{ "id": 5314447, "name": "STATE OF NORTH CAROLINA v. HERMAN LESLIE DAVIS, Defendant", "name_abbreviation": "State v. Davis", "decision_date": "1992-07-07", "docket_number": "No. 914SC606", "first_page": "596", "last_page": "605", "citations": [ { "type": "official", "cite": "106 N.C. App. 596" } ], "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": "60 ALR4th 369", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "4 ALR4th 1274", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "150 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561067 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0225-01" ] }, { "cite": "340 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "315 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714140 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0762-01" ] }, { "cite": "352 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4745368 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0084-01" ] }, { "cite": "399 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543912 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0072-01" ] }, { "cite": "390 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "98 N.C. App. 23", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522371 ], "year": 1990, "pin_cites": [ { "page": "26-27" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0023-01" ] }, { "cite": "324 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756069 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0567-01" ] }, { "cite": "367 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "624" } ], "opinion_index": 0 }, { "cite": "322 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517321 ], "year": 1988, "pin_cites": [ { "page": "238-39" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0229-01" ] }, { "cite": "414 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "363" }, { "page": "363" }, { "page": "363" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 576", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524406 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "581" }, { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0576-01" ] }, { "cite": "412 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1992, "pin_cites": [ { "page": "889" }, { "page": "890" }, { "page": "891" } ], "opinion_index": 0 }, { "cite": "330 N.C. 808", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513076 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0808-01" ] }, { "cite": "390 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "174" }, { "page": "174", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522269 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "11" }, { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0001-01" ] }, { "cite": "341 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703139, 4699043, 4696042, 4703660, 4704724 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0198-01", "/nc/316/0198-05", "/nc/316/0198-04", "/nc/316/0198-03", "/nc/316/0198-02" ] }, { "cite": "337 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "603" }, { "page": "604" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520802 ], "year": 1985, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0262-01" ] }, { "cite": "399 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "327 N.C. 639", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499581, 2497002, 2496821, 2499873 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0639-02", "/nc/327/0639-03", "/nc/327/0639-01", "/nc/327/0639-04" ] }, { "cite": "394 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "282" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524548 ], "year": 1990, "pin_cites": [ { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0658-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "397 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054849 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0436-01" ] }, { "cite": "468 U.S. 317", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338223 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "324" }, { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/us/468/0317-01" ] }, { "cite": "310 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "613", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "310 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2399372 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "145", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0142-01" ] }, { "cite": "59 S.E. 866", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1907, "pin_cites": [ { "page": "867", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "145 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254018 ], "year": 1907, "pin_cites": [ { "page": "584", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/145/0581-01" ] }, { "cite": "284 U.S. 299", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5719289 ], "weight": 3, "year": 1932, "opinion_index": 0, "case_paths": [ "/us/284/0299-01" ] }, { "cite": "495 U.S. 508", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 634223 ], "weight": 5, "year": 1990, "pin_cites": [ { "page": "510" }, { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/us/495/0508-01" ] } ], "analysis": { "cardinality": 944, "char_count": 22753, "ocr_confidence": 0.769, "pagerank": { "raw": 5.507065386479367e-07, "percentile": 0.9462899188331058 }, "sha256": "802a57183a91592f57cf2ab068c0a71ea609671a8602a22fec60758569276d3f", "simhash": "1:27097b69106e68ca", "word_count": 3695 }, "last_updated": "2023-07-14T19:35:11.401464+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. HERMAN LESLIE DAVIS, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant was convicted by a jury of one count of taking indecent liberties with a minor, and one count of attempted first degree rape. Defendant was acquitted, at two separate trials, of two counts of kidnapping. The trial court sentenced defendant to active prison terms for his convictions. Defendant appeals the judgments.\nThe evidence at trial tended to show that on the afternoon of 23 January 1990, two young children, one a nine year old female and the second her eleven year old male cousin, were walking around in Clinton, visiting and passing by various establishments. After the children left a local convenience store, the defendant grabbed both of them and pulled them behind the store. The defendant told the girl in graphic and vulgar language that he intended to have sexual relations with her. The defendant then proceeded to unzip and place his hand inside the female child\u2019s pants; he then fondled the girl\u2019s private parts. The boy kicked the defendant and fled; the girl bit defendant on the hand and made her escape. She told her mother what had happened and later identified the defendant as her attacker.\nDefendant was first brought to trial in June 1990. The jury acquitted him of second degree kidnapping of the boy; the jury was unable to agree on the other charges of first degree kidnapping of the girl, attempted first degree rape of the girl, and taking indecent liberties with a minor as to the girl. Defendant\u2019s second trial on these three charges commenced on 15 October 1990, resulting in his conviction on all but the remaining kidnapping charge as to the girl, of which he was acquitted.\nDefendant first asserts that the trial court erred by not dismissing the charges for which he was tried at the second trial because of the constitutional doctrines of double jeopardy and collateral estoppel. Defendant contends that all charges against him arose out of a single occurrence; specifically, that testimony showed that defendant grabbed both children at the same time and pulled them at the same time behind the store. Thus, defendant reasons, the State has violated his Fifth Amendment right to avoid double jeopardy by trying him for kidnapping the girl when for this offense it had to prove the same conduct for which he was tried and acquitted for kidnapping the boy. See Grady v. Corbin, 495 U.S. 508, 109 L.Ed. 2d 548, 110 S. Ct. 2084 (1990).\nThe United States Supreme Court, in Blockburger v. United States, 284 U.S. 299, 76 L.Ed. 306, 52 S. Ct. 180 (1932), held that the Fifth Amendment prohibits successive prosecutions for the same criminal act under more than one criminal statute when proof of only one set of facts would suffice for all. In Grady, the Court held that subsequent prosecutions were prohibited if to establish \u201can essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.\u201d Grady, 495 U.S. at 510, 109 L.Ed. 2d at 557. We hold that defendant\u2019s second trial did not violate these principles.\nFirst, defendant was charged with two separate counts of kidnapping, one as to the boy, the other as to the girl. Defendant was acquitted of both. After the outcome of the first trial, no more charges against defendant with relation to the boy remained. In the second trial, the kidnapping charge was relative to the girl, and defendant was acquitted of this charge as well. Defendant has nothing left to complain about with respect to the kidnapping charges.\nThe offenses of attempted first degree rape and taking indecent liberties with children do not require proof of the same elements as were necessary in the kidnapping charges. Or, as our Supreme Court long ago put it, \u201cOne cannot be put twice in jeopardy for the same offense. When some indispensable element in one charge is not required to be shown in the other, they are not the same offense.\u201d State v. Hooker, 145 N.C. 581, 584, 59 S.E. 866, 867 (1907) (emphasis in original); see also State v. Edwards, 310 N.C. 142, 310 S.E.2d 610 (1984).