{ "id": 9079747, "name": "STATE OF NORTH CAROLINA v. ROGER DALE DIXON", "name_abbreviation": "State v. Dixon", "decision_date": "2002-05-07", "docket_number": "No. COA01-503", "first_page": "46", "last_page": "56", "citations": [ { "type": "official", "cite": "150 N.C. App. 46" } ], "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": "455 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "118 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918990 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/118/0448-01" ] }, { "cite": "488 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "Where there was no clinical evidence to support a diagnosis of sexual abuse, experts' opinions that sexual abuse had occurred merely attested to truthfulness of the child witness and were inadmissible" } ], "opinion_index": 0 }, { "cite": "346 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139501, 139663, 139349, 139671, 139676 ], "year": 1997, "pin_cites": [ { "parenthetical": "Where there was no clinical evidence to support a diagnosis of sexual abuse, experts' opinions that sexual abuse had occurred merely attested to truthfulness of the child witness and were inadmissible" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0551-05", "/nc/346/0551-01", "/nc/346/0551-04", "/nc/346/0551-02", "/nc/346/0551-03" ] }, { "cite": "485 S.E.2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "89-90", "parenthetical": "Where there was no clinical evidence to support a diagnosis of sexual abuse, experts' opinions that sexual abuse had occurred merely attested to truthfulness of the child witness and were inadmissible" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710305 ], "year": 1997, "pin_cites": [ { "page": "315", "parenthetical": "Where there was no clinical evidence to support a diagnosis of sexual abuse, experts' opinions that sexual abuse had occurred merely attested to truthfulness of the child witness and were inadmissible" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0312-01" ] }, { "cite": "553 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "Expert opinion testimony that a child has been sexually abused based solely on the child's statements lacks a proper foundation where there is no physical evidence of abuse" } ], "opinion_index": 0 }, { "cite": "354 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138480 ], "year": 2001, "pin_cites": [ { "parenthetical": "Expert opinion testimony that a child has been sexually abused based solely on the child's statements lacks a proper foundation where there is no physical evidence of abuse" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0354-01" ] }, { "cite": "543 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "183-84", "parenthetical": "Expert opinion testimony that a child has been sexually abused based solely on the child's statements lacks a proper foundation where there is no physical evidence of abuse" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 411", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441531 ], "year": 2001, "pin_cites": [ { "page": "418-19", "parenthetical": "Expert opinion testimony that a child has been sexually abused based solely on the child's statements lacks a proper foundation where there is no physical evidence of abuse" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0411-01" ] }, { "cite": "357 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "320 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729914 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0020-01" ] }, { "cite": "559 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219976 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0266-01" ] }, { "cite": "365 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 212", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521188 ], "year": 1988, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0212-01" ] }, { "cite": "350 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735495 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0614-01" ] }, { "cite": "247 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "911" } ], "opinion_index": 1 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "pin_cites": [ { "page": "568-69" } ], "opinion_index": 1, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "359 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "465" } ], "opinion_index": 1 }, { "cite": "320 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724664 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/nc/320/0610-01" ] }, { "cite": "488 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 1 }, { "cite": "346 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139501, 139663, 139349, 139671, 139676 ], "year": 1997, "opinion_index": 1, "case_paths": [ "/nc/346/0551-05", "/nc/346/0551-01", "/nc/346/0551-04", "/nc/346/0551-02", "/nc/346/0551-03" ] }, { "cite": "485 S.E.2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 1 }, { "cite": "126 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710305 ], "year": 1997, "opinion_index": 1, "case_paths": [ "/nc-app/126/0312-01" ] }, { "cite": "553 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "354 