An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1023 NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Wake County Nos. 11 CRS 207991-95 ROBERTO TORRES-ROBLES
Appeal by defendant from judgments entered 15 February 2013
by Judge Paul C. Ridgeway in Wake County Superior Court. Heard
in the Court of Appeals 22 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Laura E. Crumpler, for the State.
Mark Montgomery, for defendant-appellant.
CALABRIA, Judge.
Roberto Torres-Robles (“defendant”) appeals from judgments
entered upon jury verdicts finding him guilty of first degree
sexual offense with a child (“first degree sex offense”),
attempted first degree sexual offense with a child (“attempted
sex offense”), and three counts of indecent liberties with a
child (“indecent liberties”). We find no error.
I. Background -2- C.H. (“Cory”1) was six years old when his mother began
dating defendant. Cory, his mother, and his older brother moved
in with defendant that same year. Defendant subsequently began
touching Cory inappropriately while Cory’s mother was at work
and they were alone in the home.
On the first occasion, defendant touched Cory’s penis over
the clothes while Cory was still dressed. The second time
defendant touched Cory, he touched Cory’s penis underneath the
clothes. On several other occasions, defendant attempted to
force Cory to touch defendant’s penis. Defendant also touched
Cory’s buttocks and anus on multiple occasions. Defendant put
his fingers inside Cory’s anus more than once.
In 2010, Cory’s family moved out of defendant’s home and
into their own residence. After defendant was arrested
following an incident of domestic violence against Cory’s mother
at her residence, Cory told his mother that defendant had been
abusing him. Later, Cory discussed the abuse with law
enforcement officers and social workers. He also started seeing
a therapist and taking medication to help him sleep at night.
Defendant was subsequently charged with three counts of
indecent liberties and one count each of attempted sex offense
1 We use this pseudonym to protect the juvenile’s privacy and for ease of reading. -3- and first degree sex offense. At trial, the State presented
several witnesses, including Dr. David Randall Johnson (“Dr.
Johnson”), Christine Rafter (“Rafter”), and Cory’s mother. Dr.
Johnson testified as an expert in the field of child and
adolescent psychiatry regarding his diagnosis of Cory. Rafter,
a social worker, testified regarding her involvement with Cory
and his family. Cory’s mother also testified regarding the
events surrounding Cory’s allegations against defendant.
On 15 February 2013, the jury returned verdicts finding
defendant guilty of all offenses. The trial court sentenced
defendant to a minimum of 192 months and a maximum of 240 months
for the first degree sex offense, with credit for 681 days spent
in confinement prior to the entry of judgment. Defendant was
also sentenced to a minimum of 125 and a maximum of 159 months
for the attempted sex offense as well as a minimum of 13 and a
maximum of 16 months for the indecent liberties offenses, all to
be served consecutively in the custody of the North Carolina
Division of Adult Correction. Defendant appeals.
As an initial matter, defendant argues that the trial court
erred in evidentiary rulings and in the jury instructions.
Defendant concedes that he did not object to these errors at
trial. Therefore, we must apply the plain error standard. -4- II. Standard of Review
Our Supreme Court has elected to review unpreserved alleged
errors under the plain error standard when the alleged errors
are in evidentiary rulings and jury instructions. State v.
Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Plain
error is to be applied cautiously, when the claimed error is “a
fundamental error, something so basic, so prejudicial, so
lacking in its elements that justice cannot have been done[.]”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(citation omitted). “Under the plain error rule, [the]
defendant must convince this Court not only that there was
error, but that absent the error, the jury probably would have
reached a different result.” State v. Jordan, 333 N.C. 431,
440, 426 S.E.2d 692, 697 (1993).
III. Rules of Evidence
According to defendant, the testimony of three witnesses,
Dr. Johnson, Rafter, and Cory’s mother, amounted to an
impermissible bolstering of Cory’s allegations against defendant
because the witnesses allegedly “vouched” for Cory’s
truthfulness. We disagree.
Pursuant to Rule 608(a) of the North Carolina Rules of
Evidence, “evidence of truthful character is admissible only -5- after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.” N.C.
