{ "id": 9189682, "name": "STATE OF NORTH CAROLINA v. MAURICE SHEPHERD", "name_abbreviation": "State v. Shepherd", "decision_date": "2003-02-04", "docket_number": "No. COA02-219", "first_page": "69", "last_page": "75", "citations": [ { "type": "official", "cite": "156 N.C. App. 69" } ], "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": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "556 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 662", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9381020 ], "year": 2001, "pin_cites": [ { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0662-01" ] }, { "cite": "247 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "910" } ], "opinion_index": 0 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "322 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "120" } ], "opinion_index": 0 }, { "cite": "312 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759870 ], "year": 1984, "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0092-01" ] }, { "cite": "533 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "219" } ], "opinion_index": 0 }, { "cite": "352 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684963 ], "year": 2000, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0364-01" ] }, { "cite": "519 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "99", "parenthetical": "expert opinion on abuse admissible where based on doctor's medical examination of the victim, extensive personal experience examining children who had been sexually abused, knowledge of child sexual abuse studies, and a colleague's notes from an interview with the victim" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238982 ], "year": 1999, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0059-01" ] }, { "cite": "564 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "608", "parenthetical": "expert opinion on sexual abuse admissible where based on medical examination indicating trauma and victim's medical history" }, { "page": "608" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079274 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "78", "parenthetical": "expert opinion on sexual abuse admissible where based on medical examination indicating trauma and victim's medical history" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0071-01" ] }, { "cite": "559 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "finding expert testimony on sexual abuse inadmissible where there was no physical evidence to support opinion but holding erroneous admission harmless" } ], "opinion_index": 0 }, { "cite": "355 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219976 ], "year": 2002, "pin_cites": [ { "parenthetical": "finding expert testimony on sexual abuse inadmissible where there was no physical evidence to support opinion but holding erroneous admission harmless" } ], "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": "571 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "356 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511280 ], "year": 2002, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0428-01" ] }, { "cite": "563 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "598", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079747 ], "year": 2002, "pin_cites": [ { "page": "52", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0046-01" ] }, { "cite": "528 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "341-43", "parenthetical": "noting the \"overwhelming case law approving the use of short-form indictments and the lack of a federal mandate to change that determination\"" } ], "opinion_index": 0 }, { "cite": "351 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155877 ], "year": 2000, "pin_cites": [ { "page": "503-08", "parenthetical": "noting the \"overwhelming case law approving the use of short-form indictments and the lack of a federal mandate to change that determination\"" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0481-01" ] } ], "analysis": { "cardinality": 652, "char_count": 14702, "ocr_confidence": 0.747, "pagerank": { "raw": 5.7373289062129016e-08, "percentile": 0.35934141334108666 }, "sha256": "7940e60239e62a2315e22b5d0bdd487719e38fee1abb5d6c89b425761f94a212", "simhash": "1:603ac06a69de55af", "word_count": 2375 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MAURICE SHEPHERD" ], "opinions": [ { "text": "BRYANT, Judge.\nMaurice Shepherd (Defendant) appeals from judgments dated 19 September 2001 entered consistent with a jury verdict finding him guilty of two counts of first-degree sexual offense and three counts of taking indecent liberties with a child. We find no error.\nAt trial, Dr. Rebecca Coker (Dr. Coker), who had examined the minor child approximately four months after the alleged sexual abuse, testified as an expert in the field of pediatrics with special expertise in the evaluation of child abuse cases. Dr. Coker stated in the case of penile anal and oral penetration, as alleged in this case, \u201c[i]f there[ has] been a significant delay in terms of the disclosure, any kinds of physical findings might not be present.\u201d Furthermore, \u201cseventy-five percent of the time even when there is confessed penetration, there may be no physical findings.\u201d Apart from any physical evidence, other factors that indicate sexual abuse in children include their behavioral changes and their ability to describe what happened.\nDr. Coker testified that during her examination of the minor child, she did find \u201cchanges in the tissues around . . . and below the hymen that were consistent with trauma\u201d and could have been caused by attempted anal penetration. Dr. Coker reviewed the minor child\u2019s medical history, which included (1) previous interviews between the minor child, her mother, and a social worker regarding the abuse and (2) a list of the behavioral changes the minor child had experienced since the alleged abuse. The behavioral changes consisted of sleep disturbance, sexualized behavior in the school environment, fear, and post-traumatic stress symptoms such as her fear of walking through the house alone. As part of her medical history, the minor child also described to Dr. Coker how Defendant \u201chad penetrated her orally with his penis and had attempted to penetrate her anally.