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138480 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc/354/0354-01" ] }, { "cite": "543 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "142 N.C. App. 411", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441531 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc-app/142/0411-01" ] }, { "cite": "559 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 1 }, { "cite": "355 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219976 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/nc/355/0266-01" ] } ], "analysis": { "cardinality": 951, "char_count": 24420, "ocr_confidence": 0.748, "pagerank": { "raw": 5.758439864512636e-07, "percentile": 0.9506056144586036 }, "sha256": "5cd9323306f66874ef524a44c0a57d35810536f09bbf018137eaa03a2f76c10c", "simhash": "1:924ef9e634ac41d3", "word_count": 4057 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUDSON concurs.", "Judge CAMPBELL dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. ROGER DALE DIXON" ], "opinions": [ { "text": "MARTIN, Judge.\nDefendant was charged in a true bill of indictment with first degree statutory sexual offense against his six-year-old step-daughter (hereinafter \u201cS.E.\u201d), in violation of G.S. \u00a7 14-27.4(a)(l). A jury found defendant guilty as charged. Defendant appeals from the judgment entered upon the verdict.\nThe State\u2019s evidence tended to show that the alleged incident giving rise to this action occurred on an evening between Halloween and Thanksgiving in 1998 when S.E. was in the first grade. On the evening in question, defendant was taking care of S.E. and her younger brother while S.E.\u2019s mother, Martha Dixon, was at work. S.E. testified that while she and defendant were in the living room watching television, defendant told her to sit on his lap and that defendant inserted his finger into her \u201cprivate part.\u201d When S.E. told defendant that it hurt, defendant responded that he was sorry. S.E. then got up and sat on the floor, where she and defendant played cards. S.E. testified that she and defendant later took a bath together and that they went to the bedroom and lay beside each other on the bed and that defendant licked her private part. S.E. testified that she told her mother about the incident on the following day, but that her mother did not believe her.\nIn December 1998, while S.E. was taking a bath at her grandparents\u2019 house, she told her aunt, Victoria Fox, that her \u201cbottom\u201d was hurting. Victoria asked her whether anyone \u201chad touched it,\u201d and S.E. responded that defendant had \u201cput his finger down there\u201d and \u201cwiggled it\u201d while she was sitting in defendant\u2019s lap. After getting permission from S.E.\u2019s mother, Victoria took S.E. to be examined by Dr. Willhide in Statesville, North Carolina.\nGeorgina Moose, a guidance counselor at Scotts Elementary School, testified that, in the spring of 2000, S.E. told her that defendant had sexually abused her. Moose stated that S.E. told her that defendant had placed her on his lap and had touched her private part.\nCynthia McCoy, a Child Protective Services Investigator for the Iredell County Department of Social Services investigated the matter after receiving a report on 15 December 1998 alleging sexual abuse. McCoy spoke to S.E. at her grandparents\u2019 home. S.E. told McCoy that she had gone to the doctor that day and that he checked her \u201cbottom.\u201d When McCoy asked what she meant by her \u201cbottom,\u201d S.E. pointed to her vaginal area. S.E. told McCoy that the doctor checked her bottom because it was hurting since her daddy put his finger in her private part. McCoy asked S.E. if defendant had done anything else to her while he had his finger in her private part and she responded that he kissed her. McCoy also testified that S.E. informed her that defendant had put his mouth on her private part.\nDr. Sarah Sinai, who was the head of the child abuse team at Baptist Hospital, was qualified as an expert witness in pediatrics and child sexual abuse. She performed a child medical examination on S.E. on 1 February 1999. Dr. Sinai noted some redness in S.E.\u2019s genital area but testified that the irritation could be there for a variety of reasons. Dr. Sinai stated that she did not see any definite discharge. Dr. Sinai further indicated that S.E.\u2019s hymen seemed delicate and not worn away. Cultures for sexually transmitted diseases were negative. According to Dr. Sinai, except for the irritation in S.E.\u2019s genital area, S.E.\u2019s exam was normal. Additionally, she explained that because the tissue in the female genital area is very stretchable, digital penetration is not likely to leave damage or permanent physical findings.\nCynthia Stewart, a social worker at North Carolina Baptist Hospital, was qualified as an expert in child sexual abuse. Her responsibilities at Baptist Hospital included initially interviewing the families when they arrived at the clinic. Stewart interviewed S.E. at the clinic on 1 February 1999. During the interview, S.E. told Stewart that her dad had touched her private part where he was not supposed to touch. S.E. told Stewart that she had been sitting on defendant\u2019s lap watching television when he put his finger there. When S.E. was asked what her father said, she responded, \u201c[s]orry.