State v. Shore , 255 N.C. App. 420 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1243
Filed: 5 September 2017
Mecklenburg County, Nos. 14 CRS 209708, 209712-15
STATE OF NORTH CAROLINA
v.
CHARLES AUGUSTUS SHORE, JR.
Appeal by defendant from judgments entered 26 April 2016 by Judge Stanley
L. Allen in Mecklenburg County Superior Court. Heard in the Court of Appeals
9 August 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Margaret A.
Force, for the State.
Hale Blau & Saad Attorneys at Law, P.C., by Daniel M. Blau, for defendant-
appellant.
ARROWOOD, Judge.
Charles Shore (“defendant”) appeals from judgments entered upon his
convictions for statutory sexual offense of a person thirteen, fourteen, or fifteen years
old, and for statutory rape of a person thirteen, fourteen, or fifteen years old. Based
on the reasons stated herein, we dismiss in part and find no error in part.
I. Background
On 31 March 2014, defendant was indicted on the following charges: four
counts of indecent liberties with a child in violation of N.C. Gen. Stat. § 14-202.1; one
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Opinion of the Court
count of statutory sexual offense of a person thirteen, fourteen, or fifteen years old in
violation of N.C. Gen. Stat. § 14-27.7A(a); and three counts of statutory rape of a
person thirteen, fourteen, or fifteen years old in violation of N.C. Gen. Stat. § 14-27A.
Defendant was tried at the 18 April 2016 criminal session of Mecklenburg
County Superior Court, the Honorable Stanley Allen presiding.
The State’s evidence tended to show that in 2012, H.M.1 began living with her
father. She was eleven years old at the time. H.M.’s father was living with Brandi
Coleman (“Brandi”) and defendant, who was Brandi’s boyfriend. H.M. testified that
after moving into the house, she spent time with defendant by jumping on the
trampoline, watching sports, fishing, watching television, and playing video games.
She described their relationship as “always friendly, really nice. Anything I ever
needed when my dad wasn’t around or Brandi wasn’t around, he always helped me.”
In the summer of 2013, defendant’s son moved into the house. H.M. shared a room
with defendant’s son and they became best friends.
In January 2014, after Brandi and defendant ended their relationship,
defendant and defendant’s son moved to a nearby apartment complex. H.M. testified
that she saw defendant and defendant’s son “all the time” after they moved,
frequently visiting their apartment to “hang out.” H.M. spent the night at their
apartment more than once and slept in defendant’s bed.
1 Initials are used throughout this opinion to protect the identity of the juvenile and for ease
of reading.
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H.M. testified that one night, she was sleeping in defendant’s bed when
defendant got into his pajamas and crawled into bed with her. They “cuddled up
together.” H.M. testified that defendant’s hands “slowly started to go down my side,”
defendant put his hands around the waistband of her pants, and then her shorts came
off. Defendant’s hands “entered” her underwear and defendant began touching
H.M.’s vagina. Defendant got on top of H.M. and kissed her neck. H.M. told
defendant that she was tired and defendant replied, “okay,” gave her a hug, and the
two fell asleep.
H.M. testified that she and defendant had vaginal intercourse on two
occasions. One incident occurred when she spent a few nights at defendant’s
apartment during the weekend of 14 February 2014. On one of those nights,
defendant and H.M. began kissing on the couch. They went into defendant’s bedroom
where defendant “crawled” on top of her, put his hand inside of her, and then put his
penis inside of her. The next morning, defendant gave her a pill which he instructed
her to take. The other occasion where defendant had sex with H.M. occurred in the
same way except that defendant did not give her a pill to take.
H.M.’s father testified that he would check H.M.’s cell phone on a regular basis.
On 22 February 2014, H.M.’s father was looking through H.M.’s cell phone when he
noticed text messages from defendant. The messages included “Good morning,
Baby[,] “Good morning, Beautiful[,]” and “Hello, Princess.” H.M.’s father became very
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angry and threw the cell phone on the ground and the screen broke. H.M.’s father
confronted H.M., asking if “anything ever happened between you and [defendant]”
and H.M. replied, “yes.” H.M.’s father proceeded to drive to defendant’s apartment.
While H.M.’s father was gone, Brandi spoke with H.M. During the
conversation, H.M. revealed that defendant had touched her in “her private areas”
and that she and defendant engaged in sex.
Defendant was not at his apartment when H.M.’s father arrived. H.M.’s father
called Brandi and she was able to convince him to return back to his house. At his
house, H.M.’s father directly asked H.M. if she and defendant had ever had sex and
H.M. replied, “yes, Dad[.]” H.M.’s father left his house again and went to defendant’s
apartment. Defendant was not home, so H.M. went to a nearby karate studio in
search of defendant. As H.M.’s father walked up to the karate studio, defendant was
walking out. H.M.’s father yelled, “you son of a b****, I’m here to kill you[.]”
Defendant ran back inside the studio and came back outside with twenty men to
protect him. H.M.’s father continued to scream at defendant, claiming that defendant
had raped his daughter.
H.M.’s father had called the police earlier and the police arrived on the scene.
