State v. Crabtree , 249 N.C. App. 395 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1124
Filed: 6 September 2016
Person County, Nos. 13 CRS 52930-32
STATE OF NORTH CAROLINA
v.
WILLIAM CLIFTON CRABTREE, SR.
Appeal by Defendant from judgments entered 19 March 2015 by Judge Beecher
R. Gray in Person County Superior Court. Heard in the Court of Appeals 23 February
2016.
Attorney General Roy Cooper, by Assistant Attorney General Natalie Whiteman
Bacon, for the State.
Mark Montgomery for Defendant.
STEPHENS, Judge.
Defendant William Clifton Crabtree, Sr., appeals from judgments entered
upon his convictions for first-degree sexual offense against a child under the age of
thirteen years, indecent liberties with a child, and crime against nature. Crabtree
argues that the trial court plainly erred by (1) allowing three witnesses to vouch for
the child victim’s credibility and (2) submitting the first-degree sexual offense charge
to the jury on a theory not supported by the evidence. While we agree that one of the
State’s witnesses impermissibly vouched for the victim’s credibility, we conclude that
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Opinion of the Court
this error did not prejudice Crabtree. We find no error in the trial court’s submission
of the first-degree sexual offense charge.
Factual and Procedural Background
The evidence at trial tended to show the following: In late April 2013, ten-
year-old “L.R.”1 and her two brothers began living with her grandmother and
Crabtree, the grandmother’s husband of sixteen years. L.R. testified that, shortly
thereafter, Crabtree, whom L.R. considered her “grandpa,” began making sexual
advances towards her, starting with an incident in the family’s barn when Crabtree
kissed L.R., inserted his tongue into her mouth, and touched her breasts. Crabtree
progressed to entering her room at night to “rub his thing on” her. L.R. testified that
Crabtree “rubbed his dick on my vagina and white stuff was coming out[.]”
Sometimes Crabtree made L.R. put her hand on his “thing” and move it up and down.
Crabtree touched the inside of L.R.’s vagina using his fingers and moving them “up
and down.” L.R. testified that it hurt when Crabtree’s fingernails would poke her
vagina and she had itching on the inside of her vagina. Crabtree also licked L.R.’s
vagina.
L.R. testified that this sexual abuse took place when she was home sick from
school and her grandmother was at work and also on a morning following
Thanksgiving. L.R. explained that, on the latter occasion, her grandmother had
1 We refer to the child victim and her younger brother by initials in order to protect their identities.
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awakened, come to L.R.’s bedroom door, and witnessed Crabtree abusing L.R. In that
incident, Crabtree used his hand to rub her vagina and then “he started licking it.”
According to L.R., Crabtree threatened her with foster care if she told anyone about
his abuse.
“D.J.,” L.R.’s younger brother, who, like his sister, had known Crabtree as his
“grandpa” for his entire life, testified about several instances when he saw Crabtree
“do things with [L.R.] that [D.J.] thought [were] weird or strange or inappropriate[.]”
D.J. testified that he witnessed Crabtree “lift up her skirt, her nightgown” while they
were seated at “the eating table.” On another occasion, in the family barn, D.J. saw
Crabtree “do something that [he] thought was wrong to” L.R., to wit, Crabtree “had
his hand in her pants.” The third incident D.J. witnessed took place in L.R.’s
bedroom:
A. I saw him sitting on the edge of the bed. [L.R.] was
between his legs. I didn’t know what he was doing, but I
did see that.
Q. Did you know at this time what anybody was wearing
when you saw that?
A. Um, I think he was wearing his underwear, and she was
wearing[] her purple nightgown.
Q. Could you see anybody’s body parts?
A. No, I did not.
Q. Could you see any private parts of anybody?
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A. No, I did not.
Q. Okay. Now, when you saw those things that you
thought were weird and wrong, did you say anything about
it to anybody?
A. I told my grandma.
Q. When did you tell your grandma?
A. Like the first time I saw it, I told her.
Q. Okay. What did you say?
A. That, um, I think something like that, um, he was
messing with [L.R.].
The grandmother testified that, on 29 November 2013, she awoke to find
Crabtree was not in their shared bedroom. Looking for her husband, she walked
through the house to the doorway of L.R.’s bedroom and saw Crabtree sitting on the
side of L.R.’s bed with his hands between L.R.’s legs and L.R.’s hands between his
legs. According to the grandmother, “[t]hey was feeling each other up[]” and there
was no doubt in her mind that the contact was sexual in nature. The grandmother
motioned for L.R. to remain quiet by placing her finger over her mouth because the
grandmother wanted to “see what all he was going to do.” The grandmother then
quietly retreated to her bedroom, unnoticed by Crabtree, but later returned to L.R.’s
bedroom and asked Crabtree what he was doing. Crabtree replied that he was
“looking for a mouse.” After Crabtree left the room, the grandmother spoke with L.R.
about what she had just seen, and L.R. disclosed her past sexual abuse by Crabtree.
