State v. Taylor

• Court: Court of Appeals of North Carolina
• Decided: April 15, 2014
• Docket: 13-988
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-988 NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Catawba County No. 11 CRS 5731

WILLARD MARSHALL TAYLOR, JR.

Appeal by defendant from judgment entered 7 March 2013 by

Judge Timothy S. Kincaid in Catawba County Superior Court.

Heard in the Court of Appeals 19 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for the State.

Dianne Jones McVay, for defendant-appellant.

HUNTER, Robert C., Judge.

Defendant Willard Marshall Taylor, Jr. appeals the judgment

entered after a jury found him guilty of one count of taking

indecent liberties with a child. On appeal, defendant argues

that: (1) the trial court committed plain error when it allowed

a physician’s assistant and an investigator for Child Protective

Services to testify about statements made to them by the

victim’s mother, (2) the trial court committed plain error by -2-

allowing a State’s witness to vouch for the victim’s

credibility, and (3) the trial court erred when it denied

defendant’s motion to dismiss for insufficiency of the evidence.

After careful review, we find no error.

Background

On 1 August 2011, defendant was indicted in Catawba County

on one count of taking indecent liberties with his

granddaughter, M.T. The offense was alleged to have occurred

between 1 November and 31 December 2010 when M.T. was five years

old.

The State’s evidence at trial tended to establish the

following: M.T.’s parents, Brad—defendant’s son—and Cara,1 were

separated and living apart in October 2009. At the time of the

alleged abuse, Brad resided with defendant. Although M.T.

continued to reside with Cara, an informal custody agreement

provided that Brad would keep M.T. every other weekend.

Sometime around the end of 2010 and the beginning of 2011,

after a weekend visit with Brad, Cara first became concerned

about M.T.’s behavior after M.T. refused to allow her in the

bathroom to help her shower or dry off. Cara also claimed that

M.T. began “humping” a stuffed animal. M.T. allegedly told Cara

that her vaginal area hurt and burned. After one weekend visit,

1 For purposes of this opinion, to protect the identity of the minor child, we have used initials and pseudonyms for the victim and her parents. -3-

Cara examined M.T. and saw vaginal discharge; M.T.’s vagina also

appeared “really red.” When Cara asked M.T. what happened, M.T.

responded that defendant put his finger in her “rose.” M.T.

referred to her genital area as her “rose.”

On 4 February 2011, Cara took M.T. to Gary Poston

(“Poston”), a physician’s assistant at a local medical clinic.

Poston testified that Cara told him that M.T. accused her

grandfather of putting his finger in her vagina. After learning

of the possibility of sexual abuse, Poston declined to examine

M.T.; instead, he referred Cara to the Department of Social

Services (“DSS”) for follow-up as he had been trained to do in

alleged sexual abuse situations.

After leaving the clinic, Cara took M.T. directly to the

Newton Police Department where she met with Child Protective

Services’ investigators Thomas Neff (“Neff”) and Brian Cloninger

(“Cloninger”). Cara told them what M.T. claimed defendant had

done. Neff and Cloninger arranged an interview and medical exam

for M.T. at the Children’s Advocacy Protection Center (“CAPC”).

On 9 February 2011 at CAPC, Beth Osbahr (“Osbahr”), a

pediatric nurse practitioner, performed the medical exam and

examined M.T. for signs of sexual abuse. Osbahr testified that

she did not observe any physical evidence of sexual abuse during

M.T.’s examination, but the time-frame between the alleged abuse

and examination would make it unlikely to find physical -4-

evidence. After the medical exam, Neff, a trained forensic

interviewer, performed a recorded interview with M.T.; no one

else was in the room with them. During the interview, M.T.

claimed that defendant had touched her vagina while she was at

defendant’s home. A recording of that interview was played to

the jury at trial.

Following the CAPC interview and examination, Brad sought

an additional interview of M.T. in his presence, which was later

conducted by Adrienne Opdyke (“Opdyke”). This later interview

was conducted at the District Attorney’s office with M.T., Brad,

Opdyke, and the district attorney present. At trial, Opdyke

testified as an expert witness in the field of forensic

interviewing. She testified that M.T. told her that defendant

touched her “rose” in the bathroom of his home. Opdyke also

testified as to the proper method of conducting a forensic

interview with a child.

At trial, the following witnesses testified on defendant’s

behalf: his two sons, Brad and Justin; defendant’s wife, Rhonda;

and defendant himself. All four defense witnesses testified

that after Neff’s interview with M.T., each questioned M.T.

about the alleged sexual abuse even though Neff had instructed

them not to. All four defense witnesses claimed that M.T.

denied that defendant touched her; instead, M.T. alleged that

Cara told her to say that she had been touched. Brad recorded -5-

one of these conversations he had with M.T. where she claimed

that “Peepaw didn’t touch” her. A transcript of the recording

was admitted into evidence at trial. On rebuttal, Opdyke

testified that she had concerns about Brad’s recording of his

interview with M.T. In her opinion, Opdyke claimed that several

of his questions were ambiguous and confusing.