Officer Thomas Gordon and Sergeant Grant Nelson, of the Matthews Police
Department, testified that on 22 February 2014, they responded to a call at Scott
Shields Martial Arts Academy. H.M.’s father informed the officers why he was angry
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and accused defendant of inappropriately touching H.M. Sergeant Nelson testified
defendant “knew what we were there [in] reference to.” After Sergeant Nelson
explained to defendant that he was not under arrest, defendant told him of two
different incidents that occurred with H.M. Defendant stated that one time, H.M.
had sat on defendant’s lap, grinding her bottom pelvic area into his pelvic area and
grabbing his crotch area. Defendant told her to stop, but she continued. On another
occasion, defendant was standing when H.M. approached him from behind and
grabbed his crotch. Defendant again told her to stop, but she continued to grab him.
H.M. then took defendant’s hand and placed it down her pants. Defendant left his
hand there for a minute and then pulled it out of her pants.
Kelli Wood (“Wood”) testified as an expert in clinical social work, specializing
in child sexual abuse cases. Wood testified that on 5 March 2014, she interviewed
H.M. at Pat’s Place Child Advocacy Center, a center providing services to children
and their families when there are concerns that a child may be a victim of
maltreatment or may have witnessed violence. A videotape of her interview was
played for the jury with a limiting instruction that it should be received for
corroborative purposes.
At the close of the State’s evidence, the State dismissed one count of indecent
liberties and one count of statutory rape.
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Defendant testified that his relationship with H.M. was “[p]retty good” and
they were like family. Defendant denied ever sitting on his couch and kissing H.M.
and denied ever sleeping in his bed with H.M. He also denied ever touching her
sexually with his hands, using his mouth to touch her private parts, or having sexual
intercourse with her. Defendant admitted that H.M. spent the night at his apartment
on 14 and 15 February 2014, but testified that H.M. slept on the lower bunk bed one
of the nights and slept on the couch the other night. He testified that on
15 February 2014, his girlfriend, Bridget Davenport, had spent the night with
defendant in his bedroom. Defendant testified that on 16 February 2014, he was
making lunch in the kitchen when H.M. walked up to him and grabbed his crotch.
He backed away and told her “no, no. Inappropriate.” H.M. giggled in response.
Defendant further testified that on the same day, he was sitting in a recliner when
H.M. sat on top of him. Defendant pushed H.M. off of him and told her that “it was
very inappropriate, she couldn’t do it, could not do that.”
On 26 April 2016, a jury found defendant guilty of three counts of taking
indecent liberties with a child, one count of statutory sexual offense of a person
thirteen, fourteen, or fifteen years old, and one count of statutory rape of a person
thirteen, fourteen, or fifteen years old. The jury acquitted defendant of one count of
statutory rape.
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Judgment was arrested as to the indecent liberties convictions. Defendant was
sentenced to a term of 144 to 233 months for the statutory rape conviction and to a
consecutive term of 144 to 233 months for the statutory sexual offense conviction.
Defendant was ordered to register as a sex offender upon release from
imprisonment. The trial court further ordered that the Department of Adult
Correction shall perform a risk assessment of defendant and will determine the need
for satellite-based monitoring (“SBM”).
Defendant gave oral notice of appeal in open court. Defendant also filed a
petition for writ of certiorari to this Court, since the sex offender registration and
SBM are civil in nature, and thus require written notice of appeal. N.C. R. App. P.
3(a) (2017); State v. Brooks, 204 N.C. App. 193, 195, 693 S.E.2d 204, 206 (2010). Our
Court granted defendant’s petition for writ of certiorari on 21 July 2017 and we
review the merits of his appeal.
II. Discussion
On appeal, defendant argues that: (A) the trial court erred by permitting the
State to introduce unreliable expert testimony, in violation of Rule 702 of the North
Carolina Rules of Evidence; (B) he received ineffective assistance of counsel where
his attorney elicited evidence of guilt that the State had not introduced; (C) the trial
court erred by failing to declare a mistrial sua sponte after a State’s witness engaged
in a “pattern of abusive and prejudicial behavior” during defendant’s trial; and (D)
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the trial court impermissibly expressed an opinion on the evidence by denying
defendant’s motion to dismiss in the presence of the jury, in violation of N.C. Gen.
Stat. § 15A-1222. We address each argument in turn.
A. Expert Testimony Under Rule 702
Defendant argues the trial court abused its discretion by allowing expert
witness Wood to testify that it is not uncommon for children to delay the disclosure
of sexual abuse and by allowing Wood to provide possible reasons for delayed
disclosures. Specifically, defendant contends that Wood’s testimony was unreliable
because it was neither “based upon sufficient facts or data[,]” nor “the product of
reliable principles and methods[,]” in violation of N.C. Gen. Stat. § 8C-1, Rule
702(a)(1)-(2). While acknowledging that our Court has previously allowed analogous
expert testimony, see State v. Carpenter, 147 N.C. App. 386, 556 S.E.2d 316 (2001),
appeal dismissed and disc. review denied, 355 N.C. 217, 560 S.E.2d 143, cert. denied,
536 U.S. 967, 153 L. Ed. 2d 851 (2002), he urges our Court to examine this issue in
light of the General Assembly’s 2011 amendment to Rule 702 of the North Carolina
Rules of Evidence and the specific facts of his case.
