State v. Bush

• Decision Date: 18 May 2004
• Docket Number: No. COA03-612.,COA03-612.
• Citation: 595 S.E.2d 715,164 NC App. 254
• Parties: STATE of North Carolina v. Steven Kelly BUSH.
• Court: North Carolina Court of Appeals

595 S.E.2d 715

164 NC App. 254

STATE of North Carolina v. Steven Kelly BUSH.

No. COA03-612.

Court of Appeals of North Carolina.

May 18, 2004.

Attorney General Roy Cooper, by Assistant Attorney General Diane G. Miller, for the State.

Miles & Montgomery, by Mark Montgomery, Durham, for defendant appellant.

McCULLOUGH, Judge.

Defendant was convicted of first-degree sexual assault and sentenced to a minimum of 336 months and a maximum of 413 months. The evidence during the State's case tended to show the following: PB, a twelve-year-old girl, and her younger sister, a seven-year-old girl, were staying over at their mother's home. PB's mother, Rita, had visitation rights with the children every other weekend. PB's father and Rita had recently been divorced, with PB's father having primary custody.

After watching a scary movie one evening, PB and her sister went to sleep in the same bed with Rita and defendant. This was not unusual. When the girls first were in the bed, Rita was in between the two girls and defendant. During the night, the younger sister kept kicking PB, and waking everyone up in the bed. At defendant's suggestion, PB moved to the other side of the bed, in between her mother and defendant.

Later during the night, defendant is alleged to have rubbed PB's genital area on the outside of her pajamas, after which he then inserted his finger into her vagina. Defendant continued to keep moving his finger inside her. After removing his finger, PB went to the bathroom. When her mother asked what was wrong, she replied that she was hot. Defendant got out of bed, went into the living room and had a cigarette. When he got out of bed, PB called to Rita, "He's following me." PB then got back in bed between her sister and defendant, but closer to her sister. The time period of the alleged incident, whether it was the school year or summer, was unclear in PB's memory.

After not telling anyone of the incident for sometime and expressing desire to discontinue the visitation pattern with her mother by skipping some visits, PB revealed what defendant had done. She did so during an argument she was having with Rita. Shocked by what her daughter told her, Rita than confronted defendant.

PB and Rita testified that defendant denied doing anything and was upset. Rita then suggested that it may have been an accident, or that he had done it in his sleep, mistaking PB for her. Defendant said he did not think he could have touched PB at all, but if he had that it must have been in his sleep. He said he was sorry if that is what had happened, and it was decided that PB would not sleep next to him anymore.

The incident was not raised again until an investigation by DSS was conducted, the reasons for which are not of record. During the investigation, the victim's mother told a detective that she thought the victim was trying to break up her and defendant. Defendant fled to Nebraska until he was extradited back to North Carolina and imprisoned.

The expert testimony diagnosing PB as having been sexually abused by defendant, and evidence that defendant owned and watched pornographic videotapes, were part of the State's case in chief against defendant. Further facts relevant to the issues raised by defendant are incorporated below.

Defendant now raises four issues on this appeal. He argues the trial court committed reversible error as to the following: (I) improperly admitting expert testimony definitively stating that defendant had sexually abused PB when there was no physical evidence of such abuse; (II) improperly admitting evidence of defendant's possession of pornographic videos and admitting into evidence one of the boxes of these videos; (III) failing to instruct the jury of the defenses of unconsciousness, mistake of fact, and accident; and (IV) improperly computing the prior record level of defendant for the purposes of sentencing. While we find admittance of the testimony of the State's expert witness constituted plain error, and grant a new trial on that ground, we will also address those issues relating to the pornographic videos and the jury instructions because they are likely to recur during a retrial.

Expert Testimony Alleging Sexual Abuse

Defendant contends that the trial court committed plain error in the admission of the testimony of Dr. Kathleen Russo, an expert in pediatric gynecology. Specifically, defendant argues admission of the doctor's statement at trial regarding her diagnosis of PB constituted plain error. Dr. Russo testified, "PB was sexually abused by Mr. Stephen Bush." She then went on to say that this diagnosis was "definite." Based on the facts of this case, we hold that allowing this highly prejudicial and otherwise inadmissible testimony rose to the level of plain error.

