{ "id": 8527975, "name": "STATE OF NORTH CAROLINA v. COLBY SCOTT HUGHES", "name_abbreviation": "State v. Hughes", "decision_date": "1994-05-17", "docket_number": "No. 9330SC659", "first_page": "742", "last_page": "749", "citations": [ { "type": "official", "cite": "114 N.C. App. 742" } ], "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": "55 ALR Fed 689", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "42 ALR4th 879", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "350 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "81" } ], "opinion_index": 0 }, { "cite": "318 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732149 ], "year": 1986, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0590-01" ] }, { "cite": "62 U.S.L.W. 3640", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 1994, "pin_cites": [ { "parenthetical": "No.' 93-7753" } ], "opinion_index": 0 }, { "cite": "435 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531234, 2531972, 2532363, 2530606, 2529022 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0625-02", "/nc/334/0625-03", "/nc/334/0625-01", "/nc/334/0625-04", "/nc/334/0625-05" ] }, { "cite": "428 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "226" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525843 ], "year": 1993, "pin_cites": [ { "page": "501-02" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0491-01" ] }, { "cite": "441 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527776, 2528749, 2526514, 2529939, 2526391 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0562-05", "/nc/335/0562-04", "/nc/335/0562-02", "/nc/335/0562-03", "/nc/335/0562-01" ] }, { "cite": "435 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "802" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 454", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522033 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0454-01" ] }, { "cite": "426 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545059, 2550093, 2548975, 2548374, 2544791 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0347-02", "/nc/333/0347-04", "/nc/333/0347-03", "/nc/333/0347-01", "/nc/333/0347-05" ] }, { "cite": "418 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "106 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314447 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/106/0596-01" ] }, { "cite": "412 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "891" } ], "opinion_index": 0 }, { "cite": "330 N.C. 808", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513076 ], "year": 1992, "pin_cites": [ { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0808-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "816" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "355 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170313 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0713-01" ] }, { "cite": "300 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "pin_cites": [ { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] } ], "analysis": { "cardinality": 664, "char_count": 15861, "ocr_confidence": 0.739, "pagerank": { "raw": 3.259634712246912e-07, "percentile": 0.8694416160942202 }, "sha256": "ae62e847d6c64c0765745586c39ab5107f2015d0a7d1f950e414ead9c88bf341", "simhash": "1:0f64d92a623b91dc", "word_count": 2583 }, "last_updated": "2023-07-14T17:01:59.295429+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge COZORT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. COLBY SCOTT HUGHES" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant was convicted after a jury trial of first-degree rape, first-degree sexual offense, felonious incest, and indecent liberties with a child. Defendant was sentenced to the maximum term for each conviction. From the judgments and commitments, defendant appeals, assigning error to both his trial and sentencing.\nThe State\u2019s evidence tended to show the following: On one afternoon in 1991, after defendant and his wife had separated, defendant\u2019s daughter, C., and her brother and sister were visiting defendant at his residence. While her brother and sister were outside playing, C., age nine at trial, was taking a nap on her father\u2019s bed. Defendant came into the bedroom from the bathroom wearing only his underwear. Defendant then engaged in various sexual acts with C. against her will, including putting his finger \u201con [her] private,\u201d putting his penis in her mouth, and putting his penis \u201con [her] private.\u201d C. testified that defendant had engaged in these acts, as well as engaging in sexual intercourse, with her at other times over the past several years. In addition, C. had engaged in sexual acts with her brother on many occasions. C.