In re: A.W. & C.W. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-282
No. COA21-634
Filed 3 May 2022
Guilford County, Nos. 20 JA 502-03
In re: A.W. & C.W., minor juveniles.
Appeal by Respondent from order entered 18 June 2021 by Judge Marcus A.
Shields in Guilford County District Court. Heard in the Court of Appeals 5 April
2022.
Mercedes O. Chut for Petitioner-Appellee Guilford County Department of
Health and Human Services.
Mary McCullers Reece for Respondent-Appellant Father.
Parker Poe Adams & Bernstein LLP, by Eimile Stokes Whelan and Daniel E.
Peterson, for guardian ad litem.
GRIFFIN, Judge.
¶1 Respondent-Appellant Father appeals from the trial court’s orders
adjudicating each of his minor daughters, A.W. (“Ann”) and C.W. (“Carol”)1, to be
abused, neglected, and dependent juveniles and ceasing reunification efforts with
We use pseudonyms to protect the anonymity of the juveniles and for ease of reading.
1
N.C. R. App. P. 42(b).
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Father. Father contends the trial court erred by allowing a child medical examiner
to provide unsupported expert testimony that Carol was “in fact” sexually abused by
Father, and that the trial court erred by denying his motion to exclude the child
medical examiner’s written report as inadmissible hearsay. We find no error, and
affirm the trial court’s order.
I. Factual and Procedural Background
¶2 This case concerns repeated occurrences of alleged sexual abuse of two minor
juveniles, Carol and Ann, by Father. At the time of the hearing in this case, Carol
was seventeen years old and Ann was fifteen years old. Evidence presented at the
adjudication hearing tended to show as follows:
¶3 In or around November 2019, Carol confided in her sister, Ann, that she had
been sexually assaulted by Father. Carol had awoken at around 3:00 a.m. one night
because Father was in her bed behind her. Father asked if he could lie with Carol,
“started to rub [her] vagina with his fingers” for “maybe a minute”, then “asked if he
[could] put his penis inside.” Father “proceeded to try and penetrate” Carol, but she
“was tightening up her body so that [Father] couldn’t actually penetrate [her].” After
some time, Father stopped trying and left the room.
¶4 Ann told Carol that she had been similarly abused by Father on more than one
occasion. Carol and Ann decided to tell Father’s then-girlfriend, Ms. Smith. Ms.
Smith helped the girls report their experiences to law enforcement. On 12 December
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2019, an officer with the Greensboro Police Department went to Ms. Smith’s home in
response to a call regarding “sex offenses.” The officer interviewed Carol and Ann
and made a report of their statements. That same day, Guilford County Department
of Health and Human Services received a report “alleging that [Father] had sexually
abused [Carol] and [Ann].” Carol and Ann each reported prior accounts of sexual
abuse by Father.
¶5 Carol first reported sexual abuse by Father in 2013, resulting in an
investigation by law enforcement and Columbus County Department of Social
Services. When she was nine years old, Carol told Father’s girlfriend about how
Father tried “to stick his penis in [her] vagina and how he would touch [her] vagina
with his fingers.” Father’s girlfriend “call[ed] the police and that’s when the
investigation started.” Carol underwent a child medical examination (“CME”) as part
of the investigation. Carol ultimately recanted these allegations due to pressure from
some of her uncles and Father’s girlfriend.
¶6 In 2016, Carol was diagnosed with a sexually transmitted disease at the age of
twelve. Carol lived with Father at the time. Father “made [Carol] go on birth control”
even though she was not voluntarily sexually active at that time. On at least one
occasion, Father asked Carol to text him “vagina pics and [her] boobs.” Carol did not
send Father any pictures. Father also had Carol watch pornographic movies with
him on their television at home.
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¶7 Ann reported two prior incidents of abuse. The first time occurred at the
children’s grandparent’s house before the girls went to bed. Ann gave Father a hug,
and “felt his hand go down a little” and touch her lower back underneath her shirt.
