State v. King , 235 N.C. App. 187 ( 2014 )

NO. COA13-1402
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Buncombe County
No. 11 CRS 488
JOSHUA NEAL KING
Appeal by defendant from judgment entered 14 January 2013
by Judge Alan Z. Thornburg in Buncombe County Superior Court.
Heard in the Court of Appeals 21 May 2014.
Attorney General Roy Cooper, by Assistant Attorney General
LaShawn S. Piquant, for the State.
M. Alexander Charns for defendant-appellant.
BRYANT, Judge.
Where a physician testified to common characteristics she
had observed in sexually abused children, the trial court did
not err in allowing her testimony, and where the trial court
denied the State’s motion to hold defense counsel in criminal
contempt, defendant did not receive ineffective assistance of
counsel.
On 12 September 2011, a Buncombe County Grand Jury indicted
defendant on thirteen counts of indecent liberties with a child,
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two counts of rape of a child by an adult, and eleven counts of
statutory rape. Each indictment alleged that the victim was
Kimberly1, a girl age twelve or thirteen years old depending on
the date of the offense. A jury trial commenced during the 7
January 2013 Criminal Session of Buncombe County Superior Court,
the Honorable Alan Z. Thornburg, Judge presiding.
The evidence presented tended to show that Kimberly was
born in 1997 and that she had two younger brothers. From the
time she was six months old, Kimberly lived with her paternal
grandmother. In 2009, when she was twelve years of age,
Kimberly left her grandmother’s residence and went to live with
her mother and two brothers. Kimberly’s mother was living with
defendant Joshua Neal King, whom she later married. Living with
her mother provided Kimberly with more freedom: “I got to go out
with my friends a lot more. They got to come over a lot more. I
used to drink and do drugs.” Kimberly testified that she and
her mother used drugs together.
On the evening of 16 March 2010, Kimberly’s mother was at
work; Kimberly was at home with defendant and her two brothers.
A. . . . I went to bed earlier that night
and woke up and [defendant] was on top
of me, and I had all my clothes off and
1
Pursuant to Rule 3.1(b) of our Rules of Appellate Procedure, we
use a pseudonym to protect the identity of the juvenile.
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I was in their bed.
. . .
Q. Do you remember what he had on?
A. A shirt.
. . .
Q. And what happened?
A. He did what I said he did.
Q. Okay. Is that when you said that he put
his penis in your vagina?
A. Yes.
Q. What did you do?
A. I yelled for my brother.
Kimberly testified that defendant had her perform sexual acts on
many occasions from March through August 2010.
Detective David Shroat, working in the Criminal
Investigations Unit of the Buncombe County Sheriff’s Department,
became involved with the case on 30 August 2010 after receiving
a report from the Department of Social Services. Detective
Shroat testified that per the report, “[Kimberly’s] mother was
working nights and [Kimberly] went to bed. And at some point in
time, she woke up and [defendant] was on top of her, and she
screamed.” Detective Shroat spoke with defendant on 21
September 2010. After having his statement transcribed and read
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back to him, defendant verbally acknowledged his words and
signed his name to the statement. The statement was admitted at
trial.
Per his statement, defendant “drunk probably a twelve pack”
one night; he told the children to go to sleep; and he went to
bed. At some point, defendant thought his wife had gotten into
the bed. “I discovered it was [Kimberly] . . . I told her to go
back to her room. . . . I did rub on her under the blanket with
my penis. I don’t know if I penetrated her or not.” Defendant
did not admit to any other instance of sexual contact or
activity with Kimberly.
Pediatrician Dr. Sarah Monahan-Estes, working at the
Mission Children’s Hospital, examined Kimberly on 29 August
2012. Dr. Monahan-Estes testified to the results of her
examination and in part to common characteristics she had
observed in sexually abused children.
Following the close of the evidence, the jury found
defendant not guilty on twenty-five charges and found defendant
guilty on one count of indecent liberties with a child occurring
on 16 March 2010. The jury also found as an aggravating factor
that “Defendant took advantage of a position of trust or
confidence . . . to commit the offense.” The trial court
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entered judgment in accordance with the jury verdict and
sentenced defendant to an active term of 16 to 20 months.