On 7 March 2013, a jury found defendant guilty on one count

of taking indecent liberties with a child. Defendant was

sentenced to a minimum of 13 months and a maximum of 16 months

imprisonment. The trial court suspended the sentence, and

defendant was placed on supervised probation for 36 months.

Defendant gave notice of appeal in open court.

Discussion

A. Hearsay

Defendant first argues the trial court committed plain

error by admitting testimony that constituted inadmissible

hearsay. Specifically, defendant contends that Poston’s and

Neff’s testimony concerning statements Cara made to them about

what M.T. had told her constituted double hearsay. We disagree.

Defendant did not object at trial to the admission of

Poston’s or Neff’s testimony; thus, the trial court’s admission

of their statements is reviewed for plain error, State v.

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

error to constitute plain error, a defendant must demonstrate -6-

that a fundamental error occurred at trial. To show that an

error was fundamental, a defendant must establish . . . the

error had a probable impact on the jury’s finding that the

defendant was guilty.” Id. (citations and quotations omitted).

“Hearsay is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” State v.

Stanley, 213 N.C. App. 545, 552, 713 S.E.2d 196, 201 (2011).

When evidence of such statements by one other than the witness testifying is offered for a proper purpose other than to prove the truth of the matter asserted, it is not hearsay and is admissible. Specifically, statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made.

State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990)

(internal citations and quotation marks omitted).

Defendant challenges the testimony of Poston and Neff

concerning statements Cara made to them about things M.T. had

told her. Specifically, defendant claims that Poston’s

testimony that Cara told him that M.T. told her “pawpaw had

touched her in the vaginal area and rubbed her very hard” and

Neff’s testimony that Cara told him that M.T. claimed that

defendant “had touched [M.T.] in a private part” constituted

inadmissible double hearsay. However, neither Cara’s out-of-

court statements to them nor M.T.’s out-of-court statements to -7-

Cara constituted hearsay because neither were offered at trial

as substantive truth that defendant had touched M.T. Instead,

these statements were offered for a purpose other than asserting

the truth of the matter asserted; they were used to explain

subsequent actions by Poston and Neff. Specifically, these

statements explained why Poston referred Cara to DSS and why

Neff initiated an investigation into the alleged abuse.

Therefore, since neither Poston’s nor Neff’s testimony was

offered to prove the truth of the matter asserted, the out-of-

court statements by M.T. and her mother were not hearsay, and

the trial court did not err, much less commit plain error, in

admitting Poston’s and Neff’s testimony.

B. Opdyke’s Testimony Regarding M.T.’s Credibility

Defendant next argues the trial court committed plain error

when it allowed the State’s expert witness to vouch for M.T.’s

credibility. We disagree.

“If scientific, technical or other specialized knowledge

will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion.” State v. Green, 209

N.C. App. 669, 675-76, 707 S.E.2d 715, 720 (2011); N.C. R. Evid.

702(a). However, “[i]t is fundamental to a fair trial that the

credibility of the witnesses be determined by the jury . . . -8-

[and thus] an expert’s opinion to the effect that a witness is

credible, believable, or truthful is inadmissible.” State v.

Boyd, 200 N.C. App. 97, 103, 682 S.E.2d 463, 468 (2009) (quoting

State v. Hannon, 118 N.C. App. 448, 451, 455 S.E.2d 494, 496

(1995)).

Defendant argues his case is similar to State v. Giddens,

199 N.C. App. 115, 121-22, 681 S.E.2d 504, 508 (2009), where

this Court held that the trial court committed prejudicial error

when the State’s witness, a DSS investigator, testified that her

investigation “substantiated” that the defendant had committed

the crime. See also State v. Couser, 163 N.C. App. 727, 730-31,

594 S.E.2d 420, 422-23 (2004) (holding that the trial court

committed prejudicial error when the expert witness testified

after speaking with the child that the child was “probably

sexually abused”); State v. Ryan, __ N.C. App. __, __, 734

S.E.2d 598, 604 (2012) (concluding the trial court committed

prejudicial error by allowing the expert witness to testify that

“she was not concerned that the child was ‘giving a fictitious

story’”). Defendant contends Opdyke substantiated M.T.’s

testimony through her description of her forensic interview with

M.T. and her analysis of Brad’s recorded interview with M.T.

