State v. King ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1118
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Union County
No. 10CRS050358
KEVIN MICHAEL KING
Appeal by defendant from judgment entered 17 April 2013 by
Judge W. David Lee in Union County Superior Court. Heard in the
Court of Appeals 19 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender David W. Andrews, for defendant-appellant.
HUNTER, Robert C., Judge.
Kevin Michael King (“defendant”) appeals from judgment
sentencing him to 236 to 293 months imprisonment on two counts
of first-degree sex offense with a child and two counts of
taking indecent liberties with a minor. On appeal, defendant
argues that: (1) the trial court committed plain error by
admitting video footage of a forensic interview with the alleged
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victim; (2) the trial court committed plain error by admitting
testimony from the alleged victim’s therapist that constituted
an improper opinion on the alleged victim’s credibility; (3) the
trial court erred by denying his motion to dismiss the charges
of taking indecent liberties with a minor; and (4) the trial
court committed plain error by instructing the jury that it
could convict defendant of taking indecent liberties with a
minor based on theories not supported by the evidence.
After careful review, we find no error in the sex offense
judgments, but we vacate the convictions for taking indecent
liberties with a minor. Accordingly, we remand for
resentencing.
Background
The evidence presented at trial tended to establish the
following facts: “Jessica”1, the alleged victim, was seven years
old at the time of the incident underlying this case and ten
years old at the time of trial. Defendant is Jessica’s
biological father. Defendant and Jessica’s mother, “Jane
Reynolds” (“Jane”), lived briefly with Jane’s mother, “Anne
Reynolds” (“Ms. Reynolds”), until the relationship between
1
“Jessica” is a pseudonym used to protect the identity and
privacy of the juvenile. Pseudonyms will also be used to refer
to members of Jessica’s family.
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defendant and Jane ended when Jessica was two months old. Ms.
Reynolds eventually became Jessica’s legal guardian.
In January 2010, defendant’s mother (“Lindsay”) arranged
with Ms. Reynolds for Jessica to visit with Lindsay and
defendant at Lindsay’s home in Monroe, N.C. Originally, Jessica
was to spend one night with defendant and his mother, but
Jessica later called and asked Ms. Reynolds if she could spend
another night with them. Ms. Reynolds testified at trial that a
few days after her visit with defendant, Jessica told Ms.
Reynolds that she and defendant had a secret.
Jessica was in grief counseling during this time because
her sister had died from leukemia in 2008. Before a regularly
scheduled appointment with Kristen McClure (“Ms. McClure”),
Jessica’s therapist, Ms. Reynolds called and left a message with
Ms. McClure to alert her that Jessica had a secret that she may
want to talk about in the upcoming counseling session.
Ms. McClure testified that her conversation with Jessica in
the counseling session was focused on secrets. Jessica
disclosed to Ms. McClure that defendant made her watch with him
what she described as “movies with naked people” on the
computer. Ms. McClure did not ask for more details, because she
thought it was apparent that there would be a Child Protective
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Services report, and she did not want to disrupt that
investigation. At the end of the counseling session, Ms.
McClure told Ms. Reynolds that Jessica said “she had definitely
been sexually abused.” The day after the counseling session,
Ms. Reynolds called Child Protective Services.
On 20 January 2010, Jessica spoke with licensed social
worker, Rebecca Horner (“Ms. Horner”), who conducted a forensic
interview. During the interview, Jessica gave Ms. Horner
detailed descriptions of sexual acts that defendant allegedly
made her perform. Ms. Horner’s report stated that Jessica’s
account of abuse was clear and detailed and that she validated
the alleged abuse through the use of anatomical dolls.
After the forensic interview, detectives arrested defendant
and seized a computer from his mother’s house. A grand jury
indicted defendant for two counts each of: (1) statutory rape,
(2) statutory sex offense, (3) incest, (4) taking indecent
liberties with a minor, and (5) displaying harmful material to a
minor. The matter was tried before a jury on 15 April 2013.