Defendant appeals.
________________________________
On appeal, defendant raises the following issues: (I)
whether the trial court erred by allowing a physician to
testify; and (II) whether defendant received ineffective
assistance of counsel.
I
Defendant first argues that the trial court erred in
allowing Dr. Monahan-Estes, the pediatrician who examined
Kimberly following her report of sexual assaults, to testify as
to Kimberly’s veracity. Specifically, defendant contends that
Dr. Monahan-Estes’ written report, which was published to the
jury, explained why Kimberly did not initially tell the whole
truth and that Dr. Monahan-Estes’ testimony presumed Kimberly
was telling the truth and presumed a history of sexual abuse.
We disagree.
Defendant cites the opinion of this Court in State v. Ryan
for the proposition that “[o]ur appellate courts have
consistently held that the testimony of an expert to the effect
that a prosecuting witness is believable, credible, or telling
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the truth is inadmissible evidence.” ___ N.C. App. ___, ___,
734 S.E.2d 598, 604 (2012) (citation and quotations omitted),
rev. dismissed, 366 N.C. 433, 736 S.E.2d 188, and writ denied,
rev. denied, 366 N.C. 433, 736 S.E.2d 189 (2013).
Initially, we note that Dr. Monahan-Estes was not formally
qualified as an expert. To address this discrepancy, we find
guidance in the opinion of our Supreme Court in State v.
Aguallo, 322 N.C. 818, 370 S.E.2d 676 (1988), wherein the
defendant challenged the admission of testimony from two
witnesses addressing the typical characteristics of sexually
abused children. One witness, a Department of Social Services’
case worker, having been employed as such for fourteen years,
had investigated between twenty-five and thirty cases of child
sexual abuse. The victim confided in the witness about the
abuse the defendant had inflicted. The second witness, a
Sheriff’s Department juvenile investigator, had been employed as
such for seven years and had investigated over one hundred cases
of child sexual abuse. Id. at 820—21, 370 S.E.2d at 677. The
defendant argued on appeal that the evidence was improper
because “the witnesses were not qualified as experts and []
their testimony fail[ed] as lay opinion because it was not
rationally based on the perceptions of the witness.” Id. at
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820, 370 S.E.2d at 677. Our Supreme Court reasoned that “[i]t
[was] evident that the nature of their jobs and the experience
which [the witnesses] possessed made them better qualified than
the jury to form an opinion as to the characteristics of abused
children.” Id. at 821, 370 S.E.2d at 677. The Court went on
to hold that “the finding that [each] witness [was] an expert is
implicit in the trial court's ruling admitting the opinion
testimony.” Id.; see also N.C. Gen. Stat. § 8C-1, Rule 702(a)
(2013) (“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 . . . .”).
Dr. Monahan-Estes’ testimony began with her educational
background, including where she completed her undergraduate
studies, her medical school education, where she completed her
pediatric residency, and where she completed an additional two-
year fellowship in child abuse pediatrics – during which she saw
only sexually abused, physically abused, or neglected children.
Dr. Monahan-Estes testified that she currently worked in a child
abuse clinic seeing children who are suspected of having any
history of sexual abuse, physical abuse or neglect. During the
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course of the investigation into allegations of sexual abuse,
Dr. Monahan-Estes interviewed Kimberly.
At trial, Dr. Monahan-Estes testified that when a child is
suspected of suffering from abuse, “you want to assure that they
don't have any injuries or issues that are resulting because of
that abuse that need medical attention or mental health
attention.” Dr. Monahan-Estes testified to the typical process
she goes through in performing a child medical evaluation, with
specific regard to an evaluation done where sexual abuse is
suspected. She also testified to the limitations of the
examination and common behaviors she has observed in her
experience.
[W]e very rarely see kids who [sic] the
abuse or trauma has occurred and then they
immediately tell someone so we can examine
them. . . . In the cases that I typically
see in clinic, these disclosures have
occurred days, weeks, months, years after
the sexual abuse has occurred . . . .
. . .
[W]e see all kinds of behavioral and
emotional
dysfunction or disorders in children who
have a history of sexual abuse. These kids
typically have an increased frequency of
being depressed or having mental health
issues, substance abuse. They tend to act
out, aggressive behavioral issues in school.
