{ "id": 8525505, "name": "STATE OF NORTH CAROLINA v. GREGORY DEVON SPELLER", "name_abbreviation": "State v. Speller", "decision_date": "1991-05-07", "docket_number": "No. 903SC845", "first_page": "697", "last_page": "706", "citations": [ { "type": "official", "cite": "102 N.C. App. 697" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "33 ALR3d 335", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "31 ALR4th 120", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "351 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "318 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737137 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/318/0674-01" ] }, { "cite": "364 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2572595 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0550-01" ] }, { "cite": "317 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686925 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0351-01" ] }, { "cite": "392 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 782", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305596 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0782-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "180" }, { "page": "179" } ], "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "104 L.Ed.2d 1009", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "490 U.S. 1101", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605985, 605858, 606052, 605061, 605286, 605446, 604937, 604876, 605069, 605139, 605716, 605395, 605075, 604980, 605430, 605241 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/490/1101-03", "/us/490/1101-05", "/us/490/1101-08", "/us/490/1101-12", "/us/490/1101-15", "/us/490/1101-14", "/us/490/1101-11", "/us/490/1101-13", "/us/490/1101-01", "/us/490/1101-09", "/us/490/1101-02", "/us/490/1101-10", "/us/490/1101-04", "/us/490/1101-07", "/us/490/1101-06", "/us/490/1101-16" ] }, { "cite": "374 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565899 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0508-01" ] }, { "cite": "357 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "366" } ], "opinion_index": 0 }, { "cite": "320 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729914 ], "year": 1987, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0020-01" ] }, { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "365 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 212", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521188 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0212-01" ] }, { "cite": "350 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732149 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0590-01" ] }, { "cite": "350 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735495 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0614-01" ] }, { "cite": "358 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729285 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0452-01" ] } ], "analysis": { "cardinality": 752, "char_count": 18690, "ocr_confidence": 0.748, "pagerank": { "raw": 2.8178046873257966e-07, "percentile": 0.8381098666370125 }, "sha256": "222116f95d5c82cc05804c46929958bb028aa061a9830510e87c282a23e49264", "simhash": "1:c70f813e6effe0d6", "word_count": 3111 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Wynn concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GREGORY DEVON SPELLER" ], "opinions": [ { "text": "JOHNSON, Judge.\nDefendant was indicted on two counts of taking indecent liberties with a child, one count of first-degree sexual offense and one count of first-degree rape. At the close of all the evidence, the trial court dismissed one count of indecent liberties. Defendant was convicted of the other charges and sentenced to life imprisonment for rape, life imprisonment for sexual offense and ten years for indecent liberties, all to run concurrently.\nThe evidence presented at trial showed that in the week or so following a move with her mother from her grandmother\u2019s house to a house on Bonner Lane, the six year old victim was sexually abused on several occasions by the defendant, her mother\u2019s boyfriend. The victim told her kindergarten teachers and her grandmother that defendant \u201ccame to [her] bed every night.\u201d He put his \u201cthing\u201d in her \u201cbottom\u201d and \u201cin front.\u201d She testified that this happened about five times. She also testified that while riding with defendant in his car, defendant put his finger inside her \u201cbottom.\u201d She also said that he kissed her and put his tongue on her tongue. Defendant threatened her with a beating if she told anyone about the assaults. A social worker for the Department of Social Services investigated the victim\u2019s complaints and made arrangements for her to return to her grandmother\u2019s house. At trial before a jury, the trial court admitted expert testimony about which defendant complains. Additional evidence will be set forth as necessary in the discussion of the issues.\nI.\nBy his first Assignment of Error, defendant contends that the trial court erred in allowing the State\u2019s expert witness to testify to several opinions regarding sexual abuse.\nDr. Betty Robertson was tendered by the State and accepted by the court as an expert in clinical and psychological education. She testified that she conducted a psychological evaluation of the victim at the request of the Department of Social Services. Her examination consisted of several interviews with the victim, her grandmother and her mother. She administered standard tests including an IQ test, a visual motor integration and achievement test, drawing test, children\u2019s apperception test and the projected storytelling test. Her final interview with the victim was a sexual abuse interview at the end of which she used anatomically correct dolls \u201cfor verification, to make sure that we have not misunderstood what activity went on.