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The grandmother did not confront Crabtree, instead contacting the Person County
Department of Social Services (“DSS”) and local law enforcement.
Several witnesses testified about the investigation into L.R.’s allegations.
Later in December, the grandmother took L.R. to the emergency room (“ER”) after
she complained of pain and itching in her vaginal area and stated that Crabtree had
engaged in intercourse with her. An ER doctor alerted the Child Abuse Medical
Evaluation Clinic, an outpatient clinic affiliated with Duke University Hospital, and,
on 23 December 2013, Dr. Karen Sue St. Claire, a pediatrician and the medical
director of the clinic, began an evaluation of L.R. St. Claire testified as an expert
witness. During her initial exam of L.R., St. Claire received L.R.’s medical history
from the grandmother while Scott Snyder, St. Claire’s child interviewer, interviewed
L.R. about the alleged abuse. St. Claire’s physical examination of L.R. revealed no
physical signs of trauma or infection to L.R.’s vagina or anal area.
St. Claire testified about the clinic’s five-tier rating system for evaluating an
alleged child victim’s description of sexual abuse. St. Claire and Snyder each
classified L.R.’s description as level five, the “most diagnostic” category. St. Claire
testified that L.R.’s description provided a “clear disclosure” and a “clear indication”
of sexual abuse. Snyder was not formally offered or accepted as an expert witness,
but offered testimony about his interviews with L.R. Pertinent to this appeal, when
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asked on re-direct examination about L.R.’s report of a detail regarding an incident
of fellatio L.R. was forced to perform on Crabtree, Snyder testified as follows:
Q Is that correct? Was it remarkable to you when she
described the juice hitting the roof of her mouth?
A Umm, remarkable in terms of not typically something
that you would hear from a ten-year-old child, and not
necessarily something, again trying to understand what
may be the reason the child might be saying these things.
It is striking in terms of what the child may have seen
something happen, but that’s more of a experiential
statement, in other words something may have actually
happened to her as opposed to something seeing on a screen
or something having been heard about.
DSS social worker Antoinetta Royster received L.R.’s case in early December
2013 and subsequently interviewed L.R., her family members, and Crabtree. Like
Snyder, Royster was neither formally offered nor admitted as an expert witness.
Royster testified about her interviews and then was asked about the process DSS
follows in abuse and neglect cases:
Umm, the family had based upon the recommendations
from the CME, the Child Medical Evaluation, one other
evaluation was recommended, and that’s called a Child
Family Evaluation. And with those, it’s a lot of times in
the abuse and serious neglect cases where the Child
Medical Evaluation look[s] more at the physical, but could
be physical evidence of abuse and neglect, the Child Family
Evaluation look[s] more at the emotional piece of it to
basically talk with everyone in the family. And if there is
any other thing, any other treatment is needed, they would
recommend that to DSS for us to like move on with that,
move forward in that direction. They . . . also give what
they, not really a diagnosis, but their conclusion or decision
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about those children that have been evaluated if they were
abused or neglected in any way.
Q So and all of those recommendations and treatments
have been followed up on—
A Yes.
Q —as you continue to be involved in this case. Is that
correct?
A Yes.
Captain A.J. Weaver of the Person County Sheriff’s Office also testified on
behalf of the State. Weaver testified about his recorded interview with L.R. on 4
December 2013. The recorded interview was introduced into evidence as State’s
Exhibit 3, published, and played for the jury without objection. In the recording,
which was transcribed by the court reporter when it was played for the jury at trial,
L.R. disclosed that Crabtree had touched her “private area” with his hands and forced
L.R. to “rub” his “private.” L.R. also described Crabtree pulling her pants down and
licking her “private.” L.R. further explained that, after playing with her “private,”
Crabtree would put his “private” in L.R.’s mouth, go “up and down” until “stuff
start[ed] coming out” and went into L.R.’s mouth. L.R. said the latter form of abuse
had happened two or three times. Weaver testified that, following his interview with
L.R., he sought warrants and arrested Crabtree on 4 December 2013.
On 9 December 2013, a Person County Grand Jury indicted Crabtree on three
charges based on the events alleged to have occurred on 29 November 2013: one count
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of first-degree sex offense against a child under the age of thirteen years, one count
of indecent liberties with a child, and one count of crime against nature. Crabtree
pled not guilty, and his case came on for trial at the 16 March 2015 session of Person
County Superior Court, the Honorable Beecher R. Gray, Judge presiding. Following
the close of the State’s evidence,2 Crabtree elected not to present any evidence. At
the close of all evidence, Crabtree moved to dismiss the charges against him, and the
trial court denied that motion.