They have increased risk of school failure.
These children typically get in trouble with
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the law, delinquency, they'll be arrested,
they sexually act out. There's a whole host
of issues that are increased in children who
have a history of sexual abuse.
We hold that the trial court’s qualification of Dr.
Monahan-Estes as an expert in pediatric medicine as well as the
evaluation and treatment of child sexual abuse is implicit in
the trial court’s admission of her testimony regarding common
behaviors in children who have suffered from sexual abuse.
In challenging the admission of Dr. Monahan-Estes’ written
report into evidence, defendant contends that Dr. Monahan-Estes
“explained why [Kimberly] didn’t initially tell the entire
truth.” We first note that defendant did not object to the
admission of the report at trial. Thus, the admission of this
evidence would be subject to plain error review only, and upon
the request of defendant. Defendant has failed to request plain
error review of this issue. Further, defendant has failed to
make Dr. Monahan-Estes’ report a part of the record on appeal.
Therefore, we are precluded from considering the contents of the
report, and we must consider defendant’s argument abandoned.
See N.C. R. App. P. 9(a) (“In appeals from the trial division of
the General Court of Justice, review is solely upon the record
on appeal . . . .”); Neal v. Craig Brown, Inc., 86 N.C. App.
157, 161, 356 S.E.2d 912, 915 (1987) (“This Court may not
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consider documents which have not properly been made a part of
the record on appeal.” (citing Elliott v. Goss, 254 N.C. 508,
119 S.E.2d 192 (1961))).
Defendant challenges Dr. Monahan-Estes’ testimony as
presuming that Kimberly was telling the truth. Specifically,
defendant challenges the following:
Q. . . . In your training and experience,
are there reasons that you have personally
observed that children may not always tell
all of the allegations to start?
. . .
THE WITNESS: Yes. It's very common that a
child either does not initially disclose or
only partially discloses.
One of the biggest issues is frequently the
alleged perpetrator is a parent or a
parental figure or someone that they love
and trust, so they don't want to get them in
trouble. They're ashamed, they're afraid,
they've been threatened or bribed to try not
to disclose.
If another family member who is not the
alleged perpetrator, but say another parent
or another parental figure doesn't believe
the child, then they'll frequently encourage
them not to tell, or children sometimes –
there will be negative consequences to their
disclosure. So they tell a little bit about
what happens and then all kinds of things
come into play. They're taken out of their
home, they're taken away from their
siblings, they're taken away from both of
their parents. And they see these negative
consequences and they don't want them to
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continue, so they'll only tell little bits
of what happened.
In State v. Hall, our Supreme Court, analyzing its prior
opinion in State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987),
stated
that expert testimony on the symptoms and
characteristics of sexually abused children
is admissible to assist the jury in
understanding the behavior patterns of
sexually abused children. Furthermore, [the
Court] allowed evidence that a particular
child’s symptoms were consistent with those
of sexual or physical abuse victims, but
only to aid the jury in assessing the
complainant's credibility.
State v. Hall, 330 N.C. 808, 817, 412 S.E.2d 883, 887 (1992)
(citation omitted); compare State v. Stancil, 355 N.C. 266—67,
559 S.E.2d 788, 789 (2002) (“In a sexual offense prosecution
involving a child victim, the trial court should not admit
expert opinion that sexual abuse has in fact occurred . . . such
testimony is an impermissible opinion regarding the victim's
credibility. However, an 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.” (citing State v. Hall,
330 N.C. 808, 818, 412 S.E.2d 883, 888 (1992)) (citations
omitted)).
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We view Dr. Monahan-Estes’ testimony as properly providing
common characteristics she observed in sexually abused children
and a possible basis for those characteristics, and not opinion
testimony on Kimberly’s credibility. Therefore, as there was no
error by the trial court in allowing the testimony of Dr.
Monahan-Estes, defendant’s argument is overruled.
II
Next, defendant argues he was denied effective assistance
of counsel. Specifically, the trial court’s denial of defense
counsel’s request for an evening recess following defense
counsel having to defend himself against a criminal contempt
charge prejudiced defense counsel’s ability to represent
defendant. We disagree.