Our Court reviews a trial court’s admission of expert testimony pursuant to
N.C. Gen. Stat. § 8C-1, Rule 702(a) for an abuse of discretion. State v. Hunt, __ N.C.
App. __, __, 790 S.E.2d 874, 881, disc. review denied, __ N.C. __, 795 S.E.2d 206 (2016).
“A trial court may be reversed for abuse of discretion only upon a showing that its
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ruling was manifestly unsupported by reason and could not have been the result of a
reasoned decision.” State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986).
In State v. McGrady, 368 N.C. 880, 787 S.E.2d 1 (2016), our Supreme Court
confirmed that the most recent amendment of Rule 702 adopted the federal standard
for the admission of expert witness testimony articulated in the Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469 (1993), line of cases. See
McGrady, 368 N.C. at 884, 787 S.E.2d at 5. “By adopting virtually the same language
from the federal rule into the North Carolina rule, the General Assembly thus
adopted the meaning of the federal rule as well.” Id. at 888, 787 S.E.2d at 7-8.
Although Rule 702 was amended, our Supreme Court reasoned that “[o]ur previous
cases are still good law if they do not conflict with the Daubert standard.” Id. at 888,
787 S.E.2d at 8. While the amendment “did not change the basic structure of the
inquiry” under Rule 702(a), it “did change the level of rigor that our courts must use
to scrutinize expert testimony before admitting it.” Id. at 892, 787 S.E.2d at 10. “To
determine the proper application of North Carolina’s Rule 702(a), then, we must look
to the text of the rule, [the Daubert line of cases], and also to our existing precedents,
as long as those precedents do not conflict with the rule’s amended text or with
Daubert, Joiner, or Kumho.” Id. at 888, 787 S.E.2d at 8.
The text of Rule 702, in pertinent part, provides:
(a) If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence
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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,
or otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles
and methods.
(3) The witness has applied the principles and methods
reliably to the facts of the case.
N.C. Gen. Stat. § 8C-1, Rule 702(a) (2016).
The McGrady Court held that:
Rule 702(a) has three main parts, and expert testimony
must satisfy each to be admissible. First, the area of
proposed testimony must be based on “scientific, technical
or other specialized knowledge” that “will assist the trier of
fact to understand the evidence or to determine a fact in
issue.” This is the relevance inquiry[.]
....
Second, the witness must be “qualified as an expert by
knowledge, skill, experience, training, or education.” This
portion of the rule focuses on the witness’s competence to
testify as an expert in the field of his or her proposed
testimony. . . . Whatever the source of the witness’s
knowledge, the question remains the same: Does the
witness have enough expertise to be in a better position
than the trier of fact to have an opinion on the subject?
....
Third, the testimony must meet the three-pronged
reliability test that is new to the amended rule: (1) The
testimony [must be] based upon sufficient facts or data.
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(2) The testimony [must be] the product of reliable
principles and methods. (3) The witness [must have]
applied the principles and methods reliably to the facts of
the case. These three prongs together constitute the
reliability inquiry discussed in Daubert, Joiner, and
Kumho. The primary focus of the inquiry is on the
reliability of the witness’s principles and methodology, not
on the conclusions that they generate[.]
McGrady, 368 N.C. at 889-90, 787 S.E.2d at 8-9 (internal citations, footnote, and
quotation marks omitted).
In the present case, defendant does not dispute either Wood’s qualifications or
the relevance of her testimony. Defendant challenges the reliability of Wood’s
delayed disclosure testimony; whether her testimony met prongs (1) and (2) of the
three-pronged reliability test.
“The precise nature of the reliability inquiry will vary from case to case
depending on the nature of the proposed testimony. In each case, the trial court has
discretion in determining how to address the three prongs of the reliability test.” Id.
at 890, 787 S.E.2d at 9. Regarding factors a trial court may consider in its
determination of reliability, the McGrady Court explained as follows:
In the context of scientific testimony,
Daubert articulated five factors from a nonexhaustive list
that can have a bearing on reliability: (1) “whether a
theory or technique . . . can be (and has been) tested”; (2)
“whether the theory or technique has been subjected to
peer review and publication”; (3) the theory or technique’s
“known or potential rate of error”; (4) “the existence and
maintenance of standards controlling the technique’s
operation”; and (5) whether the theory or technique has
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achieved “general acceptance” in its field. Daubert, 509
U.S. at 593-94, 113 S.Ct. 2786. When a trial court
considers testimony based on “technical or other
specialized knowledge,” N.C. R. Evid. 702(a), it should
likewise focus on the reliability of that testimony, Kumho,
526 U.S. at 147-49, 119 S.Ct. 1167. The trial court should
consider the factors articulated in Daubert when “they are
reasonable measures of the reliability of expert testimony.”
Id. at 152. Those factors are part of a “flexible” inquiry,
Daubert, 509 U.S. at 594, 113 S.Ct. 2786, so they do not
form “a definitive checklist or test,” id. at 593, 113 S.Ct.
2786. And the trial court is free to consider other factors
that may help assess reliability given “the nature of the
issue, the expert’s particular expertise, and the subject of
his testimony.” Kumho, 526 U.S. at 150, 119 S.Ct. 1167.