\u201d\nDr. Coker opined: \u201cIn this case, medical history is probably the most determinative factor in making a diagnosis [the minor child] had indeed experienced sexual contact that was inappropriate for her developmental stage.\u201d Dr. Coker noted \u201cthe clarity of the history, the nature of the disclosure, and the behavioral changes that [the minor child] exhibited\u201d and, over Defendant\u2019s objection, concluded \u201cthere ha[d] been sexual contact that was inappropriate.\u201d As part of her treatment plan for the minor child, Dr. Coker recommended she receive counseling and \u201chave no further contact with the alleged perpetrator.\u201d When asked on cross-examination why she was more often asked to testify for the State, Dr. Coker explained that \u201cthe legal system would not try someone if the medical opinion were not supportive of that.\u201d\nAt the end of all the evidence, the trial court instructed the jury that in order to find Defendant guilty of first-degree statutory sexual offense, one factor the State had to prove was the commission of a sexual act. The trial court then defined a sexual act as either fellatio or anal intercourse.\nThe issues are whether: (I) the short-form indictments insufficiently allege the elements of first-degree statutory sexual offense and are therefore unconstitutional; (II) there was an insufficient foundation to allow Dr. Coker to express her expert opinion that the minor child had been sexually abused; (HI) Dr. Coker\u2019s testimony as to what the minor child had told her during the medical examination was inadmissible hearsay; (IV) Dr. Coker\u2019s testimony amounted to an expression on Defendant\u2019s guilt or innocence; and (V) the trial court committed plain error in instructing the jury on the offense of first-degree statutory sexual offense.\nI\nDefendant first argues the short-form indictments against him insufficiently allege the elements of first-degree statutory sexual offense and are therefore invalid. Defendant acknowledges in his brief to this Court that our Supreme Court has previously held short-form indictments, including those for first-degree sexual offense,' that comply with the statutes authorizing short-form indictments but fail to allege all the elements of the crime charged to be constitutional. See State v. Wallace, 351 N.C. 481, 503-08, 528 S.E.2d 326, 341-43 (2000) (noting the \u201coverwhelming case law approving the use of short-form indictments and the lack of a federal mandate to change that determination\u201d); N.C.G.S. \u00a7 15-144.2 (2001). As we are bound by our Supreme Court\u2019s holding, this assignment of error is overruled.\nII\nDefendant next contends Dr. Coker\u2019s expert opinion that the minor child had been sexually abused lacked the requisite foundation as there was no physical evidence in support thereof.\nIt is well established that \u201c[i]f 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.\u201d N.C.G.S. \u00a7 8C-1, Rule 702(a) (2001). Expert opinion testimony, however, is inadmissible to establish the credibility of the victim as a witness. State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598, aff'd, 356 N.C. 428, 571 S.E.2d 584 (2002) (per curiam). Accordingly, \u201cthose 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 the admission of expert testimony if based upon a proper foundation. See, e.g., State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002) (finding expert testimony on sexual abuse inadmissible where there was no physical evidence to support opinion but holding erroneous admission harmless). Such a foundation may be based on the testifying physician\u2019s medical examination and review of the victim\u2019s medical history. See State v. Brothers, 151 N.C. App. 71, 78, 564 S.E.2d 603, 608 (2002) (expert opinion on sexual abuse admissible where based on medical examination indicating trauma and victim\u2019s medical history); see also State v. Crumbley, 135 N.C. App. 59, 66, 519 S.E.2d 94, 99 (1999) (expert opinion on abuse admissible where based on doctor\u2019s medical examination of the victim, extensive personal experience examining children who had been sexually abused, knowledge of child sexual abuse studies, and a colleague\u2019s notes from an interview with the victim).\nIn this case, Defendant contends Dr. Coker\u2019s opinion of sexual abuse was not based on any physical evidence but turned solely on the minor child\u2019s medical history. While Dr. Coker did state that \u201c[i]n this case, medical history is probably the most determinative factor in making a diagnosis [of sexual abuse],\u201d Defendant\u2019s interpretation of the evidence completely ignores Dr. Coker\u2019s additional testimony that during her physical examination of the minor child she found changes in the tissue near the hymen that were consistent with trauma and could have been caused by attempted anal penetration. Thus, the foundation for Dr. Coker\u2019s opinion was based on both a physical examination and resulting findings and a review of the minor child\u2019s medical history. The medical history was part of the medical examination and revealed a pattern of behavioral changes in the minor child indicative of sexual abuse. As such, there was a sufficient foundation for Dr. Coker\u2019s expert opinion, and the trial court properly admitted the testimony. See Brothers, 151 N.C. App. at 78, 564 S.E.2d at 608.\nIll\nDefendant further asserts the minor child\u2019s statements to Dr. Coker as to how Defendant had sexually abused her constituted inadmissible hearsay. \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.G.S. \u00a7 8C-1, Rule 801(c) (2001). An out-of-court statement offered for a purpose other than to prove the truth of the matter asserted is not considered hearsay. State v. Golphin, 352 N.C. 364, 440, 533 S.E.2d 168, 219 (2000). Thus, \u201ctestimony as to information relied upon by an expert when offered to show the basis for the expert\u2019s opinion is not hearsay, since it is not offered as substantive evidence.\u201d State v. Huffstetler, 312 N.C. 92, 107, 322 S.E.2d 110, 120 (1984). Such evidence is admissible for the limited purpose for which it is offered and not as an exception to the hearsay rule. Id.