in the Court of Appeals 23 April 2019.
by defendant from judgment entered 23 March 2018 by Judge R.
Stuart Albright in Forsyth County No. 15 CRS 59032 Superior
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Catherine F. Jordan, for the State.
M. Cooley for defendant-appellant.
L. Betts ("Defendant") appeals from his convictions
of three counts of indecent liberties with a child. Defendant
argues the trial court plainly erred by (1) not issuing a
limiting instruction regarding "profile" testimony;
(2) allowing testimony and reports that amounted to improper
vouching for the credibility of the victim; (3) incorrectly
instructing the jury on the proper use of testimony related
to the victim's PTSD; and (4) admitting evidence of prior
incidents of domestic violence by Defendant. Defendant also
argues that he did not receive a fair trial due to the
cumulative effect of these purported errors. We disagree.
and Procedural Background
2013, Charity Luck ("Luck") gave birth to a
daughter, B.C., who had illegal drugs in her system at birth.
The Forsyth County Department of Social Services
("DSS") began investigating Luck and her children.
On October 25, 2013, social worker Melony Archie
("Archie") conducted an interview with M.C.,
Luck's seven year old daughter. M.C. informed Archie that
Defendant had touched her inappropriately. When Archie asked
M.C. additional questions, she denied being touched
inappropriately by Defendant, but described incidents of
domestic violence between Luck and Defendant.
November 4, 2013, Archie conducted a follow-up interview with
M.C. at her elementary school. During this interview, M.C.
stated that Defendant "rubbed and poked" her vagina
while she had taken a nap in a bedroom. When M.C. rolled
over, Defendant left the bedroom to watch T.V. in the living
room. Based upon M.C.'s comments, Archie referred M.C. to
Vantage Pointe Child Advocacy Center for a forensic
interview. Archie also contacted Sergeant Crystal Prichard
November 26, 2013, Fulton McSwain ("McSwain"),
conducted a forensic interview with M.C. McSwain videotaped
the interview and wrote a report ("McSwain Report")
summarizing the forensic interview. M.C. told McSwain about
instances of domestic violence by Defendant and referenced
two specific instances in which Defendant touched her
inappropriately. M.C. told McSwain that in March 2013,
Defendant had said, "[expletive deleted] you [expletive
deleted]," and "slapped [her] on the leg really
hard." M.C. also reported that Defendant had punched her
mother on one occasion, and tried to break into their
apartment while holding a gun on another.
also informed McSwain that one night when she had slept in
the bed with Luck and Defendant, Defendant "pulled up
her nightgown then went inside of her underwear and touched
her vagina . . . . in a circular motion" when Luck had
gone to the bathroom. M.C. rolled over, fell off the bed, and
struck her head on a small refrigerator located next to the
bed. When Luck returned from the bathroom, she picked M.C.
up, and carried her to the living room. M.C. said Defendant
approached her shortly thereafter and threatened to hurt her
if she told anyone.
told McSwain that Defendant had touched her inappropriately
on several occasions between January and March 2013, but
Defendant had "never penetrated her vagina." M.C.
was unable to state the exact number of times Defendant
touched her inappropriately, but told McSwain that Defendant
"kept on doing it over and over again." McSwain
asked M.C. if Defendant had ever touched her on another part
of her body. M.C. reported "one incident in which
[Defendant] reached his hand inside of her shirt and rubbed
her breasts" on the living room couch while Luck was
outside smoking a cigarette.
conclusion of McSwain's report documenting his interview
with M.C., McSwain wrote that M.C. had "disclosed that
the alleged assailant, [Defendant], sexually abused her on
multiple occasions" and M.C. "reported to being
truthful and did not appear to display any overt signs of
was also seen by Mary Katherine Masola ("Masola"),
a licensed clinical social worker with DSS. Masola also
assessed M.C. for neglect, sexual abuse, and violence, and
determined that M.C. had post-traumatic stress disorder
("PTSD"). Masola encouraged M.C. to prepare a
"trauma narrative" as part of her treatment. The
trauma narrative consisted of chapters entitled: "Meet
the Author!"; "What Erv Did to My Mom; "When
Erv Touched Me"; "When Erv Pulled [out] a Gun and
Tried to Break Into My House"; and "When I
told Masola of three occasions which were depicted in the
trauma narrative. The first occurred when M.C. was sleeping
in the middle of the bed in-between Defendant and Luck. M.C.
stated in the trauma narrative:
I was in the middle, and [Defendant] rolled over to me and
touched me in my private part with his hand. . . . [H]e put
his hand in my pants. . . . He started moving his fingers
around on top of my private parts. Then he took his hand out
of my pants, and rolled over and went back to sleep. . . .
