State v. Davis

IN THE SUPREME COURT OF NORTH CAROLINA
No. 132PA15
Filed 15 April 2016
STATE OF NORTH CAROLINA
v.
RANDY CARTER DAVIS
On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 768 S.E.2d 903 (2015), finding no error
after appeal from judgments entered on 30 September 2013 by Judge Jeffrey P. Hunt
in Superior Court, Cleveland County. Heard in the Supreme Court on 22 March 2016.
Roy Cooper, Attorney General, by Robert M. Curran, Special Deputy Attorney
General, for the State.
Mark Montgomery for defendant-appellant.
HUDSON, Justice.
Here we are asked to determine whether expert testimony about general
characteristics of child sexual assault victims and the possible reasons for delayed
reporting of such allegations constitutes expert opinion testimony, subject to
disclosure in discovery under N.C.G.S. § 15A-903(a)(2). We hold that it does, and
thus, the State failed to satisfy its statutory obligations when it did not produce
summaries of the experts’ opinions and the basis for those opinions in response to
defendant’s discovery requests. However, because we conclude that defendant has
STATE V. DAVIS
Opinion of the Court
failed to carry his burden of showing prejudice, we modify and affirm the decision of
the Court of Appeals upholding his convictions.
In September 2013, defendant stood trial for various sexual offenses alleged to
have been perpetrated on two minors, G.S. and L.W.1 The State’s evidence at trial
tended to show the following: defendant was G.S.’s stepfather and he sexually abused
her from the time she was around three-and-a-half years old until she was thirteen
years old. At the time of trial, G.S. was thirty-six years old. As an adult, G.S. had
nightmares and trouble sleeping, and she was hospitalized in 2006 for suicidal
thoughts. She also had problems with alcohol dependency. G.S. never reported the
alleged abuse to the authorities until October of 2011, when she was in her mid-
thirties; she told her boyfriend when she was sixteen, and when she was in her early
thirties, she told her pastor. She also reported the abuse to a psychiatrist, Vikram
Shukla, M.D., when she was hospitalized in 2006 and to her therapist, Sandra
Chrysler, in March 2013.
Dr. Shukla was tendered as an expert in child and adolescent psychiatry, and
Ms. Chrysler as an expert in mental health counseling, both without objection. Both
testified to their specific interactions with G.S., but then both also testified more
generally regarding the characteristics of child sexual abuse victims and potential
1 As is our custom and per Appellate Rule 4(e), we use the initials G.S. and L.W. to
protect the identity of the victims even though the trial proceedings occurred when they were
both adults. N.C. R. App. P. 4(e).
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reasons for delayed reporting of allegations of abuse.2 Once the questioning turned
more generalized, defense counsel objected to each and every question, citing
Evidence Rules 401 through 403, failure to provide discovery per N.C.G.S. § 15A-
903(a)(2), and several provisions of the Constitutions of the United States and North
Carolina.3 Defendant had been provided a curriculum vitae for each expert and a
medical records summary for G.S., but was not given a summary of any expert opinion
testimony or the basis for any such opinion. Initially, at the close of voir dire, the
trial court ruled that these witnesses would not be allowed to give opinions; however,
in front of the jury, defendant’s objections were ultimately overruled and the trial
court allowed the experts to testify to matters that they had “observed.”
The State also presented evidence that L.W. was defendant’s stepdaughter (by
a different mother; G.S. and L.W. are not biologically related). L.W., who is six
months older than G.S., testified that defendant engaged in improper sexual
conversations with her and attempted to sexually abuse her from the time she was
thirteen or fourteen until she moved out of the house at age seventeen. L.W. never
reported the abuse until 2011 when she was contacted by a detective.
2 The specific testimony about treatment here referred only to G.S.; however, the more
general testimony about child abuse victims and delayed reporting could have pertained to
both alleged victims.
3In its order allowing review of this matter, this Court dismissed defendant’s Notice
of Appeal based on constitutional questions.
