State v. Clark

• Citation: 868 S.E.2d 56,380 N.C. 204
• Decision Date: 11 February 2022
• Docket Number: 286A20
• Parties: STATE of North Carolina v. James Clayton CLARK, Jr.
• Court: United States State Supreme Court of North Carolina

380 N.C. 204

868 S.E.2d 56

STATE of North Carolina

v.James Clayton CLARK, Jr.

No. 286A20

Supreme Court of North Carolina.

Filed February 11, 2022

Joshua H. Stein, Attorney General, by Lisa B. Finkelstein, Assistant Attorney General, for the State-appellee.

Paul F. Herzog, Fayetteville, for defendant-appellant.

HUDSON, Justice.

¶ 1 James Clayton Clark, Jr. (defendant) appeals from a divided decision of the Court of Appeals, arguing the majority erred in upholding his conviction for taking indecent liberties with a child on the basis that the trial court erred in allowing the State's expert to testify that the minor child was "sexually abused" in the absence of physical evidence confirming her opinion. Defendant further argues that testimony by the State's expert identifying defendant as the perpetrator of the charged offense constituted plain error and that the dissenting opinion in the Court of Appeals correctly determined that the record of this case is sufficient to determine that Mr. Clark's trial counsel committed ineffective assistance of counsel. For the reasons stated, we affirm in part and reverse in part the decision of the Court of Appeals, and remand for a new trial.

I. Factual and Procedural Background

¶ 2 In the summer of 2015, six-year-old "Jane"¹ started bed-wetting, having nightmares, and withdrawing socially. Around a year later, Jane told her stepmother that defendant, Jane's aunt's boyfriend at the time, called Jane into the bathroom, "grabbed her forcefully by her arm," and "attempted to put her hand inside of his underwear in his pants." The alleged incident occurred in the summer of 2015 while Jane was staying with her aunt.² Jane told her stepmother that she was "afraid of [defendant]" because "he had tried to force her to do something that she felt like was wrong."

¶ 3 Jane's stepmother reported the incident to law enforcement the following day, and the Pitt County Sheriff's Office interviewed Jane. The sheriff's office scheduled an appointment for Jane with the TEDI Bear Children's Advocacy Center (CAC) and subsequently recommended she receive trauma-based therapy. In her testimony, Jane's stepmother stated that Jane's behavioral problems "improved greatly" after over one year of therapy, yet there remained "a distance that wasn't there before."

¶ 4 At trial, Jane testified that defendant "called [her] into the bathroom ... grabbed [her] hand ... tried to make -- make [her] touch his private ... was pulling [her] hand to his pants." According to Jane's testimony, she eventually got loose from defendant's grip and returned to playing with her cousins. Defendant was the only adult present at the time of the incident, but Jane could not remember how he reacted after the incident. Jane also testified that she informed her aunt and biological mother about the alleged abuse, but neither took any action. A year later, Jane told her stepmother about the incident.

¶ 5 Andora Hankerson testified about her experience as a forensic interviewer and that she interviewed Jane at CAC on 12 September 2016 about the alleged abuse. Ms. Hankerson testified to the following brief summary of the interview based on the written report from CAC:

Rapport was established with [Jane] and she was able to engage in the process. [Jane] was able to demonstrate the difference between truth and lie. She promised to discuss true things during her interview. The alleged offender, she stated the alleged offender called [Jane] into the bathroom, grabbed her hand, and tried to make her touch his private part. The incident occurred at her Aunt[’s] house.

Ms. Hankerson also testified about her training to recognize whether a child had been "coached" by a parent or another person and, over defendant's objection, testified that she saw no indications Jane had been "coached" based on the 12 September 2016 interview.

¶ 6 The nurse who evaluated Jane at CAC, Ann Parsons, also testified. Ms. Parsons was tendered as an expert witness in child abuse and forensic evaluation of abused children. Ms. Parsons testified that after performing a physical examination, she determined Jane "was healthy" and "looked normal for [her] age from head to toe." In her evaluations, Ms. Parsons considered "questions about [Jane's] behaviors, how was she doing at school, how's she sleeping, does she seem afraid of anything, how's her appetite, has she been more aggressive," and emphasized that "[a]fter having been dry for a period of time, she was wetting the bed." Ms. Parsons testified that she determined "[Jane] had been sexually abused." She testified the diagnosis was based "predominantly [on] the history of her disclosures to family, law enforcement and Ms. [ ]Hankerson at TEDI Bear, and her behavioral change."