\u2019s mother testified that on one occasion she observed such behavior between C. and her brother. Thereafter, in August of 1991, both C. and her brother began seeing Maggie Seehof, a sexual abuse therapist. In February of 1992, C. first told Ms. Seehof of the abuse by her father. Ms. Seehof then reported the suspected abuse to the Department of Social Services. Both Ms. Seehof and social worker Lisa Davis testified for the State. In addition, the State presented the testimony of Dr. Jennifer Brown, a pediatrician, who examined C. in September of 1991 for possible sexual abuse. Dr. Brown examined C. a second time in February of 1992.\nWe first address defendant\u2019s arguments regarding sentencing. The trial court found, as the sole factor in aggravation of the incest and indecent liberties convictions, that defendant took advantage of a position of trust or confidence in order to commit the offenses. See N.C.G.S. \u00a7 15A-1340.4(a)(1)(n) (1988). Defendant contends that these findings were error. As to the incest conviction, we agree.\nEvidence necessary to prove an element of an offense may not be used to prove a factor in aggravation. \u00a7 15A-1340.4(a). The crime of felonious incest has as an element that the defendant and the other participant be related in one of three enumerated familial ways, including parent-child. See N.C.G.S. \u00a7 14-178 (1993). Thus, to prove one element of the offense in the case at hand, it was necessary to establish the parent-child relationship. The trial court then used the evidence of this relationship to find that defendant took advantage of a position of trust or confidence. This was error, and the conviction for incest must therefore be remanded for a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983).\nDefendant also argues that abuse of a position of trust is inherent in the crime of taking indecent liberties, and that, therefore, the trial court erred in finding the position of trust factor in aggravation. This Court rejected the same argument in State v. Caldwell, 85 N.C. App. 713, 355 S.E.2d 813 (1987). Accordingly, we find no merit to defendant\u2019s contention.\nDefendant next argues that the trial court erred in instructing the jury on the offenses of indecent liberties and sexual offense. As to indecent liberties, the court instructed: \u201cAn indecent liberty is an immoral, improper and indecent touching by the defendant upon the child or inducement by the defendant of an immoral or indecent touching by the child.\u201d (Emphasis added). As to the sexual act element of sexual offense, the court instructed: \u201cA sexual act means fellatio . . . and/or any penetration, however slight, by any object into the genital opening of a person\u2019s body.\u201d (Emphasis added). For each offense, the jury returned a general verdict of guilty, without specifying upon which theory or theories it relied.\nDefendant argues that the use of the disjunctive in each instruction permitted the possibility of a divided jury on the issue of which indecent liberty and which sexual act defendant in fact committed, thereby denying him the right to a unanimous verdict. As defendant concedes in his brief, this argument was specifically rejected by our Supreme Court in State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990). However, defendant argues, and we agree, that the instruction on sexual offense in the instant case was improper for another reason.\nThe trial court instructed that the jury could find the defendant guilty of first-degree sexual offense upon finding, inter alia, that defendant committed a sexual act. As noted above, sexual act was defined as \u201cfellatio . . . and/or any penetration, however slight, by any object into the genital opening of a person\u2019s body.\u201d A careful examination of the record reveals that there was no evidence of penetration by an object. C. testified that defendant put his finger \u201con [her] private.\u201d The prosecutor then asked, \u201cPut it where?\u201d, and C. again stated, \u201cOn [her] private.\u201d C.\u2019s subsequent testimony showed that she did not confuse the words \u201con\u201d and \u201cin,\u201d as she stated that defendant put his penis \u201con [her] private and sometimes he put it ... in [her] private.\u201d We note that the penetration by the penis satisfied the penetration element of first-degree rape, but not the penetration element of first-degree sexual offense. On cross-examination, C. was asked, \u201cSo, he never did put his finger in your private?\u201d, and C. responded, \u201cNo.\u201d Thus, there was no evidence of any penetration which would support the sexual offense instruction on penetration by an object. Because there was no evidence of penetration by an object, the trial court erred in instructing that the jury could base a conviction of sexual offense on either fellatio or penetration by an object. Where the trial court instructs on alternative theories, one of which is not supported by the evidence and the other which is, and it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict, the error entitles defendant to a new trial. State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990). We are required, we believe, to order a new trial on the charge of first-degree sexual offense.