State v. Buck ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1044
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Burke County
No. 11 CRS 2390
RUSSELL SCOTT BUCK,
Defendant.
Appeal by defendant from judgment entered 13 February 2013
by Judge Robert C. Ervin in Burke County Superior Court. Heard
in the Court of Appeals 19 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth J. Weese, for the State.
Michael E. Casterline for defendant-appellant.
GEER, Judge.
Defendant Russell Scott Buck was tried for 16 offenses and
found guilty of one count of first degree sexual offense under
N.C. Gen. Stat. § 14-27.4 (2013). On appeal, defendant
primarily argues that the trial court erred in denying his
motion to dismiss when the State failed to present evidence that
defendant committed a sex offense on any particular date or in
any particular place. Because North Carolina courts have not
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required evidence of a specific incident to convict a defendant
of first degree sex offense with a child and because the record
contains sufficient evidence to support defendant's conviction,
we hold that the trial court properly denied the motion to
dismiss.
Facts
The acts that were the basis for the indictments in this
case occurred while defendant was living with his daughter,
"Cheyenne," and two sons, "Mark" and "Ricky," in a single-wide
trailer in a Morganton trailer park.1 Cheyenne, Mark, and Ricky
are defendant's only children. Defendant had primary custody of
the children, with their mother, Rachel, having visitation
rights every other weekend.
Allegations that defendant was abusing his daughter
surfaced after Mark had an argument with defendant on 3 August
2011. That evening, Mark rode his bike "across the county to
his mother's house." After Mark told his mother that defendant
had beaten him, she took Mark to the Burke County Sheriff's
Office. There, Mark reported that defendant had physically
abused him and his brother and sexually abused Cheyenne.
Following an investigation by the Sheriff's Office that involved
1
Pursuant to N.C.R. App. P. 3.1(b), we refer to the alleged
victim and her siblings by pseudonyms to protect the minors'
privacy and for ease of reading.
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interviews with defendant, Rachel, the children, and others,
defendant was indicted for 10 counts of first degree statutory
sex offense and six counts of statutory rape, allegedly
committed against Cheyenne from 2002 to 2011.
At trial, the jury found defendant guilty of one count of
first degree sexual offense with a child under 13 years of age
occurring in 2007 and not guilty of the remaining charges. The
trial court sentenced defendant to a presumptive-range term of
216 to 269 months imprisonment. Defendant timely appealed to
this Court.
I
Defendant first contends that the trial court erred in
denying his motion to dismiss the charge of first degree sexual
offense occurring in 2007. Defendant notes that "Cheyenne
referenced the year 2007 only once" when she testified that
defendant would give her extra money and other things "whenever
I'd give him sexual favors," which Cheyenne stated happened in
"2010, 2009, 2008, 2007." Defendant argues that because the
State failed to establish that "sexual favors" is synonymous
with the definition of "sexual act," set forth in N.C. Gen.
Stat. § 14-27.1(4) (2013), the State failed to present
sufficient evidence that defendant committed a "sexual act"
against Cheyenne in 2007.
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When ruling on a motion to dismiss for insufficient
evidence, "the trial court's inquiry is limited to a
determination of 'whether there is substantial evidence of each
essential element of the offense charged and of the defendant
being the perpetrator of the offense.'" State v. Butler, 356
N.C. 141, 145, 567 S.E.2d 137, 139 (2002) (quoting State v.
Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)).
"'Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'" State
v. Outlaw, 159 N.C. App. 423, 426, 583 S.E.2d 625, 627 (2003)
(quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587
(1984)). "'In reviewing challenges to the sufficiency of
evidence, we must view the evidence in the light most favorable
to the State, giving the State the benefit of all reasonable
inferences.'" State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866,
869 (2002) (quoting State v. Fritsch, 351 N.C. 373, 378-79, 526
S.E.2d 451, 455 (2000)).
First degree sexual offense may be established by a showing
of (1) a "sexual act," (2) with a victim who is under 13 years
of age, (3) a defendant who is at least 12 years old, and (4)
who is also at least four years older than the victim. See N.C.
Gen. Stat. § 14-27.4(a)(1). A "sexual act" is defined as
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fellatio, cunnilingus, analingus, or anal intercourse, but it
excludes vaginal intercourse. N.C. Gen. Stat. § 14-27.1(4).