Gen. Stat. § 8C-1, Rule 608(a) (2013). In all cases in which
evidence of character or a trait of character of a person is
admissible, Rule 405 allows testimony in the form of an opinion,
but “[e]xpert testimony on character or a trait of character is
not admissible as circumstantial evidence of behavior.” N.C.
Gen. Stat. § 8C-1, Rule 405(a) (2013). Rule 702 allows expert
witnesses to testify in the form of an opinion when a witness
qualified as an expert by knowledge, skill, experience,
training, or education, bases the testimony upon sufficient
facts or data, the testimony is the product of reliable
principles and methods, and the witness has applied those
principles and methods reliably to the facts. N.C. Gen. Stat. §
8C-1, Rule 702(a) (2013). “This Court has repeatedly held that
N.C.G.S. § 8C-1, Rule 608 and N.C.G.S. § 8C-1, Rule 405(a), when
read together, forbid an expert’s opinion testimony as to the
credibility of a witness.” State v. Crocker, 197 N.C. App. 358,
364, 676 S.E.2d 658, 661 (2009). However, “Rule 702 permits
expert witnesses to explain the bases of their opinions. Thus,
a witness who renders an expert opinion may also testify as to
the reliability of the information upon which he based his -6- opinion.” State v. Marine, 135 N.C. App. 279, 281, 520 S.E.2d
65, 66-67 (1999) (citation omitted). “[T]he mental and
emotional state of the victim before, during, and after a . . .
sexual assault is relevant testimony that can help assist the
trier of fact in understanding the basis of that expert’s
opinion.” Id., 520 S.E.2d at 67.
IV. Witness Testimony
A. Dr. Johnson
During the State’s direct examination, Dr. Johnson
testified regarding Cory’s psychological examination, that Cory
suffered from post-traumatic stress disorder (“PTSD”), and that
Cory’s symptoms were consistent with someone who had experienced
extended trauma. Dr. Johnson also testified this diagnosis was
based on information he obtained after examining Cory,
discussing the case with social worker Cindy Frye (“Ms. Frye”),
and his expert knowledge of the psychological characteristics of
abused children in general. On cross-examination, defense
counsel asked Dr. Johnson whether something other than sexual
abuse could have caused Cory’s PTSD:
Q. Is it possible that some of the post stress disorder could have come from something other than any type of sexual contact with [defendant]?
A. Given what Ms. Frye shared about the -7- case, I would think that would be unlikely. One thing I do document in my first note is that at the time he revealed this to his mother, that the alleged perpetrator was in jail for domestic violence. And certainly children who have witnessed or been in the midst of domestic violence can have post traumatic stress symptoms, as well.
At trial, defendant did not object to Dr. Johnson’s
testimony regarding the cause of Cory’s PTSD diagnosis. On
appeal, defendant contends that Dr. Johnson’s cross-examination
testimony stating that another cause of Cory’s PTSD was
“unlikely” amounts to an improper bolstering of Cory’s
testimony. Specifically, defendant contends that Dr. Johnson’s
testimony subtly communicated his personal belief in Cory’s
allegations against defendant.
Defendant relies on State v. O’Connor, 150 N.C. App. 710,
564 S.E.2d 296 (2002), State v. Horton, 200 N.C. App. 74, 682
S.E.2d 754 (2009), and State v. Aguallo, 318 N.C. 590, 350
S.E.2d 76 (1986), for the proposition that Dr. Johnson’s
testimony was inadmissible. The Court granted a new trial in
all three cases. In O’Connor, this Court found plain error
where admission of an expert witness’s written report stating
the victim’s disclosure was “credible” was distributed to the
jury as an exhibit and the State’s case was dependent on the
victim’s credibility. 150 N.C. App. at 712, 564 S.E.2d at 297. -8- In Horton, an expert witness testified over objection that the
credibility of child victims is enhanced when they provide
details of alleged abuse. 200 N.C. App. at 78, 682 S.E.2d at
757. This Court held the admission of the expert’s testimony
could have held significant weight with the jury, and the
admission of the expert’s testimony was prejudicial error. Id.
at 79, 682 S.E.2d at 758. In Aguallo, the expert testified over
objection to an opinion that the child victim was “believable.”