On 19 March 2015, the jury returned verdicts finding Crabtree guilty on all
charges. The court consolidated the first-degree sexual offense against a child under
the age of thirteen years and the crime against nature convictions and entered a
judgment sentencing Crabtree to a term of 317-441 months. The court then entered
a separate judgment sentencing Crabtree to a concurrent term of 21-35 months for
the indecent liberties with a child conviction. Crabtree gave notice of appeal in open
court.
Discussion
On appeal, Crabtree argues that (1) the trial court committed plain error in
allowing St. Claire, Snyder, and Royster to vouch for L.R.’s credibility, or in the
alternative, that Crabtree received ineffective assistance of counsel (“IAC”) when his
2 The State offered testimony from several other witnesses in addition to those discussed supra. The
testimony of those witnesses was corroborative of the direct, eyewitness accounts of abuse offered by
L.R. and her grandmother.
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trial counsel failed to object to the challenged testimony; and (2) the trial court
committed plain error in submitting the charge of first-degree sexual offense to the
jury on a theory not supported by the evidence. We find no prejudicial error in the
admission of the challenged testimony and no error in the submission of the first-
degree sexual offense charge.
I. Standard of review
To preserve an issue for review on appeal, a defendant “must have presented
the trial court with a timely request, objection[,] or motion, stating the specific
grounds for the ruling sought if the specific grounds are not apparent.” N.C.R. App.
P. 10(a)(1). However,
[i]n criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved
by rule or law without any such action nevertheless may be
made the basis of an issue presented on appeal when the
judicial action questioned is specifically and distinctly
contended to amount to plain error.
N.C.R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875
(2007), cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008). Plain error review is
limited to issues that “involve either (1) errors in the judge’s instructions to the jury,
or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584,
467 S.E.2d 28, 31 (1996) (citations omitted).
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
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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
affect[s] the fairness, integrity or public reputation of
judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal quotation
marks and citations omitted). Thus, “[u]nder the plain error rule, [a] 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) (citation omitted).
II. Vouching for L.R.’s credibility
Crabtree first argues that St. Claire, Snyder, and Royster improperly vouched
for the credibility of L.R. during their testimony. We conclude that neither Snyder
nor Royster improperly testified as to L.R.’s credibility. While we agree that St.
Claire improperly vouched for L.R.’s credibility in the midst of otherwise acceptable
testimony, we conclude that Crabtree was not prejudiced by the impermissible
testimony.
“[T]estimony of an expert to the effect that a prosecuting witness is believable,
credible, or telling the truth is inadmissible evidence.” State v. Bailey, 89 N.C. App.
212, 219, 365 S.E.2d 651, 655 (1988) (citations omitted). In child sexual abuse cases,
where there is no physical evidence of the abuse, an expert witness’s affirmation of
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sexual abuse amounts to an evaluation of the veracity of the child witness and is,
therefore, impermissible testimony. State v. Dick, 126 N.C. App. 312, 315, 485 S.E.2d
88, 89, disc. review denied, 346 N.C. 551, 488 S.E.2d 813 (1997). Examples of
impermissible vouching for a child victim’s credibility include a clinical psychologist’s
testimony that a child victim was “believable[,]” see State v. Aguallo, 318 N.C. 590,
599, 350 S.E.2d 76, 81 (1986), and an expert witness’s statement, based on an
interview with the child, that she “was a sexually abused child.” See State v. Grover,
142 N.C. App. 411, 414, 543 S.E.2d 179, 181, affirmed per curiam, 354 N.C. 354, 553
S.E.2d 679 (2001). “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.” State v. Stancil,
355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002) (per curiam) (citations omitted).
Further, the same analysis applies to a witness who is a DSS worker or child abuse
investigator because, even if she is “not qualified as an expert witness, . . . the jury
[will] most likely [give] her opinion more weight than a lay opinion.” State v. Giddens,
199 N.C. App. 115, 122, 681 S.E.2d 504, 508 (2009), affirmed per curiam, 363 N.C.
826, 689 S.E.2d 858 (2010).
Crabtree contends that Snyder and Royster, lay witnesses for the State,
improperly vouched for L.R.’s credibility during their testimony. Crabtree cites
Royster’s statement, in explaining the process of investigating a report of child sexual
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abuse, that “[St. Claire and her team] give . . . their conclusion or decision about those
children that have been evaluated if they were abused or neglected in any way.” Read
in context as quoted supra in the Factual and Procedural Background of this opinion,
it is clear that Royster’s comment was merely a description of what St. Claire’s team
are expected to have done before sending any case to DSS for further evaluation.
Royster was not commenting directly on L.R.’s case at all, let alone her credibility,
and thus the challenged testimony was not inadmissible.
