{ "id": 8956566, "name": "IN THE MATTER OF: OLIVIA MORALES IN THE MATTER OF: LILLY MORALES", "name_abbreviation": "In re Morales", "decision_date": "2003-08-05", "docket_number": "No. COA02-1037", "first_page": "429", "last_page": "435", "citations": [ { "type": "official", "cite": "159 N.C. App. 429" } ], "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": "430 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "893", "parenthetical": "\"A defendant is not prejudiced by error resulting from his own conduct. N.C.G.S. \u00a7 15A-1443(c) (1988).\"" } ], "opinion_index": 0 }, { "cite": "333 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548343 ], "year": 1993, "pin_cites": [ { "page": "728", "parenthetical": "\"A defendant is not prejudiced by error resulting from his own conduct. N.C.G.S. \u00a7 15A-1443(c) (1988).\"" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0719-01" ] }, { "cite": "559 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "789", "parenthetical": "emphasis original" }, { "page": "789" }, { "page": "789", "parenthetical": "limiting its holding to \"sexual offense prosecution[s]\"" } ], "opinion_index": 0 }, { "cite": "355 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219976 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "266-67", "parenthetical": "emphasis original" }, { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0266-01" ] }, { "cite": "547 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135896, 135730, 135565, 135847 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0374-03", "/nc/353/0374-01", "/nc/353/0374-02", "/nc/353/0374-04" ] }, { "cite": "536 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "846", "parenthetical": "citations omitted; internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125951 ], "year": 2000, "pin_cites": [ { "page": "301", "parenthetical": "citations omitted; internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0288-01" ] }, { "cite": "554 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138560, 138547, 138483, 138421, 138301 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0218-02", "/nc/354/0218-05", "/nc/354/0218-03", "/nc/354/0218-01", "/nc/354/0218-04" ] }, { "cite": "546 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "175" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434950 ], "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0402-01" ] }, { "cite": "583 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491456, 491821, 491856, 491636, 491670, 491608, 491641, 491453 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0253-03", "/nc/357/0253-07", "/nc/357/0253-02", "/nc/357/0253-06", "/nc/357/0253-04", "/nc/357/0253-05", "/nc/357/0253-01", "/nc/357/0253-08" ] }, { "cite": "570 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "748", "parenthetical": "\"An objection to the admission of evidence is waived where the same or similar evidence is subsequently admitted without objection.\"" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 396", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250073 ], "year": 2002, "pin_cites": [ { "page": "401", "parenthetical": "\"An objection to the admission of evidence is waived where the same or similar evidence is subsequently admitted without objection.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0396-01" ] } ], "analysis": { "cardinality": 619, "char_count": 14142, "ocr_confidence": 0.755, "pagerank": { "raw": 1.7460933483699023e-07, "percentile": 0.7077980222012944 }, "sha256": "28f852a8cb55721fdedec8d69cf625a1177d01e19563fa3e469332f741a1a2b4", "simhash": "1:cbabd43a66a718bc", "word_count": 2243 }, "last_updated": "2023-07-14T16:27:55.515420+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and BRYANT concur." ], "parties": [ "IN THE MATTER OF: OLIVIA MORALES IN THE MATTER OF: LILLY MORALES" ], "opinions": [ { "text": "GEER, Judge.\nRespondents Jesus Morales and Alicia Locklear appeal the trial court\u2019s determination that their daughter Lillian (\u201cLilly\u201d) was an abused child and their daughter Olivia was a neglected child. Respondents argue primarily that the trial court should not have allowed social workers to testify as to statements made to them by Lilly and should have excluded the testimony of a social worker and a physician that they believed Lilly in fact to be abused. Since respondents have failed to preserve their arguments properly for review on appeal and have failed to demonstrate prejudice from any errors, we affirm.