An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-750
Filed 3 December 2025
Wake County, No. 21CR211407-910
STATE OF NORTH CAROLINA
v.
DANIEL VALENCIA RODRIGUEZ
Appeal by defendant from judgments entered 15 September 2023 by Judge
Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 24
September 2025.
Attorney General Jeff Jackson, by Assistant Attorney General A. Mercedes Restucha, for the State.
Thomas, Ferguson & Beskind, LLP, by Olivia Warren, for defendant-appellant.
ZACHARY, Judge.
Defendant Daniel Valencia Rodriguez appeals from the trial court’s judgments
entered upon a jury’s verdicts finding him guilty of statutory rape of a child by an
adult, statutory sex offense with a child by an adult, and taking indecent liberties
with a child. On appeal, Defendant argues that the trial court committed plain error
by admitting certain expert witness testimony that constituted impermissible STATE V. RODRIGUEZ
Opinion of the Court
vouching, or, in the alternative, that Defendant received the ineffective assistance of
counsel due to trial counsel’s failure to object to the admission of the alleged vouching.
After careful review, we conclude that Defendant received a fair trial, free from error.
I. Background
On 23 August 2021, a Wake County grand jury indicted Defendant for multiple
sexual-abuse charges against “C.M.”1, the daughter of his girlfriend. Defendant’s case
came on for jury trial on 11 September 2023 in Wake County Superior Court.
At trial, the State introduced several witnesses, one of whom was Dr. Andrew
Jakubowicz. Dr. Jakubowicz, who was admitted as an expert in emergency pediatric
medicine, testified regarding C.M.’s interview and her physical examination, which
were conducted on 21 July 2021 at WakeMed Children’s Emergency Department.
The State introduced numerous other witnesses at trial, including: C.M., who
testified as to the details of Defendant’s sexual abuse, which began when she was
“[t]en years at the most”; C.M.’s older sister, who testified as to C.M.’s disclosure of
Defendant’s sexual abuse, her changes in behavior, and the report of Defendant’s
abuse to law enforcement; two law enforcement officers, who spoke with C.M., her
older sister, and their mother, interviewed Defendant, and collected evidence; a child
protective services agent, who interviewed C.M. and members of her family,
conducted home visits, and observed C.M.’s medical evaluation; a detective, who
1 To protect the identity of the minor child, we employ the initials to which the parties agreed.
See N.C.R. App. P. 42(b).
-2- STATE V. RODRIGUEZ
interviewed Defendant, collected his DNA, and observed C.M.’s medical evaluation;
a trauma nurse and another law enforcement officer, both of whom handled C.M.’s
rape kit; a crime scene investigator, who investigated the home at which the abuse
occurred; and a forensic scientist, who conducted laboratory tests on the DNA
evidence that was collected. The State also introduced a video of C.M.’s medical
evaluation, which was admitted into evidence and published to the jury.
At the conclusion of the trial, the jury returned verdicts finding Defendant
guilty of all charges. The trial court entered judgments against Defendant,
consolidating his convictions for statutory rape of a child by an adult and statutory
sex offense with a child by an adult and sentencing him to a term of 300 to 420
months’ imprisonment in the custody of the North Carolina Department of Adult
Correction. The court also sentenced Defendant to a consecutive term of 16 to 29
months’ imprisonment for his conviction for taking indecent liberties with a child.
The trial court entered a permanent no-contact order, required Defendant to register
as a sex offender, and required Defendant to submit to a risk assessment conducted
by the Department of Adult Correction to determine the need for satellite-based
monitoring.
Defendant gave oral notice of appeal.
II. Discussion
Defendant argues on appeal that the trial court committed plain error by
admitting certain expert testimony that constituted improper vouching or, in the
-3- STATE V. RODRIGUEZ
alternative, that he received the ineffective assistance of counsel due to his trial
counsel’s failure to object to the admission of the alleged improper vouching. We
conclude that the trial court did not err by admitting the challenged portion of expert
testimony and thus that Defendant did not receive the ineffective assistance of
counsel.
A. Vouching
First, Defendant contends that “the trial court committed plain error by
allowing the State’s expert witness to vouch for C.M.’s credibility when the treating
physician testified that he ‘just knew that . . . this girl had been wronged.’ ” We
disagree.