At trial, Jessica testified that during the visit with
defendant at his mother’s house, she watched a pornographic
video on a computer with defendant while sitting on his lap.
Jessica further testified that: (1) she rubbed defendant’s penis
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and put her mouth on his penis; (2) he put his mouth on her
vagina; and (3) defendant kissed her “butt.” Jessica said that
defendant told her if she told anyone about what happened, he
would not be able to see her for a long time.
After Jessica testified, the trial court allowed the State
to show video footage of the forensic interview conducted by Ms.
Horner with no objection or request for limiting instruction.
The video showed Jessica telling Ms. Horner that defendant
showed her multiple pornographic videos, put his mouth on her
“butt and private,” and made her perform oral sex on him. In
the video Jessica also said that defendant penetrated her vagina
with his penis at least two times and rubbed on her vagina with
his testicles and one of his fingers.
Defendant testified at trial and denied the allegations.
The other individuals staying at Lindsay’s home that weekend
also testified that they did not see anything unusual about
defendant’s conduct toward Jessica, though they admittedly were
not present at all times.
At the conclusion of the State’s evidence, defense counsel
made a motion to dismiss all charges. As part of the motion,
counsel asserted that the taking indecent liberties with a minor
indictments were void for vagueness. The trial court dismissed
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the charges of statutory rape, incest, and displaying harmful
material to a minor.
At the charge conference, the trial court stated that the
verdict sheet for taking indecent liberties with a minor would
be based on (1) analingus, and (2) “rubbing the alleged victim’s
vagina.” At the conclusion of the defense’s evidence and during
the charge conference, defense counsel reinstated his motion to
dismiss. The trial judge denied the motion.
The jury convicted defendant of two counts of statutory sex
offense and two counts of taking indecent liberties with a
minor. On the verdict sheet for the two charges of taking
indecent liberties with a minor, the jury checked the line for
“Guilty of Indecent Liberties with Child (analingus)” and
“Guilty of Indecent Liberties with Child (rubbing alleged
victim’s vagina).” The trial court consolidated the charges for
judgment and sentenced defendant to 236 to 293 months
imprisonment. Defendant gave notice of appeal in open court
immediately following sentencing.
Discussion
I. Forensic Video
Defendant first argues that the trial court erred by
admitting the video of the forensic interview with Jessica
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because her statements were inflammatory, far exceeded her
testimony at trial, and prejudiced the jury against defendant.
We disagree.
At trial, defendant did not object to the admission of the
video. Thus, the appropriate standard of review is plain error.
State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983).
Plain error arises when the error is “so basic, so prejudicial,
so lacking in its elements that justice cannot have been
done[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983) (citation and quotation marks 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 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 omitted).
“‘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.
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Stat. § 8C–1, Rule 801(c) (2013). Generally, hearsay is not
admissible unless it is offered for a purpose other than proving
the truth of the matter asserted. State v. Irick, 291 N.C. 480,
498, 231 S.E.2d 833, 844 (1977). However, prior consistent
statements of a witness are admissible for corroborative
purposes. State v. Martin, 309 N.C. 465, 476, 308 S.E.2d 277,
284 (1983). Corroborative testimony may contain “new or
additional information when it tends to strengthen and add
credibility to the testimony which it corroborates.” State v.
Ligon, 332 N.C. 224, 237, 420 S.E.2d 136, 143 (1992) (citations
omitted); see also State v. Beane, 146 N.C. App. 220, 232, 552
S.E.2d 193, 200 (2001) (corroborative evidence need not mirror
the testimony it seeks to corroborate, as long as the new
information tends to strengthen or add credibility to the
testimony). However, “prior statements as to facts not referred
to in [the witness’s] trial testimony and not tending to add
weight or credibility to it are not admissible as corroborative
evidence.” State v. Frogge, 345 N.C. 614, 618, 481 S.E.2d 278,
280 (1997) (alteration in original).