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Additionally, the State elicited testimony from two other alleged victims under
Rule 404(b) of the North Carolina Rules of Evidence. Both girls testified that when
they were in their early teens, defendant discussed inappropriate sexual matters with
them. The State also called to the stand defendant’s pastor, who testified that
because of “an accumulated amount” of complaints about defendant and teenage girls,
defendant was banned from the church premises.
A jury convicted defendant on all charges and defendant appealed. The Court
of Appeals determined that defendant received a fair trial free of reversible error.
State v. Davis, ___ N.C. App. ___, ___, 768 S.E.2d 903, 913 (2015). While defendant
argued that the State had failed to provide discovery as required by N.C.G.S. § 15A-
903(a)(2), the court determined on appeal that the expert testimony in question (that
of Dr. Shukla and Ms. Chrysler) was not opinion testimony “of the type that was
required to be disclosed under N.C. Gen. Stat. § 15A-903.” Id. at ___, 768 S.E.2d at
908. As to Dr. Shukla, the court concluded that he “did not testify that there is a
specific constellation of characteristics of sexual abuse victims, did not opine on
whether G.S. met such a profile, and did not offer an expert opinion of the type that
was required to be disclosed under N.C. Gen. Stat. § 15A-903.” Id. at ___, 768 S.E.2d
at 908. Similarly, as to Ms. Chrysler, the court “conclude[d] that, because Ms.
Chrysler’s general testimony about sexual abuse victims was limited to her own
observation and experience, it did not constitute an expert opinion that had to be
disclosed in advance of trial.” Id. at ___, 768 S.E.2d at 908.
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In the Court of Appeals, defendant raised three issues on which that court
declined to grant relief. Id. at ___, 768 S.E.2d at 905. He repeated all three in his
petitions for discretionary review and for writ of certiorari before this Court:
1) whether the trial court erred in admitting the opinion
testimony of witnesses Shukla and Chrysler; 2) whether
the trial court erred in admitting the testimony of other
witnesses who claimed that Mr. Davis made inappropriate
comments to them; 3) whether the trial court erred in
instructing the jury that the complaining witnesses were
“victims.”
We allowed review by special order to address only “whether the trial court erred in
admitting the opinion testimony of witnesses Shukla and Chrysler.”
The Court of Appeals reviewed the issue before us for abuse of
discretion. Id. at ___, 768 S.E.2d at 907. In our consideration of the one issue on
which we allowed review, we note that usually “[d]etermining whether the State
failed to comply with discovery is a decision left to the sound discretion of the trial
court.” State v. Jackson, 340 N.C. 301, 317, 457 S.E.2d 862, 872 (1995) (citation
omitted). Here, however, the question is one of statutory interpretation which we
review de novo:
Had the trial court found the violation, in its discretion it
could have imposed any or all of the statutory sanctions,
including the sanction requested by defendant at trial . . . .
In that case, our task would have been to determine
whether the trial court properly exercised its discretion in
the choice of a sanction. Because the court failed to find the
violation, however, and consequently failed to exercise its
discretion, the ruling is reviewable. Cf. State v. Brogden,
334 N.C. 39, 46, 430 S.E.2d 905, 909 (1993) (“ ‘When the
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Opinion of the Court
exercise of a discretionary power of the court is refused on
the ground that the matter is not one in which the court is
permitted to act, the ruling of the court is reviewable.’ ”)
State v. Patterson, 335 N.C. 437, 455, 439 S.E.2d 578, 588-89 (1994) (emphasis added).
Pursuant to N.C.G.S. § 15A-903(a)(2), “[u]pon motion of the defendant, the
[trial] court must order:”
The prosecuting attorney to give notice to the defendant of
any expert witnesses that the State reasonably expects to
call as a witness at trial. Each such witness shall prepare,
and the State shall furnish to the defendant, a report of the
results of any examinations or tests conducted by the
expert. The State shall also furnish to the defendant the
expert’s curriculum vitae, the expert’s opinion, and the
underlying basis for that opinion.