Crabtree also challenges testimony in which Snyder characterized L.R.’s
description of performing fellatio on Crabtree as “more of an experiential statement,
in other words something may have actually happened to her as opposed to something
[seen] on a screen or something having been heard about.” As with Royster’s remark,
Snyder’s testimony specifically left the credibility determination to the jury by
stating, “something may have actually happened to [L.R.] as opposed to something”
L.R. learned about from the media or another source. (Emphasis added). Thus, we
conclude that Snyder did not improperly vouch for L.R.’s credibility.
In contrast, St. Claire’s testimony did include impermissible vouching. We find
no fault with St. Claire’s description of the five-tier rating system that the clinic uses
to evaluate potential child sexual abuse victims based on the particularity and detail
with which a patient gives his or her account of the alleged abuse. However, her
statement that “[w]e have sort of five categories all the way from, you know, we’re
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really sure [sexual abuse] didn’t happen to yes, we’re really sure that [sexual abuse]
happened” and her reference to the latter category as “clear disclosure” or “clear
indication” of abuse, in conjunction with her identification of that category as the one
assigned to L.R.’s 23 December 2013 interview, crosses the line from a general
description of the abuse investigation process into impermissible vouching. Likewise,
St. Claire’s testimony that her team’s “final conclusion [was] that [L.R.] had given a
very clear disclosure of what had happened to her and who had done this to her” was
an inadmissible comment on L.R.’s credibility.
As part of our plain error review, having concluded that the admission of these
remarks by St. Claire was error, we must next determine whether they prejudiced
Crabtree. After careful consideration, we conclude that they did not.
This Court’s opinion in State v. Ryan provides a helpful, well-reasoned
framework for assessing the prejudice of an expert witness’s vouching for an alleged
child victim’s credibility:
Under our plain error review, we must consider whether
the erroneous admission of expert testimony that
impermissibly bolstered the victim’s credibility had the
prejudicial effect necessary to establish that the error was
a fundamental error. This Court has held that it is
fundamental to a fair trial that a witness’s credibility be
determined by a jury, that expert opinion on the credibility
of a witness is inadmissible, and that the admission of such
testimony is prejudicial when the State’s case depends
largely on the testimony of the prosecuting witness.
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Notably, a review of relevant case law reveals that [(1)]
where the evidence is fairly evenly divided, or [(2)] where
the evidence consists largely of the child victim’s testimony
and testimony by corroborating witnesses with minimal
physical evidence, especially where the defendant has put
on rebuttal evidence, the error is generally found to be
prejudicial, even on plain error review, since the expert’s
opinion on the victim’s credibility likely swayed the jury’s
decision in favor of finding the defendant guilty of a sexual
assault charge.
223 N.C. App. 325, 336-37, 734 S.E.2d 598, 606 (2012) (citations and internal
quotation marks omitted; emphasis added), disc. review denied, 366 N.C. 433, 736
S.E.2d 189 (2013). In Ryan, this Court found the expert’s vouching prejudicial, noting
that the defendant testified, denying all of the charges, and his ex-wife also testified
on his behalf, while
the State’s evidence consisted of testimony from the child,
her family members, her therapist, the lead detective on
the case who was an acquaintance of the family, and an
expert witness. All of the State’s evidence relied in whole
or in part on the child’s statements concerning the alleged
sexual abuse. . . . There was no testimony presented by the
State that did not have as its origin the accusations of the
child. For this reason, the credibility of the child was
central to the State’s case.
Id. at 337, 734 S.E.2d at 606 (emphasis added). See also State v. Bush, 164 N.C. App.
254, 260, 595 S.E.2d 715, 719 (2004) (“In the case at bar, any and all corroborating
evidence is rooted solely in [the victim’s] telling of what happened, and that her story
remained consistent. . . . Therefore, the conclusive nature of [the doctor’s] testimony
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as to the sexual abuse and that [the] defendant was the perpetrator was highly
prejudicial. This constituted plain error.” (Emphasis added)).
