{ "id": 9248826, "name": "STATE OF NORTH CAROLINA v. CURTIS LEVAN WADE", "name_abbreviation": "State v. Wade", "decision_date": "2002-12-31", "docket_number": "No. COA02-25", "first_page": "1", "last_page": "20", "citations": [ { "type": "official", "cite": "155 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": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "248", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "561-63", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "364 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "119" } ], "opinion_index": 0 }, { "cite": "321 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569213 ], "year": 1988, "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0574-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "894", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "page": "309", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "309 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "309 N.C. 802", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4768682 ], "year": 1983, "pin_cites": [ { "page": "806" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0802-01" ] }, { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "843" } ], "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "year": 1985, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "513 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "64", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132086 ], "year": 1999, "pin_cites": [ { "page": "203", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0193-01" ] }, { "cite": "547 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135585, 135627, 135955, 135741, 135711 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0397-04", "/nc/353/0397-03", "/nc/353/0397-01", "/nc/353/0397-02", "/nc/353/0397-05" ] }, { "cite": "540 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "798", "parenthetical": "citations omitted" }, { "page": "799" }, { "page": "799" } ], "opinion_index": 0 }, { "cite": "141 N.C. 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Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987)" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 411", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441531 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "414", "parenthetical": "quoting State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0411-01" ] }, { "cite": "571 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511280 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0428-01" ] }, { "cite": "563 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "598" }, { "page": "598", "parenthetical": "emphasis added" }, { "page": "598" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079747 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "52" }, { "page": "52" }, { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0046-01" ] }, { "cite": "571 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "648" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 148", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249192 ], "year": 2002, "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0148-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "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" ] }, { "cite": "552 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "215" } ], "opinion_index": 1 }, { "cite": "146 N.C. 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App.", "case_ids": [ 9249192 ], "year": 2002, "pin_cites": [ { "page": "152" } ], "opinion_index": 1, "case_paths": [ "/nc-app/154/0148-01" ] } ], "analysis": { "cardinality": 1275, "char_count": 44886, "ocr_confidence": 0.766, "pagerank": { "raw": 2.519393965345616e-07, "percentile": 0.8113471094260708 }, "sha256": "f63ab4393ae1eceb000b2171c4624d976d247454bf2bbb62aa243f6992107b54", "simhash": "1:067b68a2743bacab", "word_count": 7326 }, "last_updated": "2023-07-14T20:08:10.559314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GREENE concurs in the result with a separate concurring opinion.", "Judge MARTIN concurs in the result and joins in Judge Greene\u2019s concurring opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. CURTIS LEVAN WADE" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nDefendant, Curtis Levan Wade, appeals from judgment entered in Lenoir County Superior Court upon a jury verdict convicting him of four counts of taking an indecent liberty with a child; three counts of felonious child abuse by a sexual act; three counts of incest; two counts of statutory rape; and one count of first degree rape. Defendant was sentenced to life in prison.\nThe State\u2019s evidence tended to establish that defendant and Carol Jean Wade were married in 1980. At the time of her marriage to defendant, Carol Wade had two daughters from a previous relationship: \u201cT,\u201d who was eight years old and \u201cL,\u201d who was five. Both \u201cT\u201d and \u201cL\u201d lived with Carol Wade and defendant in Kinston, North Carolina. Carol Wade conceived another child, by defendant, soon after their marriage. Before this child was born, defendant \u201cmolested\u201d \u201cT\u201d by fondling her. Carol Wade reported the incident to authorities and expelled defendant from the home. Carol Wade and defendant separated after this incident. Although the couple were not divorced until 2000, defendant never again lived with the family. Carol Wade gave birth to defendant\u2019s daughter, \u201cA,\u201d on 19 November 1981. Defendant had no significant contact with \u201cA\u201d until she was approximately ten years old, when Carol Wade allowed defendant to have \u201cvisitation\u201d with \u201cA.\u201d Defendant visited with \u201cA\u201d \u201cperiodically\u201d until she reached the age of twelve. At that point, defendant began a more regular routine of visitation.\n\u201cA\u201d testified that during a visit with defendant when she was ten years old, defendant took her to Bill Fay Park in Kinston, North Carolina. Once at the park, defendant led \u201cA\u201d down a nature trail where defendant exposed his erect penis and sat \u201cA\u201d on his lap, so that his penis was touching her between her legs. \u201cA\u201d did not report this incident.