{
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  "name": "STATE OF NORTH CAROLINA v. KENNETH SOLOMON O'CONNOR",
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    "judges": [
      "Judges HUDSON and BIGGS concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. KENNETH SOLOMON O\u2019CONNOR"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nKenneth Solomon O\u2019Connor (Defendant) appeals judgments dated 1 February 2001 entered consistent with jury verdicts finding him guilty of two counts of first-degree statutory sexual offenses.\nThe evidence at trial was in conflict. The State presented evidence that J.M., a 14-year-old young man, was on multiple occasions sexually assaulted by Defendant. J.M. testified he had been sexually assaulted by Defendant, and several others testified that J.M. had told them he had been sexually assaulted by Defendant. Although Defendant did not testify at trial, a statement he had previously given to the Buncombe County Sheriffs Department was admitted into evidence. In that statement, Defendant denied any sexual contact with J.M. Dr. Cindy Brown (Dr. Brown), an expert in the diagnosis and treatment of child abuse, testified she examined J.M. and found no physical indications he had been sexually assaulted. Dr. Brown did state J.M. told her he had been sexually assaulted on three different occasions. Her findings and conclusions were contained in a written report, marked as State\u2019s Exhibit 8 (the Exhibit), admitted into evidence without objection. The Exhibit was passed to the jury. The following was a part of the Exhibit:\n[J.M.] was referred for evaluation of alleged sexual abuse. [J.M.] was interviewed by our usual protocol. He disclosed that [Defendant] sodomized and performed oral sex on him. [J.M.] also disclosed that he performed oral sex on [Defendant], [J.M.] says these incidents happened three times and that he was told if he told anyone, [Defendant] would kill him and his family. It is my impression that [J.M.\u2019s] disclosure was credible.\nThe dispositive issue is whether it is plain error for a trial court to distribute an exhibit to the jury which has an expert\u2019s opinion that a sexual abuse victim\u2019s disclosure is credible.\nAn expert may not testify that a child victim of abuse \u201cis believable, credible, or telling the truth\u201d because this violates the teachings of N.C. Gen. Stat. \u00a7 8C-1, Rules 405 and 608(a). State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988); State v. Aguallo, 318 N.C. 590, 598, 350 S.E.2d 76, 81 (1986). The expert may, however, testify with respect to \u201cthe credibility of children in general.\u201d State v. Oliver, 85 N.C. App. 1, 12, 354 S.E.2d 527, 534, disc. review denied, 320 N.C. 174, 358 S.E.2d 64 (1987). An expert is permitted to testify \u201cas to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics' consistent therewith.\u201d State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002) (per curiam). An expert may also, if she observes physical evidence of sexual abuse, express an opinion that the child has been sexually abused. Id. at 266-67, 559 S.E.2d at 789.\nIn this case, it was error to admit into evidence that portion of Dr. Brown\u2019s written report wherein she states J.M.\u2019s disclosure to her that Defendant \u201csodomized and performed oral sex on him . . . was credible.\u201d The admission of the Exhibit was error because it constitutes impermissible expert testimony on the credibility of J.M.\u2019s testimony. Morever, because there was no physical evidence of abuse and the State\u2019s case was almost entirely dependent on J.M.\u2019s credibility with the jury, the admission of Dr. Brown\u2019s statement was plain error. See State v. Hannon, 118 N.C. App. 448, 451, 455 S.E.2d 494, 496 (1995) (admission of an expert\u2019s opinion regarding a sexual abuse victim\u2019s credibility is \u201cplain error when the State\u2019s case depends largely on the prosecuting witness\u2019s credibility\u201d); see also State v. Holloway, 82 N.C. App. 586, 587-88, 347 S.E.2d 72, 74 (1986).\nNew trial.\nJudges HUDSON and BIGGS concur.\n. Although Dr. Brown did not testify in court concerning the credibility of J.M.\u2019s disclosure, her opinion regarding such credibility was nonetheless in evidence as it was included as a part of an exhibit viewed by the jury. There is no reason to distinguish between an expert\u2019s opinion presented through oral testimony and an expert\u2019s opinion expressed in written form.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorneys General Joyce S. Rutledge and Anne M. Middleton, for the State,",
      "Elizabeth G. McCroddenfor defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. KENNETH SOLOMON O\u2019CONNOR\nNo. COA01-921\n(Filed 18 June 2002)\nEvidence\u2014 expert opinion testimony \u2014 credibility of sexual abuse victim\nThe trial court committed plain error in a first-degree statutory sexual offense case by distributing an exhibit to the jury which had an expert\u2019s opinion that a sexual abuse victim\u2019s disclosure to her that defendant \u201csodomized and performed oral sex on him was credible,\u201d because: (1) the admission constitutes impermissible expert testimony on the credibility of the minor victim\u2019s testimony; and (2) there was no physical evidence of abuse and the State\u2019s case was almost entirely dependent on the minor victim\u2019s credibility with the jury.\nAppeal by defendant from judgments dated 1 February 2001 by Judge J. Marlene Hyatt in Buncombe County Superior Court. Heard in the Court of Appeals 14 May 2002.\nAttorney General Roy Cooper, by Assistant Attorneys General Joyce S. Rutledge and Anne M. Middleton, for the State,\nElizabeth G. McCroddenfor defendant-appellant."
  },
  "file_name": "0710-01",
  "first_page_order": 740,
  "last_page_order": 742
}