318 N.C. at 598-99, 350 S.E.2d at 81.
Unlike the three cases defendant relies on, the instant
case is similar to State v. Marine, 135 N.C. App. 279, 520
S.E.2d 65 (1999). In Marine, the State’s expert witness
testified that in her opinion the victim suffered from PTSD.
Id. at 284, 520 S.E.2d at 68. The witness testified that she
based her opinion on the victim’s behavior during observation,
her review of statements that the victim gave to the police, and
her expert knowledge of the indications of PTSD. Finally, the
witness testified that the victim’s behavior and statements to
the police indicated that the victim “was being very honest.”
Id. at 281, 520 S.E.2d at 66. According to the Marine Court,
the witness’s testimony that the victim was being honest simply
explained why she felt the victim suffered from PTSD. The Court -9- held that the witness’s testimony “went to the reliability of
her diagnosis, not to [the victim’s] credibility.” Id. at 284,
520 S.E.2d at 68.
When Dr. Johnson testified regarding how “unlikely” it was
that something other than sexual abuse could have caused Cory’s
PTSD, he also indicated that children who witness domestic
violence could have PTSD symptoms. Therefore, the purpose of
Dr. Johnson’s disputed testimony was to explain the possible
causes of Cory’s PTSD. Such testimony by an expert witness is
relevant testimony that can assist the trier of fact to
understand the basis of the expert’s opinion pursuant to Marine.
Furthermore, Dr. Johnson’s testimony relates directly to the
causes which resulted in the PTSD diagnosis, and therefore went
to the reliability of his diagnosis, not Cory’s credibility.
B. Christine Rafter
Defendant also contends Rafter’s testimony concerning the
scheduling of a child medical evaluation improperly vouched for
Cory’s credibility:
Q. When you’re meeting there with [Cory] you’ve already gotten information from his mother, you’re talking to him about what happened, are you trying to get each and every detail about what happened?
A. At this point I wasn’t because the child is typically going to have to go through -10- another interview when he has the medical evaluation, and he was already very shy and closed off, so I didn’t want to continue to push him knowing that he was going to have to do this again, anyway.
Q. And so what is the – why are you trying to get some from him at least?
A. Because in order to schedule the medical evaluation, I have to have some kind of clear disclosure that having happened. [sic]
. . .
Q. And you had said initially that when you first meet with the children, you’re just trying to get a sense of whether something’s happened because you know you’ll be scheduling that child medical evaluation. Is that typically a lengthier interview?
A. Yes, much longer.
Defendant did not object to Rafter’s testimony at trial,
and mistakenly contends that Rafter testified as an expert
witness. Nothing in the record indicates that the State ever
tendered Rafter as an expert, or that the trial court
specifically admitted her as an expert witness. Rafter
testified as a lay witness. Rule 608(a) permits lay opinion
testimony on a witness’s character for truthfulness. N.C. Gen.
Stat. § 8C-1, Rule 608(a). Defendant cites O’Connor, Horton,
and Aguallo, and contends that the disputed testimony comprises
Rafter’s personal opinions because defendant believes Rafter -11- subtly communicated her belief in Cory’s allegations against
defendant. However, Rafter clearly testified regarding the
process of preliminary interviews with alleged victims of child
abuse prior to scheduling medical evaluations, and how she
followed a similar process when she interviewed Cory. Her job
was a preliminary procedure to prepare for a lengthier interview
during the medical evaluation, not to determine Cory’s
credibility.
Neither Dr. Johnson nor Rafter testified that Cory was
“credible” or “believable,” or that certain elements “enhanced”
Cory’s credibility. Instead, Dr. Johnson’s testimony explained
that after examining Cory, his diagnosis was PTSD, and Rafter’s
testimony concerned the processes she used in scheduling Cory’s
medical evaluations.