[Luck] was facing the other way. . . . I went to the
bathroom, but I didn't really go to the bathroom. I went
back to the living room. The next morning, [Defendant] left
and my mom asked me where I went. And I told her that I
thought I went to the bathroom, but I went to the living
wrote about another occasion in the trauma narrative:
About two weeks later, I was sitting [o]n the floor and
[Defendant] was helping me with my homework at the coffee
table, and he reached over and put his hand inside my shirt.
. . . He pulled his hand out and I pretended I had to go to
the bathroom and I went to the bathroom and I cried. . . . I
came back out and I waited until [Defendant] was gone, and I
told [Luck]. She said she was going to call Grandma Sue and
talk to her about it, but we forgot about it again.
described the third occasion in the trauma narrative as
One day, I was taking a nap on the couch and [Luck] was in
the bathroom. [Defendant] came over and put his hand in my
pants and touched me. I felt worried. He didn't say
anything. . . . My mom came out of the bathroom and
[Defendant] rushed over to the recliner. I went back to sleep
and when I woke up, [Defendant] was acting weird. He was
talking fast and he was shaky and acting like he did
something wrong. He left[.]
trauma narrative also included incidents of domestic violence
between Luck and Defendant. According to Masola, M.C.
"reported several incidents of her mom. . . getting a
black eye, having a bloody nose, [and] having to call the
ambulance" on occasions when she had been hit by
Defendant. M.C. also told Masola of a time when Defendant had
broken into Luck's apartment with a firearm.
April 25, 2016, the Forsyth County Grand Jury indicted
Defendant on three counts of indecent liberties with a child
occurring between January and March 2013. At trial, witnesses
for the State included M.C., Archie, McSwain, and Masola.
McSwain and Masola were qualified as expert witnesses.
Defense counsel initially objected to introduction of the
McSwain Report into evidence; however, Defendant did not
object to entry of a redacted version. The trauma narrative
was also admitted into evidence without objection.
did not testify at trial, and the jury found Defendant guilty
of all counts of taking indecent liberties with a child. For
each count, the jury also found the presence of two
aggravating factors which included the victim being very
young, and Defendant taking advantage of a position of trust
or confidence to commit the offenses. The trial court
sentenced Defendant to an active sentence of three
consecutive terms of 31 to 47 months imprisonment. Defendant
In criminal cases, an issue that was not preserved by
objection noted at trial and which is not deemed preserved by
rule or law without any such action nevertheless may be made
the basis of an issue presented on appeal when the judicial
action questioned is specifically and distinctly contended to
amount to plain error.
N.C. R. App. P. 10(a)(4). To establish plain error,
a defendant must demonstrate that a fundamental error
occurred at trial. To show that an error was fundamental, a
defendant must establish prejudice-that, after examination of
the entire record, the error had a probable impact on the
jury's finding that the defendant was guilty. Moreover,
because plain error is to be applied cautiously and only in
the exceptional case, the error will often be one that
seriously affects the fairness, integrity, or public
reputation of judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d
326, 334 (2012) (citations, quotation marks, and brackets
plain error standard of review applies on appeal to
unpreserved instructional or evidentiary error."
Id. The Supreme Court of North Carolina applied
plain error review to a trial court's failure to strike,
on its own motion, improper testimony from an expert witness
vouching for the credibility of an alleged sexually abused
child. State v. Towe, 366 N.C. 56, 61, 732 S.E.2d
564, 567 (2012).
first argues that the trial court plainly erred by not giving
a limiting instruction to the jury regarding McSwain and
Masola's "profile" testimony. We disagree.
we note that experts are permitted to testify about the
profiles of victims of sexual abuse. State v.
Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002);
see also State v. Hall, 330 N.C. 808, 817, 412
S.E.2d 883, 887 (1992) (permitting the use of expert
testimony "that a particular child's symptoms were
consistent with those of sexual or physical abuse victims,
but only to aid the jury in assessing the complainant's
credibility."); State v. Ware, 188 N.C.App.
790, 656 S.E.2d 662 (2008). This type of profile evidence
should be limited to its "permissible uses," and if
admitted, the trial court should generally provide a limiting
instruction. See Hall, 330 N.C. at 822, 412 S.E.2d
our courts have consistently held that "[t]he admission
of evidence which is competent for a restricted purpose
without limiting instructions will not be held to be error in
the absence of a request by the defendant for such limiting
instructions." State v. Allen, 141 N.C.App.