A trial court has “wide latitude in deciding when a prior
consistent statement can be admitted for corroborative,
nonhearsay purposes.” State v. Call, 349 N.C. 382, 410, 508
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S.E.2d 496, 513 (1998). The North Carolina Supreme Court has
held that a trial court’s limiting instruction that the jury may
only consider out-of-court statements for corroborative and not
substantive evidence can cure potentially erroneous admission of
inconsistent statements. State v. Evans, 346 N.C. 221, 232-33,
485 S.E.2d 271, 277-78 (1997); see also State v. Early, 194 N.C.
App. 594, 600-01, 670 S.E.2d 594, 600 (2009) (holding that the
trial court did not abuse its discretion when the trial court
gave limiting instructions on a prior inconsistent statement
because the statement was only admitted for corroborative
purposes).
Here, defendant argues that the trial court erred by
admitting video of the forensic interview with Jessica because
during the forensic interview Jessica described crimes she did
not testify to at trial, such as statutory rape. Thus, he
argues that because the prior out-of-court statements go “far
beyond” Jessica’s trial testimony, the video interview did not
add weight or credibility to the testimony, and the evidence of
other crimes alluded to in the interview had a “dangerous
tendency” to prejudice the jury. State v. McClain, 240 N.C.
171, 177, 81 S.E.2d 364, 368 (1954).
Although we agree that Jessica’s statements in the forensic
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interview did go beyond her testimony at trial, we find that any
error in admitting the video was cured by the trial court’s
limiting instruction. Here, the trial court gave limiting
instructions on prior consistent statements and corroboration on
its own initiative when it admitted the forensic video and gave
a similar instruction in its jury charge. Specifically, the
trial court included the following in its jury charge:
Evidence has also been received tending to
show that at an earlier time a witness made
a statement which may conflict or be
consistent with the testimony of the witness
at this trial. As I’ve previously instructed
you, ladies and gentlemen, you must not
consider such earlier statement as evidence
of the truth of what was said at that
earlier time because it was not made under
oath at this trial. If you believe the
earlier statement was made, and that it
conflicts or is consistent with the
testimony of the witness at this trial, you
may consider this, and all other facts and
circumstances bearing upon the witness’s
truthfulness, in deciding whether you will
believe or disbelieve the witness’s
testimony.
Furthermore, although there were parts of the video that did go
beyond Jessica’s testimony, there was also a great deal of
consistency sufficient for the jury to be able to assess
Jessica’s credibility. Thus, the trial court did not err by
admitting the forensic video for corroborative purposes and
instructing the jury as to the only permissible use of this
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evidence. See Early, 194 N.C. App. at 601, 670 S.E.2d at 600.
Because there was no error, there could not have been plain
error. See State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465,
468 (1986) (holding that without error at all, there cannot be
plain error). Defendant’s argument is overruled.
II. Expert Testimony
Next, defendant argues that the trial court committed plain
error by allowing improper opinion testimony by an expert
witness, Ms. McClure, that Jessica had “definitely been sexually
abused.” Defendant also argues that Ms. McClure’s testimony
that she treated Jessica for issues that victims face after
suffering sexual abuse was an improperly admitted opinion. We
disagree.
Because defendant did not object to the admission of this
testimony at trial, we review this issue on appeal for plain
error. See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.
In 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. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987); State v. Grover,
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142 N.C. App. 411, 543 S.E.2d 179, aff’d 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).
Admission of expert testimony that the victim has been sexually
abused without proper foundation constitutes plain error. State
v. Delsanto, 172 N.C. App. 42, 47-48, 615 S.E.2d 870, 873-74
(2005).
There are two statements at issue here. The first is Ms.
Reynolds’s testimony that Ms. McClure told her that Jessica had
“definitely been sexually abused.”
Defendant argues that this was an improper expert opinion
about Jessica’s credibility because it was based on Ms.
McClure’s discussion with Jessica and not on physical evidence
of abuse. See Stancil, 355 N.C. at 267, 559 S.E.2d at 789. We
disagree. After reviewing the transcript, we find that Ms.
