State v. Worley

• Decision Date: 05 November 2019
• Docket Number: No. COA18-1162,COA18-1162
• Citation: 268 N.C.App. 300,836 S.E.2d 278
• Parties: STATE of North Carolina v. Dallas Jay WORLEY
• Court: North Carolina Court of Appeals

268 N.C.App. 300

836 S.E.2d 278

STATE of North Carolina

v.Dallas Jay WORLEY

No. COA18-1162

Court of Appeals of North Carolina.

Filed: November 5, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General Damie Adegbuyi Sesay, for the State.

Mark Montgomery for defendant-appellant.

ZACHARY, Judge.

Defendant Dallas Jay Worley appeals from a judgment entered upon a jury's verdicts finding him guilty of two counts of statutory sex offense with a child by an adult, and one count of first-degree kidnapping. Defendant argues the trial court (1) erred by ordering him to submit to lifetime satellite-based monitoring upon his release from prison; and (2) committed plain error by permitting two expert witnesses to vouch for the child's credibility. Upon review, we hold that Defendant received a fair trial, free from prejudicial error.

Background

The evidence presented at trial established that Defendant repeatedly sexually assaulted his seven-year-old niece, "Jane."¹ On multiple occasions, Defendant subjected Jane to anal penetration and oral sex. Although Defendant threatened to kill her if she ever revealed what he was doing, Jane eventually informed her mother; she was then taken to the emergency room for examination. On 14 March 2016, Defendant was indicted for two counts of statutory sex offense with a child by an adult, and one count of first-degree kidnapping.

Defendant's case came on for trial before the Honorable Karen Eady-Williams on 19 March 2018 in Cleveland County Superior Court. The State tendered two witnesses as medical experts: Dr. Daniel Troha and Dr. Nancy Hendrix. Dr. Troha examined Jane and testified that he observed that "there was a lot of redness around the labia and in the area surrounding that and the anus," but he could not specifically identify the cause of the redness. Dr. Hendrix, who examined Jane after she had been discharged from the hospital, found that (1) there was "a little bit of redness" around her vaginal area and anus, (2) there was swelling around her anus, and (3) "the actual anus [was] opened a little bit, about 3 millimeters."

On 23 March 2018, the jury returned verdicts finding Defendant guilty of all charges. The trial court sentenced Defendant to an active term of 300 to 420 months in the custody of the North Carolina Division of Adult Correction, and ordered that he submit to satellite-based monitoring for the remainder of his life upon his release from prison. Defendant gave oral notice of appeal in open court.

Discussion

I. Satellite-Based Monitoring Order

Defendant first argues that the trial court erred by ordering him to submit to lifetime satellite-based monitoring upon his release from prison, absent evidence that lifetime satellite-based monitoring was a reasonable Fourth Amendment search. Procedurally, however, Defendant's failure to comply with our Appellate Rules renders this Court unable to review this claim.

First, Defendant neglected to file written notice of appeal from the satellite-based monitoring order. A satellite-based monitoring proceeding is a civil action. State v. Dye , ––– N.C. App. ––––, ––––, 802 S.E.2d 737, 741 (2017). "Any party ... in a civil action ... may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties." N.C.R. App. P. 3(a). Accordingly, failure to comply with Rule 3 leaves this Court without jurisdiction to hear the satellite-based monitoring order. Currin-Dillehay Bldg. Supply v. Frazier , 100 N.C. App. 188, 189, 394 S.E.2d 683, 683, appeal dismissed and cert. denied , 327 N.C. 633, 399 S.E.2d 326 (1990).

In addition, Defendant did not argue before the trial court that satellite-based monitoring constituted an unreasonable Fourth Amendment search. See N.C.R. App. P. 10(a)(1) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make."). "[C]onstitutional arguments not brought forth at the lower court level will be dismissed on appeal pursuant to Rule 10(a)(1)." In re Davis , ––– N.C. App. ––––, ––––, 808 S.E.2d 369, 374 (2017).

