State v. Youngs

• Decision Date: 29 December 2000
• Docket Number: No. COA99-1449.,COA99-1449.
• Citation: 141 NC App. 220,540 S.E.2d 794
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Timothy Wayne YOUNGS.

540 S.E.2d 794

141 NC App. 220

STATE of North Carolina v. Timothy Wayne YOUNGS.

No. COA99-1449.

Court of Appeals of North Carolina.

December 29, 2000.

Michael F. Easley, Attorney General, by Sarah Y. Meacham, Assistant Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Mark D. Montgomery, Assistant Appellate Defender, for defendant-appellant.

EDMUNDS, Judge.

Defendant appeals his convictions of first-degree rape, first-degree sexual offense, incest, and indecent liberties with a child. We find no error.

At defendant's trial, the State presented evidence that defendant and his three children moved to North Carolina in January 1994, along with defendant's girlfriend, Tuesday Bancroft (Tuesday), and Tuesday's daughter. At this time, the victim in the case, one of defendant's daughters, was in kindergarten or first grade. We shall refer to her in this opinion as "A."

When "A" was in the first or second grade, Tuesday and her daughter temporarily moved out of the residence after a dispute with defendant. During their absence, defendant engaged in vaginal, anal and oral intercourse with "A." "A" testified that on several occasions while the children were taking their naps, defendant would ask her to come into his room and undress. After instructing "A" to get on the bed, he would assault her. Defendant instructed "A" not to tell anyone about the assaults. In particular, "A" testified of an incident in December 1995 when social service worker Diane Setaro (Setaro) visited the Youngs' residence, and defendant told "A" not to tell Setaro about the assaults.

"A" first told Tuesday's daughter about the incidents but asked her not to tell anyone. "A" also confided to a girl next door about what defendant had done to her, and two years later she told Tuesday about the assaults. On 16 January 1998, when "A" was in the fourth grade, she visited her school counselor Carolyn Cogsdale (Cogsdale) and described her living situation, her assigned chores, and the whippings she received daily. Although "A" visited Cogsdale on her own volition, she had also been referred to Cogsdale by her teacher because of her sadness and unkempt appearance. After this meeting, Cogsdale notified the Department of Social Services of the possibility of child neglect and abuse. During meetings between 16 January 1998 and 21 January 1998, "A" revealed to Cogsdale that defendant had sexually abused her. Cogsdale again contacted the Department of Social Services and continued to see "A" on a daily basis until the end of the school year. Setaro visited the Youngs' residence a second time on 22 January 1998 to discuss allegations of abuse and neglect. The next day, Setaro visited "A" at school, where "A" revealed that defendant had sexually abused her. "A" also described the sexual abuse to Investigator Leslie Moore of the Brunswick County Sheriff's Department on 13 March 1998.

On 3 February 1998, "A" was examined by Dr. James Forstner (Dr. Forstner). He determined that "A"'s hymen was abnormal. His examination results were consistent with vaginal and oral penetration and suggestive of anal penetration. On 19 February 1998, "A" met with psychologist Diane Lattimer (Dr. Lattimer) and continued to visit her at least forty-five times prior to trial. Dr. Lattimer observed that "A" was disheveled, shy, avoided eye contact, and exhibited anxiety, sadness, decreased appetite, insomnia, decreased energy level, and decreased ability to concentrate. Dr. Lattimer diagnosed "A" with dysthymic disorder and major depressive disorder and determined that "A" exhibited symptoms typical of post-traumatic stress syndrome. At trial, Dr. Lattimer testified that in her opinion "A" had been sexually abused.

On the basis of this evidence, defendant was indicted for three counts of first-degree rape in violation of N.C. Gen.Stat. § 14-27.2 (1999), three counts of indecent liberties with a child in violation of N.C. Gen.Stat. § 14-202.1 (1999), three counts of first-degree sexual offense in violation of N.C. Gen.Stat. § 14-27.4 (1999), and three counts of incest in violation of N.C. Gen.Stat. § 14-178 (1999). Prior to trial, defendant filed a motion for a bill of particulars requesting the precise date, time and place of the crimes charged and the specific sexual acts constituting the indecent liberties and first-degree sexual offense charges. This motion was denied, and the cases were joined for trial.

