State Of North Carolina v. Francis Dye

• Decision Date: 19 October 2010
• Docket Number: No. COA09-1574.,COA09-1574.
• Citation: 700 S.E.2d 135
• Parties: STATE of North Carolina v. John Francis DYE, Defendant.
• Court: North Carolina Court of Appeals

700 S.E.2d 135

STATE of North Carolina

v.John Francis DYE, Defendant.

No. COA09-1574.

Court of Appeals of North Carolina.

Oct. 19, 2010.

Appeal by defendant from judgments entered on or about 28 April 2009 by Judge Orlando F. Hudson in Superior Court, Durham County. Heard in the Court of Appeals 12 May 2010.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Laura E. Crumpler, for the State.

Russell J. Hollers III, Carrboro, for defendant-appellant.

STROUD, Judge.

Defendant was convicted by a jury of two counts of statutory rape, two counts of incest of a child, second degree rape, and incest. Defendant appeals, arguing the trial court erred by allowing certain testimony from an expert witness and in failing to grant defendant's motion for a mistrial. For the following reasons, we find no error.

I. Background

The State's evidence tended to show that in 1993 Ms. Jane Smith ¹ and defendant began a romantic relationship; at the time Ms. Smith and defendant began dating, Ms. Smith's daughter, Mary, was four years old. In 1994, Ms. Smith and defendant moved in together. On 29 May 1999, Ms. Smith married defendant. In 2004, when Mary was fourteen years old, she wanted to join the marching band at her high school. Defendant told Mary she had to prove she deserved to be in band and then had sexual intercourse with her; Mary began crying and told defendant, “[T]his isn't right. You're my step-dad, you know, what are you doing.” Over the course of 2004 and the next couple of years defendant forced Mary multiple times to have sexual intercourse, oral sex, and “anal penile sex.” In September of 2006, Ms. Smith walked into her bedroom and saw defendant “on top of my daughter on the floor in my bedroom, having sex, penile to vaginal[.]”

On or about 19 February 2007, defendant was indicted for two counts of statutory rape, two counts of incest of a child, second degree rape, incest, and committing a crime against nature. After a jury trial, defendant was found guilty of two counts of statutory rape, two counts of incest of a child, second degree rape, and incest. Defendant appeals.

II. Dr. Narayan's Testimony

On appeal, two of defendant's issues focus on the testimony of Dr. Aditee Narayan, a pediatrician, “an assistant professor at Duke Medical Director for the Child Abuse Neglect Medical Evaluation Team, ... [and an] Associate Program Director for the Duke Residency Training Program.” During defendant's trial Dr. Narayan testified “as an expert in the area of general pediatrics, child behavior, diagnostic interviewing for purposes of a child medical evaluation, and the diagnosis and treatment of children suspected of being sexually abused.” We will analyze defendant's two arguments separately.

Defendant first argues that Dr. Narayan improperly testified as to her opinion of Mary's truthfulness. During direct examination by the State, Dr. Narayan was asked, “Based on your interview and your physical examination of [Mary], do you have an opinion as to whether your findings are consistent with the child's history or disclosure of sexual assault?” The following dialogue then took place:

A Yes.

MR. CAMPBELL [defendant's attorney]: Objection.

THE COURT: Overruled.

....

Q What is your opinion?

MR. CAMPBELL: Objection.

THE COURT: Hold on. Mr. Deputy, if you'll take the jury to the jury deliberation room.

(JURY LEAVES THE COURTROOM)

THE COURT: Outside the presence of the jury, Doctor, you can answer.

THE WITNESS: I believe that, based upon my medical evaluation, her presentation

is consistent with the history that she provided.

THE COURT: Any other questions?

MS. PAUL: [State's attorney] No.

THE COURT: Mr. Campbell?

MR. CAMPBELL: No. No argument.

THE COURT: Did you want to be heard?

MR. CAMPBELL: No, Judge.

THE COURT: All right.

MR. CAMPBELL: If that's going to be the answer.

THE COURT: All right, that was the answer right now.

MR. CAMPBELL: I understand.

THE COURT: All right.

(JURY RETURNS TO THE COURTROOM)

THE COURT: All right, your objection's overruled.

....

Q Based on your examination and interview, do you have an opinion as to whether your findings are consistent with [Mary]'s history of sexual assault?

A I do have an opinion.

Q What do you base that opinion on?

A I base the opinion on her history, so the interview, her physical examination, a review of her records, I was able to form my opinion.

Q What is that opinion?