In contrast, this Court has found no prejudice to a defendant where “absent
the [impermissible vouching] testimony, the . . . case involve[s] more evidence of guilt
against the defendant than simply the testimony of the child victim and the
corroborating witnesses.” State v. Sprouse, 217 N.C. App. 230, 242, 719 S.E.2d 234,
243 (2011), disc. review denied, 365 N.C. 552, 722 S.E.2d 787 (2012). In Sprouse, the
defendant contended “that the trial court committed plain error by allowing [a] DSS
social worker . . . to testify that there had been a substantiation of sex abuse of [the
child victim] by [the] defendant.” Id. at 241, 719 S.E.2d at 243. Although we agreed
that the social worker’s “testimony that DSS had substantiated the allegations of
abuse” was error, this Court concluded that “the error [did] not rise to the level of
plain error . . . .” Id. at 243, 719 S.E.2d at 244. In that case,
[a]side from the testimony of A.B.[, the child victim,] and
the witnesses corroborating her testimony, the following
evidence was presented at trial: testimony by Raquel[, the
defendant’s wife,] that shortly after A.B. filed charges
against [the] defendant, [the] defendant “manipulat[ed]”
Raquel to tattoo his penis in order to “blow [A.B.’s] story
out of the water”; [the] defendant asked Raquel to contact
Burris[, a female acquaintance,] in an effort to get Burris
to lie about having seen the tattoo during the time period
associated with the allegations by A.B.; photographs of
[the] defendant’s penis, coupled with Raquel’s testimony,
showed that he did not have a tattoo as of 2 January 2007,
despite the fact that he testified he did have the tattoo as
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early as 2003 or 2004; and [the] defendant tried to have
A.B. killed after charges were filed against him.
Id. at 242-43, 719 S.E.2d at 243-44. Thus, as in Crabtree’s case, there was substantial
evidence supporting the victim’s abuse allegations that was independent of the
victim’s report.
Similarly, in State v. Davis, this Court noted that “it is not plain error for an
expert witness to vouch for the credibility of a child sexual abuse victim where the
case does not rest solely on the child’s credibility.” 191 N.C. App. 535, 541, 664 S.E.2d
21, 25 (2008) (citation omitted). Thus, although “admission of [the challenged]
statement was error as it improperly vouched for [the victim’s] credibility[,]” because
evidence independent of the child’s account of abuse was before the jury, “we [held]
that admission of this statement did not constitute plain error.” Id.
Here, although there was no physical evidence of sexual abuse, Crabtree
presented no evidence, let alone evidence rebutting L.R.’s allegations. More
importantly, unlike in Ryan and Bush, the State’s entire case did not rest solely on
L.R.’s account of what happened. The criminal charges against Crabtree arose from
an incident that was alleged to have occurred on 29 November 2013. As noted supra,
the grandmother testified that, on that date, she saw Crabtree “sitting on the side of
[L.R.’s] bed, and he had his hands between [L.R.’s] legs, and [L.R.] had her hands
between his legs. . . . They was feeling each other up.” This eyewitness account of
Crabtree sexually abusing L.R. is entirely independent of L.R.’s reports of abuse at
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the hands of her “grandpa,” and thus not dependent on L.R.’s credibility. Further,
the grandmother also testified that she had been married to Crabtree for twenty
years, had loved him during their marriage, and had a son with him. Thus, her
testimony that she witnessed her own husband sexually abusing her granddaughter
was likely highly persuasive to the jury.
Likewise, L.R.’s brother, D.J., testified that he had seen several “weird”
encounters between Crabtree and his sister, including Crabtree “lift[ing] up her skirt,
her nightgown” at the dinner table; Crabtree with “his hand in her pants” in the barn;
and Crabtree, in his underwear “sitting on the edge of [L.R.’s] bed. She was between
his legs.” While these incidents were apparently not those for which Crabtree was
charged in this matter, D.J.’s testimony about them bolsters L.R.’s reports that
Crabtree had been sexually abusing her for a period of time, and, like the
grandmother’s testimony, is entirely independent of L.R.’s credibility.
In light of this independent evidence of Crabtree’s guilt not based on L.R.’s
reports of abuse, the precedent established in Sprouse and Davis compels our
conclusion that “it was not plain error for [St. Claire] to vouch for the credibility of
[L.R. because] the case [did] not rest solely on the child’s credibility.” See Davis, 191
N.C. App. at 541, 664 S.E.2d at 25 (citation omitted). Accordingly, Crabtree cannot
show he was prejudiced by St. Claire’s vouching and, as a result, has failed to
establish plain error.
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We likewise reject Crabtree’s alternative argument that he received IAC in
that his trial counsel failed to object to St. Claire’s vouching testimony.
To prevail on a claim of [IAC], a defendant must first show
that his counsel’s performance was deficient and then that
counsel’s deficient performance prejudiced his defense. . . .
Generally, to establish prejudice, a defendant must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citations and internal
quotation marks omitted; emphasis added), cert. denied, 549 U.S. 867, 166 L. Ed. 2d
116 (2006). In light of our determination that St. Claire’s impermissible vouching for
L.R.’s credibility was not prejudicial to him, Crabtree cannot establish the second
prong of a successful IAC claim.
III. First-degree sexual offense charge
Crabtree also argues that the trial court committed plain error in submitting
the charge of first-degree sexual offense to the jury on a theory not supported by the
evidence. Specifically, Crabtree contends that there was no substantive evidence of
fellatio presented at trial and, therefore, the trial court erred in instructing the jury
that a sexual act for purposes of first-degree sex offense included fellatio as well as
cunnilingus and penetration. We disagree.