610, 616, 541 S.E.2d 490, 495 (2000) (citation and quotation
marks omitted); see also State v. Cox, 303 N.C. 75,
83, 277 S.E.2d 376, 381-82 (1981) (holding that, where a
witness's testimony was admissible for corroborative
purposes, there was no error when the defendant failed to
request an instruction limiting that testimony to those
both McSwain and Masola provided versions of what is
considered profile testimony. Defendant contends that the
following testimony from McSwain required a limiting
[Prosecutor]. And through the course of your employment, are
you familiar with characteristics of children that have been
[McSwain]. Yes, ma'am.
[Prosecutor]. And what are those characteristics?
[McSwain]. There's a number of different characteristics.
For example, a lot of times children who've been exposed
to sexual maltreatment, they're fearful of the offender.
A lot of times, shame, they're embarrassed or feel a
sense of guilt about the abuse happening to them. In some
instances, kids may display signs of depression or anxiety,
so there's a number of different characteristics that may
come out. The thing about it is the characteristics are
varied for each child. Not every child displays the exact
[Prosecutor]. And are you trained to observe those
characteristics when you're conducting forensic
[McSwain]. Yes, ma'am.
[Prosecutor]. And what, if any, characteristics did you
observe during your forensic interview of [M.C.]?
[McSwain]. [M.C.] expressed being fearful of [Defendant],
feeling in danger, not feeling safe around him.
addition, Defendant takes issue with Masola's testimony
that she was familiar with characteristics of children who
had been sexually abused, including anxiousness and
nervousness, and that M.C. was hesitant to talk about sex,
nervous, anxious, and worried.
Defendant concedes, our case law is clear that experts may
provide testimony regarding symptoms and characteristics of
children that have been sexually abused. State v.
Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 366 (1987).
However, Defendant takes issue with the trial court's
failure to limit the testimony to its permissible use, and
argues that the jury may have treated the testimony as
substantive evidence. While it is true that the court did not
offer a limiting instruction with respect to the experts'
profile testimony, it is also true that Defendant never
requested such an instruction. As our case law indicates,
there is no error in neglecting to give the limiting
instruction when the Defendant fails to request it. Because
there was no error by the trial court, there can be no
"fundamental error [that] occurred at trial."
Lawrence, 365 N.C. at 518, 723 S.E.2d at 334
(citations omitted). Thus, by definition, there cannot be
next asserts that the trial court plainly erred by admitting
testimony from the State's experts and lay witnesses into
evidence during which the witnesses repeatedly used the term
"disclose," or variations thereof, when summarizing
M.C.'s statements to them. Defendant contends use of the
word "disclose" amounted to vouching for M.C.'s
credibility. We disagree.
of an expert to the effect that a prosecuting witness is
believable, credible, or telling the truth is inadmissible
evidence." State v. Bailey, 89 N.C.App. 212,
219, 365 S.E.2d 651, 655 (1988) (citations omitted). Our
Supreme Court has held "[t]he jury is the lie detector
in the courtroom and is the only proper entity to perform the
ultimate function of every trial-determination of the
truth." State v. Kim, 318 N.C. 614, 621, 350
S.E.2d 347, 351 (1986). "In child sexual abuse cases,
where there is no physical evidence of the abuse, an expert
witness's affirmation of sexual abuse amounts to an
evaluation of the veracity of the child witness and is,
therefore, impermissible testimony." State v.
Crabtree, ___ N.C.App. ___, ___, 790 S.E.2d 709, 714
(2016), review on additional issues denied,
appeal dismissed, 369 N.C. 195, 793 S.E.2d 687
(2016), and aff'd, 370 N.C. 156, 804 S.E.2d 183
upon this principle, this Court held "[i]t is
fundamental to a fair trial that the credibility of witnesses
be determined by the jury." State v. Hannon,
118 N.C.App. 448, 451, 455 S.E.2d 494, 496 (1995) (citation
omitted). Therefore, expert witnesses may not vouch for the
credibility of victims in child sex abuse cases when there is
no evidence of physical abuse. Stancil, 355 N.C. at
266-267, 559 S.E.2d at 789. Our Supreme Court "has found
reversible error when experts have testified that the victim
was believable, had no record of lying, and had never been
untruthful." State v. Aguallo, 322 N.C. 818,
822, 370 S.E.2d 676, 678 (1988).
relies on the unpublished opinion of State v.