\nRespondents Alicia Locklear and Jesus Morales are the parents of Lilly, born 17 September 1997, and Olivia, born 2 September 1998. Ms. Locklear is also the mother of a third child, Brittany, who at the time of the hearing was seven years old.\nBrittany was living with her father and stepmother, Betty Smith, when her stepmother observed her sitting on top of a stuffed animal and moving in a sexual way. In response to questioning by Ms. Smith, Brittany identified Mr. Morales as someone who had touched her \u201ca lot\u201d in a way that was \u201cnot right.\u201d Ms. Smith took Brittany to the doctor who called petitioner, Sampson County Department of Social Services.\nAs a result of the report regarding Brittany (received on 8 November 2001) and an evaluation of Brittany, DSS social worker Marissa Dempsey attempted to contact respondents regarding Lilly and Olivia. On 15 November 2001, petitioner filed petitions alleging Lilly Morales, age five, and Olivia Morales, age three, to be abused juveniles. Specifically, the petitions alleged that Lilly was an abused juvenile in that her father, Jesus Morales, \u201ccommitted, permitted, or encouraged the commission of a sex or pornography offense with or upon the juvenile in violation of the criminal law.\u201d Olivia\u2019s petition alleged that she \u201cresid[ed] in an injurious environment.\u201d The court issued orders for nonsecure custody and the children were placed in foster care.\nLilly was interviewed on 30 November and 7 December 2001 by social worker Jeanne Arnts at the Center for Child and Family Health in Durham, North Carolina. In addition, Lilly was given a physical examination by Dana Leinenweber, M.D., also employed at the Center. Ms. Arnts and Dr. Leinenweber together prepared a report based on the interviews and physical examination, reached a diagnosis, and developed a plan and recommendations for Lilly and Olivia.\nJudge Leonard W. Thagard conducted a hearing on the merits of the petitions from 29 January through 31 January 2002. After hearing testimony from eleven witnesses, reviewing videotapes of interviews of Lilly, and hearing argument, the court on 11 February 2002, in separate orders, found that Lilly was an abused child and that Olivia was a neglected child as defined by N.C. Gen. Stat. \u00a7 7B-101 (2001). Respondents filed notice of appeal on 21 February 2002.\nI\nRespondents first argue generally that \u201c[t]he trial court erred in admitting, over respondent\u2019s objection, Lilly\u2019s hearsay statements.\u201d Only one of their assignments of error, however, even arguably chai-lenges the admission of Lilly\u2019s statements: \u201cThe trial court erred in allowing, over respondents\u2019 objection, Dr. Dana Leinenweber to testify as to statements made by Lillian Morales to Jean Arntz [sic] when Dr. Leinenweber did not hear the statements.\u201d\nAlthough, in their brief, respondents now argue that Ms. Arnts\u2019 and Ms. Dempsey\u2019s testimony regarding statements by Lilly constituted inadmissible hearsay, that contention was not assigned as error and, therefore, was not preserved for review. N.C.R. App. P. 10(a) (\u201cthe scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal\u201d). As for the testimony of Dr. Leinenweber, assigned as error, respondents have failed to brief that issue. The portion of the transcript referenced in the assignment of error is not addressed in the brief. This assignment of error is, therefore, deemed abandoned. N.C.R. App. P. 28(b)(6) (\u201cAssignments 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).\nII\nSecond, respondents argue that the trial court erred in admitting Ms. Arnts\u2019 and Dr. Leinenweber\u2019s opinions that sexual abuse had in fact occurred. It first should be noted that while respondents objected to Ms. Arnts\u2019 opinion, they made no objection to Dr. Leinenweber\u2019s testimony that she had diagnosed Lilly as being sexually abused. Respondents cannot now challenge Dr. Leinenweber\u2019s testimony. N.C.R. App. P. 10(b)(1) (\u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely . . . objection ....\u201d).\nIt is also well-established that an objection to evidence may not be appealed if identical evidence was subsequently admitted without objection. State v. Hyman, 153 N.C. App. 396, 401, 570 S.E.2d 745, 748 (2002) (\u201cAn objection to the admission of evidence is waived where the same or similar evidence is subsequently admitted without objection.\u201d), cert. denied, 357 N.C. 253, 583 S.E.2d 41 (2003). Since Dr. Leinenweber testified without objection identically to Ms. Amts, respondents waived their objection to Ms. Arnts\u2019 opinion.