{ "id": 8521887, "name": "STATE OF NORTH CAROLINA v. PATRICK S. FIGURED", "name_abbreviation": "State v. Figured", "decision_date": "1994-08-16", "docket_number": "No. 9315SC539", "first_page": "1", "last_page": "15", "citations": [ { "type": "official", "cite": "116 N.C. App. 1" } ], "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": "71 L. Ed. 2d 983", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "417 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "246" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "331 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496980 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0731-01" ] }, { "cite": "420 S.E.2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "403" } ], "opinion_index": 0 }, { "cite": "332 N.C. 204", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508049 ], "year": 1992, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0204-01" ] }, { "cite": "412 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "890" } ], "opinion_index": 0 }, { "cite": "330 N.C. 808", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513076 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0808-01" ] }, { "cite": "367 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "145" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524160 ], "year": 1988, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0584-01" ] }, { "cite": "360 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "690" } ], "opinion_index": 0 }, { "cite": "320 N.C. 780", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727537 ], "year": 1987, "pin_cites": [ { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0780-01" ] }, { "cite": "435 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "373", "parenthetical": "citing State v. Joyce, 104 N.C. App. 558, 568, 410 S.E.2d 516, 522 (1991)" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520847 ], "year": 1993, "pin_cites": [ { "page": "213", "parenthetical": "citing State v. Joyce, 104 N.C. App. 558, 568, 410 S.E.2d 516, 522 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0208-01" ] }, { "cite": "414 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501123, 2502629, 2502194, 2498873, 2502586 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0120-01", "/nc/331/0120-03", "/nc/331/0120-05", "/nc/331/0120-02", "/nc/331/0120-04" ] }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "530" }, { "page": "117" }, { "page": "530" }, { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] }, { "cite": "410 S.E.2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "522", "parenthetical": "citing Barker v. Wingo, 407 U.S. 514, 530, 33 L.Ed.2d 101, 117 (1972)" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523002 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "568", "parenthetical": "citing Barker v. Wingo, 407 U.S. 514, 530, 33 L.Ed.2d 101, 117 (1972)" }, { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0558-01" ] }, { "cite": "394 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "203" }, { "page": "203" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 685", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8522034 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/111/0359-01" ] }, { "cite": "359 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724664 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0610-01" ] }, { "cite": "365 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "656" }, { "page": "655", "parenthetical": "citations omitted" }, { "page": "656" }, { "page": "655", "parenthetical": "1988" }, { "page": "655" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 212", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521188 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "219" }, { "page": "219" }, { "page": "219" }, { "page": "219" }, { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0212-01" ] }, { "cite": "407 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554363, 2554300, 2553021, 2554838 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0503-04", "/nc/329/0503-02", "/nc/329/0503-01", "/nc/329/0503-03" ] }, { "cite": "404 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "18" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. 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Stat. \u00a7 14-27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)(1)" }, { "page": "(a)(1)" }, { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "183 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "557" } ], "opinion_index": 0 }, { "cite": "279 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569206 ], "year": 1971, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0398-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] } ], "analysis": { "cardinality": 1144, "char_count": 34609, "ocr_confidence": 0.718, "pagerank": { "raw": 3.114379640006324e-07, "percentile": 0.8602067147544123 }, "sha256": "23db96fb6e53a8c4df4aabd8c287fc80481244d62684cfed7e546ef3386d78ce", "simhash": "1:076a3720b7bbf5df", "word_count": 5724 }, "last_updated": "2023-07-14T22:38:55.005039+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge LEWIS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. PATRICK S. FIGURED" ], "opinions": [ { "text": "COZORT, Judge.