\u201d\nDr. Robertson testified as to her testing of the child, her findings as to her intelligence, memory and verbal skills. She explained how young children in general are able to communicate with regard to sexual abuse. She repeated the victim\u2019s description to her of what defendant had done to her. In response to the State\u2019s question as to her diagnostic impressions, Dr. Robertson stated her conclusion that the child suffered from an adjustment disorder with mixed emotional features, a diagnosis consistent with the history of sexual abuse that she related.\nDefendant first complains that Dr. Robertson\u2019s testimony was improper because she testified not merely to the general characteristics of child abuse but that the victim herself had been molested and that this had the effect of expressing an opinion on the ultimate issue in the case and the credibility of the child witness. We disagree. The testimony of an expert to the effect that a prosecuting witness is believable, credible or telling the truth is not admissible. State v. Jackson, 320 N.C. 452, 358 S.E.2d 679 (1987); State v. Kim, 318 N.C. 614, 350 S.E.2d 347 (1986); State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986). But where the expert\u2019s testimony relates to a diagnosis derived from the expert\u2019s examination of the witness in the course of treatment, it is not objectionable because it supports the credibility of the witness (State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988)); or identifies the perpetrator (State v. Smith, 315 N.C. 76, 85, 337 S.E.2d 833, 840 (1985)); or states an opinion that abuse has occurred (State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 366 (1987)).\nIn the instant case, Dr. Robertson\u2019s testimony was not that the victim was believable or that the defendant was guilty or innocent. Her testimony related to her expert knowledge of abused children in general and her personal examination of the victim. This contention is without merit.\nIn the course of her testimony, Dr. Robertson repeated the victim\u2019s statements to her that the defendant had sexually abused her. Defendant contends that Dr. Robertson\u2019s testimony was improper because it was to the effect that defendant was the perpetrator. This objection is without merit. The testimony at issue was derived from information obtained by Dr. Robertson in the course of the victim\u2019s treatment and evaluation and is admissible. Smith, 315 N.C. 76, 337 S.E.2d 833; Aguallo, 318 N.C. 590, 350 S.E.2d 76. Furthermore, the victim testified at trial and identified defendant as the perpetrator. Therefore, Dr. Robertson\u2019s testimony corroborates her testimony and was properly admitted on that ground. Smith, 315 N.C. 76, 337 S.E.2d 833.\nDefendant next objects to Dr. Robertson\u2019s testimony that \u201cmothers of abused children usually do not believe the child, and that it was a good sign for [the victim] to have told her grandmother that defendant abused her.\u201d Defendant complains that this improperly undercuts the testimony of the mother who did not believe her daughter and bolsters the testimony of the grandmother who did believe her. We find that this testimony was proper under G.S. \u00a7 8C-1, Rule 702 as being \u201cspecialized knowledge [which would] assist the trier of fact to understand the evidence\u201d since a lay jury could be expected to be unfamiliar with the parental responses to allegations of abuse and the responses of abused children to those to whom they look for help. As such, this evidence was helpful to the jury in understanding the evidence and well within the expertise of the witness. Bailey, 89 N.C. App. 212, 365 S.E.2d 651.\nDefendant next complains that Dr. Robertson improperly based her opinion in part on the performance of the victim with \u201canatomically correct\u201d dolls. Dr. Robertson testified that in her last interview with the victim she talked to the child about what had happened to her and only after she had obtained the details verbally did she bring out the dolls so that the victim could give her a visual demonstration of what had happened. We find no error in this. This is essentially the same use of anatomically correct dolls as was described in State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), cert. denied, 490 U.S. 1101, 104 L.Ed.2d 1009 (1989). In the case sub judice, it is clear that the dolls were used only to confirm the activities that the child had already verbally described. This objection is without merit.\nII.\nBy his second Assignment of Error, defendant makes three related arguments: (1) that he was denied a unanimous jury verdict on the sexual offense and indecent liberties charges, (2) that the instruction on sexual offense allowed the jury to convict him on grounds of genital penetration by any object thus allowing the jury to convict him of both sexual offense and rape for the same act and (3) that a juror may have based his guilty vote for indecent liberties on the act that formed the basis of the dismissed count.