{ "id": 11710305, "name": "STATE OF NORTH CAROLINA v. DOUGLAS DALE DICK", "name_abbreviation": "State v. Dick", "decision_date": "1997-05-20", "docket_number": "No. COA96-766", "first_page": "312", "last_page": "318", "citations": [ { "type": "official", "cite": "126 N.C. App. 312" } ], "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": "25 ALR4th 1213", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "393 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "99 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522539 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/99/0312-01" ] }, { "cite": "383 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "421" }, { "page": "563" }, { "page": "422" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521889 ], "year": 1989, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0558-01" ] }, { "cite": "275 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565531 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0342-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": 0 }, { "cite": "352 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "84 N.C. App. 238", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168167 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/84/0238-01" ] }, { "cite": "432 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "111 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. 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": "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": "17" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525505 ], "year": 1991, "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0697-01" ] }, { "cite": "417 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 290", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2502533, 2498248, 2500400, 2499516, 2497727 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0290-01", "/nc/331/0290-04", "/nc/331/0290-05", "/nc/331/0290-02", "/nc/331/0290-03" ] }, { "cite": "413 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "583" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 343", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523109 ], "year": 1992, "pin_cites": [ { "page": "349-50" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0343-01" ] }, { "cite": "365 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "655" }, { "page": "654-55" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 212", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521188 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "219" }, { "page": "217-18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0212-01" ] } ], "analysis": { "cardinality": 632, "char_count": 13444, "ocr_confidence": 0.741, "pagerank": { "raw": 6.395847153720907e-07, "percentile": 0.9593785197515377 }, "sha256": "0451b7bbb6d1d9d19ff7eee9bf0f50cfd7b97b019fcee05c4701c28710b236ac", "simhash": "1:fc2a6f72624fca58", "word_count": 2198 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and MARTIN, Mark concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DOUGLAS DALE DICK" ], "opinions": [ { "text": "WYNN, Judge.\nOn 29 January 1996, the State of North Carolina tried defendant Douglas Dale Dick for one count of first degree sexual offense, one count of first degree rape, one count of taking indecent liberties with a minor, one count of incest, and one count of crime against nature.\nAt his trial, defendant\u2019s nine year old step-daughter (hereinafter referred to as \u201cH.R.\u201d) testified that defendant \u201cbad touched\u201d her on several occasions around November 1992. She first made this accusation two years after the alleged incident, while living in Ohio with her biological father.\nThe jury convicted defendant of one count of second degree sexual offense and one count of taking indecent liberties with a minor resulting in respective consecutive sentences of thirty and seven years imprisonment. Defendant appeals to this Court contending that the trial court erred by: (I) Allowing medical expert opinion evidence that H.R. had been sexually abused; (II) Allowing clinical social worker opinion evidence as to why H.R. waited two years to make her accusations; and (III) Denying his motion to dismiss the sexual offense charge because there was insufficient evidence of vaginal penetration, anal penetration or cunnilingus. We find no prejudicial error in defendant\u2019s trial.\nI.\nDefendant first argues that the trial court improperly admitted, under N.C. Gen. Stat. \u00a7 8C-l,.Rule 702 (1992), medical expert opinion evidence that H.R. had been sexually abused. 'We disagree.\nRule 702 provides in pertinent part that:\nIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\nDr. Patience Stevens, qualified at trial as an expert in pediatrics without objection, testified that during H.R.\u2019s initial examination in April 1995, the child revealed that she had been \u201cbad touched\u201d by defendant two years earlier on both her front and back \u201cprivate parts.\u201d Based upon the child\u2019s statements and her clinical findings that H.R.\u2019s hymen appeared thickened and rolled, Dr. Stevens opined, over defendant\u2019s objection, that \u201cit was very likely that [H.R.] had been sexually mistreated.