The federal courts have articulated additional
reliability factors that may be helpful in certain cases,
including:
(1) Whether experts are proposing to testify about matters
growing naturally and directly out of research they
have conducted independent of the litigation, or
whether they have developed their opinions expressly
for purposes of testifying.
(2) Whether the expert has unjustifiably extrapolated from
an accepted premise to an unfounded conclusion.
(3) Whether the expert has adequately accounted for
obvious alternative explanations.
(4) Whether the expert is being as careful as he would be
in his regular professional work outside his paid
litigation consulting.
(5) Whether the field of expertise claimed by the expert is
known to reach reliable results for the type of opinion
the expert would give.
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Fed. R. Evid. 702 advisory committee’s note to 2000
amendment (citations and quotation marks omitted). In
some cases, one or more of the factors that we listed in
Howerton may be useful as well. See Howerton, 358 N.C.
at 460, 597 S.E.2d at 687 (listing four factors: use of
established techniques, expert’s professional background
in the field, use of visual aids to help the jury evaluate the
expert’s opinions, and independent research conducted by
the expert).
Id. at 890-91, 787 S.E.2d at 9-10.
At trial, Wood testified that she had a bachelor’s degree in sociology from
Georgia State University and a master of social work from Clark Atlanta University.
She had been a licensed clinical social worker for six years. Wood was working as
forensic interviewer at Pat’s Place Child Advocacy Center. Wood testified that a
forensic interview is a structured conversation with a child, allowing the child to be
able to communicate in their own words, about a personal experience or something
they had witnessed. She explained that the purpose of a forensic interview is to “elicit
those details, and those details are either to refute the allegations that something
may have happened to a child or a child may have witnessed something, or to support
those allegations.” She had approximately eleven years of forensic interviewing
experience and over 200 hours of training in the field of forensic interviews of children
suspected of being maltreated. Wood testified that she had obtained research-based
knowledge of sexually abused children by reading research studies concerning the
suggestibility of children, best types of questions to ask, how children develop and
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understand questions, and the process by which children provide disclosures. She
continued to update her research in order to ensure she was utilizing the best
practices. Wood testified that over her eleven years of experience, she had
interviewed over 1,200 children, with 90% of those interviews focusing on sexual
abuse allegations. She had also been qualified as an expert in child sexual abuse in
Georgia over twenty times and once in North Carolina.
The State tendered Wood as an expert in the field of clinical social work,
specializing in child sexual abuse and defendant objected. On voir dire, Wood
testified that she had not conducted research in the delayed reporting of sexual
assault cases by children, but had reviewed research on “delayed disclosures, reasons
for delayed disclosures, as well as concerns that delayed disclosures could be false
disclosures, and so I have reviewed on both sides of the concerns of delayed
disclosures.” When asked by defense counsel whether the claims of the research
participants were determined to be true or false, Wood explained that the research
she had reviewed were “already supposing that the participants are victims” and
“they are just going by what the participants are saying.” Wood testified that she
was forming opinions based on her observations through the thousand-plus
interviews she had conducted, as well as research she had reviewed. She estimated
that she had read over twenty articles on delayed disclosures.
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Ultimately, the trial court allowed Wood to testify as an expert in clinical social
work, specializing in child sexual abuse cases. However, the trial court prohibited
any testimony as to why, if at all, H.M. delayed in reporting the alleged abuse. The
trial court stated as follows:
THE COURT: Based on [] Miss Wood’s education, she’s a
licensed clinical social worker, and having done forensic
interviews of at least, approximately, over 1,200 children,
90 percent of those were focused on sexual abuse
allegations, the Court will allow her to testify as a licensed
clinical social worker with a specialization in child-sexual-
abuse cases. And – however, despite that, the state has
already said that they’re not going to try to elicit testimony,
and the Court will prohibit any testimony as to why, if at
all, [H.M.] delayed in reporting, if she did, in reporting any
potential inappropriate behavior, but just in general what
Miss Wood has observed from child abuse, I’m sorry, sexual
abuse from persons in the past.
I think, [defense counsel], almost the exact question
in State v. Dew, and then the quote: R.O says, however,
the appellate courts in this jurisdiction have consistently
allowed the admission of expert testimony, such as the
witness in that case, which relies upon personal
observations of professional experience rather than upon
quantitative analysis.
I think something like this would not be able to be,
as you indicated, from empirical data or empirical testing,
but I think that’s going to go to the weight rather than to
the admissibility so I’ll deny the motion to the extent that
she cannot testify as an expert, but I’ll allow it to the extent
that she cannot testify as to why anybody involved in this
case may have delayed reporting any inappropriate
behavior.
Wood later testified, amid objections from defendant, to the following:
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[THE STATE:] In your experience and in your survey of
the research, is it uncommon for a child to delay disclosure
of sexual abuse?
[WOOD:] No.
....
[WOOD:] No, it’s not.
[THE STATE:] What are some of the reasons that a child,
based on the research and experience, in general, may
delay disclosure?
....