N.C.G.S. § 15A-903(a)(2) (2015) (emphasis added). It is well settled that “the purpose
of discovery under our statutes is to protect the defendant from unfair surprise by the
introduction of evidence he cannot anticipate.” State v. Payne, 327 N.C. 194, 202, 394
S.E.2d 158, 162 (1990) (citations omitted), cert. denied, 498 U.S. 1092 (1991).
The central question here is whether the State’s expert witnesses gave opinion
testimony so as to trigger the discovery requirements under section 15A-903(a)(2).
The State contends that Dr. Shukla and Ms. Chrysler only testified to facts;
defendant asserts that the testimony of both included a number of expert opinions
and that he was entitled to receive via discovery summaries of these opinions and
their underlying rationales. Black’s Law Dictionary defines “opinion” as “[a] person’s
thought, belief, or inference, esp. a witness’s view about [ ] facts in dispute, as opposed
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Opinion of the Court
to personal knowledge of the facts themselves,” and “opinion evidence” as “[a]
witness’s belief, thought, inference, or conclusion concerning a fact or facts.” Opinion,
opinion evidence, Black’s Law Dictionary (10th ed. 2014). According to Evidence Rule
702(a), an expert may give an opinion “[i]f . . . technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue,”
and if the other requirements of Rule 702 apply. N.C.G.S. § 8C-1, Rule 702(a) (2015).
In other words, when an expert witness moves beyond reporting what he saw or
experienced through his senses, and turns to interpretation or assessment “to assist”
the jury based on his “specialized knowledge,” he is rendering an expert opinion.4 See
id. We recognize that determining what constitutes expert opinion testimony
requires a case-by-case inquiry in which the trial court (or a reviewing court) must
look at the testimony as a whole and in context. In doing so here, we conclude that
both Dr. Shukla and Ms. Chrysler gave expert opinions that should have been
disclosed in discovery.
Specifically, both witnesses offered expert opinion testimony about the
characteristics of child sexual abuse victims.5 Dr. Shukla was asked, “[W]hat have
4 We note that in the lay opinion context, we consider “shorthand statements of fact”
or “instantaneous conclusions of the mind” as fact, not opinion. See, e.g., State v. Lloyd, 354
N.C. 76, 109, 552 S.E.2d 596, 620 (2001) (“The instantaneous conclusions of the mind as to
the appearance, condition, or mental or physical state of persons, animals, and things,
derived from observation of a variety of facts presented to the senses at one and the same
time, are, legally speaking, matters of fact, and are admissible in evidence.”). Nothing in this
opinion affects that precedent.
5 In the transcript, one can see a clear turning point at which the testimony of each of
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Opinion of the Court
you observed in the course of your practice as to some of the manifestations of
childhood sexual abuse?” He responded, at length:
In the course of my practice as a child, adolescent and adult
psychiatrist I work with children who have been abused.
Then immediately or later on, in months and years, they
come back, at any age, and the manifestations of the
abused children who are victimized with sexual abuse can
go according to the developmental age of the child. If it’s a
small child who cannot speak and articulate what
happened, this child may role play, role play the trauma,
role play what was done to the child. They may role play
and act like what happened, doing the actual victimization
with a sexual motion that the child is not expected to know
and it’s a very common understanding of all of us.
They may have terrible dreams but not be able to speak
about the dreams. If it is a very young child, they may not
have much to go with, what happened. The older the child,
of understanding age, developmentally the child may be
able to say, “Mommy, mommy, Uncle Tom did this to me,”
and mommy would say, “What happened?” But the
patients says [sic], “Uncle Tommy put his wee-wee in me,”
the child’s interpretation of what Uncle Tom did. And I’m
not talking about any particular case; I’m not talking about
a specific case.
Older children may or may not be able to verbalize what
happened, depending on the circumstances of the abuse.
The child may be told this is what we’re supposed to do,
daddy loves you so daddy can do this, so that the child does
not understand that it’s wrong. The child may not be
objecting to it; they may be okay with it and may not have
understanding, and then at some point realizes that
something is not really right.
