by Defendant from judgments entered 18 September 2015 by
Judge Yvonne M. Evans in Mecklenburg County Nos.
14CRS217434-36, 14CRS217439, 14CRS217441, 14CRS217447-48,
14CRS217453, 14CRS217456, 14CRS217458-59 Superior Court.
heard in the Court of Appeals 20 September 2016. By opinion
filed 30 December 2016, this Court found no reversible error
as to five of the eleven convictions, but vacated the other
six convictions based on our conclusion that certain jury
instructions constituted plain error.
Order entered 16 March 2017, our Supreme Court remanded the
matter to our Court for the limited purpose "of
determining whether the trial court's instruction held to
have been erroneous by the Court of Appeals constituted plain
error as required by State v. Boyd, 222 N.C.App.
160, 730 S.E.2d 193 (2012), rev'd for the reasons
stated in the dissenting opinion, 366 N.C. 548, 742
S.E.2d 798 (2013)."
opinion replaces the original Opinion filed on 30 December
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Lauren M. Clemmons, for the State.
Blau & Saad, P.C., by Daniel M. Blau, for the Defendant.
Martinez ("Defendant") appeals from judgments
entered upon jury verdicts finding him guilty of eleven
felonies based on sexual conduct he engaged in with a minor.
evidence at trial tended to show as follows: Defendant was
cohabiting with his girlfriend ("Mother"),
their infant child, and Mother's three children
from a prior relationship.
testified that one morning, she walked into the bedroom she
shared with Defendant and saw the sheets "moving up and
down." She pulled back the sheets and saw her
eight-year-old daughter, Chloe, curled into a "little
ball" and "hiding." Mother later asked Chloe
what had been happening, and Chloe replied that Defendant had
engaged in certain sexual conduct with her and had also done
so in the past.
trial, Chloe testified in detail regarding incidents where
Defendant had engaged in sexual acts with her.
testified that when Mother walked into the bedroom, he and
Chloe had simply been spending time together in bed, that
both had been fully clothed, and that Mother had
misinterpreted the situation.
informed law enforcement of the incident, and Defendant was
subsequently arrested and indicted for numerous offenses.
Defendant was convicted of eleven felonies: four counts of
sex offense in a parental role, two counts of sex offense
with a child, and five other felonies. Defendant timely
makes four arguments on appeal: (1) that a medical expert
witness impermissibly vouched for Chloe's credibility;
(2) that a prospective juror made grossly prejudicial remarks
during jury selection; (3) that the trial court's
disjunctive instruction relating to the six "sexual
offense" charges constituted plain error; and (4) that
Defendant should have been allowed to introduce certain
evidence to impeach the testimony of Chloe's mother. We
address each argument in turn.
first set of arguments relate to a statement made by Dr.
Patricia Morgan which Defendant contends constituted improper
vouching by an expert. During direct examination, Dr. Morgan
made the following statement:
PROSECUTOR: . . . [W]ould you be able to confirm [from a
medical exam] whether or not [Chloe] could have experienced
vaginal bleeding a month or so prior?
DR. MORGAN: It might be difficult to say because, again, that
finding in and of itself I could see it in a girl who may not
have experienced abuse. But in the fact that she did
experience abuse, as well as have those findings of
bleeding that she -
[Defense Counsel interrupted Dr. Morgan's testimony with
an objection, but then withdrew the objection immediately.]
DR. MORGAN: Could you give me the question again, please? I
want to make sure I'm answering it properly.
PROSECUTOR: Yes, ma'am. I was just asking if in looking
at the hymen, if you knew one way or the other if she
previously experienced bleeding. Can you tell by looking at
DR. MORGAN: If by looking at it I wouldn't be able to
necessarily say if she had any bleeding because, again, the
nature of the hymen is that it heals. And so I really
couldn't say unless there was some residual or something
that was evidence that shows that there was trauma.
appeal, Defendant contends Dr. Morgan's statement
emphasized above - that "in the fact that she did
experience abuse" - constituted inadmissible expert
opinion regarding Chloe's credibility. Defendant
also contends that his counsel's failure to object
constituted ineffective assistance of counsel.
Supreme Court has held that in the absence of physical
evidence to support a diagnosis of sexual abuse, expert
testimony that sexual abuse has in fact occurred is not
admissible because it is an impermissible opinion regarding
the victim's ...