State v. Frady

747 S.E.2d 164, 228 N.C. App. 682, 2013 WL 3991797, 2013 N.C. App. LEXIS 841
CourtCourt of Appeals of North Carolina
DecidedAugust 6, 2013
DocketNo. COA12-1375
StatusPublished
Cited by16 cases

This text of 747 S.E.2d 164 (State v. Frady) is published on Counsel Stack Legal Research, covering Court of Appeals 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. Frady, 747 S.E.2d 164, 228 N.C. App. 682, 2013 WL 3991797, 2013 N.C. App. LEXIS 841 (N.C. Ct. App. 2013).

Opinion

ELMORE, Judge.

Ralph Eugene Frady (defendant) was found guilty of first degree sexual offense with a child and of one count of taking indecent liberties with a child. On 27 April 2012, the trial court sentenced defendant as a prior record level I to a minimum of 192 and a maximum of 240 months [683]*683imprisonment. From this conviction and sentence, defendant appeals. After careful consideration, we order a new trial.

I. Background

At trial, the State presented the following evidence: On 31 July 2010, defendant, a Terminix technician, went to Diane Moore’s residence to fix a toilet in the basement. Moore had a contract for pest control through Terminix, and defendant had been assigned to Moore’s residence for approximately two years. Defendant had previously helped Moore with odd jobs during his free time and often did not charge for his services. Moore is the maternal great-grandmother of the alleged victim in the case, Debbie,1 who was six-years old at the time of the alleged offense. Debbie resides with Moore and knows her as her mother.

When defendant arrived, Moore let him in and followed him to the basement. As he walked down the stairs, defendant asked “[w]here is my little girl?” Moore told him, and then she saw defendant head to her bedroom where Debbie was watching television and playing Nintendo. Debbie was wearing a nightgown and no underwear. Debbie testified that defendant came into the room and played in her “private spot” with his tongue and hands. She threw her Nintendo remote at him to get him to stop. Debbie also alleged that defendant had tickled her “private spot” with his fingers and tongue on one prior occasion.

Debbie went into the kitchen where her mother was drying her hands and told her about the incident. At that time, defendant was in the basement. Moore immediately confronted defendant, asking, “[w]hy would you do that to my baby?” Defendant responded, “I didn’t do nothing. I didn’t do nothing.”

On 1 August 2010, Detective Steve Woodson and Sergeant Dan Harris with the Brevard Police Department interviewed Debbie and Moore. Detective Woodson testified that Debbie accused defendant of doing something with his mouth to her private area; she showed him by taking her tongue and flicking it against her lips.

Debbie went to Mission Hospital for a physical examination on 11 August 2011. Before the examination, Christine Nicholson, a social worker at Mission Children’s Hospital, conducted a forensic interview with Debbie. The video of Debbie’s interview was played for the jury as Nicholson testified. During the interview, Nicholson presented Debbie with a diagram showing a prepubescent female, and she circled the [684]*684vaginal area on the drawing to indicate where defendant had touched her. The maltreatment team at Mission Hospital reviewed the interview.

Dr. Cindy Brown, the medical director of a child abuse valuation program at Mission Hospital, participated on the maltreatment team but did not personally examine or interview Debbie. Prior to trial, defense counsel made a motion in limine to exclude Dr. Brown’s testimony. Dr. Brown did not testify in the State’s case-in-chief; however, after the defense rested, the State called her as a rebuttal witness on the basis that the defense’s evidence put the victim’s credibility at issue. It is a portion of Dr. Brown’s testimony that is the subject of this appeal.

Defendant testified at trial, alleging that Debbie asked him to watch television with him, and, when he declined, she threw her Nintendo controller at him. Defendant left the room and went to the basement to fix the toilet. The defense called several character witnesses, including members of defendant’s church, his employer, and his ex-wife; each testified to defendant’s truthfulness and integrity. Defendant now appeals.

II. Analysis

Defendant contends that the trial court erred in admitting a portion of Dr. Brown’s testimony as it impermissibly spoke to Debbie’s credibility. We agree. The issue before us stems from the following testimony offered by Dr. Brown on rebuttal:

Q. Did you form an opinion as to whether [Debbie’s] disclosure was consistent with sexual abuse?
DEFENDANT: Objection. Move to strike. Motion for retrial.
THE COURT: Overruled. Overruled. Overruled.
A. Yes.
Q. And what was your opinion?
A. Our report reads that her disclosure is consistent with sexual abuse.
Q. And what did you base your opinion on?
A. The consistency of her statements over time, the fact that she could give sensory details of the event which include describing being made wet and the tickling sensation. . . . [a]nd her knowledge of the sexual act that is beyond her developmental level.

[685]*685We first note that defendant preserved this issue for appellate review. Here, the trial court requested the State to forecast the evidence it intended to present if Dr. Brown testified. The State informed the trial court that it intended to ask Dr. Brown if Debbie’s disclosure was consistent with sexual abuse. Defendant did not object during the forecast but did object to the testimony now complained of at the time it was offered and timely made a motion to strike and motion for retrial.2 The objection was overruled and the motions were denied. We hold that the grounds for the objection were apparent from the context. See N.C.R. App. P. 10(a) (preserving an issue for appellate review requires a party to “have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.”).

It is well settled that “[ejxpert opinion testimony is not admissible to establish the credibility of the victim as a witness.” State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598, aff’d, 356 N.C. 428, 571 S.E.2d 584 (2002) (citation omitted). “However, those cases in which the disputed testimony concerns the 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.” State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988). “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 consistent with those characteristics.” Dixon, 150 N.C. App. at 52, 563 S.E.2d at 598 (citations omitted).

In order for an expert medical witness to render an opinion that a child has, in fact, been sexually abused, the State must establish a proper foundation, i.e. physical evidence consistent with sexual abuse. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
747 S.E.2d 164, 228 N.C. App. 682, 2013 WL 3991797, 2013 N.C. App. LEXIS 841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-frady-ncctapp-2013.