State v. Edwards

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1290
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Sampson County
Nos. 11 CRS 50400—402; 12 CRS
1596, 1599—1601
VELETTA WILKINS EDWARDS,
Defendant.
Appeal by defendant from judgments entered 5 June 2013 by
Judge Kenneth F. Crow in Sampson County Superior Court. Heard
in the Court of Appeals 4 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Laura Edwards Parker, for the State.
Mark Montgomery for defendant-appellant.
BRYANT, Judge.
Where defendant’s cross-examination of an expert witness
invites the testimonial error about which she now complains on
appeal, there can be no plain error in the admission of such
testimony.
-2-
On 26 November 2012, defendant Veletta Wilkins Edwards was
indicted on two counts of sexual offense with a child by an
adult under N.C. Gen. Stat. § 14-27.4A, and six counts of felony
child abuse inflicting serious bodily injury under N.C. Gen.
Stat. § 14-318.4(a)(3). The charges came on for trial during
the 28 May 2013 criminal session of Sampson County Superior
Court, the Honorable Kenneth F. Crow, Judge presiding. At
trial, the State’s evidence tended to show the following.
In May 2009, T.J. and her sister S.V.1 were removed from
their mother’s home due to allegations of neglect and placed
with defendant, their grandmother. T.J. was about eight years
old, and her sister S.V. about nine years old, when they went to
live with defendant.
On 28 December 2010, the Sampson County Department of
Social Services (“DSS”) received a report alleging emotional
abuse and improper discipline at defendant’s home. The
following day, DSS social workers Gilmore and Blackmon went to
defendant’s home to investigate the allegations. Upon arriving
at the home, the social workers found that while S.V. appeared
to be well-dressed and healthy, T.J. was thin and unkempt, had
wounds on her face, hand, and ear, her hair was thin and
1
Initials are used to protect the identities of the juveniles
pursuant to N.C. R. App. P. 3.1(b) (2014).
-3-
“crispy,” and she walked with a limp. The social workers
reported that defendant’s home was very cluttered and unkempt,
that there were no beds for either child, and that the door to
T.J.’s room was being latched and padlocked from the outside of
the room.
Defendant acted agitated and frantic during the social
workers’ visit, telling them that “This needed to happen.” When
questioned by Blackmon about the allegations of emotional abuse
and improper discipline, defendant stated that she had “spanked
[T.J.] worse than she had wanted to[,]” she had stopped taking
both girls to therapy sessions, and that she kept T.J. locked in
her room with the padlock. Defendant then became defensive,
telling Blackmon that “You don’t know anything about what I’ve
been going through with [the girls.]” Defendant also stated she
thought T.J. had multiple personalities and was schizophrenic.
Gilmore testified that when he and Blackmon left with the girls,
defendant told only S.V. that she loved her.
Upon arriving at DSS, Gilmore testified that T.J.
immediately began to ask for food, eventually consuming a piece
of cake and two children’s meals from a local fast-food
restaurant. Gilmore and his colleagues then performed a body
inventory of the children. S.V. was documented as having “clear,
-4-
[] pretty skin” with no extant injuries. However, when Gilmore
began to examine T.J., he found multiple injuries. T.J. was
documented as having thin, damaged hair with a yellow, lesion-
crusted scalp; injuries across her forehead; and her skin was,
in general, dry and flaky. A bandage on T.J.’s left ear emitted
an odor; upon removing the bandage, Gilmore noticed the ear was
extremely swollen, with blood and pus oozing from a large
injury. T.J. also had significant injuries to her left arm,
front and back torso, chest, right arm, lower back, and legs;
these injuries were described as burns in varying stages of
healing. Gilmore found an open wound on one of T.J.’s feet, and
noted a large, open wound on her left pinky finger. When
asked how she received these injuries, T.J. told Gilmore that a
boy had bitten her ear and she had accidentally burned herself
with hot water in the shower. However, T.J. then told Blackmon
that some of her injuries were caused by defendant hitting her
with a belt.
DSS took T.J. to the hospital for treatment. At the
hospital, T.J. was found to have further injuries to her feet
and toes.
The next day, on 30 December, T.J. was taken to see her
regular family doctor, Dr. Bryan. Dr. Bryan testified that when
-5-
she saw T.J. that day, T.J. looked “vastly different” from when
she had last seen her. Dr. Bryan stated that T.J. was covered
in serious injuries and was in obvious pain, and that many of
the large scars on T.J.’s arms and torso appeared to be burns.
T.J. became upset when she saw Dr. Bryan and told her that she
had lied to people about her injuries. T.J. told Dr. Bryan that
defendant had burned her with hot water in the bathtub, choked
her around the neck, and had bitten her ear. She also told Dr.