“[I]t is plain error to allow a jury to convict a defendant upon a theory not
supported by the evidence.” State v. Jordan, 186 N.C. App. 576, 584, 651 S.E.2d 917,
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922 (2007) (citations omitted), disc. review denied, 362 N.C. 241, 660 S.E.2d 492
(2008). Thus, a defendant is entitled to a new trial when “the trial court erroneously
submits the case to the jury on alternative theories, one of which is not supported by
the evidence . . . and . . . it cannot be discerned from the record upon which theory or
theories the jury relied in arriving at its verdict . . . .” State v. Lynch, 327 N.C. 210,
219, 393 S.E.2d 811, 816 (1990) (citation omitted). However, “the testimony of a
single witness will legally suffice as evidence upon which the jury may found a
verdict.” State v. Vehaun, 34 N.C. App. 700, 704, 239 S.E.2d 705, 709 (1977) (citation
and internal quotation marks omitted), disc. review denied, 294 N.C. 445, 241 S.E.2d
846 (1978). Further,
[e]vidence of an out-of-court statement of a witness, related
by the in-court testimony of another witness, may be
offered as substantive evidence . . . . Although the better
practice calls for the party offering the evidence to specify
the purpose for which the evidence is offered, unless
challenged there is no requirement that the purpose be
specified.
State v. Ford, 136 N.C. App. 634, 640, 525 S.E.2d 218, 222 (2000) (citations and
footnotes omitted).
At trial, L.R. gave no testimony describing an instance in which she performed
fellatio on Crabtree, and, on appeal, Crabtree asserts that “[t]he only references to
fellatio were in the form of alleged out-of-court statements by [L.R.] to [the
grandmother], . . . St. Claire, . . . Snyder, and . . . Royster.” However, as noted supra,
- 19 -
STATE V. CRABTREE
Opinion of the Court
the State also presented testimony from Weaver about his 4 December 2013 interview
of L.R. A recording of that interview was admitted as “substantive” evidence without
objection as State’s Exhibit 3 and was published to the jury. The recording includes
the following exchange between Weaver and L.R.:
Q Has he tried to put his private area anywhere else
on you?
A In my mouth.
Q He did. When did that happen, do you know?
A My, like whenever he’s done with me, he’ll like take
his private and go in my mouth.
Q When you say done with you, what do you mean by
that?
A Like he’s done playing, playing with me.
Q Uh-huh.
A Like in my private area, he’s done playing.
Q Then he’ll put his private area in your mouth?
A (Nods affirmatively.)
Q What happens when that happens? What happens
when he does that?
A He’ll like go up and down.
Q Uh-huh. And then what happens?
A It like, it’s stuff starts coming out.
- 20 -
STATE V. CRABTREE
Opinion of the Court
Q In your mouth?
A (Nods affirmatively.)
Q Okay. All right. All right. How many times has that
happened?
A Like two or three.
Q Two or three. Do you remember when that
happened?
A Umm, on the Friday morning.
Q On Friday morning that happened?
A Yeah, before my grandma got up.
During a bench discussion with the prosecutor and defense counsel about the DVD
which contained the recording and also included an interview of the victim’s
grandmother, the trial court clarified that, “The only part that’s going to be
substantive is the interview of [L.R.].” The recording was admitted without objection
or limiting instruction, and the only instruction regarding the recording given by the
trial court during the jury charge was that the recording could be considered “as
evidence of facts it illustrates or shows.” L.R.’s recorded description of Crabtree
forcing her to perform fellatio on him was thus substantive evidence supporting
Crabtree’s conviction for first-degree sexual abuse on the basis of fellatio. Crabtree’s
argument is overruled, and we hold that he received a fair trial, free of prejudicial
error.
- 21 -
STATE V. CRABTREE
Opinion of the Court
NO PREJUDICIAL ERROR IN PART; NO ERROR IN PART.
Judge BRYANT concurs.
Judge McCULLOUGH dissents in a separate opinion.
- 22 -
No. COA15-1124 – STATE v. CRABTREE
McCullough, Judge, dissents.
From the majority opinion's conclusion that an expert witness's testimony
vouching for the credibility of the victim was harmless error, I dissent. As the
majority acknowledges, vouching for a victim-witness’s credibility is normally not
permissible.
Defendant argues that three witnesses improperly vouched for the credibility
of L.R. in this case. We agree that the State’s expert witness improperly vouched for
L.R.’s credibility in the midst of otherwise acceptable testimony. However, we
disagree that any other witness improperly testified as to L.R.’s credibility.
“[T]estimony of an expert to the effect that a prosecuting witness is believable,
credible, or telling the truth is inadmissible evidence.” State v. Bailey, 89 N.C. App.