\nAs to the other charges, the jury was unable to agree on a verdict, and a mistrial resulted. The United States Supreme Court has \u201cconstantly adhered to the rule that a retrial following a \u2018hung jury\u2019 does not violate the Double Jeopardy Clause.\u201d Richardson v. United States, 468 U.S. 317, 324, 82 L.Ed. 2d 242, 250, 104 S. Ct. 3081 (1984). This rule is applicable here.\nAs a final point in defendant\u2019s first assignment of error, we address his collateral estoppel argument. Defendant contends that the United States Supreme Court case of Ashe v. Swenson, 397 U.S. 436, 25 L.Ed. 2d 469, 90 S. Ct. 1189 (1970) controls. There the doctrine of collateral estoppel was held to be a part of the double jeopardy clause. In Ashe, armed and masked people robbed six men as the men played poker. The defendant was charged with seven separate offenses stemming from the robbery but was acquitted in a trial for the robbery of one of the poker players. He was then brought to trial again for robbing a second poker player, and was found guilty. The Supreme Court held that the second trial, wherein the State relitigated the issue of whether the defendant was the perpetrator of the crimes, was unconstitutional under the federal rule of collateral estoppel. Defendant in the present case asserts that Ashe controls here. However, for the same reasons that we reject defendant\u2019s double jeopardy claim, we reject his collateral estoppel claim.\nAccording to our Supreme Court, \u201cUnder the doctrine of collateral estoppel, an issue of ultimate fact, once determined by a valid and final judgment, cannot again be litigated between the same parties in any future lawsuit.\u201d State v. Edwards, 310 N.C. 142, 145, 310 S.E.2d 610, 613 (1984) (emphasis in original). As we have already noted, defendant\u2019s second trial resulted in an acquittal for kidnapping the girl. We see nothing about which the defendant can complain. The \u201cultimate issue\u201d determined was not as to the other charges. The jury found that the State had not proved the allegations of kidnapping beyond a reasonable doubt. Apropos the other charges, we again note that no issue of ultimate fact as to attempted rape or indecent liberties was determined by a \u201cvalid and final judgment\u201d in the first trial. The jury was hung; Richardson, not Ashe, controls and the protections of the double jeopardy clause and collateral estoppel are inapplicable. We overrule defendant\u2019s first assignment of error.\nDefendant next assigns as error the trial court\u2019s permitting the young male victim to testify at defendant\u2019s second trial. Defendant argues that this was doubly error because it violated the principles of double jeopardy and collateral estoppel, and also because it was unduly prejudicial under N.C.G.S. \u00a7 8C-1, Rule 403 (1988). We find none of these arguments persuasive, particularly since the boy\u2019s testimony was used as eyewitness evidence of what occurred on 23 January 1990.\nWe reject defendant\u2019s double jeopardy and collateral estoppel argument for the reasons stated above. As for defendant\u2019s argument that the boy\u2019s testimony was unduly prejudicial, we note that the exclusion of evidence is a matter left to the sound discretion of the trial judge. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990). Defendant offers no real support for his contention that this evidence was unduly prejudicial; he does list other alleged child sex abusers, and maintains that the boy\u2019s testimony unfairly links defendant to them and to the \u201cmost sensitive subject in jurisprudence today.\u201d We hold that under Rule 403, the eyewitness testimony of the boy was relevant and its probative value outweighs any possible prejudice.\nDefendant\u2019s next assignment of error concerns the testimony of a Ms. Walters, a school psychologist. Defendant contends that this witness was not qualified to testify as an expert, that her testimony improperly commented on the credibility of the complaining witness, and that the testimony was unduly prejudicial. Under N.C.G.S. \u00a7 8C-1, Rule 702 (1988), for her testimony to be admissible as expert testimony, the witness must be qualified by \u201cknowledge, skill, experience, training, or education.\u201d North Carolina case law requires only that the expert be better qualified than the jury as to the subject at hand, with the testimony being \u201chelpful\u201d to the jury. State v. Huang, 99 N.C. App. 658, 663, 394 S.E.2d 279, 282, disc. rev. denied, 327 N.C. 639, 399 S.E.2d 127 (1990). Whether the witness qualifies as an expert is exclusively within the trial judge\u2019s discretion, id., (citation omitted), \u201cand is not to be reversed on appeal absent a complete lack of evidence to support his ruling.\u201d State v. Howard, 78 N.C. App. 262, 270, 337 S.E.2d 598, 603 (1985), disc. rev. denied, 316 N.C. 198, 341 S.E.2d 581 (1986).