At the close of the State's evidence, eight charges were dismissed, leaving one count of first-degree rape, one count of indecent liberties with a child, one count of first-degree sex offense and one count of incest, all of which occurred between 17 August 1996 and 17 August 1997. Defendant presented evidence consisting only of his testimony denying the allegations. Thereafter, the jury found defendant guilty of all charges. He was sentenced to a minimum of 240 months and a maximum of 297 months for first-degree rape, and a minimum of 192 months and a maximum of 240 months for first-degree sexual offense, incest, and indecent liberties with a child, to be served at the conclusion of his rape sentence. Defendant appeals.

I.

Defendant's first assignment of error relates to the admission of Dr. Lattimer's expert opinion that "A" suffered from major depressive disorder as a result, in part, from sexual abuse. Defendant presents a three-part argument, first asserting that Dr. Lattimer's opinion was inadmissible to prove abuse by defendant. Next, defendant contends that Dr. Lattimer's opinion lacked adequate foundation, because an expert witness may not testify that a complainant has been sexually abused on the basis of the complainant's history. Finally, defendant argues that Dr. Lattimer's opinion was scientifically unreliable. We will address these contentions seriatim.

A. Dr. Lattimer's diagnosis

Defendant argues that Dr. Lattimer's diagnosis of the victim's psychological disorder was admitted to prove that she had been abused by defendant. However, our review of the record indicates that Dr. Lattimer's testimony described "A"'s condition and her resulting expert diagnosis. The testimony was not admitted to prove that defendant was the perpetrator, but only to establish the victim's condition, accompanied by Dr. Lattimer's resulting opinion that "A" was the victim of sexual abuse. Dr. Lattimer only once discussed defendant as the perpetrator, and in this instance, she merely relayed the information given to her by "A" during treatment. Dr. Lattimer testified, in part:

Q: And at some point during a later meeting did you have an opportunity to discuss anything that ["A"] would have told you about herself and her father, Timothy Youngs?

A: Yes, on February 23rd ["A"] was playing with the dollhouse and initially she did not want to talk about the abuse. Typically I would introduce that by saying, you know, tell me about you and your daddy and leave it very open-ended and see how she responds. After about a half-an-hour I asked her again to show me with the dolls what had happened and she did move the dolls around in the dollhouse and then she began talking and she said that, "He did it to me a couple of times in the house on Walker Street." That it happened in her dad's bedroom during an afternoon on the weekend while her siblings were asleep. ["A"] told me that her father told her to come in to his bedroom and take off her clothes. She said that he was on top of her and that she was on top of him. That she felt she couldn't ask him to stop because she was afraid she would get into trouble. She reported oral, anal, and vaginal penetration. She stated that she would get bad feelings and that she was afraid that the whole world would end and that everyone would hate her because of this.

This Court has previously held that "[w]here children are examined by physicians for diagnosis and treatment of alleged sexual abuse, details of the offense, including the identity of the offender, provided by the child during such examination are generally admissible at trial." State v. Rogers, 109 N.C.App. 491, 501-02, 428 S.E.2d 220, 226 (1993) (emphasis added) (citations omitted); see also State v. Smith, 315 N.C. 76, 85, 337 S.E.2d 833, 840 (1985)

(noting that when identification of a perpetrator is disclosed to aid in medical diagnosis or treatment, "the trustworthiness remains intact," and the identification is thus admissible).

The Supreme Court has held that the identity of a perpetrator is important for diagnosis in child sexual abuse cases for two reasons:

First, a proper diagnosis of a child's psychological problems resulting from sexual abuse or rape will often depend on the identity of the abuser. Second, information that a child sexual abuser is a member of the patient's household is reasonably pertinent to a course of treatment that includes removing the child from the home.

State v. Aguallo, 318 N.C. 590, 597, 350 S.E.2d 76, 80 (1986) (citation omitted). Our courts have consistently affirmed these principles. See, e.g., State v. Hughes, 114 N.C.App. 742, 443 S.E.2d 76 (1994)

(finding no error in allowing physician to testify that child victim identified her father as the perpetrator); Rogers, 109 N.C.App. 491,

428 S.E.2d 220 (holding that child victim's statements regarding the identity of her perpetrator made to her therapist and physician during treatment were admissible). "A"'s statements to Dr. Lattimer identifying her father as her assailant are admissible on grounds that the information was pertinent to "A"'s diagnosis and treatment. Accordingly, this evidence was not presented to establish that "A"'s condition was caused by defendant. "A" testified at trial and identified defendant as her perpetrator. Therefore, Dr. Lattimer's testimony corroborates "A"'s testimony and is also admissible on this ground.

B. Expert testimony that the victim had been sexually abused

At trial, after being qualified and accepted by the court as an...