\nDefendant\u2019s remaining contentions on appeal relate to the admissibility of certain testimony of the State\u2019s expert witnesses. First, defendant contends that the trial court erred in allowing Ms. Seehof, the therapist who treated C. and her brother, to testify that C. suffered from post-traumatic stress disorder (hereinafter \u201cPTSD\u201d), and in not limiting the admissibility of such testimony.\nIn arguing that the testimony was inadmissible, defendant contends that the expert\u2019s opinion was not helpful to the jury, as required by Rule 702 of the Rules of Evidence. We disagree. One way in which expert testimony regarding PTSD can be helpful to the jury is when it tends to explain the victim\u2019s delays in reporting the offenses. State v. Hall, 330 N.C. 808, 822, 412 S.E.2d 883, 891 (1992). In the present case, the victim delayed reporting the offenses for several years. Thus, the expert testimony tended to help explain to the jury the cause of this delay. Accordingly, defendant\u2019s contention that the evidence was inadmissible is without merit.\nDefendant is correct, however, in his assertion that such testimony may only be admitted for purposes of corroboration. It may not be admitted as substantive evidence to prove that a rape or sexual abuse has in fact occurred. Id. Further, the trial court \u201cshould take pains to explain to the jurors the limited uses for which the evidence is admitted.\u201d Id. In the present case, the trial court did not give a limiting instruction. This was error. However, we conclude that it was not prejudicial error. Defendant has not shown that there is a reasonable possibility that, had the limiting instruction been given, a different result would have been reached at trial. See N.C.G.S. \u00a7 15A-1443 (1988); State v. Davis, 106 N.C. App. 596, 418 S.E.2d 263 (1992), disc. review denied, 333 N.C. 347, 426 S.E.2d 710 (1993). Therefore, we hold that the admission of Ms. Seehof\u2019s testimony was not prejudicial error.\nDefendant next argues that the trial court erred in allowing Dr. Brown, the pediatrician who examined C., to testify that C. had been sexually abused. Specifically, Dr. Brown testified that her \u201cclinical impression first was that the findings were strongly suggestive of possible sexual abuse.\u201d In State v. Hammond, 112 N.C. App. 454, 435 S.E.2d 798 (1993), disc. review denied, 335 N.C. 562, 441 S.E.2d 126 (1994), this Court recently held that an expert witness\u2019 opinion that the victim\u2019s symptoms suggested a \u201cvery high probability that [she] had been sexually abused\u201d was properly admitted. The Court held that it was proper for the expert to discuss the symptoms and characteristics of sexually abused children and to express, in'her expert opinion, whether the victim showed similar characteristics. Id. at 461, 435 S.E.2d at 802. Likewise, we conclude that in the present case, Dr. Brown\u2019s testimony regarding the characteristics of sexually abused children and her opinion that C. showed similar characteristics was admissible expert testimony, and we overrule this assignment of error.\nDefendant\u2019s next contention is that the trial court erred in allowing Dr. Brown to testify to statements made to her by C., without limiting the admissibility of such testimony to corroboration. Defendant contends that the statements made by C. were hearsay and did not fall within the hearsay exception for statements made for the purpose of medical diagnosis or treatment, Rule 803(4). This contention is without merit.\nDefendant has only assigned error to one such statement, and our review is therefore limited to that statement. Dr. Brown testified that she asked C. if anyone had touched her in a way that she did not like and that C. replied that her father had. This Court, in State v. Rogers, 109 N.C. App. 491, 501-02, 428 S.E.2d 220, 226, disc. review denied, 334 N.C. 625, 435 S.E.2d 348 (1993), cert. denied, 62 U.S.L.W. 3640 (U.S. Mar. 28, 1994) (No.' 93-7753), held that \u201c[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.\u201d Defendant argues, however, that C.\u2019s statement was not made for purposes of diagnosis and treatment. We disagree. The record clearly shows that C. was seen by Dr. Brown for suspected sexual abuse. C.\u2019s answer to Dr. Brown\u2019s question, therefore, was for the purpose of and was pertinent to a proper diagnosis and course of treatment. See State v. Aguallo, 318 N.C. 590, 597, 350 S.E.2d 76, 81 (1986). Accordingly, Dr. Brown\u2019s testimony was properly admitted.\nIn conclusion, because the jury instruction on first-degree sexual offense was prejudicial error, defendant must have a new trial in case number 92 CrS 483, first-degree sexual offense. In addition, the error in sentencing in case number 92 CrS 481, felonious incest, requires that defendant be resentenced on that offense. As to defendants remaining convictions, we find no prejudicial error in the trial or sentencing.