State v. Parker
| Decision Date | 03 August 1993 |
| Docket Number | No. 9227SC30,9227SC30 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Charles Marvin PARKER. |
Attorney Gen. Lacy H. Thornburg by Asst. Atty. General Melissa L. Trippe, Raleigh, for the State.
Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Mark D. Montgomery, Raleigh, for defendant-appellant.
This case arises out of acts that allegedly occurred between defendant and his minor daughter, (whom we shall refer to as T.P. due to her young age). At trial, T.P. testified to four incidents of sexual acts which occurred between her and defendant. T.P. testified that on 9 February 1985, she went with defendant to the hospital to visit defendant's wife (T.P.'s stepmother), Kelly Parker. At this time, according to the evidence, T.P. was ten years old. T.P. testified further that after visiting Kelly Parker she and defendant walked back to the car where defendant asked her if she would take off her pants. T.P. asked defendant why, and he said, "Are you going to give me a little bit." T.P. pulled down her pants, and defendant told her to bend over. Defendant then engaged in anal intercourse with her.
T.P. also testified that on 4 July 1987 when, according to the evidence, T.P. was twelve years old, defendant and Kelly Parker got into an argument while driving in defendant's truck. T.P. and three other children were also riding in the truck. When defendant stopped the truck, Kelly Parker got out and took two of the children out of the truck before defendant drove off with T.P. and one of T.P.'s stepsisters. When they got home, defendant told T.P. to take her clothes off and get into the bed with him. After T.P. took off her clothes and got into bed with defendant, defendant fondled her breasts and had vaginal intercourse with her.
Further, T.P. testified that on 9 March 1989 when, according to the evidence, T.P. was fourteen years old, she and defendant were alone on the couch in the living room when defendant pulled out his penis and told her to play with it. After T.P. touched defendant's penis, he told her to perform oral sex, which T.P. did. Then on 18 March 1989, when T.P.'s stepmother was absent from the home, defendant had vaginal intercourse with her in one of the bedrooms. T.P. also testified that the first time she told anyone of these incidents was on 2 April 1989 when she told her boyfriend's stepmother and Kelly Parker while they were at the Carolina Speedway.
Defendant testified, however, that he has never been sexual with T.P. More specifically, defendant testified that he has never had oral, anal, or vaginal sexual relations with T.P. Defendant also testified to the specific allegations T.P. made against him. Defendant testified that in February 1985, Kelly Parker was in the hospital and that he did visit her, but that as far as he could recall, T.P. never accompanied him on those visits. Defendant denied having sexual relations with T.P. on 9 February 1985 in the parking lot of the hospital.
Further, defendant testified that on 4 July 1987, he and Kelly Parker got into a fight while they were out at the Moose Lodge. After they left the Moose Lodge in defendant's truck, they continued to fight until Kelly Parker told defendant to let her out of the truck. Defendant stopped the truck, and Kelly Parker got out, taking two of the four children with her. Defendant then drove to Mary and Mitchell Hilton's house where defendant told the Hiltons about the fight. The Hiltons asked defendant if he wanted them to follow him to his house, and defendant said he did because he was "liable to get locked up" and he wanted someone to watch the kids. The Hiltons arrived at defendant's home, and Mary Hilton stayed with defendant until the next morning to look after the kids. Defendant denied having sexual relations with T.P. and testified that the only thing he did with regard to T.P. that night was to tell her to put her younger sister to bed. Additionally, defendant denied that any sexual relations occurred between him and T.P. on 9 March 1989 or on 18 March 1989.
Defendant also presented evidence that questioned the credibility of T.P. and Kelly Parker. T.P. was dating Chad Hawkins in 1989, and defendant testified that Kelly Parker was dating Chad's brother, Buddy. Kelly Parker also testified that she dated Buddy. The evidence shows that both T.P. and Kelly were friends with the stepmother of Chad and Buddy, Mary Hawkins. Defendant testified that on 1 April 1989, the day before T.P. first told anyone about these sexual acts, he told T.P. that she could not see Chad Hawkins anymore. He also testified that he told T.P. that he did not want her to have a relationship with anyone in the Hawkins family, nor did he want anyone in the Hawkins family in his home. After these statements to T.P., defendant testified that Kelly Parker, Bud Hawkins (Buddy's father), and Mary Hawkins told him that they would get even with him. Further, according to defendant, after he told T.P. that she could not see Chad Hawkins, T.P. did not want to speak to him or even be near him. On 3 April 1989, defendant spoke to Kelly Parker's mother who accused him of sexually molesting T.P.
Defendant's parents also testified at trial that before defendant's marriage to Kelly Parker, his relationship with T.P. seemed to be that of a normal father-daughter relationship, but that after defendant and Kelly Parker married, T.P.'s demeanor changed. T.P. began drinking some and cursing and, according to defendant's father, lying. Further, defendant testified that after his marriage to Kelly Parker, he was unable to talk to T.P. because of Kelly. He testified that Kelly told him that he was "a lot older than" her and that he would "be in a wheelchair or probably a rocking chair pretty soon" and that she and T.P. would "get out" and "have a good time." Defendant's sister also testified that before Christmas, 1988, Kelly Parker told her that she had a plan to fix defendant so that she could leave him and he could not see his children again.
On 21 April 1989, Dr. Carlos Fisher examined T.P. after T.P. told Kelly Parker that defendant had sexually abused her. The trial court qualified Dr. Fisher as an expert witness "in the field of pediatrics and in the area of the detection of child abuse and trauma." At trial, Dr. Fisher testified over defendant's objection, that in his opinion, T.P. "had been sexually abused over a long period of time based on [his] exam."
Based on all of the evidence, the jury found defendant guilty of all of the acts charged against him. From these judgments, defendant appeals.
First, defendant contends the trial court erred in qualifying Dr. Fisher as an expert in the "detection of child abuse and trauma." We disagree.
At the outset, the State argues that defendant has waived his right to object to the qualification of Dr. Fisher as an expert in the "detection of child abuse and trauma" by failing to object at trial.
An objection to a witness's qualifications as an expert in a given field or upon a particular subject is waived if it is not made in apt time upon this special ground, and a mere general objection to the content of the witness's testimony will not ordinarily suffice to preserve the matter for subsequent appellate review.
State v. Hunt, 305 N.C. 238, 243, 287 S.E.2d 818, 821 (1982). Due to the serious crime involved and the substantial penalty imposed, however, we have elected in our discretion to consider the merit of defendant's contention. See, id. at 244, 287 S.E.2d at 822 ().
Before the trial court qualified Dr. Fisher as an expert "in the field of pediatrics and in the area of the detection of child abuse and trauma", he testified to his extensive work in the field of pediatrics. Dr. Fisher testified that he graduated from the University of North Carolina School of Medicine in Chapel Hill in 1969 and completed his four-year pediatric training and program of internship at North Carolina Memorial Hospital. He was a member of the Child Evaluation Program on the Maltreatment Committee at Memorial Hospital for two years during his training. He is practiced and licensed and also board certified in pediatrics. Further, he has served as a child medical examiner for the State of North Carolina since 1977. He also serves on a committee in Gastonia similar to the Maltreatment Committee he served on at Memorial Hospital, and he has examined over four hundred children who have been abused and neglected. Finally, Dr. Fisher has testified in North Carolina superior and district courts on the subject of child abuse and neglect on numerous occasions.
"Whether a witness has the requisite skill to qualify as an expert in a given area is chiefly a question of fact, the determination of which is ordinarily within the exclusive province of the trial court." State v. Goodwin, 320 N.C. 147, 150, 357 S.E.2d...
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