State v. Robinson

• Decision Date: 31 December 2020
• Docket Number: No. COA19-1149,COA19-1149
• Citation: 854 S.E.2d 407
• Parties: STATE of North Carolina v. Benny Ray ROBINSON
• Court: North Carolina Court of Appeals

854 S.E.2d 407

STATE of North Carolina

v.Benny Ray ROBINSON

No. COA19-1149

Court of Appeals of North Carolina.

Filed: December 31, 2020

Attorney General Joshua H. Stein, by Special Deputy Attorney General Tamika L. Henderson, for the State.

Mark Montgomery, for defendant-appellant.

STROUD, Judge.

Defendant Benny Ray Robinson appeals from his convictions for first degree rape, first degree sexual offense, and taking indecent liberties with a child. He also challenges a civil order requiring him to enroll in lifetime satellite-based monitoring ("SBM"). Defendant argues the trial court committed plain error by allowing an expert witness to vouch for truthfulness by using the word "disclosure" during her testimony. Defendant failed to show that the use of the term "disclosure" by the expert witness was plain error. However, we agree with Defendant that the SBM order is unconstitutional, and we reverse the order imposing lifetime SBM to begin at least 20 years after release from imprisonment.

I. Background

At trial, the State's evidence tended to show that in 2007 and 2008 Defendant sexually assaulted Katy¹ while she was in first grade. Defendant was the cousin of Katy's mother's girlfriend, and Defendant would do drugs with Mother and her girlfriend. Katy testified that her mother would often leave the house and Defendant was alone with Katy and her brothers. Katy testified on one occasion that she was asleep on the couch and Defendant put his penis in her vagina. Katy also testified that on another occasion while her mother was not home, Defendant brought a pie to their house before pulling her pants down and inserting a finger in her vagina. Katy told no one about what happened until June 2017, when she was asked if she had ever been raped during the intake process for juvenile detention. The allegation of rape was reported to the New Hanover County DSS office, and Katy was referred to the Child Advocacy Center where she underwent a forensic interview.

Defendant was charged with first degree rape of a child, first degree sex offense with a child, and taking indecent liberties with a child. Following a jury trial in Superior Court, Sampson County, Defendant was found guilty of all three charges. Defendant was sentenced to 240 months minimum and 297 months maximum. Following his trial, Defendant gave notice of appeal in open court, and then a Grady Hearing was held to determine the reasonableness of SBM. The trial court found Defendant committed "an offense against a minor under G.S. 14-208.6(1m)," "rape of a child G.S. 14-27.23, or sexual offense with a child, G.S. 14-27.28," "has not been classified as a sexually violent predator under the procedure set out in G.S. 14.208.20," "is not a recidivist," "is an aggravated offense," and "did involve the physical, mental, or sexual abuse of a minor." Upon his release from imprisonment, Defendant was ordered to register as a sex offender for life and to enroll in SBM for life.

II. "Disclosure" and Vouching

Defendant argues the trial court committed plain error by allowing the State's expert witness to describe Katy's claim she was raped as a "disclosure." He contends "[w]ithout the vouching the jury would probably have doubted her." We disagree.

Because Defendant did not object to the use of the word "disclosure" at trial, we review this issue for plain error. N.C. R. App. P. 10(a)(4). Plain error arises when the error is "so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]" State v. Odom , 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted). "Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan , 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

Our Supreme Court has held,

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. However, an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.

State v. Stancil , 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (citations omitted). "[E]xpert witnesses may not vouch for the credibility of victims in child sex abuse cases when there is no evidence of physical abuse. Our Supreme Court ‘has found reversible error when experts have testified that the victim was believable, had no record of lying, and had never been untruthful.’ " State v. Betts , 267 N.C. App. 272, 280, 833 S.E.2d 41, 46 (2019) (citation omitted) (quoting State v. Aguallo , 322 N.C. 818, 822, 370 S.E.2d 676, 678 (1988) ). We review on a fact-specific basis whether expert testimony amounted to improper vouching for a witness. See State v. Chandler , 364 N.C. 313, 318-19, 697 S.E.2d 327, 331 (2010) ("Whether sufficient evidence supports expert testimony pertaining to sexual abuse is a highly fact-specific inquiry. Different fact patterns may yield different results.... Before expert testimony may be admitted, an adequate foundation must be laid." (citations omitted)).

