State v. Towe

• Citation: 732 S.E.2d 564
• Decision Date: 14 June 2012
• Docket Number: No. 121PA11.,121PA11.
• Parties: STATE of North Carolina, v. Patrick Loren TOWE.
• Court: United States State Supreme Court of North Carolina

732 S.E.2d 564

STATE of North Carolina,

v.Patrick Loren TOWE.

No. 121PA11.

Supreme Court of North Carolina.

June 14, 2012.

On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, ––– N.C.App. ––––, 707 S.E.2d 770 (2011), finding reversible error in judgments entered on 10 November 2009 by Judge Ronald E. Spivey in Superior Court, Surry County, and ordering that defendant receive a new trial. Heard in the Supreme Court on 9 January 2012.

Roy Cooper, Attorney General, by Laura E. Crumpler, Assistant Attorney General, for the State-appellant.

Staples S. Hughes, Appellate Defender, by Daniel R. Pollitt, Assistant Appellate Defender, for defendant-appellee.

EDMUNDS, Justice.

In this case, we consider whether the Court of Appeals correctly held that the trial court committed plain error when it admitted conclusory expert testimony on whether the juvenile victim had been sexually abused. The Court of Appeals found plain error and reversed defendant's convictions, concluding that “it [was] highly plausible that the jury could have reached a different result” absent the expert testimony. State v. Towe, ––– N.C.App. ––––, ––––, 707 S.E.2d 770, 775 (2011). Although we hold that admission of the testimony was plain error, the plain error standard requires a determination that the jury probably would have returned a different result. Accordingly, we modify and affirm the decision of the Court of Appeals.

Defendant was indicted for three counts of first-degree sexual offense with a child under the age of thirteen, in violation of N.C.G.S. § 14–27.4(a)(1), and two counts of first-degree statutory rape of a child under the age of thirteen, in violation of N.C.G.S. § 14–27.2(a)(1). At trial, the State presented evidence that defendant had been married to the victim's mother and was the father of the victim, who was nine years old at the time of the alleged offenses. The victim's mother testified that after she and defendant separated in 1999, defendant's participation in their children's lives was sporadic until early 2007, when defendant began to make regular child support payments and reestablished visitation with their children.

The victim testified that during the summer of 2007, defendant rubbed her vagina and penetrated her digitally at least three times, and climbed on top of her and put his penis in her vagina at least twice. The victim's mother related that on 1 November 2007, she and the victim went to see pediatrician Sarah Ryan, M.D. (Dr. Ryan), because the victim had been complaining of abdominal pains and because her mother had observed blood spotting in the victim's underwear and believed that her daughter may have entered menarche. Dr. Ryan described her qualifications to the jury and was accepted by the trial court as an expert in the field of pediatric medicine. She testified that she was concerned that the prepubescent victim was spotting and showing signs of having begun to menstruate, which was abnormal for a girl at her stage of physical development. During her examination of the victim, Dr. Ryan noted that the inner lips of the victim's vagina were red and inflamed. In addition, she observed “a questionable scar” at the “back of the vaginal area” or, more specifically, on the posterior fourchette, which is at the lowest part of the vagina and is distinct from the hymen. Dr. Ryan clarified that “often times you can have a line there that looks shiny. And that was why I did not want to call it a scar.” Nevertheless, because the results of the physical examination indicated the possibility of sexual abuse, Dr. Ryan asked additional pertinent questions. The mother then spoke with the victim, who revealed that defendant had been touching her private parts “all the time.” The victim's mother relayed this information to Dr. Ryan.

Mount Airy Police Captain Alan Freeman (Freeman) testified that he spoke with the victim's mother, who described what her daughter had told her. Believing that the victim might be more comfortable with a female officer, Freeman followed police protocol and asked Officer Vanessa Vaught (Vaught) to interview the victim in a separate room. The victim told Vaught that her father had touched her genitals with his hand and penis and had asked if he could put his penis into her vagina. Nicole Alderfer (Alderfer) testified that she had been employed at Wake Medical Center (Wake Med) as a clinical social worker with the child sexual abuse team. After being recognized by the court as an expert in the field of clinical social work, she described an interview she had with the victim in November 2007. The victim told Alderfer that defendant had on more than one occasion penetrated her vagina with his finger and on more than one occasion penetrated her vagina with his penis. The State also elicited testimony from the younger sister of the victim's mother, who described an incident that occurred when the sister was nine years old. At that time, the victim's mother was married to defendant and was pregnant with the victim. The sister testified that, while she was visiting the victim's mother, defendant awoke her one night and carried her into the nursery, where he rubbed her underwear over her vagina.