Father asked Ann if he could touch her and if she would “tell on [her] dad if he did
anything bad.” The second incident occurred in the home of one of Father’s former
girlfriends. Ann awoke one night because Father was “on [her] bed and he like had
his hand on [her] boob.” Ann “pushed [her] hand to the side a little and [she] acted
like [she] was fixing to cry.” Father then “walked out of the room like nothing ever
happened.”
¶8 On 2 January 2020, Dr. Esther Smith, a child medical examiner with the Cone
Health Advocacy Medical Clinic, conducted CMEs on Carol and Ann. The CME
consisted of forensic interviews and a physical examination. Ann did not allow Dr.
Smith to physically examine her from the waist down.
¶9 During Carol’s physical exam, Dr. Smith found “a small triangular piece” of
skin that “sort of looked like a tissue tag” in Carol’s genital area. The tissue
“appeared to have . . . a divot behind it as if that tissue had detached from the tissue
behind it.” Dr. Smith had a “difficult call to decide” whether the tissue tag was Carol’s
“normal anatomy” or “evidence of a healed trauma.” Dr. Smith reached out to the
doctor who had performed Carol’s CME in 2013 and was able to compare her findings
with medical records collected from that CME. “[T]here did not appear to be a tissue
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tag present in 2013 relative to what [Dr. Smith] was seeing in 2020.”
¶ 10 Dr. Smith spoke with the police officer and social worker involved in the case.
Dr. Smith also reviewed each girl’s forensic interview and prior medical records. Dr.
Smith produced written reports recording her CMEs of Carol and Ann (the “CME
Reports”), incorporating her own findings as well as the materials she reviewed. The
CME Reports were offered into evidence during the adjudicatory hearing. Father
objected to admission of both CME Reports “based on hearsay and it being prejudicial
to [Father]” arguing the reports were “riddled with hearsay from other people.” The
trial court overruled Father’s objection, “based upon [the] business record exception
as well as for purposes [of] medical diagnosis and note[d] that the probative value
would outweigh any prejudicial effects.”
¶ 11 Dr. Smith testified that Carol’s statements were “consistent with what the
physical evidence presented.” Based upon the “totality of the information that [she]
had”, Dr. Smith testified that her expert opinion with respect to Carol was a “final
diagnosis” that Carol had been a “victim of child sexual abuse.” Father objected to
Dr. Smith’s opinion, arguing that her diagnosis was based upon insufficient physical
evidence of abuse. The trial court overruled Father’s objection.
¶ 12 Dr. Smith also testified that she had diagnosed Ann as a “suspected victim of
child sexual abuse.” Father objected to Dr. Smith’s diagnosis of Ann because “there
was no physical evidence of any sexual abuse during [Ann’s] CME.” The trial court
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sustained Father’s objection and did not consider Dr. Smith’s opinion with respect to
Ann.
¶ 13 Following the adjudicatory hearing, the trial court entered a written order
adjudicating Carol and Anne to be abused, neglected, and dependent juveniles. The
court held a dispositional hearing, then entered a written order ceasing reunification
efforts with Father and suspending all visitation with Father. Father timely appeals.
II. Analysis
¶ 14 Father argues that Dr. Smith’s expert opinion with respect to Carol was not
supported by sufficient evidence, and that Dr. Smith’s CME Reports contained
inadmissible hearsay. We address each argument.
A. Expert Opinion on Sexual Abuse
¶ 15 Father contends “[t]he trial court erred by considering Dr. Smith’s diagnosis of
child sexual abuse where the diagnosis was based on Carol’s disclosures rather than
physical evidence.” Because Dr. Smith “deemed [Carol’s] disclosures to be the most
important part of making her diagnosis”, Father argues Dr. Smith’s opinion lacked
proper foundation to be admissible during Carol’s abuse, neglect, and dependency
adjudication.
¶ 16 We review a trial court’s decision regarding the admissibility of expert
testimony for an abuse of discretion, to assess whether the expert witness’s
qualifications and the expert testimony’s relevance and reliability were shown by
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sufficient evidence as required under Rule 702 of the North Carolina Rules of
Evidence. State v. McGrady, 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016). Expert
testimony should be admitted only where “the testimony is based on the special
expertise of the expert, who because of his [or her] expertise is in a better position to
have an opinion on the subject than is the trier of fact.” State v. Warden, 376 N.C.