Defendant argues the dictionary definition of the word "disclose" is "to make known (as information previously kept secret)," and the General Assembly has used the word "disclose" in various statutes with the same meaning: "See, e.g., N.C. Gen. Stat. § 14-190.5A (‘Disclosure of Private Images’); N.C. Gen. Stat. § 15A-904 (‘Disclosure by the State Certain Information Not Subject to Disclosure’); N.C. Gen. Stat. § 20-71.4 (‘Failure to Disclose damage to a vehicle shall be a misdemeanor.’)[.]" Defendant is correct that the word "disclose" may have the connotation of exposing previously hidden but truthful information, but we must consider the use of the word in this particular case in context. When we consider the testimony of Shannon Barber, the director of the Sampson County Child Advocacy Center, and the use of the word "disclose" by counsel and Ms. Barber, it simply does not have the connotation of exposing a previously hidden truth as argued by Defendant.

Previous cases have considered the use of the word in the context of the evidence in the particular case, and the published case Defendant cites to support his position is not analogous to this case. In State v. Crabtree the expert witness expressed an opinion on whether sexual abuse occurred. 249 N.C. App. 395, 402-03, 790 S.E.2d 709, 715 (2016), aff'd , 370 N.C. 156, 804 S.E.2d 183 (2017) ("In contrast, St. Claire's testimony did include impermissible vouching. We find no fault with St. Claire's description of the five-tier rating system that the clinic uses to evaluate potential child sexual abuse victims based on the particularity and detail with which a patient gives his or her account of the alleged abuse. However, her statement that ‘[w]e have sort of five categories all the way from, you know, we're really sure [sexual abuse] didn't happen to yes, we're really sure that [sexual abuse] happened’ and her reference to the latter category as ‘clear disclosure’ or ‘clear indication’ of abuse, in conjunction with her identification of that category as the one assigned to L.R.’s 23 December 2013 interview, crosses the line from a general description of the abuse investigation process into impermissible vouching. Likewise, St. Claire's testimony that her team's ‘final conclusion [was] that [L.R.] had given a very clear disclosure of what had happened to her and who had done this to her’ was an inadmissible comment on L.R.’s credibility." (alterations in original)). There is no per se rule that using the word disclosure is vouching. See Betts , 267 N.C. App. at 281, 833 S.E.2d at 47 ("There is nothing about use of the term ‘disclose’, standing alone, that conveys believability or credibility.").

Here, Ms. Barber performed a forensic interview on Katy and testified about Katy's interview. Her first use of the word "disclosure" was as part of the title of the forensic interview technique she had used:

Q. And what is a forensic interview?

A. A forensic interview is a research-based, best practice model that is recognized nationally. We call it the RADAR method. It is recognized nationally as a way to interview children that have alleged abuse.

Q. And what is the RADAR method?

A. RADAR stands for Recognizing Abuse Disclosure types and Responding. And there are several steps to that method.

This use of the word "disclosure" was simply as part of the description of the interview method and was not "vouching" for the truth of what an alleged victim reveals.

In her testimony regarding the details of the sexual abuse, Ms. Barber used the word "disclosed" only once, when referring to when Katy reported the abuse to the detention center:

Q. What, specifically, did [Katy] tell you happened to her?

A. [Katy] talked about that she was here at the Child Advocacy Center that day to talk about something that happened to her when she was younger. She said that she disclosed this when she was in Wilmington, and they -- at the detention center, and they asked her if she had been raped. She said she told them there that she had, but she did not give them details.

She's told me she had never told her parents, they did not even know why she was at the Center that day. She still had not told them. She states that she was living with her mom, and mom was doing drugs, and that mom's friend, Benny, raped her. She told me that she was asleep on the couch and that when mom does drugs, that she would – she would always sleep on the couch and they would do drugs in the bedroom. She said that mom left, but she doesn't know where she went. She said that she woke up to Benny pulling her underwear down and whispering to her not to tell

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