They have complaints about depression or problems
that may be emerging, depending on how vulnerable the
child is to the genetics of trauma. Some children withstand
these experts pivoted from case-specific testimony to more general views based on experience.
In Dr. Shukla’s testimony, this occurred at page 315 of the transcript; in Ms. Chrysler’s, at
page 678.
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Opinion of the Court
it and go through all right. They will say yeah, it happened,
but I’m tough. It happened, I had bad dreams for a month
and a day, and I got over it. Others, they are extremely
traumatized. They have a mild dose of trauma, it happened
one time, I told mom, and mom got rid of the boyfriend, no
more problems.
The child will say I remember, I asked a forty-year old
woman, she says, “I have not told anybody but you, doctor.
Nobody really asked me if I was touched by Uncle Tom. It
happened, and my mom, (unintelligible).[”] Sometimes the
trauma is larger and the genetic vulnerability of the person
–- it’s genetic; we have no control. We have all these other
genes, we have no control. Battered women, bad genes,
boom.
We have trauma, depression, nightmares, insomnia,
flashbacks. Other symptoms may include depression,
suicide attempt. What happened, how was your childhood,
did anybody touch you in the wrong places, any trauma, if
I don’t ask they might not tell me, so I have to be very
careful with this initial meeting and the follow-up.
Ms. Chrysler testified:
Q. Ms. Chrysler, can you tell me what are some of your
observations with respect to the child abuse victims
that you have treated, both adults and children, as to
some of the characteristics that they can and tend to
exhibit?
....
A. A lot of the characteristics of someone who has been
sexually abused or traumatized, in my experience and
education, is that this person has an overall lack of
trust, views the world as a very scary and dangerous
place. It’s often seen that there is a lot of anxiety, a lot
of anxiousness, sometimes they can slip into a
depressed mood, isolating themselves because of that
lack of trust and fearfulness of the world. That is
something that I’ve seen in my work with victims of
sexual abuse.
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Opinion of the Court
Q. Does it tend to make a difference in what you see
whether the person experiences that as an adult or a
child?
....
A. It’s not different in my experience from what I’ve seen.
My education and my experience tells me that both as
a child, adolescent and adult the victims of sexual abuse
that I have come in contact with exhibit a lot of the same
characteristics, that feeling of guilt and shame about
what has happened to them. Like I said a minute ago,
just that lack of trust, viewing the world as a scary,
dangerous place. You know, also just low mood, that is
something that’s across the board with victims of sexual
abuse.
She further testified:
Q. Are there any certain – are there any – is there any
series or cluster of mental health illnesses or symptoms
that you have seen in your practice associated with your
patients who have been sexually victimized as children?
....
A. Sexual abuse can be the trigger for all sorts of mental
illnesses. Some of the illnesses are hereditary, you
know, they’re in your genes, you know, you’re
predisposed to having something like bipolar disorder.
Something that happens to you that’s traumatizing can
bring that out. Typically adults with mental illness,
severe mental illness, it generally comes out at college
age, you know, in their young twenties. Sometimes
victims of sexual abuse, this will begin to manifest in
the form of high anxiety, sleeplessness, lack of appetite,
depressed mood, isolative (sic) behaviors, and based on
that, somebody who is predisposed to mental illness,
like bipolar disorder, yeah, the trauma could manifest.
The trauma could perpetuate something like that.
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Opinion of the Court
This testimony goes beyond the facts of the case and relies on inferences by the
experts to reach the conclusion that certain characteristics are common among child
sexual assault victims. Although not elicited by the typical “Doctor, do you have an
opinion?” question, it is plainly expert opinion testimony that the witnesses were
prepared to give.
Similarly, both experts also offered expert opinion testimony explaining why a
child victim might delay reporting abuse. Dr. Shukla testified as follows:
Q. What is your observation about whether [child sex
abuse] is commonly reported immediately, when
children experience sexual abuse or trauma, as opposed
to later in life?
....