\u201d When Stewart asked S.E. what happened to her and defendant\u2019s clothes while she was sitting on defendant\u2019s lap, S.E. stated that their clothes were thrown on the floor. S.E. pointed to the vaginal area of an anatomically correct doll to show where defendant had touched her. When Stewart asked S.E. whether the touching of her private part was outside or inside, S.E. said, \u201c[i]nside.\u201d S.E. also indicated through words and an anatomically correct doll that defendant had touched her inside her anus. S.E. further told Stewart that defendant had licked her private part.\nS.E. indicated to Stewart that she had seen defendant\u2019s private part. Stewart asked S.E. what defendant was doing when she saw his private part and S.E. responded, \u201cI can\u2019t remember. I didn\u2019t want to see it. He was playing with it.\u201d S.E. told Stewart that she had seen something come out of defendant\u2019s private part and go into the commode. Stewart asked S.E. where defendant would be when he was playing with his private part, and S.E. responded that he would be sitting in his favorite chair and that he would tell her to go to bed afterward \u201creal angry like.\u201d\nJudy Herman, an Iredell County Sheriff\u2019s Deputy, was assigned to investigate the incident after the Department of Social Services brought the matter to her attention. On 18 December 1998, Herman interviewed S.E. at her office. S.E. told Herman that the incident between her and defendant had occurred between Halloween and Thanksgiving while her mother was working at Lowe\u2019s. S.E. told Herman that she was sitting on defendant\u2019s lap while they were watching television and that she was not wearing any clothes at the time. S.E. told Herman that she hugged defendant, and [\u201ch]e used his left hand\u201d and \u201c[i]t hurt.\u201d\nDr. James A. Powell, a clinical psychologist, was qualified as an expert witness in the field of child sexual abuse and child psychology. Dr. Powell performed a child mental health psychological examination (CMHEP) on S.E. at the request of the Department of Social Services. Dr. Powell reviewed reports from Dr. Sinai and according to him, used them to develop his opinion as to whether S.E. had been abused. Dr. Powell also performed psychological tests on S.E., Martha Dixon, and defendant. Defendant was given a thematic apper-ception test (T.A.T.); S.E. was given a Michigan pictures test (M.P.T.) and an incomplete sentences test; and Martha Dixon was given a Minnesota multiphasic personality inventory (M.M.P.I.). According to Dr. Powell, defendant\u2019s T.A.T. showed the following:\nThere were a number of indications of conflicts in male and female relationships. The themes concerned sadness, people who were concerned and troubled, people being arrested because of his excessive drinking. There were suggestions in several stories of positive family interactions, but those appeared somewhat forced and slightly artificial. There were no indications of a preoccupation with young females.\nDr. Powell testified that it is possible for a person who does not have a preoccupation with young females to still molest one. Dr. Powell explained that this could occur because an individual could molest a young female for a variety of reasons, such as revenge, opportunity, impairment, or trauma. Dr. Powell stated that S.E.\u2019s test results indicated that S.E. had a very positive perception of her grandparents, that she did not feel afraid of the father figures in the stories, but that she did generate several stories that had strong themes of sadness. Dr. Powell said that S.E. did not appear to be clinically depressed. Dr. Powell also found that S.E. did not have any significant distress in her household, felt loved, liked attention, and had normal views and concerns. Dr. Powell concluded that the test results for Mrs. Dixon were not interpretable.\nDr. Powell was permitted to testify that he had an opinion that S.E. had been sexually abused. He based his opinion on interviews with S.E., her grandparents, her aunt, her mother, defendant, reports from Dr. Sinai, the use of the anatomically correct dolls, and the psychological test results. Dr. Powell acknowledged that children can be coached to give responses but testified that the manner in which S.E. presented her story indicated that she was not coached to do so, and that it was stretching the bounds of credulity to say that a seven-year-old could remember in such great detail what had occurred if she were simply being told what to say. Dr. Powell further testified that the sequence of events that S.E. described to him was consistent with the typical approach that most perpetrators of sexual abuse follow in order to gain access to the child and to abuse the child.\nOn cross-examination, Dr. Powell acknowledged that S.E.