\nThe most significant issue presented by this appeal is whether the trial court erred by admitting testimony from a State\u2019s witness that two children \u201cwere sexually abused by Pat Figured,\u201d the defendant-We hold the admission of that statement was error; however, we find the error was not prejudicial, given the other evidence against the defendant. The procedural history and summary of the evidence follow.\nThe defendant was arrested on 15 November 1988 and indicted by the Grand Jury of Johnston County on 9 January 1989 for three counts of first degree sex offense involving three children. The indictment alleged that the events occurred sometime in July of 1988. On 28 March 1989, the defendant entered an Alford plea of guilty to all three charges. The State agreed to dismiss the charges against a codefend-ant, Sonja Hill, who was defendant\u2019s girlfriend. Defendant was sentenced to life imprisonment, and the State dismissed the charges against Sonja Hill.\nIn July of 1990 the outgoing District Attorney of Johnston County re-indicted Sonja Hill on the same charges. On 15 April 1991 defendant filed a motion for appropriate relief asking that his plea of guilty be set aside on the ground that the district attorney had violated the terms of its plea agreement by re-indicting Sonja Hill. The motion was granted on 26 August 1991. Since the newly elected District Attorney of Johnston County had been counsel to Sonja Hill prior to assuming office, the case was assigned to two assistant district attorneys from another prosecutorial district, and the venue was changed from Johnston County to Chatham County.\nOn 9 March 1992 the Grand Jury of Chatham County re-indicted defendant for three counts of first degree sex offense involving Child A, aged 2lh, Child B, aged 5\u2018A, and Child C, aged 2\u2018A, occurring between June and October 1988. On 24 March 1992, defendant filed a motion to dismiss for denial of his right to a speedy trial and due process of law. Judge Herring conducted a hearing on this motion on 28 September 1992, the day of trial, and entered an order, with findings of fact and conclusions of law, holding that defendant\u2019s constitutional rights were not violated. All three cases were consolidated for trial.\nAt trial, the State presented evidence that the defendant frequently visited at Miss Polly Byrd\u2019s unlicensed home day care, where the three children stayed. The defendant frequently visited Ms. Byrd\u2019s home in order to visit Ms. Byrd\u2019s daughter, Sonja Hill, who was living there. Defendant stayed at the day-care home frequently until he got a job and thereafter was able to return to the home during the daytime while travelling on company business. Witnesses testified that defendant\u2019s car, a distinctive white Corvette, was frequently seen at Ms. Byrd\u2019s house during the daytime.\nEach child testified that defendant inserted a screwdriver in his or her anus. Two of the children testified that the defendant made a dog urinate and forced the children to drink it.\nDr. Karen Sue St. Claire testified that Child A was referred to her for medical evaluation concerning possible sex abuse. Dr. St. Claire examined Child A on 2 November 1988. She examined Child A\u2019s anus and discovered hyperpigmentation and redness around the anus and noted that both sets of anal muscles opened rapidly to a width of 1.7 centimeters. She testified that the hyperpigmentation could be caused by trauma or by infection or by irritation. She further testified that the rapid opening of the anus indicated that something had been repeatedly inserted into the anus from the outside. She indicated that this could have been a screwdriver or a penis. Dr. St. Claire also examined Child B. She testified to having found similar abnormalities in her examination of Child B\u2019s rectal area.\nMarci Herman-Giddens, a physician\u2019s assistant and professor of pediatrics at Duke University, examined Child C on 3 November 1988. Ms. Herman-Giddens testified that Child C\u2019s anal muscle would open and close intermittently and that there was an area of skin that was a different color from normal, and smooth, indicating an area that had been hurt and was in the process of healing. In her opinion this was some type of trauma caused by an object with sufficient force to disrupt the skin. The object could have been a screwdriver.