\nDuring another visit when \u201cA\u201d was twelve years old, defendant took her to a video store where he rented a pornographic movie. Defendant then took \u201cA\u201d to his house where they watched the movie together. Before watching the movie, defendant removed both his and \u201cA\u2019s\u201d clothes so that they were both nude. During the movie, defendant fondled \u201cA\u2019s\u201d breasts and masturbated in front of her. Later, defendant engaged in vaginal intercourse with \u201cA.\u201d \u201cA\u201d did not report this incident either.\nThereafter, defendant began regularly engaging in various forms of sexual intercourse with \u201cA.\u201d \u201cA\u201d testified that she visited defendant virtually \u201cevery weekend\u201d until she was seventeen years old. \u201cA\u201d further stated that she had sexual intercourse with defendant \u201cevery single time\u201d she visited him. Sometimes this involved \u201coral sex\u201d and \u201cfondl[ing],\u201d in addition to vaginal intercourse. However, defendant always penetrated \u201cA\u201d vaginally, ejaculated and never wore a condom. At one point, \u201cA\u201d was tested and treated for gonorrhea. Later, she learned that defendant had been treated for gonorrhea as well. On 23 October 1999, following yet another sexual encounter with defendant, \u201cA\u201d told Carol Wade that defendant had been \u201cmolesting\u201d her. The following day, \u201cA\u201d and Carol Wade reported defendant to the Kinston Police.\nCarol Wade testified that shortly before \u201cA\u201d was bom, \u201cT\u201d told her that defendant had \u201cmolested\u201d her. As a result, Carol Wade made defendant leave the home. Initially, Wade thought the incident with \u201cT\u201d occurred because defendant was a \u201cheavy drinker.\u201d Consequently, Wade only allowed \u201cA\u201d to visit with defendant because he had stopped drinking. Notwithstanding this fact, Wade suspected that something improper might have been going on between defendant and \u201cA\u201d and on several occasions questioned \u201cA\u201d about her concerns. Each time, \u201cA\u201d denied that anything improper had occurred.\n\u201cT,\u201d now twenty-eight years old, testified that when she was eight years old, defendant took her into the bathroom of their home, put \u201cvaseline on his penis\u201d and tried to \u201cput it inside [her].\u201d \u201cT\u201d said she began to cry and defendant stopped. \u201cT\u201d said that she told her godmother about the incident, who in turn told her mother. \u201cT\u201d stated further that defendant left and never returned to the home after this incident.\n\u201cE,\u201d the fourteen year old granddaughter of Carol Wade, testified that when she was eleven or twelve, defendant volunteered to babysit her at his house while Carol Wade was at work. While defendant was helping \u201cE\u201d with her hair, he rubbed his penis on her buttocks in a way that made her \u201cuncomfortable.\u201d \u201cE\u201d told Carol Wade about the incident and never went to defendant\u2019s house alone again.\nBarbara Hebert, a psychologist and clinical therapist at the Teddy Bear Child Advocacy Center in Greenville, North Carolina, also testified. Hebert testified that she performed \u201cA\u2019s\u201d initial \u201cclinical intake\u201d interview in December of 1999. \u201cA\u201d began counseling immediately following this interview. In June of 2000, Hebert took over \u201cA\u2019s\u201d case and continued counseling \u201cA\u201d approximately one hour each week until March of 2001. In order to assist in her therapy, Hebert had \u201cA\u201d complete a time-line of all of the events of sexual abuse she could recall. Hebert and \u201cA\u201d then discussed each event on the time-line. Hebert noted that the earliest events \u201cA\u201d described were known in the field as \u201cpreparatory grooming behaviors.\u201d Hebert also noted that \u201cA\u201d exhibited feelings of guilt, fault and fear; experienced problems with trust; confused boundaries between herself and others; suffered from decreased self-esteem; experienced difficulty in disclosing the incidents of abuse; and experienced conduct problems. \u201cBased on her training and experience,\u201d Hebert opined that these symptoms were the result of \u201csexual abuse\u201d because they \u201cwere consistent with those that we[re] see[n] in other victims of sexual abuse.\u201d Consequently, Hebert counseled \u201cA\u201d \u201cas the victim of a long history of sexual abuse by her father.\u201d\nMelanie Palmer, a licensed nurse and the Women\u2019s Health Supervisor for the Lenoir County Health Department, testified that health department records indicated that both defendant and \u201cA\u201d were tested and treated for gonorrhea in 1997: Defendant was treated on 8 January 1997 and 30 January 1997. \u201cA\u201d was tested on 25 February 1997 and received treatment on 12 March 1997.\nDefendant denied all allegations of sexual abuse. Defendant testified that he believed the charges stemmed from his refusal to allow \u201cA\u201d to move in with her current boyfriend. Defendant was convicted and sentenced to life in prison. Defendant appeals.\nDefendant first argues that the trial court committed plain error in admitting the expert testimony of Barbara Hebert. After careful review of the record and transcript, we find no error.\n\u201cThe plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u2018fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done ....\u2019\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted). \u201cTo prevail under a plain error analysis, a defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result.\u201d State v. Perkins, 154 N.C. App. 148, 152, 571 S.E.2d 645, 648 (2002).