State v. Clark

Decision Date17 March 2020
Docket NumberNo. COA 19-634,COA 19-634
Citation838 S.E.2d 694 (Table)
Parties STATE of North Carolina v. James Clayton CLARK, Jr., Defendant.
CourtNorth Carolina Court of Appeals

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

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

BERGER, Judge.

On July 18, 2019, a Pitt County jury found James Clayton Clark, Jr. ("Defendant") guilty of taking indecent liberties with a child. Defendant was sentenced to sixteen to twenty-nine months in prison. Defendant was also required to register as a sex offender for thirty years. On appeal, Defendant argues (1) the trial court committed plain error when it allowed an expert witness to use the word "disclosure" to describe the child victim's allegations, testify regarding treatment recommendations, and testify that the child victim had been sexually abused; (2) the trial court erred when it allowed another expert witness to testify, over objection, that the child victim had not been "coached"; and (3) that Defendant was denied effective assistance of counsel.

Factual and Procedural Background

During the summer of 2015, six-year-old "Jane" began experiencing several, lasting behavioral problems, including bed-wetting, nightmares, and social withdrawal.1 In mid-July 2016, Jane told her stepmother about an incident that occurred at her aunt's home during the summer of 2015. According to Jane, Defendant, who was dating the aunt at the time, called Jane into a bathroom him. Defendant grabbed Jane by her arm and attempted to put her hand inside of his underwear.

The day after Jane reported the incident to her stepmother, the incident was also reported to law enforcement and Jane was interviewed by the Pitt County Sheriff's Office. Jane was subsequently scheduled for an appointment with the TEDI Bear Children's Advocacy Center ("CAC"). After her screening appointment, the CAC ultimately recommended that Jane receive trauma-based therapy. According to Jane's stepmother, after one year and four months of therapy, Jane's behavioral problems "improved greatly"; however, there remains "a distance that wasn't there before."

Jane testified at trial that she had visited her aunt and two young cousins. Defendant, who was also staying at the aunt's home, was the only adult present at the time of the incident. According to Jane, Defendant called her into a bathroom, grabbed her hand, and tried to make her "touch his private." Jane testified that, as Defendant tried to place her hand down his pants, she pulled away and was eventually able to get loose from his grip. After getting loose, Jane returned to playing with her young cousins. Jane further testified that she could not remember how Defendant reacted after the incident.

According to Jane, she told both her aunt and her biological mother about the incident with Defendant but neither took any action. Jane then told her stepmother about the alleged abuse during July of the following year.

Ann Parsons ("Parsons"), a nurse practitioner who specializes in providing medical evaluations for children suspected of suffering from abuse or neglect, also testified for the State. Parsons was admitted as an expert in child abuse and forensic evaluation of abused children. At the time the alleged abuse was reported, Parsons worked for the CAC and evaluated Jane.

According to Parsons, she performed a physical examination of Jane and determined that she "was healthy" and "looked normal for [her] age from head to toe." During the evaluation, Parsons also considered Jane's behavioral history, including her social behavior, schoolwork, sleeping patterns, fears, and appetite. On direct examination by the State, Parsons was asked if she made a diagnosis in Jane's case. Parsons testified, without objection, that "[Jane] had been sexually abused."

Parsons also detailed the recommendations she made based on this diagnosis. Parsons testified, again without objection, that she recommended Jane have "[n]o contact with [Defendant] during the investigation. And any future contact with [Defendant] only to address therapeutic needs as determined by [Jane's] therapist."

The jury also heard from Andora Hankerson ("Hankerson"), a forensic interviewer with more than nine years of experience in interviewing children suspected of suffering from abuse. Hankerson holds a degree in sociology and is formally trained in forensic interviewing techniques. According to Hankerson, based on Jane's wording and demeanor during their interview, there were no indications that Jane had been "coached" by an adult in making her allegations.

