State v. Taylor ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-988
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Catawba County
No. 11 CRS 5731
WILLARD MARSHALL TAYLOR, JR.
Appeal by defendant from judgment entered 7 March 2013 by
Judge Timothy S. Kincaid in Catawba County Superior Court.
Heard in the Court of Appeals 19 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Jill A. Bryan, for the State.
Dianne Jones McVay, for defendant-appellant.
HUNTER, Robert C., Judge.
Defendant Willard Marshall Taylor, Jr. appeals the judgment
entered after a jury found him guilty of one count of taking
indecent liberties with a child. On appeal, defendant argues
that: (1) the trial court committed plain error when it allowed
a physician’s assistant and an investigator for Child Protective
Services to testify about statements made to them by the
victim’s mother, (2) the trial court committed plain error by
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allowing a State’s witness to vouch for the victim’s
credibility, and (3) the trial court erred when it denied
defendant’s motion to dismiss for insufficiency of the evidence.
After careful review, we find no error.
Background
On 1 August 2011, defendant was indicted in Catawba County
on one count of taking indecent liberties with his
granddaughter, M.T. The offense was alleged to have occurred
between 1 November and 31 December 2010 when M.T. was five years
old.
The State’s evidence at trial tended to establish the
following: M.T.’s parents, Brad—defendant’s son—and Cara,1 were
separated and living apart in October 2009. At the time of the
alleged abuse, Brad resided with defendant. Although M.T.
continued to reside with Cara, an informal custody agreement
provided that Brad would keep M.T. every other weekend.
Sometime around the end of 2010 and the beginning of 2011,
after a weekend visit with Brad, Cara first became concerned
about M.T.’s behavior after M.T. refused to allow her in the
bathroom to help her shower or dry off. Cara also claimed that
M.T. began “humping” a stuffed animal. M.T. allegedly told Cara
that her vaginal area hurt and burned. After one weekend visit,
1
For purposes of this opinion, to protect the identity of the
minor child, we have used initials and pseudonyms for the victim
and her parents.
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Cara examined M.T. and saw vaginal discharge; M.T.’s vagina also
appeared “really red.” When Cara asked M.T. what happened, M.T.
responded that defendant put his finger in her “rose.” M.T.
referred to her genital area as her “rose.”
On 4 February 2011, Cara took M.T. to Gary Poston
(“Poston”), a physician’s assistant at a local medical clinic.
Poston testified that Cara told him that M.T. accused her
grandfather of putting his finger in her vagina. After learning
of the possibility of sexual abuse, Poston declined to examine
M.T.; instead, he referred Cara to the Department of Social
Services (“DSS”) for follow-up as he had been trained to do in
alleged sexual abuse situations.
After leaving the clinic, Cara took M.T. directly to the
Newton Police Department where she met with Child Protective
Services’ investigators Thomas Neff (“Neff”) and Brian Cloninger
(“Cloninger”). Cara told them what M.T. claimed defendant had
done. Neff and Cloninger arranged an interview and medical exam
for M.T. at the Children’s Advocacy Protection Center (“CAPC”).
On 9 February 2011 at CAPC, Beth Osbahr (“Osbahr”), a
pediatric nurse practitioner, performed the medical exam and
examined M.T. for signs of sexual abuse. Osbahr testified that
she did not observe any physical evidence of sexual abuse during
M.T.’s examination, but the time-frame between the alleged abuse
and examination would make it unlikely to find physical
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evidence. After the medical exam, Neff, a trained forensic
interviewer, performed a recorded interview with M.T.; no one
else was in the room with them. During the interview, M.T.
claimed that defendant had touched her vagina while she was at
defendant’s home. A recording of that interview was played to
the jury at trial.
Following the CAPC interview and examination, Brad sought
an additional interview of M.T. in his presence, which was later
conducted by Adrienne Opdyke (“Opdyke”). This later interview
was conducted at the District Attorney’s office with M.T., Brad,
Opdyke, and the district attorney present. At trial, Opdyke
testified as an expert witness in the field of forensic
interviewing. She testified that M.T. told her that defendant
touched her “rose” in the bathroom of his home. Opdyke also
testified as to the proper method of conducting a forensic
interview with a child.
At trial, the following witnesses testified on defendant’s
behalf: his two sons, Brad and Justin; defendant’s wife, Rhonda;
and defendant himself. All four defense witnesses testified
that after Neff’s interview with M.T., each questioned M.T.
about the alleged sexual abuse even though Neff had instructed
them not to. All four defense witnesses claimed that M.T.
denied that defendant touched her; instead, M.T. alleged that
Cara told her to say that she had been touched. Brad recorded
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one of these conversations he had with M.T. where she claimed
that “Peepaw didn’t touch” her. A transcript of the recording
was admitted into evidence at trial. On rebuttal, Opdyke
testified that she had concerns about Brad’s recording of his
interview with M.T. In her opinion, Opdyke claimed that several
of his questions were ambiguous and confusing.