\nFurther, while we agree that the opinions expressed by the experts were improper under the circumstances of this case, respondents have failed to establish that they were prejudiced by the admission of this testimony. In a bench trial, \u201cthe court is presumed to disregard incompetent evidence. Where there is competent evidence to support the court\u2019s findings, the admission of incompetent evidence is not prejudicial.\u201d In re McMillon, 143 N.C. App. 402, 411, 546 S.E.2d 169, 175 (citations omitted), disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001).\nAs this Court pointed out in In re Huff, 140 N.C. App. 288, 301, 536 S.E.2d 838, 846 (2000) (citations omitted; internal quotation marks omitted), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001):\nThe mere admission by the trial court of incompetent evidence over proper objection does not require reversal on appeal. Rather, the appellant must also show that the incompetent evidence caused some prejudice. In the context of a bench trial, an appellant must show that the court relied on the incompetent evidence in making its findings. Where there is competent evidence in the record supporting the court\u2019s findings, we presume that the court relied upon it and disregarded the incompetent evidence.\nHere, respondents have failed to meet their burden of proving that the trial court relied upon incompetent evidence in making its findings.\nOur Supreme Court has held:\nIn a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in fact occurred because, absent physical evidence supporting a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding the victim\u2019s credibility.\nState v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (emphasis original). Nevertheless, \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 Id. at 267, 559 S.E.2d at 789.\nIn a jury trial, the distinction between an expert witness\u2019 testifying (a) that sexual abuse in fact occurred or (b) that a victim has symptoms consistent with sexual abuse is critical. A jury could well be improperly swayed by the expert\u2019s endorsement of the victim\u2019s credibility. In a bench trial, however, we can presume, unless an appellant shows otherwise, that the trial court understood the distinction and did not improperly rely upon an expert witness\u2019 assessment of credibility. Cf. Stancil, 355 N.C. at 266, 559 S.E.2d at 789 (limiting its holding to \u201csexual offense prosecution[s]\u201d).\nIn this case, respondents have not demonstrated that the trial court relied upon the improper expert opinions of Ms. Amts and Dr. Leinenweber. In fact, the transcript establishes the contrary. At the end of the hearing and before rendering his decision, the trial court recognized that these expert opinions were likely inadmissible and stated \u201ceven if Dr. [Leinenweber] had not been allowed to express an opinion in this case, my decision on the facts would not change. And the same for Mrs. [Arnts].\u201d The court specified that it was relying on the videotape of Lilly, offered by respondents, which the court found \u201cpowerful and convincing;\u201d on Lilly\u2019s statements to the social workers (not objected to or assigned as error); and on the statements made by her half-sister Brittany. Since the trial court explicitly noted that it was not relying on the incompetent evidence and since competent evidence existed to support the court\u2019s findings, we overrule these assignments of error.\nIll\nFinally, respondents argue that the trial court erred in denying their motions to dismiss at the close of petitioners\u2019 evidence and at the close of all of the evidence. We disagree.\nAt the close of petitioners\u2019 evidence, the trial court had ample evidence before it supporting a finding that Lilly had been sexually abused and that Olivia was living in an injurious environment. Respondents\u2019 own counsel had elicited from DSS social worker Marissa Dempsey statements made by Lilly that demonstrated sexual knowledge. Ms. Amts testified extensively \u2014 without contemporaneous objection by respondents \u2014 to statements of Lilly describing sexual contact with Mr. Morales. In addition, Dr. Leinenweber testified without objection that Lilly had \u201cvery specific knowledge that a child would not have without exposure to this sort of thing,\u201d referring to sexual abuse. This evidence was sufficient for denial of the motion to dismiss at the close of petitioner\u2019s evidence.