C. Cory’s mother
Cory’s mother also testified at trial regarding the
circumstances surrounding Cory’s allegations against defendant.
Specifically, defendant contests her testimony regarding an
instance in which she witnessed defendant pulling down the
diapers of a little girl (“Abby”)2. On cross-examination,
defense counsel questioned Cory’s mother several times regarding
2 A pseudonym to protect the juvenile’s privacy. -12- the incident and the timing of her reporting the incident to
social workers. The State, on re-direct examination, asked
Cory’s mother why she mentioned the diaper incident to Child
Protective Services. She responded that she “had realized that
my son what he was saying was true because I had already
realized what he [defendant] was doing to [Abby] [sic].”
Defendant did not object to this testimony at trial, but
now contends that Cory’s mother’s testimony on re-direct was an
impermissible bolstering of Cory’s allegations. Our Courts have
previously considered the effect of a mother’s testimony
regarding her children’s truthfulness in cases concerning child
sexual abuse. Because “most jurors are likely to assume that a
mother will believe accusations of sexual abuse made by her own
children, we cannot conclude that the challenged portion of . .
. testimony had any significant impact on the jury’s decision to
convict Defendant.” State v. Dew, ___ N.C. App. ___, ___, 738
S.E.2d 215, 219 (2013) (citing State v. Ramey, 318 N.C. 457,
466, 349 S.E.2d 566, 572 (1986) (stating that “[i]t is unlikely
that the jury gave great weight to the fact that a mother
believed that her son was truthful.”)).
Even if defendant had convinced this Court that there was
error, defendant fails to show that the jury would have reached -13- a different verdict based upon the disputed testimony from Dr.
Johnson, Rafter, or Cory’s mother. The State presented
substantial evidence at trial from Cory and several witnesses,
including social workers who had opportunities to observe Cory’s
demeanor and PTSD symptoms. Defendant fails to show that the
jury would have reached a different verdict.
V. Jury Instructions
Defendant also argues that the trial court committed plain
error in referring to Cory as a “victim” when instructing the
jury. We disagree.
“The judge may not express during any stage of the trial,
any opinion in the presence of the jury on any question of fact
to be decided by the jury.” N.C. Gen. Stat. § 15A-1222 (2013).
Similarly, in instructing the jury, “the judge shall not express
an opinion as to whether or not a fact has been proved and shall
not be required to state, summarize or recapitulate the
evidence, or to explain the application of the law to the
evidence.” N.C. Gen. Stat. § 15A-1232 (2013). This Court has
previously held that the trial court’s use of the term “victim”
to refer to a child prosecuting witness was not improper. State
v. Allen, 92 N.C. App. 168, 171, 374 S.E.2d 119, 121 (1988).
“The judge properly instructed the jury that it had to find that -14- defendant committed all the elements of the offenses charged
before they could find defendant guilty, regardless of whether
the child was referred to as the ‘victim,’ the prosecuting
witness, or by any other term.” Id., 374 S.E.2d at 121. “The
word ‘victim’ is included in the pattern jury instructions . . .
and is used regularly to instruct on the charges of first-degree
rape and first-degree sexual offense.” State v. Richardson, 112
N.C. App. 58, 67, 434 S.E.2d 657, 663 (1993) (no plain error
where defendant failed to object at trial to characterization of
child prosecuting witnesses as “victims” in delivering pattern
jury instructions for first degree rape and first degree sexual
offense); see State v. Henderson, 155 N.C. App. 719, 722-23, 574
S.E.2d 700, 703-04 (2003) (trial court did not intimate that
defendant had committed any crime, and no undue prejudice from
use of “victim” in jury instructions).
To establish plain error, defendant must show that the
erroneous instruction was a fundamental error that had a
probable impact on the jury verdict. State v. Lawrence, 365
N.C. 506, 518, 723 S.E.2d 326, 334 (2012). Where the trial
court “simply gave the pattern jury instructions promulgated by
the North Carolina Conference of Superior Court Judges[,]” this
Court held “the trial court’s use of the word, ‘victim,’ in its -15- charge to the jury did not reasonably have a prejudicial effect
on the result of the trial[.]” State v. Boyett, ___ N.C. App.