503, 506–07, 852 S.E.2d 184, 187–88 (2020) (citation and internal quotation marks
omitted). “Whether sufficient evidence supports expert testimony pertaining to
sexual abuse is a highly fact-specific inquiry.” State v. Chandler, 364 N.C. 313, 318–
19, 697 S.E.2d 327, 331 (2010) (citation omitted). “Different fact patterns may yield
different results.” Id.¶ 17 In the context of criminal prosecution, our Courts have held that “[a]n expert’s
opinion that sexual abuse did in fact occur is admissible when there is physical
evidence supporting a diagnosis of sexual abuse.” State v. Betts, 377 N.C. 519, 2021-
NCSC-68, ¶ 13 (citation omitted). Ordinarily, though, “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). (citations omitted). “[A]n 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.” Id.IN RE: A.W. & C.W.
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“Moreover, even when physical evidence of abuse existed and was the basis of an
expert’s opinion, where the expert added that she would have determined a child to
be sexually abused on the basis of the child’s story alone even had there been no
physical evidence, we found this additional testimony inadmissible.” State v. Towe,
366 N.C. 56, 61–62, 732 S.E.2d 564, 567 (2012) (emphasis added) (citation omitted).
“Thus, an expert witness’s ‘definitive diagnosis of sexual abuse’ is inadmissible unless
it is based upon ‘supporting physical evidence of the abuse.’” Warden, 376 N.C. at
507, 852 S.E.2d at 188 (citations omitted).
¶ 18 However, in the context of abuse, neglect, and dependency proceedings, this
Court has distinguished the impact of improper expert testimony pertaining to child
sexual abuse during a jury trial and the same or similar testimony in a bench trial:
In a bench trial, the court is presumed to disregard
incompetent evidence. Where there is competent evidence
to support the court’s findings, the admission of
incompetent evidence is not prejudicial.
...
The mere admission by the trial court of incompetent
evidence over proper objection does not require reversal on
appeal. Rather, the appellant must also show that the
incompetent evidence caused some prejudice. In the
context of a bench trial, an appellant must show that the
court relied on the incompetent evidence in making its
findings.
...
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In a jury trial, the distinction between an expert witness’
testifying (a) that sexual abuse in fact occurred or (b) that
a victim has symptoms consistent with sexual abuse is
critical. A jury could well be improperly swayed by the
expert's endorsement of the victim's credibility. In a bench
trial, however, we can presume, unless an appellant shows
otherwise, that the trial court understood the distinction
and did not improperly rely upon an expert witness’
assessment of credibility. Cf. Stancil, 355 N.C. at 266, 559
S.E.2d at 789 (limiting its holding to “sexual offense
prosecution[s]”).
In re Morales, 159 N.C. App. 429, 433–34, 583 S.E.2d 692, 694–95 (2003) (some
citations and internal marks omitted).
¶ 19 Father cites repeatedly to our Supreme Court’s decision in State v. Stancil and
this Court’s decision in State v. Grover, 142 N.C. App. 411, 543 S.E.2d 179 (2001).
Stancil and Grover each rely on the rule that an expert witness may not testify that
sexual abuse occurred “in fact” absent some physical evidence supporting that
diagnosis. Stancil, 355 N.C. at 266–67, 559 S.E.2d at 789; State v. Grover, 142 N.C.
App. at 419, 543 S.E.2d at 183–84.
¶ 20 However, in addition to their criminal context, each case is otherwise
distinguishable from the present case. In Stancil, our Supreme Court found error
where the trial court allowed an expert to testify to her opinion that “the victim was
in fact sexually assaulted” even though a “thorough examination and a series of tests
revealed no physical evidence of sexual abuse.” Stancil, 355 N.C. at 267, 559 S.E.2d
at 789. In Grover, this Court held that the expert testimony of two experts each
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“lacked a proper foundation and should not have been admitted” where they each
testified that the child was a victim of sexual abuse, but their expert opinions were
based solely on the child’s disclosures and no physical evidence of sexual abuse.