\u2019s grandfather told him that S.E. had a vivid imagination, but that the grandparents did not think that S.E. created the story and believed that it had happened because S.E. said it had. In response to further cross-examination, Dr. Powell testified that all the information that he had compiled indicated that defendant was the perpetrator of the abuse.\nDefendant testified in his own behalf. He testified that during the time period when the incident was alleged to have occurred, S.E.\u2019s mother worked at night and that his responsibilities in the evenings included fixing supper, feeding his son baby food or a bottle, making sure S.E. got her bath, and putting her to bed. According to defendant, there were several instances in which S.E., who was capable of bathing and drying herself, would come out of the bathroom with a towel and demand that defendant dry her off. Defendant stated that he would tell her to go back into the bathroom and dry herself off and get dressed. Defendant told S.E.\u2019s mother, who talked with S.E. about her behavior, and the behavior stopped for a while. Defendant denied that there was ever an occasion when S.E. might have seen his penis.\nDefendant testified that he did not have a very good relationship with Martha Dixon\u2019s sister, Victoria Fox. Defendant recalled an incident prior to his marriage to Martha Dixon in which Victoria Fox told defendant that he was not going to marry her sister, and even if he did, she would see to it that he would not stay married to her.\nMartha Dixon testified that when Victoria told her about S.E.\u2019s allegations, she did not believe that defendant was capable of this kind of behavior. She testified that, prior to S.E.\u2019s allegations, defendant and S.E. had a normal father-daughter relationship and she never saw anything that caused her concern about defendant being alone with S.E.\nI.\nDefendant contends the trial court erred by permitting Dr. Powell to testify as to his opinion that S.E. had been sexually abused. The assignment of error arises out of the following direct examination of Dr. Powell by the prosecutor:\nQ. And did you form an opinion as to whether or not [SE] had been sexually abused?\nMr. Darty: Objection.\nThe Court: Overruled.\nA. Yes, ma\u2019am, I did.\nQ. And what was your opinion?\nA. My opinion was that she was sexually abused.\nQ. And could you tell the jury some of the factors that led you to believe that [SE] was sexually abused.\nA. It was both the test and the interview data. She gave very explicit details, which would be highly unusual for a seven year old to be aware of. There were the interactions that she demonstrated with the anatomically correct dolls. The sequence of events that she talked about and how it had occurred. The state-merits that she had made all were consistent with a child who had been sexually abused and strongly indicated that sexual abuse had occurred.\nDefendant contends the foregoing testimony amounts to an impermissible expert opinion as to S.E.\u2019s credibility. His argument has merit.\nG.S. \u00a7 8C-1, Rule 702(a) states:\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.\nExpert opinion testimony is not admissible to establish the credibility of the victim as a witness. State v. Kim, 318 N.C. 614, 350 S.E.2d 347 (1986).\n\u201cHowever, those cases in which the disputed testimony concerns the credibility of a witness\u2019s accusation of a defendant must be distinguished from cases in which the expert\u2019s testimony relates to a diagnosis based on the expert\u2019s examination of the witness.\u201d State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988). With respect to expert testimony in child sexual abuse prosecutions, our Supreme Court has approved, upon a proper foundation, the admission of expert testimony with respect to the characteristics of sexually abused children and whether the particular complainant has symptoms consistent with those characteristics. State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002); State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987). \u201cThe fact that this evidence may support the credibility of the victim does not alone render it inadmissible.\u201d Kennedy, 320 N.C. at 32, 357 S.E.2d at 367.\nMoreover, an expert medical witness may render an opinion pursuant to Rule 702 that sexual abuse has in fact occurred if the State establishes a proper foundation, i.e. physical evidence consistent with sexual abuse. Standi, supra. However, in the absence of physical evidence to support a diagnosis of sexual abuse, expert testimony that sexual abuse has in fact occurred is not admissible because it is an impermissible opinion regarding the victim\u2019s credibility. Id.; State v. Grover, 142 N.C. App. 411, 418-19, 543 S.E.2d 179, 183-84, affirmed, 354 N.C. 354, 553 S.E.2d 679 (2001) (Expert opinion testimony that a child has been sexually abused based solely on the child\u2019s statements lacks a proper foundation where there is no physical evidence of abuse); State v. Dick, 126 N.C. App. 312, 315, 485 S.E.2d 88, 89-90, disc. review denied, 346 N.C. 551, 488 S.E.2d 813 (1997) (Where there was no clinical evidence to support a diagnosis of sexual abuse, experts\u2019 opinions that sexual abuse had occurred merely attested to truthfulness of the child witness and were inadmissible).