I. Applicable Law

A. Standard of Review

There is some question as to what standard of review we are to apply. The record indicates that defendant objected to Dr. Russo's diagnosis, but stated no grounds for his objection and did not seek to strike her subsequent testimony or object to its conclusive nature. However, because we conclude the trial court's admission of such testimony constituted a miscarriage of justice, and therefore plain error, we will apply that standard to our analysis.

Plain error is "error `so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'" State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (citations omitted), cert. denied, 528 U.S. 1084, 120 S.Ct. 808, 145 L.Ed.2d 681 (2000). Plain error does not simply mean obvious or apparent error." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Our Supreme Court has explained that the plain error rule must be applied cautiously and only in exceptional cases where, " `after reviewing the entire record, it can be said the claimed error is a "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done." ` " State v. Davis, 349 N.C. 1, 29, 506 S.E.2d 455, 470 (1998),cert. denied, 526 U.S. 1161, 119 S.Ct. 2053, 144 L.Ed.2d 219 (1999) (citations omitted).

B. Expert Testimony of Sexual Abuse

"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." State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002). See also State v. Grover, 142 N.C.App. 411, 417-18, 543 S.E.2d 179, 183-84, aff'd, 354 N.C. 354, 553 S.E.2d 679 (2001); State v. Dick, 126 N.C.App. 312, 315, 485 S.E.2d 88, 90, disc. review denied, 346 N.C. 551, 488 S.E.2d 813 (1997); State v. Trent, 320 N.C. 610, 614-15, 359 S.E.2d 463, 464-65 (1987). An 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 so as to inform the jury that the lack of physical evidence of abuse is not conclusive that abuse did not occur. State v. Hall, 330 N.C. 808, 818, 412 S.E.2d 883, 888 (1992); State v. Aguallo, 322 N.C. 818, 822-23, 370 S.E.2d 676, 678 (1988); State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 366 (1987).

II. Dr. Russo's Testimony

At trial Dr. Russo testified as to her qualification and certifications in Salisbury, North Carolina. This evidenced her undisputed status as an expert. She then testified to her involvement in the Child Medical Evaluations Program:

Q: Can you explain to the ladies and gentleman what the CME program is?

A: The CME or Child Medical Examination Program is an advocacy program for children that helps in investigating and determining if the child has suffered abuse, assisting in providing them treatment, assisting the non-offending family members this treatment and counseling, and then helping to identify the individual responsible for the abuse and finding them guilty and the punishment for that.

(Emphasis added.) Dr. Russo went on to explain her examination of PB and that she found no physical evidence of sexual abuse. She then testified that physical evidence in the vaginal area will not always be present and this would be "absolutely consistent" with that of a prepubertal child who has been sexually abused. Finally, when asked what her diagnosis of PB was, Dr. Russo stated: "My diagnosis was [PB] was sexually abused by [defendant]." The basis of her diagnosis was as follows:

I was impressed by [PB's] sensory recollection. Children cannot fantasize visual and other sensory experiences at the same time and the fact that she could tell me how she felt, how she was feeling that evening, what she felt, and what she did when she realized what was happening, what Mr. Bush's response was when she realized he was waking up, where they were, where the other people in the family were at the time, all of that other sensory recollection was very telling and adds to the credibility of her story.

(Emphasis added.)

We hold the admission of Dr. Russo's diagnosis that PB was sexually abused by defendant was plain error by the trial court. This holding is based on the following facts: PB was the only person to attest to the alleged sexual abuse by defendant. While this is often the situation in sexual abuse cases, here PB's credibility was questionable as to the sexual abuse for a number of reasons. She delayed the report of the abuse for some time (how long is not clear from the record); it was first alleged while in an argument with her mother Rita; Rita was seeing defendant after a recent divorce with PB's father (who had been given primary custody of PB); there is testimony from Rita that PB wanted to break up her and defendant; and no other incidents had been alleged against defendant. Dr. Russo's testimony added tremendous...