\nThe evidence shows that Ms. Walters has a masters degree in clinical psychology, and is a licensed psychological associate. During voir dire examination, Ms. Walters testified that she had been employed for five years as the school psychologist in Clinton City, North Carolina, and in her practice has worked with adult and child survivors of incest, rape, and molestation. Given her education and experience, Ms. Walters was well qualified to testify as an expert, and her testimony was properly admitted as expert testimony. Id. at 270, 337 S.E.2d at 604.\nDefendant further contends that Ms. Walters\u2019 testimony, which included her reading aloud notes which she had written after sessions with the victim, constituted inadmissible expert testimony on the credibility of the complaining witness. While it is true that in North Carolina expert testimony on the credibility of a witness is inadmissible, see, e.g., State v. Hall, 98 N.C. App. 1, 11, 390 S.E.2d 169, 174 (1990), rev\u2019d on other grounds, 330 N.C. 808, 412 S.E.2d 883 (1992); N.C.G.S. \u00a7 8C-1, Rules 405(a), 608 (1988), the defendant must show prejudicial error. Defendant has shown no prejudicial error here. \u201cOur courts have found prejudicial error when the State\u2019s case against the defendant hinged almost entirely on the credibility of the victim.\u201d Hall, 98 N.C. App. at 11, 390 S.E.2d at 174 (citations omitted). That is not the situation here.\nWe find it necessary to address the content of Ms. Walters\u2019 testimony. Ms. Walters testified on direct examination that she was familiar with post-traumatic stress disorder [PTSD] as a medical condition. She went on to explain the disorder, its causes and symptoms. She was asked by counsel whether in her opinion the victim in this case suffers from PTSD, to which Ms. Walters responded \u201cYes.\u201d Counsel then asked Ms. Walters if she was aware of symptoms and characteristics typically exhibited by sexually abused children. Ms. Walters answered affirmatively, then proceeded to testify that she believed the victim exhibited symptoms consistent with the behavior of sexually abused children. Defense counsel made repeated objections to this line of testimony. The trial court allowed the testimony, and gave no limiting instruction.\nThe defendant relies on a recent Supreme Court decision, State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992), to argue.that this testimony was admitted in error. Expert testimony relating to PTSD is admissible evidence in North Carolina. Id. at 819, 412 S.E.2d at 889; State v. Jones, 105 N.C. App. 576, 414 S.E.2d 360 (1992). However, our Supreme Court has held that the admissibility of this evidence is not unlimited. Hall, 330 N.C. at 821, 412 S.E.2d at 890.\nThe Supreme Court recognizes that testimony that a victim suffers from or has symptoms consistent with PTSD has substantial potential for prejudice against the defendant. Id. This evidence, then, will be admitted only for certain corroborative purposes. Id. Permissible uses for testimony that a person suffers from PTSD include assisting in corroborating the victim\u2019s story, explaining delays in reporting the crime, or refuting a defense of consent. Id. at 822, 412 S.E.2d at 891. If the probative value of the evidence outweighs the risk of prejudice under N.C.G.S. \u00a7 8C-1, Rule 403, the evidence may be admitted. However,\n[i]f admitted, the trial judge should take pains to explain to the jurors the limited uses for which the evidence is admitted. In no case may the evidence be admitted substantively for the sole purpose of proving that a rape or sexual abuse has in fact occurred.\nId.\nThe case at bar is similar to a recent decision by this Court, State v. Jones, 105 N.C. App. 576, 414 S.E.2d 360 (1992). In that case, like this one, the trial court failed to give a limiting instruction to the jury to use the evidence for any particular purpose. Therefore, this Court concluded that, because a limiting instruction was absent and because the law at the time of the case permitted it, the evidence was admitted for substantive purposes. Id. at 580-81, 414 S.E.2d at 363; see also State v. Hall, 98 N.C. App. 1, 390 S.E.2d 169 (1990), rev\u2019d, 330 N.C. 808, 412 S.E.2d 883 (1992). Given the Supreme Court\u2019s Hall decision, this Court held the unlimited admission of the evidence to be in error. Jones, 105 N.C. App. at 581, 414 S.E.2d at 363. In this case, we hold as well that the unlimited admission of Ms. Walters\u2019 testimony concerning the victim\u2019s symptoms of PTSD was in error as no limiting instruction was given. However, not every creek which rises overflows.\nWe next examine whether the error was prejudicial. According to N.C.G.S. \u00a7 15A-1443 (1988), a defendant is prejudiced by errors \u201cwhen there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.