\nIt has long been the law in North Carolina that \u201can 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 State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598 (2002), aff'd per curiam, 356 N.C. 428, 571 S.E.2d 584 (2002). This requires the State to demonstrate that \u201c \u2018the opinion expressed by the experts was really based upon their special expertise, or . . . that the experts were in a better position than the jury to have an opinion on the subject.\u2019 \u201d State v. Grover, 142 N.C. App. 411, 414, 543 S.E.2d 179, 181 (2001) (quoting State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987)), aff\u2019d per curiam, 354 N.C. 354, 553 S.E.2d 679 (2001). Accordingly, \u201can expert cannot base his conclusions solely on the children\u2019s statements that they had been abused.\u201d State v. Stancil, 146 N.C. App. 234, 240, 552 S.E.2d 212, 215 (2001), modified and aff\u2019d per curiam, 355 N.C. 266, 559 S.E.2d 788 (2002). Moreover, \u201cin 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.\u201d Dixon, 150 N.C. App. at 52, 563 S.E.2d at 598 (emphasis added). However, \u201can expert witness may testify, upon a proper foundation, as 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 give an \u201cexpert opinion based on her examination of the child and based on her expert knowledge concerning abused children in general.\u201d State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 656 (1988). \u201c \u2018The fact that this evidence may support the credibility of the victim does not alone render it inadmissible.\u2019 \u201d Dixon, 150 N.C. App. at 52, 563 S.E.2d at 598 (quoting State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 367 (1987)).\nDefendant contends that Hebert\u2019s testimony was inadmissible because it was based \u201csolely\u201d on the victim\u2019s statements. Defendant bases this argument on the following portion of his cross-examination of Hebert:\nQ: Ms. Hebert, what other sources of information did you have other than what [\u201cA\u201d] told you, ma\u2019am, to base your opinion on?\nA: My opinion about what?\nQ: That she was a victim of some type of abuse.\nA: The \u2014 I base all of my responses to a child on what they tell me. I do not consult other sources other than, I guess, her mother.\nQ: Okay. So you based your opinion on what [\u201cA\u201d] told you?\nA: Yes.\nQ: And no independent corroboration, that is, nothing to independently corroborate what she was saying.\nA: I did not research others.\nWhere \u201c[t]he expert testimony . . . [is] based on the overall examination of the child during the course of treatment,\u201d it is not inadmissible as based \u201csolely on the [victim\u2019s] statements.\u201d Stancil, 146 N.C. App. at 240, 552 S.E.2d at 216. The Stancil court noted five factors in support of its conclusion that the testimony was based on the overall examination of the child: (1) The \u201copinion was given by an expert in the field of child abuse or child investigation and interviews\u201d; (2) The testifying expert \u201chad conducted at least one interview with [the victim]\u201d; (3) The testifying expert had \u201cobserved the child\u201d; (4) The testifying expert had \u201cnoted [the victim\u2019s] symptoms and manifestations\u201d; and (5) The testifying expert \u201cwas aware of [the victim\u2019s] account of the incident to others.\u201d Id.\nHere, although Hebert was never tendered as an expert in the field of child abuse, she was the clinical therapist at Teddy Bear Child Advocacy Center. She had a masters degree in marriage and family therapy and had been working in that field for twelve years, counseling children who were victims of physical or sexual abuse, neglect or domestic violence. In addition to performing the initial \u201cclinical intake\u201d interview of \u201cA\u201d in December of 1999, Hebert took over \u201cA\u2019s\u201d case in June of 2000 and counseled her approximately one hour per week until March of 2001. Moreover, Hebert testified to the various behavioral and psychological manifestations that \u201cA\u201d exhibited during her counseling sessions. Finally, Hebert testified that she \u201cconsulted\u201d Carol Wade during the course of \u201cA\u2019s\u201d treatment.\nAlthough the record is unclear as to whether or not Hebert was specifically made aware of \u201cA\u2019s\u201d account of the incidents to others; on the facts before us, this alone does not preclude the determination that Hebert\u2019s testimony was based on her overall examination of \u201cA.\u201d Here, unlike Stancil, Hebert had the opportunity to observe and counsel \u201cA\u201d on a regular weekly basis for approximately ten months. We find it unlikely, given the testimony that was elicited, that Hebert would not have been made aware of \u201cA\u2019s\u201d account of the incidents to others. Therefore, we conclude Hebert\u2019s testimony was based on her overall examination of \u201cA\u201d during the course of treatment and not based solely on \u201cA\u2019s\u201d statements.\nDefendant next contends that because there was no physical evidence of sexual abuse, Hebert\u2019s testimony was inadmissible as merely an attestation to \u201cA\u2019s\u201d credibility. Defendant bases this argument on the following:\nQ: Ms. Hebert, what would you and [\u201cA\u201d] discuss during these particular sessions?\nA: By that time she had been through some of the initial counseling stages with Ms. Burmeister. And she and I started to work on relationship issues that had come about as a result of being abused.\nQ: What type of relationship issues did she have in your opinion that were a result of the abuse?\nA: In general children who have had sexual abuse experiences, especially from a primary caretaker, someone that they love and trust, have problems with trust, problems with confused boundaries between themselves and other people, decreased self-esteem. They don\u2019t respect themselves. They have a difficult time valuing themselves and believing that other people should value them. And they make poor choices as a result of that by allowing other people to take advantage of them, by trying to please other people, and sometimes conduct problems. [\u201cA\u201d] was experiencing all of those things at that time.