[WOOD:] There are numerous reasons. Some of them are
due to fear: Fear of not being believed, fear of what others
are going to say about them, fear of what the disclosure will
do to the family, will it break the family up, fear that
something will happen to the alleged perpetrator, fear that
something will happen to the victim, fear that something
will happen to the other family members if there’s
retaliation. Then, also, blame and self-guilt that they
didn’t do something to stop it, that they didn’t run, that
they didn’t say something. Also, concern that if they tell,
what will happen to their family. If this is – if the alleged
perpetrator is a primary caregiver, will they have to begin
to look for a new residence, will their brothers or sisters not
be able to see their parent any further, and how will others
in the family – will the other family members blame them
for the destruction or the demise of the family; and so some
of those are the reasons that children do not tell
immediately.
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Wood further testified that she had personally heard children express the same
potential reasons for delayed disclosures that she had found in her research
throughout her experience in forensic interviewing.
Defendant cross-examined Wood about whether the studies on delayed
disclosures included false allegations of child sexual abuse. Wood replied that she
had examined “both research that deal with children who have identified a positive
disclosure and a negative disclosure, and they both do talk about delayed disclosures
that is found in – throughout the research.”
First, to be reliable, an expert’s testimony must be based upon sufficient facts
or data pursuant to Rule 702(a)(1). Defendant contends that Wood’s testimony was
unreliable because she had not conducted her own research and instead, relied on
studies conducted by others. Defendant is essentially arguing that the trial court
abused its discretion when it admitted Wood’s expert testimony which was based
upon her review of research on delayed disclosures, combined with professional
experience. Upon thorough review, we hold that this contention directly conflicts
with the meaning of Rule 702, the Daubert line of cases, and our existing precedent.
The Advisory Committee Notes to the federal rule state that subsection (a)(1)
of Rule 702 “calls for a quantitative rather than qualitative analysis. The amendment
requires that expert testimony be based on sufficient underlying ‘facts or data.’ The
term ‘data’ is intended to encompass the reliable opinions of other experts.” Fed. R.
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Evid. 702, Advisory Committee Notes on the 2000 Amendments; see Pope v. Bridge
Broom, Inc., 240 N.C. App. 365, 374, 770 S.E.2d 702, 710 (citations omitted) (stating
that the “requirement that expert opinions be supported by ‘sufficient facts or data’
means ‘that the expert considered sufficient data to employ the methodology[]’ ” and
that “experts may rely on data and other information supplied by third parties”), disc.
review denied, 368 N.C. 284, 775 S.E.2d 861 (2015). Moreover, the Advisory
Committee Notes provide as follows:
Nothing in this amendment is intended to suggest that
experience alone – or experience in conjunction with other
knowledge, skill, training or education – may not provide a
sufficient foundation for expert testimony. . . . In certain
fields, experience is the predominant, if not sole, basis for
a great deal of reliable expert testimony.
Fed. R. Evid. 702, Advisory Committee Notes on the 2000 Amendments. The Daubert
line of cases also stands for the proposition that “no one denies that an expert might
draw a conclusion from a set of observations based on extensive and specialized
experience.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156, 143 L. Ed. 2d 238,
255 (1999).
The principle that experience alone or experience combined with knowledge
and training is sufficient to establish a proper foundation for reliable expert
testimony is in line with our previous holding in Carpenter. In Carpenter, our Court
admitted analogous expert testimony under the prior version of Rule 702(a). The
defendant in Carpenter argued that the trial court erred by admitting expert witness
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testimony from a licensed clinical social worker that “delayed and incomplete
disclosures are not unusual in cases of child abuse[.]” Carpenter, 147 N.C. App. at
393, 556 S.E.2d at 321. The defendant asserted, inter alia, that the State had failed
to establish that there was any scientific foundation for this opinion testimony and
our Court rejected his argument. Id. Our Court reasoned as follows:
Though she did not specifically cite supporting texts,
articles, or data, [the expert witness] testified on voir dire
that she was basing her conclusions on literature, journal
articles, training, and her experience. Thus, a proper
foundation was established for her opinion testimony. In
her testimony, [the expert witness] explained general
characteristics of children who have been abused. [The
expert witness] testified that an abused child often delays
disclosing the abuse and offered various reasons an abused
child would continue to cooperate with an abuser. [The
expert witness] did not testify as to her opinion with
respect to [the victim’s] credibility.
Evidence similar to that offered by [the expert
witness] has been held admissible to assist the jury. See
State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988)
(finding expert testimony as to why a child would cooperate
with adult who had been sexually abusing child
admissible); State v. Richardson, 112 N.C. App. 58, 434
S.E.2d 657 (1993), disc. review denied, 335 N.C. 563, 441
S.E.2d 132 (1994) (concluding trial court did not err in
admitting testimony describing general symptoms and
characteristics of sexually abused children to explain the
victim’s behavior); State v. Bowman, 84 N.C. App. 238, 352
S.E.2d 437 (1987) (holding trial court was proper in
admitting a doctor’s testimony that a delay between the
occurrence of an incident of child sexual abuse and the
child’s revelation of the incident was the usual pattern of
conduct for victims of child sexual abuse). Thus, for the
foregoing reasons we hold that the trial court did not abuse
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its discretion in admitting [the expert witness’] testimony.
