State v. Davis , 265 N.C. App. 512 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1017
Filed: 21 May 2019
Orange County, No. 16CRS000065
STATE OF NORTH CAROLINA
v.
TYRONE CHURELL DAVIS, Defendant.
Appeal by Defendant from judgment entered 9 August 2017 by Judge Rebecca
W. Holt in Orange County Superior Court. Heard in the Court of Appeals 27 March
2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Tamara
S. Zmuda, for the State.
Mark Montgomery for the Defendant.
DILLON, Judge.
Defendant Tyrone Churell Davis appeals from a judgment finding him guilty
of second degree rape and sexual battery.
On appeal, Defendant argues that he is entitled to a new trial based on portions
of the jury charge and based on inadmissible testimony offered by one of the State’s
witnesses; namely, the nurse who examined Emma1 and who was qualified as a
“sexual assault nurse examiner” expert.
1 A pseudonym is used to protect the individual’s identity.
STATE V. DAVIS
Opinion of the Court
I. Background
Defendant was indicted and tried for two counts of second degree rape and one
count of sexual battery against Emma.
The State’s evidence showed as follows. On the night in question Emma and a
friend went out drinking and then decided to go to Defendant’s residence to purchase
cocaine. While there, they snorted cocaine. Emma then fell asleep on a bed, fully
clothed. Defendant and Emma’s friend went back out. But at some point, Defendant
returned to his residence by himself, where Emma was still asleep. Sometime later,
early in the morning, Emma woke up with Defendant on top of her having sexual
intercourse with her. Emma pushed Defendant off of her. She heard her friend
knocking on the door. She opened the door and told her friend that she had been
raped by Defendant. They called the police.
The only direct evidence of the rape itself offered by the State was Emma’s
testimony. The State also called Emma’s friend; an emergency room physician and a
nurse who treated Emma; and members of the police who were on duty early that
morning. The physician testified that she did not perform a forensic exam of Emma,
stating that she felt Emma was not sober enough to consent to an exam.
The nurse testified that she was able to physically examine Emma and
question Emma, though Emma still smelled of alcohol and was sleepy. The nurse
testified that her exam of Emma’s pelvis was normal.
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Opinion of the Court
Defendant testified on his own behalf. He did not deny his sexual encounter
with Emma, but he claimed that the encounter was consensual.
The jury found Defendant guilty as charged. Judgment was arrested on one
count of second degree rape. Defendant was sentenced in the presumptive range for
the remaining charges.
Defendant gave notice of appeal in open court.
II. Analysis
Defendant makes two arguments on appeal. Defendant first argues that the
trial court erred in referring to Emma as “the victim” during its jury instructions.
Next, Defendant contends that the State’s expert witness, the nurse who examined
Emma, impermissibly vouched for Emma’s credibility. We address each argument in
turn.
We note that Defendant failed to object to these alleged errors at trial and,
therefore, failed to preserve his arguments on appeal. Thus, we review Defendant’s
arguments for plain error. State v. Bagley, 321 N.C. 201, 211, 362 S.E.2d 244, 250
(1987). “Under the plain error rule, defendant must convince this Court not only that
there was error, but that absent the error, the jury probably would have reached a
different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
A. Trial Court’s Labeling of Emma as “the Victim”
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STATE V. DAVIS
Opinion of the Court
Defendant argues that the trial court erroneously expressed a judicial opinion
by referring to Emma as “the victim” during its charge to the jury. We disagree.
Defendant argues on appeal that the use of the term “the victim” in the jury
instructions amounted to expression of a judicial opinion. An expression of judicial
opinion is a statutory violation, and a “defendant's failure to object to alleged
expressions of opinion by the trial court in violation of [a] statute[] does not preclude
his raising the issue on appeal.” State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97
(1989). However, “where our courts have repeatedly stated that the use of the word
‘victim’ in jury instructions is not an expression of opinion,” and the Defendant points
to no other alleged instances of expression of judicial opinion, this issue is
unpreserved. State v. Phillips, 227 N.C. App. 416, 420, 742 S.E.2d 338, 341 (2013).
Therefore, we review for plain error.