\nIn the present case, there was no physical evidence to support a diagnosis that S.E. had been sexually abused. Dr. Sinai, who was qualified as an expert witness in pediatrics and child sexual abuse, examined S.E. and testified that her genital examination was normal except for some \u201cnonspecific irritation\u201d which could have been present for a variety of reasons.\nAlthough there were no physical findings to support a diagnosis of sexual abuse, the psychologist, Dr. Powell, was permitted to state his opinion that S.E. had been sexually abused. The opinion was not supported by an adequate foundation and its admission w\u00e1s error. Though Dr. Powell\u2019s testimony with respect to the various psychological tests, interviews, and reports upon which he relied may have been a sufficient foundation to support an opinion that S.E. did or did not exhibit symptoms or characteristics of victims of child sexual abuse, it was not a sufficient foundation for the admission of his opinion, under Rule 702, that S.E. had in fact been sexually abused.\nError is prejudicial when \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C. Gen. Stat. \u00a7 15A-1443(a). The burden is upon the defendant to show prejudice. Id. This Court has held that it is fundamental to a fair trial that a witness\u2019s credibility be determined by a jury, that expert opinion on the credibility of a witness is inadmissible, and that the admission of such testimony is prejudicial when the State\u2019s case depends largely on the testimony of the prosecuting witness. State v. Hannon, 118 N.C. App. 448, 455 S.E.2d 494 (1995).\nIn the present case, there was no evidence of sexual abuse other than S.E.\u2019s testimony. There was no evidence that S.E. exhibited any physical manifestations of anxiety after the alleged incident, or that she demonstrated any emotion when she revealed the alleged abuse to her aunt, her guidance counselor, or others. Thus, S.E.\u2019s credibility was of critical importance to the outcome of the case. Under these circumstances, there is a reasonable possibility that Dr. Powell\u2019s opinion testimony that S.E. had in fact been abused had great influence upon the jury\u2019s determination of credibility and, consequently, there is a reasonable possibility that a different result would have been reached had his opinion that S.E. had been sexually abused been excluded. Accordingly, we are constrained to grant defendant a new trial. Because defendant\u2019s remaining assignments of error may not arise upon retrial, we need not address them.\nNew trial.\nJudge HUDSON concurs.\nJudge CAMPBELL dissents.", "type": "majority", "author": "MARTIN, Judge." }, { "text": "CAMPBELL, Judge,\ndissenting.\nI respectfully dissent from the majority\u2019s conclusion that the State failed to lay an adequate foundation for the admission of Dr. Powell\u2019s expert opinion that S.E. had in fact been sexually abused under N.C.G.S. \u00a7 8C-1, Rule 702.\nThe majority interprets the Supreme Court\u2019s recent decision in State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002) as prohibiting expert opinion testimony that a child victim has been sexually abused unless there is physical evidence to support a diagnosis of sexual abuse. To further support this proposition, the majority cites this Court\u2019s opinions in State v. Grover, 142 N.C. App. 411, 543 S.E.2d 179, affirmed, 354 N.C. 354, 553 S.E.2d 679 (2001), and State v. Dick, 126 N.C. App. 312, 485 S.E.2d 88, disc. review denied, 346 N.C. 551, 488 S.E.2d 813 (1997). I disagree with the majority\u2019s interpretation of Stancil, Grover, and Dick. In my view, the bright line rule now adopted by the majority, i.e., that expert opinion testimony that a child victim has been sexually abused is only admissible under Rule 702 when there is physical evidence to support a diagnosis of sexual abuse, is not mandated by Stancil, Grover, and Dick, and is not an appropriate extension of the law on this subject as set forth by our Supreme Court in State v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987), and as applied by this Court in numerous cases since Trent.\nIn Trent, the Supreme Court set forth the following inquiry for determining whether expert medical opinion is admissible under Rule 702:\n\u201c[I]n determining whether expert medical opinion is to be admitted into evidence the inquiry should be . . . whether the opinion expressed is really one based on the special expertise of the expert, that is, whether the witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.