Jamison. In that case, a panel of this Court determined
that use of the term "disclose" "lent
credibility to [the victim's] testimony" and
"is itself a comment on the declarant's credibility
and the consequent reliability of what is being
revealed." State v. Jamison ___ N.C. App.___,
821 S.E.2d 665 (2018) (unpublished), review denied,
__ N.C. __, 826 S.E.2d 701 (2019). In reaching this result,
the Jamison panel relied almost exclusively on
State v. Frady.
as here and in Jamison, involved a child sexual
assault case with no physical evidence. There, the expert
testified as follows:
Q. Did you form an opinion as to whether [Debbie's]
disclosure was consistent with sexual abuse?
. . . .
[Expert Witness]. Yes.
Q. And what was your opinion?
[Expert Witness]. Our report reads that her disclosure is
consistent with sexual abuse.
Q. And what did you base your opinion on?
[Expert Witness]. The consistency of her statements over
time, the fact that she could give sensory details of the
event which include describing being made wet and the
tickling sensation.... [a]nd her knowledge of the sexual act
that is beyond her developmental level.
State v. Frady, 228 N.C.App. 682, 684, 747 S.E.2d
164, 166, review denied, 367 N.C. 273, 752 S.E.2d
465 (2013). This Court granted a new trial because the expert
stated "that [the victim]'s 'disclosure' was
'consistent with sexual abuse.' The alleged
'disclosure' was [the victim]'s description of
the abuse. . . . [Thus, the expert] essentially expressed her
opinion that [the victim] is credible. We see no appreciable
difference between this statement and a statement that [the
victim] is believable." Id. at 685-86, 747
S.E.2d at 167.
contends Jamison is persuasive. However, the
Jamison panel's reliance on Frady was
misplaced as the reasoning in Frady was not based on
defining "disclose" or prohibiting use of the word
"disclose." As illustrated by this Court's
discussion in Frady, the term "disclosure"
merely means the content of the victim's description of
abuse. Id. at 685, 747 S.E.2d at 167 ("The
alleged 'disclosure' was [the victim's]
description of the abuse."). It does not go to
believability or credibility of the information provided, or
the witness' opinion as to whether or not that
information was believable. Contrary to the analysis in
Jamison, Frady does not stand for the
proposition that use of the word "disclosure" was
error. Rather, the expert's testimony in Frady
that the victim's description of the abuse "was
consistent with sexual abuse" was the equivalent of
testifying the victim was credible.
is nothing about use of the term "disclose",
standing alone, that conveys believability or credibility.
Jamison should not be viewed as persuasive on this
point and this Court is unaware of any opinion prior to
Jamison that held that use of the word
"disclose" amounted to error because that term was
tantamount to testimony that a victim was "believable,
had no record of lying, and had never been untruthful."
Aguallo, 322 N.C. at 822, 370 S.E.2d at 678. Because
Jamison is not controlling, not persuasive, and as
discussed above, did not properly analyze Frady, we
decline to follow that panel's reasoning.
we assume there was error when the trial court did not
intervene when the term "disclose" was used,
Defendant has not demonstrated plain error. The victim
testified about two incidents of sexual assault in which
Defendant placed his hand under her clothing and rubbed her
vagina, and one incident in which Defendant placed his hand
in her shirt and rubbed her chest. The victim provided
details and descriptions of these incidents and surrounding
circumstances which the jury could consider and weigh in
light of the other evidence presented. In addition, the jury
also observed the forensic interview of the victim by McSwain
which was preserved on video, and considered the McSwain
Report which is discussed further herein.
there may have been inconsistencies in the victim's
accounts is not the issue. The jury had the opportunity to
observe the victim's testimony and make its own
independent determination about her believability and
credibility, and it is not for this Court to reweigh the
evidence. There was substantial evidence from which the jury
could find Defendant touched M.C. inappropriately. The jury
had the opportunity to make its own independent assessment
concerning the victim's credibility consistent with the
trial court's instructions, and Defendant has not
demonstrated that use of the word "disclose" had a
probable impact on the jury's finding.
