in the Court of Appeals 13 March 2019.
by defendant from judgments entered 4 October 2017 by Judge
Henry W. Hight, Jr., in Durham County No. 16 CRS 58002-03
Attorney General Joshua H. Stein, by Assistant Attorney
General M. Elizabeth Guzman, for the State.
Law Office, by Craig M. Cooley, for defendant-appellant.
an expert witness did not impermissibly vouch for the
credibility of another witness, the trial court did not err
in admitting the expert witness testimony. Where defendant
sought to admit impermissible character evidence, the trial
court did not err in denying the testimony. Where the
admission of witness testimony was proper, the trial court
did not err in its instructions to the jury regarding that
October 2016, a Durham County Grand Jury indicted defendant
Darwin Josue Peralta on one count of statutory rape of a
child by adult offender and three counts of statutory sexual
offense of a child by adult offender. A second indictment was
issued charging defendant with three counts of indecent
liberties with a child. Defendant pled not guilty, and his
case was tried before the Honorable Henry W. Hight, Jr.,
Judge presiding, on 26 September 2017. Defendant was found
guilty by a jury on all seven counts.
August 2016, while her mother, Nancy, was out of town,
five-year-old Deliastayed overnight at a babysitter's
house where defendant resided. On the day before Nancy
returned, Delia called Nancy and asked her to tell defendant
not to "lock her up in the room anymore."
Thereafter, Delia told Nancy that defendant had been
"touching her in her privates[, ]" "put his
private organ inside [of] her[, ]" and said, "give
me your milk." Nancy took Delia to the emergency room at
Duke Medical Center, and the staff referred them to the Duke
Child Abuse and Neglect Medical Evaluation Clinic
trial, the State proffered testimony from several witnesses
including seven-year-old Delia, Delia's brother,
Ryan, Scott Snider, and Dr. Beth Herold.
testified before the jury on her birthday and had just turned
seven years old that day. Delia described, in significant
detail, the numerous acts of sexual abuse by defendant: that
defendant touched her private area ("her pee-pee"
and "her poo poo") many times with his hands and
his private part; that defendant "spit in his hand"
and touched his private part; and that defendant touched her
in all the rooms in the house. In particular, Delia described
defendant bringing her to his bedroom, taking off her clothes
along with his clothes, and touching her while they were both
naked in bed. She stated this occurred sometimes while they
were playing hide-n-seek with other children in the house.
Delia further testified that she hid in the bathroom because
defendant would touch her.
Delia's ten-year-old brother, testified at trial that
Delia would sometimes ask him to stand at the door while she
used the bathroom. He stated that one day while playing
hide-n-seek, he saw defendant and Delia laying on the bed
under the covers. Delia's clothes were on the floor, and
Delia was lying on her back while defendant was looking in
her direction and touching her private part. Ryan testified
to also observing the following behavior of defendant towards
Delia: that defendant "told [Delia] to go with [him] and
then he [would] give her candy;" that defendant kept
candy in a blue bowl under his bed; and that defendant would
only play with Delia in the room during hide-n-seek and
"never went [to] find [the other children]." Ryan
further testified that he asked Delia about lying down with
defendant and that she told him defendant touched her private
parts. Ryan urged her to tell their parents, but she was
scared. Finally, she told them what defendant had been doing
State presented Snider and Dr. Herold to testify about
Delia's medical evaluation. Defendant objected to their
testimony--specifically to the use of Delia's
out-of-court statements in regard to their respective
evaluations. The trial court overruled defendant's
objections and permitted Snider and Dr. Herold to testify.
a licensed clinical social worker at CANMEC, saw Delia on or
about 8 September 2016 as a part of her evaluation to
determine a medical diagnosis or treatment. Snider video
recorded his diagnostic interview with Delia, gathered
detailed statements from Delia describing the sexual contact
with defendant, and prepared a report. At trial, Snider
testified to his interview with Delia: "She described
alleged sexual contact by a man named Darwin. She described
that 'he [would] put his finger in my cosita,' which
was based upon determinations of questioning her, was her
genital area. And his finger [was] in her cosita, her back.
And that he had droul [sic] on his part, and put his part in
her mouth and in her cosita, and in her back. And her back,
meaning her buttocks." Snider also testified that he
asked Delia "where she would be when these things would
happen. And she sa[id], 'in the room. In the bathroom. In
the living room. His room.'" Specifically, Delia
told him about "a particular isolated incident in the
bedroom: When she came in and she says he put her on top of
him in the bedroom, and he had no clothes on[.]"
Snider's videotaped interview with Delia was played for
the jury during his testimony.
Herold, a nurse practitioner at CANMEC, testified about the
physical examination she performed on Delia, which was based
on Delia's statements provided by Snider, and the CANMEC
called as a witness for defendant, Detective Jesus Sandoval,
who investigated the case, testified about his interview with
Delia, in which she told him about the sexual acts performed
by defendant: "She told me about the kids playing a
game, and that [defendant] called her into [another] room. .
. . She said, 'he was touching me.' And I said,
'How did he touch you?' And that is when she stated
that he pulled her pants down and 'put his fingers in
[her][.]' . . . . And I said, 'Where did he put his
fingers?' She said, 'Right here,' and she pointed
down to her genitals. And she was on video, but she gestured
down her genital area." Detective Sandoval further
testified: "[B]asically she said that he carried her to
the room. She said, 'No' so he picked her up and
carried her there. . . . And I asked her, 'Did that
happen a lot or just one time?' And she said, 'A lot
of times.' "
being found guilty on all counts, defendant was sentenced to
300 to 420 months for statutory rape of a child, 300 to 420
months for three counts of statutory sex offense with a child
by an adult, and 16 to 29 months for three counts of indecent
liberties with a child. All sentences were to run consecutive
to each other. Defendant was ordered to register as a sex
offender upon his release from prison and enroll in
satellite-based monitoring for the remainder of his life.
appeal, defendant argues the trial court erred by: I)
allowing the State to introduce improper testimony from Dr.
Herold, II) excluding statements from rebuttal witnesses to
be used during his defense, and III) issuing instructions to
the jury regarding certain testimony and evidence presented
by the State.
first argues the trial court erroneously admitted opinion
testimony. On this record, defendant does not directly
challenge the testimony of the child victim, Delia, or Scott
Snider. Instead, defendant argues that Dr. Herold's
testimony was inadmissible because her expert opinion
attested to the truthfulness of Delia's statements.
Having not objected to the disputed testimony at trial,
defendant now urges that Dr. Herold's statements
detailing the process of diagnosing Delia constituted plain
error. After careful consideration, we disagree.
In criminal cases, an issue that was not preserved by
objection noted at trial and that 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) (2019). "For error to
constitute plain error, a defendant must demonstrate that a
fundamental error occurred at trial." State v.
Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).
"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." Id.
(citation and quotation marks omitted).
set out the limits and restrictions on expert testimony in
child sexual abuse cases. In a sexual offense prosecution
involving a child victim, the trial court should not admit
expert opinion that sexual abuse has in fact
occurred because, absent physical evidence supporting a
diagnosis of sexual abuse, such testimony is an impermissible
opinion regarding the victim's credibility. [A]n expert
witness may testify, upon a proper foundation, as to the
profiles of sexually abused children and whether a particular
complainant has symptoms or characteristics consistent
State v. Wallace, 179 N.C.App. 710, 714, 635 S.E.2d
455, 459 (2006) (internal citations and quotation ...