\u201d\nTrent, 320 S.E.2d at 614, 359 S.E.2d at 465 (quoting State v. Wilkerson, 295 N.C. 559, 568-69, 247 S.E.2d 905, 911 (1978)). Applying this test to the record before it, the Court in Trent held that the State had failed to lay a sufficient foundation for the admission of an expert diagnosis that the child victim had been sexually abused. The expert in Trent \u2014 a physician with a specialty in pediatrics \u2014 repeatedly testified that his diagnosis was based upon the results of a pelvic exam, which was administered four years after the date of the alleged sexual abuse and standing alone would not support a diagnosis of sexual abuse, and the victim\u2019s statements to him concerning the alleged sexual abuse. He cited no other basis for his diagnosis. Given the limited basis for the diagnosis, the Court held that the State had failed to lay a sufficient foundation for the admission of the expert testimony, since there was nothing in the record to support a conclusion that the expert was in a better position than the jury to determine whether the victim had been sexually abused. Id. The Court in Trent did not adopt a bright line rule that absent \u2018physical evidence expert opinion testimony that there has been child sexual abuse is always inadmissible.\nIn the instant case, Dr. Powell testified that his opinion that S.E. had been sexually abused was based on his interviews with S.E., her grandparents, her aunt, her mother, and defendant, the reports from Dr. Sinai\u2019s physical examination of S.E., S.E.\u2019s use of anatomically correct dolls to illustrate the alleged sexual abuse, and the results of psychological tests conducted on both S.E. and defendant. While the majority focuses on the fact that there was no physical evidence to support a diagnosis of sexual abuse, the physical examination by Dr. Sinai was only incidental to, and not the primary basis for, Dr. Powell\u2019s conclusion. Further, Dr. Powell testified that Dr. Sinai\u2019s findings of no physical signs of penetration were not inconsistent with his own opinion that S.E. had been sexually abused. Dr. Sinai testified, and Dr. Powell agreed, that the alleged acts of abuse in the instant case \u2014 digital penetration and cunnilingus \u2014 are not likely to leave damage or permanent physical evidence. In addition, Dr. Sinai testified that studies show as few as sixteen percent (16%) of cases of sexual abuse actually result in physical evidence sufficient to support a definite diagnosis of sexual abuse. Thus, in cases like the instant one, where there is expert testimony that the alleged acts of sexual abuse are not likely to leave physical evidence, the majority sets forth a rule that would totally prevent the use of expert opinion testimony that the victim had been sexually abused. I do not read Rule 702 or Standi as setting up such an absolute prohibition.\nIn my view, the basis for Dr. Powell\u2019s opinion in the instant case was much stronger than the basis for the opinions found to be inadmissible in Grover and Standi, and was sufficient to allow the trial judge, as the gatekeeper for scientific evidence, to properly allow Dr. Powell\u2019s opinion to be admitted into evidence. In Grover, the opinions found to be inadmissible were based solely on the statements provided by the victims. In Standi, the opinion was based on two physical examinations which were normal and a review of one interview with the child by a psychologist. Here, Dr. Powell conducted a series of interviews with all of the individuals involved. He also reviewed the reports of Dr. Sinai\u2019s physical examination, and administered psychological tests on both S.E. and defendant. Having been admitted as an expert in the field of child sexual abuse and child psychology, Dr. Powell was in a better position than the jury to understand the significance of his findings and to give an opinion as to whether S.E. had in fact been sexually abused. Therefore, I conclude that the trial court did not err in allowing Dr. Powell\u2019s testimony under Rule 702.\nHaving reviewed defendant\u2019s remaining assignments of error, I conclude that they lack merit. Therefore, I would find no error in defendant\u2019s trial.", "type": "dissent", "author": "CAMPBELL, Judge," } ], "attorneys": [ "Attorney General Roy A. Cooper; III, by Assistant Attorney General Sue Y. Little, for the State.", "Patricia L. Riddick for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROGER DALE DIXON\nNo. COA01-503\n(Filed 7 May 2002)\nEvidence\u2014 psychologist \u2014 testimony that abuse occurred\nThe trial court erred in a prosecution for first-degree statutory sexual offense by permitting a clinical psychologist to testify to his opinion that the victim had been sexually abused. Although the witness\u2019s testimony about the various psychological tests, interviews, and reports upon which he relied may have been a sufficient foundation to support an opinion that the victim did or did not exhibit symptoms or characteristics of victims of child sexual abuse, it was not a sufficient foundation for the admission of his opinion that she had in fact been sexually abused. There is a reasonable possibility that a different result would have been reached without the testimony because there was no evidence of sexual abuse other than the victim\u2019s testimony and her credibility was critical.\nJudge Campbell dissenting.\nAppeal by defendant from judgment entered 3 November 2000 by Judge Kimberly S. Taylor in Iredell County Superior Court. Heard in the Court of Appeals 14 February 2002.\nAttorney General Roy A. Cooper; III, by Assistant Attorney General Sue Y. Little, for the State.\nPatricia L. Riddick for defendant-appellant." }, "file_name": "0046-01", "first_page_order": 76, "last_page_order": 86 }