McClure never expressed an opinion about Jessica’s credibility
or whether she had been sexually abused. Rather, the statement
defendant argues amounts to an impermissible opinion was in fact
included in Ms. Reynolds’s testimony. In context, Ms. Reynolds
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was merely relating the fact that Ms. McClure told her that
Jessica had disclosed that she had been sexually abused. Ms.
Reynolds’s testimony was as follows:
Q. And what happened next?
A. Towards the end, she said that she had
definitely been sexually abused.
Q. When you say she, do you –
A. I’m sorry; [Ms. McClure] brought me into
the office and said that Jessica had told
had told [sic.] her that she was -- that--
that her daddy had engaged in oral sex and
that she felt like we needed to proceed,
that I had -- that I was compelled-- I don’t
know what the word would be, to call Child
Protective Services, that if I didn’t call
that she had to call.
Ms. McClure never testified that she stated to Ms. Reynolds
or anyone else that Jessica had been sexually abused. Further,
Ms. McClure neither formulated nor conveyed any opinion that
Jessica had been sexually abused. When the State tried to
elicit an actual opinion from Ms. McClure, the trial court
sustained defendant’s objection. Thus, because Ms. McClure
never gave an expert opinion on Jessica’s credibility or whether
she had been sexually abused, defendant’s argument is overruled.
The second statement at issue is Ms. McClure’s testimony
that in subsequent therapy sessions with Jessica, Ms. McClure
treated her for issues from which sexual abuse victims might
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suffer.
Defendant relies on State v. Hall, 330 N.C. 808, 822-23,
412 S.E.2d 883, 891 (1992), where the North Carolina Supreme
Court granted a new trial to the defendant because the trial
court improperly admitted expert testimony that the alleged
victim of sexual abuse was diagnosed as having post-traumatic
stress disorder and a conversion reaction as substantive
evidence of guilt. The case at hand is distinguishable because
Ms. McClure’s testimony about working with Jessica on issues
that sexual abuse victims may face was not an opinion that the
victim had, in fact, been abused. Ms. McClure testified that
she never probed into the details of what occurred with Jessica
and defendant after Jessica’s initial disclosure that she
watched pornographic videos with defendant. Rather, she
proceeded with treatment designed for children who have alleged
sexual abuse. Thus, contrary to the expert witnesses in Hall,
Ms. McClure never formed an opinion as to whether abuse had in
fact occurred, and thus, the trial court did not err by
admitting her testimony.
Since defendant failed to establish that the trial court
erred by admitting these statements, we conclude that there
cannot be plain error. See Torain, 316 N.C. at 116, 340 S.E.2d
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at 468.
III. Motion to Dismiss
Defendant also argues that the trial court erred when it
denied defendant’s motion to dismiss the charges for taking
indecent liberties with a minor. Defendant claims that the
State did not produce substantial evidence that defendant rubbed
Jessica’s vagina or engaged in analingus – the two factual
theories upon which the jury convicted defendant for these
charges. We agree.
The first matter we must address is whether defendant
waived this issue on appeal. The State argues that defendant
waived review of this issue because he presented a different
argument at trial supporting the motion to dismiss than the
argument he now presents on appeal. It is well-settled in North
Carolina that where a theory argued on appeal was not raised
before the trial court, “the law does not permit parties to swap
horses between courts in order to get a better mount.” State v.
Augustine, 359 N.C. 709, 721, 616 S.E.2d 515, 525 (2005)
(citations omitted). At trial, defendant’s motion to dismiss
was based upon lack of evidence for the rape and incest charges.
As to the indecent liberties charges, defense counsel objected
only on the basis that the indictments were vague. At the close
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of all evidence, defense counsel reinstated his motion to
dismiss all charges but did not specifically assert that the
motion was tied to lack of evidence for the indecent liberties
charges.
We hold that defendant did not preserve this issue on
appeal because he did not state the specific grounds for the
motion to dismiss which he now argues on appeal. See N.C. R.