\nDefendant first alleges that the instructions allowing conviction if the jury found that defendant had committed any indecent liberty upon the child, denied him a unanimous verdict because the several jurors were free to determine for themselves which of the various acts testified to by the victim could support the conviction. This issue was recently decided in State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990) and State v. McCarty, 326 N.C. 782, 392 S.E.2d 359 (1990). See also State v. Foust, 311 N.C. 351, 317 S.E.2d 385 (1984). The Hartness Court explained:\nAs [G.S. \u00a7 14-202.1(1981)] indicates, the crime of indecent liberties is a single offense which may be proved by evidence of the commission of any one of a number of acts. The evil the legislature sought to prevent in this context was the defendant\u2019s performance of any immoral, improper, or indecent act in the presence of a child \u201cfor the purpose of arousing or gratifying sexual desire.\u201d Defendant\u2019s purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial-]\nHartness, 326 N.C. at 567, 391 S.E.2d at 180.\nEven if we assume that some jurors found that one type of sexual conduct occurred and others found that another transpired, the fact remains that the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of \u201cany immoral, improper, or indecent liberties.\u201d Such a finding would be sufficient to establish the first element of the crime charged.\nId. at 565, 391 S.E.2d at 179.\nIn the case sub judice, the trial judge instructed the jury:\nFor you to find the defendant guilty of taking an indecent liberty with a child, the State must prove three things beyond a reasonable doubt. First, that the defendant willfully took an indecent liberty with a child for the purpose of arousing or gratifying sexual desire. An indecent liberty is an immoral, improper or indecent touching by the defendant upon the child.\nHe also instructed the jury that to convict on first-degree sexual offense the State must prove that defendant engaged in a sexual act with the victim.\nA sexual act means anal intercourse, which is any penetration, hwoever [sic] slight, of the anus of any person by the male sexual organ of another, or any penetration, however slight, by an object into the genital opening of a person\u2019s body.\nThe trial judge further instructed that a conviction for first-degree rape required, inter alia, that the jury find the defendant engaged in vaginal intercourse with the victim where \u201cvaginal intercourse is the penetration, however slight, of the female sex organ by the male sex organ.\u201d\nFinally, the judge instructed the jury that \u201ca verdict is not a verdict until all twelve of the jurors agree unanimously as to what your decision shall be, and you may not render a verdict by a majority vote.\u201d There is no indication in the record as to any confusion within the jury as to these instructions.\nThe evidence at trial tended to show that defendant performed various acts upon the victim including kissing her on her mouth; putting his tongue on hers; inserting his finger in her vagina and anus; inserting his penis in her anus and in her vagina.\nWe find that the instructions were properly tailored to the evidence of the case and do not result in an impermissible non-unanimous verdict. Hartness, 326 N.C. 561, 391 S.E.2d 177.\nDefendant next contends that the jury could have convicted him of both sexual offense and rape on the basis of the same act. The trial judge instructed the jury that rape consists of a penetration of the female sex organ by the male sex organ. He also instructed the jury that a sexual act which comprises a sexual offense means \u201canal intercourse ... or any penetration, however slight, by an object into the genital opening of a person\u2019s body.\u201d The judge did not include in his instruction the language in the statute which excludes vaginal intercourse from the definition of \u201csexual act.\u201d See G.S. \u00a7 14-27.1(4) (which defines \u201csexual act\u201d as cunnilingus, fellatio, analingus, or anal intercourse, but not vaginal intercourse, and also includes the penetration by any object into the genital or anal openings of another person\u2019s body). Defendant essentially argues that because rape was not excluded from the definition of a sexual act, the jury could have found defendant guilty of a sexual offense if they found that he inserted his penis (any object) into the vagina (the genital opening) of the victim. This act, of course, constitutes rape, for which defendant was also convicted. We disagree with defendant\u2019s argument. The trial judge\u2019s instructions defined a \u201csexual act\u201d in the disjunctive as being (1) anal intercourse, the penetration of the anus of one person by the male sexual organ of another or (2) the penetration by an object into the genital opening of a person\u2019s body. Given this distinction within the same instruction between a \u201cmale sexual organ\u201d and an \u201cobject\u201d we believe that there is no reasonable possibility that a juror would incorrectly equate the two.\nDefendant next contends that it is possible that at least one juror based his vote of guilty for indecent liberties on the act that formed the basis of the dismissed count. The trial judge dismissed one count of indecent liberties at the close of all the evidence and the record shows only that he announced the dismissal by saying \u201c[t]he Court is going to allow the motion in 89-CRS-20271 and deny the motion in the other three cases. All right. Bring the jury back.\u201d There is no indication in the record that the jury was instructed as to what acts, if any, were associated with the dismissed charge and thus what acts, if any, it should disregard when considering whether defendant was guilty of the remaining charge. Defendant did not object at trial to this omission and did not request that such an instruction be given. This objection is overruled.