1. Standard of Review
In criminal cases, certain evidentiary and instructional issues that were not
properly preserved by objection at trial and that are not otherwise “deemed preserved
by rule or law without any such action nevertheless may be made the basis of an issue
presented on appeal when the judicial action questioned is specifically and distinctly
contended to amount to plain error.” N.C.R. App. P. 10(a)(4).
Defendant concedes that “defense counsel did not object to this testimony at
trial,” which he now challenges on appeal. Therefore, he “specifically and distinctly
contend[s]” that the admission of this testimony amounted to plain error and seeks
plain-error review. Id.
As our Supreme Court recently reiterated, plain error is established by
-4- STATE V. RODRIGUEZ
satisfying “a three-factor test.” State v. Reber, 386 N.C. 153, 158, 900 S.E.2d 781, 786
(2024). “First, the defendant must show that a fundamental error occurred at trial.”
Id. “Second, the defendant must show that the error had a probable impact on the
outcome, meaning that absent the error, the jury probably would have returned a
different verdict.” Id. (cleaned up). “Finally, the defendant must show that the error
is an exceptional case that warrants plain error review, typically by showing that the
error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (cleaned up).
2. Analysis
“[I]t is fundamental to a fair trial that a witness’s credibility be determined by
a jury, that expert opinion on the credibility of a witness is inadmissible, and that the
admission of such testimony is prejudicial when the State’s case depends largely on
the testimony of the prosecuting witness.” State v. Crabtree, 249 N.C. App. 395, 403,
790 S.E.2d 709, 715 (2016) (citation omitted), aff’d, 370 N.C. 156, 804 S.E.2d 183
(2017). Therefore, “[e]xpert opinion is not admissible to vouch for a victim’s
credibility.” State v. Betts, 377 N.C. 519, 523, 858 S.E.2d 601, 604 (2021).
“In a sexual offense prosecution involving a child victim, the trial court should
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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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-750
Filed 3 December 2025
Wake County, No. 21CR211407-910
STATE OF NORTH CAROLINA
v.
DANIEL VALENCIA RODRIGUEZ
Appeal by defendant from judgments entered 15 September 2023 by Judge
Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 24
September 2025.
Attorney General Jeff Jackson, by Assistant Attorney General A. Mercedes Restucha, for the State.
Thomas, Ferguson & Beskind, LLP, by Olivia Warren, for defendant-appellant.
ZACHARY, Judge.
Defendant Daniel Valencia Rodriguez appeals from the trial court’s judgments
entered upon a jury’s verdicts finding him guilty of statutory rape of a child by an
adult, statutory sex offense with a child by an adult, and taking indecent liberties
with a child. On appeal, Defendant argues that the trial court committed plain error
by admitting certain expert witness testimony that constituted impermissible STATE V. RODRIGUEZ
Opinion of the Court
vouching, or, in the alternative, that Defendant received the ineffective assistance of
counsel due to trial counsel’s failure to object to the admission of the alleged vouching.
After careful review, we conclude that Defendant received a fair trial, free from error.
I. Background
On 23 August 2021, a Wake County grand jury indicted Defendant for multiple
sexual-abuse charges against “C.M.”1, the daughter of his girlfriend. Defendant’s case
came on for jury trial on 11 September 2023 in Wake County Superior Court.
At trial, the State introduced several witnesses, one of whom was Dr. Andrew
Jakubowicz. Dr. Jakubowicz, who was admitted as an expert in emergency pediatric
medicine, testified regarding C.M.’s interview and her physical examination, which
were conducted on 21 July 2021 at WakeMed Children’s Emergency Department.
The State introduced numerous other witnesses at trial, including: C.M., who
testified as to the details of Defendant’s sexual abuse, which began when she was
“[t]en years at the most”; C.M.’s older sister, who testified as to C.M.’s disclosure of
Defendant’s sexual abuse, her changes in behavior, and the report of Defendant’s
abuse to law enforcement; two law enforcement officers, who spoke with C.M., her
older sister, and their mother, interviewed Defendant, and collected evidence; a child
protective services agent, who interviewed C.M. and members of her family,
conducted home visits, and observed C.M.’s medical evaluation; a detective, who
1 To protect the identity of the minor child, we employ the initials to which the parties agreed.
See N.C.R. App. P. 42(b).