\nNancy Berson, a social worker and coordinator of the Duke Child Protection Team, separately interviewed Child A, Child B and Child C. She testified that in her initial interview with Child A, Child A identified the defendant as the man who hurt her. She further testified that she interviewed Child A on several subsequent occasions to determine if the child\u2019s story was consistent and to determine whether Child A\u2019s father could have been the perpetrator. She testified that Child B also said that defendant had hurt him, Child A, and Child C with a screwdriver and pointed to his anal area. She further testified that Child B told her about various other acts of sexual abuse of the three children by defendant. Ms. Berson testified that Child C told her in her interview with him in November 1988 that he was not hurt and did not want to talk to her. When she interviewed Child C again the next day he did not say anything about defendant but began stuttering. In a subsequent 6 November interview, Child C began to talk about a \u201cmean man\u201d who hurt him with a screwdriver and who also hurt Child A and Child B. Ms. Berson referred all three children to Dr. Boat and Dr. Everson for treatment.\nDr. Barbara Boat, a child psychologist, treated Child C to help him learn to deal with the trauma he had experienced. Dr. Boat testified that Child C drew a picture and stated during therapy that \u201cPat hurt my hiney with a screwdriver.\u201d She also testified that Child C told her that Pat tore his pants with the screwdriver and that Granny Polly sewed them up.\nDr. Mark Everson, a clinical associate professor of psychology in the Department of Psychiatry at the University of North Carolina, saw Child A and Child B for treatment beginning in November 1988. He treated them in therapy up until trial to reduce their fears and feelings of guilt surrounding the abuse. Dr. Everson testified that in November 1988 Child B told him that defendant inserted the sharp end of a screwdriver into his bottom and into Child C\u2019s bottom, inserted his penis into the bottoms of all three children, made Child B and Child C lick white powder off defendant\u2019s penis, threatened them to keep them from telling, and made them drink dog urine. Dr. Everson further testified that Child A told him that she saw white stuff come out of defendant\u2019s penis when he stuck it in Child C\u2019s bottom and that Child A and Child B told him that defendant threatened to kill their parents if they told on him. Over defense counsel\u2019s objection, Dr. Everson testified that, in his opinion, Child A and Child B were sexually abused by defendant.\nDefendant made a.motion to dismiss for insufficiency of the evidence, which the trial court denied. The jury found defendant guilty on all three counts. From sentences imposing three consecutive life terms, defendant appeals.\nDefendant raises five issues on appeal: (1) whether the trial court erred in denying defendant\u2019s motion to dismiss for insufficiency of the evidence, (2) whether the trial court erred in allowing Dr. Everson to testify that defendant molested the prosecuting witnesses, (3) whether the trial court properly denied defendant\u2019s speedy trial motion, (4) whether the trial court properly admitted testimony of medical and mental health experts containing hearsay statements of the child victims, and (5) whether the trial court erred in instructing the jury on an admission by defendant.\nDefendant contends the three convictions in this case rest on evidence which is not substantial. He argues that even though there is some evidence of each element, this evidence cannot be deemed substantial because the children had been subjected to repeated, suggestive interviewing for over four years, the physical evidence was equivocal, and most of the State\u2019s case was based on hearsay from adults who were in no better position than the jury to determine the truth.\nIn reviewing a trial court\u2019s denial of a motion to dismiss this Court must consider the evidence in the light most favorable to the State, giving the State the benefit of all permissible favorable inferences. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). To survive a motion to dismiss for insufficiency of the evidence, the State must present substantial evidence of each element of the offenses. State v. Allred, 279 N.C. 398, 404, 183 S.E.2d 553, 557 (1971). To be guilty of a first degree sexual offense under N.C. Gen. Stat. \u00a7 14-27.4(a)(1), the State must show that defendant engaged in a sexual act \u201c[w]ith a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim; . . .\u201d N.C. Gen. Stat. \u00a7 14-27.4(a)(1) (1993).\nReviewing the evidence in the light most favorable to the State, we find there was substantial evidence as to each element of the three offenses. The State\u2019s evidence showed that defendant had access to the children and opportunity to commit the crimes. The State presented overwhelming medical evidence which was uncontroverted by defendant. Moreover, the State\u2019s case was not based completely on hearsay. The three victims identified defendant as the perpetrator in direct testimony and in consistent statements made independently to doctors and psychologists, as well as to their parents.\nDefendant next argues that it was reversible error for the trial court to allow Dr. Everson, who was accepted as an expert in psychology and child sex abuse and who treated Child A and Child B, to testify that in his opinion \u201c[Child A and Child B] were sexually abused by Pat Figured.