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State v. Betts

Court of Appeals of North Carolina

September 3, 2019

ERVAN L. BETTS, Defendant-Appellant.

          Heard in the Court of Appeals 23 April 2019.

          Appeal by defendant from judgment entered 23 March 2018 by Judge R. Stuart Albright in Forsyth County No. 15 CRS 59032 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Catherine F. Jordan, for the State.

          Craig M. Cooley for defendant-appellant.

          BERGER, JUDGE.

         Ervan 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.

         Factual and Procedural Background

         In 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.

         On 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 with the

         Winston-Salem Police Department.

         On 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.

         M.C. 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.

         M.C. 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.

         In the 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 deception."

         M.C. 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."

         M.C. 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 room.

         M.C. 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.

         M.C. described the third occasion in the trauma narrative as follows:

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[.]

         The 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.

         On 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.

         Defendant 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 appeals.

         Standard of Review

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 omitted).

         "The 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).


         I. "Profile" Testimony

         Defendant 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.

         Initially, 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 at 891.

         However, 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 permissible purposes).

         Here, both McSwain and Masola provided versions of what is considered profile testimony. Defendant contends that the following testimony from McSwain required a limiting instruction:

[Prosecutor]. And through the course of your employment, are you familiar with characteristics of children that have been sexually abused?
[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 same characteristics.
[Prosecutor]. And are you trained to observe those characteristics when you're conducting forensic interviews?
[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.

         In 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.

         As 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 plain error.

         II. Vouching

         A. "Disclosure"

         Defendant 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.

         "[T]estimony 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 (2017).

         Based 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).

         Defendant 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.

         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.

         Defendant contends Jamison is persuasive.[1] 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.

         There 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.

         Even if 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.

         That 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.

         B. The McSwain Report

         Defendant next argues plain error in the trial court's admission of the McSwain Report. We disagree.

         Defendant 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."

         As 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.

         Defendant 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 "Impressions":

[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).

         Defendant 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 sexually abused.

         Defendant 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).

         However, 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.

         The 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 admitted.

         Under 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).

         Defendant's 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.

         III. PTSD Testimony

         Defendant 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. We disagree.

         Our 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. ...

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