A. The immediate effects of sexual trauma may be
developmentally related, so a child of understanding
age, –- depending on the psycho-socio circumstances,
three-year-old, four-year-old, five-year-old, older child,
will be able to say something terrible happened, or
something happened that makes a person uneasy. If the
mother is not paying attention or unwilling to pay
attention, then it goes on, and a child may be led to
believe that it’s normal. Or if you say something, I will
kill the whole family, or I will hurt you, or mom will be
dead, or some psychological guilt trip.
So the signs and symptoms of immediate trauma can
be depression, can be terrible sleep, acute trauma
symptoms, psycho-physiological disturbances, anxiety
attacks, panicky feelings, panic attacks, the mind goes
in these directions, which is exactly where it will go.
There is no linear prediction where the mind will
function after a serious trauma, and for a child, sexual
trauma is a serious trauma.
It could be like serious traumas, life and death
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Opinion of the Court
experiences, accidents, World War I, soldiers, bombs,
everyone’s dead, loses his leg, carried to the hospital,
starts having nightmares, flashbacks, depression,
alcohol, what have you. It will happen with a
combination of these signs and symptoms that occur
immediately. And sometimes it does not happen;
symptoms of numbness can occur. A child may have a
serious problem functioning, but that is one of the
common things I see is functional loss, where a child is
at school, home, with family or friends, the child is not
functioning well academically or be able to verbalize
what is wrong. Oh, nothing, I’m fine, may not say
anything.
They say years later, may say, only when asked,
maybe re-traumatized after twenty years, then the
symptoms can begin. When the child who grew us [sic]
is a doctor, and the doctor get molested or has to go
through a life or death trauma, symptoms can be
reactivated. With the mind, we cannot predict what
will happen next in this matter.
He continued:
Q. What have you observed about some of the reasons that
children don’t report child sexual abuse immediately?
....
A. Children who do not report the sexual abuse are under
the impression it’s what they’re supposed to do. They do
not have any avenues, don’t have the skills to complain
about things because of development and age. The
developmental age of a child –- the younger the age, the
child is unaware of something between right and wrong.
A child is unaware of what is allowed and wrong.
Spanking, normal. When does spanking become abuse
and when does touching, changing diapers by a
caregiver, turn into some form of improper handling of
the genitals, because when you change diapers you . . .
clean the diaper, you clean the genitals.
And so a child does not have the mental apparatus,
and then in certain families, a child is told to say no and
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Opinion of the Court
run, but in some families it may be a factor of childhood
training when you should say no to some improper
physical contact. So physical contact, the child is
oblivious of what to say or whether there should be
something said, or whether something wrong happened.
If it’s something the child fails to report, it’s a common
event, because of the child’s development. If it happens
to a grownup, that’s a different matter. If it happens to
a trained child, it’s a different matter. If it happens to a
child who shows symptoms, somebody walks into it, the
child may still think it was okay, why is mom so upset?
I had a case, an eleven-year-old girl, with uncle
having performed improper sexual advances. It turned
out that she still felt psychologically guilty, responsible,
terrible, for having sexual contact with this uncle,
family friend, and presently they’re dealing with that
case.
Q. What are some of the other reasons you’ve observed why
children don’t report when things like that happen, if
they’re old enough to understand that it’s wrong?
....
A. The other reasons where children who are
understanding to report, it depends on the perpetrator
and the person, the child, the victim. And that may be
bribing or giving gifts, what the child wants to do,
giving permission to be out late. A child, a teenager,
usually it’s a girl, but really sometimes boys are also
sexually abused, and this abuse is not verbalized by
these individuals because of shock, disbelief, or they’re
just understanding that this is a way of expressing love.
The threat of killing the mom, killing the whole family,
say this and it will be really bad, you’ll never see your
mom again.