Id. at 394, 556 S.E.2d at 321-22.
We find the circumstances in Carpenter and the case sub judice to be
substantially similar. In Carpenter, our Court held that a proper foundation for the
expert witness’ testimony was established when the expert testified that her
testimony was based on literature, journal articles, training, and experience.
Likewise, Wood testified that her testimony on delayed disclosures was grounded in
her 200 hours of training, eleven years of forensic interviewing experience,
conducting over 1,200 forensic interviews with 90% of those focusing on sex abuse
allegations, and reviewing over twenty articles on delayed disclosures. Wood, like
the expert in Carpenter, testified about delayed disclosures in general terms and did
not express an opinion as to the alleged victim’s credibility. We hold that Carpenter
is still good law as it does not conflict with the reliability requirements of the Daubert
standard. See McGrady, 368 N.C. at 888, 787 S.E.2d at 8.
Based on the foregoing, Wood’s testimony on delayed disclosures was clearly
based upon facts or data sufficient to satisfy the first prong of Rule 702(a), and the
trial court did not abuse its discretion in admitting this testimony.
Second, an expert’s testimony must be the product of reliable principles and
methods pursuant to Rule 702(a)(2). Defendant argues that Wood’s testimony is not
reliable because the research she relied upon was flawed in the following ways: they
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Opinion of the Court
assumed participants were honest; they did not have any methods or protocols in
place to screen out participants who made false allegations; and because there was
no indication of how many participants might have lied, it was impossible to know
the “error rate.” Defendant also argues that when Wood provided a list of possible
reasons why an alleged victim might delay disclosure, she did not account for the
obvious alternative explanation that the abuse did not occur.
A careful review of the transcript establishes that these concerns were
addressed throughout the examination and cross-examination of Wood and that
Wood was able to provide detailed explanations for each.
During cross-examination by defense counsel on whether the research she had
reviewed eliminated delayed disclosures that were based on false allegations of child
sexual abuse, Wood testified, “I’ve looked at both research that deal with children
who have identified a positive disclosure and a negative disclosure, and they both do
talk about delayed disclosures that is found in – throughout the research.” As to
defendant’s argument that the research assumed participants were honest, Wood
explained that the research on delayed disclosures was not focused on making a
determination of whether the alleged sexual abuse had in fact occurred:
[WOOD:] . . . In the research they are – the researchers,
from my understanding, at least the research that I have
read, are not asking if it’s true or false; they’re taking from
the – their methodology, they’re asking, whether children
or adults, to become participants if they have been victims,
and so they’re already supposing that the participants are
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Opinion of the Court
victims.
Regarding defendant’s argument that there were no methods or protocols in
place to screen out participants making false allegations and thus, no way to obtain
an error rate, Wood explained that there was not an identifiable method to
ascertaining whether the participants were in fact sexually abused:
[DEFENSE COUNSEL:] Okay. So they’re supposing that
they’re victims but it’s not ascertained.
[WOOD:] It’s not. Based on the participants, the
participants are saying –
....
[DEFENSE COUNSEL:] Right. And so there’s no digging
down beneath the surface to see if those participants are
being truthful about being abused.
[WOOD:] You mean, like, are they making them take a lie
detector test?
[DEFENSE COUNSEL:] Or doing anything to find out if
they’re being truthful.
[WOOD:] I don’t know how else someone would find out
the truth about child sexual abuse.
[DEFENSE COUNSEL:] Exactly. So in these studies
there’s no way to know whether the participants who
delayed reporting delayed reporting of a false occurrence or
a true occurrence.
[WOOD:] Well, I guess they are just going by what the
participants are saying.
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Opinion of the Court
Wood’s clarification demonstrated that obtaining the “known or potential rate of
error” was not pertinent in assessing reliability based on the nature of delayed
disclosures. See McGrady, 368 N.C. at 890, 787 S.E.2d at 9 (stating that the “precise
nature of the reliability inquiry will vary from case to case depending on the nature
of the proposed testimony.”).
When asked by defense counsel if the research Wood reviewed involved a
scientific data or theory, Wood suggested that if one method would be the creation of
a control group, an ethical question would be raised in the context of delayed
disclosures: “it would be unethical to have a control group to abuse children and
uncontrol group to not abuse children.” She further explained that: “I think that the
theories that I have found is, is that they took populations that the researchers have
gathered in their research; and according to multiple research articles, some of those
same theories cross all the research, is similar.”
Lastly, in regards to defendant’s argument that Wood did not account for
alternative explanations of delayed disclosures, Wood’s testimony reflected that she
was identifying a non-exhaustive list of possible reasons:
[THE STATE:] [] What are some of the reasons that a
child, based on research and experience, in general, may
delay disclosure?
....
[WOOD:] There are numerous reasons. Some of them are
due to fear . . . . Then, also, blame and self-guilt . . . . Also,
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Opinion of the Court
concern that if they tell, what will happen to their
family. . . . and so some of those are the reasons that
children do not tell immediately.
(emphasis added).