App. P. 10(a)(1) (2013); Augustine, 359 N.C. at 721, 616 S.E.2d
at 525. However, defendant requests that we invoke Rule 2 of
the North Carolina Rules of Appellate Procedure to reach the
merits of this issue. See N.C. R. App. P. 2 (2013). This Court
has previously utilized Rule 2 to reach the merits of issues
concerning sufficiency of the evidence and motions to dismiss
where theories used to support the motions at the trial level
differed from those raised on appeal. See State v. Martinez,
___ N.C. App. ___, ___, 749 S.E.2d 512, 514 (2013) (invoking
Rule 2 to review the merits of denial of a motion to dismiss on
appeal despite defendant relying on a different argument for
dismissal at trial). Thus, in accordance with caselaw and to
prevent manifest injustice, we invoke Rule 2 to reach the merits
of defendant’s argument here.
The trial court’s ruling on a motion to dismiss is reviewed
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de novo on appeal. State v. Bagley, 183 N.C. App. 514, 523, 644
S.E.2d 615, 621 (2007). Under the de novo standard of review,
this Court considers the matter anew and freely substitutes its
own judgment for the lower court’s. Sutton v. N.C. Dep’t of
Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999). When
a trial court rules on a motion to dismiss, it must determine
whether the State presented substantial evidence of each
essential element of that offense. State v. Davis, 74 N.C. App.
208, 212, 328 S.E.2d 11, 14 (1985). Substantial evidence is
that which “a reasonable mind might accept as adequate to
support a conclusion.” State v. Barden, 356 N.C. 316, 351, 572
S.E.2d 108, 131 (2002). The trial court must consider the
evidence in the light most favorable to the State and give the
State any reasonable inference that can be drawn therefrom.
State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).
A person is guilty of taking indecent liberties with a
minor, if
[B]eing 16 years of age or more and at least
5 years older than the child in question, he
either: (1) willfully takes or attempts to
take any immoral, improper, or indecent
liberties with any child of either sex under
the age of 16 years for the purposes of
arousing or gratifying sexual desire; or (2)
willfully commits or attempts to commit any
lewd or lascivious act upon or with the body
or any part or member of the body of any
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child of either sex under the age of 16
years.
N.C. Gen. Stat. § 14-202.1 (2013).
This case is comparable to State v. Mueller, 184 N.C. App.
553, 647 S.E.2d 440 (2007). In Mueller, the defendant was
indicted for thirty-three felonies and three misdemeanors based
on alleged sexual misconduct with his biological daughter and
his stepdaughter. Id. at 556, 647 S.E.2d at 444. Five of the
indictments were for the crime of taking indecent liberties with
a minor; to support one of these charges, the jury was
instructed, and the verdict sheet listed, the specific act of
the defendant asking the alleged victim to perform oral sex on
him. Id. at 557, n.1, 647 S.E.2d at 445. The jury found him
guilty for one count of taking indecent liberties with a minor
based on this factual theory. Id. On appeal, defendant argued
that the trial court erred by denying his motion to dismiss this
charge because the State did not produce substantial evidence
that the defendant in fact asked the alleged victim to perform
oral sex. Id. at 560, 647 S.E.2d at 446. The Court agreed;
even though the victim testified “at length” as to acts
supporting other charges, such as defendant placing his penis
between the victim’s thighs and ejaculating on her, the State
failed to produce substantial evidence that he asked her to
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perform oral sex. Id. at 561, 563, 647 S.E.2d at 447-48.
Because the trial court specified this act in its instruction
and the jury identified this fact as supporting the conviction
in its verdict sheet, the State was required to produce
substantial evidence of this act to survive a motion to dismiss.
Id. Thus, because it failed to do so, this Court reversed the
conviction and dismissed the charge.
Here, like in Mueller, the trial court specified facts
supporting the charges of taking indecent liberties with a minor
in its jury instructions, and those facts were included on the
verdict sheets. Thus, pursuant to Mueller, in order to overcome
defendant’s motion to dismiss, the State was required to produce
substantial evidence of the two factual theories upon which the
charges of taking indecent liberties with a minor were premised
– that defendant rubbed Jessica’s vagina and performed
analingus.
