State v. Betts
| Citation | 267 N.C.App. 272,833 S.E.2d 41 |
| Decision Date | 03 September 2019 |
| Docket Number | No. COA18-963,COA18-963 |
| Parties | STATE of North Carolina v. Ervan L. BETTS, Defendant-Appellant. |
| Court | Court of Appeal of North Carolina (US) |
Attorney General Joshua H. Stein, by Special Deputy Attorney General Catherine F. Jordan, for the State.
Craig M. Cooley, for defendant-appellant.
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.
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 Mazzola ("Mazzola"), a licensed clinical social worker with DSS. Mazzola also assessed M.C. for neglect, sexual abuse, and violence, and determined that M.C. had post-traumatic stress disorder
("PTSD"). Mazzola 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 Mazzola 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 Mazzola, 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 Mazzola 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 Mazzola. McSwain and Mazzola 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.
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).
Defendant first argues that the trial court plainly erred by not giving a limiting instruction to the jury regarding McSwain and Mazzola'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) (); State v. Ware , 188 N.C. App. 790, 656 S.E.2d 662 (20...
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