Having failed to follow these Rules, on 21 January 2019, Defendant filed a petition for writ of certiorari requesting that this Court reach the merits of his constitutional challenge to the satellite-based monitoring order. Defendant "essentially asks this Court to take two extraordinary steps to reach the merits, first by issuing a writ of certiorari to hear his appeal, and then by invoking Rule 2 of the North Carolina Rules of Appellate Procedure to address his unpreserved constitutional argument." State v. DeJesus , ––– N.C. App. ––––, ––––, 827 S.E.2d 744, 753 (quotation marks omitted), disc. review denied , ––– N.C. ––––, 830 S.E.2d 837 (2019).²

We decline to take these extraordinary steps. Defendant fails to identify any evidence of manifest injustice warranting the invocation of Rule 2. Therefore, in our discretion, we deny Defendant's petition and dismiss his appeal of the satellite-based monitoring order.

II. Expert Vouching

Defendant argues that "the trial court committed plain error in allowing two of the State's experts to vouch for" Jane's credibility. Specifically, Defendant takes issue with the testimony of Dr. Nancy Hendrix and Ms. Michelle Sullivan. We address each of Defendant's arguments in turn.

A. Standard of Review

In criminal cases, unpreserved issues "may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(a)(4). Because Defendant failed to object to either of the experts' testimony vouching for Jane's credibility, Defendant is only entitled to plain error review, and may prevail only by showing "that a fundamental error occurred at trial." State v. Oliphant , 228 N.C. App. 692, 696, 747 S.E.2d 117, 121 (2013), disc. review denied , 367 N.C. 289, 753 S.E.2d 677 (2014). "To show that an error was fundamental, a defendant must establish prejudice – that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty." Id. (emphasis added) (quotation marks omitted); see State v. Lawrence , 365 N.C. 506, 507, 723 S.E.2d 326, 327 (2012) ("[T]he rule provides that a criminal defendant is entitled to a new trial if the defendant demonstrates that the jury probably would have returned a different verdict had the error not occurred."). Moreover, "the plain error rule may not be applied on a cumulative basis, but rather a defendant must show that each individual error rises to the level of plain error." State v. Dean , 196 N.C. App. 180, 194, 674 S.E.2d 453, 463, disc. review denied , 363 N.C. 376, 679 S.E.2d 139 (2009).

B. Impermissible Vouching

It is well settled that an expert witness's "opinion that ... children were sexually abused [is] clearly admissible," but an "opinion that ... children were sexually abused by [a] defendant [is] not admissible." State v. Figured , 116 N.C. App. 1, 9, 446 S.E.2d 838, 843 (1994), disc. review denied , 339 N.C. 617, 454 S.E.2d 261 (1995). Our courts do not permit an expert witness to vouch for the credibility of the victim of the alleged crime in a child sexual abuse case, State v. Aguallo , 322 N.C. 818, 822, 370 S.E.2d 676, 678 (1988), in that an expert is in "no better position than the jury to assess credibility." In re T.R.B. , 157 N.C. App. 609, 617, 582 S.E.2d 279, 285 (2003), appeal dismissed and disc. review improvidently allowed , 358 N.C. 370 -71, 595 S.E.2d 146 (2004). Consequently, our Supreme Court has found reversible error where an expert testified "that the victim was believable, had no record of lying, and had never been untruthful." Aguallo , 322 N.C. at 822, 370 S.E.2d at 678.

In cases involving the alleged sexual abuse of a child,

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) (per curiam) (citations omitted).

C. Dr. Hendrix's Expert Testimony

Dr. Hendrix had practiced as a pediatrician for 24 years, and the State tendered her as an expert in the fields of pediatric medicine and child sexual abuse. When asked during direct examination whether "children tend to make up stories about sexual abuse," Dr. Hendrix answered in the negative. Dr. Hendrix then explained that Jane "gave excellent detail" regarding Defendant's illicit actions, and noted on cross-examination that "her story was very consistent." Although Defendant failed to object during these portions of Dr. Hendrix's testimony at trial, he now asserts that these statements constituted impermissible vouching, and that the trial court's admission of this testimony rose to the level of plain error. Defendant has failed to show any plain error.

Our Supreme Court has explained that "an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children." Id. at 267, 559 S.E.2d at 789. Likewise, an expert may testify to "whether a particular complainant has symptoms or characteristics consistent therewith." Id. Although an expert may not speak to whether sexual abuse has occurred "in the absence of physical evidence," an expert may testify that the child exhibits characteristics consistent with those exhibited by abused children. State v. Grover , 142 N.C. App. 411, 419, 543 S.E.2d 179, 184, aff'd per curiam , 354 N.C. 354, 553 S.E.2d 679 (2001). The unique nature of these offenses "make...