State v. Purcell

774 S.E.2d 392, 242 N.C. App. 222, 2015 N.C. App. LEXIS 564
CourtCourt of Appeals of North Carolina
DecidedJuly 7, 2015
DocketNo. COA14–1047.
StatusPublished
Cited by1 cases

This text of 774 S.E.2d 392 (State v. Purcell) 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. Purcell, 774 S.E.2d 392, 242 N.C. App. 222, 2015 N.C. App. LEXIS 564 (N.C. Ct. App. 2015).

Opinion

STROUD, Judge.

*223James Mark Purcell ("defendant") appeals from judgments entered on jury verdicts, in which the jury found him guilty of rape of a child, two counts of sexual offense with a child, and taking indecent liberties with a child. Defendant contends that (1) the trial court committed plain error in admitting expert opinion testimony and (2) the trial court erred in its sentencing determinations. We find no error in part, reverse in part, and remand.

I. Background

One afternoon in the summer of 2010, S.G.'s mother dropped off eleven-year-old S.G. and her siblings at S.G's grandmother's house.1 While S.G.'s siblings watched television in her grandmother's bedroom, S.G. watched television in the living room. S.G.'s grandmother was asleep in the living room. Defendant, S.G.'s uncle, entered the living room and told S.G. to go into his bedroom, and she did. Defendant took off his clothes and told S.G. to take off her clothes and get on his bed. S.G. complied. Defendant then got on top of her and felt her chest, bottom, and vagina with his hands. Defendant performed cunnilingus, anal intercourse, and vaginal intercourse. S.G. was crying, but defendant covered her mouth with his hand.

S.G.'s cousin then came into the house and called for defendant. Defendant jumped off the bed, put on his clothes, and told S.G. to put on her clothes. Defendant and S.G.'s cousin spoke outside the house, and S.G. went back to the living room, still crying. S.G.'s grandmother was still asleep. Defendant walked back into the living room and attempted to make S.G. perform fellatio, but S.G. resisted. After S.G.'s grandmother made some movements in her sleep, defendant left S.G. and went back into his bedroom.

On 17 April 2013, S.G. began crying in class at school, so S.G.'s teacher sent her to the school guidance counselor and school social worker. S.G. reported some of defendant's sexual abuse to the guidance counselor and social worker but did not disclose anal penetration. The social worker reported her allegations to the Hoke County Department of Social Services. On 13 May 2013, Dr. Danielle Thomas-Taylor, the medical director of a family medicine program in Fayetteville and a board-certified child abuse pediatrician, interviewed S.G. and *224performed a physical exam. During this interview, S.G. reported to Dr. Thomas-Taylor that defendant had performed anal intercourse, among other sexually abusive acts.

On or about 2 December 2013, a grand jury indicted defendant for rape of a child, sexual offense with a child based on anal intercourse, sexual offense with a child based on cunnilingus, and two counts of taking indecent liberties with a child. See N.C. Gen.Stat. §§ 14-27.2A, -27.4A, -202.1 (2009). On or about 4 June 2014, at the close of the State's evidence at trial, the trial court dismissed one count of taking indecent liberties with a child. On or about 5 June 2014, the jury found defendant guilty of the remaining charges. For the conviction of rape of a child, the trial court sentenced defendant to 483 to 640 months' imprisonment. For the conviction of sex offense with a child based on anal intercourse, the trial court sentenced defendant to 483 to 640 months' imprisonment and ordered that this sentence run consecutively to the sentence imposed for the *395conviction of rape of a child. The trial court consolidated the conviction of sex offense with a child based on cunnilingus and the conviction of taking indecent liberties with a child. For these convictions, the trial court sentenced defendant to 483 to 640 months' imprisonment and ordered that this sentence run concurrently with the sentence imposed for the conviction of sex offense with a child based on anal intercourse. Defendant gave notice of appeal in open court.

II. Admission of Expert Opinion Testimony

Defendant contends that the trial court committed plain error in admitting Dr. Thomas-Taylor's testimony that S.G.'s delay in reporting anal penetration was a characteristic consistent with the general behavior of children who have been sexually abused in that manner.2 Defendant asserts that this testimony amounted to an opinion on S.G.'s credibility and thus was inadmissible.

A. Standard of Review

For an appellate court to find plain error, it must first be convinced that, absent the error, the jury would have reached a different verdict. The defendant has the burden of showing that the error constituted plain error.
Thus, on plain error review, the defendant must first demonstrate that the trial court committed error, and *225next that absent the error, the jury probably would have reached a different result.

State v. Larkin, --- N.C.App. ----, ----, 764 S.E.2d 681, 685 (2014) (citations and quotation marks omitted), disc. review denied, - -- N.C. ----, 768 S.E.2d 841 (2015). "[A] trial court is afforded wide latitude in applying [North Carolina Rule of Evidence] 702 and will be reversed only for an abuse of discretion." State v. Carpenter, 147 N.C.App. 386, 393, 556 S.E.2d 316, 321 (2001) (brackets omitted), appeal dismissed and disc. review denied, 355 N.C. 217, 560 S.E.2d 143, cert. denied, 536 U.S. 967, 122 S.Ct. 2680, 153 L.Ed.2d 851 (2002).

B. Analysis

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. However, 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.

State v.

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Bluebook (online)
774 S.E.2d 392, 242 N.C. App. 222, 2015 N.C. App. LEXIS 564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-purcell-ncctapp-2015.