However, unlike Giddens where the DSS investigator actually

said she “substantiated” that defendant was guilty, 199 N.C.

App. at 121-22, 681 S.E.2d at 508, or other cases where an -9-

expert testifies as to the credibility of the victim, Opdyke

never provided her expert opinion that M.T. had been truthful

during their interview. Opdyke testified as follows:

Q: What is the goal of the forensic interview?

A: To allow the child to talk about an event, if it happened, in their own words without leading. And it has to be developmentally correct, so I’m going to the use terms and words that a six-year-old may use.

Q: What efforts are made to try to get the truth from the child?

A: Just by asking the open-ended questions, real open questions. You know, the best is when a child tells you the narrative form where you’re not asking this -- you know, asking specific questions but open questions, Tell me what happened or tell me more about that, and then it comes directly from the child.

Q: Now, specifically about the interview you did with [M.T.]. Please describe what you remember of the interview and what you did and, of course, what the child told you.

A: Okay . . . I asked her to tell me about the event that happened with her pawpaw. And she told me about pawpaw touching her rose and happening in the bathroom.

Opdyke never testified as to her opinion of M.T.’s truthfulness

or credibility; instead, she testified as to how she conducted

her interview and what M.T. told her. Thus, her testimony does

not constitute the type of victim substantiation found in

Giddens, Couser, or Ryan. Accordingly, the trial court did not -10-

err, much less commit plain error, in allowing her testimony

into evidence.

C. Motion to Dismiss

Next, defendant argues the trial court erred by denying his

motion to dismiss for insufficiency of the evidence.

Specifically, defendant contends that the State did not present

sufficient evidence that defendant touched M.T. for the purpose

of arousing and gratifying his sexual desires. We disagree.

“The denial of a motion to dismiss for insufficient

evidence is a question of law, which this Court reviews de

novo.” State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615,

621 (2007) (citations omitted). A motion to dismiss is reviewed

for “whether the State presented substantial evidence of each

element of the offense and defendant’s being the perpetrator.”

State v. Hernandez, 188 N.C. App. 193, 196, 655 S.E.2d 426, 429

(2008) (quotations omitted).

Here, defendant was charged with taking indecent liberties

with a child in violation of N.C. Gen. Stat. § 14-202.1. The

essential elements required for conviction under N.C. Gen. Stat.

§ 14-202.1 are:

(1) the defendant was at least 16 years of age; (2) he was five years older than his victim; (3) he willfully took or attempted to take an indecent liberty with the victim; (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred; and (5) the action by the -11-

defendant was for the purpose of arousing or gratifying sexual desire.

State v. Thaggard, 168 N.C. App. 263, 282, 608 S.E.2d 774, 786-

87 (2005); N.C. Gen. Stat. § 14-202.1 (2011).

Defendant only challenges the third and fifth elements on

appeal. First, defendant argues that the State did not present

substantial evidence that he willfully took an indecent liberty

with M.T. This Court has continuously held that “[t]he

uncorroborated testimony of the victim is sufficient to convict

under N.C.G.S. § 14-202.1 if the testimony establishes all of

the elements of the offense.” State v. McClary, 198 N.C. App.

169, 175, 679 S.E.2d 414, 419 (2009) (quoting State v. Quarg,

334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993)). During defendant’s

trial, M.T. testified that defendant pulled down her pants and

put his finger in her vagina while M.T. was visiting defendant’s

home. Moreover, the State provided additional witness testimony

that corroborated M.T.’s allegations. Thus, the State presented

substantial evidence that defendant willfully took an indecent

liberty with M.T.

Next, defendant argues the State failed to present

substantial evidence that his actions were for the purpose of

sexual arousal or gratification. “The requirement that

defendant’s actions were for the purpose of arousing or

gratifying sexual desire may be inferred from the evidence of -12-

the defendant’s actions.” McClary, 198 N.C. App. at 174, 679

S.E.2d at 419 (holding an inference of sexual gratification was

not in error when defendant only sent the victim letters but

never had sexual intercourse with the victim). Here, M.T.

testified that defendant actually carried out the sexual act of

inserting his finger into M.T.’s vagina. Such evidence was

sufficient to permit the jury to infer that defendant’s purpose

in doing so was to arouse himself or to gratify his sexual

desire. See generally State v. Rogers, 109 N.C. App. 491, 505-

06, 428 S.E.2d 220, 228-29 (1993) (holding the evidence that the

defendant touched the victim’s chest and vaginal area was

sufficient to permit the jury to infer that the defendant’s

purpose in doing so was to arouse himself or to gratify his

sexual desire).

Conclusion

Based on the foregoing reasons, defendant’s trial was free

from error.

NO ERROR.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).