State v. Thornton, COA02-303.

• Docket Nº: No. COA02-303.
• Citation: 158 NC App. 645, 582 S.E.2d 308
• Case Date: July 01, 2003
• Court: Court of Appeal of North Carolina (US)

582 S.E.2d 308
158 NC App. 645

STATE of North Carolina
v.
Weldon Eugene THORNTON, Defendant

No. COA02-303.

Court of Appeals of North Carolina.

July 1, 2003.

582 S.E.2d 309

Attorney General Roy Cooper, by Assistant Attorney General Jill B. Hickey, for the State

Miles & Montgomery, by Mark Montgomery, Durham, for defendant-appellant.

HUDSON, Judge.

Defendant appeals judgments entered upon jury verdicts convicting defendant of one count of first degree rape and one count of taking indecent liberties with a minor. For the reasons discussed below, we conclude there was no error. We remand defendant's Motion for Appropriate Relief to the superior court for the taking of evidence and such further proceedings as it deems necessary.

Factual Background

The child victim, BM, testified at trial. She was eight years old when she testified, and seven years old when the events at issue occurred. BM testified that defendant worked across the street from her father's house, and that one day defendant came to the house and told her to go into a room. BM testified that she "walked in there" and defendant "told me to pull down my skirt and my underwear, and so I did. And, umm, he did, too. And he got right on top of me. And umm, he started going up and down, and he kissed me."

BM also testified that on another occasion, while she was at defendant's house, "he done the same thing." When asked exactly what defendant did, BM answered that defendant put his "private part" in her "private part," and her testimony further clarified her understanding of a "private part."

BM further testified that on another occasion, when defendant was taking BM home from church, defendant turned off onto a dirt road, stopped the truck they were traveling in, and told her they were looking for "deers" in the field. BM went on to testify that "He got out of the, out on his side. He went around. And, umm, and then when he got around to my side, he opened the door. And he pulled down my, my skirt and my underwear. And then he got on top of me and got up and down, then he kissed me again."

BM also testified that defendant, on yet another occasion, put his "private part" in her mouth, though BM could not remember when or where this happened.

Danny Walker, a juvenile investigator with the Alamance County Sheriff's Department, testified that he investigated these allegations upon referral of the case from Orange County Department of Social Services. He testified that, during an interview, BM told him about the incidents involving defendant. Upon defendant's motion, the trial court instructed the jury that Mr. Walker's testimony could only be used to corroborate BM's testimony.

On 27 October 2000, Dr. Adrea Theodore, a pediatrician at the University of North Carolina School of Medicine, conducted a physical examination of BM at the Center for Child and Family Health. Dr. Theodore was tendered and accepted at trial as an expert in "child medical examinations and pediatric medicine." She testified that she observed a "notch" on BM's hymen that she considered

582 S.E.2d 310

to be a "significant finding," which was "suspicious for penetrating trauma." When asked whether in her opinion BM exhibited signs consistent with being sexually abused, Dr. Theodore testified that "based on our physical exam which shows a finding that's suspicious for penetrating trauma, that is suggestive of sexual abuse."

On 27 October 2000 and 3 November 2000, Donna Potter, a licensed clinical social worker with the Duke University Department of Psychiatry and the Center for Child and Family Health, interviewed BM. Ms. Potter testified at trial. When the prosecution began to question her about her interviews with BM, defense counsel objected and asked for an instruction limiting Ms. Potter's testimony regarding BM's out-of-court statements to corroboration. The court overruled the objection on the grounds that an expert is allowed to testify to matters relied upon in forming an opinion, stating that:

If she relied upon them in making, in forming her opinion, I assume she knew she was going to give and they're admissible. If we get to the point that she is not asked the appropriate opinion question and doesn't say she relied upon it, then we'll strike them all.

Later in her testimony, the prosecutor asked Ms. Potter whether BM exhibited any characteristics of a sexually abused child. At the point, the court interrupted the examination and stated:

I want to be sure that we're very clear here, Counselor.... That this witness may testify about the characteristics in general of sexually abused children, which she has not done yet. Having done that, she may then testify about what symptoms, similar symptoms that she may have observed in this child. But she may not then take the next step. So if she's going to testify about symptoms in general, if she's going to testify about symptoms this child exhibited which are symptoms that are generally seen, let's get the generally seen symptoms testified about first.

After the prosecutor elicited testimony about symptoms of child sexual abuse in general, the witness testified that, "My opinion is that [BM] has absolutely been sexually abused." The court instructed the jury to disregard the statement, and reminded the witness that the question was whether the child showed symptoms that were consistent with abuse. The witness answered, "Yes, she did."

At the conclusion of the direct examination of Ms. Potter, the prosecution played a videotape of a portion of Ms. Potter's second interview with [BM]. Prior to playing the videotape, defense counsel stipulated to its authenticity and lodged no other objection to the tape. After the tape played, defense counsel stated that he did not object to its admission into evidence.

Argument

Defendant first argues that the trial court committed plain error by not instructing the jury that statements made by the victim during interviews with Ms. Potter were not substantive evidence. We disagree.

"In deciding whether a defect in the jury instruction constitutes `plain error,' the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt." State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983). Our Supreme Court has emphasized that:

the plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so

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