\nIn this case, the minor child\u2019s medical history formed part of the basis for Dr. Coker\u2019s diagnosis of sexual abuse. As the minor child\u2019s statements were made during the gathering of information to obtain her medical history, they were not offered for the truth of the matter asserted but to illustrate the type of information Dr. Coker collected in order to diagnose the minor child. Accordingly, the statements were not hearsay, and the trial court properly admitted them into evidence. See id.\nIV\nIn his next assignment of error, Defendant argues the trial court committed plain error in allowing Dr. Coker to testify as to his guilt or innocence by stating: (1) she had recommended the minor child receive counseling and to \u201chave no further contact with the alleged perpetrator\u201d and (2) \u201cthe legal system would not try someone if the medical opinion were not supportive of that.\u201d Defendant relies on the principle that an expert witness should not express an opinion on the very issue to be decided by the jury and thereby invade the jury\u2019s province. State v. Wilkerson, 295 N.C. 559, 567, 247 S.E.2d 905, 910 (1978).\nWe hold that Dr. Coker\u2019s testimony did not express an opinion of guilt so as to invade the jury\u2019s province. First of all, Dr. Coker\u2019s recommendation for the minor child to \u201chave no further contact with the alleged perpetrator\u201d does not amount to an expression of guilt. Instead, it was part of the minor child\u2019s treatment plan and probably served as an additional precaution to create distance between the victim and the alleged perpetrator until his guilt or innocence was determined. Dr. Coker\u2019s second statement was equally harmless as she simply stated her view of the importance of medical opinion in the legal system. Furthermore, this statement, which was elicited by Defendant on cross-examination, was only offered to explain why Dr. Coker tended to testify more often for the State. Thus, the trial court did not err in admitting Dr. Coker\u2019s statements.\nV\nFinally, Defendant contends the trial court committed plain error by instructing the jury on the offense of first-degree statutory sexual offense and defining a sexual act as either fellatio or anal intercourse. Defendant acknowledges this Court has previously held that a defendant may be convicted of first-degree sexual offense even if the trial court instructs the jury that more than one sexual act may comprise an element of the offense, see State v. Yearwood, 147 N.C. App. 662, 669, 556 S.E.2d 672, 677 (2001), but urges this Court to reconsider its holding. We first note that Defendant in his brief to this Court offers no argument for such a deviation from established precedent. See N.C.R. App. R 28(6) (\u201c[assignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned\u201d). Moreover, \u201c[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Accordingly, this assignment of error is also overruled.\nNo error.\nJudges WYNN and GEER concur.\n. At the time of the offenses, the minor child was seven years old.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Celia Grasty Lata, for the State.", "Belser & Parke, P.A., by David G. Belser, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MAURICE SHEPHERD\nNo. COA02-219\n(Filed 4 February 2003)\n1. Sexual Offenses\u2014 first-degree statutory sexual offense\u2014 sufficiency of short-form indictment\nThe short-form indictment used to charge defendant with first-degree statutory sexual offense was constitutional even though it did not allege all of the elements of the crime.\n2. Evidence\u2014 expert opinion testimony \u2014 sexual abuse\nThe trial court did not err in a first-degree sexual offense and taking indecent liberties with a child case by allowing an expert to testify as to her opinion that the minor child had been sexually abused, because the expert\u2019s opinion was based on both a physical examination and resulting findings and a review of the minor child\u2019s medical history.\n3. Evidence\u2014 hearsay \u2014 medical history \u2014 not offered for truth of matter asserted\nThe trial court did not err in a first-degree sexual offense and taking indecent liberties with a child case by allowing a doctor\u2019s testimony as to what the minor child had told her during the medical examination even though defendant contends it was inadmissible hearsay, because: (1) the minor child\u2019s statements were made during the gathering of information to obtain her medical history; and (2) the statements were not offered for the truth of the matter asserted but to illustrate the type of information the doctor collected in order to diagnose the minor child.\n4. Evidence\u2014 expert opinion testimony \u2014 no expression of defendant\u2019s guilt\nA doctor did not express an opinion as to defendant\u2019s guilt so as to invade the province of the jury in a prosecution for first-degree sexual offense and taking indecent liberties with a child when she testified that she had recommended that the minor child \u201chave no further contact with the alleged perpetrator\u201d and that \u201cthe legal system would not try someone if the medical opinion were not supportive of that.\u201d\n5. Appeal and Error\u2014 appealability \u2014 issue already decided\nAlthough defendant contends the trial court committed plain error by instructing the jury on the offense of first-degree statutory sexual offense and defining a sexual act as either fellatio or anal intercourse, this assignment of error is overruled because: (1) another panel of the Court of Appeals has already decided this same issue against defendant; and (2) defendant offered no argument for a deviation from established precedent.\nAppeal by defendant from judgments dated 19 September 2001 by Judge Cy A. Grant, Sr. in Northampton County Superior Court. Heard in the Court of Appeals 7 January 2003.\nAttorney General Roy Cooper, by Assistant Attorney General Celia Grasty Lata, for the State.\nBelser & Parke, P.A., by David G. Belser, for defendant appellant." }, "file_name": "0069-01", "first_page_order": 99, "last_page_order": 105 }