\u201d See State v. Martin, 322 N.C. 229, 238-39, 367 S.E.2d 618, 624 (1988). In Jones, this Court held the error to be prejudicial, because there was a \u201creasonable possibility that had the trial court not admitted [the counselor\u2019s] testimony for substantive purposes, a different result would have been reached at the defendant\u2019s trial.\u201d Jones, 105 N.C. App. at 581, 414 S.E.2d at 363.\nWe distinguish this case from Jones. Here we have strong and convincing eyewitness evidence that corroborates the testimony of the victim. Here, the State\u2019s primary evidence consisted of the victim\u2019s and the boy\u2019s testimony, and the corroborative testimony of a police officer, a detective, and the psychologist, Ms. Walters. The boy, who was eleven at the time the alleged incident occurred, testified that he heard defendant say he was going to have sexual intercourse with the female child, and he saw the defendant unzip the girl\u2019s pants, place his hands within, and \u201crub\u201d her privates. Given this strong testimony, we do not find the admission of Ms. Walters\u2019 testimony to be prejudicial error.\nDefendant\u2019s next assignment of error concerns the trial court\u2019s limiting counsel\u2019s objections to questions asked on cross-examination. Defendant argues that the basis for counsel\u2019s objections was that the trial court permitted the prosecution to inquire into defendant\u2019s prior bad acts. However, the record reflects that defendant takes issue with the trial judge\u2019s limiting counsel\u2019s frequent objections. It is significant, however, that in so doing, the trial court granted defendant a continuing objection. It appears to this Court that the trial court was simply attempting to provide for the orderly examination and cross-examination of witnesses, which is entirely within the judge\u2019s sound discretion. State v. Albert, 312 N.C. 567, 324 S.E.2d 233 (1985). We overrule this assignment of error.\nNext defendant assigns as error the trial court\u2019s admitting testimony by police officers as to defendant\u2019s character and reputation. Defendant asserts that this testimony was no more than an \u201cattempt to persuade the jury that the defendant was a bad guy and ought to be punished,\u201d and therefore was improperly admitted. Our review of the record and transcript, however, fails to substantiate defendant\u2019s theory. The testimony of which defendant complains consisted of brief, rather straightforward testimony of two separate police officers. These officers were merely asked to testify as to the defendant\u2019s reputation for truthfulness, which was at issue because his own testimony contradicted the children\u2019s testimony. We find no error in admitting this evidence.\nFinally, defendant asserts that the trial court\u2019s allowing the children to testify constituted reversible error. Defendant relies on Rule 601(b) which states:\nA person is disqualified to testify as a witness when the court determines that he is . . . incapable of understanding the duty of a witness to tell the truth.\nN.C.G.S. \u00a7 8C-1, Rule 601(b) (1988). Because both children are intellectually limited, defendant maintains that they are incompetent and therefore should have been disqualified as witnesses.\nDefendant misapplies Rule 601(b). Rule 601(b) does not ask how bright, how young, or how old a witness is. Instead, the question is: does the witness have the capacity to understand the difference between telling the truth and lying? See, e.g., State v. Everett, 98 N.C. App. 23, 26-27, 390 S.E.2d 160 (1990), rev\u2019d on other grounds, 328 N.C. 72, 399 S.E.2d 305 (1991). Moreover, it is not necessary for a witness to understand the obligation to tell the truth from a religious point of view. State v. Hicks, 319 N.C. 84, 352 S.E.2d 424 (1987). Our Supreme Court, in State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986), upheld the trial court\u2019s finding that a twelve year-old, mildly retarded boy was competent to testify in a sexual assault case because the trial court, after observing the child\u2019s demeanor and responses, found that \u201c[h]is answers to questions demonstrated ... an understanding of the importance of telling the truth.\u201d Id. at 767, 340 S.E.2d at 354.\nIn this case, both minor witnesses were asked in voir dire whether they knew the difference between truth and falsehood. Both answered affirmatively, and both swore to tell the truth. Because the competency of a witness rests in the sound discretion of the trial judge, given his observation of that witness, we find no error or abuse of discretion in permitting the minor witnesses to testify. State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966).\nDefendant had a fair trial, free of prejudicial error.\nNo error.