\nQ: And in your opinion were they a result of the sexual abuse she had been a victim of in the past?\nA: Yes.\nQ: Were you aware, Ms. Hebert, as a result of your counselling with [\u201cA\u201d] that the sexual abuse had began when she was around the age of ten and had continued for a number of years?\nA: [\u201cA\u201d] and I \u2014 one of the activities that we did together in processing the abuse experiences she had had is that we did a time line and started from birth, worked forward \u2014 when was the first time that you remember something happening? And we worked through feelings and her inner \u2014 what she remembered of her inner processing during that time. And in that process, yes, she told me that she had first experienced abuse \u2014 I believe it was \u2014 and I\u2019m going from my memory and not from the record. I don\u2019t want to contradict something, but eight or ten.\nQ: And did she tell you who that abuse was from?\nA: Yes.\nQ: Who was that, Ma\u2019am?\nA: That was her father, Curtis Wade.\nQ: In your opinion, Ms. Hebert, based upon your training and education and your experience as a counselor at the Teddy Bear Center when you say that [\u201cA\u201d] had relationship issues, do you have an opinion as to the cause of those relationship issues?\nA: I can\u2019t be definitive in saying that all of [\u201cA\u2019s\u201d] relationship issues would stem from the sexual abuse, but I can say that she had relationship issues that were consistent with those that we see in other victims of sexual abuse. So that almost certainly they at least in part relate back to the sexual abuse she experienced.\nIt is well settled that \u201can expert witness may testify, upon a proper foundation, as 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). Our courts have also held that where child victims are examined by psychologists for purposes of \u201c \u2018diagnosis and treatment of alleged sexual abuse, details of the offense, including the identity of the offender, provided by the child during such examination are generally admissible at trial.\u2019 \u201d State v. Youngs, 141 N.C. App. 220, 225, 540 S.E.2d 794, 798 (2000) (citations omitted), disc. review denied, 353 N.C. 397, 547 S.E.2d 430 (2001).\nOur reading of this testimony leads us to conclude that Hebert\u2019s second response described the general characteristics or traits exhibited by children who have been sexually abused by primary caretakers. Hebert ends this answer by giving her opinion that the manifestations she observed in \u201cA\u201d were consistent with \u201call\u201d of those characteristics. Hebert next opined that these characteristics were the result of past sexual abuse and explained in her final response that this conclusion was based on the consistency between the manifestations exhibited by \u201cA\u201d and other victims of sexual abuse. Hebert next relayed what she had been told by \u201cA\u201d during the course of treatment, regarding some of the details of her abuse and the identity of her abuser. Therefore, while this testimony comes precariously close to that which has previously been held inadmissible by our courts, see, State v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987); State v. Grover, 142 N.C. App. 411, 543 S.E.2d 179 (2001), we conclude there was no error.\nHere, unlike Trent and Grover, Hebert did not explicitly testify that \u201cA\u201d had in fact been sexually abused. Instead, Hebert stated that her overall conclusion was that \u201cA\u2019s\u201d manifestations were consistent with those exhibited by other victims of sexual abuse, which was proper under Stancil. Based on this consistency, Hebert further opined that these manifestations were the result of past sexual abuse. This is not the same as saying that \u201cA\u201d was in fact sexually abused. Rather, this testimony related to a conclusion based upon the witness\u2019s expert knowledge concerning abused children in general. Therefore, this testimony was permissible under State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988).\nWe are also mindful that this Court has previously allowed a treating psychologist to testify that a child had in fact been sexually abused. In State v. Youngs, 141 N.C. App. 220, 540 S.E.2d 794 (2000), this Court held that \u201can expert may testify to his opinion that a child has been sexually abused as long as this conclusion relates to a diagnosis based on the expert\u2019s examination of the child during the course of treatment.\u201d Id. at 227, 540 S.E.2d at 799. The Youngs court found the following \u201ctestimony established a sufficient foundation to permit the trial court to allow [the psychologist\u2019s] expert opinion to be admitted into evidence\u201d: (1) The witness testified to being \u201ca professional psychologist in private practice . . . specializing in children and adolescents\u201d; (2) The witness \u201cwas accepted as an expert witness in the field of child psychology\u201d; (3) The witness \u201ctreated [the victim] on at least forty-five occasions prior to trial\u201d and (4) the witness\u2019s opinion was \u201c[b]ased on her observations during treatment, her professional experience, and the report of [the examining physician which concluded that the victim had sustained vaginal, oral and possibly anal penetration.]\u201d Id. at 227-28, 540 S.E.2d at 799.\nHere, we have already concluded that Hebert\u2019s testimony was based on her overall examination of \u201cA\u201d made during treatment. In addition, Hebert testified that she was a professional psychologist with twelve years experience specializing in the treatment of abused children; that her opinion was based on her training, education and experience as a counselor; and that she counseled \u201cA\u201d on a weekly basis for approximately ten months, which equates to approximately forty, hour-long sessions prior to trial. Hebert also testified concerning her observations made during the course of \u201cA\u2019s\u201d treatment. Although Hebert was not specifically tendered and accepted as an expert in the field, defendant concedes in his brief that Hebert was an expert. Even though there was no medical report indicating that there had been \u201cpenetration\u201d; the mere fact that no physical examination was performed on the victim does not negate the probative value of the testimony and render the expert incompetent to testify.