State v. Walton ( 2014 )

NO. COA14-402
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Johnston County
No. 11CRS052914
MALIK JAQUEZ WALTON,
Defendant.
Appeal by defendant from judgments entered 10 July 2013 and
30 July 2013 by Judge Thomas H. Lock in Superior Court, Johnston
County. Heard in the Court of Appeals 9 September 2014.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General William V. Conley, for the State.
Mark Montgomery, for defendant-appellant.
STROUD, Judge.
Defendant appeals judgments convicting him of first degree
sexual offense and second degree kidnapping. For the following
reasons, we find no error.
I. Background
The State’s evidence tended to show that in May of 2011,
Stacy1 was in a bedroom with defendant and her fifteen-month old
son. Defendant was the father of Stacy’s son. Defendant
1
A pseudonym will be used to protect the identity of those
involved.
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slapped Stacy and began repeatedly choking her and threatened to
kill her as he held a knife to her neck. Defendant then put
both his fingers and his penis in Stacy’s vagina and her anus.
Defendant was indicted for second degree rape, first degree
kidnapping, and first degree sexual offense. Defendant was
tried by a jury, and the jury found him guilty of second degree
kidnapping and first degree sexual offense. The trial court
entered judgments accordingly. Defendant appeals.
II. Medical History Testimony
Defendant first contends that “the trial court committed
plain error in allowing two medical witnesses to testify that
[Stacy]’s history was consistent with sexual assault.”
(Original in all caps.) Defendant argues that “Emergency Room
Nurse Tonia Nowak testified that [Stacy]’s injuries were
consistent with her history. . . . Emergency Room Physician Dr.
Brendan Berry testified that [Stacy]’s demeanor, history and
examination, was ‘consistent with the sexual assault that she
described.’ . . . This was reversible error.” As defendant did
not object to the testimony, he now asks that we review his
contentions for plain error. See State v. Harding, 110 N.C. App.
155, 161, 429 S.E.2d 416, 420 (1993) (“Due to defendant’s
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failure to object at trial, we must review this objection under
the plain error rule.”)
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
affects the fairness, integrity or public
reputation of judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(citations, quotation marks, and brackets omitted). Furthermore,
our Supreme Court has established that “[a] prerequisite to our
engaging in a plain error analysis is the determination that the
instruction complained of constitutes error at all.” State v.
Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, (quotation marks
omitted), cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986).
Here, both Nurse Nowak and Dr. Berry testified as expert
witnesses. “An expert witness may not testify as to the
credibility of a witness. Nonetheless, an expert witness may
testify, upon a proper foundation, as to . . . whether a
particular complainant has symptoms or characteristics
consistent therewith.” State v. Khouri, 214 N.C. App. 389, 401,
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716 S.E.2d 1, 9-10 (2011) (citations and quotation marks
omitted), disc. review denied, 365 N.C. 546, 742 S.E.2d 176
(2012). Here, even by defendant’s own summary in his brief, the
expert witnesses testified that the physical evidence they
observed was consistent with Stacy’s allegations of abuse; the
witnesses did not state that Stacy’s allegations were credible.
Defendant directs this Court to State v. Frady, but in that case
the testifying witness had not examined the individual alleging
sexual abuse, but here both Dr. Brown and Nurse Nowak examined
Stacy and testified regarding the examination; accordingly,
Frady is not applicable. See State v. Frady, ___ N.C. App. ___,
___, 747 S.E.2d 164, 167 (“It is well settled that expert
opinion testimony is not admissible to establish the credibility
of the victim as a witness. However, those cases in which the
disputed testimony concerns the credibility of a witness’s
accusation of a defendant must be distinguished from cases in
which the expert’s testimony relates to a diagnosis based on the
expert’s examination of the witness. With respect to expert
testimony in child sexual abuse prosecutions, our Supreme Court
has approved, upon a proper foundation, the admission of expert
testimony with respect to the characteristics of sexually abused
children and whether the particular complainant has symptoms
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consistent with those characteristics. In order for an expert
medical witness to render an opinion that a child has, in fact,
been sexually abused, the State must establish a proper
foundation, i.e. physical evidence consistent with sexual
abuse.” (citations, quotation marks, and brackets omitted)),
disc. review denied, 367 N.C. 273, 752 S.E.2d 465 (2013). This
argument is overruled.
III. Trial Court’s Instructions
Defendant next contends that “the trial court erred or
committed plain error in identifying . . . [Stacy] as a
‘victim.’” (Original in all caps.) Defendant did not object to
the jury instructions, so we review for plain error. See
Harding, 110 N.C. App. at 161, 429 S.E.2d at 420. This Court has
previously determined that use of the word ‘victim’ by the trial
court is generally not plain error, see State v. Surratt, 218
N.C. App. 308, 309-10, 721 S.E.2d 255, 256, disc. review denied,
365 N.C. 559, 722 S.E.2d 600 (2012). We agree that in a case
where there is a jury question as to whether an act is actually
a criminal offense or as to whether the alleged act actually
happened to the complaining witness, there is technically a
question of whether there was a “victim.” See State v. Walston,
___ N.C. App. ___, ___, 747 S.E.2d 720, 727 (2013) (“The issue
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of whether sexual offenses occurred and whether E.C. and J.C.
were ‘victims’ were issues of fact for the jury to decide.”),
disc. review denied, 367 N.C. 290, 753 S.E.2d 666 (2014).
Black’s Law Dictionary defines “victim” as “[a] person harmed by
a crime, tort, or other wrong.” Black’s Law Dictionary 1703
(9th ed. 2009). So use of the word “victim,” both in denotation
and connotation, means that the complaining witness was “harmed
by a crime, tort, or other wrong.” Id.
But in this case, defendant did not object to use of the
term “victim.” Stacy testified that defendant choked her,
threatened to kill her as he held a knife to her neck, and then
inserted both his fingers and penis into her vagina and anus.
In addition, the physical evidence of Stacy’s injuries
corroborated her testimony. We cannot determine that the jury
might reasonably have reached a different verdict if the
reference to “victim” in the jury instructions had not occurred,
so we do not find plain error. See Lawrence, 365 N.C. at 518,
723 S.E.2d at 334.
IV. Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judges MCGEE and BRYANT concur.