in the Court of Appeals 9 August 2017.
by defendant from judgments entered 26 April 2016 by Judge
Stanley L. Allen in Mecklenburg County Nos. 14 CRS 209708,
209712-15 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Margaret A. Force, for the State.
Blau & Saad Attorneys at Law, P.C., by Daniel M. Blau,
Shore ("defendant") appeals from judgments entered
upon his convictions for statutory sexual offense of a person
thirteen, fourteen, or fifteen years old, and for statutory
rape of a person thirteen, fourteen, or fifteen years old.
Based on the reasons stated herein, we dismiss in part and
find no error in part.
March 2014, defendant was indicted on the following charges:
four counts of indecent liberties with a child in violation
of N.C. Gen. Stat. § 14-202.1; one count of statutory
sexual offense of a person thirteen, fourteen, or fifteen
years old in violation of N.C. Gen. Stat. § 14-27.7A(a);
and three counts of statutory rape of a person thirteen,
fourteen, or fifteen years old in violation of N.C. Gen.
Stat. § 14-27A.
was tried at the 18 April 2016 criminal session of
Mecklenburg County Superior Court, the Honorable Stanley
State's evidence tended to show that in 2012,
began living with her father. She was eleven years old at the
time. H.M.'s father was living with Brandi Coleman
("Brandi") and defendant, who was Brandi's
boyfriend. H.M. testified that after moving into the house,
she spent time with defendant by jumping on the trampoline,
watching sports, fishing, watching television, and playing
video games. She described their relationship as "always
friendly, really nice. Anything I ever needed when my dad
wasn't around or Brandi wasn't around, he always
helped me." In the summer of 2013, defendant's son
moved into the house. H.M. shared a room with defendant's
son and they became best friends.
January 2014, after Brandi and defendant ended their
relationship, defendant and defendant's son moved to a
nearby apartment complex. H.M. testified that she saw
defendant and defendant's son "all the time"
after they moved, frequently visiting their apartment to
"hang out." H.M. spent the night at their apartment
more than once and slept in defendant's bed.
testified that one night, she was sleeping in defendant's
bed when defendant got into his pajamas and crawled into bed
with her. They "cuddled up together." H.M.
testified that defendant's hands "slowly started to
go down my side, " defendant put his hands around the
waistband of her pants, and then her shorts came off.
Defendant's hands "entered" her underwear and
defendant began touching H.M.'s vagina. Defendant got on
top of H.M. and kissed her neck. H.M. told defendant that she
was tired and defendant replied, "okay, " gave her
a hug, and the two fell asleep.
testified that she and defendant had vaginal intercourse on
two occasions. One incident occurred when she spent a few
nights at defendant's apartment during the weekend of 14
February 2014. On one of those nights, defendant and H.M.
began kissing on the couch. They went into defendant's
bedroom where defendant "crawled" on top of her,
put his hand inside of her, and then put his penis inside of
her. The next morning, defendant gave her a pill which he
instructed her to take. The other occasion where defendant
had sex with H.M. occurred in the same way except that
defendant did not give her a pill to take.
father testified that he would check H.M.'s cell phone on
a regular basis. On 22 February 2014, H.M.'s father was
looking through H.M.'s cell phone when he noticed text
messages from defendant. The messages included "Good
morning, Baby[, ] "Good morning, Beautiful[, ]" and
"Hello, Princess." H.M.'s father became very
angry and threw the cell phone on the ground and the screen
broke. H.M.'s father confronted H.M., asking if
"anything ever happened between you and
[defendant]" and H.M. replied, "yes."
H.M.'s father proceeded to drive to defendant's
H.M.'s father was gone, Brandi spoke with H.M. During the
conversation, H.M. revealed that defendant had touched her in
"her private areas" and that she and defendant
engaged in sex.
was not at his apartment when H.M.'s father arrived.
H.M.'s father called Brandi and she was able to convince
him to return back to his house. At his house, H.M.'s
father directly asked H.M. if she and defendant had ever had
sex and H.M. replied, "yes, Dad[.]" H.M.'s
father left his house again and went to defendant's
apartment. Defendant was not home, so H.M. went to a nearby
karate studio in search of defendant. As H.M.'s father
walked up to the karate studio, defendant was walking out.
H.M.'s father yelled, "you son of a b****, I'm
here to kill you[.]" Defendant ran back inside the
studio and came back outside with twenty men to protect him.