\nIn State v. Stanil, 146 N.C. App. 234, 552 S.E.2d 212 (2001), modified on other grounds and aff\u2019d per curiam, 355 N.C. 266, 559 S.E.2d 788 (2002), this Court found a psychologist competent to testify despite the absence of physical evidence of abuse. The Standi court distinguished Grover on grounds that in Standi, \u201cthe nature of the sexual act (cunnilingus) was not likely to leave forensic evidence, particularly after the child used the bathroom.\u201d Id. at 240, 552 S.E.2d at 215. Notwithstanding that fact, the Standi court concluded that the expert\u2019s testimony was admissible as \u201cbased on the overall examination of the child during the course of treatment,\u201d pointing out that \u201c[t]he child not only was consistent in relating facts during each interview but also exhibited physical symptoms of trauma such as compressed speech, hand-wringing, shaking, nervousness and anxiety.\u201d Id. at 240, 552 S.E.2d at 216.\nHere, like Standi, some of the acts alleged by \u201cA,\u201d i.e., cunnilingus and fellatio, involved acts that were not likely to leave forensic evidence. Furthermore, although \u201cA\u201d alleged acts that were likely to yield physical evidence, it is unlikely that a physical examination would have resulted in the recovery of any evidence with forensic value, given the length of time that had elapsed between the offenses and their reporting. It is also noteworthy that here, like Standi, there was other corroborating physical evidence that indicated abuse: the medical records which indicated that both \u201cA\u201d and defendant were treated for a sexually transmitted disease at approximately the same time during 1997. On these facts, we conclude that Hebert\u2019s opinion concerning whether \u201cA\u201d had been sexually abused was admissible, as it related to a diagnosis based on her examination of \u201cA\u201d during the course of treatment.\nFinally, we note that the scope of our review is limited to that of plain error. In Standi, our Supreme Court concluded that \u201calthough the trial court\u2019s admission of the challenged portion of Dr. Prakash\u2019s testimony was error, it did not rise to the level of plain error\u201d because \u201c[t]he overwhelming evidence against defendant\u201d lead[] ... to [the] conclusion] that the error committed did not cause the jury to reach a different verdict than it otherwise would have reached.\u201d Stancil, 355 N.C. at 267, 559 S.E.2d at 789. After carefully reviewing the entire record, we cannot say that defendant has shown that the jury probably would have reached a different verdict. Even if the questionable portions of Hebert\u2019s testimony were stricken, the jury would still have before it: (1) the testimony of the victim; (2) corroboration of the victim\u2019s account; (3) evidence of defendant\u2019s pattern of misconduct; (4) evidence of the victim\u2019s psychological symptoms; (5) the conclusion of an expert that these symptoms were consistent with those exhibited by victims of sexual abuse; and (6) medical records indicating that both the victim and defendant were treated at approximately the same time for a sexually transmitted disease. Since there was overwhelming evidence against defendant, none of the alleged errors, if any, rises to the level of plain error. Accordingly, this assignment of error is rejected.\nDefendant next argues that the trial court committed plain error when it failed to strike portions of Carol Wade\u2019s testimony ex mero motu. Defendant contends the following portions of Carol Wade\u2019s testimony were inadmissible under Rule 701: (1) her initial opinion that defendant\u2019s \u201cdrinking was the reason that he . . . had molested . . . [\u201cT\u201d]\u201d; (2) her ultimate conclusion that defendant \u201cwas a molester at heart\u201d; (3) her conclusion that some of defendant\u2019s other behavior was because he was \u201cdrinking and crazy\u201d; (4) her testimony concerning the \u201csigns [that] made her suspicious of [defendant]\u201d; and (5) her sense that \u201c[defendant] only cultivated a boyfriend/girlfriend relationship with his daughter\u201d. Although defendant made no objections at trial, he now argues that the trial court\u2019s failure to strike the testimony ex mero mo tu constitutes plain error. After careful review of the whole record, we disagree.\nRule 701 provides that a lay witness may testify in the form of opinions or inferences, provided they are \u201c(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2001). However, nothing in Rule 701 bars \u201cevidence that is commonly referred to as a \u2018shorthand statement of fact.\u2019 \u201d Id. See, Commentary.\n[Our courts have] long held that a witness may state the \u2018instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.\u2019 Such statements are usually referred to as shorthand statements of facts.\nState v. Brown, 350 N.C. 193, 203, 513 S.E.2d 57, 64 (1999) (citations omitted).\nA careful reading of the testimony as a whole reveals that most, if not all, of the challenged testimony related to conclusions as to the mental state of defendant derived from observation of a variety of facts and circumstances. Therefore, the testimony was admissible as shorthand statements of facts. When taken out of context, Wade\u2019s statement that defendant was a \u201cmolester at heart\u201d gives us some pause; when read in context, we cannot say that absent this statement, the jury probably would have reached a different result. Accordingly, this assignment of error is rejected.\nDefendant next argues that the trial court committed plain error by allowing \u201cA\u201d to give the following testimony:\nQ: WTiy didn\u2019t you think anyone would believe you?