Bryan that defendant kept her locked in her room because she was
stealing food and that defendant had refused to let T.J. use the
bathroom. During a follow-up visit at DSS, T.J. told
Blackmon that defendant had burned her with hot water, bitten
her ear, and pinched her fingers and toes with pliers. DSS
placed the girls with a foster family. The foster family
testified that T.J. repeated her allegations of defendant’s
abuse to them.
On 7 January 2011, DSS interviewed defendant. Defendant
was agitated during the interview and refused to let her husband
answer any questions. Defendant told Blackmon that she kept
T.J. locked in her room because T.J. had stolen a knife from the
kitchen and defendant was afraid for her life. After Blackmon
-6-
repeatedly asked defendant to explain T.J.’s injuries, defendant
and her husband walked out of the interview.
On 18 January 2011, T.J. was evaluated by pediatrician Dr.
Loughlin. Dr. Loughlin testified to what T.J. told him: that
defendant had put T.J.’s head into the toilet and flushed it,
making T.J. believe she would drown. Defendant would also hold
T.J’s head under water in the bathtub until she passed out.
Defendant would pour hot water on her and make her sit in hot
water in the bathtub until her skin would stick to the surface
of the bathtub. Defendant would sometimes pour hot water mixed
with bleach or ammonia on T.J’s forehead. T.J. also told Dr.
Loughlin about defendant biting her ear on multiple occasions,
using pliers to pinch her fingers and toes, and hitting her legs
and knees with pliers and a hammer. T.J. told Dr. Loughlin that
defendant had removed T.J.’s clothes, restrained her with duct
tape, and placed her on an ant mound so she could be, and indeed
was, bitten by ants.
S.V. was also evaluated by Dr. Loughlin. S.V. stated that
she had also been beaten by defendant, had seen defendant
“drowning” T.J., and had seen defendant sticking pushpins into
T.J.’s thighs. S.V. told Dr. Loughlin that defendant had
-7-
directed S.V. to bring her boiling water when T.J. was in the
bathtub.
T.J. was also interviewed by Detective Godwin of the
Sampson County Sheriff’s Department. T.J. told Detective Godwin
that defendant had put the handle of a purple hairbrush into her
vagina and her anus several times, and that it had hurt very
badly. T.J. told Detective Godwin that defendant also put the
handle of a straight razor into her vagina and anus. When asked
why she had not told anyone of those particular sexual acts
before, T.J. said that she “really just didn’t feel comfortable
talking about it[.]”
On 28 January 2011, Detective Godwin went to defendant’s
house to execute a search warrant. Defendant asked Detective
Godwin if he was looking for a purple hairbrush. She then
stated that the hairbrush belonged to T.J., and it was in one of
T.J.’s bags. Defendant could not find the hairbrush in the bag
and said she must have misplaced it; the hairbrush was never
found. A pair of pliers was removed from the home, and bottles
of bleach and ammonia were found in the bathroom.
Defendant was convicted by a jury on all charges. The
trial court sentenced defendant to consecutive terms of: 300 to
369 months for each count of sexual offense with a child by an
-8-
adult; and 73 to 97 months for each count of felony child abuse.
Defendant appeals.
_____________________________
Defendant’s sole contention on appeal is that the trial
court allowed an expert witness to testify that children do not
fabricate stories of abuse and, thereby, committed plain error.
We disagree.
Defendant failed to object at trial to the witness
testimony she now challenges on appeal. This Court reviews a
defendant’s failure to object to evidence for plain error. See
State v. Locklear, 172 N.C. App. 249, 259—60, 616 S.E.2d 334,
341 (2005). “[T]he plain error standard of review applies on
appeal to unpreserved instructional or evidentiary error.”
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334
(2012).
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice that,
after examination of the entire record, the
error had a probable impact on the jury's
finding that the defendant was guilty.
Id. (citations and quotations omitted); see also State v. Odom,
307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation,
quotations, and emphasis omitted).
-9-
Defendant contends the trial court committed plain error in
permitting Dr. Loughlin to testify that “children typically
don’t just fabricate stories about -- about what’s happened to
them.” When an expert witness testifies as to the sexual abuse
of a victim, this Court has held that “[a]n expert may not
testify that a child victim of abuse is believable, credible, or
telling the truth because this violates the teachings of N.C.
Gen. Stat. § 8C-1, Rules 405 and 608(a).” State v. O’Connor,
150 N.C. App. 710, 712, 564 S.E.2d 296, 297 (2002) (citations
and quotation omitted). However, an expert may testify as to
the credibility of children in general. State v. Oliver, 85
N.C. App. 1, 11—13, 354 S.E.2d 527, 533—34 (1987). An expert
may also testify "as to the profiles of sexually abused children
and whether a particular complainant has symptoms or
characteristics consistent therewith." State v. Stancil, 355
N.C. 266, 267, 559 S.E.2d 788, 789 (2002) (per curiam).