\u201d\nDefendant first argues that it is error to allow an expert witness to testify to his or her conclusion that the child has been abused. We disagree. This Court has upheld the admission of expert testimony that, in his or her opinion, the prosecuting witness was sexually abused. State v. Richardson, 112 N.C. App. 58, 434 S.E.2d 657 (1993), disc. review denied, 335 N.C. 563, 441 S.E.2d 132 (1994); State v. Reeder, 105 N.C. App. 343, 350, 413 S.E.2d 580, 584 (1992); State v. Speller, 102 N.C. App. 697, 702, 404 S.E.2d 15, 18, disc. review denied, 329 N.C. 503, 407 S.E.2d 548 (1991); State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 656 (1988).\nDefendant further argues that such testimony is inadmissible because it merely attests to the truthfulness of the child witness. \u201cOur appellate courts have consistently held that the testimony of an expert to the effect that a prosecuting witness is believable, credible, or telling the truth is inadmissible evidence.\u201d Bailey, 89 N.C. App. at 219, 365 S.E.2d at 655 (citations omitted). In Bailey, this Court upheld testimony by a social worker and a pediatrician that in their opinion the child had been sexually abused, reasoning that such testimony was not improper testimony as to the credibility of the victim\u2019s testimony or to the defendant\u2019s guilt or innocence, but constituted proper expert testimony based on each witness\u2019s examination of the victim and expert knowledge concerning the abuse of children in general. Bailey, 89 N.C. App. at 219, 365 S.E.2d at 656 (1988). See also Reeder, 105 N.C. App. 343, 349-50, 413 S.E.2d 580, 583; Richardson, 112 N.C. App. 58, 434 S.E.2d 657. In distinguishing such testimony from those cases in which the disputed testimony concerns the credibility of a witness\u2019s accusation of a defendant, the Bailey court noted that the opinion \u201crelates to a diagnosis based on the expert\u2019s examination of the witness.\u201d Bailey, 89 N.C. App. at 219, 365 S.E.2d at 655 (1988) (citations omitted). Dr. Everson\u2019s testimony that the children had been sexually abused related to a diagnosis derived from his expert examination of Child A and Child B in the course of treatment and thus did not constitute improper testimony as to the credibility of the child\u2019s testimony. Defendant\u2019s reliance on State v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987), and State v. Parker, 111 N.C. App. 359, 432 S.E.2d 705 (1993), to support his argument is misplaced. Those cases did not hold that an expert\u2019s opinion that a child had been sexually abused was inadmissible because it merely attests to the truthfulness of the child witness. Rather, in those cases the Court found the opinions inadmissible because the State failed to lay sufficient foundation for the opinions.\nDefendant further argues that Dr. Everson\u2019s testimony that in his opinion the children were sexually abused by this defendant was not helpful to the jury and that the testimony was essentially expert testimony on the guilt of the defendant. We agree.\nDr. Everson\u2019s opinion was an expression of opinion as to defendant\u2019s guilt and thus violated Rule 702 of the North Carolina Rules of Evidence. In State v. Faircloth, 99 N.C. App. 685, 692, 394 S.E.2d 198, 203 (1990), we held that an expert\u2019s opinion testimony that \u201c \u2018it would be improbable that these hairs would have originated from another individual\u2019 \u201d \u201caddressed the credibility of other witnesses and was an expression of opinion as to defendant\u2019s guilt and thus violated Rules 405(a), 608(a) and 702 of the North Carolina Rules of Evidence.\u201d Rule 702 of the North Carolina Rules of Evidence allows a witness qualified as an expert to testify in the form of an opinion where he has \u201cscientific, technical or other specialized knowledge [which] will assist the trier of fact to understand the evidence or to determine a fact in issue . . . .\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 702 (1992). The State argues that Dr. Everson\u2019s opinion was helpful to the jury because Dr. Everson was in a better position than the jury to evaluate whether the defendant was the perpetrator. The State points out that Dr. Everson was professionally obligated to determine the identity of the abuser in order to prevent further abuse and had brought the children\u2019s father in for testing and observation and determined that the father was not the abuser. We nonetheless find that Dr. Everson was in no better position than the jury to determine whether defendant was the perpetrator and hence the admission of his testimony violated Rule 702. Dr. Everson\u2019s opinion was based on the same information that had been conveyed to the jury through the testimony of the social worker and mental health professionals who treated the children and the testimony of the children themselves.