H.M.'s father continued to scream at defendant, claiming
that defendant had raped his daughter.
father had called the police earlier and the police arrived
on the scene. Officer Thomas Gordon and Sergeant Grant
Nelson, of the Matthews Police Department, testified that on
22 February 2014, they responded to a call at Scott Shields
Martial Arts Academy. H.M.'s father informed the officers
why he was angry and accused defendant of inappropriately
touching H.M. Sergeant Nelson testified defendant "knew
what we were there [in] reference to." After Sergeant
Nelson explained to defendant that he was not under arrest,
defendant told him of two different incidents that occurred
with H.M. Defendant stated that one time, H.M. had sat on
defendant's lap, grinding her bottom pelvic area into his
pelvic area and grabbing his crotch area. Defendant told her
to stop, but she continued. On another occasion, defendant
was standing when H.M. approached him from behind and grabbed
his crotch. Defendant again told her to stop, but she
continued to grab him. H.M. then took defendant's hand
and placed it down her pants. Defendant left his hand there
for a minute and then pulled it out of her pants.
Wood ("Wood") testified as an expert in clinical
social work, specializing in child sexual abuse cases. Wood
testified that on 5 March 2014, she interviewed H.M. at
Pat's Place Child Advocacy Center, a center providing
services to children and their families when there are
concerns that a child may be a victim of maltreatment or may
have witnessed violence. A videotape of her interview was
played for the jury with a limiting instruction that it
should be received for corroborative purposes.
close of the State's evidence, the State dismissed one
count of indecent liberties and one count of statutory rape.
testified that his relationship with H.M. was "[p]retty
good" and they were like family. Defendant denied ever
sitting on his couch and kissing H.M. and denied ever
sleeping in his bed with H.M. He also denied ever touching
her sexually with his hands, using his mouth to touch her
private parts, or having sexual intercourse with her.
Defendant admitted that H.M. spent the night at his apartment
on 14 and 15 February 2014, but testified that H.M. slept on
the lower bunk bed one of the nights and slept on the couch
the other night. He testified that on 15 February 2014, his
girlfriend, Bridget Davenport, had spent the night with
defendant in his bedroom. Defendant testified that on 16
February 2014, he was making lunch in the kitchen when H.M.
walked up to him and grabbed his crotch. He backed away and
told her "no, no. Inappropriate." H.M. giggled in
response. Defendant further testified that on the same day,
he was sitting in a recliner when H.M. sat on top of him.
Defendant pushed H.M. off of him and told her that "it
was very inappropriate, she couldn't do it, could not do
April 2016, a jury found defendant guilty of three counts of
taking indecent liberties with a child, one count of
statutory sexual offense of a person thirteen, fourteen, or
fifteen years old, and one count of statutory rape of a
person thirteen, fourteen, or fifteen years old. The jury
acquitted defendant of one count of statutory rape.
was arrested as to the indecent liberties convictions.
Defendant was sentenced to a term of 144 to 233 months for
the statutory rape conviction and to a consecutive term of
144 to 233 months for the statutory sexual offense
was ordered to register as a sex offender upon release from
imprisonment. The trial court further ordered that the
Department of Adult Correction shall perform a risk
assessment of defendant and will determine the need for
satellite-based monitoring ("SBM").
gave oral notice of appeal in open court. Defendant also
filed a petition for writ of certiorari to this Court, since
the sex offender registration and SBM are civil in nature,
and thus require written notice of appeal. N.C. R. App. P.
3(a) (2017); State v. Brooks, 204 N.C.App. 193, 195,
693 S.E.2d 204, 206 (2010). Our Court granted defendant's
petition for writ of certiorari on 21 July 2017 and we review
the merits of his appeal.
appeal, defendant argues that: (A) the trial court erred by
permitting the State to introduce unreliable expert
testimony, in violation of Rule 702 of the North Carolina
Rules of Evidence; (B) he received ineffective assistance of
counsel where his attorney elicited evidence of guilt that
the State had not introduced; (C) the trial court erred by
failing to declare a mistrial sua sponte after a
State's witness engaged in a "pattern of abusive and
prejudicial behavior" during defendant's trial; and
(D) the trial court impermissibly expressed an opinion on the
evidence by denying defendant's motion to dismiss in the
presence of the jury, in violation of N.C. Gen. Stat. §
15A-1222. We address each argument in turn.