Grover, 142 N.C. App. at 418–19, 543 S.E.2d at 183 (citations omitted).
¶ 21 In the present case, Dr. Smith testified:
[DR. SMITH:] In general the child’s disclosures are going
to be the most important aspect of making a diagnosis.
And, understanding again the circumstances of those
disclosures. . . . And, then if there is any physical evidence,
trying to decipher whether that is consistent with what the
child is saying.
...
I was trying to decide am I going to call [the tissue tag]
abnormal or am I gonna call this inconclusive or am I
gonna call it consistent with the disclosures that she’s
made. And, it’s a gray area so it[’]s not - like I said it[’]s not
diagnostic. But, it[’]s certainly consistent with what she
had said.
...
But, the fact that it was there now but didn’t appear to
have been there before seems like consistent with her
disclosure that there was still new episodes of sexual abuse
happening since after that first CME.
...
[DHHS:] Were the child’s statements in this situation with
[Carol] consistent with what the physical evidence
presented?
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[DR. SMITH:] Yes.
[DHHS:] So, what was your final diagnosis of [Carol]?
[DR. SMITH:] My final diagnosis in relation to the alleged
maltreatment was that I had enough information to make
a diagnosis of victim of child sexual abuse.
¶ 22 On cross-examination, Dr. Smith further testified:
[DR. SMITH:] [A]m I highly concerned and would a normal
exam even without this skin tag have changed my
diagnosis? It would not. Even if she had had a completely
normal exam I would still likely have come to the same
diagnosis based on the totality of the information that I
had.
[DEFENSE:] So, you didn’t rely on the physical - from what
you just said. The physical evidence of sexual abuse does
not make a difference in your –
[DR. SMITH:] I would still have - no. That’s not accurate.
I would still have relied on it. But I may have used the
word suspected instead of just remove the word suspected
all together and been more highly concerning.
¶ 23 Dr. Smith’s testimony confirms that, contrary to Stancil and Grover, there was
some physical evidence present in this case which caused Dr. Smith to suspect that
Carol had been a victim of child sexual abuse. Dr. Smith was concerned by the
presence of the tissue tag in Carol’s genital area, and her concerns were strengthened
by the fact that this tissue tag had not been present during Carol’s earlier, 2013 CME.
Dr. Smith testified that the physical evidence was consistent with Carol’s disclosures
of sexual abuse by Father, and that led her to conclude that Carol was a “victim of
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child sexual abuse.”
¶ 24 Father specifically directs our attention to Dr. Smith’s testimony on cross-
examination that “[e]ven if [Carol] had had a completely normal exam I would still
likely have come to the same diagnosis based on the totality of the information that I
had.” Dr. Smith testified on cross-examination that a normal physical examination
without the presence of the tissue tag would not have changed her diagnosis. This
additional statement by Dr. Smith was inadmissible bolstering of Carol’s credibility.
Towe, 366 N.C. at 61–62, 732 S.E.2d at 567.
¶ 25 However, it was not prejudicial error for the trial court to allow this testimony.
Father cannot now object to testimony that was first elicited by his own counsel’s
questioning. State v. Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 287 (2007)
(“Statements elicited by a defendant on cross-examination are, even if error, invited
error, by which a defendant cannot be prejudiced as a matter of law.” (citations
omitted)). Further, Dr. Smith subsequently reiterated that she nonetheless did rely
on the physical evidence in reaching her diagnosis. Given Dr. Smith’s clarification
and her thorough testimony during direct examination, Father is unable to overcome
the presumption that the trial court, acting as finder of fact, did not improperly
consider Dr. Smith’s additional bolstering. Morales, 159 N.C. App. at 433–34, 583
S.E.2d at 695 (“In a bench trial, however, we can presume, unless an appellant shows
otherwise, that the trial court understood the distinction and did not improperly rely
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upon an expert witness’ assessment of credibility.”).