\nWhile Dr. Everson\u2019s opinion that the children were sexually abused was clearly admissible under prior decisions of this Court, his opinion that the children were sexually abused by defendant was not. Dr. Everson\u2019s opinion that the children were sexually abused by defendant did not relate to a diagnosis derived from his expert examination of the prosecuting witnesses in the course of treatment. It thus constituted improper opinion testimony as to the credibility of the victims\u2019 testimony. Bailey, 89 N.C. App. at 219, 365 S.E.2d at 655; Reeder, 105 N.C. App. at 349-50, 413 S.E.2d at 583; Richardson, 112 N.C. App. 58, 434 S.E.2d 657. This testimony was in violation of Rules 405(a) and 608(a) of the North Carolina Rules of Evidence. State v. Faircloth, 99 N.C. App. 685, 692, 394 S.E.2d 198, 203 (1990).\nWe next consider whether the admission of Dr. Everson\u2019s opinion constitutes reversible error. Defendant contends that had Dr. Everson\u2019s opinion that the children were sexually abused by defendant been excluded, there is a reasonable possibility that the jury would have found him not guilty. We disagree. Having considered the remaining evidence which was properly before the jury, we find there was no reasonable possibility that the admission of the improper testimony affected the jury\u2019s decision.\nThe State presented strong evidence that defendant was the perpetrator. Each child testified defendant inserted a screwdriver into his or her anus. Two of the children testified that the defendant made a dog urinate and forced them to drink it. The children\u2019s testimony was corroborated by Ms. Berson, Dr. Boat, and Dr. Everson. They testified to statements the children made to them in the course of diagnosis and treatment which described sexual abuse by the defendant. Dr. Everson testified that, in his opinion, the children had been sexually abused.\nIn addition, the State presented evidence that defendant had an opportunity to sexually abuse the children. Brooks Hill, Sonja Hill\u2019s daughter, testified that during June through October 1988 she and her mother lived with Polly Byrd. Brooks further testified that during this period defendant would occasionally eat lunch at Polly\u2019s. Jewel Blackmon, the mother of two of the children, testified that she saw defendant at Polly\u2019s six or seven times when she went to pick her children up in the afternoon. Defendant testified that he was the only person who drove his white Corvette. The State presented various witnesses who saw defendant\u2019s Corvette parked in Polly\u2019s driveway during daytime hours. The State also presented evidence that Polly had a large yard that she mowed herself. The yard took three hours to mow. Child B testified that Polly \u201cmowed the grass when we got hurt.\u201d\nDefendant tried to establish that he had no access to the children through his own testimony and the testimony of various other witnesses. Defendant presented witnesses who testified that they did not see defendant at Polly Byrd\u2019s. Ann Lee, Polly Byrd\u2019s daughter, testified that she would drop in at Polly\u2019s and that she never saw defendant there when the children were there. Two of Sonja Hill\u2019s sisters testified that they often dropped in on Polly unannounced. Neither remembered having seen defendant there during the week. Linwood and Betsy Byrd testified that they never saw defendant at Polly\u2019s. Polly Byrd testified that defendant never had occasion to be alone with the children at the house. Brooks Hill testified that she had seen defendant with the other children on occasion, but never alone with them.\nDefendant testified that he was out of work from January 1988 to 18 July 1988, when he was hired by Teletek in Raleigh. He testified that he lived at his mother\u2019s house in Concord while searching for a job. He began work on 24 July 1988 at Teletek in Raleigh. He testified that he worked regular hours during July through October, 1988 and that the only times during that period that he went to Smithfield were two or three times in the evenings. It took thirty-five minutes to an hour to drive from Teletek to Polly\u2019s residence. Defendant further testified that he and Sonja were not seeing each other at all during the first half of September. Tom Smart testified that defendant worked with him at Teletek, Inc., in Raleigh and that defendant worked from about eight to five, five days a week. Mr. Smart acknowledged that no one kept up with defendant\u2019s whereabouts during that time and that everybody in the company frequently had business out of the office. Defendant testified that on two business trips he stopped by Polly\u2019s during the daytime hours when the children were there. Defendant\u2019s secretary, Deborah Beasley, testified that defendant usually came in early and worked late. She also testified that defendant was rarely away during the day, although he sometimes went out for lunch.