State v. Grover

• Decision Date: 20 March 2001
• Docket Number: No. COA99-1447.,COA99-1447.
• Citation: 543 S.E.2d 179,142 NC App. 411
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Steven Murray GROVER, Sr.

543 S.E.2d 179

142 NC App. 411

STATE of North Carolina v. Steven Murray GROVER, Sr.

No. COA99-1447.

Court of Appeals of North Carolina.

March 20, 2001.

Attorney General Michael F. Easley, by Assistant Attorney General Celia Grasty Lata, for the State.

Thomas L. Currin, Oxford, for defendant-appellant.

HUNTER, Judge.

Steven Murray Grover, Sr. ("defendant") appeals the jury's verdict convicting him of one count of statutory rape of a person thirteen, fourteen, or fifteen years old, nine counts of taking indecent liberties with a child, one count of incest between near relatives, and one count of felony child abuse by a sexual act. Due to the prejudicial error of the trial court's admittance of expert testimony that was neither based on a specialized knowledge or expertise nor assisted the jury in understanding or determining a fact in issue, we hold that defendant is entitled to a new trial.

Evidence presented at trial tended to show that defendant was married to his third wife, and had a child from each of his prior two marriages. Defendant's daughter (herein "M") was born on 26 March 1983; his son (herein "S") was born 29 August 1984. Apparently, defendant spent little time with the children during their formative years. However, when M was twelve and S was eleven, the two began spending weekends with defendant, and thereafter in the summer of 1996 defendant gained custody of S. Significantly, S "had a history of behavioral and psychological difficulties. He be[came] ... a patient at the Children's Psychiatric Institute in Butner ... in 1991.... [S] continued regular monthly psychiatric counseling with Dr. Paul Grant while in [defendant's] custody."

During March 1997, [S] was disciplined by [defendant] with a belt for misbehavior at school.... [S] showed the bruises to his mother ... who filed an action for a domestic violence protective order.... Pursuant to that order, effective for one year, [S's mother] was granted custody of [S] in May, 1997....

In August 1997, M began living with defendant, his third wife, and S. In November 1997, M told S's mother that she and S had been sexually abused by defendant. After which, S's mother took both M and S to Granville County Social Services where both children were interviewed and given medical examinations "for signs of physical trauma to their genital and anal areas." Neither child's exams revealed any physical abuse or trauma, and M's hymen was found to be intact. Defendant denied all allegations against him but did not testify at trial.

At trial, S testified that he took showers with defendant; that defendant masturbated in front of him and M; that after defendant ejaculated, defendant told him and M to touch and taste the semen; that defendant would have him and M play hide and go seek while the three were naked, and; that once, defendant put Vaseline between S's legs and then closed the legs onto defendant's own penis, moving it back and forth until defendant ejaculated, and all this, while M watched. S further testified that defendant and he watched XXX rated movies depicting both heterosexual and homosexual intercourse and the use of rubber penises ("dildos"). Likewise, M testified that at night defendant would come into her bedroom (which she shared with S) and touch her on her breasts and vagina. She stated that defendant touched her with his hands and penis and that defendant masturbated in front of her. M further testified that defendant once attempted vaginal penetration with his penis but she yelled because it hurt and he got up. She stated that she was afraid of defendant because he had threatened to hurt her mother if M told anyone about his actions.

Defendant preserved twelve assignments of error but makes only seven arguments to this Court. Therefore, we deem any assignment not argued, abandoned. N.C.R.App. P. 28(a). Defendant's first assignment of error is that the trial court committed reversible error by admitting the expert witness testimony of Jeanne Arnts and Susie Rowe, both of whom opined that the children had been sexually abused, when there was no physical evidence of such abuse. We agree with defendant that the trial court did so err and thus, defendant is entitled to a new trial.

It has long been the law in North Carolina that:

(a) If 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, Rule 702(a) (1999). Additionally, this Court has held that where "experts found no clinical evidence that would support a diagnosis of sexual abuse, their opinions that sexual abuse had occurred merely attested to the truthfulness of the child witness," and were inadmissible. 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). Therefore, in order for the trial court to have properly admitted the expert testimony at issue,

[t]he State was required to lay a sufficient foundation to show that the opinion expressed by [the experts] was really based upon [their] special expertise, or stated differently, that [the experts] w[ere] in a better position than the jury to have an opinion on the subject....