¶ 7 Defendant did not object to Ms. Parson's testimony about her diagnosis of Jane as "sexually abused." Ms. Parsons also testified, again without objection, about her treatment recommendations for Jane, specifically that Jane have (1) "primary care with her regular doctor, mental health evaluation," (2) "an evidence-based trauma-focused treatment program," (3) "no contact with [defendant] during the investigation, and [(4)] any future contact with [defendant] only to address therapeutic needs as determined by [Jane's] therapist." A report summarizing these recommendations was published to the jury without objection.

¶ 8 At the conclusion of the evidence, the jury found the defendant guilty of taking indecent liberties with a child. Defendant was sentenced to twenty-nine months in prison and required to register as a sex offender for thirty years. Defendant appealed.

¶ 9 In a divided opinion authored by then-Judge Berger, the North Carolina Court of Appeals held that the trial court did not commit plain error by permitting Ms. Parsons to use the word "disclosure" in describing Jane's allegations, by permitting her to testify regarding treatment recommendations that identified defendant, and by permitting her to testify that, in her opinion, Jane had been sexually abused. State v. Clark , No. COA 19-634, 2020 WL 1274899, at *2–5 (Mar. 17, 2020) (unpublished). The majority further held the trial court did not commit plain error by allowing Ms. Hankerson to testify that Jane had not been "coached." Finally, the majority dismissed defendant's ineffective assistance of counsel claim without prejudice. Id. at *5.

¶ 10 First, the majority found no plain error in the trial court's admission of Ms. Parsons's use of the term "disclosure" in her testimony. Id. at *3. The majority reasoned "[t]here is nothing about use of the term ‘disclose,’ standing alone, that conveys believability or credibility." Id. at *3 (citing State v. Betts , 267 N.C. App. 272, 281, 833 S.E.2d 41 (2019) ). Second, the majority determined that Ms. Parsons's recommendations identifying defendant "in no way amounted to an assertion that Defendant was, in fact, responsible for Jane's alleged sexual abuse," but merely that Jane "subjectively believes defendant to be her abuser." Id. Finally, the majority held it was improper to allow Ms. Parsons's testimony stating "[Jane] had been sexually abused" but concluded defendant failed to establish the error sufficiently prejudiced him so as to constitute plain error. Id. at *4. The majority concluded the admission of Ms. Parsons's improper testimony did not result in plain error because "the State presented substantial evidence from which the jury could find Defendant guilty,"³ and the jury had ample opportunity to assess Jane's credibility. Id.

¶ 11 The majority also addressed defendant's argument that the trial court erred in permitting Ms. Hankerson to testify that Jane showed no indication of having been "coached." Id. Again, the majority found no abuse in the trial court's discretion, explaining that Ms. Hankerson provided "helpful [testimony] in assisting the trier of fact and did not improperly bolster Jane's testimony." Id. at *5.

¶ 12 Finally, the majority declined to address the ineffective assistance of counsel claim on direct appeal, dismissing the claim without prejudice to defendant's right to assert the claim in a subsequent motion for appropriate relief. Id.

¶ 13 Judge Arrowood dissented from the majority's dismissal of defendant's ineffective assistance of counsel claim, arguing the claim could be determined on the face of the record and that, in his view, defendant is entitled to a new trial. Id. at *6 (Arrowood, J., dissenting). In dissent, Judge Arrowood asserted that defendant satisfied this standard, citing to his counsel's failure to object to Ms. Parsons's testimony that "[Jane] had been sexually abused" and "her implication of defendant as the perpetrator of the abuse." Id. Judge Arrowood further maintained that trial counsel's failure to object prejudiced defendant because Jane was the only direct witness of the alleged abuse and, absent any physical evidence, her credibility was "crucial to the outcome of the case." Id. at *7. Accordingly, the dissenting opinion would have held that there was a reasonable probability that but for trial counsel's failure to object to expert testimony that impermissibly bolstered the victim's credibility, there is a reasonable probability there would have been a different result at trial. Thus, in his view, defendant was entitled to a new trial.

¶ 14 Defendant timely appealed as of right on the basis of the dissenting opinion under N.C.G.S. § 7A-30. This Court allowed discretionary review of two further issues pursuant to N.C.G.S. § 7A-31.

II. Analysis

¶ 15 Defendant argues three issues on appeal: (1) testimony by the State's expert, Ann Parsons, that Jane was "sexually abused," with respect to the absence of physical evidence confirming Parsons's opinion, constituted plain error in violation of State v. Towe , 366 N.C. 56, 732 S.E.2d 564 (2012), (2) testimony by the State's expert witness, Ms. Parsons, identifying Jamie Clark as the perpetrator of the charged offense, constituted plain error,...