\u201d\nDefendant contends that Dr. Stevens impermissibly based her opinion on her personal belief that the child was being truthful in explaining her physical condition. To be sure, \u201c[o]ur 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 State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988). However, it is also well-settled that testimony based on the witness\u2019s examination of the child witness and expert knowledge concerning the abuse of children in general is not objectionable because it supports the credibility of the witness or states an opinion that abuse has occurred. State v. Reeder, 105 N.C. App. 343, 349-50, 413 S.E.2d 580, 583, disc. review denied, 331 N.C. 290, 417 S.E.2d 68 (1992); State v. Speller, 102 N.C. App. 697, 701, 404 S.E.2d 15, 17, appeal dismissed and disc, review denied, 329 N.C. 503, 407 S.E.2d 548 (1991); State v. Bailey, 89 N.C. App. at 217-18, 365 S.E.2d at 654-55.\nUnder the facts of this case, the prior decisions of 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) are distinguishable. In both cases, the Courts found that since the experts found no clinical evidence that would support a diagnosis of sexual abuse, their opinions that sexual abuse had occurred merely attested to the truthfulness of the child witness. However, in the subject case, Dr. Stevens testified that the thickening of H.R.\u2019s hymen was different from the paper-thin appearance that one expects to see in a prepubertal child. Further, she testified that based on her training and experience, this type of abnormality was caused by a foreign object, such as a penis or finger, going through the vaginal introitus. Moreover, while Dr. Stevens initially stated that her opinion was based on the physical examination and H.R.\u2019s testimony, she clarified on cross-examination that she could have come to the same conclusion even without H.R.\u2019s testimony because hymenal injuries, such as H.R.\u2019s, are generally not considered to be from straddle or accidental injuries and that it was very unlikely that H.R. caused the injury to herself because masturbation by children is usually to the clitoral area and not to the vaginal area. Thus, this evidence shows that Dr. Stevens\u2019 testimony was based on her examination of H.R. and her expert knowledge concerning the abuse of children in general and not on her personal belief that H.R. was telling the truth.\nWe further find it distinctive that Dr. Stevens did not state that H.R. had been sexually abused as defendant contends, but rather, that abuse was very likely, thereby indicating that her medical findings were not conclusive of abuse. Accordingly, we find that the trial court did not err in allowing said testimony under Rule 702 because the doctor was in a better position than the jury to understand the significance of her medical findings.\nII.\nDefendant next objects to the admission of Jessica Heyder\u2019s (qualified by the court as an expert in \u201cclinical social work\u201d) opinion as to why H.R. waited two years to make her accusations. At Ms. Heyder\u2019s initial evaluation of H.R. in April 1993, H.R. did not indicate to her that she had been sexually abused. Nevertheless, Ms. Heyder testified that she saw behavior patterns in H.R. that sometimes show up in children believed to have been sexually abused. For example, Ms. Heyder stated that whenever she tried to discuss defendant with H.R., she would curl up into a fetal position and refuse to talk. Over objection, Ms. Heyder offered the following explanation as to why H.R. did not make allegations of abuse until 1995, when she was in Ohio with her biological father: \u201cI predicted that . . . [w]hen she got to a safe place, if she was going to disclose, she would disclose when she felt safe.\u201d Defendant contends that this was inadmissible testimony by an expert witness on the credibility of the victim. We disagree.\nIn State v. Bowman, 84 N.C. App. 238, 352 S.E.2d 437 (1987), this Court held that a physician was properly permitted to testify as to why a child might delay reporting an incident of sexual abuse. The Court found that the testimony was based upon the physician\u2019s knowledge, skill, experience, training and education and that, furthermore, the defendant had opened the door, to this testimony by cross-examining the victim regarding the delay in the report. See also State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (testimony of social worker as to why child would go into barn alone with defendant who had been abusing her held properly admitted).\nIn the instant case, we find Ms. Heyder\u2019s testimony was offered by the State to explain the victim\u2019s delay in reporting the crime and is admissible under Bowman as specialized knowledge, helpful to the jury. Furthermore, defendant cross-examined H.R. on the fact that she had not revealed the abuse to any adults for two years, thereby opening the door to testimony that would corroborate her credibility. Thus, we find this objection to be without merit.\nIII.\nFinally, defendant contends the trial court should have granted his motion to dismiss the charge of sexual offense because there was insufficient evidence of vaginal penetration, anal penetration or cunnilingus. We disagree.\nFor a charge of sexual offense to withstand a motion to dismiss for insufficient evidence, there must be evidence of anal or genital penetration by any object. N.C. Gen. Stat. \u00a7 14-27.5 (1993). See also State v. Lucas, 302 N.C. 342, 275 S.E.2d 433 (1981). In ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference which can be drawn from that evidence. State v. Green, 95 N.C. App. 558, 562, 383 S.E.2d 419, 421 (1989).