\nJudges Arnold and Wynn concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Jane Rankin Thompson, for the State.", "Mitchell & Ratliff, by Ernest E. Ratliff, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HERMAN LESLIE DAVIS, Defendant\nNo. 914SC606\n(Filed 7 July 1992)\n1. Constitutional Law \u00a7 180 (NCI4th) \u2014 acquittal of kidnapping boy \u2014hung jury on charges involving girl \u2014retrial \u2014double jeopardy \u2014 collateral estoppel\nWhere defendant was acquitted in his first trial for second degree kidnapping of a boy, and the jury was unable to agree on charges of first degree kidnapping of a girl arising from the same incident, attempted first degree rape of the girl, and taking indecent liberties with the girl, defendant cannot complain that the doctrines of double jeopardy and collateral estoppel prohibited his retrial on the charge of kidnapping the girl where defendant was acquitted of that charge in his second trial. Furthermore, neither double jeopardy nor collateral estoppel prohibited defendant\u2019s retrial on the attempted rape and indecent liberties charges since a retrial following a \u201chung jury\u201d does not violate the double jeopardy clause, those crimes do not require proof of the same elements as the kidnapping charges, and no issue of ultimate fact as to attempted rape or indecent liberties was determined by a final judgment in the first trial.\nAm Jur 2d, Criminal Law \u00a7 303.\nPropriety of court\u2019s dismissing indictment or prosecution because of failure of jury to agree after successive trials. 4 ALR4th 1274.\n2. Evidence and Witnesses \u00a7 2333 (NCI4th)\u2014 school psychologist-qualification as expert\nA school psychologist was qualified to testify as an expert in a kidnapping, attempted rape and indecent liberties trial where the evidence showed that she has a masters degree in clinical psychology and is a licensed psychological associate; she has been employed five years as a school psychologist; and she has worked with adult and child victims of incest, rape and molestation.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 56.\n3. Evidence and Witnesses \u00a7 2337 (NCI4th) \u2014 expert testimony\u2014 credibility of child victim \u2014 absence of prejudice\nEven if a school psychologist\u2019s testimony concerning notes she had written after sessions with the child victim of attempted rape and indecent liberties constituted inadmissible expert testimony on the credibility of the victim, the admission of such testimony was not prejudicial error where the State\u2019s case against defendant did not hinge upon the victim\u2019s credibility.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 26.\n4. Evidence and Witnesses \u00a7 2327 (NCI4th)\u2014 PTSD testimony\u2014 failure to give limiting instruction \u2014 harmless error\nThe trial court erred in admitting expert opinion testimony that an attempted rape and indecent liberties victim suffers from PTSD without giving an instruction limiting the jury\u2019s consideration of this testimony to corroborative purposes. However, this error was not prejudicial where there was strong and convincing testimony from the victim\u2019s brother which corroborated the victim\u2019s testimony.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 33.\n5. Evidence and Witnesses \u00a7 670 (NCI4th)\u2014 limiting objections \u2014 allowance of continuing objection\nThe trial court did not improperly limit defense counsel\u2019s objections to the prosecutor\u2019s cross-examination \u00f3f a witness where the trial court granted defendant a continuing objection.\nAm Jur 2d, Evidence \u00a7 267.\n6. Evidence and Witnesses \u00a7 265 (NCI4th)\u2014 defendant\u2019s reputation for truthfulness \u2014 admissibility\nTwo police officers were properly permitted to testify about defendant\u2019s reputation for truthfulness, which was at issue because defendant\u2019s testimony contradicted'that of the State\u2019s two chief witnesses.\nAm Jur 2d, Evidence \u00a7 346.\n7. Evidence and Witnesses \u00a7 2540 (NCI4th)\u2014 intellectually limited children \u2014competency to testify\nTwo children were not incompetent to testify because they were intellectually limited where both children stated that they knew the difference between truth and falsehood and both swore to tell the truth. N.C.G.S. \u00a7 8C-1, Rule 601(b).\nAm Jur 2d, Witnesses \u00a7 210.\nWitnesses; child competency statutes. 60 ALR4th 369.\nAPPEAL by defendant from judgment entered 15 October 1990 by Judge Henry L. Stevens, III, in SAMPSON County Superior Court. Heard in the Court of Appeals 19 February 1992.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Jane Rankin Thompson, for the State.\nMitchell & Ratliff, by Ernest E. Ratliff, for the defendant-appellant." }, "file_name": "0596-01", "first_page_order": 626, "last_page_order": 635 }