\nWe find that the State established that defendant had sufficient opportunity to sexually abuse the children. Defendant did not present an airtight alibi for his whereabouts between June and October, 1988. Because of the State\u2019s evidence of opportunity, the children\u2019s testimony identifying defendant as perpetrator, and the corroborating testimony of Ms. Berson, Dr. Boat, and Dr. Everson, we find that there is no reasonable possibility that Dr. Everson\u2019s inadmissible testimony affected the jury\u2019s verdict.\nWe next consider whether the trial court properly denied defendant\u2019s speedy trial motion. The Sixth Amendment to the Constitution of the United States provides, in pertinent part, that \u201c[i]n all criminal prosecutions the accused shall enjoy the right to a speedy . . . trial.\u201d U.S. Const, amend. VI. \u201cTo determine whether a defendant\u2019s right to a speedy trial has been denied, four factors must be examined: the length of the delay, reasons for the delay, defendant\u2019s assertion of the right, and prejudice suffered by the defendant.\u201d State v. Joyce, 104 N.C. App. 558, 568, 410 S.E.2d 516, 522 (1991) (citing Barker v. Wingo, 407 U.S. 514, 530, 33 L.Ed.2d 101, 117 (1972)), cert. denied, 331 N.C. 120, 414 S.E.2d 764 (1992). The factors are considered together in determining whether defendant\u2019s Sixth Amendment rights have been violated. State v. McClain, 112 N.C. App. 208, 213, 435 S.E.2d 371, 373 (1993) (citing State v. Joyce, 104 N.C. App. 558, 568, 410 S.E.2d 516, 522 (1991)).\nDefendant contends that the trial court did not apply the test set out by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 33 L.Ed.2d 101, 117 (1972), and therefore abused its discretion. The judge\u2019s order sets forth in significant detail the procedural history of the case. While it would have been better for the trial court to specifically address the four factors from Joyce, we find no error in the judge\u2019s findings of fact and conclusion of law that defendant was not prejudiced by the delay.\nDefendant next argues that portions of the testimony of witnesses Dr. Everson, Ms. Berson and Dr. Boat containing statements of the children should have been stricken as inadmissible hearsay.\nMs. Berson, a social worker and coordinator of the Duke Child Protection Team, was asked to interview Child A after a doctor at Duke gave Child A a physical examination and found Child A\u2019s anal area abnormal. Ms. Berson interviewed Child A to determine what had happened to her and conducted subsequent interviews to determine whether her story was consistent and whether Child A\u2019s father could have been the perpetrator. Child A told Ms. Berson that a man hurt her \u201clulu\u201d a lot of times with a screwdriver and later named the defendant as the perpetrator. Ms. Berson asked that Child B be brought in for an evaluation. During this evaluation, Child B made statements describing defendant\u2019s sexual abuse of Child A, Child B, and Child C. Ms. Berson later interviewed Child C, who made statements about a \u201cmean man\u201d who hurt him on his knee and on his genitals with a screwdriver.\nDr. Everson treated Child A and Child B in therapy between November, 1988 until the time of trial to reduce their fears and feelings of guilt surrounding the abuse. In the course of therapy, Child A and Child B made statements to Dr. Everson describing defendant\u2019s sexual abuse of them.\nDr. Boat, a child psychologist, treated Child C to help him learn to deal with the trauma he experienced. Dr. Boat testified to the course of her sessions with Child C from February 1989 through November 1991. Dr. Boat testified that Child C drew a picture and stated that \u201cPat hurt my hiney with a screwdriver\u201d and that Pat tore his pants with the screwdriver.\nRule 803(4) provides an exception to the hearsay rule for \u201c[s]tate-ments made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 803(4) (1992). This Court and the Supreme Court have allowed this type of evidence to come in as substantive evidence under Rule 803(4). In State v. Bullock, 320 N.C. 780, 783, 360 S.E.2d 689, 690 (1987), the Supreme Court allowed testimony of a mental health professional \u201cas to the statements and demonstrations by the children indicating that they had been sexually abused and that the perpetrator was . . . the defendant, . . .\u201d finding them admissible under Rule 803(4). In State v. Richardson, 112 N.C. App. 58, 434 S.E.2d 657, we held statements to a social worker assisting a pediatrician were admissible as substantive evidence under Rule 803(4). In State v. Jones, 89 N.C. App. 584, 593, 367 S.E.2d 139, 145 (1988), the testimony of Nancy Berson, a social worker and coordinator and child evaluator for the Duke Child Protection Team, was properly admitted as substantive evidence under Rule 803(4). We find that the children\u2019s statements to Ms. Berson, Dr. Everson, and Dr. Boat, like those in Bullock, Richardson and Jones, were made for the purposes of medical diagnosis or treatment and hence were admissible under Rule 803(4).