-2- STATE V. RODRIGUEZ
interviewed Defendant, collected his DNA, and observed C.M.’s medical evaluation;
a trauma nurse and another law enforcement officer, both of whom handled C.M.’s
rape kit; a crime scene investigator, who investigated the home at which the abuse
occurred; and a forensic scientist, who conducted laboratory tests on the DNA
evidence that was collected. The State also introduced a video of C.M.’s medical
evaluation, which was admitted into evidence and published to the jury.
At the conclusion of the trial, the jury returned verdicts finding Defendant
guilty of all charges. The trial court entered judgments against Defendant,
consolidating his convictions for statutory rape of a child by an adult and statutory
sex offense with a child by an adult and sentencing him to a term of 300 to 420
months’ imprisonment in the custody of the North Carolina Department of Adult
Correction. The court also sentenced Defendant to a consecutive term of 16 to 29
months’ imprisonment for his conviction for taking indecent liberties with a child.
The trial court entered a permanent no-contact order, required Defendant to register
as a sex offender, and required Defendant to submit to a risk assessment conducted
by the Department of Adult Correction to determine the need for satellite-based
monitoring.
Defendant gave oral notice of appeal.
II. Discussion
Defendant argues on appeal that the trial court committed plain error by
admitting certain expert testimony that constituted improper vouching or, in the
-3- STATE V. RODRIGUEZ
alternative, that he received the ineffective assistance of counsel due to his trial
counsel’s failure to object to the admission of the alleged improper vouching. We
conclude that the trial court did not err by admitting the challenged portion of expert
testimony and thus that Defendant did not receive the ineffective assistance of
counsel.
A. Vouching
First, Defendant contends that “the trial court committed plain error by
allowing the State’s expert witness to vouch for C.M.’s credibility when the treating
physician testified that he ‘just knew that . . . this girl had been wronged.’ ” We
disagree.
1. Standard of Review
In criminal cases, certain evidentiary and instructional issues that were not
properly preserved by objection at trial and that are not otherwise “deemed preserved
by rule or law without any such action nevertheless may be made the basis of an issue
presented on appeal when the judicial action questioned is specifically and distinctly
contended to amount to plain error.” N.C.R. App. P. 10(a)(4).
Defendant concedes that “defense counsel did not object to this testimony at
trial,” which he now challenges on appeal. Therefore, he “specifically and distinctly
contend[s]” that the admission of this testimony amounted to plain error and seeks
plain-error review. Id.
As our Supreme Court recently reiterated, plain error is established by
-4- STATE V. RODRIGUEZ
satisfying “a three-factor test.” State v. Reber, 386 N.C. 153, 158, 900 S.E.2d 781, 786
(2024). “First, the defendant must show that a fundamental error occurred at trial.”
Id. “Second, the defendant must show that the error had a probable impact on the
outcome, meaning that absent the error, the jury probably would have returned a
different verdict.” Id. (cleaned up). “Finally, the defendant must show that the error
is an exceptional case that warrants plain error review, typically by showing that the
error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (cleaned up).
2. Analysis
“[I]t is fundamental to a fair trial that a witness’s credibility be determined by
a jury, that expert opinion on the credibility of a witness is inadmissible, and that the
admission of such testimony is prejudicial when the State’s case depends largely on
the testimony of the prosecuting witness.” State v. Crabtree, 249 N.C. App. 395, 403,
790 S.E.2d 709, 715 (2016) (citation omitted), aff’d, 370 N.C. 156, 804 S.E.2d 183
(2017). Therefore, “[e]xpert opinion is not admissible to vouch for a victim’s
credibility.” State v. Betts, 377 N.C. 519, 523, 858 S.E.2d 601, 604 (2021).
“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.” State v. Stancil, 355 N.C.
