in the Court of Appeals 3 October 2018.
by Defendant from an order entered 26 May 2017 by Judge Vance
Bradford Long in Randolph County, Nos. 06CRS50128, 50668
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Anne M. Middleton, for the State.
Carolina Prisoner Legal Services, Inc., by Lauren E. Miller,
for the Defendant.
present appeal is the second to our Court in this matter. In
the first appeal, we found no error in the judgment
convicting Defendant Timothy Ray Casey
("Defendant") of various sexual crimes. In this
present appeal, Defendant seeks review of the trial
court's order denying his Motion for Appropriate Relief
("MAR") seeking a new trial for ineffective
assistance of his trial counsel and of his appellate counsel.
For the reasons explained herein, we reverse the trial
court's order and remand with instructions to enter an
order granting Defendant's MAR.
was indicted on one count of statutory sexual offense and two
counts of taking indecent liberties, stemming from alleged
encounters with the minor daughter
("Kim") of his then live-in girlfriend.
evidence at trial tended to show as follows: In 1996, when
Kim was five years of age, Defendant moved in with Kim and
her mother. Nine years later, on 1 January 2006, when Kim was
fourteen years of age, Defendant broke up with Kim's
mother and moved out. Two days later, on 3 January 2006, Kim
told her mother, who was upset about the breakup, that
Defendant had molested her during the nine-year period he had
lived with them.
State offered no physical evidence of the alleged sexual
abuse or that Kim had told anyone of the abuse prior to
telling her mother.
State did call other witnesses, including a clinical
psychologist, qualified as an expert. This expert opined on
direct examination that Kim exhibited signs consistent with
being sexually abused. During cross-examination, however, the
expert went further and made statements that Kim had, in
fact, been sexually abused. Defendant's trial counsel
made no motion to strike these statements.
jury found Defendant guilty of all charges. Defendant
appealed to this Court. During the first appeal to our Court,
Defendant argued, in part, that the expert's testimony
offered on direct - that Kim exhibited signs
consistent with sexual abuse - amounted to impermissible
vouching. Defendant's appellate counsel made no argument
concerning the expert's statements made during
cross-examination that Kim had been sexually abused. We found
no error, never addressing any issues concerning the
expert's statements made during
subsequently filed a MAR with the trial court, alleging
ineffective assistance by both his trial counsel and his
appellate counsel. The trial court issued an order denying
petitioned this Court for a writ of certiorari to
review the order. We granted Defendant's petition and now
review the merits of his arguments.
Standard of Review
review the trial court's Order denying Defendant's
MAR for "whether the findings of fact are supported by
evidence, whether the findings of fact support the
conclusions of law, and whether the conclusions of law
support the order entered by the trial court." State
v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591
(1982). Based on the following, we reverse and remand for a
argues that the trial court should have granted his MAR based
on the ineffective assistance of counsel he received at the
trial level and at the appellate level. For the following
reasons, we conclude that (1) the testimony offered by the
State's expert that Kim had, in fact, been sexually
abused was inadmissible; (2) Defendant has waived any
argument concerning whether he was denied effective
assistance of trial counsel; and (3) Defendant was
denied effective assistance of appellate counsel in
his first appeal when counsel failed to make any argument in
the first appeal concerning the expert's testimony that
Kim had, in fact, been sexually abused. Accordingly,
Defendant is entitled to a new trial.
Testimony by the State's Expert at Trial
expert opinions offered in sexual offense prosecutions
involving a child victim, our Supreme Court has instructed as
follows: An expert may offer an opinion as to whether a child
presents symptoms or characteristics consistent with
those exhibited by children who have, in fact, been sexually
abused. See State v. Kennedy, 320 N.C. 20, 32, 357
S.E.2d 359, 366 (1987). However, where there is no physical
evidence of sexual abuse, an expert may not offer an opinion
"that sexual abuse has in fact occurred"
in that case. State v. Stancil, 355 N.C. 266,
266-67, 559 S.E.2d 788, 789 (2002) (reasoning that
"absent physical evidence supporting a diagnosis of
sexual abuse, such testimony is an impermissible opinion
regarding the victim's credibility"). And an
expert's opinion which bolsters the child's
credibility may constitute plain error. State v.
Towe, 366 N.C. 56, 62-63, 732 S.E.2d 564, 568 (2012).
the trial in this matter, the State offered no physical
evidence that Kim had been sexually abused.
State did tender an expert who opined on direct that Kim
exhibited characteristics consistent with that of a sexual
abuse victim, as generally allowed under our case law, though
the basis of his opinion does not seem particularly
compelling. That is, he did not base his opinion on the
presence of emotional or psychological trauma that he
observed in Kim that may also be found in a sexual abuse
victim, as he testified that Kim did not exhibit any such
signs. Rather, he based his opinion essentially on his belief
that Kim was credible, listing two factors: (1) Kim's
ability to describe various sexual acts at such a young age
and (2) Kim had no reason to lie. We note, though, that Kim
was actually fourteen (14) years old when she first reported
the abuse and further that Defendant had ended his
decade-long relationship with Kim's mother just two days
before Kim first reported the abuse:
Q: Doctor, do you have an opinion satisfactory to yourself as
to whether or not [Kim] exhibited characteristics of someone
who had been sexually abused? . . . Could you tell us what
that is and your basis for that?
A: My opinion is that she does display characteristics
consistent with a child, young adult, adolescent adult who
has been sexually abused. The characteristics that would be
germane in this case are first that she describes in a
plausible way sexual acts. That she describes those acts in a
way that are consistent with other sources of information.
That she has a - had an age-inappropriate sexual knowledge.
[Second] [t]hat she did not have what would appear to be
obvious alternative reasons for making a disclosure. . . .
That she did not have obvious reasons for making a false
disclosure . . . . That would be the extent of my basis.
Q: Thank you, Doctor. No further questions.
event, as noted in the trial court's MAR order,
Defendant's counsel during the jury trial did properly
object to the opinion offered by the State's expert
on direct. And Defendant's appellate counsel
challenged this opinion in the first appeal. However, as we
stated in the first appeal, the State's witness on
direct never expressly opined that Kim had, in fact,
been sexually abused, just that the manner in which she was
able to describe the abuse was consistent with someone who
had been sexually abused, an opinion which is generally
allowed even where there is no physical evidence of sexual
argues in this current appeal that on
cross-examination, the State's expert went further
by opining that though Kim did not exhibit any
characteristics of psychiatric trauma, she had, in fact, been
Q: Well now according to your report, wasn't there -You
said that you - you comment on her performance on the
Rorschach test and you say there was no indication of ...