On 7 March 2013, a jury found defendant guilty on one count
of taking indecent liberties with a child. Defendant was
sentenced to a minimum of 13 months and a maximum of 16 months
imprisonment. The trial court suspended the sentence, and
defendant was placed on supervised probation for 36 months.
Defendant gave notice of appeal in open court.
Discussion
A. Hearsay
Defendant first argues the trial court committed plain
error by admitting testimony that constituted inadmissible
hearsay. Specifically, defendant contends that Poston’s and
Neff’s testimony concerning statements Cara made to them about
what M.T. had told her constituted double hearsay. We disagree.
Defendant did not object at trial to the admission of
Poston’s or Neff’s testimony; thus, the trial court’s admission
of their statements is reviewed for plain error, State v.
Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “For
error to constitute plain error, a defendant must demonstrate
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that a fundamental error occurred at trial. To show that an
error was fundamental, a defendant must establish . . . the
error had a probable impact on the jury’s finding that the
defendant was guilty.” Id. (citations and quotations 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.” State v.
Stanley, 213 N.C. App. 545, 552, 713 S.E.2d 196, 201 (2011).
When evidence of such statements by one
other than the witness testifying is offered
for a proper purpose other than to prove the
truth of the matter asserted, it is not
hearsay and is admissible. Specifically,
statements of one person to another are
admissible to explain the subsequent conduct
of the person to whom the statement was
made.
State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990)
(internal citations and quotation marks omitted).
Defendant challenges the testimony of Poston and Neff
concerning statements Cara made to them about things M.T. had
told her. Specifically, defendant claims that Poston’s
testimony that Cara told him that M.T. told her “pawpaw had
touched her in the vaginal area and rubbed her very hard” and
Neff’s testimony that Cara told him that M.T. claimed that
defendant “had touched [M.T.] in a private part” constituted
inadmissible double hearsay. However, neither Cara’s out-of-
court statements to them nor M.T.’s out-of-court statements to
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Cara constituted hearsay because neither were offered at trial
as substantive truth that defendant had touched M.T. Instead,
these statements were offered for a purpose other than asserting
the truth of the matter asserted; they were used to explain
subsequent actions by Poston and Neff. Specifically, these
statements explained why Poston referred Cara to DSS and why
Neff initiated an investigation into the alleged abuse.
Therefore, since neither Poston’s nor Neff’s testimony was
offered to prove the truth of the matter asserted, the out-of-
court statements by M.T. and her mother were not hearsay, and
the trial court did not err, much less commit plain error, in
admitting Poston’s and Neff’s testimony.
B. Opdyke’s Testimony Regarding M.T.’s Credibility
Defendant next argues the trial court committed plain error
when it allowed the State’s expert witness to vouch for M.T.’s
credibility. We disagree.
“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.” State v. Green, 209
N.C. App. 669, 675-76, 707 S.E.2d 715, 720 (2011); N.C. R. Evid.
702(a). However, “[i]t is fundamental to a fair trial that the
credibility of the witnesses be determined by the jury . . .
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[and thus] an expert’s opinion to the effect that a witness is
credible, believable, or truthful is inadmissible.” State v.
Boyd, 200 N.C. App. 97, 103, 682 S.E.2d 463, 468 (2009) (quoting
State v. Hannon, 118 N.C. App. 448, 451, 455 S.E.2d 494, 496
(1995)).
Defendant argues his case is similar to State v. Giddens,
199 N.C. App. 115, 121-22, 681 S.E.2d 504, 508 (2009), where
this Court held that the trial court committed prejudicial error
when the State’s witness, a DSS investigator, testified that her
investigation “substantiated” that the defendant had committed
the crime. See also State v. Couser, 163 N.C. App. 727, 730-31,
594 S.E.2d 420, 422-23 (2004) (holding that the trial court
committed prejudicial error when the expert witness testified
after speaking with the child that the child was “probably
sexually abused”); State v. Ryan, __ N.C. App. __, __, 734
S.E.2d 598, 604 (2012) (concluding the trial court committed
prejudicial error by allowing the expert witness to testify that
“she was not concerned that the child was ‘giving a fictitious
story’”). Defendant contends Opdyke substantiated M.T.’s
testimony through her description of her forensic interview with
M.T. and her analysis of Brad’s recorded interview with M.T.
However, unlike Giddens where the DSS investigator actually
said she “substantiated” that defendant was guilty, 199 N.C.
