State v. Hammett

625 S.E.2d 168, 175 N.C. App. 597, 2006 N.C. App. LEXIS 291
CourtCourt of Appeals of North Carolina
DecidedFebruary 7, 2006
DocketCOA05-377
StatusPublished
Cited by3 cases

This text of 625 S.E.2d 168 (State v. Hammett) 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. Hammett, 625 S.E.2d 168, 175 N.C. App. 597, 2006 N.C. App. LEXIS 291 (N.C. Ct. App. 2006).

Opinions

LEVINSON, Judge.

Eric Marshall Hammett (defendant) appeals from a judgment entered 11 February 2004 consistent with jury verdicts finding him guilty of three counts of statutory sexual offense and seven counts of taking indecent liberties with a child. Because the admission of expert testimony in this case resulted in plain error, we must grant a new trial on all counts.

The State’s evidence presented at trial tended to show the following:

Defendant’s daughter C.H. was born 10 August 1989. C.H. alleged that defendant committed various acts of sexual abuse against her in the spring of 2003. C.H. came to live with defendant during her seventh grade year, in December 2001. Prior to that time, C.H. lived with her mother and her mother’s boyfriend, D.C. C.H. testified she did not like it when she had to go live with her father: “I loved my mom too much. I don’t like getting away from her.”

C.H. testified that D.C. engaged in various sexual acts with her from when she was five years of age until she was approximately ten and one half years of age. C.H. testified D.C. would lick her private area, and have her masturbate him. C.H. testified that D.C. never penetrated her vagina in any way.

C.H. testified defendant committed various sexual acts on her while she lived with him in Cabarrus County between January and April 2003. C.H. stated that defendant watched pornographic videos in front of her and masturbated during the videos; that, at defendant’s request, C.H. straddled defendant’s lower waist while defendant lay in bed; that defendant measured her chest and “private area” with a measuring tape three or four times; that one time defendant asked her to “kiss me like you love me” and as he kissed her, he tried to put his tongue in her mouth; that defendant reached under her shirt and rubbed lotion on her breasts; that in the spring of 2003 defendant took two showers with C.H. and put his fingers inside her vagina both times; that, at defendant’s request, C.H. washed defendant’s genitals with her bare hands while taking a shower with him; and that, while C.H. was lying on a bed after taking a shower, defendant opened her [599]*599legs, shaved the hair around her vaginal area, and put his tongue into her vagina. C.H. testified she related these events to a friend at school (hereafter “the friend”), and was removed from defendant’s home that same day.

The friend testified that C.H. had confided in her the sexual abuse C.H. was experiencing at home. The friend called her mother. The friend’s mother then called the appropriate authorities.

Dr. Rosalina Conroy, a pediatrician, testified that she examined C.H. on 28 April 2003 to evaluate her for possible sexual abuse. Dr. Conroy performed a genital examination which included photographing C.H.’s genital area. Dr. Conroy testified that the photographs revealed a “notch” in C.H.’s hymen and a defect in the posterior fourchette, an area at the bottom of the hymenal ring towards the anus. Dr. Conroy stated the types of injuries she observed were made from “penetrating vaginal trauma with a hard object.” During her second day of testimony, Dr. Conroy testified that C.H.’s statements, regarding having been abused by defendant, were consistent with those made by children who were telling the truth and that, even in the absence of physical findings, Dr. Conroy’s diagnosis of sexual abuse would remain the same. This testimony is set forth in more detail below.

Concord Police Department Detective Larissa Cook testified that defendant agreed to speak to her regarding the allegations of sexual abuse. On 8 May 2003, defendant told Detective Cook that C.H. had a hygiene problem and that he had showered with her naked and had used a wash cloth to wash C.H. “from head to toe.”

Defendant testified. He admitted showering with C.H. on two occasions and washing her “private areas.” Defendant denied all the other material allegations C.H. made against him. He denied having fondled C.H.’s breasts, trying to French kiss her, having her straddle him on a bed, measuring her, touching her private parts, and watching pornographic movies with her.

The jury returned verdicts of guilty on all counts. The trial court consolidated all offenses for judgment and sentenced defendant to an active prison term of 288-355 months imprisonment. From this judgment, defendant appeals.

Defendant contends the trial court erred by admitting Dr. Conroy’s expert opinion that, based on C.H.’s statements alone, Dr. [600]*600Conroy would have diagnosed her as having been sexually abused. Because defendant did not object to Dr. Conroy’s testimony at trial, we review for plain error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (“[P]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”) (internal quotation marks and citation omitted).

“ ‘Our appellate courts have consistently held that the testimony of an expert to the effect that a prosecuting witness is believable, credible, or telling the truth is inadmissible evidence.’ ” State v. Figured, 116 N.C. App. 1, 7, 446 S.E.2d 838, 842 (1994) (quoting State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988) (citations omitted)). Furthermore, our Supreme Court’s mandate in State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002), regarding the admissibility of expert testimony in child victim sexual abuse cases, is clear: “In 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.” Id. at 266-67, 559 S.E.2d at 789 (citations omitted).

This Court has repeatedly found that the admission of expert testimony that a child victim has suffered sexual abuse, absent physical findings, is error. See State v. Delsanto, 172 N.C. App. 42, 55-56, 615 S.E.2d 870, 873 (2005) (absent physical indications of abuse, it was error to admit expert testimony that the victim “ ‘suffered from the sexual abuse that she disclosed to [the doctor] and [victim’s] family’ ”); State v. Ewell, 168 N.C. App. 98,105-06, 606 S.E.2d 914, 919, disc. review denied, 359 N.C. 412, 612 S.E.2d 326 (2005) (error for the trial court to allow expert testimony that it was “ ‘probable that [the child] was a victim of sexual abuse’ ” when the testimony was “not based on any physical evidence or behaviors consistent with sexual abuse”); State v. Couser, 163 N.C. App. 727, 729-31, 594 S.E.2d 420, 423 (2004) (error to admit expert testimony that the child was “probably sexually abused” where the physical evidence was insufficient to support diagnosis of sexual abuse); State v. Bush, 164 N.C. App. 254, 259, 595 S.E.2d 715

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Related

State v. Hammett
642 S.E.2d 454 (Court of Appeals of North Carolina, 2007)
State v. Hammett
637 S.E.2d 518 (Supreme Court of North Carolina, 2006)

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Bluebook (online)
625 S.E.2d 168, 175 N.C. App. 597, 2006 N.C. App. LEXIS 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hammett-ncctapp-2006.