Heard in the Court of Appeals November 20, 2014.
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Attorney General Roy Cooper by Special Deputy Attorney General Robert M. Curran for the State.
Mark Montgomery for defendant-appellant.
STEELMAN, Judge. Judges GEER and STEPHENS concur.
Appeal by defendant from judgments entered 30 September 2013 by Judge Jeffery Hunt in Cleveland County Superior Court
Nos. 12 CRS 863-64, 12 CRS 51181-83.
Where the testimony of expert witnesses was restricted to their own observations and experiences, their testimony did not constitute expert opinions that the State was required to disclose prior to trial. The trial court did not err or abuse its discretion by allowing the witnesses to testify. Even assuming, arguendo, that the trial court erred by allowing witnesses to testify pursuant to Rule 404(b), defendant has failed to show prejudice. The trial court did not err by using the word " victim" to refer to the prosecuting witness during its instructions to the jury.
I. Factual and Procedural Background
On 12 March 2012 Randy Carter Davis (defendant) was indicted for one count of first degree statutory rape of a child under 13, one count of sexual offense of a minor by a person in a parental role, and one count of first degree statutory sexual offense against a child under 13, with respect to G.S.; and for one count of indecent liberties and one count of sexual offense of a minor by a person in a parental role with respect to L.W. The charges against defendant came on for trial at the 23 September 2013 session of criminal superior court for Cleveland County.
A. State's Evidence
G.S. was born in 1976 and was thirty-seven years old at the time of trial. Her mother and defendant began living together when she was three or four years old, and married in 1981. She lived with defendant, her mother and her younger siblings until she was nine years old, when her mother and defendant separated. After defendant and her mother separated, G.S. had occasional weekend visits at defendant's residence until she was 13 years old.
From the time G.S. was three and a half to four years old until she was thirteen, defendant engaged G.S. in sexual activity " every chance he got." Defendant committed more than 100 sexual offenses against her, including masturbation, oral sex and vaginal intercourse. Defendant's conduct ended when G.S. was thirteen and she stopped visiting defendant's residence. G.S. knew L.W., defendant's other step-daughter, but had no contact with L.W. after she was thirteen.
Defendant told G.S. not to reveal these sexual activities, but when G.S. was 16, she told her boyfriend, T.S., that defendant had sexually abused and raped her. She married T.S. when she was 17 and at the time of trial they were still married and had two children. T.S.'s testimony corroborated that of G.S. After 2006, G.S. and her husband attended the same church as defendant and, on one occasion in church, defendant gave G.S. a card stating that he was sorry. In 2011, G.S. told her pastor " a little bit of what happened" between her and defendant. She later reported defendant's sexual assaults to the Cleveland County Sheriff's Department.
In her teens and twenties, G.S. experienced nightmares and trouble sleeping, and in 2006 she was briefly hospitalized with suicidal thoughts. In the hospital she was treated by Dr. Vikram Shukla, who testified as an expert in child and adolescent psychology. Dr. Shukla treated G.S. with anti-depressant and anti-psychotic medication for alcohol abuse, depression, and psychotic depression. She responded well to treatment, and was no longer psychotic when she was discharged. While G.S. was in the hospital, she told Dr. Shukla that she was sexually abused by her stepfather from age three and a half or four to age thirteen.
Sandra Chrysler testified as an expert in mental health counseling. She began counseling therapy with G.S. in March 2013. During counseling, G.S. described to her the sexual abuse by defendant.
L.W. was born in 1976 and was 6 months older than G.S. When she was eleven years old, her mother married defendant, and she lived with her mother and defendant until she was sixteen or seventeen. For several years, starting when L.W. was thirteen or fourteen years old and after G.S. had stopped visiting defendant's residence, defendant frequently talked to L.W. about sexual matters and attempted to engage her in sexual activity. Defendant told L.W. that he wanted to be her first sexual partner and asked her to perform oral sex on him. On a number of occasions defendant entered L.W.'s room at night and either masturbated by her bed or tried to physically force her to have sex. L.W. successfully rebuffed these attempts by kicking defendant. L.W. never reported these incidents until she was contacted by a detective in 2011. Once, when L.W. and G.S. were young, G.S. asked her " if anything had ever happened," but L.W. did not want to talk about it, and she was not aware of the sexual contact between defendant and G.S.
A.J., who was twenty-two years old at the time of trial, testified pursuant to Rule 404(b) of the North Carolina Rules of Evidence. When she was 12 or 13 she became acquainted with defendant. Their relationship was that of a " grandparent and grandchild." She knew L.W. from occasional family get-togethers, but did not know G.S. For several years, beginning when A.J. was about twelve, defendant frequently discussed sexual matters with her, made comments about her breasts, and offered advice on sexual subjects. Defendant also told A.J. that when L.W. was younger he discussed sex with her and took sexual pictures of L.W., and offered to do the same for A.J.
S.W., who was eighteen years old at the time of trial, also testified pursuant to Rule 404(b). When she was fourteen, defendant assisted with youth activities at her church. He frequently discussed sexual matters with S.W., asked to be her first sexual partner, and sent an explicit photo to her cell phone. Tracy Marlowe was married to S.W.'s aunt, and knew defendant through church. When S.W. was a teenager she confided to him that she had received suggestive phone messages from defendant.
Greg Neely was the pastor of the church attended by defendant, who was involved in youth activities in the church. In 2011 Pastor Neely met with defendant to discuss his concerns about defendant's conduct with teenage female members of the church, and asked defendant to " back away" from involvement with the young people of the church. Pastor Neely testified that due to " an accumulated amount" of incidents involving defendant and " a gathering of things that brought us to the point to take action," the church later sent defendant a letter informing him that he was banned from the church premises. Defendant did not respond to the letter. S.W. told Pastor Neely about unwanted conversations and text messages from defendant. Pastor Neely also met with G.S., who told him about defendant's abuse, and he encouraged her to go to law enforcement.
Deputy Tracy Curry of the Cleveland County Sheriff's Department interviewed G.S. and L.W. in October 2011, and interviewed A.J. and S.W. in 2012. His account of these interviews corroborated the testimony of the witnesses.
B. Defendant's Evidence
Delores Davis had been married to defendant for over 25 years at the time of trial. Her daughter, L. W., was eleven years old when she and defendant were married. Ms. Davis never saw anything inappropriate about L.W.'s relationship with defendant. G.S. had visited their home and Ms. Davis recalled her as happy and normal. She never saw or heard anything suspicious regarding A.J and defendant. Ms. Davis testified that her husband was never alone with the female witnesses, other than to drive L.W. to school.
Following the presentation of the State's evidence, the charge of sexual offense against L.W. by a person in a parental role was reduced to a charge of attempted sexual offense against L.W. On 30 September 2013 the jury returned verdicts finding defendant guilty of all charges. Pursuant to the Fair Sentencing Act, which governed sentencing for felonies committed between 1 July 1981 and 1 October 1994, the trial court imposed active prison sentences of life in prison for first degree statutory sexual offense against G.S., life in prison for first degree statutory rape of G.S., and three years for attempted sexual offense against L.W., with these sentences to be served consecutively; and three years for indecent liberties against L.W., and four and a half years for sexual offense against G.S. by a person in a parental role, with the last two sentences to be served concurrently with the first set of offenses.
II. Admission of Expert Testimony
In his first argument, defendant contends that the trial court erred in admitting portions of the expert testimony of Dr. Shukla and Ms. Chrysler. Defendant asserts that these witnesses offered " opinion testimony" that was erroneously admitted without a proper foundation and in violation of discovery statutes, and that the testimony " amounted to ...