App. at 121-22, 681 S.E.2d at 508, or other cases where an
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expert testifies as to the credibility of the victim, Opdyke
never provided her expert opinion that M.T. had been truthful
during their interview. Opdyke testified as follows:
Q: What is the goal of the forensic
interview?
A: To allow the child to talk about an
event, if it happened, in their own words
without leading. And it has to be
developmentally correct, so I’m going to the
use terms and words that a six-year-old may
use.
Q: What efforts are made to try to get the
truth from the child?
A: Just by asking the open-ended
questions, real open questions. You know,
the best is when a child tells you the
narrative form where you’re not asking this
-- you know, asking specific questions but
open questions, Tell me what happened or
tell me more about that, and then it comes
directly from the child.
Q: Now, specifically about the interview
you did with [M.T.]. Please describe what
you remember of the interview and what you
did and, of course, what the child told you.
A: Okay . . . I asked her to tell me about
the event that happened with her pawpaw. And
she told me about pawpaw touching her rose
and happening in the bathroom.
Opdyke never testified as to her opinion of M.T.’s truthfulness
or credibility; instead, she testified as to how she conducted
her interview and what M.T. told her. Thus, her testimony does
not constitute the type of victim substantiation found in
Giddens, Couser, or Ryan. Accordingly, the trial court did not
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err, much less commit plain error, in allowing her testimony
into evidence.
C. Motion to Dismiss
Next, defendant argues the trial court erred by denying his
motion to dismiss for insufficiency of the evidence.
Specifically, defendant contends that the State did not present
sufficient evidence that defendant touched M.T. for the purpose
of arousing and gratifying his sexual desires. We disagree.
“The denial of a motion to dismiss for insufficient
evidence is a question of law, which this Court reviews de
novo.” State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615,
621 (2007) (citations omitted). A motion to dismiss is reviewed
for “whether the State presented substantial evidence of each
element of the offense and defendant’s being the perpetrator.”
State v. Hernandez, 188 N.C. App. 193, 196, 655 S.E.2d 426, 429
(2008) (quotations omitted).
Here, defendant was charged with taking indecent liberties
with a child in violation of N.C. Gen. Stat. § 14-202.1. The
essential elements required for conviction under N.C. Gen. Stat.
§ 14-202.1 are:
(1) the defendant was at least 16 years of
age; (2) he was five years older than his
victim; (3) he willfully took or attempted
to take an indecent liberty with the victim;
(4) the victim was under 16 years of age at
the time the alleged act or attempted act
occurred; and (5) the action by the
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defendant was for the purpose of arousing or
gratifying sexual desire.
State v. Thaggard, 168 N.C. App. 263, 282, 608 S.E.2d 774, 786-
87 (2005); N.C. Gen. Stat. § 14-202.1 (2011).
Defendant only challenges the third and fifth elements on
appeal. First, defendant argues that the State did not present
substantial evidence that he willfully took an indecent liberty
with M.T. This Court has continuously held that “[t]he
uncorroborated testimony of the victim is sufficient to convict
under N.C.G.S. § 14-202.1 if the testimony establishes all of
the elements of the offense.” State v. McClary, 198 N.C. App.
169, 175, 679 S.E.2d 414, 419 (2009) (quoting State v. Quarg,
334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993)). During defendant’s
trial, M.T. testified that defendant pulled down her pants and
put his finger in her vagina while M.T. was visiting defendant’s
home. Moreover, the State provided additional witness testimony
that corroborated M.T.’s allegations. Thus, the State presented
substantial evidence that defendant willfully took an indecent
liberty with M.T.
Next, defendant argues the State failed to present
substantial evidence that his actions were for the purpose of
sexual arousal or gratification. “The requirement that
defendant’s actions were for the purpose of arousing or
gratifying sexual desire may be inferred from the evidence of
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the defendant’s actions.” McClary, 198 N.C. App. at 174, 679
S.E.2d at 419 (holding an inference of sexual gratification was
not in error when defendant only sent the victim letters but
never had sexual intercourse with the victim). Here, M.T.
testified that defendant actually carried out the sexual act of
inserting his finger into M.T.’s vagina. Such evidence was
sufficient to permit the jury to infer that defendant’s purpose
in doing so was to arouse himself or to gratify his sexual
desire. See generally State v. Rogers, 109 N.C. App. 491, 505-
06, 428 S.E.2d 220, 228-29 (1993) (holding the evidence that the
defendant touched the victim’s chest and vaginal area was
sufficient to permit the jury to infer that the defendant’s
purpose in doing so was to arouse himself or to gratify his
sexual desire).
Conclusion
Based on the foregoing reasons, defendant’s trial was free
from error.
NO ERROR.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).