These are some of the reasons why teenaged girls,
for example, or older child, seven to eleven years,
arbitrarily will think I’m not supposed to talk to mom,
mom will be upset, and sometimes they try to talk and
mom says you are a liar. Sometimes they talk to a
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Opinion of the Court
primary care giver, which you only have two, your mom
and your dad, nobody else, stepfather, boyfriend, mom,
stepfather, foster families. I work with these families,
victims coming from these families. There’s nobody to
listen to [sic]. Who are you going to turn to if your family
does not help? It’s like if you go to the police and the
police do not help. It’s a problem. Who are you going to
talk to? So the child does not have ways; that’s the
reason they don’t talk. If they talk and they’re
discredited, their credibility is undermined.
Ms. Chrysler testified:
Q. What about reporting that abuse? What is your
observation and your experience with whether abuse
victims tend to report right away, and is there any
difference between children and adults in that?
....
A. There’s extensive documentation, research, also in my
experience, that sexual abuse is not typically reported
right away for a lot of different reasons, being afraid
that no one will believe them, being fearful of the
repercussions after they’ve told on the person that’s
perpetrated the crime on them. In fact, I read recently
that it’s one-third of all sexually abused children in
cases, only one-third of incidents were reported, which
means that two-thirds of these children out there never
feel comfortable, never feel safe enough to share what’s
happened to them. And so for a lot of reasons, –- should
I keep going? It’s for a lot of reasons that they don’t tell.
The primary reason is the one I just mentioned earlier
about the classic signs of someone who’s been abused
are, feeling as though the world is a dangerous place,
that no one is going to believe them, the guilt and the
shame that’s been instilled in them for the length of
time that they’ve been sexually victimized. Children
oftentimes go through a grooming period with their
perpetrator, will groom them to keep a secret, and not
sharing the secret, and the consequences of the secret.
And any kind of resistance that the child gives them is
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Opinion of the Court
met with coercion or met with threats about their own
safety, about the safety of their own family members. A
lot of them are taught to keep the secret at all costs. And
for children, it’s fairly simple: they believe what adults
tell them, especially the younger than six-year-olds,
kids that I’ve seen, they’re going to believe what’s told
them. Nobody’s going to believe you if you say that;
that’s something that they will believe.
Q. What about teenagers?
....
A. Teenagers as well. I don’t remember what the exact
statistics are, but generally it’s over a year. I think it
was something like seventy-eight percent of people tell
--
....
Typically children are going to be telling right away.
Teenagers was the question; teenagers as well are
conditioned by a perpetrator not to feel comfortable
talking about what’s happened to them. They’re a little
bit more difficult to predict, I think. They will, I think
for teenagers in my experience and education,
eventually come forward. Like I said, one-third of
sexually victimized children and adolescents come
forward.
....
Basically what I’m trying to say is it just depends, and
typically they don’t come forward at all.
....
Q. What are some of the reasons, in your experience, that
people do not come forward?
....
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Opinion of the Court
A. Typically children and adolescents don’t come forward
for very many different reasons. One of the most
common, though, is the guilt and the shame that they
feel. That’s the primary reason why a lot of them come
to therapy, because they’re taught to believe that this is
their fault. A lot of them have been groomed,
conditioned by the sexual perpetrator, that they are not
allowed, can’t come forward because of a lot of different
reasons. But the main reason is fear.
Again, like the testimony regarding general characteristics of child sexual abuse
victims, the experts here drew inferences and gave opinions explaining that these
other unnamed patients of theirs had been abuse victims and delayed reporting the
abuse for various reasons. These views presuppose (i.e., opine) that the other children
the expert witnesses observed had actually been abused. These are not factual
observations; they are expert opinions.
The State would have us limit the definition of discoverable “opinion” to that
which reaches an ultimate issue: Was the victim sexually assaulted or does she
exhibit the “profile” or characteristics of someone who has been sexually assaulted?
This definition is far narrower than contemplated by our evidence rules and discovery
statutes. As noted above, an expert can, and did here, offer opinions about typical
characteristics of child sexual abuse victims.
Early in the trial, after voir dire of Dr. Shukla, the trial court ruled that
proposed testimony “about the general characteristics of child sexual abuse and
delayed reporting” “should have been given to defendant [in discovery]” and that the
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Opinion of the Court
witnesses should not offer such opinions. In response to the trial court’s ruling, the
State framed the questions as “observations.” As shown below, it took the State three
attempts to phrase such a question in a manner that the trial court would allow:
Q. Dr. Shukla, what are some of the reasons that children
don’t report sexual abuse immediately?