The State also called Vivian Denise Everett, M.D. (Dr. Everett), as a witness. By the time Dr. Everett took the stand, several witnesses for the State had mentioned her in their testimony. Child Protective Services investigator Audrey Richardson, who had been assigned to the victim's case, had testified that she and others associated with the Department of Social Services routinely referred victims of suspected child sexual abuse to Dr. Everett to conduct child medical examinations. Dr. Ryan had testified that she referred female patients such as the victim to Dr. Everett because of Dr. Everett's extensive experience examining the vaginal areas of children. Alderfer had testified that, as a clinical social worker at Wake Med, she would coordinate with the child sexual abuse team, which included Dr. Everett; interview possible sexual abuse victims and their parents about their background, social history, and the details of any alleged abuse; and then provide the information from those interviews to Dr. Everett.

Following extensive questioning by the State about her education and experience, the trial court recognized Dr. Everett as an expert in the field of pediatrics and child sexual abuse. Dr. Everett testified that on 19 November 2007, she conducted a child medical evaluation of the victim. Such examinations are requested by Departments of Social Services following allegations of sexual abuse inflicted by a parent or caretaker. Dr. Everett began the process by obtaining information from the mother regarding the victim's medical history and by remotely observing Alderfer's interview of the victim through a two-way mirror. She then conducted a physical examination of the victim. Dr. Everett testified that, aside from some small bumps on the victim's legs, the examination was normal. Her careful scrutiny of the victim's hymen revealed that the edges were thin, but no tears were to be seen. Although Dr. Everett was not asked specifically about the posterior fourchette of the victim's vagina, she stated that she did not see a scar or line of the type described by Dr. Ryan. However, she also testified that the hymen of a young girl can heal quickly after either digital or penile penetration. When asked by the prosecutor, “If there was a scar or a tear [¹ to [the victim's] tissue at or near the hymen observed by Dr. Ryan on her exam on November 1, is it likely or possible that that scar could have healed by the time you saw [the victim] in your clinic?” Dr. Everett responded, “That would be possible. Because I actually saw her on November 19th, and she was seen by Dr. Ryan on November 1st.”

Although most of Dr. Everett's testimony was admissible, her direct examination by the State concluded with the following exchange:

Q Dr. Everett, do you have an opinion, ma'am, satisfactory to yourself and based upon your knowledge, training and experience, as to whether lack of physical findings in [the victim's] examination is inconsistent with having been sexually abused?

A Yes.

Q What is that opinion?

A The lack of any findings would not be inconsistent with sexual abuse.

Q Have you done research, or read treatises, or otherwise studied physical findings in children that claim sexual abuse?

A Yes. There have been articles in the literature.

Q And do you have an opinion, ma'am, based upon your knowledge, experience and training, and the articles that you have read in your professional capacity as to the percentage of children who report sexual abuse who exhibit no physical findings of abuse?

A I would say approximately 70 to 75 percent of the children who have been sexually abused have no abnormal findings, meaning that the exams are either completely normal or very non-specific findings, such as redness.

Q And that's the category that you would place [the victim] in; is that correct?

A Yes, correct.

Defense counsel did not object to any of the testimony quoted above.

After the State rested its case-in-chief, defendant presented testimony from Rebecca Peters, a social worker who had interviewed defendant and his girlfriend following the allegations and who testified that defendant denied ever touching the victim inappropriately. Dana Mitchell, defendant's girlfriend, testified that she had been living with defendantat the time of the alleged offenses and that the victim had mentioned to her that she used tampons. Mitchell denied observing any inappropriate behavior between defendant and the victim. One of defendant's sons, who also had been living with defendant and defendant's girlfriend at the time of the alleged offenses, testified that he had seen no untoward contact between the victim and defendant. Defendant did not testify.

The jury found defen...