212, 219, 365 S.E.2d 651, 655 (1988); see also State v. Aguallo, 318 N.C. 590, 599, 350
S.E.2d 76, 81 (1986) (a clinical psychologist’s testimony as an expert witness that a
child victim was “believable” was inadmissible). This Court has also recognized that
where no physical evidence of sexual abuse exists, an expert witness’s affirmation of
sexual abuse of a child amounts to an evaluation of the veracity of the child witness
and is, therefore, impermissible testimony. See State v. Dick, 126 N.C. App. 312, 315,
485 S.E.2d 88, 90 (1997) (distinguishing the holdings in State v. Trent, 320 N.C. 610,
359 S.E.2d 463 (1987) and State v. Parker, 111 N.C. App. 359, 432 S.E.2d 705 (1993)).
“However, an expert witness may testify, upon a proper foundation, as to the profiles
STATE V. CRABTREE
McCullough, J., dissents
of sexually abused children and whether a particular complainant has symptoms or
characteristics consistent therewith.” State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d
788, 789 (2002).
The majority acknowledges that the testimony of Dr. St. Claire, in part,
constituted inadmissible “vouching.” At trial, Dr. St. Claire testified as the State’s
expert witness regarding L.R.’s interview and physical examination. As noted above,
Dr. St. Claire described a five-tier rating system that the clinic uses to evaluate
potential child sexual abuse victims based on the particularity and detail with which
a patient gives his or her account of the alleged abuse. Upon review of Dr. St. Claire’s
testimony, I find no fault with Dr. St. Claire’s description of the five-tier system apart
from Dr. St. Claire’s statement that, “[w]e have sort of five categories all the way
from, you know, we’re really sure [sexual abuse] didn’t happen to yes, we’re really
sure that [sexual abuse] happened.” See State v. Grover, 142 N.C. App. 411, 414-19,
543 S.E.2d 179, 181-83 (2001) (an expert witness’s conclusion, based only on an
interview with the child and with no physical evidence, that “[she] was a sexually
abused child” was impermissible testimony). Dr. St. Claire and her team refer to the
latter category as “clear disclosure” or “clear indication” and assigned L.R.’s
23 December 2013 interview at the clinic to this category. To be exact, their “final
conclusion [was] that [L.R.] had given a very clear disclosure of what had happened
to her and who had done this to her.”
2
STATE V. CRABTREE
McCullough, J., dissents
In cases involving alleged sexual abuse of a child, there is a fine line between
expert testimony properly evaluating a diagnosis of the child witness and expert
testimony that improperly vouches for the credibility of the child witness. Had Dr.
St. Claire not supplemented her description of the five-tier rating system with the
comment that a “clear disclosure” signifies near certainty as to the sexual abuse of
the child, no improper vouching for the credibility of the child witness would have
occurred. However, by testifying that the team is near certain that sexual abuse has
occurred when a child’s allegations are classified in the “clear disclosure” tier and
then testifying that L.R.’s interview was classified as a clear disclosure, Dr. St. Claire
effectively testified that the team was near certain that L.R. had been sexually
abused. I believe that this testimony crosses that delicate line and amounts to
vouching for L.R.’s credibility. Because the State’s evidence almost entirely relies on
L.R.’s testimony and the corroborative testimony of other witnesses, it is likely that
Dr. St. Claire’s testimony caused the jury to rely on Dr. St. Claire’s opinion of L.R.’s
disclosure rather than reach its own conclusion as to the credibility of L.R.’s
testimony at trial. Thus, I believe Dr. St. Claire’s testimony regarding the certainty
of sexual abuse occurring had a probable impact on the jury finding the defendant
guilty of first degree sexual offense against a child under the age of thirteen years,
indecent liberties with a child, and crime against nature.
3
STATE V. CRABTREE
McCullough, J., dissents
The majority recognizes that this portion of Dr. St. Claire’s testimony is
inadmissible, but concludes that the sexual activity observed by the victim’s
grandmother along with observations made by the victim’s brother provide such
overwhelming evidence of guilt that the admission of the expert’s improper vouching
testimony is harmless beyond a reasonable doubt. I recognize that vouching for the
victim’s credibility is not always plain error and can be harmless error when the other
evidence in the case is very strong. See State v. Hammet, 361 N.C. 92, 637 S.E.2d 518
(2006) and State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002).
In the case sub judice, however, without the grandmother’s and brother’s
observations there might not have been a conviction, even with the inadmissible
expert witness testimony. This victim was an admitted liar. She admitted to lying
about sexual activity in order to live with her aunt who would let her do what she
wanted. On cross examination L.R. testified as follows:
Q. What grade did you say you were in?
A. Fourth.
Q. What type of grades do you get?
A. Eighties and Nineties and one hundreds.
Q. And have you been told you’re pretty smart?
A. Yes.
Q. You said it’s more important to tell the truth?
4
STATE V. CRABTREE
McCullough, J., dissents
A. Yes.
Q. And you talked to Investigator Weaver about this case;
is that correct?