[DEFENSE COUNSEL]: Objection. Same basis.
THE COURT: Sustained.
Q. In your experience, --
[DEFENSE COUNSEL]: Objection. Same basis.
THE COURT: Sustained.
Q. What have you observed about some of the reasons that
children don’t report sexual abuse immediately?
[DEFENSE COUNSEL]: Objection. Same basis.
THE COURT: Overruled.
The trial court overruled defendant’s final objection to that line of questioning and
permitted that testimony to proceed. We conclude that, regardless of phrasing, the
questions posed by the State and Dr. Shukla’s answers to these questions elicited
opinions based on his expertise.
Later during the testimony of Dr. Shukla, after a number of such questions,
the trial court appears to have ultimately found that the curriculum vitae of each
witness was sufficient to satisfy the discovery statute:
Please let the record show, in the absence of the jury,
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Opinion of the Court
relative to Dr. Shukla’s testimony, the Court finds that he
was accepted without objection as an expert in the field of
child, adolescent and adult psychiatry, and was the
treating psychiatrist of [G.S.] in 2006, that Dr. Shukla has
treated perhaps a thousand child patients that either were
or reported that they were victims of sex abuse, that at
least approximately thirty days ago the State provided
discovery, including Dr. Shukla’s medical records, relating
to the complainant in this case, and that pursuant to 15A-
903, the State provided, in the Court’s opinion, adequate
notice to the Defendant of its intent to offer Dr. Shukla’s
testimony as an expert by providing his extensive resume
or curriculum vitae, I think is the language of the statute.
Therefore, the Court concludes that the Defendant was
not surprised within the meaning of the case law in North
Carolina, and that the expert testimony of Dr. Shukla is
clearly helpful in instructing to the jury, outweighing any
potential for prejudice in that regard to the Defendant.
The Court of Appeals concluded that Dr. Shukla did not testify to “a specific
constellation of characteristics of sexual abuse victims, did not opine on whether G.S.
met such a profile, and did not offer an expert opinion of the type that was required
to be disclosed [in discovery].” Davis, ___ N.C. App. at ___, 768 S.E.2d at 908. The
Court of Appeals reached similar conclusions regarding Ms. Chrysler’s testimony,
finally holding that “neither [witness] offered an expert opinion that there exists a
‘profile’ ” with which G.S.’s characteristics were consistent. Id. at ___, 768 S.E.2d at
908.
In essentially agreeing with the State that these witnesses’ opinions need not
have been disclosed in discovery unless they included an opinion that G.S. exhibited
characteristics consistent with a “profile” of a child abuse victim, the Court of Appeals
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erred. Id. at ___, 768 S.E.2d at 908. We do not agree that an “opinion” is so narrowly
defined. Instead, we hold that the testimony at issue did include expert opinions that
should have been disclosed previously. Accordingly, we hold that the State failed to
comply with N.C.G.S. § 15A-903(a)(2) when responding to defendant’s motion for
discovery by failing to turn over all the information required by that statute.
Moreover, we conclude that the curricula vitae were not sufficient to prevent
“unfair surprise.” See Payne, 327 N.C. at 202, 394 S.E.2d at 162. The curricula vitae
and medical records made it clear to defendant that each witness was going to testify
as an expert about his or her own treatment of the victim G.S. (and presumably, the
allegations of abuse she reported to them), but there was nothing to alert defendant
that the witnesses would give opinions about child sexual abuse victims in general
and no preview of what those opinions would be. Had such information been turned
over in discovery, defendant would have been able to prepare a possible defense or
counterpoint to the expert opinion testimony offered by the State.