It is well settled that when a “judge properly place[s] the burden of proof on
the State[,]” referring to the complaining witness as “the victim” does not constitute
plain error. State v. McCarroll, 336 N.C. 559, 566, 445 S.E.2d 18, 22 (1994); see State
v. Henderson, 155 N.C. App. 719, 722, 574 S.E.2d 700, 703 (2003) (“[I]t is clear from
case law that the use of the term ‘victim’ in reference to prosecuting witnesses does
not constitute plain error when used in instructions[.]”). However, our Supreme
Court has stressed that “when the State offers no physical evidence of injury to the
complaining witnesses and no corroborating eyewitness testimony, the best practice
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STATE V. DAVIS
Opinion of the Court
would be for the trial court to modify the pattern jury instructions at defendant's
request to use the phrase ‘alleged victim’ or ‘prosecuting witness’ instead of ‘victim.’ ”
State v. Walston, 367 N.C. 721, 732, 766 S.E.2d 312, 319 (2014) (emphasis added).
Here, it may have been the best practice for the trial court to “use the phrase
‘alleged victim’ or ‘prosecuting witness’ instead of victim’ ” during its charge to the
jury. Id. However, a review of the trial transcript reveals that Defendant did not
request such a change. Id. Moreover, the trial court properly placed the burden of
proof on the State. See McCarroll, 336 N.C. at 566, 445 S.E.2d at 22. Thus, we
conclude that it was not plain error for the trial court to refer to Emma as “the victim”
in its jury instructions.
B. Expert Vouching for Credibility of Complaining Witness
Defendant also contends that the State’s expert witness impermissibly
vouched for Emma’s credibility. As Defendant did not object to the expert’s testimony
at trial, we also review this argument for plain error. Bagley, 321 N.C. at 211, 362
S.E.2d at 250.
It is well settled that an expert may not opine as to the credibility of a witness.
State v. Heath, 316 N.C. 337, 342, 341 S.E.2d 565, 568 (1986). For instance, an
expert’s testimony that a witness was in fact abused, absent physical evidence of said
abuse, is inadmissible. State v. Grover, 142 N.C. App 411, 417, 543 S.E.2d 179, 183,
aff’d 354 N.C. 354, 553 S.E.2d 679 (2001). However, an expert may testify that an
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Opinion of the Court
alleged victim’s physical injuries are consistent with the victim’s testimony. See State
v. Aguallo, 322 N.C. 818, 822, 370 S.E.2d 676, 678 (1988) (finding testimony that
physical evidence was consistent with the alleged assault “vastly different from an
expert stating on examination that the victim is ‘believable’ or ‘is not lying.’ ”).
Indeed, “otherwise admissible expert testimony is not rendered inadmissible merely
because it enhances a witness’s credibility.” In re Butts, 157 N.C. App. 609, 617, 582
S.E.2d 279, 285 (2003) (citing State v. Dick, 126 N.C. App. 312, 315, 485 S.E.2d 88,
89 (1997) (“testimony based on the witness’s examination of the child witness and
expert knowledge . . . is not objectionable because it supports the credibility of the
witness[.]”)).
In the present case, the State’s expert was a nurse who had interviewed and
examined Emma. During her examination of Emma, Emma did not act distraught
and she denied counseling. Further, the nurse testified that Emma showed no
physical signs of penetration or other sexual contact. On re-direct, the expert testified
that the lack of physical indicators was still consistent with someone who had been
sexually assaulted, testifying as follows:
STATE: Now, in your training and experience, was this a
consistent – was – was her exam consistent with people
reporting of sexual abuse?
EXPERT: Yes.
STATE: Okay. And [defense counsel] had asked you about
the previous – different times you had actually examined
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STATE V. DAVIS
Opinion of the Court
other people in your training and experience, that they had
had some physical findings; correct?
EXPERT: Correct.
STATE: But you just told us that her exam was consistent
with someone reporting a sexual assault; correct?
EXPERT: Correct.
STATE: Can you explain that.
EXPERT: Some patients who have been assaulted may not
have physical findings or there may not be physical
evidence to suggest an assault took place. Sometimes it –
there could be physical findings and sometimes there is
not.
STATE: Okay. In – in the times that you have been doing
this, for the years you have been doing this, how many
times have people come in with physical – actual physical
– cuts, abrasions, all of that, that report this kind of
complaint?
EXPERT: I can’t really give a number, but it’s less than
those that do not have physical findings.
STATE: So most that come that report being sexually
assaulted, especially in the manner that she talked
about . . . don’t present with physical findings like you are
talking about?
EXPERT: That’s correct.
STATE: And that’s why this is consistent; is that right?
EXPERT: That’s correct.