¶ 26 Father contends the physical evidence in this case was insufficient to support
admission of Dr. Smith’s diagnosis because Dr. Smith was unable to confidently
determine that the tissue tag was evidence of sexual abuse. To this end, Father
compares the evidence in this case to the strength of the physical evidence at issue in
in State v. Ryan, 223 N.C. App. 325, 734 S.E.2d 598 (2012). In Ryan, an expert
witness testified to her opinion that the child’s accounts were “consistent with sexual
abuse” and her conclusion that the child had been “sexually assaulted,” based upon
the child’s accounts and because she “observed a deep notch in the child’s hymen,
which she testified was highly suggestive of vaginal penetration.” Id. at 329, 332–33,
734 S.E.2d at 601, 603. Here, Dr. Smith was unable to determinatively say whether
Carol’s tissue tag was or was not a direct result of sexual abuse, but did testify that
the tissue tag was physical evidence which could indicate sexual abuse. We agree
that the expert’s testimony in Ryan was distinguishable in degree from the testimony
given in this case, but we do not find this distinction material. The testimony in Ryan
likely carried more weight than the evidence in this case, but the trial court’s
determination was one of admissibility, not of weight.
¶ 27 The trial court did not abuse its discretion and commit prejudicial error in
allowing Dr. Smith’s expert testimony diagnosing Carol as a “victim of child sexual
abuse.”
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B. Hearsay in Abuse Adjudication
¶ 28 Father argues the “[t]rial court erred in admitting and considering the CME[
Report]s, including Carol and Ann’s statements to the forensic interviewer, where it
was not clear that the statements were for purposes of medical diagnosis.”
Specifically, Father contends that the CME Reports were inadmissible hearsay, and
the trial court erroneously found that the CME Reports were admissible during the
adjudicatory hearing as medical records obtained for the purpose of diagnosis under
Rule 803(4) of the North Carolina Rules of Evidence.
¶ 29 “Where the juvenile is alleged to be abused, neglected, or dependent, the rules
of evidence in civil cases shall apply.” N.C. Gen. Stat. § 7B-804 (2021). “‘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.” N.C. Gen.
Stat. § 8C–1, Rule 801(c) (2021). Hearsay evidence is not admissible unless it falls
into an exception described by another statute or rule of evidence. N.C. Gen. Stat. §
8C–1, Rule 802 (2021). Under Rule 803(4), a statement is excepted from hearsay if it
was “made for purposes of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment.” N.C. Gen. Stat. § 8C–1, Rule 803(4) (2021). Likewise, under
Rule 803(6), a business record may be excepted from hearsay where it was “made at
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or near the time by, or from information transmitted by, a person with knowledge, if
(i) kept in the course of a regularly conducted business activity and (ii) it was the
regular practice of that business activity to make the” record. N.C. Gen. Stat. § 8C-
1, 803(6) (2021).
¶ 30 Here, the trial court found that the CME Reports were admissible as
statements for medical diagnosis under Rule 803(4) and business records under Rule
803(6). Father challenges only the trial court’s determination under Rule 803(4).
Therefore, even if we determine that the CME Reports do not satisfy our standards
of admissibility under Rule 803(4), Father has failed to show that the CME Reports
lacked admissibility as a record regularly made by Dr. Smith under Rule 803(6). See
N.C. R. App. P. 28(a) (“The scope of review on appeal is limited to issues so presented
in the several briefs. Issues not presented and discussed in a party’s brief are deemed
abandoned.”). Because at least one unchallenged ground for admissibility remains,
we hold the trial court did not err in admitting the CME Reports into evidence.
III. Conclusion
¶ 31 The trial court did not err by allowing Smith to testify regarding her diagnosis
of Carol because her opinion was supported by physical evidence. Further, Father
has not shown that the trial court erred by admitting the CME Reports as exceptions
to hearsay. The trial court’s order is affirmed.
AFFIRMED.
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Judges MURPHY and GORE concur.