Having found error in our de novo review, we now must determine if the error
was prejudicial to defendant. Because this was a statutory error, we apply the
standard found in N.C.G.S. § 15A-1443(a) (2015):
A defendant is prejudiced by errors relating to rights
arising other than under the Constitution of the United
States when there is a reasonable possibility that, had the
error in question not been committed, a different result
would have been reached at the trial out of which the
appeal arises. The burden of showing such prejudice under
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Opinion of the Court
this subsection is upon the defendant. Prejudice also exists
in any instance in which it is deemed to exist as a matter
of law or error is deemed reversible per se.
After careful consideration of all the evidence here, we hold that defendant did not
meet his burden of showing a reasonable possibility that, absent the expert opinion
testimony, the jury would have reached a different result. First, the expert opinion
testimony was elicited specifically in relation to G.S.’s reporting, symptoms, and care;
L.W. was not the focus of the expert testimony. Second, as to G.S., although the main
issue in this case was her credibility, and the expert opinion testimony could factor
into a credibility determination, the record reveals overwhelming evidence
corroborating her testimony.6 During her testimony, G.S. reported being sexually
abused by defendant when she was between the ages of three-and-a-half and thirteen.
She testified that she was forced to perform oral sex on defendant, and that she had
memories of him being in the bath with her as a young girl and touching her
inappropriately and forcing her to touch his penis, and of him performing oral sex on
her. She also testified that defendant vaginally raped her when she was twelve years
old. She testified that she first told her then-boyfriend (now husband) about these
events when she was sixteen. She further testified that she told Dr. Shukla about
what happened when she was admitted to the hospital for suicidal thoughts in 2006
6 To the extent that the expert opinion testimony related to the charges involving L.W.
as well, defendant failed to meet his burden of showing prejudice under N.C.G.S. § 15A-
1443(a) in these convictions as well. In light of the corroborating evidence, we do not see a
reasonable possibility that the jury would have reached a different result regarding the
alleged abuse of L.W.
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Opinion of the Court
and that she reported the abuse to Ms. Chrysler when she started seeing her for
counseling in 2013.
All of this testimony was corroborated in several ways. First, G.S.’s testimony
matched the statement she gave to the police when she first reported the abuse in
October 2011. Second, she consistently reported abuse by defendant to Dr. Shukla,
her pastor, her husband, and Ms. Chrysler. Third, and importantly, the testimony of
L.W., the testimony of the other two Rule 404(b) witnesses, and the testimony of the
pastor painted similar pictures of defendant’s practice of sexually abusing young girls
with whom he had established a trusting relationship. A.J.,7 one of the Rule 404(b)
witnesses, testified that defendant, who was like a grandfather to her, talked to her
about sex when she was thirteen years old and instructed her on how to perform
certain sex acts. S.W., a second Rule 404(b) witness, testified that defendant was the
youth director at her church when she was a teenager and that defendant would
initiate sexual conversations and ask her about her sexual interactions with her
boyfriend. S.W.’s testimony was corroborated by a friend to whom she had talked
about some of defendant’s behavior at the time it was happening, by her uncle to
whom she had also spoken, and by the pastor at the church. The pastor testified that
defendant was banned from church property because of a “gathering of things,”
including the allegations made by S.W.
7 Again, we use initials to protect the identity of the victims. N.C. R. App. P. 4(e).
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Given all the above evidence, we conclude that defendant has failed to show
that, absent the expert opinion testimony (as to the generalized characteristics of
child sexual abuse victims and reasons for delayed reporting), there is a reasonable
possibility that the jury would have reached a different result. We are mindful,
though, of the wise words of the Court of Appeals in State v. Moncree: “Although we
determine defendant was not prejudiced, we note the State should comply with
statutory discovery requirements. District attorneys are elected public officials, and
therefore North Carolina citizens trust the people who serve as district attorneys.”
188 N.C. App. 221, 227, 655 S.E.2d 464, 468 (2008).
Accordingly, for the reasons stated above the decision of the Court of Appeals
upholding defendant’s convictions is modified and affirmed. The remaining issues
addressed by the Court of Appeals are not before this Court and its decision as to
those matters remains undisturbed.
MODIFIED AND AFFIRMED.
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