\nDefendant also argues that the testimony of Ms. Berson, Dr. Everson, and Dr. Boat should have been excluded or at least restricted by the trial court to show some psychological characteristic of the complaining witnesses placed at issue by the defense. Defendant cites State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992), to support his argument. In Hall, the Supreme Court held that evidence of post-traumatic stress syndrome suffered by victims of sexual abuse may be admitted for certain corroborative purposes. Hall, 330 N.C. at 821, 412 S.E.2d at 890. The Court noted that \u201c[although we find that evidence of post-traumatic stress syndrome does not alone prove that sexual abuse has in fact occurred, we believe that this should not preclude its admission at trial where the relevance to certain disputed issues has been shown by the prosecution.\u201d Id. Since there was no evidence of post-traumatic syndrome in this case, the Hall decision is clearly inapplicable. We thus overrule this assignment of error.\nFinally, defendant argues that the trial court erred in instructing the jury on an admission.. During trial, the prosecutor asked defendant on cross-examination what he said to Detective Eatman as he was being arrested for statutory rape. In response to the prosecutor\u2019s question whether he said \u201cWho, Brooks?\u201d defendant answered, \u201cNo, that was before the arrest, sir.\u201d Brooks was Sonja Hill\u2019s daughter. On rebuttal the State called Detective Eatman, who testified that, when the defendant was arrested and informed that he had been accused of sexual conduct with a minor, he responded, \u201cWho, Brooks?\u201d Defense counsel objected to the admission of this testimony. After the judge overruled his objection, defense counsel stated that the defendant had already testified to this. The judge asked counsel to approach the bench and then repeated that the objection was overruled.\nThe trial court stated at the charge conference that he would give the instruction on admissions, and defendant made no objection. The trial court instructed the jury as follows:\nThere is some evidence which tends to show that the defendant may have admitted a fact relating to the crime charged in this case. If you find that the defendant made any admission, then you should consider all of the circumstances under which it was made in determining whether or not it was truthful and in determining what meaning and what weight you will give to it.\nAt the conclusion of the charge defendant stated an objection \u201cfor the record\u201d to the instruction on admission, without giving any reason or making any argument.\nDefendant argues that the detective\u2019s testimony was improper impeachment on a collateral matter through extrinsic evidence. Since defendant failed to specify the grounds for his objection to the detective\u2019s testimony, and it is not apparent from the context what specific grounds defendant sought to have the court exclude the detective\u2019s testimony, other than the fact that defendant had already testified to the issue, defendant has not preserved this error for review. N.C.R. App. P. 10(b).\nDefendant further argues that the admission instruction was not supported by the evidence. We disagree. Defendant\u2019s statement \u201cWho, Brooks?\u201d in response to being informed that he was being arrested for statutory rape could be considered an admission. \u201cA response which is not the equivalent of a denial may indicate acquiescence and be considered by the jury for what it is worth.\u201d State v. Thompson, 332 N.C. 204, 219, 420 S.E.2d 395, 403 (1992). Finally, defendant argues that the judge\u2019s instructions set out only the State\u2019s contentions and thus constituted an improper expression of judicial opinion in violation of N.C. Gen. Stat. \u00a7 15A-1232. We disagree. N.C. Gen. Stat. \u00a7 15A-1232 (1988) reads as follows: \u201cIn instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence.\u201d This statute does not prohibit the judge from setting out the parties\u2019 contentions. However, when the judge does so, he must give equal stress to the contentions of the State and the defendant. N.C. Gen. Stat. \u00a7 15A-1232 Official Commentary.\nIn State v. McKoy, 331 N.C. 731, 417 S.E.2d 244 (1992), the Supreme Court held that a substantially similar instruction on an admission was not an impermissible expression of opinion on the evi-denc\u00e9. In McKoy, the trial court\u2019s instructions were as follows:\nThere is evidence which tends to show that the defendant has admitted the facts relating to the crime charged in this case. If you find that the defendant made that admission, then you should consider all the circumstances under which it was made in determining whether it was a truthful admission and the weight you will give to it.\nMcKoy, 331 N.C. at 733, 417 S.E.2d at 246. The Court concluded that the trial court did not err in stating that there was evidence \u201ctending to show\u201d that the defendant had \u201cadmitted the facts relating to the crime charged in this case.