Expert Testimony Under Rule 702
argues the trial court abused its discretion by allowing
expert witness Wood to testify that it is not uncommon for
children to delay the disclosure of sexual abuse and by
allowing Wood to provide possible reasons for delayed
disclosures. Specifically, defendant contends that Wood's
testimony was unreliable because it was neither "based
upon sufficient facts or data[, ]" nor "the product
of reliable principles and methods[, ]" in violation of
N.C. Gen. Stat. § 8C-1, Rule 702(a)(1)-(2). While
acknowledging that our Court has previously allowed analogous
expert testimony, see State v. Carpenter, 147
N.C.App. 386, 556 S.E.2d 316 (2001), appeal dismissed and
disc. review denied, 355 N.C. 217, 560 S.E.2d 143,
cert. denied, 536 U.S. 967, 153 L.Ed.2d 851 (2002),
he urges our Court to examine this issue in light of the
General Assembly's 2011 amendment to Rule 702 of the
North Carolina Rules of Evidence and the specific facts of
Court reviews a trial court's admission of expert
testimony pursuant to N.C. Gen. Stat. § 8C-1, Rule
702(a) for an abuse of discretion. State v. Hunt,
___ N.C.App. ___, ___, 790 S.E.2d 874, 881, disc. review
denied, ___ N.C. ___, 795 S.E.2d 206 (2016). "A
trial court may be reversed for abuse of discretion only upon
a showing that its ruling was manifestly unsupported by
reason and could not have been the result of a reasoned
decision." State v. Riddick, 315 N.C. 749, 756,
340 S.E.2d 55, 59 (1986).
State v. McGrady, 368 N.C. 880, 787 S.E.2d 1 (2016),
our Supreme Court confirmed that the most recent amendment of
Rule 702 adopted the federal standard for the admission of
expert witness testimony articulated in the Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125
L.Ed.2d 469 (1993), line of cases. See McGrady, 368
N.C. at 884, 787 S.E.2d at 5. "By adopting virtually the
same language from the federal rule into the North Carolina
rule, the General Assembly thus adopted the meaning of the
federal rule as well." Id. at 888, 787 S.E.2d
at 7-8. Although Rule 702 was amended, our Supreme Court
reasoned that "[o]ur previous cases are still good law
if they do not conflict with the Daubert
standard." Id. at 888, 787 S.E.2d at 8. While
the amendment "did not change the basic structure of the
inquiry" under Rule 702(a), it "did change the
level of rigor that our courts must use to scrutinize expert
testimony before admitting it." Id. at 892, 787
S.E.2d at 10. "To determine the proper application of
North Carolina's Rule 702(a), then, we must look to the
text of the rule, [the Daubert line of cases], and
also to our existing precedents, as long as those precedents
do not conflict with the rule's amended text or with
Daubert, Joiner, or Kumho."
Id. at 888, 787 S.E.2d at 8.
text of Rule 702, in pertinent part, provides:
(a) If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion, or
otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and
(3) The witness has applied the principles and methods
reliably to the facts of the case.
N.C. Gen. Stat. § 8C-1, Rule 702(a) (2016).
McGrady Court held that:
Rule 702(a) has three main parts, and expert testimony must
satisfy each to be admissible. First, the area of proposed
testimony must be based on "scientific, technical or
other specialized knowledge" that "will assist the
trier of fact to understand the evidence or to determine a
fact in issue." This is the relevance inquiry[.]
. . . .
Second, the witness must be "qualified as an expert by
knowledge, skill, experience, training, or education."
This portion of the rule focuses on the witness's
competence to testify as an expert in the field of his or her
proposed testimony. . . . Whatever the source of the
witness's knowledge, the question remains the same: Does
the witness have enough expertise to be in a better position
than the trier of fact to have an opinion on the subject?
. . . .
Third, the testimony must meet the three-pronged reliability
test that is new to the amended rule: (1) The testimony [must
be] based upon sufficient facts or data. (2) The testimony
[must be] the product of reliable principles and methods. (3)
The witness [must have] applied the principles and methods
reliably to the facts of the case. These three prongs
together constitute the reliability inquiry discussed in
Daubert, Joiner, and Kumho. The primary
focus of the inquiry is on the reliability of the
witness's principles and methodology, not on the
conclusions that they generate[.]
McGrady, 368 N.C. at 889-90, 787 S.E.2d at 8-9
(internal citations, footnote, and quotation marks omitted).
present case, defendant does not dispute either Wood's
qualifications or the relevance of her testimony. Defendant
challenges the reliability of Wood's delayed disclosure
testimony; whether her ...