\nA: Because of what my father said.\nQ: What had your father told you about someone believing you?\nA: He said that it would be his word against mine and that no one would believe me.\n(Emphasis added.) Although defendant did not object at trial, he now contends that his statement to \u201cA\u201d was inadmissible hearsay and the trial court committed plain error by failing to strike the testimony ex mero motu. We disagree.\n\u201c \u2018Hearsay\u2019 is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (2001). \u201cA statement is admissible as an exception to the hearsay rule if it is offered against a party and it is (A) his own statement....\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(d)(A) (2001). Here, defendant\u2019s statement was admissible as an admission by a party-opponent. Therefore, defendant\u2019s argument is without merit.\nDefendant makes the same argument with respect to certain portions of Carol Wade\u2019s testimony. Specifically, defendant contends the following was inadmissible as hearsay: (1) \u201cE\u201d \u201ctold her that [defendant] had done something to her that made her feel uncomfortable\u201d; (2) \u201cA\u2019s\u201d boyfriend, Gene, \u201chad told [\u201cA\u201d] to tell Carol \u2018what [defendant] been doing to you\u2019 (3) The police department told her twenty years earlier that \u201cT\u2019s\u201d allegations would be \u201c[defendant\u2019s] word against hers\u201d; (4) \u201cE\u201d had told her that \u201cshe had seen [\u201cA\u201d] nude in front of [defendant].\u201d After careful review of the record, we disagree and find no error.\nStatements \u201crelating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition\u201d are not excluded as hearsay. N.C. Gen. Stat. \u00a7 8C-1, Rule 803(2) (2001). Our Supreme Court has held that when a young child\u2019s report of sexual abuse is made \u201cbetween two and three days of the event,\u201d those statements are admissible under the excited utterance exception of Rule 803(2). State v. Smith, 315 N.C. 76, 90, 337 S.E.2d 833, 843 (1985).\nHere, \u201cE\u201d testified that she \u201cimmediately\u201d told a neighbor and her grandmother, Carol Wade, about the incident. Therefore, \u201cE\u2019s\u201d statement was admissible as an excited utterance. The testimony was also admissible for corroboration since \u201cE\u201d testified to the events herself. A careful reading of the testimony reveals that the remaining portions of the challenged testimony were not offered for the truth of the matter asserted, rather they were offered for the non-hearsay purposes of showing state of mind and effect on the listener. Accordingly, this argument is also rejected.\nDefendant next argues that the trial court committed plain error by permitting Melanie Palmer to testify that both defendant and \u201cA\u201d had been treated for gonorrhea. Defendant contends this testimony was inadmissible as hearsay because Palmer did not \u201ctreat\u201d him. Defendant further contends that the evidence was irrelevant and the trial court committed plain error by failing to strike the testimony ex mero motu. We disagree.\nRule 803 of the North Carolina Rules of Evidence provides that the following are not excluded by the hearsay rule:\n(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements 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.\n(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 803 (2001).\nHere, Palmer\u2019s testimony was based upon the contents of medical records maintained by the Lenoir County Health Department. Palmer testified that the records were \u201cbased upon information that individuals give ... for treatment\u201d; \u201cthe notations [are] made when the individuals come into the health department\u201d by \u201cpeople at the health department\u201d; and that the \u201crecords [are] maintained during the normal course, scope, and business of the Lenoir County Health Department.\u201d This testimony established a sufficient foundation for the records and their contents to be admitted into evidence. Therefore, this assignment of error is without merit.\n\u201c \u2018Relevant evidence\u2019 means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (2001). Medical records showing that defendant and the alleged victim in a child sexual abuse case were both treated for gonorrhea at approximately the same time is \u201cadmissible as evidence with regard to the cause or source of [the victim\u2019s] disease.\u201d State v. Efird, 309 N.C. 802, 806, 309 S.E.2d 228, 230 (1983).\nHere, Palmer testified that \u201cgonorrhea is a sexually transmitted disease\u201d and \u201cthe only way to get it is [through] intercourse or oral sex\u201d with another individual who has gonorrhea. Therefore, evidence that both were infected with gonorrhea is relevant to show that \u201cA\u201d had sexual contact with an infected person and defendant was an infected person. Accordingly, this assignment of error is without merit.\nDefendant next argues that the trial court committed plain error by admitting the testimony of \u201cA,\u201d \u201cT\u201d and \u201cE,\u201d pursuant to Rule 404(b), without making specific findings of fact as to \u201csufficient similarity\u201d and \u201cremoteness in time.\u201d The scope of appellate review \u201cis confined to a consideration of those assignments of error set out in the record on appeal. . . .\u201d N.C. R. App. P. 10(a). Here, defendant did not make the trial court\u2019s failure to make findings of fact pursuant to Rule 404(b) the basis of any assignment of error in the record. Accordingly, this issue is beyond the scope of our review.\nDefendant next argues that the trial court erred in failing to give the jury a limiting instruction as to the Rule 404(b) evidence. Defendant contends that even though a limiting instruction was not requested at trial, the trial court should have intervened ex mero motu and given a Rule 404(b) limiting instruction. We disagree.