“The right to effective assistance of counsel includes the
right to representation that is free from conflicts of
interest.” State v. Choudhry, 365 N.C. 215, 219, 717 S.E.2d
348, 352 (2011) (citations and quotations omitted). “When a
defendant attacks his conviction on the basis that counsel was
ineffective, he must show that his counsel's conduct fell below
an objective standard of reasonableness.” State v. Augustine,
359 N.C. 709, 718, 616 S.E.2d 515, 524 (2005) (quoting State v.
Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 248 (1985)).
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In order to meet this burden defendant must
satisfy a two part test.
First, the defendant must show that
counsel's performance was deficient.
This requires showing that counsel made
errors so serious that counsel was not
functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment.
Second, the defendant must show that
the deficient performance prejudiced
the defense. This requires showing that
counsel's error were so serious as to
deprive the defendant of a fair trial,
a trial whose result is reliable.
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)
(quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed.
2d 674, 694 (1984)); see also, e.g., Choudhry, 365 N.C. at 219,
717 S.E.2d at 352 (“[W]hen the claim of ineffective assistance
is based upon an actual, as opposed to a potential, conflict of
interest . . . a defendant may not be required to demonstrate
prejudice under Strickland to obtain relief.” (citations
omitted)).
Defendant’s argument is predicated on the assertion that
defense counsel was burdened by a conflict of interest; however,
the record does not reveal such a conflict.
On 9 January 2010, in the morning of the third day of
trial, the prosecutor filed a motion requesting that defense
counsel be held in criminal contempt as well as a corresponding
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motion for a mistrial following defendant’s cross-examination of
the victim the day before. In its motion, the prosecutor
contended that following an in camera hearing to address the
admissibility of evidence in light of Rule 412, “Rape or sex
offense cases; relevance of victim's past behavior,” and the
trial court’s exclusion of the evidence proffered, defendant
proceeded to question Kimberly about her prior sexual encounters
in violation of the court’s order. A hearing on the State’s
motion was held that morning. A review of the trial transcript
reveals a brief hearing. The State presented its motion;
defense counsel introduced an attorney who would represent him;
defense counsel’s attorney notified the court that he was
unfamiliar with any of the underlying facts – including the
allegations in the State’s motion, and asked that if the trial
court was “seriously considering” the motion that the hearing be
postponed. The State consented to a postponement of the
hearing; at which point, the trial court declared that the
State’s motion was one for direct contempt and that the court
had reviewed the transcript of defense counsel’s examination.
The trial court ruled that defense counsel “did not act
willfully or with gross negligence, and the acts were not done
deliberately and purposefully in violation of the law without
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regard or justification or excuse, and [this court] fails to
find him in contempt of court.” The trial court subsequently
denied the State’s motion for a mistrial. Following this
denial, defense counsel asked for an adjournment: “I'm very
offended by this and it's sort of knocked me off my game, if you
will. And I don't want to be sitting here thinking about my
issues about this when I'm supposed to be giving my best
interest to my client.” Defense counsel requested an
adjournment until the next morning “to kind of calm down and get
over this[.]” At 11:38 a.m., the trial court called a recess
until 2:00 p.m.
We see no conflict of interest between trial counsel and
defendant. Furthermore, defendant neither points to an error
committed as a result of trial counsel’s participation in the
criminal contempt hearing nor asserts what burden would have
been alleviated by an overnight recess. Even though counsel was
the subject of a contempt hearing during his representation of
defendant, counsel was found to be not in contempt of court.
There is nothing in the record to support defendant’s assertion
of a conflict of interest. On the contrary, defendant was found
not guilty on twenty-five of twenty-six charges considered by
the jury. Defense counsel’s zealous representation of
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defendant, clearly revealed in the record, can in no way be
deemed ineffective based on a conflict of interest or any other
theory. Defendant has failed to show that defense counsel’s
performance fell below an objective standard of reasonableness.
See Braswell, 312 N.C. at 561—62, 324 S.E.2d at 248.
Accordingly, we overrule defendant’s argument.
No error.
Judges CALABRIA and GEER concur.