually becoming indistinguishable. It thus becomes

difficult if not impossible to present specific evidence of each

event." State v. Bullock, 178 N.C. App. 460, 473, 631 S.E.2d

868, 877 (2006).

We hold that the State's evidence was sufficient to defeat

defendant's motion to dismiss the charge that in 2007, he -7- committed first degree sex offense with a child under the age of

13. See State v. Khouri, 214 N.C. App. 389, 397, 716 S.E.2d 1,

7 (2011) (holding that State presented sufficient evidence of

statutory sexual offense with person who is 13, 14, or 15 years

of age when victim testified that sexual touching and oral sex

occurred regularly beginning when she was 11 or 12 and victim

did not testify that acts stopped when defendant began to engage

in vaginal intercourse with her at age 14, and "the jury could

reasonably infer that the sexual acts that began at the ages of

eleven or twelve continued on occasion after the instances of

vaginal intercourse began"), disc. review denied, 365 N.C. 546,

742 S.E.2d 176 (2012). The trial court, in this case,

therefore, properly denied defendant's motion to dismiss.

II

Defendant next argues that the trial court committed plain

error when it allowed Elizabeth Browning, who worked at South

Mountain Children and Family Services, to testify that

Cheyenne's lack of any physical signs or symptoms of sexual

abuse was consistent with her claims of having been repeatedly

sexually abused or raped. Defendant contends that Ms.

Browning's testimony improperly bolstered Cheyenne's testimony

because Ms. Browning found no physical evidence that Cheyenne -8- was abused and because "[t]he State's case depended on the

relative credibility of Cheyenne and her father."

Because defendant did not object to this testimony, we

review it for plain error. Our Supreme Court has explained:

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, . . . plain error is to be applied cautiously and only in the exceptional case[.]

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal citations and quotation marks omitted).

It is well established that "[i]n a sexual offense

prosecution involving a child victim, the trial court should not

admit expert opinion that sexual abuse has in fact occurred

because, absent physical evidence supporting a diagnosis of

sexual abuse, such testimony is an impermissible opinion

regarding the victim's credibility." State v. Stancil, 355 N.C.

266, 266-67, 559 S.E.2d 788, 789 (2002) (per curiam).

Nevertheless, "an expert witness may testify, upon a proper

foundation, as to the profiles of sexually abused children and

whether a particular complainant has symptoms or characteristics

consistent therewith." Id. at 267, 559 S.E.2d at 789. "'The -9- fact that [such] evidence may support the credibility of the

victim does not alone render it inadmissible.'" State v. Dixon,

150 N.C. App. 46, 52, 563 S.E.2d 594, 598 (quoting State v.

Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 367 (1987)), aff'd per

curiam, 356 N.C. 428, 571 S.E.2d 584 (2002).

We note that, without objection, the State tendered Ms.

Browning as an expert witness in the field of sexual assault

nurse examinations ("SANE"). Ms. Browning testified that she

had examined Cheyenne on 16 August 2011 and that she appeared

"normal," meaning that Cheyenne did not have any physical

symptoms of anal or vaginal penetration. The State then

elicited the following testimony from Ms. Browning on direct

examination:

Q Ms. Browning, do you know what sexual abuse [Cheyenne] disclosed to the Sheriff's department after you performed [her] exam?

A It's my understanding that she did disclose penetration.

Q And was that on one occasion or on multiple occasions over a long period of time?

A To my knowledge, it was multiple encounters.

Q Now, knowing that and looking back at your examination, are the findings in your examination consistent with that history of sexual abuse over a long period of time? -10-

A Yes, it is.

Q And explain to the jury how that would be.

A Well again, things heal. If there was an injury –– there may not have been an injury. We just talked about what happens to the hymen when estrogen takes hold. It gets thick, it gets elastic, it stretches. We wouldn't know. It's consistent with what she said.

Immediately following this exchange, defense counsel

elicited the following testimony from Ms. Browning on cross-

Q Your examination is also consistent with no abuse occurring, isn't it?

A Yes.

Q Okay. There's really no way to tell. Is that a fair statement?

Ms. Browning then explained that she had performed over 1,000

physical SANE examinations. She testified that only "10

percent" of children who are sexually abused show physical signs

and that this was based on a review of the academic literature.

Ms. Browning's testimony amounted to an opinion that

Cheyenne's having a history of sexual abuse should not be ruled

out just because of Cheyenne's SANE examination since the

profile or typical characteristics of a sexually abused child do -11- not necessarily include physical findings. Although Ms.

Browning testified that "the findings in [her] examination

[were] consistent with that history" of penetration which

Cheyenne had disclosed to authorities, the context of her

testimony makes it clear that the reference was to an alleged

history.

Further, the defense elicited testimony from Ms. Browning

on cross-examination that her findings were also consistent with

Cheyenne not having been abused. At no point did Ms. Browning

express an opinion that Cheyenne was the victim of abuse.

Rather, Ms. Browning gave an opinion whether Cheyenne had

"symptoms or characteristics consistent therewith" as permitted

by Stancil, 355 N.C. at 267, 559 S.E.2d at 789. The trial

court, therefore, did not commit plain error in admitting Ms.

Browning's testimony. See also In re T.R.B., 157 N.C. App. 609,

618, 582 S.E.2d 279, 286 (2003) (upholding admission of

testimony of alleged victim's examining doctor that the lack of

physical findings was "'consistent'" with claims of sexual abuse

because doctor "did not testify that the allegations in the

juvenile petition were accurate, but only that her examination

of [alleged victim] was 'consistent' with her interview of

him"). -12- Defendant, however, relies on State v. Frady, ___ N.C. App.

___, 747 S.E.2d 164, disc. review denied, ___ N.C. ___, 752

S.E.2d 465 (2013). In Frady, a medical expert, who did not

personally examine the alleged victim, testified that her

"'disclosure [is] consistent with sexual abuse'" based solely on

"'the consistency of [the alleged victim's] statements over

time,' the fact that she could provide sensory details, and

because her knowledge of the sexual act was beyond her

developmental level." Id. at ___, 747 S.E.2d at 166, 167. This

Court noted that "[t]he alleged 'disclosure' was [the victim's]

description of the abuse" and explained that "[there] may have

been a sufficient foundation to support an opinion as to whether

[the victim] exhibited symptoms or characteristics of victims of

child sexual abuse; however, it was insufficient for the

admission of Dr. Brown's judgment that [the victim] is

believable." Id. at ___, 747 S.E.2d at 167. The Court held

that "[w]hile Dr. Brown did not diagnose [the victim] as having

been sexually abused, she essentially expressed her opinion that

[the victim] is credible[,]" and the trial court, therefore,

erred in admitting the testimony. Id. at ___, 747 S.E.2d at

167.

Thus, in Frady, the expert did not testify regarding the

alleged victim having exhibited symptoms or characteristics -13- consistent with general profiles and characteristics of sexually

abused children, but rather testified that the victim's

disclosures were consistent with sexual abuse -- an expression

of an expert opinion regarding the victim's credibility. In

this case, however, Ms. Browning testified extensively, based on

a review of academic literature, about the elasticity of female

genitalia as the reason why a vast majority of young girls who

are sexually abused do not exhibit physical symptoms of abuse.

Based on these characteristics -- rather than solely on the

particularities of Cheyenne's disclosure -- Ms. Browning

testified that Cheyenne's disclosure was consistent with an

alleged claim of abuse. For these reasons, Ms. Browning did not

improperly bolster Cheyenne's claims of abuse, and the trial

court did not commit plain error in allowing her testimony.

No error.

Judges STEELMAN and McCULLOUGH concur.

Report per Rule 30(e).