266, 266–67, 559 S.E.2d 788, 789 (2002). “Thus, an expert witness’s definitive
-5- STATE V. RODRIGUEZ
diagnosis of sexual abuse is inadmissible unless it is based upon supporting physical
evidence of the abuse.” State v. Warden, 376 N.C. 503, 507, 852 S.E.2d 184, 188 (2020)
(cleaned up); see also State v. Perdomo, 276 N.C. App. 136, 140, 854 S.E.2d 596, 600
(2021) (“For expert testimony to amount to vouching for a witness’s credibility, that
expert testimony must present a definitive diagnosis of sexual abuse in the absence
of supporting physical evidence of the abuse.” (cleaned up)), disc. review denied, 380
N.C. 678, 868 S.E.2d 859 (2022).
In the instant case, on direct examination, Dr. Jakubowicz testified in part as
follows:
Q. And can you tell us about that interview that you ha[d] with [C.M.]?
A. I mean, so it happened, you know, obviously, a couple years ago. I remember -- the thing that I think that strikes me the most when I saw this case come across is -- you know, unfortunately, I see a lot of these cases, you know, and a lot meaning once a month, you know, in my practice. This is not an irregular thing for us to have to do, but when I walked -- I remember her case two years, you know -- I remember her case because as I walked out of that room, I - - you just knew that -- and it’s more of a gut feeling, this girl had been wronged.
(Emphases added).
Defendant specifically challenges the emphasized testimony, claiming that it
“improperly conveyed the opinion that C.M.’s allegations had actually happened and
therefore constituted impermissible vouching.” However, we agree with the State
that this portion of Dr. Jakubowicz’s testimony instead “reflected the observations he
-6- STATE V. RODRIGUEZ
made of the victim during his examination.” Dr. Jakubowicz’s explanation of his
distinct recollection of C.M.’s case as resulting from his feeling upon interviewing her
was not a “definitive diagnosis of sexual abuse.” Warden, 376 N.C. at 507, 852 S.E.2d
at 188 (citation omitted). Indeed, Dr. Jakubowicz’s statement that “it’s more of a gut
feeling” confirmed that he was not opining that “sexual abuse ha[d] in fact occurred.”
Stancil, 355 N.C. at 266, 559 S.E.2d at 789.
Accordingly, the challenged portion of Dr. Jakubowicz’s testimony did not
constitute improper vouching. We discern no error, let alone plain error, in the trial
court’s admission of this expert testimony. Defendant’s argument is overruled.
B. Ineffective Assistance of Counsel
Defendant also contends that “[i]n the alternative, trial counsel was ineffective
for not objecting to the impermissible vouching by the State’s expert.”
“On appeal, this Court reviews whether a defendant was denied effective
assistance of counsel de novo.” State v. Harris, 256 N.C. App. 549, 557, 808 S.E.2d
327, 332 (2017) (citation and italics omitted).
“A defendant’s constitutionally[ ]guaranteed right to counsel includes the right
to the effective assistance of counsel.” State v. Beckham, 145 N.C. App. 119, 125, 550
S.E.2d 231, 236 (2001). “Ineffective assistance of counsel claims brought on direct
review will be decided on the merits when the cold record reveals that no further
-7- STATE V. RODRIGUEZ
investigation is required, i.e., claims that may be developed and argued without such
ancillary procedures as the appointment of investigators or an evidentiary hearing.”
Harris, 256 N.C. App. at 557, 808 S.E.2d at 333 (cleaned up). “To succeed on a claim
of ineffective assistance of counsel, a defendant must show that (1) counsel’s
performance was deficient, and (2) the deficient performance prejudiced the defense.”
State v. Worley, 268 N.C. App. 300, 310, 836 S.E.2d 278, 286 (2019) (cleaned up), disc.
review denied, 375 N.C. 287, 846 S.E.2d 285 (2020).
As stated above, the trial court did not err by admitting the portion of Dr.
Jakubowicz’s testimony that Defendant asserts constituted improper vouching.
Therefore, Defendant has failed to show that his counsel was deficient in failing to
object to the admission of this testimony. Id. Defendant did not receive the ineffective
assistance of counsel and his arguments regarding this point are without merit.
III. Conclusion
For the reasons stated above, we conclude that the trial court did not err or
commit plain error.
NO ERROR.
Judges HAMPSON and WOOD concur.
Report per Rule 30(e).
-8-