\nFile number 92 CrS 483: New trial.\nFile number 92 CrS 481: Reversed and remanded for new sentencing hearing.\nFile number 92 CrS 482: No error.\nFile number 92 CrS 484: No error.\nChief Judge ARNOLD and Judge COZORT concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Hal F. Askins, Special Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Mark D. Montgomery, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. COLBY SCOTT HUGHES\nNo. 9330SC659\n(Filed 17 May 1994)\n1. Criminal Law \u00a7 1179 (NCI4th) \u2014 aggravating factor \u2014position of trust or confidence \u2014improper for incest \u2014proper for indecent liberties\nSince it was necessary for the State to prove the parent-child relationship as an element of the crime of felonious incest, the trial court could not use the evidence of this relationship to find the aggravating factor that defendant took advantage of a position of trust or confidence to commit incest. However, a parental or familial relationship is not an element of the crime of taking indecent liberties with a child, and the trial court properly found the position of trust or confidence aggravating factor for such crime.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n2. Rape and Allied Sexual Offenses \u00a7 132 (NCI4th)\u2014 indecent liberties \u2014sexual offense \u2014use of disjunctive in instructions\nThe trial court did not err in the use of the disjunctive in its instructions that an indecent liberty \u201cis an immoral, improper and indecent touching by the defendant of the child or inducement by the defendant of an immoral or indecent touching by the child\u201d and that a sexual act means \u201cfellatio . . . and/or any penetration, however slight, by any object into the genital opening of a person\u2019s body.\u201d\nAm Jur 2d, Rape \u00a7\u00a7 108 et seq.\n3. Rape and Allied Sexual Offenses \u00a7 166 (NCI4th)\u2014 sexual offense \u2014instructions \u2014alternative acts \u2014one act not supported by evidence\nThe trial court e.rred by instructing the jury that it could base a conviction of sexual offense on either fellatio or penetration by an object since there was no evidence of penetration by an object where the victim testified only that defendant put his finger \u201con [her] private,\u201d and it was clear from other testimony by the victim that she did not confuse the words \u201con\u201d and \u201cin.\u201d\nAm Jur 2d, Rape \u00a7\u00a7 108 et seq.\n4. Evidence and Witnesses \u00a7 2342 (NCI4th) \u2014 victim suffering from PTSD \u2014 relevancy\u2014failure to give limiting instruction\nA sexual abuse therapist\u2019s testimony that a rape, sexual offense and indecent liberties victim suffered from post traumatic stress disorder was relevant to explain the victim\u2019s delay in reporting the offenses. However, the trial court erred by failing to limit the jury\u2019s consideration of this testimony to corroborative purposes, but this error was not prejudicial since there is no reasonable possibility that, had a limiting instruction been given, a different result would have been reached at trial.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 244.\nAdmissibility, at criminal prosecution, of expert testimony on rape trauma syndrome. 42 ALR4th 879.\n5. Evidence and Witnesses \u00a7 2332 (NCI4th)\u2014 expert testimony \u2014 characteristics of sexually abused children \u2014victim\u2019s similar characteristics\nA pediatrician was properly permitted to testify about the characteristics of sexually abused children and to state that her findings with regard to the alleged victim \u201cwere strongly suggestive of possible sexual abuse.\u201d\nAm Jur 2d, Expert and Opinion Evidence \u00a7 244.\n6. Evidence and Witnesses \u00a7 961 (NCI4th|\u2014 victim\u2019s statement to pediatrician \u2014 hearsay\u2014medical diagnosis and treatment exception\nA pediatrician\u2019s testimony that she asked an alleged rape, sexual offense and indecent liberties victim if anyone had touched her in a way that she did not like and that the victim replied that her father had was admissible under the medical diagnosis and treatment exception to the hearsay rule where the pediatrician examined the victim for possible sexual abuse.\nAm Jur 2d, Federal Rules of Evidence \u00a7 232.\nAdmissibility of statements made for purposes of medical diagnosis or treatment as hearsay exception under Rule 803(4) of the Federal Rules of Evidence. 55 ALR Fed 689.\nAppeal by defendant from judgments and commitments entered 29 January 1993 by Judge Robert W. Kirby in Macon County Superior Court. Heard in the Court of Appeals 8 March 1994.\nMichael F. Easley, Attorney General, by Hal F. Askins, Special Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Mark D. Montgomery, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0742-01", "first_page_order": 770, "last_page_order": 777 }