State v. Delsanto

• Decision Date: 02 August 2005
• Docket Number: No. COA04-876.,COA04-876.
• Citation: 615 S.E.2d 870
• Parties: STATE of North Carolina v. Stephen M. DELSANTO.
• Court: North Carolina Supreme Court

615 S.E.2d 870

STATE of North Carolina v. Stephen M. DELSANTO.

No. COA04-876.

Court of Appeals of North Carolina.

August 2, 2005.

Appeal by defendant from judgment entered 15 September 2003 by Judge Mark E. Klass in Superior Court, Davie County. Heard in the Court of Appeals 9 March 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Celia Grasty Lata, for the State.

Daniel Shatz, Durham, for defendant-appellant.

McGEE, Judge.

Stephen M. Delsanto (defendant) was indicted on one count of first degree sexual offense, in violation of N.C. Gen.Stat. § 14-27.4 (2003), and one count of taking indecent liberties with a child, in violation of N.C. Gen.Stat. § 14-202.1 (2003).

The State's evidence at trial tended to show that defendant stayed at the home of his daughter (Bonnie) from 30 September 2002 to 3 October 2002. Defendant's ex-wife (Brenda), son-in-law (Bobby), and twin grandchildren (H.B. and W.B.) were also living in the home. H.B. and W.B. were three years old at the time.

Bobby testified that on the evening of 3 October 2002, he was watching television with H.B. and W.B., when H.B. began rubbing her genital area. H.B. complained of pain and said "Pawpaw [defendant] touched me down there." H.B. also said "Pawpaw messed with [W.B.'s] penis." Bobby reported this information to Brenda, but did not tell Bonnie because Bonnie was sleeping at the time.

The following day, Brenda told Bonnie what Bobby had learned. Bonnie asked H.B. and W.B. whether they spoke with Bobby the night before. H.B. said yes, and that defendant had touched her "ginny," her shortened term for vagina. Bonnie retrieved a doll and asked H.B. to show Bonnie where defendant had touched H.B. H.B. spread the doll's legs and put her finger on the genital area. Bonnie called the Davie County Department of Social Services and Detective John Stephens (Detective Stephens) with the Davie County Sheriff's Department.

Detective Stephens interviewed H.B. He testified that H.B. told him that her "Pawpaw touched her gina and put his finger in there, and it hurt." H.B. also stated that defendant touched W.B.'s genitals. Detective Stephens was unable to successfully interview W.B. Detective Stephens made an appointment for H.B. to visit a pediatrician, Dr. Kathleen Russo (Dr. Russo), for an evaluation. Detective Stephens did not make an appointment for W.B. because, based on the allegations, there would have been no physical evidence of abuse.

Dr. Russo testified that she had received advanced recognition by the University of North Carolina Child Medical Evaluation Program, which signified that she had received advanced training in child sexual abuse. Dr. Russo testified that she examined H.B. on 18 October 2002. Dr. Russo asked H.B. if anyone had "touched [her] or hurt [her] some place that [she] did not like." H.B. responded that defendant touched her "inside" her genitals. H.B. also demonstrated this act on an anatomically correct doll.

Dr. Russo then completed a physical examination but did not note any trauma or indications of abuse in H.B.'s genital area. Dr. Russo testified that although she did not observe any physical manifestations of sexual abuse, the examination was "absolutely consistent" with H.B.'s assertion that defendant touched her genital area. Dr. Russo explained that the anatomy of the female genital area is such that healing and return to the pre-trauma condition can occur very rapidly. Dr. Russo then testified that she diagnosed H.B. as having "suffered from the sexual abuse that she disclosed to [Dr. Russo] and [H.B.'s] family."

L.B., defendant's twenty-seven-year-old niece, also testified at trial that defendant was her babysitter when she was about four years old. L.B. testified that defendant would tell her to lie on the bed, then he would remove her pants and underwear, touch her genital area and perform oral sex on her. She also stated that on one occasion defendant made her touch and kiss his penis. L.B. testified that she only told her parents and stepmother about this abuse, but that she was aware that other family members had discussed the abuse with Bonnie.

Deborah Gordon (Gordon) testified on behalf of defendant. On cross-examination, Gordon testified that she helped retrieve some of defendant's belongings from Bonnie's home. Gordon testified that defendant had a backpack of "vulgar" magazines and some pairs of women's underwear.