In sum, defendant has failed to demonstrate that his arguments attacking the
principles and methods of Wood’s testimony were pertinent in assessing the
reliability of Wood’s testimony on delayed disclosures. See Kumho, 526 U.S. at 150,
143 L. Ed. 2d at 251-52 (stating that the Daubert factors “may or may not be pertinent
in assessing reliability, depending on the nature of the issue, the expert’s particular
expertise, and the subject of his [or her] testimony.”). Accordingly, we hold that
Wood’s testimony was the product of reliable principles and methods sufficient to
satisfy the second prong of Rule 702(a), and the trial court did not abuse its discretion
in admitting this testimony.
B. Ineffective Assistance of Counsel
In his second argument on appeal, defendant contends that he received
ineffective assistance of counsel (“IAC”) when his attorney elicited evidence of guilt
that the State had not introduced. Specifically, defendant argues that while the State
only elicited testimony from H.M. about one instance of sexual intercourse with
defendant, defense counsel asked H.M. a leading question implying that she had sex
with defendant on two occasions.
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Opinion of the Court
Defendant directs us to the following exchange that occurred during defense
counsel’s cross-examination of H.M.:
[DEFENSE COUNSEL:] So the first weekend that my
client, according to you, inappropriately touched you and
put his hands in your vagina and actually, you said, had
sexual intercourse with you, you didn’t tell your dad, did
you?
[H.M.:] No
....
[DEFENSE COUNSEL:] So how many times are you
saying that my client had actually put his penis inside of
you, how many different nights?
[H.M.:] Two times.
In the present case, the record is not sufficiently complete to determine
whether defendant’s IAC claim has merit. See State v. Fair, 354 N.C. 131, 166, 557
S.E.2d 500, 524 (2001) (“IAC claims brought on direct review will be decided on the
merits when the cold record reveals that no further investigation is required . . . .”).
“Trial counsel’s strategy and the reasons therefor are not readily apparent from the
record, and more information must be developed to determine if defendant’s claim
satisfies the Strickland test.” State v. Al-Bayyinah, 359 N.C. 741, 753, 616 S.E.2d
500, 509-10 (2005), cert. denied, 547 U.S. 1076, 164 L. Ed. 2d 528 (2006). Accordingly,
the claim is premature and we are obligated to dismiss it “without prejudice to the
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Opinion of the Court
defendant’s right to assert [it] during a subsequent MAR proceeding.” Fair, 354 N.C.
at 167, 557 S.E.2d at 525.
C. Mistrial
In his third argument, defendant contends that the trial court erred by failing
to declare a mistrial sua sponte after H.M.’s father engaged in a “pattern of abusive
and prejudicial behavior” during defendant’s trial.
Upon motion of a defendant or with his concurrence
the judge may declare a mistrial at any time during the
trial. The judge must declare a mistrial upon the
defendant’s motion if there occurs during the trial an error
or legal defect in the proceedings, or conduct inside or
outside the courtroom, resulting in substantial and
irreparable prejudice to the defendant’s case.
N.C. Gen. Stat. § 15A-1061 (2015). “It is well settled that a motion for a mistrial and
the determination of whether defendant’s case has been irreparably and substantially
prejudiced is within the trial court’s sound discretion.” State v. McNeill, 349 N.C.
634, 646, 509 S.E.2d 415, 422-23 (1998) (citation omitted), cert. denied, 528 U.S. 838,
145 L. Ed. 2d 87 (1999).
In the present case, defendant points to several instances of conduct by H.M.’s
father which he contends disrupted the “atmosphere of judicial calm” to which he was
entitled. The first instance occurred in October 2015 at defendant’s original court
date which was later rescheduled. The trial court judge had just informed the
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Opinion of the Court
audience to “maintain proper courtroom decorum at all times.” Thereafter, defense
counsel informed the trial court as follows:
[DEFENSE COUNSEL:] Your Honor, related to that, I
would ask the Court not just in the courtroom, but outside
the courtroom. This morning the alleged victim’s father in
a very loud voice made some derogatory comments to me
about my client.
And since we’re going to have jurors, prospective
jurors in that hallway during the course of jury selection
and the trial itself, I would ask the Court to instruct him
not to do that in the hallway because jurors are everywhere
in this courthouse.
The trial court judge responded by stating:
THE COURT: There is to be no contact; all right? And I
expect that from everyone. Look, this is a – court’s a place
where trials are tried in the courtroom and not in the
hallway. And I’m not going to have any type of
intimidation by anybody take place, a witness, a party, the
defendant, the victim. It’s just not going to happen.
And if it’s reported to me that it does occur, you have
been warned and I will deal with it appropriately; all right?
The second instance occurred in April 2016, prior to the commencement of jury
selection:
[DEFENSE COUNSEL:] Your Honor, one more thing.
This is a security matter for the courtroom staff. I’ve been
informed by [defendant] and his girlfriend, they are both
present in court today, both are inside the courtroom, that
[H.M.’s father] approached my client and said something to
the effect of – pardon my French – but f*** with my
daughter, I’m going to f*** with you then he was on the
phone standing close enough that his comments could be
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STATE V. SHORE
Opinion of the Court
heard on the phone saying if [H.M.’s] mother was still alive,
[defendant] would be dead, and, finally, that I’m going to
kill the motherf***er. So we had some of these issues six
months ago when we started this trial, and they’re popping
up again, and I’m very concerned about him sort of
threatening when they got here. And the police may be
made aware of this later when we finish with court, but I
just wanted the Court and staff to know about the security
concerns that I have with my client and others.