\nWith respect to the motion to dismiss at the close of all of the evidence, respondents argue that the trial court should not, in rendering its decision, have relied upon the videotaped interviews of Lilly. Respondents themselves introduced the videotapes into evidence and urged the trial court to view them. Respondents cannot complain simply because the trial court saw their evidence in a different light than they intended. See State v. Williams, 333 N.C. 719, 728, 430 S.E.2d 888, 893 (1993) (\u201cA defendant is not prejudiced by error resulting from his own conduct. N.C.G.S. \u00a7 15A-1443(c) (1988).\u201d).\nAffirmed.\nJudges TIMMONS-GOODSON and BRYANT concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Sampson County Department of Social Services, by Benjamin R. Warrick, for petitioner-appellee.", "Philip E. Williams, for respondents-appellants.", "Isaac Cortes, Jr., for Olivia and Lilly Morales." ], "corrections": "", "head_matter": "IN THE MATTER OF: OLIVIA MORALES IN THE MATTER OF: LILLY MORALES\nNo. COA02-1037\n(Filed 5 August 2003)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to assign error \u2014 failure to argue in brief\nAlthough respondent parents contend the trial court erred in a child sexual abuse and neglect case by admitting, over respondents\u2019 objection, the hearsay statements of one of their children, this issue was not preserved for appellate review because: (1) respondents did not assign error to the testimony of two social workers regarding statements by the child even though respondents now argue these statements were inadmissible hearsay; and (2) respondents failed to brief the issue of the testimony of a doctor being error, and the portion of the transcript referenced in the assignment of error is not addressed in the brief.\n2. Child Abuse and Neglect\u2014 opinion testimony sexual abuse occurred \u2014 failure to object \u2014 waiver\u2014failure to show prejudice\nThe trial court did not err in a child sexual abuse and neglect case by admitting the opinions of a social worker and a doctor that sexual abuse had in fact occurred, because: (1) respondents did not preserve the issue of the doctor\u2019s testimony since respondents made no objection to the doctor\u2019s testimony; (2) respondents waived their objection to the social worker\u2019s opinion since an objection to evidence may not be appealed if identical evidence was subsequently admitted without objection, and a doctor testified without objection identically to the social worker; and (3) while the opinions expressed by the experts were improper under the circumstances of this case, respondents failed to establish that they were prejudiced by the admission of this testimony when the trial court explicitly noted that it was not relying on the incompetent evidence and competent evidence existed to support the court\u2019s findings.\n3. Child Abuse and Neglect\u2014 sexual abuse \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err in a child sexual abuse and neglect case by denying respondent parents\u2019 motions to dismiss at the close of petitioner\u2019s evidence and at the close of all evidence, because: (1) at the close of petitioner\u2019s evidence, the trial court had ample evidence before it supporting a finding that respondents\u2019 older child had been sexually abused and that their younger child was living in an injurious environment, respondents\u2019 own counsel elicited from a social worker statements made by the older child that demonstrated sexual knowledge, another social worker testified extensively to statements of the older child describing sexual contact with respondent father, and a doctor testified without objection that the older child had very specific knowledge that a child would not have without exposure to sexual abuse; and (2) at the close of all evidence, respondents themselves introduced the videotaped interviews of their older daughter that they now argue the trial court should not have used in rendering its decision, and respondents cannot now complain simply based on the fact that the trial court saw the evidence in a different light than respondents intended.\nAppeal by respondents from orders entered 11 February 2002 by Judge Leonard W. Thagard in Sampson County District Court. Heard in the Court of Appeals 16 April 2003.\nSampson County Department of Social Services, by Benjamin R. Warrick, for petitioner-appellee.\nPhilip E. Williams, for respondents-appellants.\nIsaac Cortes, Jr., for Olivia and Lilly Morales." }, "file_name": "0429-01", "first_page_order": 459, "last_page_order": 465 }