\n\u201cWhen evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 105 (2001) (emphasis added). It is the general rule that \u201c [t]he admission of evidence which is relevant and competent for a limited purpose will not be held error in the absence of a request by the defendant for a limiting instruction. \u2018Such an instruction is not required unless specifically requested by counsel.\u2019 \u201d State v. Stager, 329 N.C. 278, 309, 406 S.E.2d 876, 894 (1991) (citations omitted).\nHere, defendant failed to request a Rule 404(b) limiting instruction. Since evidence of prior acts of sexual misconduct may properly be admitted under Rule 404(b) \u201cto show a relevant state of mind such as intent, motive, plan, or opportunity,\u201d State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988), we conclude there was no error.\nFinally, defendant argues that he was deprived of a fair trial because of the ineffective assistance of his counsel. Defendant bases this argument on his trial counsel\u2019s (1) failure to object to the expert witness testimony of Barbara Hebert; (2) failure to object to the Rule 404(b) evidence; and (3) failure to request limiting instructions. Defendant contends that absent these errors, the jury would have reached a different result. We disagree.\nWhen a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel\u2019s conduct fell below an objective standard of reasonableness. In order to meet this burden defendant must satisfy a two part test[:] \u2018First, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' . . . The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel\u2019s errors, there would have been a different result in the proceedings. This determination must be based on the totality of the evidence before the finder of fact.\nState v. Braswell, 312 N.C. 553, 561-63, 324 S.E.2d 241, 248 (1985) (citations omitted).\nAfter careful review of the evidence in light of the forgoing analysis, we conclude that defendant has not shown that there would have been a different result in the proceedings. Accordingly, this assignment of error is without merit. We hold that defendant received a fair trial, free from prejudicial error.\nNo error.\nJudge GREENE concurs in the result with a separate concurring opinion.\nJudge MARTIN concurs in the result and joins in Judge Greene\u2019s concurring opinion.", "type": "majority", "author": "EAGLES, Chief Judge." }, { "text": "GREENE, Judge,\nconcurring in the result.\nAlthough I agree with the result reached by the majority, the trial court\u2019s admission of the expert opinion that \u201cA\u201d was in fact sexually abused was error. The admission of this testimony, however, did not constitute plain error.\nAs the majority recognizes, an expert in a child abuse prosecution \u201ccannot base [her] conclusions solely on the [child\u2019s] statements that [she has] been abused.\u201d State v. Stancil, 146 N.C. App. 234, 240, 552 S.E.2d 212, 215 (2001), modified and aff'd, 355 N.C. 266, 559 S.E.2d 788 (2002). Further, \u201cin 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.\u201d State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598 (2002), aff'd, 356 N.C. 428, 571 S.E.2d 584 (2002) (per curiam).\nIn this case, Hebert, an expert witness, testified \u201cA\u201d was in fact sexually abused. Specifically, she testified \u201cA\u201c \u2018s relationship issues \u201calmost certainly ... at least in part relate back to the sexual abuse [\u201cA\u201d] experienced.\u201d This opinion was based on statements given to Hebert by \u201cA.\u201d Indeed, Hebert testified she based her opinion on the responses she received from questions posed to \u201cA.\u201d There is no testimony Hebert based her opinion of any physical evidence of sexual abuse. It was thus error to admit Hebert\u2019s opinion that \u201cA\u201d was sexually abused. Dixon, 150 N.C. App. at 52, 563 S.E.2d at 598; see State v. Grover, 142 N.C. App. 411, 418, 543 S.E.2d 179, 183 (2001), aff'd, 354 N.C. 354, 553 S.E.2d 679 (2001) (per curiam).\nThe admission of this expert testimony, however, does not rise to the level of plain error. The remaining evidence in this case, excluding the improper expert testimony, included testimony from: \u201cA\u201d that she had been sexually abused by Defendant; Defendant\u2019s ex-wife about learning from \u201cA\u201d of the abuse; and Defendant\u2019s ex-wife\u2019s two other children who recounted, without objection, prior instances of abuse by Defendant. The evidence also included testimony from Hebert that victims of sexual abuse by a primary caretaker often exhibit problems with trust, confuse boundaries between themselves and others, have decreased self-esteem, and do not respect themselves and that \u201cA\u201d exhibited all these characteristics. Further, there was evidence Defendant and \u201cA\u201d were both treated for the same sexually transmitted disease at about the same time. Thus, even if the improper expert testimony is not considered, the remaining evidence in this case is such that it is not probable the jury would have reached a different result. See State v. Perkins, 154 N.C. App. 148, 152, 571 S.E.2d 645, 648 (2002).\n. It is not disputed that Hebert was an expert witness in the field of child abuse.", "type": "concurrence", "author": "GREENE, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Allison S. Corum, for the State.", "Russell J. Hollers III, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CURTIS LEVAN WADE\nNo. COA02-25\n(Filed 31 December 2002)\n1. Evidence\u2014 testimony of defendant\u2019s ex-wife \u2014 shorthand statements of fact\nThe trial court did not commit plain error in an indecent liberties with a child, felonious child abuse by a sexual act, incest, statutory rape, and first-degree rape case by failing to strike ex mero motu under N.C.G.S. \u00a7 8C-1, Rule 701 portions of the testimony of defendant\u2019s ex-wife including that defendant\u2019s drinking was the reason that he had molested, that defendant was a molester at heart, that defendant\u2019s other behavior was due to the fact he was drinking and was crazy, that there were signs that made her suspicious of defendant, and her sense that defendant only cultivated a boyfriend/girlfriend relationship with his daughter, because a careful reading of the testimony as a whole reveals that most, if not all, of the challenged testimony related to conclusions as to the mental state of defendant derived from observation of a variety of facts and circumstances making the testimony admissible as shorthand statements of facts.