THE COURT: I appreciate you making the courtroom and
the court officers aware of that. All right.
Defendant also points to several occasions during H.M.’s father’s testimony where he
was “admonished” by the trial court:
THE COURT: If you know what [defense counsel is]
asking, answer. If you don’t, say you don’t know.
....
THE COURT: Listen to [defense counsel’s] question.
....
THE COURT: Sir, wait for the next question, please.
....
[DEFENSE COUNSEL:] So going back to the morning
that you discovered this on February 22nd, you speak to
police at the scene of the karate studio, and then it’s
another couple weeks before Detective Bridges follows up
and does anything?
[H.M.’S FATHER:] Yeah. That’s the good old Mecklenburg
County court system, sir.
THE COURT: Sir, if I have to keep admonishing you one
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Opinion of the Court
more time –
[H.M.’S FATHER:] I apologize.
THE COURT: I’m going to – don’t interrupt me. – about
answering these questions directly, I’m going [to] exclude
you from this trial and strike your testimony from the
record, and you’re going to be out in the hallway. Do you
understand me?
[H.M.’S FATHER:] Yes, sir.
THE COURT: All right. Let’s – I’m tired of this. Answer
the lawyers’ questions directly. Don’t throw in editorial
comments, don’t threaten the lawyers or anybody else in
this courtroom, and answer these questions, and let’s move
on with this. I’m sorry, [defense counsel.] Go ahead.
The record demonstrates that in each of these instances, defendant did not
request additional action by the trial court, defendant did not move for a mistrial,
and defendant did not object to the trial court’s method of handling the alleged
misconduct in the courtroom. Accordingly, defendant has not preserved this
argument for appellate review. See State v. McCall, 162 N.C. App. 64, 70, 589 S.E.2d
896, 900 (2004) (holding that the defendant failed to preserve for appellate review a
claim that the trial court erred by failing to declare a mistrial sua sponte after it had
been notified that individuals were making hand signals to the alleged victim, where
defense counsel did not request further action by the trial court, the transcript did
not indicate who was making the hand signals or what type of signals were given,
and the defendant did not move for a mistrial or object to the trial court’s handling of
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Opinion of the Court
the alleged disruption); N.C. R. App. P. 10(a)(1) (2017) (“In order to preserve an issue
for appellate review, a party must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the context.”).
D. Trial Court’s Ruling in Presence of Jury
In his final argument on appeal, defendant asserts that the trial court
impermissibly expressed an opinion on the evidence by denying defendant’s motion
to dismiss in the presence of the jury, in violation of N.C. Gen. Stat. § 15A-1222.
Specifically, defendant argues that because the trial court’s ruling was audible to the
jury, the exchange was a “focal point” of the jury’s short trip to the courtroom, and
the jury was not made aware of the difference in the standards of proof necessary to
survive a motion to dismiss as compared to obtaining a conviction, the trial court’s
ruling carried a substantial risk of prejudice. We are not convinced by defendant’s
arguments.
N.C. Gen. Stat. § 15A-1222 provides that “[t]he judge may not express during
any stage of the trial, any opinion in the presence of the jury on any question of fact
to be decided by the jury.” N.C. Gen. Stat. § 15A-1222 (2015).
We find the holding in State v. Welch, 65 N.C. App. 390, 308 S.E.2d 910 (1983),
to be controlling on this issue. The defendant in Welch argued that the trial court
expressed an opinion, in violation of N.C. Gen. Stat. § 15A-1222, by summarily
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Opinion of the Court
denying his motion to dismiss while in the presence of the jury. Id. at 393-94, 308
S.E.2d at 912. Our Court stated as follows:
The record, however, does not affirmatively disclose that
the ruling was in fact audible to the jurors. Defendant did
not seek to have the ruling made out of the presence of the
jury, nor did he object or move for mistrial on this account
at trial. Generally, ordinary rulings by the court in the
course of trial do not amount to an impermissible
expression of opinion. State v. Gooche, 58 N.C. App. 582,
586-87, 294 S.E.2d 13, 15-16, modified on other grounds,
307 N.C. 253, 297 S.E.2d 599 (1982). At most the ruling
here merely informed the jury that the evidence was
sufficient to allow it to decide the case. On this record no
prejudice to defendant appears.
Id. at 393-94, 308 S.E.2d at 912-13.
The circumstances found in Welch are analogous to those found in the present
case. At the close of the State’s evidence and outside the presence of the jury,
defendant made a motion to dismiss the remaining charges. The trial court denied
this motion. The next day, following the presentation of defendant’s evidence,
defendant renewed his motion to dismiss while the jury was present. Again, the trial
court denied his motion. Defendant did not seek to have the ruling made outside the
presence of the jury, he did not object, and he did not move for a mistrial on this
account. Accordingly, we hold that defendant’s argument is meritless.
DISMISSED IN PART; NO ERROR IN PART.
Judges ELMORE and DIETZ concur.
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