\u201d The Court relied on prior decisions which held that \u201c[a] trial court\u2019s use of the words \u2018tends to show\u2019 in reviewing the evidence does not constitute an expression of opinion on the evidence.\u201d Id. (citations omitted). The Court also reasoned that the instruction was proper because there was evidence from which the jury could find that the defendant had admitted a fact relating to the crime charged. Id. In the case before us, defendant was charged with first degree statutory sexual offense under N.C. Gen. Stat. \u00a7 14-27.4(a)(l) (1993). If the jury believed Detective Eatman\u2019s testimony, it could reasonably infer that defendant had admitted to having sexual conduct with a minor. We thus hold that the judge\u2019s instructions did not constitute an improper expression of judicial opinion on the evidence.\nNo error.\nChief Judge ARNOLD and Judge LEWIS concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Ellen B. Scouten, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PATRICK S. FIGURED\nNo. 9315SC539\n(Filed 16 August 1994)\n1. Rape and Allied Offenses \u00a7 105 (NCI4th)\u2014 first-degree sex offense \u2014 sufficiency of evidence\nEvidence was sufficient to be submitted to the jury in a prosecution for first-degree sex offense against three children where it tended to show that defendant had access to the children and opportunity to commit the crimes; the State presented overwhelming medical evidence which was uncontroverted by defendant; and the three victims identified defendant as the perpetrator in direct testimony and in consistent statements made independently to doctors and psychologists, as well as to their parents.\nAm Jur 2d, Rape \u00a7\u00a7 88 et seq.\n2. Evidence and Witnesses \u00a7 2334 (NCI4th)\u2014 first-degree sex offense \u2014 opinion that children abused admissible\u2014 opinion that defendant was abuser inadmissible \u2014 admission harmless error\nIn a prosecution for first-degree sex offense against three children, the opinion of an expert in psychology and child sex abuse that the children were sexually abused was clearly admissible, but the expert\u2019s opinion that the children were sexually abused by defendant was not admissible, since the latter opinion did not relate to a diagnosis derived from the expert\u2019s examination of the prosecuting witnesses in the course of treatment; however, there was no reasonable possibility that the witness\u2019s inadmissible testimony affected the jury\u2019s verdict because of the State\u2019s evidence of opportunity, the children\u2019s testimony identifying defendant as the perpetrator, and the corroborating testimony of other witnesses.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 47 et seq.\n3. Constitutional Law \u00a7 327 (NCI4th)\u2014 no denial of speedy trial\nDefendant was not denied his Sixth Amendment right to a speedy trial by the delay between his arrest in November 1988 and his trial in September 1992, and the trial judge\u2019s findings setting forth in significant detail the procedural history of the case were adequate to support its conclusion that defendant was not prejudiced by the delay.\nAm Jur 2d, Criminal Law \u00a7\u00a7 652 et seq., 849 et seq.\nAccused\u2019s right to speedy trial under Federal Constitution \u2014 Supreme Court cases. 71 L. Ed. 2d 983.\n4. Evidence and Witnesses \u00a7 961 (NCI4th)\u2014 victim\u2019s statements to psychologists and social worker \u2014 statements made for diagnosis or treatment \u2014 admissibility\nThe trial court in a first-degree sex offense case did not err in admitting testimony of a social worker and two psychologists concerning statements made by the victims since those statements were made for \u25a0 the purposes of medical diagnosis or treatment and hence were admissible under N.C.G.S. \u00a7 8C-1, Rule 803(4).\nAm Jur 2d, Evidence \u00a7\u00a7 867, 868.\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.\n5. Evidence and Witnesses \u00a7 1209 (NCI4th)\u2014 admission\u2014 instruction proper\nThe trial court\u2019s instruction in a prosecution for first-degree sex offenses against three children that there was some evidence \u201cwhich tends to show that the defendant may have admitted a fact relating to the crime charged in this case\u201d was supported by evidence that defendant said \u201cWho, Brooks?\u201d when informed that he was being arrested for statutory rape. Furthermore, the instruction did not constitute an expression of opinion on the evidence.\nAm Jur 2d, Trial \u00a7\u00a7 1204 et seq.\nAppeal by defendant from judgment entered 13 October 1992 by Judge Darius B. Herring, Jr., in Chatham County Superior Court. Heard in the Court of Appeals on 1 March 1994.\nAttorney General Michael F. Easley, by Assistant Attorney General Ellen B. Scouten, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant appellant." }, "file_name": "0001-01", "first_page_order": 31, "last_page_order": 45 }