\n2. Evidence\u2014 hearsay \u2014 admission by party opponent\nThe trial court did not commit plain error in an indecent liberties with a child, felonious child abuse by a sexual act, incest, statutory rape, and first-degree rape case by failing to strike ex mero motu the victim daughter\u2019s testimony that defendant said it was his word against hers, because defendant\u2019s statement was admissible as an admission by a party-opponent.\n3. Evidence\u2014 hearsay \u2014 excited utterance \u2014 corroboration\u2014 state of mind \u2014 effect on listener\nThe trial court did not commit plain error in an indecent liberties with a child, felonious child abuse by a sexual act, incest, statutory rape, and first-degree rape case by failing to strike ex mero motu the testimony of defendant\u2019s ex-wife concerning her child\u2019s report of defendant\u2019s sexual abuse of the child, because: (1) a young child\u2019s report of sexual abuse made between two and three days of the event is admissible under the excited utterance exception of N.C.G.S. \u00a7 8C-1, Rule 803(2); (2) the testimony was admissible as corroboration since the child testified to the events herself; and (3) the remaining portions of the challenged testimony were not offered for the truth of the matter asserted, but for the nonhearsay purposes of showing state of mind and effect on the listener.\n4. Evidence\u2014 hearsay \u2014 business records \u2014 medical records of sexual disease in child abuse case\nThe trial court did not commit plain error in an indecent liberties with a child, felonious child abuse by a sexual act, incest, statutory rape, and first-degree rape case by failing to strike ex mero motu a witness nurse\u2019s testimony that both defendant and his victim daughter had been treated for gonorrhea when the witness did not treat defendant, because: (1) the testimony was based upon the contents of medical records maintained by the county health department during the normal course, scope, and business of the health department; and (2) medical records showing that defendant and the victim in a child abuse case were both treated for gonorrhea at approximately the same time is admissible as evidence with regard to the cause or source of the victim\u2019s disease.\n5. Appeal and Error\u2014 preservation of issues \u2014 failure to make assignment of error\nAlthough defendant contends the trial court committed plain error in an indecent liberties with a child, felonious child abuse by a sexual act, incest, statutory rape, and first-degree rape case by admitting under N.C.G.S. \u00a7 8C-1, Rule 404(b) the testimony of three of his alleged victims without making findings of fact as to the sufficient similarity and remoteness in time, this issue is dismissed because defendant failed to make findings of fact pursuant to N.C.G.S. \u00a7 8C-1, Rule 404(b) the basis of an assignment of error.\n6. Evidence\u2014 prior crimes or bad acts \u2014 sexual misconduct\u2014 state of mind \u2014 intent\u2014motive\u2014plan\u2014opportunity\nThe trial court did not err in an indecent liberties with a child, felonious child abuse by a sexual act, incest, statutory rape, and first-degree rape case by failing to give the jury a limiting instruction as to the N.C.G.S. \u00a7 8C-1, Rule 404(b) evidence concerning prior acts of sexual misconduct, because: (1) defendant failed to request a Rule 404(b) limiting instruction; and (2) evidence of prior acts of sexual misconduct may properly be admitted under Rule 404(b) to show a relevant state of mind such as intent, motive, plan, or opportunity.\n7. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object to testimony and evidence \u2014 failure to request limiting instruction\nA defendant in an indecent liberties with a child, felonious child abuse by a sexual act, incest, statutory rape, and first-degree rape case was not denied effective assistance of counsel even though his counsel failed to object to the expert testimony of a clinical therapist, failed to object to N.C.G.S. \u00a7 8C-1, Rule 404(b) evidence of prior acts of sexual misconduct, and failed to request limiting instructions, because defendant has failed to show that there would have been a different result in the proceedings.\n8. Evidence\u2014 expert testimony \u2014 victim in fact sexually abused \u2014 no plain error\nAlthough the trial court erred in an indecent liberties with a child, felonious child abuse by a sexual act, incest, statutory rape, and first-degree rape case by admitting expert testimony that the victim was in fact sexually abused, the error did not amount to plain error when the remaining evidence in the case is such that it is not probable the jury would have reached a different result including: (1) testimony from the victim that she had been sexually abused by defendant; (2) testimony from the two children of defendant\u2019s ex-wife who recounted, without objection, prior instances of abuse by defendant; (3) testimony from an expert witness that the victim exhibited characteristics of a victim of sexual abuse by a primary caretaker; and (4) evidence that the victim and defendant had both been treated for the same sexually transmitted disease at about the same time.\nJudge Greene concurring in the result.\nJudge Martin concurrs in the result and joins in the concurring opinion.\nAppeal by defendant from judgment entered 27 June 2001 by Judge Benjamin G. Alford in Lenoir County Superior Court. Heard in the Court of Appeals 12 November 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Allison S. Corum, for the State.\nRussell J. Hollers III, for defendant-appellant." }, "file_name": "0001-01", "first_page_order": 31, "last_page_order": 50 }