The McSwain Report
next argues plain error in the trial court's admission of
the McSwain Report. We disagree.
argues the "trial court plainly erred because the
opinions and recommendations in the [McSwain Report] clearly
establish McSwain found M.C. and her sexual abuse allegations
credible and believed in [Defendant's] guilt."
noted, McSwain was tendered and admitted as an expert in
conducting forensic interviews of children. McSwain defined a
"forensic interview" as "a structured
conversation with the child designed to elicit details about
a specific event or events that the child has . . .
experienced." McSwain's report summarized the
information M.C. had told him during the forensic interview,
and contained his conclusions and recommendations. After
Defendant's initial objections, a redacted version was
also admitted into evidence.
highlights numerous portions of the McSwain Report that he
contends improperly vouch for M.C.'s credibility,
including the following sentences within a section entitled
[M.C.] displayed age appropriate competencies across all
spheres of functioning. . . . [M.C.] appeared resistant to
suggestion, unaffected by the primacy-recency effect, with
appropriate memory recall and a willingness to
correct the clinician as needed. . . . [M.C.] engaged
appropriately in dialogue, stayed focused and
followed commands. . . . [M.C.'s] language skills . . .
appeared appropriate for information gathering
purposes. . . . [M.C.] demonstrated that she understood the
difference between telling the truth and telling a
lie. [M.C.] reported an acceptance of the obligation to
report information truthfully.
(Alterations in original).
also asserts the following paragraph from a section entitled
"Summary/Conclusion" as improper vouching:
The interview notes that during the forensic interview
session, [M.C.] appeared to be consistent with the
information . . . about [Defendant] sexually abusing her. In
addition, she reported to being truthful and did not appear
to display any overt signs of deception. [M.C.]'s
assessment was consistent with that of someone who has been
contends the use of "assailant" in the following
sentence from a section entitled "Recommendations"
constitutes an improper comment upon Defendant's guilt:
2. The interviewer would strongly encourage that [M.C.]
remain inaccessible to the alleged assailant until the
reasonable conclusion to this investigation and determination
is made that [M.C.] is emotionally and physically safe when
in the assailant's presence[.]
(Alteration in original).
upon review of the trial transcript, we must conclude
Defendant is unable to show plain error with respect to any
portion of the McSwain Report. At trial, defense counsel
initially objected to the State's motion to introduce the
McSwain Report. Following a colloquy with the trial court,
defense counsel stated she would not object to the McSwain
Report, if the State were to make certain redactions. The
trial court permitted the State, with Defendant's
consent, to review the McSwain Report during an evening
recess and address statements within the report Defendant had
found objectionable. The trial court took Defendant's
objection under advisement and deferred ruling upon the
objection until the State had reviewed and redacted portions
of the McSwain Report, and Defendant had the opportunity to
review the redacted version.
next day, the State informed the trial court that it had made
the redactions to the report. After reviewing the redacted
version of the McSwain Report, defense counsel told the trial
court, "The objectionable materials have been
removed." The State renewed its motion to admit the
McSwain Report and the following exchange occurred:
[Prosecutor]: Your honor, at this time, the state would move
to introduce [the McSwain Report], which is the report from
Fulton McSwain, the forensic interviewer.
THE COURT: Any objection?
[Defense Counsel]: No, your honor.
THE COURT: Without objection, [the McSwain Report] is hereby
Section 15A-1443 of the North Carolina General Statutes,
"[a] defendant is not prejudiced by the granting of
relief which he has sought or by error resulting from his own
conduct." N.C. Gen. Stat. § 15A-1443(c) (2017).
"Thus, a defendant who invites error has waived his
right to all appellate review concerning the invited error,
including plain error review." State v. Bice,
__ N.C.App. __, __, 821 S.E.2d 259, 264-65 (2018) (quoting
State v. Barber, 147 N.C.App. 69, 74, 554 S.E.2d
413, 416 (2001)), disc. review denied, ___ N.C. ___,
___ S.E.2d___ (Aug. 14, 2019).
counsel not only failed to renew Defendant's objection to
the admission of the McSwain Report, but she affirmatively
and explicitly represented that she had no objection to the
admission of the McSwain Report after the State had made the
requested redactions. To the extent there was error by the
trial court in admitting the McSwain Report, including the
statements Defendant takes issue with on appeal, it was
invited error. Id. Defendant's arguments on
appeal concerning the McSwain Report are waived.
also argues that the trial court plainly erred by giving the
jury an impermissible limiting instruction with respect to
Masola's testimony regarding M.C.'s PTSD diagnosis.
Supreme Court addressed the question of admissibility of PTSD
testimony in State v. Hall. While the Court declined
to offer an "exhaustive" list of acceptable uses of
such testimony, it did explicitly address a few: "For
example, testimony on post-traumatic stress syndrome may
assist in corroborating the victim's story, or it may
help to explain delays in reporting the crime or to refute
the defense of consent." Hall, 330 N.C. at 822,
412 S.E.2d at 891. The Court also noted that "[i]f
admitted, the trial judge should take pains to explain to the
jurors the limited uses for which the evidence is admitted.