A My opinion is that, based on her presentation, her lengthy history, her physical examination, her behaviors, they're all consistent with the history that she provided of chronic sexual assault.

MR. CAMPBELL: Objection.

THE COURT: Overruled.

Thus, defendant's attorney objected to Dr. Narayan's testimony, then stated during voir dire that he did not want to be heard as to any specific basis for his objection and seemingly withdrew his objection, only to object again to the same testimony once the jury returned and examination resumed. Defendant's attorney did not state a basis for either of his two objections.

Defendant now contends that “the trial court erred in allowing the State's expert to give her opinion that [Mary] was truthful[.]” (Original in all caps.) Defendant argues that Dr. Narayan's testimony that “[m]y opinion is that, based on her presentation, her lengthy history, her physical examination, her behaviors, they're all consistent with the history of that she provided of chronic sexual assault” was “not based on anything other than Dr[.] Narayan's circular reasoning[.]” Even assuming defendant properly objected to this testimony after he failed to state a ground for his objection during voir dire and arguably even withdrew it, defendant has still failed to preserve this issue for appeal as he did not make a motion to strike the testimony. See State v. Curry, --- N.C.App. ----, ----, 692 S.E.2d 129, 138-39 (2010) (“We first note that defendant's counsel objected after the witness had answered the question, and he failed to make a motion to strike; thus, defendant waived this objection. Furthermore, when the State repeated the question, defendant failed to object to either the question or the answer; this too would waive defendant's previous objection.” (citation omitted)); State v. Burgin, 313 N.C. 404, 409, 329 S.E.2d 653, 657 (1985) (“The one objection made was lodged after the witness responded to the question. Defendant made no motion to strike the answer, and therefore waived the objection.” (citations omitted)).

Defendant next argues that the trial court committed plain error in permitting Dr. Narayan's testimony regarding secondary gain, as this testimony was also effectively vouching for Mary's truthfulness. During the State's direct examination of Dr. Narayan, the following dialogue took place:

Q ... Are you familiar with the concept of secondary gain?

A Yes.

Q If you would tell the jury what that is.

A Secondary gain is if you do something to get something else out of it. So if you-if you steal a cookie from the cookie jar in an effort to try to get attention from your mom because she's been so busy doing other things that she wasn't paying any attention to you, that would be secondary

gain. When you do one act in order to get something else out of that.

Q It's interesting the analogy that you just used. You steal a cookie from the cookie jar, you do something naughty in order to get attention from your mother because your mother's too busy.

In [Mary]'s situation, did you have any opinion or thought on the issue of secondary gain?

A I did.

Q If you would just explain to the jury what you mean.

A So the presence of secondary gain is something we always consider when we're asked to do these medical evaluations for children. Sometimes children will say things and you have to think about, well, why are they saying it, is there something else going on.

That's incredibly important because the recommendations that I would make for that child could be very different than the recommendations that I made for [Mary].

I thought that there actually was really very little secondary gain for [Mary]. She lost a great deal with this process, and I did not in my time with her feel that there was any secondary gain which she got out of this process.

She's not the one who disclosed anything, to begin with. Her mother walked in, and that's where everything started.

As to the preceding testimony, defendant argues that “the trial court plainly erred in allowing the State's expert to give her expert opinion that [Mary] was telling the truth.” (Original in all caps.) Defendant contends that “the lack of a diagnostic physical finding means that the opinion only served to vouch for the witness's credibility.... The trial court erred in allowing Dr [.] Narayan to tell the jury that she had the expert ‘feeling’ that [Mary] was telling the truth.”

As defendant did not object to the preceding testimony, he concedes that we will review it only for plain error.

Plain error is an error that is so fundamental as to result in a miscarriage of justice or denial of a fair trial. A defendant must demonstrate not only that there was error, but that absent the error, the jury probably would have reached a different result. Accordingly, defendant must show that absent the erroneous admission of the challenged evidence, the jury probably would not have reached its verdict of guilty.

State v. Cunningham, 188 N.C.App. 832, 835, 656 S.E.2d 697, 699-700 (2008) (citations and quotation marks omitted).

Defendant cites no case law to support his argument that testimony regarding “secondary gain” should be considered as testimony that “vouch[es] for the witness's credibility[.]” However, even assuming arguendo that the admission of Dr. Narayan's testimony was erroneously admitted and impermissibly bolstered Mary's testimony, we still do not conclude that this error rises to the level of plain error. See id.

In State v. Boyd, this Court stated,

[i]t is fundamental to a fair trial that the

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