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STATE V. DAVIS
Opinion of the Court
Defendant takes issue with these statements and likens them to those that
have been found as inadmissible vouching. See State v. Keen, 309 N.C. 158, 164, 305
S.E.2d 535, 538-39 (1983) (ordering a new trial where an expert went beyond the
scope of the question asked and opined that “an attack occurred . . . this was
reality[,]” which amounted to an opinion as to the guilt of the defendant); see also
State v. O’Connor, 150 N.C. App. 710, 712, 564 S.E.2d 296, 297 (2002) (ordering a new
trial where an expert’s written report, which stated that the victim’s disclosure “was
credible[,]” was impermissibly admitted into evidence). In the present case, though,
the State’s expert did not explicitly state that Emma was in fact assaulted or that she
was credible.
The expert did, however, state that Emma’s “exam was consistent with
someone reporting a sexual assault[,]” solely on the grounds that she did not have
physical evidence of sexual abuse. But we note that this lack of physical evidence
observed by the nurse is also consistent with someone who has not been sexually
abused. See State v. Towe, 366 N.C. 56, 61-64, 732 S.E.2d 564, 567-69 (2012) (finding
an expert’s testimony to be improper where “she stated that the victim fell into the
category of children who had been sexually abused but showed no physical symptoms
of such abuse”); see also State v. Frady, 228 N.C. App 682, 685-87, 747 S.E.2d 164,
167-68 (2013) (holding expert testimony that the victim’s disclosure was “consistent
with sexual abuse” prejudicial). In other words, this portion of the expert’s testimony
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STATE V. DAVIS
Opinion of the Court
– in which she affirmatively stated that a lack of physical evidence is consistent with
someone who has been sexually abused – should not have been allowed, as this
testimony did not aid the trier of fact in any way. See N.C. Gen. Stat. § 8C-1, Rule
702(a) (2017).
Even if an opinion of the nature offered by the State’s expert would be helpful
to a jury, there is nothing in the record to indicate a proper basis for the nurse’s
opinion. Such testimony should generally be based on the science of how and why
the human body does not always show signs of sexual abuse. Id. The nurse’s
testimony here was not based on any science or other medical knowledge she may
have possessed. Rather, she based her testimony on her assumption that all of the
people that she had ever interviewed and examined were telling the truth, that they
had all been sexually abused.
While it is impermissible for an expert to offer an opinion that a lack of physical
evidence is consistent with sexual abuse, it may permissible for the State to offer
expert testimony that the lack of physical evidence does not necessarily rule out that
sexual abuse may have occurred. Such testimony might aid the trier of fact to
understand that the lack of physical evidence does not necessarily mean that the
defendant is not guilty. But again, here, there was nothing in the record to indicate
that the nurse was qualified to give an opinion in this regard.
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STATE V. DAVIS
Opinion of the Court
As we find that the nurse’s opinion testimony was improper, we must
determine whether its admission had a prejudicial effect on Defendant’s trial. Bagley,
321 N.C. at 211, 362 S.E.2d at 250. A prejudicial effect is one that, but for the error
in question, “a different result would have been reached at the trial[.]” Frady, 228
N.C. App. at 686, 747 S.E.2d at 167 (quoting N.C. Gen. Stat. § 15A-1443 (2017)).
Assuming that the trial court committed error by admitting the testimony
without intervening ex mero motu, we conclude that any such error did not rise to the
level of plain error. To be sure, Emma’s testimony was the only direct evidence of
Defendant’s guilt. But the State elicited testimony from several other witnesses
regarding the night and the event in question. Moreover, the nurse’s testimony was
not an expert opinion that Emma was telling the truth, which has been held in some
cases to constitute plain error. Rather, the testimony was an expert opinion that a
lack of physical evidence is consistent with sexual abuse. We cannot say that there
is a reasonable probability that the jury assigned any great weight to this particular
opinion as evidence corroborating Emma’s testimony. We also cannot say that it is
reasonably probable that the jury, using their common sense, did not understand that
a lack of physical evidence can also indicate that no sexual abuse occurred. Certainly,
it may be reasonably probable that a jury may find a complaining witness more
credible where an expert testifies that the complaining witness is telling the truth.
See O’Connor, 150 N.C. App. at 712, 564 S.E.2d at 297. But we conclude that it is not
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STATE V. DAVIS
Opinion of the Court
reasonably probable that the jury, here, found Emma’s testimony more credible
simply because the nurse stated that a lack of physical evidence is consistent with
sexual abuse.
III. Conclusion
Judge Holt did not commit plain error when referring to Emma as the “victim”
during its charge to the jury. And she did not commit plain error by failing to
intervene ex mero motu and prevent the State’s expert from testifying that a lack of
physical evidence was “consistent with someone reporting a sexual abuse.”
Defendant received a fair trial, free from plain error.
NO PLAIN ERROR.
Judge ARROWOOD concurs.
Judge BRYANT concurs in result only.
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