\nIn Green, the seven year old prosecuting witness answered affirmatively when asked if defendant had \u201cput his private parts in [her] private parts.\u201d The victim also answered affirmatively when asked if defendant had \u201cput his private parts in [her] mouth\u201d and if defendant had \u201click[ed her] private parts.\u201d The State then presented corroborative evidence from the child\u2019s mother, a police detective and a doctor who testified that the findings from his physical examination were \u201ccompatible with penile penetration.\u201d Id. at 563, 383 S.E.2d at 422. Based on this evidence, this Court upheld the trial court\u2019s denial of defendant\u2019s motion to dismiss.\nLikewise, in State v. Estes, 99 N.C. App. 312, 393 S.E.2d 158 (1990), this Court held that a child\u2019s testimony that defendant \u201cstuck his thing\u201d in the \u201cback and front\u201d of her, notwithstanding the lack of any physical evidence or a demonstration by the victim on anatomically correct dolls as to what happened to her, was sufficient to withstand defendant\u2019s motion to dismiss because the victim further identified the \u201cback of her\u201d as where \u201cI go number two.\u201d\nAs in Green and Estes, there was substantial evidence of penetration in the instant case to withstand defendant\u2019s motion to dismiss. The record shows H.R. testified that defendant put his finger up her \u201cfront private part,\u201d touched her \u201cfront private part\u201d with his tongue, and tried to get his \u201cfront private part\u201d in her \u201cfront private\u201d and \u201cback private.\u201d A social worker who had worked with H.R. introduced anatomical drawings on which H.R. had marked what she meant by \u201cfront private part\u201d and \u201cback private part.\u201d There was also medical evidence of penetration of her vagina, and corroborative evidence by a police officer, social workers and H.R.\u2019s foster mother who testified about statements made to them by H.R. and behavior patterns exhibited by her that are often found in sexually abused children. Therefore, viewed in the light most favorable to the State, defendant\u2019s motion to dismiss was properly denied.\nWe have considered defendant\u2019s final assignment of error and after carefully reviewing the record, we find that it is without merit.\nFor the forgoing reasons, we find that defendant received a trial free from prejudicial error.\nNo error.\nJudges LEWIS and MARTIN, Mark concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Gail M. Manthei, 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. DOUGLAS DALE DICK\nNo. COA96-766\n(Filed 20 May 1997)\n1. Evidence and Witnesses \u00a7 2330 (NCX4th)\u2014 medical expert \u2014 opinion testimony \u2014 sexual mistreatment of child\nA medical expert was properly permitted to state her opinion that it was very likely that a child had been sexually mistreated where the expert\u2019s testimony about abnormalities in the child\u2019s hymen showed that she based her opinion on her examination of the child and her expert knowledge concerning the abuse of children in general and not on her personal belief that the child was telling the truth. N.C.G.S. \u00a7 8C-1, Rule 702.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 196.\n2. Evidence and Witnesses \u00a7 2332 (NCI4th) \u2014 social worker\u2014 expert testimony \u2014 reason for delay in reporting sexual abuse \u2014 opening door\nAn expert clinical social worker\u2019s opinion that a child waited two years to make accusations of sexual abuse by her stepfather because she waited until she was in a safe place in Ohio with her biological father was not inadmissible expert testimony on the credibility of the victim but was properly admitted as specialized knowledge helpful to the jury. Furthermore, defendant opened the door to this testimony by cross-examining the victim regarding the delay in reporting the sexual abuse.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 196.\n3. Rape and Allied Offenses \u00a7 106 (NCI4th)\u2014 sexual penetration \u2014 minor victim \u2014 motion to dismiss charges \u2014 first-degree sexual offense \u2014 trial record\nThere was sufficient evidence of penetration to preclude dismissal of a charge of first-degree sexual offense against a child where (1) the child testified that defendant put his finger up her \u201cfront private part,\u201d touched her \u201cfront private part\u201d with his tongue, and tried to get his \u201cfront private part\u201d in her \u201cfront private\u201d and \u201cback private\u201d; (2) the state introduced anatomical drawings on which the child had marked what she had meant by \u201cfront private part\u201d and \u201cback private part\u201d; (3) there was medical evidence that the victim\u2019s vagina was penetrated; and (4) there was corroborative evidence by a police officer, social worker, and the victim\u2019s foster mother who testified about statements made to them by the victim and behavior patterns exhibited by the victim that are often found in sexually abused children.\nAm Jur 2d, Rape \u00a7\u00a7 88 et seq.\nSufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse. 25 ALR4th 1213.\nAppeal by defendant from judgments entered 2 February 1996 by Judge James E. Ragan, III in Dare County Superior Court. Heard in the Court of Appeals 27 February 1997.\nMichael F. Easley, Attorney General, by Gail M. Manthei, 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": "0312-01", "first_page_order": 350, "last_page_order": 356 }