State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987).

In the case at bar, on voir dire Ms. Arnts (the clinical social worker who twice interviewed S) stated, "[t]he conclusion was that I confirmed that [S] is a sexually abused child." (Emphasis added.) When asked what she based her conclusion on, Ms. Arnts stated, "[i]t was based upon [S]'s statements in the interviews, along with information— similar information that was corroborated by his sister." Following voir dire and over defendant's objection, the trial court then allowed Ms. Arnts to testify

[t]hat [my] conclusion was based upon [S]'s description of a number of sexualized activities and acts, which—in which he was engaged, and I believed that the fact that he had a sister who was des—also describing sexual abuse in the same home environment by the same person that [S] described, and corroborated some of what [S] said, which also corroborated [S]'s statements and provided further validation.

Finally, Ms. Arnts admitted that she filed her report even before S's physical examination results had returned for

two reason [sic], actually. One was that [S] did not describe anything to me which would cause medical findings—cause medical trauma to him, causing physical trauma to him. He did not describe penetrating trauma that we would expect them to see something on the medical exam to support what he said.

And then the other reason is just the fact that Social Services, you know, needs to get things done in a timely manner, and it was—[S] wasn't physically examined until January[,] [a month after the interviews were completed].

The record before us further reflects that later during the trial, Ms. Rowe (the pediatric nurse practitioner who conducted M's physical examination) also testified "[i]t was [her] conclusion that [M] was a sexually abused child." However, when confronted with questions of whether she found any physical evidence of abuse of M, Ms. Rowe was reluctant to admit that she found none. Regarding the anal exam, she testified:

Q. So, you saw no evidence of any abuse when you examined the anal area?

A. I saw no evidence of any trauma.

Q. Well, you saw no evidence of any abuse when you examined her, no trauma, no abuse. You saw no evidence of it.

...

Q. ...—what evidence, if any, did you find—

A. (Interposing) The anal exam was normal.

Q. All right, so you didn't find any evidence of abuse—

...

A. Of trauma. I saw no evidence of trauma.

Q. Or any other kind of abuse.

[A]. The determination of whether the trauma is abuse is not necessarily what we determine....

Q. ... what I am asking you is this. It was a perfectly normal exam.

A. That is correct.

Q. With no findings and no evidence whatsoever, so why is it that you are unwilling to say that you didn't find any evidence of abuse when you examined the anus?

A. The exam was normal. The fact that there is no history of abuse is not relevant.

...

A. There is no trauma to the anus. You can have—you can have sexual abuse to the anus without trauma. So there is no physical evidence of sexual abuse, but that doesn't mean it didn't occur.

Q. Thank you, what you just told me is what I wanted you to say, that there is, in fact, no physical evidence of sexual abuse in the anal area, and that is correct, wasn't it?

A. Yes.

(Emphasis added.) As to M's vaginal exam, defense counsel again had to inquire of Ms. Rowe several times before she would straightforwardly answer as to whether she did, in fact, find any physical evidence of sexual abuse:

Q. And you did not—you looked using this [colpo]scope and everything else and you simply found no evidence of sexual abuse?

A. I found no evidence of trauma to the hymenal membrane.

Q. Did you find any other evidence of sex abuse in that area when you examined it?

A. The examination is normal.

Q. ... so you found no evidence of trauma or of sex abuse in that examination, isn't that true, ma'am?

A. The examination is normal, has no evidence of trauma and a normal exam can be seen, whether there is sexual abuse or no[ ] sexual abuse.

...

Q. Now, your exam was also consistent with absolutely no sexual abuse having occurred at all, wasn't it?

A. The exam, physical exam is consistent with absolutely no sexual abuse, but we have a history that plays into this as well. The history is the primary focus of the findings.

Q. So, [M's] disclosures to you were the basis of any conclusions that you or the Center reached, and nothing that occurred in these physical examinations, isn't that a fact, ma'am?

A. My—excuse me, but the disclosures to me and the interviewer, not just to me.

Q. There is nothing

...