On July 18, 2019, a Pitt County jury found Defendant guilty of taking indecent liberties with a child. The trial court sentenced Defendant to sixteen to twenty-nine months in prison. Defendant was also required to register as a sex offender for thirty years. Defendant now appeals arguing (1) the trial court committed plain error by allowing Parsons to use the word "disclosure" to describe Jane's allegations, testify regarding treatment recommendations, and testify that Jane had been sexually abused; (2) the trial court erred by allowing Hankerson to testify, over objection, that Jane had not been "coached"; and (3) that Defendant was denied effective assistance of counsel. We address each argument in turn.

Analysis
I. Parsons' testimony

Defendant first contends that the trial court committed plain error when it admitted portions of Parsons' expert testimony. Specifically, Defendant argues that it was plain error for the trial court to allow (1) Parsons' to use of the word "disclosure" to describe Jane's allegations, (2) Parsons' medical recommendations for Jane's treatment, and (3) Parsons' testimony that Jane had been sexually abused.

Under the plain error rule, a court "may review alleged errors affecting substantial rights even though the defendant failed to object to admission of the evidence at trial." State v. Lee , 348 N.C. 474, 482, 501 S.E.2d 334, 339 (1998). To establish plain error, a defendant "must show that a fundamental error occurred at his trial and that the error had a probable impact on the jury's finding that the defendant was guilty." State v. Towe , 366 N.C. 56, 62, 732 S.E.2d 564, 568 (2012) (citation and quotation marks omitted). Additionally, "because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. at 62, 732 S.E.2d at 568 (citation and quotation marks omitted). Only where a defendant shows that the trial court's error has "tilted the scales" of justice in the jury's determination of a defendant's guilt or innocence will a finding of plain error be appropriate. State v. Moore , 366 N.C. 100, 107, 726 S.E.2d 168, 174 (2012).

In determining whether plain error occurred, we must first consider whether Parson's testimony was improper. Towe , 366 N.C. at 61, 732 S.E.2d at 567. Under Rule 702 of the North Carolina Rules of Evidence, "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion." N.C. Gen. Stat. § 8C-1, Rule 702 (2019). "[I]n order for one qualified as an expert to present an opinion based upon his specialized knowledge, his opinion must assist the trier of fact." State v. Trent , 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987). Put another way, the witness, because of his or her expertise, must be "in a better position to have an opinion on the subject than is the trier of fact." State v. Wilkerson , 295 N.C. 559, 568-69, 247 S.E.2d 905, 911 (1978).

Defendant first contends that Parsons' expert testimony improperly bolstered Jane's testimony because Parsons used the word "disclosure" to describe Jane's allegations and purportedly asserted, via medical recommendations, that Defendant was the perpetrator of Jane's abuse. However, the former alleged error has no support in the law of this State, and the latter no support in the facts of this case.

Relying on the unpublished opinion of State v. Jamison , ––– N.C. App. ––––, 821 S.E.2d 665 (2018) (unpublished), Defendant argues that Parsons' use of the term "disclosure" to describe Jane's allegations constituted improper "vouch[ing] for the truthfulness of the accuser." However, Jamison "is not controlling, not persuasive, and ... did not properly analyze [controlling precedent]." State v. Betts , ––– N.C. App. ––––, ––––, 833 S.E.2d 41, 47 (2019). This Court has subsequently noted in the published opinion of State v. Betts , that "[t]here is nothing about use of the term ‘disclose,’ standing alone, that conveys believability or credibility." Id. at ––––, 833 S.E.2d at 47. Thus, Defendant's contention that the trial court erred by permitting Parsons to use the term "disclosure" while describing Jane's allegations is without merit.

Defendant further argues that Parsons' medical recommendations amounted to an assertion that Defendant was the perpetrator of Jane's abuse. However, Defendant's contention has no factual support in the record. As found in the record, Parsons testified, without objection, regarding her medical recommendations for Jane's treatment. Parsons' recommendations included, among other things, that Jane should have "[n]o contact with [Defendant] during the investigation. And any future contact with [Defendant] only to address therapeutic needs as determined by [Jane's] therapist."

At most, this testimony implies that Jane should not have continued contact with Defendant because she subjectively believes Defendant to be her abuser. That Jane alleged Defendant of the abuse cannot reasonably be disputed. However, Parsons' statements in no way amounted to an assertion that Defendant was, in fact, responsible for Jane's alleged...

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