State v. Walton

• Court: Court of Appeals of North Carolina
• Decided: October 21, 2014
• Docket: 14-402
• Status: Published

Opinion

NO. COA14-402

NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2014

STATE OF NORTH CAROLINA

v. Johnston County No. 11CRS052914 MALIK JAQUEZ WALTON, Defendant.

Appeal by defendant from judgments entered 10 July 2013 and

30 July 2013 by Judge Thomas H. Lock in Superior Court, Johnston

County. Heard in the Court of Appeals 9 September 2014.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General William V. Conley, for the State.

Mark Montgomery, for defendant-appellant.

STROUD, Judge.

Defendant appeals judgments convicting him of first degree

sexual offense and second degree kidnapping. For the following

reasons, we find no error.

I. Background

The State’s evidence tended to show that in May of 2011,

Stacy1 was in a bedroom with defendant and her fifteen-month old

son. Defendant was the father of Stacy’s son. Defendant

1 A pseudonym will be used to protect the identity of those involved. -2- slapped Stacy and began repeatedly choking her and threatened to

kill her as he held a knife to her neck. Defendant then put

both his fingers and his penis in Stacy’s vagina and her anus.

Defendant was indicted for second degree rape, first degree

kidnapping, and first degree sexual offense. Defendant was

tried by a jury, and the jury found him guilty of second degree

kidnapping and first degree sexual offense. The trial court

entered judgments accordingly. Defendant appeals.

II. Medical History Testimony

Defendant first contends that “the trial court committed

plain error in allowing two medical witnesses to testify that

[Stacy]’s history was consistent with sexual assault.”

(Original in all caps.) Defendant argues that “Emergency Room

Nurse Tonia Nowak testified that [Stacy]’s injuries were

consistent with her history. . . . Emergency Room Physician Dr.

Brendan Berry testified that [Stacy]’s demeanor, history and

examination, was ‘consistent with the sexual assault that she

described.’ . . . This was reversible error.” As defendant did

not object to the testimony, he now asks that we review his

contentions for plain error. See State v. Harding, 110 N.C. App.

155, 161, 429 S.E.2d 416, 420 (1993) (“Due to defendant’s -3- failure to object at trial, we must review this objection under

the plain error rule.”)

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury’s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.

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

(citations, quotation marks, and brackets omitted). Furthermore,

our Supreme Court has established that “[a] prerequisite to our

engaging in a plain error analysis is the determination that the

instruction complained of constitutes error at all.” State v.

Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, (quotation marks

omitted), cert. denied, 479 U.S. 836, 93 L.Ed. 2d 77 (1986).

Here, both Nurse Nowak and Dr. Berry testified as expert

witnesses. “An expert witness may not testify as to the

credibility of a witness. Nonetheless, an expert witness may

testify, upon a proper foundation, as to . . . whether a

particular complainant has symptoms or characteristics

consistent therewith.” State v. Khouri, 214 N.C. App. 389, 401, -4- 716 S.E.2d 1, 9-10 (2011) (citations and quotation marks

omitted), disc. review denied, 365 N.C. 546, 742 S.E.2d 176

(2012). Here, even by defendant’s own summary in his brief, the

expert witnesses testified that the physical evidence they

observed was consistent with Stacy’s allegations of abuse; the

witnesses did not state that Stacy’s allegations were credible.

Defendant directs this Court to State v. Frady, but in that case

the testifying witness had not examined the individual alleging

sexual abuse, but here both Dr. Brown and Nurse Nowak examined

Stacy and testified regarding the examination; accordingly,

Frady is not applicable. See State v. Frady, ___ N.C. App. ___,

___, 747 S.E.2d 164, 167 (“It is well settled that expert

opinion testimony is not admissible to establish the credibility

of the victim as a witness. However, those cases in which the

disputed testimony concerns the credibility of a witness’s

accusation of a defendant must be distinguished from cases in

which the expert’s testimony relates to a diagnosis based on the

expert’s examination of the witness. With respect to expert

testimony in child sexual abuse prosecutions, our Supreme Court

has approved, upon a proper foundation, the admission of expert

testimony with respect to the characteristics of sexually abused

children and whether the particular complainant has symptoms -5- consistent with those characteristics. In order for an expert

medical witness to render an opinion that a child has, in fact,

been sexually abused, the State must establish a proper

foundation, i.e. physical evidence consistent with sexual

abuse.” (citations, quotation marks, and brackets omitted)),

disc. review denied, 367 N.C. 273, 752 S.E.2d 465 (2013). This

argument is overruled.

III. Trial Court’s Instructions

Defendant next contends that “the trial court erred or

committed plain error in identifying . . . [Stacy] as a

‘victim.’” (Original in all caps.) Defendant did not object to

the jury instructions, so we review for plain error. See

Harding, 110 N.C. App. at 161, 429 S.E.2d at 420. This Court has

previously determined that use of the word ‘victim’ by the trial

court is generally not plain error, see State v. Surratt, 218

N.C. App. 308, 309-10, 721 S.E.2d 255, 256, disc. review denied,

365 N.C. 559, 722 S.E.2d 600 (2012). We agree that in a case

where there is a jury question as to whether an act is actually

a criminal offense or as to whether the alleged act actually

happened to the complaining witness, there is technically a

question of whether there was a “victim.” See State v. Walston,

___ N.C. App. ___, ___, 747 S.E.2d 720, 727 (2013) (“The issue -6- of whether sexual offenses occurred and whether E.C. and J.C.

were ‘victims’ were issues of fact for the jury to decide.”),

disc. review denied, 367 N.C. 290, 753 S.E.2d 666 (2014).

Black’s Law Dictionary defines “victim” as “[a] person harmed by

a crime, tort, or other wrong.” Black’s Law Dictionary 1703

(9th ed. 2009). So use of the word “victim,” both in denotation

and connotation, means that the complaining witness was “harmed

by a crime, tort, or other wrong.” Id.

But in this case, defendant did not object to use of the

term “victim.” Stacy testified that defendant choked her,

threatened to kill her as he held a knife to her neck, and then

inserted both his fingers and penis into her vagina and anus.

In addition, the physical evidence of Stacy’s injuries

corroborated her testimony. We cannot determine that the jury

might reasonably have reached a different verdict if the

reference to “victim” in the jury instructions had not occurred,

so we do not find plain error. See Lawrence, 365 N.C. at 518,

723 S.E.2d at 334.

IV. Conclusion

For the foregoing reasons, we find no error.

NO ERROR.

Judges MCGEE and BRYANT concur.