Further, an expert may, upon observing physical evidence of
sexual abuse, testify that a child has been sexually abused. Id.at 266—67, 559 S.E.2d at 789.
At trial, the State tendered Dr. Loughlin as an expert
witness and questioned him regarding his evaluation of T.J. On
-10-
defendant’s cross-examination of Dr. Loughlin, the following
exchange occurred:
Q. Okay. And I believe your testimony was
that
the examination was not consistent with
sexual abuse or inconsistent with sexual
abuse?
A. The way I'll frequently phrase it for the
record is that the normal exam neither
supports nor refutes the possibility of
sexual abuse.
Q. And in this case, it did neither?
A. That's correct.
Q. How could an examination refute?
A. There would be some who would want to
interpret a normal physical exam as evidence
against sexual abuse, and that's what I'm
saying, it would not be valid in my opinion.
Of course, a normal exam is consistent with
a child who has been sexually abused.
Q. But there's never going to be a physical
exam that's inconsistent with sexual abuse?
A. That's correct.
Q. Okay. You said it was not uncommon for a
child to deny abuse?
A. That's -- that's correct.
Q. So it's also not uncommon for a child to
wait a long time before bringing forward
abuse; is that correct?
A. That's -- that's true. Disclosure can be
a
-11-
process that can start anywhere along the
way.
Q. It would not be uncommon for a child to
allege abuse early on?
A. No. Some children will tell right after
something happens, others will not.
Q. And it would not be uncommon to make up
allegations of abuse?
A. I don't think I'd agree with that
statement. I think children typically don't
just fabricate stories about -- about what's
happened to them.
Here, not only did defendant ask questions of the witness
and thereby “invite” the error of which she now complains, she
did not ask for a limiting instruction when the witness
disagreed with the premise of her question that “it would not be
uncommon [for children] to make up allegations of abuse[.]” See
State v. Dew, ___ N.C. App. ___, ___, 738 S.E.2d 215, 221 (2013)
("[a] defendant is not prejudiced by . . . error resulting from
his own conduct. As a result, a defendant who invites error has
waived his right to all appellate review concerning the invited
error, including plain error review." (citations and quotations
omitted)), review denied, 366 N.C. 595, 743 S.E.2d 187 (2013);
State v. Global, 186 N.C. App. 308, 319—20, 651 S.E.2d 279, 287
(2007) (“Statements elicited by a defendant on cross-examination
are, even if error, invited error, by which a defendant cannot
-12-
be prejudiced as a matter of law.” (citations omitted)); State
v. Payne, 280 N.C. 170, 171, 185 S.E.2d 101, 102 (1971) (“[O]ne
who causes . . . the court to commit error is not in a position
to repudiate his action and assign it as ground for a new trial.
The foregoing is not intended as any intimation the court
committed error in this instance; but to point out the legal bar
to the defendant's right to raise the question. Invited error is
not ground for a new trial.” (citations omitted)).
Nevertheless, assuming arguendo we reviewed this issue for
plain error, we would not find prejudicial error. Defendant
asked Dr. Loughlin a series of questions regarding how children
generally respond to abuse. When defendant asked Dr. Loughlin
whether “it would not be uncommon to make up allegations of
abuse,” Dr. Loughlin responded: “I think children typically
don't just fabricate stories . . . about what's happened to
them.” As such, Dr. Loughlin’s statement is not a statement as
to the credibility of T.J., but rather a statement of opinion
that “children typically don’t just fabricate stories[.]”
Moreover, it is clear from the exchange between defendant and
Dr. Loughlin that this line of questioning was meant to explore
the credibility of children in general, rather than just the
-13-
individual credibility of T.J. See Oliver, 85 N.C. App. at 11—
13, 354 S.E.2d at 533—34.
Further, even absent the challenged testimony of Dr.
Loughlin, there was sufficient evidence of defendant’s guilt
that there was no probability a different result would have been
reached. The State presented evidence through the testimony of
the victim, T.J.; T.J.’s sister S.V.; social workers Gilmore and
Blackmon; Detective Godwin; T.J.’s foster family; and T.J.’s
primary care doctor, Dr. Bryan. The testimony of torture and
abuse was as revolting as it was overwhelming. Therefore, even
had defendant not invited the error about which she now
complains, we would have to find that the trial court did not
commit plain error in admitting the challenged testimony of the
expert witness.
No error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).