First, the State argues that it produced substantial
evidence that defendant performed analingus on Jessica. We
disagree. Analingus is defined as “the stimulation of the anal
opening by the tongue or lips.” State v. White, 101 N.C. App.
593, 606, 401 S.E.2d 106, 113 (1991). Jessica testified that
defendant “put[] his mouth on [her] butt” and “kissed” her
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“butt.” The State argues that, viewing the evidence in the
light most favorable to the State, this testimony constituted
substantial evidence that defendant performed analingus and was
corroborated by the video interview wherein Jessica told Ms.
Horner that defendant “started kissing [her privates] even
inside” and “then he did my butt.” However, the forensic
interview was admitted only to corroborate Jessica’s in-court
testimony and was not to be considered as substantive evidence.
Without more, we cannot conclude that Jessica’s testimony that
defendant “kissed” her “butt” amounted to substantial evidence
that “a reasonable mind might accept as adequate to support
[the] conclusion” that defendant stimulated Jessica’s anal
opening with his tongue or lips. Thus, we vacate defendant’s
conviction for taking indecent liberties with a minor premised
on analingus. See State v. Hunt, __ N.C. App. __, __, 728
S.E.2d 409, 415 (2012) (vacating a conviction for crime against
nature where evidence was insufficient to withstand the
defendant’s motion to dismiss).
Next, the State argues that it produced substantial
evidence that defendant rubbed Jessica’s vagina. Again, we
disagree. Jessica testified that defendant kissed and rubbed
her butt, put his mouth on her private part and butt, made
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Jessica rub his penis, and put his penis in her mouth. The only
evidence supporting the theory that defendant rubbed Jessica’s
vagina is in the forensic video, where Jessica said that
defendant rubbed her vagina with his finger and rubbed his
testicles on her “private.” Because the video was admitted for
corroborative and not substantive purposes, and because no
substantive evidence was admitted tending to show that defendant
rubbed Jessica’s vagina, we hold that the State failed to
produce substantial evidence to support this theory. Thus, we
vacate defendant’s conviction for taking indecent liberties with
a minor premised on rubbing Jessica’s vagina. See Hunt, __ N.C.
App. at __, 728 S.E.2d at 415.
Although it is clear that the State produced substantial
evidence of acts that would support a conviction of taking
indecent liberties with a minor generally, we are constrained by
Mueller to analyze defendant’s motion to dismiss in light of the
specific instructions provided by the trial court and the facts
specified in the verdict sheets. Because the State failed to
produce substantial evidence of those facts, we must vacate
defendant’s convictions for these charges. Further, because
these convictions were consolidated with two counts of statutory
sex offense for sentencing, we remand this matter to the trial
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court for resentencing. See State v. Wortham, 318 N.C. 669,
674, 351 S.E.2d 294, 297 (1987) (remanding for resentencing
where one or more but not all convictions consolidated for
judgment had been vacated on appeal).
IV. Jury Instructions
Defendant’s final argument is that the trial court
committed plain error when it instructed the jurors that they
could convict defendant of taking indecent liberties with a
minor based on the theories that defendant rubbed Jessica’s
vagina and performed analingus because they were not supported
by the evidence. Because we vacate the two convictions for
taking indecent liberties with a minor, we need not address this
issue on appeal.
Conclusion
We hold that the trial court did not err by admitting video
footage of the forensic interview into evidence because it was
admitted only for corroborative purposes and the trial court
gave a proper limiting instruction. Furthermore, the trial
court did not err by admitting Ms. McClure’s or Ms. Reynolds’s
testimony because neither statements rose to the level of
improper expert opinion. Finally, we vacate the convictions for
two counts of taking indecent liberties with a minor because the
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State failed to produce substantial evidence of the facts
supporting those charges, and we remand for resentencing.
NO ERROR IN PART; VACATED AND REMANDED IN PART.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).