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State v. Martinez

Court of Appeals of North Carolina

May 16, 2017


         Appeal 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.

         Originally 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.

         By 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)."

         This opinion replaces the original Opinion filed on 30 December 2016.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Lauren M. Clemmons, for the State.

          Hale Blau & Saad, P.C., by Daniel M. Blau, for the Defendant.

          DILLON, Judge.

         Jesus 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.

         I. Background

         The 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.

         Mother 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[1], 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.

         At trial, Chloe testified in detail regarding incidents where Defendant had engaged in sexual acts with her.

         Defendant 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.

         Mother 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 appealed.

         II. Analysis

         Defendant 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.

         A. Expert Testimony

         Defendant's 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 it?
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.

(emphasis added).

         On 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.

         Our 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 ...

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