The jury convicted defendant of first degree sexual offense with H.B., but acquitted defendant on the charge of indecent liberties with W.B. The trial court entered judgment on 15 September 2003 and sentenced defendant to a minimum term of 288 months and a maximum term of 355 months in prison. Defendant appeals.

I.

Defendant assigns error to the trial court's admission of Dr. Russo's testimony that she diagnosed H.B. as having been sexually abused by defendant. Defendant argues that this testimony was an impermissible expert opinion on H.B.'s credibility.

"`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. Bush, 164 N.C.App. 254, 258, 595 S.E.2d 715, 718 (2004) (quoting State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (per curiam)); see also State v. Ewell, ___ N.C.App. ___, ___, 606 S.E.2d 914, 919, disc. review denied, 359 N.C. 412, 612 S.E.2d 326 (2005) (holding that it was error for the trial court to allow expert testimony that it was "probable that [the child] was a victim of sexual abuse" when the testimony "was not based on physical evidence or behaviors consistent with sexual abuse"); State v. Couser, 163 N.C.App. 727, 729, 594 S.E.2d 420, 422-23 (2004) (finding error when the trial court permitted an expert to testify that she diagnosed the victim with "probable sexual abuse" when there was insufficient physical evidence of such abuse); State v. Dixon, 150 N.C.App. 46, 53, 563 S.E.2d 594, 598-99, aff'd per curiam, 356 N.C. 428, 571 S.E.2d 584 (2002) (concluding that it was improper to allow an expert opinion that the victim had in fact been sexually abused when no physical evidence supported a finding of sexual abuse).

In Bush, our Court held that it was plain error for the trial court to permit an expert witness to testify that she diagnosed the victim as having been sexually abused by the defendant. Bush, 164 N.C.App. at 260, 595 S.E.2d at 719. The expert witness, who was also Dr. Russo, testified that a lack of physical evidence was "absolutely consistent" with the victim being sexually abused, because physical evidence of abuse is not always present. Id. at 259, 595 S.E.2d at 718. Dr. Russo testified that she diagnosed the victim as having been sexually abused by the defendant, stating:

"I was impressed by [the victim'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 [the defendant'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."

Id. at 259, 595 S.E.2d at 718. Our Court held that it was plain error to admit the expert witness' conclusive statement that the defendant had sexually abused the victim since the only evidence that the defendant sexually abused the victim was the victim's own testimony and the corroboration of other witnesses. Id. at 259, 595 S.E.2d at 718-19. As a result, "[t]he practical effect of Dr. Russo's testimony was to give [the victim's] story a stamp of credibility by an expert in pediatric gynecology[.]" Id. at 259, 595 S.E.2d at 719.

Bush is remarkably similar to the case before us. The only evidence that defendant sexually abused H.B. is H.B.'s own statements to the testifying witnesses. There was no physical evidence that H.B. had been sexually abused; yet, just like in Bush, Dr. Russo testified that this lack of physical evidence was "absolutely consistent" with H.B.'s account. Furthermore, Dr. Russo conclusively stated that defendant sexually assaulted H.B. when she testified that she diagnosed H.B. as having been sexually abused by defendant:

Q. I want to ask you now, after you conducted the physical examination and you conducted the interview with [H.B.], at some point in time did you form a medical diagnosis of [H.B.] at that time?

A. Yes, I did, sir.

Q. And what was your diagnosis?

A. My diagnosis was that [H.B.] had suffered from the sexual abuse that she disclosed to me and her family. And my feelings were that [H.B.] being a three year old child could not fantasize that these events occurred. She could not make them up. Children that young do not have the ability to fantasize or —

[ATTORNEY FOR DEFENDANT]: Objection.

A. — make up —

THE COURT: Overruled.

A. — an act like that that they have not experienced. It's not within their mental ability to do that. So based on what she told me, the consistency of what she told me, what she told the parents, what she told law enforcement was just all very striking, and that I felt like she was — that she did experience that abuse.

Under Bush, Dr. Russo's expert opinion that defendant sexually abused H.B. amounted to an impermissible opinion of H.B.'s credibility. It was error for the trial court to admit the opinion.

The State argues that defendant has failed to preserve this assignment of error because defendant made only a general objection to Dr. Russo's testimony regarding the diagnosis. A general objection is normally not sufficient to preserve an issue for review on appeal. See N.C.R.App. P. 10(b)(1)....