Defendant does not dispute that evidence exists regarding
each of these elements, but rather contends that the evidence is
insufficient that a sexual act occurred in 2007, the sole count
on which the jury convicted defendant. Mark, however, testified
that he saw Cheyenne performing oral sex on defendant "like --
six years" from "this year," which was 2013. From this
testimony, the jury could have found that an act of fellatio had
occurred in 2007. Defendant's arguments that Mark's response
was "confused" and "imprecise and vague" go to the credibility
and weight to be given the testimony, questions solely within
the purview of the jury.
Moreover, although Cheyenne testified generally that she
gave defendant "sexual favors" in 2007, she explained in other
testimony what she meant by sexual favors. According to
Cheyenne, she performed fellatio on defendant beginning in 2002,
when she was six years old and that defendant began performing
cunnilingus on her when she was about 10 years old, which would
have been in 2005. She testified that the last time she had
"sexual contact" with defendant was "a couple days before I was
taken away from him" and that "all of this stuff" -- which a
jury could find included the fellatio and cunnilingus --
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continued until Cheyenne was removed from defendant's home in
2011. Notably, Cheyenne never testified that she stopped
performing fellatio on defendant or that defendant ever ceased
performing cunnilingus on her.
When Mark's and Cheyenne's testimony is viewed in the light
most favorable to the State, with all reasonable inferences
drawn in its favor, this testimony is sufficient to support a
reasonable juror's conclusion that defendant, in 2007, performed
a sexual act on Cheyenne within the meaning of N.C. Gen. Stat. §
14-27.1(4). While defendant argues that Mark's and Cheyenne's
testimony did not provide "evidence of any specific sexual act
occurring in any particular place at a particular time,"
defendant does not cite any authority requiring such
specificity. Indeed, this Court has acknowledged "the realities
of a continuous course of repeated sexual abuse" as a result of
which "each succeeding act, no matter how vile and perverted,
becomes more routine, with the latter acts blurring together and
eventually becoming indistinguishable. It thus becomes
difficult if not impossible to present specific evidence of each
event." State v. Bullock, 178 N.C. App. 460, 473, 631 S.E.2d
868, 877 (2006).
We hold that the State's evidence was sufficient to defeat
defendant's motion to dismiss the charge that in 2007, he
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committed first degree sex offense with a child under the age of
13. See State v. Khouri, 214 N.C. App. 389, 397, 716 S.E.2d 1,
7 (2011) (holding that State presented sufficient evidence of
statutory sexual offense with person who is 13, 14, or 15 years
of age when victim testified that sexual touching and oral sex
occurred regularly beginning when she was 11 or 12 and victim
did not testify that acts stopped when defendant began to engage
in vaginal intercourse with her at age 14, and "the jury could
reasonably infer that the sexual acts that began at the ages of
eleven or twelve continued on occasion after the instances of
vaginal intercourse began"), disc. review denied, 365 N.C. 546,
742 S.E.2d 176 (2012). The trial court, in this case,
therefore, properly denied defendant's motion to dismiss.
II
Defendant next argues that the trial court committed plain
error when it allowed Elizabeth Browning, who worked at South
Mountain Children and Family Services, to testify that
Cheyenne's lack of any physical signs or symptoms of sexual
abuse was consistent with her claims of having been repeatedly
sexually abused or raped. Defendant contends that Ms.
Browning's testimony improperly bolstered Cheyenne's testimony
because Ms. Browning found no physical evidence that Cheyenne
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was abused and because "[t]he State's case depended on the
relative credibility of Cheyenne and her father."
Because defendant did not object to this testimony, we
review it for plain error. Our Supreme Court has explained:
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, . . . plain error is to be applied
cautiously and only in the exceptional
case[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(internal citations and quotation marks omitted).
It is well established that "[i]n a sexual offense
prosecution involving a child victim, 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) (per curiam).
Nevertheless, "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." Id. at 267, 559 S.E.2d at 789. "'The
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fact that [such] evidence may support the credibility of the
victim does not alone render it inadmissible.'" State v. Dixon,
150 N.C. App. 46, 52, 563 S.E.2d 594, 598 (quoting State v.
Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 367 (1987)), aff'd per
curiam, 356 N.C. 428, 571 S.E.2d 584 (2002).
We note that, without objection, the State tendered Ms.
Browning as an expert witness in the field of sexual assault
nurse examinations ("SANE"). Ms. Browning testified that she
had examined Cheyenne on 16 August 2011 and that she appeared
"normal," meaning that Cheyenne did not have any physical
symptoms of anal or vaginal penetration. The State then
elicited the following testimony from Ms. Browning on direct
examination:
Q Ms. Browning, do you know what
sexual abuse [Cheyenne] disclosed to the
Sheriff's department after you performed
[her] exam?
