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State v. Peralta

Court of Appeals of North Carolina

November 5, 2019


          Heard in the Court of Appeals 13 March 2019.

          Appeal by defendant from judgments entered 4 October 2017 by Judge Henry W. Hight, Jr., in Durham County No. 16 CRS 58002-03 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General M. Elizabeth Guzman, for the State.

          Cooley Law Office, by Craig M. Cooley, for defendant-appellant.

          BRYANT, JUDGE.

         Where 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 witness testimony.

         On 3 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.

         In August 2016, while her mother, Nancy, was out of town, five-year-old Delia[1]stayed 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 ("CANMEC").

         During trial, the State proffered testimony from several witnesses including seven-year-old Delia, Delia's brother, Ryan[2], Scott Snider, and Dr. Beth Herold.

         Delia 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.

         Ryan, 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 to her.

         The 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.

         Snider, 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.

         Dr. 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 team evaluation.

         Although 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.' "

         After 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. Defendant appeals.

         On 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.


         Defendant 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).

         Our courts have

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 therewith.

State v. Wallace, 179 N.C.App. 710, 714, 635 S.E.2d 455, 459 (2006) (internal citations and quotation ...

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