\nBy his last assignment of error, defendant contends that a mandatory life sentence for first-degree sexual offense constitutes cruel and unusual punishment as a matter of law. Our Supreme Court has recently held against defendant on this issue. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988); State v. Cooke, 318 N.C. 674, 351 S.E.2d 290 (1987). This assignment is overruled.\nNo error.\nJudges Arnold and Wynn concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General Valerie B. Spalding, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GREGORY DEVON SPELLER\nNo. 903SC845\n(Filed 7 May 1991)\n1. Criminal Law \u00a7\u00a7 50.1, 89.1 (NCI3d); Rape and Allied Offenses \u00a7 4 (NCI3d)\u2014 sexual abuse \u2014expert testimony that victim molested \u2014 admissible\nThe trial court did not err in a sexual abuse prosecution by admitting the testimony of an expert in clinical and psychological education that the victim had been molested. The testimony was not that the victim was believable or that defendant was guilty or innocent, but related to the witness\u2019s expert knowledge of abused children in general and her personal examination of the victim.\nAm Jur 2d, Rape \u00a7 100.\n2. Rape and Allied Offenses \u00a7 4 (NCI3d| \u2014 sexual abuse \u2014 victim\u2019s statements \u2014 admissible\nThe trial court did not err in a sexual abuse prosecution by allowing an expert witness to repeat the victim\u2019s statements that defendant had sexually abused her. The testimony was derived from information obtained in the course of the victim\u2019s treatment and evaluation; furthermore, the victim identified defendant at trial, so that the expert testimony was properly admitted as corroborative.\nAm Jur 2d, Rape \u00a7\u00a7 94 et seq.\nModern status of rule regarding necessity for corroboration of victim\u2019s testimony in prosecution for sexual offense. 31 ALR4th 120.\n3. Criminal Law \u00a7 50.1 (NCI3d)\u2014 sexual abuse \u2014expert testimony \u2014 reaction of mothers of abused children \u2014 admissible\nThe trial court did not err in a sexual abuse prosecution by admitting expert testimony that the mothers of abused children usually do not believe the child, and that it was a good sign for the victim to have told her grandmother that defendant abused her. Although defendant contended that this undercut the testimony of the mother and bolstered the testimony of the grandmother, the testimony was admissible under N.C.G.S. \u00a7 8C-1, Rule 702 since a lay jury could be expected to be unfamiliar with parental responses to allegations of abuse and the responses of abused children to those to whom they look for help.\nAm Jur 2d, Rape \u00a7\u00a7 94 et seq.\nModern status of rule regarding necessity for corroboration of victim\u2019s testimony in prosecution for sexual offense. 31 ALR4th 120.\n4. Criminal Law \u00a7 50.1 (NCI3d)\u2014 sexual abuse \u2014expert testimony \u2014anatomically correct dolls\nThe trial court did not err in a sexual abuse prosecution by allowing an expert to base her opinion in part on the performance of the victim with anatomically correct dolls where it was clear that the dolls were used only to confirm the activities that the child had already verbally described.\nAm Jur 2d, Rape \u00a7 104.\n5. Criminal Law \u00a7 904 (NCI4th)\u2014 sexual abuse of child\u2014 instructions \u2014 unanimous verdict\nDefendant in a prosecution for taking indecent liberties with a child, first degree sexual offense, and first degree rape was not denied a unanimous verdict because the jurors were free under the instructions to determine which of the various acts testified to by the victim could support the convictions. The evidence at trial tended to show that defendant performed various acts upon the victims; there is no indication of confusion within the jury; and the instructions were properly tailored to the evidence of the case.\nAm Jur 2d, Rape \u00a7 111.\n6. Rape and Allied Offenses \u00a7 6 (NCI3d)\u2014 rape and first degree sexual offense \u2014 definition of sexual offense \u2014 no error\nThere is no error in a prosecution for first degree sexual offense and rape where the trial court did not exclude rape from the definition of a sexual act in its instruction on sexual offense. Given the distinction within the same instruction between a \u201cmale sexual organ\u201d and an \u201cobject,\u201d there was no reasonable possibility that a juror would incorrectly equate the two.\nAm Jur 2d, Rape \u00a7 108.\n7. Rape and Allied Offenses \u00a7 19 (NCI3d)\u2014 indecent liberties\u2014 one count dismissed \u2014 no instruction as to acts to disregard\nThere was no error in a prosecution for indecent liberties where one count was dismissed at the close of the evidence, but there was no indication that the jury was instructed as to what acts, if any, it should disregard. Defendant did not object at trial or request such an instruction.\nAm Jur 2d, Rape \u00a7 108.\n8. Rape and Allied Offenses \u00a7 7 (NCI3d)\u2014 first degree sexual offense \u2014 mandatory life sentence \u2014not cruel and unusual\nA mandatory life sentence for first degree sexual offense did not constitute cruel and unusual punishment.\nAm Jur 2d, Rape \u00a7\u00a7 114, 115.\nComment Note. \u2014Length of sentence as violation of constitutional provisions prohibiting cruel and unusual punishment. 33 ALR3d 335.\nAppeal by defendant from judgment entered 14 March 1990 by Judge Frank R. Brown in PlTT County Superior Court. Heard in the Court of Appeals 20 March 1991.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Valerie B. Spalding, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for the defendant-appellant." }, "file_name": "0697-01", "first_page_order": 727, "last_page_order": 736 }