A It's my understanding that she did
disclose penetration.
Q And was that on one occasion or on
multiple occasions over a long period of
time?
A To my knowledge, it was multiple
encounters.
Q Now, knowing that and looking back
at your examination, are the findings in
your examination consistent with that
history of sexual abuse over a long period
of time?
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A Yes, it is.
Q And explain to the jury how that
would be.
A Well again, things heal. If there
was an injury –– there may not have been an
injury. We just talked about what happens
to the hymen when estrogen takes hold. It
gets thick, it gets elastic, it stretches.
We wouldn't know. It's consistent with what
she said.
Immediately following this exchange, defense counsel
elicited the following testimony from Ms. Browning on cross-
examination:
Q Your examination is also
consistent with no abuse occurring, isn't
it?
A Yes.
Q Okay. There's really no way to
tell. Is that a fair statement?
A Yes.
Ms. Browning then explained that she had performed over 1,000
physical SANE examinations. She testified that only "10
percent" of children who are sexually abused show physical signs
and that this was based on a review of the academic literature.
Ms. Browning's testimony amounted to an opinion that
Cheyenne's having a history of sexual abuse should not be ruled
out just because of Cheyenne's SANE examination since the
profile or typical characteristics of a sexually abused child do
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not necessarily include physical findings. Although Ms.
Browning testified that "the findings in [her] examination
[were] consistent with that history" of penetration which
Cheyenne had disclosed to authorities, the context of her
testimony makes it clear that the reference was to an alleged
history.
Further, the defense elicited testimony from Ms. Browning
on cross-examination that her findings were also consistent with
Cheyenne not having been abused. At no point did Ms. Browning
express an opinion that Cheyenne was the victim of abuse.
Rather, Ms. Browning gave an opinion whether Cheyenne had
"symptoms or characteristics consistent therewith" as permitted
by Stancil, 355 N.C. at 267, 559 S.E.2d at 789. The trial
court, therefore, did not commit plain error in admitting Ms.
Browning's testimony. See also In re T.R.B., 157 N.C. App. 609,
618, 582 S.E.2d 279, 286 (2003) (upholding admission of
testimony of alleged victim's examining doctor that the lack of
physical findings was "'consistent'" with claims of sexual abuse
because doctor "did not testify that the allegations in the
juvenile petition were accurate, but only that her examination
of [alleged victim] was 'consistent' with her interview of
him").
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Defendant, however, relies on State v. Frady, ___ N.C. App.
___, 747 S.E.2d 164, disc. review denied, ___ N.C. ___, 752
S.E.2d 465 (2013). In Frady, a medical expert, who did not
personally examine the alleged victim, testified that her
"'disclosure [is] consistent with sexual abuse'" based solely on
"'the consistency of [the alleged victim's] statements over
time,' the fact that she could provide sensory details, and
because her knowledge of the sexual act was beyond her
developmental level." Id. at ___, 747 S.E.2d at 166, 167. This
Court noted that "[t]he alleged 'disclosure' was [the victim's]
description of the abuse" and explained that "[there] may have
been a sufficient foundation to support an opinion as to whether
[the victim] exhibited symptoms or characteristics of victims of
child sexual abuse; however, it was insufficient for the
admission of Dr. Brown's judgment that [the victim] is
believable." Id. at ___, 747 S.E.2d at 167. The Court held
that "[w]hile Dr. Brown did not diagnose [the victim] as having
been sexually abused, she essentially expressed her opinion that
[the victim] is credible[,]" and the trial court, therefore,
erred in admitting the testimony. Id. at ___, 747 S.E.2d at
167.
Thus, in Frady, the expert did not testify regarding the
alleged victim having exhibited symptoms or characteristics
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consistent with general profiles and characteristics of sexually
abused children, but rather testified that the victim's
disclosures were consistent with sexual abuse -- an expression
of an expert opinion regarding the victim's credibility. In
this case, however, Ms. Browning testified extensively, based on
a review of academic literature, about the elasticity of female
genitalia as the reason why a vast majority of young girls who
are sexually abused do not exhibit physical symptoms of abuse.
Based on these characteristics -- rather than solely on the
particularities of Cheyenne's disclosure -- Ms. Browning
testified that Cheyenne's disclosure was consistent with an
alleged claim of abuse. For these reasons, Ms. Browning did not
improperly bolster Cheyenne's claims of abuse, and the trial
court did not commit plain error in allowing her testimony.
No error.
Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).