A. Yes.
Q. Do you remember talking to him about 6 months before?
A. Yes.
....
Q. Do you remember talking to them another time about 6
months before?
A. Yes.
Q. Did you tell them that your brothers had raped you?
A. Yes.
Q. Was that the truth or a lie?
A. A lie.
Q. Do you know why you told it?
A. Yes.
Q. Can you tell us why you told that lie?
A. So, I could go and live with somebody else.
Q. That would have been your Aunt Delilah?
A. Yes.
Q. And you loved her a lot?
5
STATE V. CRABTREE
McCullough, J., dissents
A. Yes.
Q. Was she your grandmother’s sister?
A. Yes.
Q. Did she let you do whatever you wanted?
A. Yes.
Q. Did you like doing that?
A. Yeah.
Q. Now, you had recently moved in with your
grandmother, Mildred. Is that right?
A. Yes.
Q. But you didn’t like living there so much, did you?
A. Yeah, because of the horses.
Q. You liked the horses.
A. (No response).
Q. But did you tell Officer Weaver that you didn’t like all
the rules?
A. Yeah.
Q. But you liked living with Aunt Delilah because she let
you do what you wanted?
A. Yes, but not all the time.
Q. Not all the time. Okay. And do you remember talking
to officers in February of that year, a few months before
you talked to Officer Weaver?
6
STATE V. CRABTREE
McCullough, J., dissents
A. No.
Q. Do you remember telling the officer in Durham that a
black man had had sex with you, too?
A. Yes.
Q. Was that a truth or a lie?
A. A truth.
Q. That was the truth?
A. (Witness nods yes).
Q. Do you know what officer you told? Do you remember
who you told about that?
A. No.
Q. Okay. But that was a few months before you talked
with Officer Weaver?
A. Yes.
Q. Okay. Does your step-grandfather, Mr. Crabtree, have
any physical problems that you know about?
A. Yes.
Q. Can you tell us what they are?
A. Um, my grandma said that he was mentally crazy.
Q. Do you know if he had a heart attack?
A. Yes.
Q. Do you know if he had cancer?
7
STATE V. CRABTREE
McCullough, J., dissents
A. No.
Q. Were you able to tell if he had a hard time walking?
A. Yes.
Q. Did he sometimes have a hard time walking?
A. Yes.
Q. Were you able to tell if he had a hard time with his
hands sometimes?
A. No.
Q. You couldn’t tell it was hard for him to grab ahold of
things?
A. No.
Q. Okay. Do you ever remember him having a job?
A. Yeah.
Q. What was his job?
A. Um, cutting wood. Trees.
Q. Was that a long time ago?
A. No.
Q. Is that a few years ago?
A. No.
Q. Was it before he had the heart attack?
A. I guess.
8
STATE V. CRABTREE
McCullough, J., dissents
Q. Pardon?
A. I guess.
Q. Okay. You don’t live with your grandma, Mildred, any
more. Is that right?
A. Yes.
Q. Why is that?
A. Because, um, she couldn’t take care of us no more.
Q. Okay. Did you tell people things about her?
A. Yes.
Q. Were they true or were they a lie?
A. Some were a lie.
Q. Why did you tell those lies?
A. Because I didn’t want to live with her no more.
Q. So, is it fair to say you told lies in the past when you
wanted to move somewhere else?
A. Yes.
With a child under the age of 13 testifying that she had actually accused her
own brothers of rape, just to go live with an aunt who had few rules presents the
prosecutor with a very difficult situation. The observations of the grandmother and
brother are helpful but they do not constitute a first degree sex offense although they
clearly provide sufficient evidence to sustain the indecent liberties charges. Thus,
9
STATE V. CRABTREE
McCullough, J., dissents
L.R.’s statement about fellatio which is the basis of the first degree sex offense charge
depends solely on L.R.’s credibility. Of course, the jury could conclude that any person
who would do what the grandmother observed probably did everything else. I prefer
to believe that jurors do not jump to such assumptions and base their verdict on the
evidence actually introduced at trial.
Consequently, I believe that the observations are important but insufficient to
sustain the first degree sex offense charges and that the expert’s testimony prejudiced
defendant. A young woman under the age of 13 who will accuse her brothers of rape
is going to have severe credibility problems. I believe an expert who vouches for the
victim’s credibility was of great assistance in persuading the jury to believe that she
had performed fellatio as she described it to the investigators. Therefore, I
respectfully dissent.
10