___, ___, 735 S.E.2d 371, 379 (2012).
In the instant case, the trial court presented the
following instructions regarding the charges of first degree sex
offense and attempted sex offense:
The Defendant has been charged with first degree sexual offense. For you to find the Defendant guilty of this offense, the State must prove three things beyond a reasonable doubt: First, that the Defendant engaged in a sexual act with the victim. A sexual act for the purposes of this offense means any penetration, however slight, by an object into the anal opening of a person’s body.
Second, that at the time the acts – of the acts alleged, the victim was a child under the age of 13.
And third, that at the time of the alleged offense, the Defendant was at least 12 years old and was at least four years older than the victim.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant engaged in a sexual act with the victim and that at that time the victim was a child under the age of 13 years, and that the Defendant was at least 12 years old, and was at least four years older than the victim, it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty. -16-
The Defendant has been charged with attempted first degree sexual offense. For you to find the Defendant guilty of this offense, the State must prove four things beyond a reasonable doubt: First, that the Defendant intended to engage in a sexual act with the victim. A sexual act, for the purposes of this offense, means fellatio, which is any touching by the lips or tongue of one person and the male sex organ of another.
Second, that at the time of the acts alleged, the victim was a child under the age of 13 years.
Third, that at the time of the alleged offense, the Defendant was at least 12 years old and was at least four years older than the victim.
And fourth, that the Defendant performed an act that was calculated and designed to accomplish fellatio, which conduct came so close to bringing about that sexual act that in the ordinary course of events the Defendant would have completed the act with the victim had he not been stopped or prevented. If you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant intended to engage in a sexual act with the victim and that at that time the victim was a child under 13 years, and that the victim was at least 12 years old, and was at least four or more years older than the victim, [sic] and that the Defendant performed an act which in the ordinary course of events would have resulted in the sexual act by the Defendant with the victim, had not the Defendant been stopped or prevented from completing his apparent course of action, it would be your duty to return a verdict of guilty. If you -17- do not so find or have a reasonable doubt as to one or more of these things, it would be would be [sic] your duty to return a verdict of not guilty.
In the instant case, defendant did not object to the use of
the term “victim” as provided in the pattern jury instructions.
Therefore, this Court can only review for plain error.
Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. Defendant
contends that the term “victim” constituted an impermissible
implication of the trial court’s opinion that a crime had in
fact been committed. However, this Court rejected a similar
argument in Boyett, holding that the trial court “was not
intimating any opinion upon whether Defendant had committed the
crimes charged using the word, ‘victim,’ in its charge to the
jury.” ___ N.C. App. at ___, 735 S.E.2d at 379. The trial
court, in the instant case, modeled its instructions on the
pattern jury instructions, and instructed the jury that it had
to find that defendant committed all elements of the offenses
before he could be found guilty. In addition, since the trial
court did not improperly imply that defendant had committed the
crimes in question, there was no undue prejudice from the use of
the word “victim” in the instructions. Therefore, defendant
fails to show how the trial court’s use of the term, as provided
in the pattern jury instructions, constitutes plain error. -18- VI. Conclusion
Neither Dr. Johnson’s nor Rafter’s testimony impermissibly
bolstered or indicated that Cory was reliable or credible. In
addition, the testimony of Cory’s mother also did not rise to
the level of plain error where “[i]t is unlikely that the jury
gave great weight to the fact that a mother believed that her
son was truthful.” State v. Ramey, 318 N.C. at 466, 349 S.E.2d
at 572. Furthermore, defendant fails to show that the jury
would have reached a different verdict, therefore the testimony
does not constitute plain error. Finally, the use of the word
“victim” in the pattern jury instructions does not constitute an
impermissible implication of the trial court’s opinion that a
crime had in fact been committed. We hold that the defendant
received a fair trial, free from error.
No error.
Judges BRYANT and GEER concur.
Report per Rule 30(e).